ON NSA SPYING: A LETTER TO CONGRESS

[papau]

http://www.dailykos.com/storyonly/2006/1/5/44513/61709
"Let me repeat for emphasis: We cannot monitor anyone today whom we could not have monitored at this time last year."

Bush on April 20, 2004, "There are such things as roving wiretaps. Now, by the way, any time you hear the United States government talking about wiretap, it requires--a wiretap requires a court order. Nothing has changed, by the way."

Plus the declaration found at http://www.usdoj.gov/dag/testimony/2002/krissenjud091002.htm
: "Statement of Associate Deputy Attorney General David S. Kris, Before the Senate Judiciary Committee, Concerning the Foreign Intelligence Surveillance Act, Presented on September 10, 2002." This is the Bush administration telling Congress (in the course of discussing certain relatively obscure details of the Patriot Act) the same crap Bush has told the public over the last few years: that wiretaps still required a warrant, because the Patriot Act didn't change anything in that regard. (Essential Bush transcripts are http://www.brendan-nyhan.com/blog/2005/12/bush_on_wiretap.html Also, this short video is indispensable, http://www.globalnewsmatrix.com/modules.php?name=News&file=article&sid=4028 because it shows emphasis that a transcript cannot convey.)

http://64.233.161.104/search?q=cache:HZxtGb5tHnIJ:www.cdt.org/security/20051222justiceletter.pdf+doj+nsa&hl=en

Thursday, December 22, 2005 Legal authority for NSA intercepts 8:03 PM ET
Summary of legal authority supporting National Securitry Agency surveillance activities, letter from the US Department of Justice Office of Legislative Affairs to senior members of the US Senate and House Intelligence Committees, December 22, 2005 .

http://www.nybooks.com/articles/18650

Volume 53, Number 2 · February 9, 2006


ON NSA SPYING: A LETTER TO CONGRESS
By Beth Nolan, Curtis Bradley, David Cole, Geoffrey Stone, Harold Hongju Koh, Kathleen M. Sullivan, Laurence H. Tribe, Martin Lederman, Philip B. Heymann, Richard Epstein, Ronald Dworkin, Walter Dellinger, William S. Sessions, William Van Alstyne
Dear Members of Congress:

We are scholars of constitutional law and former government officials. We write in our individual capacities as citizens concerned by the Bush administration's National Security Agency domestic spying program, as reported in The New York Times, and in particular to respond to the Justice Department's December 22, 2005, letter to the majority and minority leaders of the House and Senate Intelligence Committees setting forth the administration's defense of the program.<1> Although the program's secrecy prevents us from being privy to all of its details, the Justice Department's defense of what it concedes was secret and warrantless electronic surveillance of persons within the United States fails to identify any plausible legal authority for such surveillance. Accordingly the program appears on its face to violate existing law.

The basic legal question here is not new. In 1978, after an extensive investigation of the privacy violations associated with foreign intelligence surveillance programs, Congress and the President enacted the Foreign Intelligence Surveillance Act (FISA). Pub. L. 95-511, 92 Stat. 1783. FISA comprehensively regulates electronic surveillance within the United States, striking a careful balance between protecting civil liberties and preserving the "vitally important government purpose" of obtaining valuable intelligence in order to safeguard national security. S. Rep. No. 95-604, pt. 1, at 9 (1977).

With minor exceptions, FISA authorizes electronic surveillance only upon certain specified showings, and only if approved by a court. The statute specifically allows for warrantless wartime domestic electronic surveillance—but only for the first fifteen days of a war. 50 U.S.C. § 1811. It makes criminal any electronic surveillance not authorized by statute, id. § 1809; and it expressly establishes FISA and specified provisions of the federal criminal code (which govern wiretaps for criminal investigation) as the "exclusive means by which electronic surveillance...may be conducted," 18 U.S.C. § 2511(2)(f) (emphasis added).<2>

The Department of Justice concedes that the NSA program was not authorized by any of the above provisions. It maintains, however, that the program did not violate existing law because Congress implicitly authorized the NSA program when it enacted the Authorization for Use of Military Force (AUMF) against al-Qaeda, Pub. L. No. 107-40, 115 Stat. 224 (2001). But the AUMF cannot reasonably be construed to implicitly authorize warrantless electronic surveillance in the United States during wartime, where Congress has expressly and specifically addressed that precise question in FISA and limited any such warrantless surveillance to the first fifteen days of war.

The DOJ also invokes the President's inherent constitutional authority as Commander in Chief to collect "signals intelligence" targeted at the enemy, and maintains that construing FISA to prohibit the President's actions would raise constitutional questions. But even conceding that the President in his role as Commander in Chief may generally collect "signals intelligence" on the enemy abroad, Congress indisputably has authority to regulate electronic surveillance within the United States, as it has done in FISA. Where Congress has so regulated, the President can act in contravention of statute only if his authority is exclusive, that is, not subject to the check of statutory regulation. The DOJ letter pointedly does not make that extraordinary claim.

