Sunday, December 18, 2005


There has been quite a stink raised by Friday's New York Times piece that revealed that President Bush issued an Executive Order asking the National Security Adminstration (NSA) to monitor international phone calls and international e-mail messages of Americans and others in the United States who have connections to Al Qaeda without a warrant. The big thing I do not understand about this situation and I have yet to hear a good answer on is why couldn't the Justice Department or the NSA get a warrant from the Federal Intelligence Surveillance Court like they usually do when they are monitoring purely domestic communications. According to the article, the court can "grant emergency approval for wiretaps within hours." I mean if its good enough for purely domestic eavesdropping, why is it not good enough for this form of eavesdropping. In addition, I fail to see where the President has the authority to do this. Several conservative bloggers have wrongly cited 50 U.S.C. 1802 as the basis of the President's authority. In addition, this kind of surveillance does not appear to fall within the warrant requirement exception cited in United States v. bin Laden, 126 F.Supp.2d 264 (S.D.N.Y. 2000) since the getting a warrant in this kind of situation does not appear to be unduly burdensome and there's already procedures in place to get these kind of warrants (i.e., F.I.S.C.). Another thing that I do not understand about this situation is that why it took a New York Times article for Congress to put up much of fight about this. According to the New York Times:
After the special program started, Congressional leaders from both political parties were brought to Vice President Dick Cheney's office in the White House. The leaders, who included the chairmen and ranking members of the Senate and House intelligence committees, learned of the N.S.A. operation from Mr. Cheney, Gen. Michael V. Hayden of the Air Force, who was then the agency's director and is now the principal deputy director of national intelligence, and George J. Tenet, then the director of the C.I.A., officials said.

It is not clear how much the members of Congress were told about the presidential order and the eavesdropping program. Some of them declined to comment about the matter, while others did not return phone calls.

Later briefings were held for members of Congress as they assumed leadership roles on the intelligence committees, officials familiar with the program said. After a 2003 briefing, Senator Rockefeller, the West Virginia Democrat who became vice chairman of the Senate Intelligence Committee that year, wrote a letter to Mr. Cheney expressing concerns about the program, officials knowledgeable about the letter said. It could not be determined if he received a reply. Mr. Rockefeller declined to comment. Aside from the Congressional leaders, only a small group of people, including several cabinet members and officials at the N.S.A., the C.I.A. and the Justice Department, know of the program.
It makes me really wonder if members of Congress are looking out for their citizens' interests when the media spotlight is not on them.