December 17, 2005

First released by the New York Times yesterday, it flashed around the blogosphere just as my electricity died: in a way just as well, because it meant that I returned to a confirmation by President Bush that yes, he had signed an order allowing the National Security Agency to electronically eavesdrop on United States citizens -- specifically international communications -- without a warrant:
This is a highly classified program that is crucial to our national security. This authorization is a vital tool in our war against the terrorists. ... It is critical to saving American lives. The American people expect me to do everything in my power, under our laws and Constitution, to protect them and their civil liberties and that is exactly what I will continue to do as long as I am president of the United States.
- George W. Bush
I rather doubt that the Homeland Security Council Executive Order of March 19, 2002, is the specific signed order referenced here: although it and several other pieces of legislation had struck me even upon their initial reading as potentially very, very broad in their scope, with little to no civilian-protection watchdogging. Orin Kerr of The Volokh Conspiracy notes:
While the statutory privacy laws have an exception for this type of monitoring, see 18 U.S.C. 2511(f), and the constitutional limits on e-mail surveillance are uncertain even in traditional criminal cases, the constitutionality of warrantless interception of telephone calls in situations like this is really murky stuff
and references Judge Sand's opinion in United States v. bin Laden, 126 F.Supp.2d 264 (S.D.N.Y. 2000), while Hilzoy of The Political Animal is much blunter:
This is against the law.
and goes on to specify:
Here is the Foreign Intelligence Surveillance Act. Its Section 1809a makes it a criminal offense to "engage in electronic surveillance under color of law except as authorized by statute."

FISA does authorize surveillance without a warrant, but not on US citizens (with the possible exception of citizens speaking from property openly owned by a foreign power; e.g., an embassy.)

FISA also says that the Attorney General can authorize emergency surveillance without a warrant when there is no time to obtain one. But it requires that the Attorney General notify the judge of that authorization immediately, and that he (and yes, the law does say 'he') apply for a warrant "as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance."
It also says this:
In the absence of a judicial order approving such electronic surveillance, the surveillance shall terminate when the information sought is obtained, when the application for the order is denied, or after the expiration of 72 hours from the time of authorization by the Attorney General, whichever is earliest. In the event that such application for approval is denied, or in any other case where the electronic surveillance is terminated and no order is issued approving the surveillance, no information obtained or evidence derived from such surveillance shall be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof.
Nothing in the New York Times report suggests that the wiretaps Bush authorized extended only for 72 hours, or that normal warrants were sought in each case within 72 hours after the wiretap began. On the contrary, no one would have needed a special program or presidential order if they had. Yet expanding existing the existing protocols to include -- without warrant -- domestic wiretapping where the communication is international, is only a logical extrapolation of what had already been happening before. Why is its existence catching everyone so much by surprise? Or -- is it only that this time, the proof of its existence cannot be overlooked?

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