Moreover, to construe the AUMF as the DOJ suggests would itself raise serious constitutional questions under the Fourth Amendment. The Supreme Court has never upheld warrantless wiretapping within the United States. Accordingly, the principle that statutes should be construed to avoid serious constitutional questions provides an additional reason for concluding that the AUMF does not authorize the President's actions here. <snip>

www.nationalreview.com/pdf/12%2022%2005%20NSA%20letter.pdf.

www.whitehouse.gov/news/releases/2005/12/20051219-1.html.

www.usdoj.gov/olc/warpowers925.htm (emphasis added).

[mom cat]

1. We must stop Alito NOW. We can't have him being the judge of

what is constitutional. Keep up the pressure and stay focused. Flood the senate. Tell them wo won't take no for an answer. Tell the Republican senators to vote against the nuclear option or as least abstain.

CALL ALL YOUR SENATORS LOCAL DISTRICT OFFICES NOW TO OPPOSE ALITO

We have gotten many emails from our participants, asking "what more can we do?" Some have reported senators arbitrarily turning off their answering machines at night, or long waits on hold. Are they trying to hide from the thousands and thousands of their constituents who are raising their voices to demand that they filibuster the evasive Alito? Even if you have already sent your personal message by email or made some phone calls, we have added a FABULOUS extra function to the main action page where you can instantly lookup all your senators local district offices phone and fax numbers with just one click.

http://www.nocrony.com

SPREAD THE WORD ABOUT FILIBUSTER FRIDAY

If the other side can have a so-called "Justice Sunday", we can have our own "Filibuster Friday", and that day is tomorrow. In just the last 24 hours we have seen a major shift in momentum. Today, Senator Leahy came out with a very strong statement that he recognizes the immense threat to our freedom and democracy in allowing a dangerous and unpopular president to install a fifth and controlling vote to hold that our Constitution actually intended to create an executive dictatorship. Tomorrow we need to show our support for those senators who are starting to stand up now by hitting every phone they've got right down to the district level with our phone calls and faxes. Get all your numbers with one easy click at

http://www.nocrony.com

Those you who like to call in to progressive radio programs, we have all their call in numbers too at the site above in the right column. Call them and ask them to talk up Filibuster Friday all day and night long! Let's start early and snowball the thing all day long. Ask them to give out the easy to say and remember URL above as much as possible. Senators have said they are "undecided" on a filibuster. But we the American people HAVE decided and all our senators have to do it get it.

Some senators who are too still too cowardly to demand a filibuster are saying they will make Alito an issue in the 2006 election. It'll be an issue alright, in their OWN primaries! Any officeholder who will not stand up for this one must never hold public office in any capacity ever again. And the difference is whether you will stand up YOURSELF right now and make those calls to their local district offices. Make calls to the toll-free numbers 888-355-3588, 888-818-6641 and 800-426-8073 if you can get through there too.

It is not enough to vote "No." They must vote "Hell, NO!" It's called a filibuster. Filibuster Friday.

Please take action NOW, so we can win all victories that are supposed to be ours, and forward this message to everyone else you know.

If you would like to get alerts like these, you can do so at http://www.usalone.com/in.htm

Or if you want to cease receiving our messages, just use the function at http://www.usalone.com/out.htm

[papau]

2. Excellent point n/t

n/t

[mom cat]

4. You are making excellent points too!

Hi "papa"

[papau]

5. Hi mom cat - "papa" (or grandpa) appreciates the nice comment ! :-)

:-)

[mom cat]

6. That is right...you told me that it meant "grandpapa"!

[MissMillie]

7. The letter is, of course, brilliant

The DOJ brief shoots itself in the foot all over the place. For example,

"Protection against these foreign-based threats by any lawful means is within the scope of the definition of ‘foreign intelligence information,’ and the use of FISA to gather evidence for the enforcement of these laws was contemplated in the enactment of FISA."

(the underline is their emphasis, the bold is mine)

They keep missing the point. The spying itself is not necessarily the issue. The problem is that there is no court approval, no warrants, and that makes the spying out of the cope of lawful means.

[rumpel]

3. Thanks. I did not know the "limitation to first 15 days in war time"

that nails it doesn't it.

At the time the rhetoric of "War Against Terror" was escalating, I pleaded with my representatives in congress to resist the term, as we have to be very careful with the use of the word "War". The War on Drugs, the War on Gangs all are not intended to come with it's legal definition and implications associated with it. Unfortunately, what I did not expect then is the extraordinary abuse of power that resulted from this.

I still believe terrorists are criminals and should be legally treated as such.