NSA Spying Comes Under Attack

maotx writes "The NSA's no-longer-secret surveillance program came under a two-pronged attack this week on both political and legal fronts. Sen. Arlen Specter of Pennsylvania threatens to cut funding to NSA's spying program if President Bush's administration does not come clean on how it works. Separately, two hearing dates have been set for a lawsuit that seeks to prove that AT&T illegally cooperated with the NSA and violated federal wiretapping laws in doing so. Sen. Specter emphasized that he doesn't want the issue to fade into the background, saying that he'd like to see 'public concern and public indignation build up.'"

Re:Yadda, yadda

[sconeu]

Because the President violated his oath of office?

He swore to uphold and defend the Constitution. Allowing domestic wiretaps without a warrant is a violation of said oath.

And the warrants would have been easy to obtain, including the fact that they're available up to 72 hours after the fact.

What the item leaves out

[KarMann]

They didn't mention this bit [ap.org], however:

"Institutionally, the presidency is walking all over Congress at the moment," Specter said. "If we are to maintain our institutional prerogative, that may be the only way we can do it."

Specter made clear that, for now, the threat was just that.

"I'm not prepared to call for the withholding of funds," he told reporters later.

So for Specter's part, it's pretty much just posturing, or else maybe he kinda sorta meant it, until some of the boys from the administration came to have a friendly little chat with him.

Prediction:

[jbeaupre]

I'm going to go out on a limb and predict that the 'wiretapping' isn't actually 'phone wiretapping.' It's going to be something else. What? Who knows.

Why?

circumstanstial evidence:

1) It was references as "communications." That could be friggin anything.
2) internal legal opinion saying spying method was legal when wiretapping already has well established rules. importance? Someone is probably splitting hairs, but getting such an opinion probably means they found a loophole. i.e. it's not a phone or something minor like that.
3) how it's played out in the press: "Bush is spying illegally" "No we're not" "Yes you are, your wiretapping" "What we're doing is legal and we're not going to tell you about it for technical reasons that might give it away." "So you are wiretapping" "Uh, guess you caught us, blah blah blah" importance? It may or may not be wiretapping, but the administration is happy to let everyone argue that it is. Can everyone say 'diversion?'

I have my guesses what it could be, but I'm staying mum. Why? Because it might actually be legal and doing some good and if I guess right, the eye of Sauron starts lookin' my way out of spite. Unlikely, but not worth it.

So in conclusion, uh, you didn't read anything. It was all a dream....

FISA Court Anyone?

[Siberwulf]

How is it that every time one of these "NSA Surveillance" articles pops up, nobody chimes in about FISA [fas.org] Court? (Foreign Intelligence Surveillance Act)

All you tinfoil hat people need to read this pdf document [fas.org].

Some talking points:
Page 3: "In so doing, the Court of Review recognized that the U.S. Court of Appeals for the Fourth Circuit, "as did all the other courts to have decided the issue, held that the President did have authority to conduct warrantless searches to obtain foreign intelligence information."

More Page 3: ""perhaps most crucially, the executive branch not only has superior expertise in the area of foreign intelligence, it is also constitutionally designated as the pre-eminent authority in foreign affairs. The President and his deputies are charged by the constitution with the conduct of the foreign policy of the United States"

Page 4: In addition, substantial authority indicates that the President has inherent constitutional authority over the gathering of foreign intelligence--authority that Congress may not circumscribe. The Foreign Intelligence Surveillance Court of Review suggested that, even after FISA, the President possesses inherent constitutional Authority that FISA could not limit.

The list of quotes goes on
So, for all you people wondering why the hell nobody has got any legal dirt on all these 'illegal activities', you need to read your history book. Its come up before, FISA court shot the president down, FISA court of review shot FISA court down, and the Supreme Court Won't even hear the case because its been settled already. This is all democratic dragging through the mud.

/rant off

Re:It's probably legal. There are bigger issues!

[Anonymous Coward]

You can find thousands of links in Google. Just do searches for

"Ehsanul Islam Sadequee"

"Yaser Esam Hamdi"

and

"abu gharib"

Re:And one warrant to rule them all...

[terrymr]

And (under Fisa) the warrent can be obtained after the actual interception ... the warrant is required to use the wiretapped evidence, not obtain it. The administration is actually saying that seeking a warrant after the intercept would somehow delay it.

Re:FISA Court Anyone?

[CaymanIslandCarpedie]

Classic A=B and C=B therefore Z=A thinking. Court says president and do foreign wiretapping...everyone agrees this court has final say...therefore president can do domestic wiretapping!

you need to read your history book.

