Lawbreaker in Chief By Jennifer Granick Story location: http://www.wired.com/news/politics/0,1283,69886,00.html
02:00 AM Dec. 21, 2005 PT Ignorance of the law is no defense. Someone should tell the president. This week, The New York Times revealed that the Bush administration ignored the Foreign Intelligence Surveillance Act, or FISA, and intercepted telephone calls and e-mails from American citizens without a warrant. FISA requires that investigators provide a judge with evidence that there's reason to believe the person they plan to place under surveillance is an agent of a foreign power. Applications for these warrants are at an all-time high, and the Foreign Intelligence Surveillance Court (often called "the secret court") almost never denies the requests. Nonetheless, Bush has authorized the National Security Agency to ignore this relatively insignificant hurdle. The government has been monitoring calls to or from United States citizens to international locations, perhaps eavesdropping on as many as 500 people at any one time, according to the Times. The surveillance policy is part of a larger Bush administration strategy that includes imprisoning people indefinitely without charges or attorneys in Guantanamo Bay and transporting suspects to countries known to torture, a process the administration calls "rendition." As with these policies, the interceptions are almost certainly illegal. Statutes prohibit government interceptions of the phone and e-mail conversations of United States citizens unless officials have first sought and obtained court approval, either under the Wiretap Act, for criminal investigations, or under FISA, for national security investigations. The only exceptions are following a declaration of war, when the president has very narrow, time-limited powers to order surveillance to obtain information to prevent attacks, terrorism or espionage, and under special circumstances when no U.S. citizens are involved. The administration's actions clearly fall outside these boundaries. There is no legal justification for these warrantless interceptions, which included calls to and from American citizens. Nor is there any practical reason. FISA allows the attorney general to approve interceptions in an emergency, and gives up to 72 hours to seek court approval after the fact. We won't see a special prosecutor appointed to investigate these violations, though Bush has called for the Department of Justice to find out who informed the press of the illegal eavesdropping program. Apparently, informing the public that the NSA broke the law is more troubling to the president than breaking the law in the first place. Instead, the administration claims that it has the power to ignore the law. Bush cites his authority under the Constitution, and Attorney General Alberto Gonzalez cites Congress' post-9/11 authorization for the administration to use force in combating terrorism. But even Gonzalez admits that the resolution authorizing force said nothing about surveillance. He denies that his argument is just a convenient excuse for illegal behavior. Underlying these explanations is the administration's theory that there are no legal limits on the president when it comes to fighting terrorism. As long as there's a terrorist threat, the president can do what he wants, and neither Congress nor the courts can stop him. Despite the best efforts of Bush's lawyers, independent legal experts agree there's little to no support for this view of presidential powers. Gonzalez's memos arguing that the administration could ignore laws against torture as part of the "war on terror" glaringly ignored case law that says the president must obey statutes even during wartime. Former prosecutor and current law professor Orin Kerr says there's no support for the view that the president can conduct warrantless electronic surveillance to protect national security from foreign threats, and that the administration mis-cites the legal cases it depends on. Any law student knows that the best answer to any legal question is, "it depends." But that doesn't mean that all answers are equally sound. There is something called the law, and the government must follow it, just like the rest of us. Until recently, Congress and the courts have been open-minded about the administration's arguments in light of recent terrorist attacks and the nation's enduring war in Iraq. But that pattern of deference is about to change. The Senate, at least temporarily, has suspended debate on reauthorizing the USA Patriot Act, perhaps out of concern that the administration doesn't plan on following whatever rules Congress puts in place. Republican Sen. John McCain has pushed his anti-torture bill over strong administration objections. The U.S. Supreme Court has held that citizens detained in Guantanamo are entitled to lawyers and some due process. As Justice Sandra Day O'Connor wrote in last year's opinion in Hamdi v. Rumsfeld, "a state of war is not a blank check for the president when it comes to the rights of the nation's citizens." I think that 2006 will be a time when we look back on this surveillance with a clearer eye -- one that takes in these violations, the lack of due process at Guantanamo and the government's sanctioning of torture as illegal acts. In that light, recent administration speeches are less justifications of government policy than they are admissions of guilt. - - - Jennifer Granick is executive director of the Stanford Law School Center for Internet and Society, and teaches the Cyberlaw Clinic. End of story You are a subscribed member of the infowarrior list. Visit www.infowarrior.org for list information or to unsubscribe. This message may be redistributed freely in its entirety. Any and all copyrights appearing in list messages are maintained by their respective owners.
