Thursday, December 22, 2005

Legality of NSA Surveillance

Members of the Foreign Intelligence Surveillance Court are holding briefings to determine why they were kept out of the loop on NSA surveillance of communications between American citizens and foreign terrorist organizations. (Washington Post: Judges on Surveillance Court To Be Briefed on Spy Program). Pass the popcorn, Bucko, because this promises to be one of the most entertaining debates of 2006. The tri-corner bout pits the authority of a Presidential Executive Order against the oversight of a super secret court and the Electronic Surveillance Act.

From a purely legal background, it looks like the surveillance in question is on pretty shaky ground. Executive Order 12333 issued by President Reagan on December 4, 1981 grants the NSA some pretty broad authority when it comes to surveillance against foreign powers engaged in espionage or terrorist activities against the US. It someone skirts the issue of communications between foreign powers and US citizens, however, and 12333 spends a good deal of time genuflecting at the alter of US civil rights legislation.

Of greater concern in the current situation is Title 50, Section 1801 of the US code covers the authority of the President to obtain electronic surveillance without a court order. That section states specifically as one of the conditions for such surveillance that, "there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party."

In reviewing the legalities of the President's orders to the NSA, the Administration's legal team drew heavily on EO12333. They also cited actions taken by President Clinton to order searches of American citizens without court order. Clearly, the Administration believes it is on solid ground, and equally clearly Congress and the Foreign Intelligence Surveillance Court do not.

In the end, this is going to come down to a showdown between Presidential Authority in the form of Executive Orders versus the authority of the legislative and judicial branches of our government. It would appear to me that EO12333 is a pretty weak limb on which to sit since an Executive Order cannot supersede signed legislation. Also, EO12333 requires some fairly interesting interpretations to grant the widespread authority assumed by both Presidents Clinton and Bush. When this matter is concluded, I believe the Administration will be on the losing end. I doubt very much that the courts are going to uphold any actions that weaken their oversight of civil rights issues.

So here's the bottom line. Do I think the actions taken were legal? No. Do I think the actions were necessary and justified? Absolutely. The question in my mind is why the Administration chose to bypass the Surveillance Court in the first place. That court has been extremely accommodating in granting electronic surveillance requests without much cause. (They have only denied four requests in history.) It is highly unlikely that they would have denied any requests in the aftermath of 9/11. Politically, this was a serious blunder since it setup a challenge to executive authority that need not have been raised.


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