I like reading as much as the next guy, but I prefer to reference documents such as the constitution, federalist papers, etc more than a brief submitted by the AG explaining why his boss can do whatever he wants.

For anyone thinking the above was taken from some scholarly dissertation on the subject, it is actually taken from everyone's favorite civil liberties crusader (NOT) AG Gonzolez's response to congress about the NSA wire tapping (that means VERY unbiased look at the issues ;-).

Re:People Do Not Care

[thedletterman]

This will likely be an unpopular opinion here, but there's a few things that irk me about the above reference. 1. Benjamin Franklin never said "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.", It was written by Richard Jackson. Benjamin Franklin himself denied writing this phrase in a letter to David Hume dated a year after the book that attributed the phrase to him. Franklin's nearest quote to the same effect holds quite a different meaning: "Sell not virtue to purchase wealth, nor Liberty to purchase power" [1] [wikiquote.org] 2. "This is the same apathy we see every year with laughingly low voter turnouts" - This statement is patently absurd [2] [washingtonpost.com] 3. People who frequently pen, "The majority of people in America are too stupid..." are typically intellectually insecure, obnoxiously arrogant, or both. In either regard, they presume to perform with superior judgement to the common sense, which is the antithesis of democracy. 4. "Many Americans sadly enough have no clue the NSA has been spying on Americans." There's 2.2 million webpages on the internet dedicated to reporting the NSA spying efforts. I don't have access to Lexis Nexis anymore or I would happily tell you how many front pages the story has made. The idea that people are 'unaware' of this is stupid. Unlike you, they understand the need to obtain valid intelligence information to fight a war. [3] [google.com] 5. The Clinton administration claims that it can bypass the warrant clause for "national security" purposes. In July 1994 Deputy Attorney General Jamie S. Gorelick told the House Select Committee on Intelligence that the president "has inherent authority to conduct warrantless searches for foreign intelligence purposes." [4] [cato.org] What I would rather argue, is which of security or privacy are a more essential liberty, and in fact, is privacy even essential. The Constitution requires reasonable privacy, not absolute. Privacy is not essential for freedom, other than the fact it requires accountability. so you are no longer free to be unaccountable for your actions, given the times, would it be reasonable or even prudent to allow this? There's a big difference between the NSA spying, and say, Bill Clinton using illegal wiretaps to spy on Senators. How many people survived the Rose Law firm scandal by the way?

Re:He's going to be waiting a long time

[citabjockey]

And just how would you know that Bush is just going after international communications? IIRC Gonzales did not "rule out" domestic survelance. As far as what is new about this, Bush has sidestepped FISA court. If Clinton had a tap with no court order, he should be in just as much hot water as Bush.

Re:FISA Court Anyone?

[DragonWriter]

First, a bit of pedantry, its not the "Foreign Intelligence Surveillance Act (FISA) Court", it is the "Foreign Intelligence Surveillance Court" which is set up by the Foreign Intelligence Surveillance Act.

But more substantively, the ruling you cite refers back to a Fourth Circuit ruling prior to the adoption of FISA (which, therefore, discusses what powers the President has when Congress has not acted) and then makes some comments about inherent power that have little precedential weight because the issue of the degree and extent of Presidential authority to act without or contrary to Congressional dicates was not at issue in the case before the FISC. Instead, the issue was whether FISA has expanded Presidential power.

Though, for some reason, everytime this issue gets brought up in any internet forum, some defender of the administration trots this out as if it conclusively proved something.

Join/donate to the EFF - it can only help

[toby]

I've said it before and I'll say it again ... the EFF is out there gunning for YOU [eff.org] on this one (and others [eff.org] - you can expect them to vigorously fight on your behalf against the newly proposed Super-DMCA [slashdot.org]).

Never a better time to donate or join [eff.org].

Re:When it's females, we call them drama queens

[QCompson]

Yes, everyone should stop bitching and moaning until we have as few rights as North Koreans. Then it's ok if people start acting like drama queens.

Re:It's probably legal. There are bigger issues!

[Beryllium Sphere(tm)]

>why should we assume that their spying is illegal?

Because they didn't submit to the (minimal!) oversight of the Foreign Intelligence Surveillance Court.

This government says it can rape, torture and murder suspected terrorists. [boston.com]

Last I heard, the power to strip American citizenship by fiat was still only a proposal [google.com]
This government says it can seize US citizens [wikipedia.org]but military tribunals [wikipedia.org] have been reserved for non-citizens.