"...the Justice Department on February 10 conceded in federal court that it could begin releasing as early as March 3 the internal legal memos relied on by the Bush administration in setting up the controversial National Security Agency warrantless wiretapping program."
http://www.gwu.edu/~nsarchiv/news/20060213/index.htm Department of Justice concedes it can begin to release internal warrantless surveillance records on March 3 For more information contact: Thomas Blanton or Meredith Fuchs 202/994-7000 Washington, D.C., February 13, 2006 - Under pressure from a Freedom of Information Act lawsuit, the Justice Department on February 10 conceded in federal court that it could begin releasing as early as March 3 the internal legal memos relied on by the Bush administration in setting up the controversial National Security Agency warrantless wiretapping program. The National Security Archive, along with the American Civil Liberties Union ("ACLU"), this week joined the Electronic Privacy Information Center in a Freedom of Information Act lawsuit against the Department of Justice seeking to compel the immediate disclosure of the internal legal justifications for the surveillance program. The filing this week (http://www.gwu.edu/~nsarchiv/news/20060213/Complaint.pdf) by the Archive and the ACLU was consolidated (http://www.gwu.edu/~nsarchiv/news/20060213/Motion.Consolidate.pdf) with a suit filed on January 19, 2006, by the Electronic Privacy Information Center ("EPIC") (http://www.gwu.edu/~nsarchiv/news/20060213/EPIC_complaint_doj.pdf) that requested the federal court in Washington to issue a preliminary (http://www.gwu.edu/~nsarchiv/news/20060213/EPIC_pi_motion_doj.pdf) injunction requiring the release of relevant documents within 20 days-which Judge Henry H. Kennedy, Jr. considered at a formal hearing today. The response of the news media to the revelation that the National Security Agency ("NSA") has engaged in warrantless domestic surveillance was immediate and dramatic, as was the response of Congress which just this week held the first hearing examining the legality of the program. News reporting and Administration statements over the last six weeks have disclosed that NSA began warrantless eavesdropping prior to receiving formal approval from President Bush; that the operation involves cooperation from American telecommunication companies, which allowed the agency to tap "directly into some of the American telecommunication system's main arteries"; that the information gathered was turned over to other agencies, including the Defense Intelligence Agency; and that some purely domestic communications (which both originated and terminated in the United States) were accidentally intercepted. The Archive's General Counsel Meredith Fuchs commented, "There are real secrets and convenient secrets. It may be convenient for the NSA to run this program in secret, but that policy debate, and consideration of the legality of the program, should be open." The Archive submitted the FOIA request to the Department of Justice on December 22, 2005. The Department of Justice agreed with the Archive's contention that the request merits speedy processing, but has failed to meet FOIA's statutory 20-day deadline for responses. The Archive has published an extensive chronicle of the key historic (http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB178/index.htm) documents about domestic intelligence policy, including many brought to light by the Church Committee investigations of intelligence abuses, and a series of National Security Agency documents from the 1990s released under the Freedom of Information Act that describe the limits imposed by FISA and the Fourth Amendment on surveilling U.S. persons. ---- Background: * FISA Was Passed in 1978 to Prescribe Procedures for Physical and Electronic Surveillance. o The Foreign Intelligence Surveillance Act ( FISA) of 1978 prescribes procedures for the physical and electronic surveillance and collection of "foreign intelligence information" between or among "foreign powers." (http://www.law.cornell.edu/uscode/html/uscode50/usc_sup_01_50_10_36.html) o The highly classified FISA court was set up in the 1970s to authorize secret surveillance of espionage and terrorism suspects within the United States. Under the law setting up the court, the Justice Department must show probable cause that its targets are foreign governments or their agents. The FISA law does include emergency provisions that allow warrant-less eavesdropping for up to 72 hours if the attorney general certifies there is no other way to get the information. ("Judges on Surveillance Court To Be Briefed on Spy Program," Washington Post, 12/22/05) * According to the New York Times, Bush Authorized a Secret Spying Program Outside the FISA Systems. o "Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others without the court-approved warrants required for domestic spying, according to government officials. . . Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years." ("Bush Lets U.S. Spy on Callers Without Courts," New York Times, 12/16/05) * In January, the Non-Partisan Congressional Research Service Reported that Bush Broke Law o "A Congressional Research Service [CRS] report concludes that: `the Bush administration's limited briefings for Congress on the National Security Agency's domestic eavesdropping without warrants are `inconsistent with the law.''" ("Report Questions Legality of Briefings on Surveillance," New York Times, 1/19/06) * Legal Experts Repudiated President Bush's Claim that He has Inherent Power for Wiretaps as Commander-in-Chief. Congress has the authority to regulate electronic surveillance in the United States. Under FISA the President must seek court approval for electronic surveillance. o A letter to Congress from a group of legal experts including Lawrence Tribe, David Cole, Ronald Dworkin, and others concluded: "But even conceding that the President in his role as Commander in Chief may generally collect "signals intelligence" on the enemy abroad, Congress indisputably has authority to regulate electronic surveillance within the United States, as it has done in FISA. Where Congress has so regulated, the President can act in contravention of statute only if his authority is exclusive, that is, not subject to the check of statutory regulation." ("On NSA Spying: A Letter to Congress," The New York Review of Books, 2/9/06) * The Non-Partisan Congressional Research Service Repudiated President Bush's Claim that the NSA Program was Authorized after September 11th. o A Congressional Research Service [CRS] report concludes, "that Bush's assertion that Congress authorized such eavesdropping to detect and fight terrorists does not appear to be supported by the special resolution that Congress approved after the Sept. 11, 2001, terrorist attacks, which focused on authorizing the president to use military force. " ("Report Rebuts Bush on Spying; Domestic Action's Legality Challenged," Washington Post, 1/7/06) * Contrary to Administration Claims, Congress Was Not Informed of Wiretapping Program. o White House Counselor Dan Bartlett claimed: "We went to Congress. We talked to the chairman and the ranking member of the intelligence committee. We talked to the leadership, both Republican and Democrat, House and Senate. These very discussions happened three to four years ago The fact of the matter is, everybody came to the same conclusion, that what the president was doing was legal and was necessary." (CNN American Morning, 1/23/06, http://transcripts.cnn.com/TRANSCRIPTS/0601/23/ltm.08.html) o But Senator Jay Rockefeller released a sealed 7/03 letter that warned of "profound oversight issues" with warrant-less spying program: "For the last few days, I have witnessed the President, the Vice President, the Secretary of State, and the Attorney General repeatedly misrepresents the facts. The record needs to be set clear that the Administration never afforded members briefed on the program an opportunity to either approve or disapprove the NSA program. The limited members who were told of the program were prohibited by the Administration from sharing any information about it with our colleagues, including other members of the Intelligence Committees." ( http://thinkprogress.org/wp-images/upload/Intell.pdf) o And in a separate report from the one described above, the Congressional Research Office concluded that "the Bush administration's limited briefings for Congress on the National Security Agency's domestic eavesdropping without warrants are `inconsistent with the law.'" ("Report Questions Legality of Briefings on Surveillance," New York Times, 1/19/06) * Contrary to Administration Claims, NSA Spying Uncovered "No Imminent Plots . . . Inside the United States." o "The law enforcement and counterterrorism officials said the program had uncovered no active Qaeda networks inside the United States planning attacks. `There were no imminent plots - not inside the United States,' the former F.B.I. official said." ("Spy Agency Data after 9/11 Let F.B.I. to Dead Ends," New York Times, 1/17/06) o Contrary to Administration Claims, NSA Spying Program was Broad and Unfocused. o "In the anxious months after the Sept. 11 attacks, the National Security Agency began sending a steady stream of telephone numbers, e-mail addresses and names to the F.B.I. in search of terrorists. The stream soon became a flood, requiring hundreds of agents to check out thousands of tips a month. [ ] `We'd chase a number, find it's a schoolteacher with no indication they've ever been involved in international terrorism - case closed,' said one former F.B.I. official After you get a thousand numbers and not one is turning up anything, you get some frustration.'" ("Spy Agency Data after 9/11 Led F.B.I. to Dead Ends," New York Times, 1/17/06) * Numerous Legal Scholars and Republican Leaders say President Bush Broke the Law. o CONSTITUTIONAL LAW SCHOLARS AND FORMER GOV. OFFICIALS: "Although the program's secrecy prevents us from being privy to all of its details the Justice Department's defense of what it concedes was secret and warrantless electronic surveillance of persons within the United States fails to identify any plausible legal authority for such surveillance. Accordingly the program appears on its face to violate existing law." ("On NSA Spying: A Letter to Congress," The New York Review of Books, 2/9/06) o SENATOR LINDSEY GRAHAM: "If he has the authority to go around the FISA court, which is a court to accommodate the law of the war of terror, the FISA Act wascreated a court set up by the chief justice of the United States to allow a rapid response to requests for surveillance activity in the war on terror. I don't know of any legal basis to go around that . There may be some, but I'm not aware of it." (http://thinkprogress.org/2005/12/18/no-legal-basis/) o SENATOR ARLEN SPECTER: "`There is no doubt that this is inappropriate,' said Sen. Arlen Specter (R-Pa.), who favored the Patriot Act renewal but said the NSA issue provided valuable ammunition for its opponents."