Monday, December 19, 2005

Bush, Spying and Democracy's Death?

“America faces its greatest threat since the Civil War. The worst fears of the Founders are being realized as powerful corporate interests have taken over our culture and representative government,” (with a lot of help from Bush, Cheney and our so-called congress). “We the People now face a fundamental choice: take back our country … or do nothing, and become victims of tyranny and empire.” The following report is from Secrecy News. -- Jack

UNAUTHORIZED DOMESTIC SURVEILLANCE THREATENS RULE OF LAW

Federation of Scientists Secrecy News is archived at: http://www.fas.org/sgp/news/secrecy/index.html

In an extraordinary move that undermines the legal foundation for the conduct of intelligence activities, President Bush ordered the National Security Agency to conduct electronic surveillance of U.S. persons outside of the statutory framework that was established to authorize such surveillance, the New York Times revealed last week.

Although the President insisted that his action was "consistent with U.S. law and the Constitution," the surveillance operation was not conducted in accordance with the Foreign Intelligence Surveillance Act of 1978, the statute that permits domestic intelligence surveillance with the approval of a specially designated federal court.

"Domestic intelligence collection is governed by the Foreign Intelligence Surveillance Act, known as FISA," explained Sen. Dianne Feinstein (D-CA), a member of the Senate Intelligence and Judiciary Committees. "FISA is the exclusive law in this area.""We have changed aspects of that law at the request of the administration in the USA PATRIOT Act to allow for a more aggressive but still lawful defense against terror. So there have been amendments," Sen. Feinstein noted.But to conduct domestic intelligence surveillance outside of the FISA framework "calls into question the integrity and credibility of our Nation's commitment to the rule of law," she said December 16. See: http://www.fas.org/irp/congress/2005_cr/s121605.html

The FISA process is not unduly burdensome or time-consuming. "Urgent requests that meet the criteria and requirements of FISA are handled as emergency or expedited matters," said the Attorney General in a written response to questions from the Senate Judiciary Committee, transmitted October 20, 2005.

"The fact of the matter is, FISA can grant emergency approval for wiretaps within hours and even minutes, if necessary," said Sen. Feinstein.In a 2000 statement describing oversight of NSA activities, then-NSA Director Lt. Gen. Michael V. Hayden said "The American people must be confident that the power they have entrusted to us is not being, and will not be, abused.

"NSA "operates within detailed, constitutionally-based, substantive, and procedural limits under the watchful eyes of Congress, numerous institutions within the Executive Branch, and -- through the FISA -- the judiciary."

"The privacy framework is technology neutral and does not require amendment to accommodate new communications technologies," he said."The regulatory and oversight structure, in place now for nearly a quarter of a century, has ensured that the imperatives of national security are balanced with democratic values," Gen. Hayden said then. See: http://www.fas.org/irp/congress/2000_hr/hayden.html

Under mounting pressure, the Bush Administration has groped for some legal justification for its departure from statutory requirements.

Attorney General Alberto Gonzales proposed today that the 2001 congressional resolution authorizing the use of "all necessary and appropriate force" against terrorists encompassed the right to conduct domestic wiretapping.But that resolution plainly pertains to the use of military force, not intelligence collection.

Nor do the President's inherent authorities as commander in chief extend without limitation to warrantless surveillance of Americans."A state of war is not a blank check for the president when it comes to the rights of the nation's citizens," wrote Justice Sandra Day O'Connor in a ruling last year on the legal rights of detainees.For background on the Foreign Intelligence Surveillance Act, See: http://www.fas.org/irp/agency/doj/fisa/index.html

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