Thursday, January 05, 2006

Legality of the surveillance

Via ThinkProgress, we learn that what notice the White House did give to Congressional leaders regarding the illegal surveillance was not itself sufficient to fulfill the law. The entire intelligence committee was supposed to have been briefed, not just the Gang of Eight. Perhaps the President, as Commander-in-Chief, wasn't obliged to follow that law, either.

Also, Rep. Harmon did not say that the program in its entirety was legal, merely that the subset on which she was briefed was legal. She said:

Like many Americans, I am deeply concerned by reports that this program in fact goes far beyond the measures to target Al Qaeda about which I was briefed.

Indeed, the consensus is growing that the program in its entirety was illegal (though it could have been legal had they bothered to get warrants). Geoffrey Stone, constitutional scholar, former Dean of the U. of Chicago Law School and former University Provost, writes that, based on what we know now, the Bush surveillance program was unconstitutional and unlawful.

The latter post ends thus:

This is not to say that the President had no resource if he believed that FISA unduly restricts his ability to protect the nation. What he could and should have done is to urge Congress to amend FISA by enacting new legislation, which could then be properly tested in a court of law. Instead, he sought to elide the constitutional process entirely and surreptitiously ordered the NSA spy program without either congressional affirmation or judicial review. That will not stand.

Precisely. His analysis of the 4th amendment claim differs from Orrin Kerr's (discussed here). While this is not precisely his argument, I think we can paraphrase by arguing that the Constitution does not explicitly grant the president the power he took. Neither has any court reviewing these matters. And Congress gave an explicit grant to surveil only when certain conditions were met, and those conditions were not met here. Therefore, the president acted unconstitutionally and illegally in ordering the program.

Obviously, two posts from a law professor will be more detailed than a 4 sentence summary, so read through for more details. He specifically rejects the AUMF and inherent authority claims, and shows that no caselaw to date has addressed the issue of warrantless surveillance of international calls or emails. The courts have either specifically deferred judgement on that matter (while rejecting similar arguments for domestic surveillance, which we know occurred in this case, too), or have accepted the authority for the sake of argument, without actually judging its validity.

As Stone wrote previously of "King George's Constitution":
Expansive government surveillance of a nation's citizens (think 1984 or of the Soviet Union) can undermine privacy, autonomy, independence, spontaneity, openness, dissent, and the general sense of freedom that is essential to a self-governing society. And, of course, surveillance is a powerful tool with which to suppress political opposition. The Framers of the Constitution clearly understood these dangers and therefore sharply limited the circumstances in which the government could intrude on individual privacy.

But the Peeping Tom in Chief knows better.