Freedom Activist Network's Guide To
Unauthorized Electronic
Surveillance
UNAUTHORIZED ELECTRONIC SURVEILLANCE
ISSUES
Facts ·
Law ·
Justifications ·
Analysis · Other Unauthorized
Surveillance Orgs & Websites
Facts
“As a Signals Intelligence (SIGINT) officer it is continually drilled into us that the very first law chiseled in the SIGINT equivalent of the Ten Commandments (USSID-18) is that Thou shall not spy on American persons without a court order from FISA. This law is continually drilled into each NSA intelligence officer throughout his or her career. The very people that lead the National Security Agency have violated this holy edict of SIGINT. ... In addition to knowing this fundamental commandment of not violating the civil rights of Americans, intelligence officers are required to take an oath to protect the United States Constitution from enemies both foreign and domestic. It is with my oath as a US intelligence officer weighing heavy on my mind that I wish to report to congress acts that I believe are unlawful and unconstitutional. The freedom of the American people cannot be protected when our constitutional liberties are ignored and our nation has decayed into a police state.” claims Russ Tice, "Former NSA intelligence analyst & action officer urges to be heard by Congress regarding unlawful conduct by NSA", Dec 21 2005
"These actions by the current administration are a compulsion to secrecy, an expansive view of presidential authority, and reluctance to answer to the people and Congress. Woodrow Wilson, himself no novice concerning secrecy, claimed that it is a 'fair presumption that secrecy means impropriety'. That is a presumption that we have been called upon to suspend in the name of national security, but with recent disclosures that suspended judgment appears to have been unwise. We urge the congress to hold hearings and let patriotic witnesses like Russ Tice testify,” claims Sibel Edmonds, "Former NSA intelligence analyst & action officer urges to be heard by Congress regarding unlawful conduct by NSA", Dec 21 2005
"Counterterrorism agents at the Federal Bureau of Investigation have conducted numerous surveillance and intelligence-gathering operations that involved, at least indirectly, groups active in causes as diverse as the environment, animal cruelty and poverty relief, newly disclosed agency records show." reports Eric Lichtblau, "F.B.I. Watched Activist Groups, New Files Show", New York Times, Dec 20 2005, pg A-1
"During an unusual live, on-camera version of his weekly radio address, Bush said such authorization is 'fully consistent' with his 'constitutional responsibilities and authorities.' ... Bush added: 'Yesterday the existence of this secret program was revealed in media reports, after being improperly provided to news organizations. As a result, our enemies have learned information they should not have, and the unauthorized disclosure of this effort damages our national security and puts our citizens at risk.' ... After hearing Bush's response, Sen. Russ Feingold, D-Wisconsin, said there was no law allowing the president's actions and that 'it's a sad day.' 'He's trying to claim somehow that the authorization for the Afghanistan attack after 9/11 permitted this, and that's just absurd,' Feingold said. 'There's not a single senator or member of Congress who thought we were authorizing wiretaps.' 'If he needs a wiretap, the authority is already there -- the Federal Intelligence Surveillance Act,' Feingold said. 'They can ask for a warrant to do that, and even if there's an emergency situation, they can go for 72 hours as long as they give notice at the end of 72 hours.' 'I have re-authorized this program more than 30 times,' [President Bush] said. 'I intend to do so for as long as our nation faces a continuing threat from al Qaeda and related groups.' ... In particular, Sen. Arlen Specter, R-Pennsylvania, said such behavior by the executive branch 'can't be condoned,' and Sen. Charles Schumer, D-New York, said the report swayed his decision on the Patriot Act proposal." reports Kelli Arena, "Bush says he signed NSA wiretap order", CNN, Dec 18 2005
''This is as shocking a revelation as we have ever seen from the Bush administration," said [Kate] Martin [Dir, Center for National Security Studies at George Washington Univ], who has been critical of the administration's surveillance policies. ''It is, I believe, the first time a president has authorized government agencies to violate a specific criminal prohibition and eavesdrop on Americans." reports Dan Eggen, "Bush reportedly authorized agency to spy on Americans", Washington Post, Dec 16 2005
Law
United States Constitution
Article 1
"All legislative powers herein granted shall be vested in a Congress of the
United States, which shall consist of a Senate and House of Representatives.
... The Congress shall have the power ... 3. to regulate commerce with foreign
nations, and among the several states ... 10. to define and punish piracies
and felonies committed on the high seas, and offenses against the law of
nations ... 11. to declare war ... 14. to make rules for the government and
regulation of the land and naval forces ... 15. to provide for calling forth
the militia to execute the laws of the union ... 16. to provide for organizing,
arming, and disciplining, the militia, and for governing such part of them
as may be employed in the service of the United States ... 18. to make all
laws which shall be necessary and proper for carrying into execution the
foregoing powers, and all other powers vested by this Constitution in the
government of the United States, or in any department or officer thereof."
Article 2
"1. The executive power shall be vested in a President of the United States
of America. ... 1. The President shall be commander in chief of the Army
and Navy of the United States ... The President, Vice President and all civil
officers of the United States, shall be removed from office on impeachment
for, and conviction of, treason, bribery, or other high crimes and misdemeanors."
Article 6
"2. This Constitution, and the laws of the United States which shall be made
in pursuance thereof; and all treaties made, or which shall be made, under
the authority of the United States, shall be the supreme law of the land"
4th Amendment
"The right of the people to be secure in the persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated,
and no warrants shall issue, but upon probable cause, supported by oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized."
9th Amendment
"The enumeration in the Constitution of certain rights shall not be construed
to deny or disparage others retained by the people."
Foreign Surveillance Intelligence Act (FISA)
Subchapter
1 Electronic Surveillance
Section
1802. Electronic surveillance authorization without court order;
certification by Attorney General; reports to Congressional committees;
transmittal under seal; duties and compensation of communication common carrier;
applications; jurisdiction of court
(a)(1) Notwithstanding any other law, the President, through the Attorney
General, may authorize electronic surveillance without a court order under
this subchapter to acquire foreign intelligence information for periods of
up to one year if the Attorney General certifies in writing under oath that
-
(A) the electronic surveillance is solely directed at -
(i) the acquisition of the contents of communications transmitted by means
of communications used exclusively between or among foreign powers, as defined
in section 1801(a)(1), (2), or (3) of this title; or
(ii) the acquisition of technical intelligence, other than the spoken
communications of individuals, from property or premises under the open and
exclusive control of a foreign power, as defined in section 1801(a)(1), (2),
or (3) of this title;
(B) there is no substantial likelihood that the surveillance will acquire
the contents of any communication to which a United States person is a party;
and
(C) the proposed minimization procedures with respect to such surveillance
meet the definition of minimization procedures under section 1801(h) of this
title; and
if the Attorney General reports such minimization procedures and any changes
thereto to the House Permanent Select Committee on Intelligence and the Senate
Select Committee on Intelligence at least thirty days prior to their effective
date, unless the Attorney General determines immediate action is required
and notifies the committees immediately of such minimization procedures and
the reason for their becoming effective immediately.
(2) An electronic surveillance authorized by this subsection may be conducted
only in accordance with the Attorney General's certification and the minimization
procedures adopted by him. The Attorney General shall assess compliance with
such procedures and shall report such assessments to the House Permanent
Select Committee on Intelligence and the Senate Select Committee on Intelligence
under the provisions of section 1808(a) of this title.
(3) The Attorney General shall immediately transmit under seal to the court
established under section 1803(a) of this title a copy ofhis certification.
Such certification shall be maintained under security measures established
by the Chief Justice with the concurrence of the Attorney General, in
consultation with the Director of Central Intelligence, and shall remain
sealed unless -
(A) an application for a court order with respect to the surveillance is
made under sections 1801(h)(4) and 1804 of this title; or
(B) the certification is necessary to determine the legality of the surveillance
under section 1806(f) of this title.
(4) With respect to electronic surveillance authorized by this subsection,
the Attorney General may direct a specified communication common carrier
to -
(A) furnish all information, facilities, or technical assistance necessary
to accomplish the electronic surveillance in such a manner as will protect
its secrecy and produce a minimum of interference with the services that
such carrier is providing its customers; and
(B) maintain under security procedures approved by the Attorney General and
the Director of Central Intelligence any records concerning the surveillance
or the aid furnished which such carrier wishes to retain.
The Government shall compensate, at the prevailing rate, such carrier for
furnishing such aid.
(b) Applications for a court order under this subchapter are authorized if
the President has, by written authorization, empowered the Attorney General
to approve applications to the court having jurisdiction under section 1803
of this title, and a judge to whom an application is made may, notwithstanding
any other law, grant an order, in conformity with section 1805 of this title,
approving electronic surveillance of a foreign power or an agent of a foreign
power for the purpose of obtaining foreign intelligence information, except
that the court shall not have jurisdiction to grant any order approving
electronic surveillance directed solely as described in paragraph (1)(A)
of subsection (a) of this section unless such surveillance may involve the
acquisition of communications of any United States person.
Section 1804. Applications for court orders
Section
1809. Criminal sanctions
a) Prohibited activities
A person is guilty of an offense if he intentionally -
(1) engages in electronic surveillance under color of law except as authorized
by statute; or
(2) discloses or uses information obtained under color of law by electronic
surveillance, knowing or having reason to know that the information was obtained
through electronic surveillance not authorized by statute.
