I'm still getting a flood of emails about the domestic surveillance "drama" that's still in the news from last week's NYT article and I've received several thousand hits to my 1998 paper on FISA, Inside America's Secret Court since then. In a blog post last Friday I expressed concern about the domestic surveillance authorized by President Bush. At that time, all the information I had (or anyone had for that matter) was the NYT article. Now that a week has passed and further information has come out, the picture is much clearer. Here are some further thoughts:
1) I think that having a national discussion about civil liberties and the limits of governmental surveillance is LONG overdue. But it is hard to have such a discussion in the overwrought political storm that has followed in the wake of the NYT article. Most of the comments by members of Congress have not been helpful, and it seems that the release of the article was deliberately timed to coincide with the requested reauthorization of the Patriot Act and the release of the article author's forthcoming book.
2) To clear up matters for those who have asked me whether ECHELON (which I've also written a paper on) is being used for this domestic surveillance, the simple answer is no. ECHELON is a system that tries to pick out keywords in the avalanche of global electronic communications. It's like trying to grab a particular drop of water out of a firehose. The domestic surveillance being discussed is target-directed. They know who they are tracking and listening in on. That is much simpler technology. Some of the same systems might be used for both, but this individual tracking is not part of the ECHELON program. My apologies to all of the conspiracy theorists out there.
3) Now that we have a fuller understanding of what kind of surveillance has been authorized by President Bush, we now know that it isn't any different than what every single president since FDR has authorized. In 1982, the Federal Appeals Court for the Sixth Circuit ruled that the government (NSA) can tap conversations where one party is not in the US. Even the NYT reported on the decision back then. The warrantless domestic surveillance authorized by Bush's presidential directives is exactly the same that has been authorized by the past two Democratic administrations - Carter and Clinton. Strangely, there was no call for impeachment back then.
4) The central question to the present problem is whether Congress through FISA limited the president's inherent constitutional authority to conduct surveillance for national security purposes. Any 12th grade government student should be able to tell you that it can't. The only was that Congress can limit the President's constitutional authority is by amending the Constitution. What's particularly interesting is the FISA itself hasn't undergone Supreme Court scrutiny to see if it is in fact constitutional. Because of the nature of the surveillance the FISC authorizes, there isn't much in the way of criminal cases that result (though in a few cases there has been, see my paper), so there hasn't been much of an opportunity for federal courts to discuss the issue.
5) What Congress really needs to look at is the operations of the FISA Court itself. The Administration has complained that it can take days, weeks, and months sometimes to navigate the process even before presenting the information to the Court. This needs to be looked at.
6) What is particularly galling about the Democratic congressional leadership rending their clothes about this revelation is that they were informed of this authorization when it occured. We heard from Sen. Rockefeller and Rep. Pelosi that they dissented several years ago, but there has been nothing said since then. Yeah, that's some real concern. This is precisely the point I made in my 1998 paper on FISA - Congress has utterly failed in its oversight role.
Here are some articles on the topic that everyone ought to read before arriving at any judgments on the present discussion:
Judge Richard A. Posner, Our Domestic Intelligence Crisis, Washington Post, 12/21/05 (Judge Posner is one of America's most respected Federal judges, and says that FISA is too restrictive. This from a liberal judge.)
Andrew C. McCarthy, Warrantless Searches of Americans? That's Shocking! National Review 12/20/05 (lists 28 current exceptions to requiring a warrant before conducting surveillance)
John Schmidt, President Had Legal Authority to OK Taps, Chicago Tribune 12/21/05 (What makes Schmidt so important is that he was Asst. AG in the CLINTON Administration.)
New York Sun editorial, Hold the Line, New York Sun 12/19/05
Powerlineblog.com, A Word From Bill Otis 12/21/05 (Otis was the Asst. US Atty for E. VA that handled the first-ever FISA appeal)
Byron York, Why Bush Approved the Wiretaps, National Review 12/19/05 (Discusses the present problems with the operation of the FISC)
Byron York, Clinton Claimed Authority to Order No-Warrant Searches, National Review 12/20/05 (Quotes Clinton-era Dept. AG Jamie Gorelick before Senate Intelligence Committee hearing justifying warrantless searches on the same basis claimed by Bush)
Byron York, Clinton and Warrantless Searches, National Review 12/21/05
Friday, December 23, 2005
FISA, ECHELON, and Much Ado About Nothing
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2 comments:
In 1987 I lived in Antioch, CA. I came home and told my first husband I was pregnant with another baby and he was not the father. Inside the front door, he raised his hands to choke me, before he could get his hands on my neck, three lights came from the ceiling and he backed off!! A few years later, after we separated, I was in Crocket CA. in bed with my boyfriend at the time and about 50 lights came flashing through the ceiling. In my new home with my new husband these lights came back. While making love with my husband, this light about the size of a pen head was flashed on his privates. While showering, using the restroom, sun tanning, working out, cooking in the kitchen and pretty much everywhere, these lights continue to invade my life. I started to take an interest in this and looking up things online. My doctor at Kaiser told me it was fear, my husband says it must be a chemical imbalance, and my Mother says why in the world would someone be searching you out. When I went to Homeland Security online this huge light came into my living room the size of a hula hop. I wrote John Pike at The Federation of American Science about an article he wrote, titled “Witness from Space Satellites & Forensics: Do They Share a Future? Web site address: http://www.globalsecurity.org/org/news/2002/020226-eye01.htm
I never received the letter back so he must have gotten it, also I emailed him three or four times not once did this man contact me about this. During this time the lights have worsened. Once I visited the NSA site online and that night lights were in my face and in my eyes, I had to lie there and take it. What was I suppose to do? The enter net is a place to go for information, I did not give an invite to my bed. Once I emailed Sirius Radio Station to talk about this on the air, afterwards I went to the restroom and it was like a light show! I am a woman of the United States and I have Rights! So yes Bush did give the go ahead to spy on American’s but not like this.
wow what a nutjob!
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