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NSA Surveillance

There is a lot of great analysis and opinion in the blogosphere regarding Bush’s authorization of warrantless NSA surveillance. Here are some useful links:

News Articles

James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts (N.Y. Times, Dec. 16, 2005) (original article to break the story)

Scott Shane, Behind Power, One Principle as Bush Pushes Prerogatives (N.Y. Times, Dec. 17, 2005)

Peter Baker, President Acknowledges Approving Secretive Eavesdropping (Wash. Post, Dec. 18, 2005)

AP, Bush Says U.S. Spy Program Is Essential and Legal (AP, Dec. 19, 2005)

Statutes, Cases, and Other Materials

Foreign Intelligence Surveillance Act (FISA) (1978)

Authorization for Use of Military Force (Sept. 14, 2001)

Press Briefing by Attorney General Alberto Gonzales and General Michael Hayden, Principal Deputy Director for National Intelligence (Dec. 19, 2005)

United States v. United States District Court, 407 U.S. 297 (1972) (aka the Keith case) (Fourth Amendment analysis of national security surveillance)

Hamdi v. Rumsfeld, 124 S. Ct. 981 (2004) (analysis of the scope of authority granted by Congress’s Authorization to Use Military Force)

Blog Posts (in no particular order and by no means comprehensive)

Orin Kerr, Legal Analysis of the NSA Domestic Surveillance Program (Dec. 19, 2005)

“My answer is pretty tentative, but here it goes: Although it hinges somewhat on technical details we don’t know, it seems that the program was probably constitutional but probably violated the federal law known as the Foreign Intelligence Surveillance Act.”

(This is the most lengthy and detailed analysis to date.)

Orin Kerr, Domestic Surveillance by the NSA? (Dec. 15, 2005)

“While the statutory privacy laws have an exception for this type of monitoring, see 18 U.S.C. 2511(f), and the constitutional limits on e-mail surveillance are uncertain even in traditional criminal cases, the constitutionality of warrantless interception of telephone calls in situations like this is really murky stuff.”

Daniel Solove, Beyond His Power: Bush’s Authorization of Warrantless NSA Surveillance (Dec. 19, 2005)

“It is hard to imagine that authorizing military force authorizes the President to disregard a litany of laws at the President’s whim. If so, the Congress must be extremely careful in authorizing military force in the future, because such authorization would turn over to the President the right to contravene an unspecified number of laws.”

Daniel Solove, How Much Government Secrecy Is Really Necessary? (Dec. 17, 2005)

“How, exactly, does the revelation of the fact that Bush authorized the NSA to conduct surveillance — possibly exceeding the limits of his lawful powers — put “our citizens at risk”? Why is every disclosure about the extent of the government’s surveillance somehow assisting the terrorists?”

Daniel Solove, Did Bush Have the Legal Authority Under FISA to Authorize NSA Surveillance? (Dec. 17, 2005)

“Thus, it appears that the President brushed FISA aside. On what basis can the President ignore a statute specifically regulating executive power? I’m not an expert on the intricacies of the executive’s military powers, so perhaps there’s a justification. . . . I believe that the President must give a full accounting of how he could believe in good faith this surveillance was within his powers under the law.”

Marty Lederman, Which Is It, Mr. President? (Dec. 19, 2005)

“[I]f the President is correct about the legality of his wiretapping protocol, then there is little need to reenact the PATRIOT Act.”

Marty Lederman, Definition of “Audacity” (Dec. 19, 2005)

“The odd thing, of course, is that the Administration specifically went to Congress with a package of statutory authorities — many related to wiretaps and surveillance — that it thought were necessary to fight the battle against Al Qaeda. It was called the PATRIOT Act. Therefore, it’s understandable that two reporters at today’s conference asked the AG why they didn’t simply ask Congress for a simple amendment to FISA, if this eavesdropping authority was as critical as the Administration now claims.”

Juliette Kayyem, Wiretaps, AUMF and Bush’s Comments Today (Dec. 17, 2005)

“And, in any event, can’t we at least know how many other statutes have been trumped by interpreting the AUMF or the CiC clause so expansively?”

