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In addition to the blog post roundup I did yesterday, here are more blog posts about Bush’s NSA surveillance worth reading:

David Cole, Bush’s Illegal Spying (Salon, Dec. 20, 2005)

“Attorney General Gonzales contends that the authorization by Congress to use military force somehow implicitly gave the president power to wiretap Americans at home. But nothing in the authorization even mentions wiretaps. And that claim is directly contrary to the express language in FISA limiting any such authority. While intercepting the enemy’s communications on the battlefield may well be an incident of the war power, wiretapping hundreds of people inside the United States who are not known to be members of al-Qaida in no way qualifies as an incidental wartime authority.”

Marty Lederman, Another Reason Why the AUMF Argument is Wrong, and Why This Surveillance Program is Lawless (Dec. 20, 2005)

“1. Because it’s not necessary that even one of the parties to the communication have been part of Al Qaeda, it explains why a FISA court would not have granted authority for these intercepts in the first place — which is why the Administration could not work within the existing (very deferential, pro-government) authorities.

2. Obviously, the NSA protocol is simply not covered by the terms of the AUMF itself, because it reaches conduct by NSA against communications of persons who are not “those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.”

3. It’s also presumably not a “fundamental incident of war” for the Executive to wiretap a communication between two persons, neither of whom is suspected of being part of (or an agent of) the enemy (let alone the military arm of the enemy). This is not only another reason that the AUMF (and Hamdi) does not authorize these interceptions; it also means that not even the boldest assertion of Commander-in-Chief authority would support this program.”

Bruce Schneier, NSA and Bush’s Illegal Eavesdropping (Dec. 20, 2005)

“Over 200 years ago, the framers of the U.S. Constitution established an ingenious security device against tyrannical government: they divided government power among three different bodies. A carefully thought out system of checks and balances in the executive branch, the legislative branch, and the judicial branch, ensured that no single branch became too powerful. . . . Courts monitor the actions of police. Congress passes laws that even the president must follow. Since 9/11, the United States has seen an enormous power grab by the executive branch. It’s time we brought back the security system that’s protected us from government for over 200 years.”

Lyle Denniston, Analysis: Collision Course on “Inherent Power”? (Dec. 19, 2005)

“In a remarkable public discussion over the past three days of one of the most closedly guarded, secret government programs, President Bush and his top aides have provided basically two legal arguments to justify his orders of electronic eavesdropping on Americans during the war on terrorism. One of those arguments is a familiar one, a constitutional argument that has been relied upon repeatedly by the government from the very beginning of that war — yet not accepted, so far, by the Supreme Court, or even by any single Justice. The other is a fallback argument, but one that, interestingly, now reflects a significant change in the government’s thinking over the past few years.”

UPDATE: More New Posts Worth Reading (Dec. 21, 2005)

Will Baude, Inconsistency, Legal Argument, and the War on Terror

“To be sure, it is possible that the administration will eventually reveal that there is method to its madness, but it increasingly looks as though the top of the administration sees the laws of the United States as if they were political hurdles to dodge, not something that the President is Constitutionally obligated to ‘take care . . . be faithfully executed.’”

Orin Kerr, A Few Additional Thoughts on NSA Surveillance

“Based on my research, an explanation of why the program may not violate FISA would require them to explain the technical details of how the program works, and they presumably wouldn’t want to do that in public given that the program is classified. I don’t know how likely this is, but it’s certainly possible when you’re dealing with a secretive agency like the NSA. So in the end, my take is the same as it was before: the program probably violated FISA, but it depends on some details we don’t know.”

Cass Sunstein, Presidential Wiretapping: Disaggregating the Issues

“But if surveillance is taken to be an ordinary incident of war, and if the President has a plausible claim to inherent authority, this argument is substantially weakened. Note that the President isn’t forbidden, by the precedents, from arguing that [FISA] is unconstitututional insofar as it forbids him from engaging in the relevant activity. . . .”

Geoffrey Stone, King George’s Constitution

“Despite this history, Mr. Bush has the audacity to assert that his authorization of NSA surveillance of American citizens on American soil is “lawful.” It is not. It is a blatant and arrogant violation of American law. If Mr. Bush wanted the authority to undertake such activities, he should have gone to Congress and sought authorization, out in the open. He did not follow this course, both because it would not have been granted and because it would have warned the evil-doers that we were monitoring their communications. Give me a break! Bush apparently believes that the evil-doers assume we act within the bounds of our own Constitution. So, we’ll trick them. We won’t. Now, there’s a wise theory of government for you!”

Originally Posted at Concurring Opinions

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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.

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