NSA Spying on Americans

Yesterday, I shared an article about the US Senate passing a bill to grant immunity from lawsuits to telecom companies that participated in illegal monitoring of emails, internet usage, text messaging, and phone calls of Americans. Today, we will get further into this issue and how it became a big issue.

On December 16, 2005, the New York Times broke the story after they learned that the Bush administration was considering seeking a court injunction to block its publication. In the story, Americans learned that the President authorized the National Security Agency (NSA) to wiretap phone and email communications involving United States persons within the U.S. without obtaining a warrant or court order pursuant to the Foreign Intelligence Surveillance Act of 1978 (FISA). FISA prohibits unauthorized electronic surveillance. Shortly afterwards Americans also learned that the major telecoms participated in warrantless surveillance, handing over billions of their customers private communications and communications records.

The controversy that ensued has lasted years all the way to the present month as reflected in yesterday's post. This concerns surveillance of persons within the United States incident to the collection of foreign intelligence by the NSA as part of the war on terror. The legality of surveillance involving US persons and extent of this authorization is at the core of this controversy which has steadily grown to include:

• Constitutional issues concerning the separation of powers and the Fourth Amendment immunities.
• The effectiveness and scope of the program.
• The legality of the leaking and publication of classified information and the implications for U.S. national security arising from the disclosure.
• Adequacy of FISA as a tool in the war on terror

Under this program, referred to by the Bush administration as the "terrorist surveillance program", the NSA is authorized by executive order to monitor, without warrants, phone calls, emails, Internet activity, and text messaging, and other communication involving any party believed by the NSA to be outside the U.S., even if the other end of the communication lies within the U.S. The exact scope of the program is not known, but the NSA is or was provided total, unsupervised access to all fiber-optic communications going between some of the nation's major telecommunication companies' major interconnect locations, including phone conversations, email, web browsing, and corporate "private network" traffic.

Shortly before Congress passed a new law in August of 2007 that legalized warrantless surveillance, the Protect America Act of 2007, critics stated that such "domestic" intercepts required FISC authorization under the Foreign Intelligence Surveillance Act of 1978. The Bush administration maintains that the authorized intercepts are not domestic but rather "foreign intelligence" integral to the conduct of war and that the warrant requirements of FISA were implicitly superseded by the subsequent passage of the Authorization for Use of Military Force Against Terrorists (AUMF).

FISA, on the other hand, makes it illegal to intentionally engage in electronic surveillance under appearance of an official act or to disclose or use information obtained by electronic surveillance under appearance of an official act knowing that it was not authorized by statute; this is punishable with a fine of up to $10,000 or up to five years in prison, or both. In addition, the Wiretap Act prohibits any person from illegally intercepting, disclosing, using or divulging phone calls or electronic communications; this is punishable with a fine or up to five years in prison, or both.

The 1978 Foreign Intelligence Surveillance Act regulates U.S. government agencies' carrying out of physical searches, and electronic surveillance, wherein the main purpose is the gathering of foreign intelligence information. "Foreign intelligence information" is defined in 50 U.S.C. § 1801 as information necessary to protect the U.S. or its allies against actual or potential attack from a foreign power, sabotage, or international terrorism. FISA defines a "foreign power" as a foreign government or any faction(s) of a foreign government not substantially composed of US persons, or any entity directed or controlled by a foreign government. FISA provides for both criminal and civil liability for intentional electronic surveillance under color of law except as authorized by statute.

FISA provides two documents for the authorization of surveillance. First, FISA allows the Justice Department to obtain warrants from the Foreign Intelligence Surveillance Court (FISC) before or up to 72 hours after the beginning of the surveillance. FISA authorizes a FISC judge to issue a warrant for the electronic cameras if "there is probable cause to believe that… the target of the electronic surveillance is a foreign power or an agent of a foreign power." 50 U.S.C. §1805(a)(3). Second, FISA permits the President or his delegate to authorize warrantless surveillance for the collection of foreign intelligence if "there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party". 50 U.S.C. §1802(a)(1).

This last statement is the crux of the issue. FISA expressly allows warrantless surveillance only if there is no substantially likelihood that it is tied to a US person. All of President Bush's program involves communications tied to US persons. That is why Senator Feingold accused the President of breaking the law in yesterday's post. These are all illegal intrusion on our rights.

But, as I stated in yesterday's posts, the federal government does not have a good track record on preserving our rights. Once they can hear and read everything that we say and write on electronic media, where will it stop? Do we have any rights remaining? Not really. We are living in a Constitutional dictatorship. President Bush thinks and acts like he can do anything he wants through executive order even though it may violate existing laws as long as he thinks it is vital to the national interest or to fight the war on terror. This sounds like a dictatorship to me.

When do we stop this madness? When do we wake up to these atrocities and change things?

As always, the choice is yours.

This matter arose because some false brothers had infiltrated our ranks to spy on the freedom we have in Christ Jesus and to make us slaves. We did not give in to them for a moment, so that the truth of the gospel might remain with you. Galatians 2:4-5 (NIV)

If you have comments or questions, please feel free to contact me at the address below.
Email: DeltaInspire@panama-vo.com