Mass Surveillance Is Not Legal

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Tue, 10 Jan 2006 20:41:40 -0800 (PST)

Mass Surveillance Is Not Legal

 

 

 

http://oldamericancentury.org/rowan_041.htm

 

Mass Surveillance Is Not Legal

Rowan Wolf, POAC

 

January 10, 2006

 

I am not sure why it is even a question whether the President has the

right to spurious surveillance of U.S. citizens, but apparently it is.

A report released on January 5, 2005 by the Congressional Research

Services, states that Bush likely exceeded his authority in

authorizing the NSA to engage in warrantless wiretaps.

 

 

At the root of the Bush argument is that he has limitless power as

president in a time of war. First, while the scope of presidential

authority during war time is broad, but not limitless - and not

without oversight. Bush, and administration functionaries and flunkies

have consistently made this argument, and within the scope of that

assumed power is also a limitless range of what gets defined as

" national security. " The transcripts of the Cheney energy meetings are

one example, and Bush Senior's paper are another.

 

At the heart of the presidential powers that Bush argues for, is that

we are at " war. " However, that " war " is an ever shifting chimera

called the " war on terrorism. " We have been told that there is no

specific enemy in this " war, " that it is global in reach, and that it

will last for generations. If we accept the war on terrorism as a

legitimate and legal war, then we are essentially making a dictator

out of the presidency no matter who is in office. We are accepting a

limitless scope of authority beyond the law, the Constitution, and any

Congressional oversight - into perpetuity.

 

However, the " war on terrorism " is more in the nature of the " war on

crime, " the " war on drugs, " and the " Cold war, " than war within a

Constitutional context. By this definition, Nixon, Reagan, Kennedy,

Johnson, Ford, Bush Sr., and Clinton, could all have legitimately

claimed the same powers that George W. Bush lays claim to. All of them

were fighting the " Cold War. "

 

If the " war " that Bush claims gives him this power is the war in Iraq,

then he proclaimed the end of that war almost two years ago. Troops in

Iraq are not at war - they are on a peacekeeping mission. Hence, the

Iraq " war " is no more, and if Bush wants to claim war powers, he will

need to unilaterally declare war on someone else. Perhaps that is why

the preparations seem to be moving towards attacking Iran.

 

In reading the CRS report, it seems clear that Bush's authorization of

domestic wiretapping exceeded both law and the Constitution. The

questions remain because it is unknown what the actual scope of the

NSA program includes. The concluding paragraph of the CRS report

summarizes this:

 

" From the foregoing analysis, it appears unlikely that a court would

hold that Congress has expressly or impliedly authorized the NSA

electronic surveillance operations here under discussion, and it would

likewise appear that, to the extent that those surveillances fall

within the definition of " electronic surveillance " within the meaning

of FISA or any activity regulated under Title III, Congress intended

to cover the entire field with these statutes. To the extent that the

NSA activity is not permitted by some reading of Title III or FISA, it

may represent an exercise of presidential power at its lowest ebb, in

which case exclusive presidential control is sustainable only by

" disabling Congress from acting upon the subject. " While courts have

generally accepted that the President has the power to conduct 141

domestic electronic surveillance within the United States inside the

constraints of the Fourth Amendment, no court has held squarely that

the Constitution disables the Congress from endeavoring to set limits

on that power. To the contrary, the Supreme Court has stated that

Congress does indeed have power to regulate domestic surveillance, and

has not ruled on 142 the extent to which Congress can act with respect

to electronic surveillance to collect foreign intelligence

information. Given such uncertainty, the Administration's legal

justification, as presented in the summary analysis from the Office of

Legislative Affairs, does not seem to be as well-grounded as the tenor

of that letter suggests. "

 

It seems entirely likely that the NSA program was initiated well

before " war " was declared, or any possible interpretation of Congress

seceding war powers to the President. In fact it may have started as

early as October 1, 2001. This is when General Hayden, who was then

head of the NSA, said that he had Presidential Authorization to expand

the scope of the NSA. Further, the NSA took the fruits of their

labors, data mined it, and shared it with other agencies. That has

raised further questions about the status of cases where that

information may have been used, but not revealed.

 

 

News Reports

Basis for Spying in U.S. Is Doubted

 

1/07/06 Report Rebuts Bush on Spying

 

Rowan Wolf is a columnist for Project for the Old American Century,

 

and the editor of Radical Noesis and Uncommon Thought Journal .

 

Her email is rowan