Warrantless Surveillance of Americans

Revelation of the NSA’s domestic surveillance program by the New York Times spurred considerable debate last week among federal judges, including some who serve on the secret FISA court — one of whom has resigned over the issue. For more than a quarter-century, that court had been seen as the only body that could legally authorize secret surveillance of espionage and terrorism suspects, and only when the Justice Department could show probable cause that its targets were foreign governments or their agents.

Fact Check: Clinton/Carter Executive Orders Did Not Authorize Warrantless Searches of Americans

Yes, both Clinton and Carter issued executive orders pertaining to foreign intelligence surveillance. But neither of these even remotely authorized warrantless searches of American citizens, as Bush’s secret order illegally does. This is the reason Bush applied pressure to the New York Times to hold off on reporting this story for more than a year: he didn’t want to get caught breaking the law.

The NSA’s ability to eavesdrop on communications is exemplified by a technological capability called Echelon. Echelon is the world’s largest information “vacuum cleaner,” sucking up a staggering amount of voice, fax and data communications — satellite, microwave, fiber-optic, cellular and everything else — from all over the world: an estimated 3 billion communications per day. It has been extensively tested on U.S. Internet Service Providers (ISP’s) in intercepting the communications from American citizens who are customers of their services. On 8 August 1975, NSA Director Lt. General Lew Allen admitted to the Pike Committee of the US House of Representatives that : “NSA systematically intercepts international communications, both voice and cable.” He also admitted that “messages to and from American citizens have been picked up in the course of gathering foreign intelligence”. [Also see: Spying Said to Be Broader Than Reported in today’s Washington Post, and this article in today’s New York Times]

Remember that this statement in 1975 was before the Internet really got going as a public network of websites. In fact, the intelligence community’s network of computers was, at that time, larger than anything available to the public. Things have evolved tremendously, not only in the amount of communications traffic that exists, but also in the technological capabilities of computers today (and I’m sure the NSA and DoD have gear that is far more advanced than the home enthusiast).

Just the fact that the communications are being sorted by computer software algorithms rather than human eyeballs is, in reality, a form of search without a warrant and without judicial oversight and consent, even if the results of that communications gathering are later thrown out as not significant from an intelligence standpoint.

“”The fact is, the federal law is perfectly clear,” Turley [Jonathan Turley, currently a professor at the George Washington University School of Law] says. “At the heart of this operation was a federal crime. The president has already conceded that he personally ordered that crime and renewed that order at least 30 times. This would clearly satisfy the standard of high crimes and misdemeanors for the purpose of an impeachment.”

Turley is no Democratic partisan; he testified to Congress in favor of Bill Clinton’s impeachment. “Many of my Republican friends joined in that hearing and insisted that this was a matter of defending the rule of law, and had nothing to do with political antagonism,” he says. “I’m surprised that many of those same voices are silent. The crime in this case was a knowing and premeditated act. This operation violated not just the federal statute but the United States Constitution. For Republicans to suggest that this is not a legitimate question of federal crimes makes a mockery of their position during the Clinton period. For Republicans, this is the ultimate test of principle.”"

“A surveillance program approved by President Bush to conduct eavesdropping without warrants has captured what are purely domestic communications in some cases, despite a requirement by the White House that one end of the intercepted conversations take place on foreign soil, officials say.” [New York Times]

During the 1973-74 Watergate period, Attorney General John Mitchell ordered, under the guise of national security, wiretaps of citizens who openly dissented from the president’s policies. Mitchell claimed that the crisis at the time - the violent protests against the Vietnam War - justified the wiretaps.

The Supreme Court ruled that such electronic surveillance violated the Fourth Amendment and that the attorney general and the president were under the law, not above it.

The same is true today and the President must be held responsible for his ordering of illegal activities which constitute High Crimes and Misdemeanors, which are impeachable offenses. Bush has called for the Department of Justice to find out who informed the press of the illegal eavesdropping program. Apparently, informing the public that the NSA broke the law is more troubling to the president than breaking the law in the first place. Bush’s secret action is a violation of Federal wiretapping law, the Foreign Intelligence Surveillance Act, the Privacy Act, and a violation of the Fourth Amendment to the Constitution of the United States. The Federal Communications Act also criminalizes surveillance without a warrant.

Bush claimed that ‘the fact that we are discussing this program is helping the enemy.’ But there is simply no evidence, or even reasonable presumption, that this is so. And rather than the leaking being a ’shameful act,’ it was the work of a patriot inside the government who was trying to stop a presidential power grab.

“The congressional resolution of Sept. 18, 2001, formally titled “Authorization for the Use of Military Force,” made no reference to surveillance or to the president’s intelligence-gathering powers, and the Bush administration made no public claim of new authority until news accounts disclosed the secret NSA operation.” [Washington Post]

Also, it looks like the military is not only seeking out GLBT folks inside AND outside of the military, but is keeping them under surveillance, thus negating the “Don’t Ask, Don’t Tell” laws.

A secret DoD database obtained by NBC News indicates that Pentagon intelligence and local law enforcement agencies are using the guise of the war on terror to keep an eye on the constitutionally protected activities of anti-war activists. And, despite strict restrictions on the military maintaining records on domestic civilian political activity, evidence suggests the Pentagon is doing just that. According to NBC, the DoD database includes “at least 20 references to U.S. citizens,” while other documents indicate that “vehicle descriptions” are also being noted and analyzed.

And it’s not just the Pentagon. Documents recently obtained under the Freedom of Information Act show that the FBI’s Joint Terrorism Task Force has also been recording the names and license plate numbers of peaceful anti-war protesters.

NSA, Military, Police, FBI, JTTF… I sense a pattern of law-breaking emerging. These are not the actions of a few rogue personnel inside the government, this is a pattern of surveillance instituted across agencies.

The New York Times should have revealed these illegal NSA wiretaps before the 2004 Presidential Election. This is not a partisan issue. American voters of all political affiliations had the right to know that Bush was not respecting the rule of law before they voted. Keeping this essential information from the voters did a great injustice to our citizens, to our country, and to American Democracy.
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Merry Christmas and Happy Holidays to all members of the U.S. military, their families and friends, to the largely forgotten victims of Hurricane Katrina, and to everyone everywhere. My wish is that next Christmas will be a happier, more peaceful one for us all.