("On Hill, Anger and Calls for Hearings Greet News of Stateside Surveillance," Washington Post, 12/17/05) o GROVER NORQUIST: "Referring to what some see as a conflict between fighting vicious terrorists and upholding all civil liberties, Norquist said: `It's not either/or. If the president thinks he needs different tools, pass a law to get them. Don't break the existing laws .' " ("Political opposites aligned against Bush wiretaps," San Francisco Chronicle, 1/26/06) o JOHN MCCAIN : "Wallace: But you do not believe that currently he has the legal authority to engage in these warrant-less wiretaps. McCain: You know, I don't think so, but why not come to Congress?" (Fox News Sunday, 12/22/05) o CHUCK HAGEL : "Chuck Hagel said he is looking forward to congressional hearings on the legal justification for the secretive National Security Agency program. He remains unconvinced that Bush could allow the program without fully consulting with the courts or Congress." ("Hagel Urges Bush to Explain Spy Program," Associated Press, 1/29/06) "If he needs more authority, he just can't unilaterally decide that that 1978 law is out of date and he will be the guardian of America and he will violate that law." (This Week, 1/29/06) o CONGRESSMAN BOB BARR: "It's bad to be spying on Americans apparently in violation of federal laws against doing it without court order. So it's bad all around, and we need to get to the bottom of this. . . And if we're going to say, well, simply because some people think that this is a new threat, we're going to throw the constitution and specific laws out the window and let a president rule by the seat of his pants, is extremely dangerous, and it's uncalled for. The president had full authority to have done this under the law. He apparently chose not to, and we need to find out why? . . . Well, I am because the law provides very vast authority, and for the president, or Frank Gaffney to justify the president saying even though I have the authority under the law to do it, I have to take certain steps, I'm just going to ignore that, puts us in a situation where we've seen in decades past, with Mr. Nixon, with President Lincoln and others, President Truman, when they overstep their bounds, they need to be held accountable. * NIXON: In 1969, during my Administration, warrant less wiretapping, even by the government, was unlawful, but if undertaken because of a presidential determination that it was in the interest of national security was lawful. Senate Select Committee on Government Operations to Study Intelligence Operations, Feb 2, 1976 * FROST: These meetings produced a plan, the Huston Plan, which advocated the systematic use of wiretappings, burglaries, or so-called black bag jobs, mail openings and infiltration against antiwar groups and others. Some of these activities, as Huston emphasized to Nixon, were clearly illegal. Nevertheless, the president approved the plan. * FROST: So what in a sense, you're saying is that there are certain situations, and the Huston Plan or that part of it was one of them, where the president can decide that it's in the best interests of the nation or something, and do something illegal. NIXON: Well, when the president does it that means that it is not illegal. FROST: By definition. * NIXON: Exactly. Exactly. If the president, for example, approves something because of the national security, or in this case because of a threat to internal peace and order of significant magnitude, then the president's decision in that instance is one that enables those who carry it out, to carry it out without violating a law. Otherwise they're in an impossible position. The Third Nixon-Frost Interview, May 20, 1977 When the President does it, that means that it is not illegal. * NIXON : Well, when the president does it that means that it is not illegal. The Third Nixon-Frost Interview, May 20, 1997 * The highly classified FISA court was set up in the 1970s to authorize secret surveillance of espionage and terrorism suspects within the United States. Under the law setting up the court, the Justice Department must show probable cause that its targets are foreign governments or their agents. The FISA law does include emergency provisions that allow warrantless eavesdropping for up to 72 hours if the attorney general certifies there is no other way to get the information. Washington Post, Dec 22, 2005 * Government officials are able to get an emergency warrant from the secret court within hours, sometimes minutes, if they can show an imminent threat. New York Times, Dec 19, 2005 * Congress made clear back in 1978 that there are two, and only two, statutes that authorize wiretaps within the United States. One is "Title III," which gives the rules for wiretaps for law enforcement. The other is the Foreign Intelligence Surveillance Act, which gives the rules for wiretaps for foreign intelligence purposes. * Since 1978, 18 U.S.C. Sec. 2511(2)(f) has said that Title III and FISA "shall be the exclusive means by which electronic surveillance ... and the interception of domestic wire and oral communications may be conducted." 18 U.S.C. Sec. 2511(2)(f) -------------------------- Want to discuss this topic? Head on over to our discussion list, [EMAIL PROTECTED] -------------------------- Brooks Isoldi, editor [EMAIL PROTECTED] http://www.intellnet.org Post message: osint@yahoogroups.com Subscribe: [EMAIL PROTECTED] Unsubscribe: [EMAIL PROTECTED] *** FAIR USE NOTICE. This message contains copyrighted material whose use has not been specifically authorized by the copyright owner. OSINT, as a part of The Intelligence Network, is making it available without profit to OSINT YahooGroups members who have expressed a prior interest in receiving the included information in their efforts to advance the understanding of intelligence and law enforcement organizations, their activities, methods, techniques, human rights, civil liberties, social justice and other intelligence related issues, for non-profit research and educational purposes only. We believe that this constitutes a 'fair use' of the copyrighted material as provided for in section 107 of the U.S. Copyright Law. If you wish to use this copyrighted material for purposes of your own that go beyond 'fair use,' you must obtain permission from the copyright owner. For more information go to: http://www.law.cornell.edu/uscode/17/107.shtml Yahoo! Groups Links <*> To visit your group on the web, go to: http://groups.yahoo.com/group/osint/ <*> To unsubscribe from this group, send an email to: [EMAIL PROTECTED] <*> Your use of Yahoo! Groups is subject to: http://docs.yahoo.com/info/terms/