Peter Swire, Why the NSA Wiretapping Is Illegal (Dec. 19, 2005)

“Government officials can only wiretap “as authorized by statute” and the only statutes that count are Title III and FISA. The NSA wiretaps did not use the judicial procedures of either Title III or FISA.”

Seth Weinberger, Declaring War and Executive Power (Dec. 16, 2005)

“Absent such language in a formal declaration of war, I highly doubt that the president’s authorization of domestic spying is legal. And legal or not, it is certainly troubling.”

Steve Vladeck, No, Mom, the Government Isn’t Listenin–Umm, I’ll Have To Get Back To You (Dec. 15, 2005)

“[W]hen the government conducts a campaign of domestic, internal surveillance that seems lacking for both historical and legal precedent, is it really responsible journalism to not report on that campaign for an entire year?”

Adam Shostack, Government Secrecy and Wiretaps (Dec. 17, 2005)

“[T]he correct response would be to follow the law in wiretapping, because the government already has the authority to do it anywhere it has any reasonable reason to want to. If the law had been obeyed, there would be no news.”

Michelle Malkin, Red Alert: Chicken Littles on the Loose (Dec. 16, 2005)

“If the Bush administration chose to pursue FISA warrants, failed to obtain them, let the information go to waste, and allowed another attack to occur as a result, is there any question the finger-waggers at the NYTimes would be the first to attack the President for failing to do everything necessary to prevent it?”

Will Baude, Presidential Authority, A Lament (Dec. 19, 2005)

“It seems exceedingly likely that somebody in the executive branch is confusing normative arguments about what good law is as (impermissible) claims about what kind of laws we have. I believe in Presidential interpretive power, the unitary executive, and so on. So it is particularly disappointing to see a President like this one and his lawyers make so much out of the importance of a strong executive, and then proceed to abuse their office in this way. . . .”

Cass Sunstein, Presidential Wiretaps (Dec. 19, 2005)

“The reason is that surveillance, including wiretapping, is reasonably believed to be an incident of the use of force. It standardly occurs during war. If the President’s wiretapping has been limited to those reasonably believed to be associated with Al Qaeda and its affiliates — as indeed he has said — then the Attorney General’s argument is entirely plausible. (The AUMF would not permit wiretapping of those without any connection to nations, organizations, and persons associated with the September 11 attacks.)”

Eric Muller, Lawless Like I Said (Dec. 19, 2005)

“Orin Kerr’s verdict is in over at the Volokh Conspiracy. He says it’s a tentative view, but here’s my quick and dirty summary: the President’s domestic eavesdropping program is lawless.”

Stephen Bainbridge, Foreign Policy Rant of the Day (Dec. 16, 2005)

“Coercive interrogations. A gulag of secret prisons. And now warrantless surveillance. We’re supposed to be better than this. . . . Of the Founders who pledged “their lives, their fortunes and their sacred honor” as signers to the Declaration of Independence, five were captured as traitors and tortured before they died; twelve had their homes ransacked and burned; two lost their sons in the Revolutionary War; another had two sons captured; and nine died from wounds or the hardship of the war. But too many want to trade their sacrifices away for a mess of security pottage.”

Spencer Overton, Judge Damon J. Keith: No Warrantless Wiretaps of Citizens (Dec. 18, 2005)

“After law school I had the good fortune to clerk for U.S. Court of Appeals Judge Damon J. Keith. . . . Judge Keith decided that President Richard Nixon and Attorney General John Mitchell could not engage in warrantless wiretap surveillance.”

Ryan Singel, It’s Not the Crime, It’s the Rationale (Dec. 17, 2005)

“The government has the power to start such wiretaps immediately, so long as they promptly notify a special court judge and send paperwork to that court within 3 days. . . . That’s why this story is not about the wiretaps, so long as one presumes the administration is working in good faith and not using the wiretaps to monitor American citizens exercising their legal rights. . . . The story is about executive privilege and this administration’s belief that its anti-terrorism actions cannot not be curtailed by Congress or the Courts.”

UPDATE: More blog posts worth reading are at my second roundup post, NSA Surveillance: Blog Post Roundup II.

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.

Professor Solove is the organizer, along with Paul Schwartz, of the Privacy + Security Forum and International Privacy + Security Forum, annual events designed for seasoned professionals.

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