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Regarding the NSA Surveillance Program

December 22nd, 2005

Lots and lots of press about the NSA surveillance program disclosed by the New York Times last week. I’ve been trying to keep as updated as possible, reading NYTimes and Washington Post stuff. I supplement that with legal analysis from various legal and technology blogs. I admit to having missed the President’s national speech, but I doubt it helps explain anything I didn’t glean from the papers. It’s a lot of information, and quite a bit to process.

As much as I’d like to jump all over the President and join the calls for impeachment, I refuse to be another political hack. There are some lingering questions worth asking before rushing to judgment. Perhaps the most important question centers on the purpose behind the program. Based on what I’ve read I can envision two possible purposes: one, to collect information to prosecute those engaged in terrorist activities; two, to collect information to disrupt those engaged in terrorist activities. The distinction is critical.

For the purposes of the record, let’s take a look at the 4th Amendment.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The 4th arguably makes the NSA surveillance program unconstitutional. But as with most constitutional provisions, there is more here than initially meets the eyes.

I have not taken Criminal Procedure where the 4th is discussed in detail, but I do know that when warrants are required, and not, is complicated. I can envision a reading of the 4th that says failure to secure a warrant prevents procured evidence to be submitted for purpose of prosecution. But are things different if the evidence is used to facilitate having a an officer at the Golden Gate Bridge minutes before a terrorist is going to plant a bomb?

If we assume that such a purpose is constitutional then I would image certain limitations and tradeoffs. For example, the evidence in question (and all evidence gathered because of that evidence) could not be introduced for purpose of prosecution. So the government could choose to go through the procedural hurdles necessary to secure a prosecution, or it could skip the courts and lose the chance at prosecution (but maybe stop an attack).

There are obvious problems with this approach. For example, the FISA court established for the purposes of authorizing warrants related to international terrorism exists to ensure the government has probable cause before spying on U.S. citizens. I wasn’t alive at the time, but the papers say in the 1970s the government spied on the anti-war movement and did so without reason to believe they were engaging in illegal activities or warrants.

The bad in that kind of activity is not immediately obvious. No one is being harmed or thrown in jail. No, the bad is insidious and hard to detect… it is the subtle interference of the government into the lives of citizens. It’s something we should avoid, and in many cases the Constitution demands. But then you thrown in the issues present by the war on terror. How do you effectively fight an enemy with no physical form and an uncompromising agenda?

But let’s move away from whether I think it’s a good idea or not and ask whose opinion does matter. Our government has three branches last I counted. The executive branch made its wishes known… but who is supposed to respond next? Our Constitution says the Congress is next in line to speak. With the committee meetings and the hearings and the subpoenas. So why, oh why, is the FISA Court the next to act?

According to this Washington Post article, the presiding FISA judge has organized a briefing on the NSA program. How does that fit with our Constitutional understanding of Article III courts? Does this mean the Supreme Court now can look for issues it finds suspect and order a briefing? This seems to be the Court looking at the issue sua sponte… which I’m fairly certain it’s not supposed to do.

Anyway, there’s a lot here. I’m looking forwards to the eventual Congressional hearings (months from now) to get a better understanding of what’s going on. I consider myself to be very pro-civil rights… but there is something to this issue that suggest we should ask a few questions before we jump to conclusions.

The President has made clear the government’s legal theory supporting the wiretaps. Based on the information provided to the Congress I’m prepared to say their legal arguments are insufficient.

There remain lingering Constitutional claims that are possible theories, but their primary argument is based on the Authorization of Force from the weeks just after September 11th. They argue that the vague statements included in the resolution provide an implicit exemption from the Foreign Intelligence Surveillance Act. It’s a bogus argument that isn’t rooted in Constitutional Law.

When the President acts with or without the express will of Congress there is a whole host of interesting tests to determine constitutionality. But when the President acts against the will of Congress the President’s authority is limited that that granted by the Constitution. This is a situation where the President is engaging in activity expressly prohibited by the Congress… and a supposed implicit exemption is insufficient to change that. The White House needs to go back to the Constitutional Commander-in-Chief theory if it has any hope of winning.

probonogeek Uncategorized

  1. srcastic
    December 24th, 2005 at 21:33 | #1

    If the matter were limited to monitoring matters where there is a legitimate suspicion of terrorism, there is no reason that the government can’t get a warrant to do so. Courts are quite deferential on these matters, and the Patriot act provided for it all to be done in secret.

    Of course, after I learned that the Pentagon was spying on me and my friends at NYU, I wonder how much there is even a legitimate suspicion of terrorism. No wonder Bush doesn’t want to seek warrants – there is no probable cause that some law students at NYU are terrorists merely because they are protesting Don’t Ask Don’t Tell.

    The domestic spying seems to have gone too far, and as far as I am concerned, is an abuse of power.

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