(b) Defense
It is a defense to a prosecution under subsection (a) of this section that
the defendant was a law enforcement or investigative officer engaged in the
course of his official duties and the electronic surveillance was authorized
by and conducted pursuant to a search warrant or court order of a court of
competent jurisdiction.
(c) Penalties
An offense described in this section is punishable by a fine of not more
than $10,000 or imprisonment for not more than five years, or both.
(d) Federal jurisdiction
There is Federal jurisdiction over an offense under this section if the person
committing the offense was an officer or employee of the United States at
the time the offense was committed.
Section
1810. Civil liability
An aggrieved person, other than a foreign power or an agent of a foreign
power, as defined in section 1801(a) or (b)(1)(A) of this title, respectively,
who has been subjected to an electronic surveillance or about whom information
obtained by electronic surveillance of such person has been disclosed or
used in violation of section 1809 of this title shall have a cause of action
against any person who committed such violation and shall be entitled to
recover -
(a) actual damages, but not less than liquidated damages of $1,000 or $100
per day for each day of violation, whichever is greater;
(b) punitive damages; and
(c) reasonable attorney's fees and other investigation and litigation costs
reasonably incurred.
Section
1811. Authorization during time of war
Notwithstanding any other law, the President, through the Attorney General,
may authorize electronic surveillance without a court order under this subchapter
to acquire foreign intelligence information for a period not to exceed fifteen
calendar days following a declaration of war by the Congress.
Joint Authorization for Use of Military Force
War Powers Resolution
Justifications
by President Bush
Press
Conference of the President, Dec 19 2005
"We know that a two-minute phone conversation between somebody linked to
al Qaeda here and an operative overseas could lead directly to the loss of
thousands of lives. To save American lives, we must be able to act fast and
to detect these conversations so we can prevent new attacks. ... So, consistent
with U.S. law and the Constitution, I authorized the interception of
international communications of people with known links to al Qaeda and related
terrorist organizations."
Dec 18
2005
"I have re-authorized this program more than 30 times, I intend to do so
for as long as our nation faces a continuing threat from al Qaeda and related
groups."
President's
Radio Address, Dec 17 2005
"I am using authority vested in me by Congress, including the Joint Authorization
for Use of Military Force, which passed overwhelmingly in the first week
after September the 11th. I'm also using constitutional authority vested
in me as Commander-in-Chief. ... I authorized the National Security Agency,
consistent with U.S. law and the Constitution, to intercept the international
communications of people with known links to al Qaeda and related terrorist
organizations. Before we intercept these communications, the government must
have information that establishes a clear link to these terrorist networks.
... Nawaf al Hamzi and Khalid al Mihdhar, communicated while they were in
the United States to other members of al Qaeda who were overseas. But we
didn't know they were here, until it was too late. ... The authorization
I gave the National Security Agency after September the 11th helped address
that problem in a way that is fully consistent with my constitutional
responsibilities and authorities. The activities I have authorized make it
more likely that killers like these 9/11 hijackers will be identified and
located in time."
by Vice President Cheney
Interview
of the Vice President by CNN, Dec 20 2005
"If we had been able to do that before 9/11, we might have been able to pick
up on the two hijackers that were in San Diego, in touch overseas with al
Qaeda individuals, organizations -- so the activity we've undertaken is
absolutely consistent with the Constitution. And it's reviewed very carefully
by the President. Every 45 days, we have to personally sign off on it. It
has to be approved by the Justice Department, by the Attorney General. And
we've briefed the Congress on it 11 times. So it is a good, solid sound policy.
... We made the decision that when we have somebody inside the United States
who's in touch not just overseas, but is in touch with a terrorist, or a
terrorist suspect, or an al Qaeda affiliate, that, in fact, that's proper
-- The President authorized the NSA the due cause to look into that transaction.
... the fact is the law is the law. The Constitution is there. It's been
adhered to -- this case. And when you go to war, and you're attacked in your
homeland and you lose 2,000 people in a couple of hours in the morning, and
you're faced with the possibility that same organization might try to attack
the United States with deadlier weapon threats, nuclear weapon threats if
they get their hands on them -- you go after the terrorists. ... The fact
of the matter is we're doing it in accordance with the Constitution and the
laws of the United States, and it ought to be supported. This is not about
violating civil liberties because we're not. This is about defending the
country against further terrorist attack. That is what we're sworn to do.
... there's a Constitution from which we proceed, Article II, that specifically
indicates -- spells out the President is Commander-in-Chief. And he is sworn
to support and defend the Constitution of the United States, defend it against
all enemies foreign and domestic. When we were hit on 9/11, he was granted
the authority by the Congress to use all means necessary to take on the
terrorists. And that's what we've done. Now, we do it in a way that is careful
to make certain we don't violate some provisions of the Constitution and
infringe upon people's constitutional liberty."
Interview
of the Vice President by ABC News, Dec 18 2005
"And that when we have a situation where we have communications between someone
inside the United States and an acknowledged al Qaeda or terror source outside
the United States that that's something we need to know. And he has authorized
us to look at that. And it is, in fact, consistent with the Constitution.
It has been reviewed. It's reviewed every 45 days by the President himself,
by the Attorney General of the United States, by the President's counsel,
by the Director of the CIA. It has been briefed to the Congress over a dozen
times, and, in fact, it is a program that is by every effort we've been able
to make consistent with the statutes and with the law -- the kind of capability
if we'd had before 9/11, might have led us to be able to prevent 9/11. We
had two 9/11 terrorists in San Diego prior to the attack in contact with
al Qaeda sources outside the United States. We didn't know it. ... these
are communications that involve acknowledged or known terrorists, dirty numbers,
if you will. And in fact, it is consistent with the President's constitutional
authority as Commander-in-Chief. It's consistent with the resolution that
was passed by the Congress after 9/11. And it has been reviewed repeatedly
by the Justice Department every single time, it has been renewed to make
certain that it is, in fact, managed in a manner that's fully consistent
with the Constitution ... This has been done, Terry, in a manner that's
completely consistent with our obligations and requirements, I can assure.
That's one of the reasons we hold it -- we watch it so carefully. That's
why it has to go the President every 30 to 45 days to make absolutely certain
we are in compliance with all of those safeguards with respect to individual
liberty, and that it is managed in a very conservative fashion. And it signed
up to by the Attorney General of the United States, and reviewed by the Office
of Legal Counsel in the Justice Department. ... We spend a lot of time making
certain that this is, in fact, safeguarded. And as I say, we've briefed Congress
on it -- just a few members, the leadership, on over a dozen occasions."
by Attorney General Roberto Gonzales
"Gonzales:
Speed an issue in secretive wiretaps", CNN, Dec 19 2005
"There were many people, many lawyers within the administration who advised
the president that he had an inherent authority as commander in chief under
the Constitution to engage in these kind of signals, intelligence of our
enemy. We also believe that the authorization to use force, which was passed
by the Congress in the days following the attacks of September 11 [2001],
constituted additional authorization for the president to engage in this
kind of signals intelligence. ... The Foreign Intelligence Surveillance Act,
Soledad, provides that you must get a court order to engage in electronic
surveillance ... except as otherwise authorized by Congress. We believe that
other authorization by Congress exists in the authorization to use military
force that was passed by the Congress in the days following the attacks of
September 11. ... But the Foreign Intelligence Surveillance Act was passed
in 1978 and there have been tremendous changes in technology since then.
And what the folks at the NSA tell me is that we do not have the speed and
the agility in all cases to deal with this new kind of threat under the Foreign
Intelligence Surveillance Act and that's why we believe and the president
believes that these authorities are necessary in order to effectively defend
this country against another attack by al Qaeda. ... I'm told by the operational
folks at the National Security Agency that we do not have the speed and the
agility in all cases, in every circumstance, to deal with this new kind of
threat. ... the authority by the Congress was the authority to use all necessary
and appropriate force. And a very important aspect of engaging in war against
the enemy is to engage in signal intelligence. Signal intelligence means
that we have to know what our enemy is doing. ... we continue to believe
that the president has the inherent authority, under the Constitution's commander
in chief, to engage in this kind of conduct. But that's a secondary argument.
We believe the Congress has authorized this kind of conduct."
Justifications Catagories
1. Authority
a. US Constitution Article 2
b. Joint Authorization for Use of Military Force
c. War Powers Resolution
2. Exigency
3. Limited Scope
Analysis
The most likely reason warrants were not sought is because warrants require names of specific targeted persons, which is not known when "fishing" for intelligence.
Other Unauthorized Surveillance Orgs & Websites
- Congressional Statements
- Rep Dingell (MI) house.gov/dingell/documents/press_releases/109th_Congress/12-22-05.htm
- OMB Watch's "Statement on Bush's Unauthorized Domestic Spying"
- ombwatch.org/article/articleview/3223/1/192?TopicID=5
- Serendipity's "Domestic Surveillance: The History of Operation CHAOS"
- serendipity.li/cia/lyon.html
- World Socialist Web Site's "Bush defends illegal spying on Americans: the spector of presidential dictatorship"
- wsws.org/articles/2005/dec2005/bush-d19.shtml