Wednesday, December 21, 2005

a small editorial on an illegal act by our president

I'd never heard of it before I saw the "small editorial" I've copied below, but the site says its purpose is to provide "Documents on cryptology, dual-use technologies, and national security and intelligence." There's a little be more of a description here. Another source says: "Cryptome is a web archive from which interesting items can be uploaded by the public, especially items so interesting they can expect to be removed from their originally available webpage." Here's the editorial:
To: cryptography[at]
Subject: A small editorial about recent events.
From: "Perry E. Metzger"
Date: Sun, 18 Dec 2005 13:58:06 -0500

A small editorial from your moderator. I rarely use this list to express a strong political opinion -- you will forgive me in this instance.

This mailing list is putatively about cryptography and cryptography politics, though we do tend to stray quite a bit into security issues of all sorts, and sometimes into the activities of the agency with the biggest crypto and sigint budget in the world, the NSA.

As you may all be aware, the New York Times has reported, and the administration has admitted, that President of the United States apparently ordered the NSA to conduct surveillance operations against US citizens without prior permission of the secret court known as the Foreign Intelligence Surveillance Court (the "FISC"). This is in clear contravention of 50 USC 1801 - 50 USC 1811, a portion of the US code that provides for clear criminal penalties for violations. See:

The President claims he has the prerogative to order such surveillance. The law unambiguously disagrees with him.

There are minor exceptions in the law, but they clearly do not apply in this case. They cover only the 15 days after a declaration of war by congress, a period of 72 hours prior to seeking court authorization (which was never sought), and similar exceptions that clearly are not germane.

There is no room for doubt or question about whether the President has the prerogative to order surveillance without asking the FISC -- even if the FISC is a toothless organization that never turns down requests, it is a federal crime, punishable by up to five years imprisonment, to conduct electronic surveillance against US citizens without court authorization.

The FISC may be worthless at defending civil liberties, but in its arrogant disregard for even the fig leaf of the FISC, the administration has actually crossed the line into a crystal clear felony. The government could have legally conducted such wiretaps at any time, but the President chose not to do it legally.

Ours is a government of laws, not of men. That means if the President disagrees with a law or feels that it is insufficient, he still must obey it. Ignoring the law is illegal, even for the President. The President may ask Congress to change the law, but meanwhile he must follow it.

Our President has chosen to declare himself above the law, a dangerous precedent that could do great harm to our country. However, without substantial effort on the part of you, and I mean you, every person reading this, nothing much is going to happen. The rule of law will continue to decay in our country. Future Presidents will claim even greater extralegal authority, and our nation will fall into despotism. I mean that sincerely. For the sake of yourself, your children and your children's children, you cannot allow this to stand.

Call your Senators and your Congressman. Demand a full investigation, both by Congress and by a special prosecutor, of the actions of the Administration and the NSA. Say that the rule of law is all that stands between us and barbarism. Say that we live in a democracy, not a kingdom, and that our elected officials are not above the law. The President is not a King. Even the President cannot participate in a felony and get away with it. Demand that even the President must obey the law.

Tell your friends to do the same. Tell them to tell their friends to do the same. Then, call back next week and the week after and the week after that until something happens. Mark it in your calendar so you don't forget about it. Politicians have short memories, and Congress is about to recess for Christmas, so you must not allow this to be forgotten. Keep at them until something happens.



BeSpacific, great library-related blog I read, has the following post on this topic:

AG, VP Issue Statements on Legal Underpinnings of Electronic Surveillance Program

In following postings on the revelations on the Domestic Surveillance Program, see the text of this Press Briefing by Attorney General Alberto Gonzales and General Michael Hayden, Principal Deputy Director for National Intelligence, December 19, 2005.

  • "The President confirmed the existence of a highly classified program on Saturday. The program remains highly classified; there are many operational aspects of the program that have still not been disclosed and we want to protect that because those aspects of the program are very, very important to protect the national security of this country. So I'm only going to be talking about the legal underpinnings for what has been disclosed by the President. The President has authorized a program to engage in electronic surveillance of a particular kind, and this would be the intercepts of contents of communications where one of the -- one party to the communication is outside the United States. And this is a very important point -- people are running around saying that the United States is somehow spying on American citizens calling their neighbors. Very, very important to understand that one party to the communication has to be outside the United States."

  • ATTORNEY GENERAL GONZALES: This is not a backdoor approach. We believe Congress has authorized this kind of surveillance. We have had discussions with Congress in the past -- certain members of Congress -- as to whether or not FISA could be amended to allow us to adequately deal with this kind of threat, and we were advised that that would be difficult, if not impossible. [emphasis added]

  • Related government documents and news:

  • Press release, December 17, 2005: "All nine Democrats on the House Permanent Select Committee on Intelligence and a senior Member of the House Judiciary Committee today introduced legislation to strengthen accountability and oversight of National Security Letters (NSLs), which are requests for personal data and records issued directly by government agencies without the approval of a judge."

  • statements made by Vice President Cheney, December 20, 2005: "I would argue that the actions that we've taken there are totally appropriate and consistent with the constitutional authority of the president."

  • Dec. 20, 2005 Press Briefing by Scott McClellan: "...Well, the NSA authorization that has been talked about over the past couple of days is vital to our efforts to prevent attacks...And remember, there are important safeguards and oversight measures that are in place for this program...Every 45 days or so it is carefully reviewed; it must have the approval of top legal officials from the Attorney General to the White House Counsel. The activities that are conducted under this authorization are thoroughly reviewed by the Department of Justice and by the National Security Agency legal officials, including the General Counsel and the Inspector General. There is intense oversight of it, as General Hayden, the Deputy Director of National Intelligence, talked about. And the decisions that are made under this authorization, which is very limited, again, are made by career intelligence officials at NSA."

  • December 19, 2005: Sen. John D. (Jay) Rockefeller IV, Vice Chairman of the Senate Select Committee on Intelligence, comments on the National Security Agency (NSA) program for intercepting communications within the United States. "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...Additionally, Senator Rockefeller released his correspondence to the White House on July 17, 2003 – the day he first learned of the program -- expressing serious concerns about the nature of the program as well as Congress' inability to provide oversight given the limited nature of the briefings."

  • Washington Post: White House Elaborates on Authority for Eavesdropping

  • LA Times: Legal Test Was Seen as Hurdle to Spying - Some say the court's tougher standard of 'probable cause' led to the surveillance order.

  • Washington Post: Bush Addresses Uproar Over Spying - 'This Is a Different Era, a Different War,' He Says as Some Lawmakers Seek Probe

  • No comments: