[IP] more on well said Summarized -- Protect your ears: limit iPod use - Boston.com
Begin forwarded message:
From: Peter Homans <peter@xxxxxxxxxxxxx>
Date: December 30, 2005 3:40:47 PM EST
To: dave@xxxxxxxxxx, bsteinhardt@xxxxxxxx
Subject: RE: [IP] Summarized -- Protect your ears: limit iPod use -
Boston.com
I forwarded the Steinhardt piece on IP, regarding the NSA, to a
number of my associates, with the following as a "foreword", because
so many people often dismiss what the ACLU says because of a
"supposed" liberal bias, as opposed to a "civil liberties" bias-and
my father was a proud and active member of the ACLU until he died.
________________________________________________________________________
________________________________________________________________________
___________________________
This is BY FAR the most cogent , (and you may well disagree with his
arguments emotionally OR logically, but it IS very well-reasoned and
supported by numerous citations of law and the constitution) that I
have read regarding this whole NSA surveillance mish-mash.
And some may say, "well, that’s the ACLU" as if that’s a bad word-but
my father, Bill Homans, was a criminal lawyer in Boston for 40 years,
pretty universally acknowledged as the best criminal lawyer in Boston
during that time; but my parents were divorced when I was two and I
didn't see him more than once a year (and often not that), so I think
I can be fairly dispassionate about his activities as a lawyer
defending Americans' civil liberties..
At the age of 19, having already graduated from Harvard, when we
were not in WWII and it was a crime for American citizens to
participate in the hostilities, punishable by a $25,000 fine and 5
years in jail , he (unlike draft "resisters" of a later age ) , left
America for Canada and joined the British Navy because of his outrage
over Nazi atrocities (destruction of Czechs' civil liberties) he
witnessed in Czechoslovakia in the summer of 1938; he then served on
a British mine sweeper in the North Sea until 1941, when we finally
entered the war, when he joined the American Navy;
and then, 3 days after 9/11, he and the other 16 Americans (the only
Americans), who did what he did and became The Royal British Navy
Voluntary Reserve, were honored at a ceremony in England on the
Queen's behalf, Winston Churchill III presiding.
he worked in the South (Selma and elsewhere) during the '60's to
make sure laws weren't broken to suppress legal protests ; worked in
Vietnam in '60's and 70's assuring that "grunts" received fair and
highly qualified representation, pro bono, against "justified AND
unjustified" military courts martial, was twice considered for a
position the MA Supreme Judicial Court (rejected solely by the "runt"
governor Dukakis, who arrived in the MA State Senate in the same
class as my father in the early '60's ) , because of his financial
"incompetence." And he was about the worst manager of his own
finances I have ever seen -he died basically dead broke, for all of
his legal achievements;
during the 60's and 70's hundreds (maybe even thousands) of black
teenagers in Boston had his telephone number written in pen on their
hands, in case they got arrested-for real OR unjustified charges, and
rarely withheld counsel solely for the inability of the client to pay
any or all of his fees-much to his financial detriment, but to his
clients' benefit.
and personally mentored innumerable young lawyers, including current
SJC justices, defense lawyers, F. Lee Bailey, and others. He did all
of his Openings and Closings totally from memory.
This is all by way of saying that:: he was also a very active and
proud member of the ACLU, and was no left-wing looney, or easily
swayed by emotional rather than rational arguments. So I have ZERO
problem with the ACLU, in principle, even though I have certainly
disagreed over the years with some of the positions they have taken.
I simply think the "legal" points made in this article (which is not
a polemic, but an analysis), regarding Presidential powers, are hard
to dispute-but I would welcome any reasonable disputations .
The full text of the ACLU's opinion is three or four paragraphs down,
after some other links and just aftre Steinhardt's signature..
-----Original Message-----
From: David Farber [mailto:dave@xxxxxxxxxx]
Sent: Thursday, December 29, 2005 11:25 PM
To: ip@xxxxxxxxxxxxxx
Subject: [IP] ACLU ON NSA Spying on Americans
Begin forwarded message:
From: Barry Steinhardt <bsteinhardt@xxxxxxxx>
Date: December 29, 2005 8:15:03 PM EST
To: David Farber <dave@xxxxxxxxxx>
Subject: NSA Spying on Americans
Dave,
As has been made plain by the many submissions to IP, the
significance of the Bush/NSA spying scandal continues to grow each day.
The ACLU has just posted a number of materials on our web site
aclu.org and the new nsawatch.org that we hope will add to the debate.
Those items include:
1. A new ACLU ad calling for a special counsel to investigate the
President's illegal surveillance of U.S. Citizens.The add appeared in
today's NY Times, as well as the web site along with related
materials at http://www.aclu.org/safefree/spying/.
The text of the ad compares the words of President Nixon and
President Bush, both of whom denied allegations of illegal spying.
Next to the image of Nixon, the advertisement says: "He lied to the
American people and broke the law." Below that is an image of
President Bush, with the words, "So did he.
2. The Updated NSA Watch site (formerly known as Echelon watch):
http://www.nsawatch.org/ which contains a wide variety of materials
and links documenting the NSA's extraordinary communication
interception capabilities ("sigint"), which are part of an
international arrangement sometimes referred to as "Echelon".
3 A new piece explaining how the "NSA Spying on Americans is Illegal"
at http://www.aclu.org/privacy/spying/23279res20051229.html
Since the Administration has sought to cast its unprecedented and
lawless spying on American's as "legal", I have included the text of
our piece below. You are, of course, free to use as much or little of
it and the rest of this message as you would like.
Have a good New Year,
Barry Steinhardt
ACLU Technology and Liberty Project
NSA Spying on Americans is Illegal
http://www.aclu.org/privacy/spying/23279res20051229.html
What if it emerged that the President of the United States was
flagrantly violating the Constitution and a law passed by the
Congress to protect Americans against abuses by a super-secret spy
agency? What if, instead of apologizing, he said, in essence, “I
have the power to do that, because I say I can.” That frightening
scenario is exactly what we are now witnessing in the case of the
warrantless NSA spying ordered by President Bush that was reported
December 16, 2005 by the New York Times.
According to the Times, Bush signed a presidential order in 2002
allowing the National Security Agency to monitor without a warrant
the international (and sometimes domestic) telephone calls and e-mail
messages of hundreds or thousands of citizens and legal residents
inside the United States. The program eventually came to include some
purely internal controls – but no requirement that warrants be
obtained from the Foreign Intelligence Surveillance Court as the 4th
Amendment to the Constitution and the foreign intelligence
surveillance laws require.
In other words, no independent review or judicial oversight.
That kind of surveillance is illegal. Period.
The day after this shocking abuse of power became public, President
Bush admitted that he had authorized it, but argued that he had the
authority to do so. But the law governing government eavesdropping
on American citizens is well-established and crystal clear.
President Bush’s claim that he is not bound by that law is simply
astounding. It is a Presidential power grab that poses a challenge
in the deepest sense to the integrity of the American system of
government – the separation of powers between the legislative and
executive branches, the concept of checks and balances on executive
power, the notion that the president is subject to the law like
everyone else, and the general respect for the “rule of law” on which
our democratic system depends.
Flouting a long history
The tensions between the need for intelligence agencies to protect
the nation and the danger that they would become a domestic spy
agency have been explicitly and repeatedly fought out in American
history. The National Security Act of 1947 contained a specific ban
on intelligence operatives from operating domestically. In the
1970s, America learned about the extensive domestic political spying
carried out by the FBI, the military, the CIA, and the NSA, and
Congress passed new laws to prevent a repeat of those abuses.
Surveillance laws were debated and modified under presidents Ford,
Carter, Reagan, Bush Sr. and Clinton.
But, President Bush would sweep aside this entire body of
democratically debated and painstakingly crafted restrictions on
domestic surveillance by the executive branch with his extraordinary
assertion that he can simply ignore this law because he is the
Commander-in-Chief. In a December 17 radio address, for example,
Bush asserted that the spying was “fully
consistent with my constitutional responsibilities and authorities.”
But his constitutional duty is to “take care that the laws be
faithfully executed” (Article II, Section 3); the law here clearly
establishes well-defined procedures for eavesdropping on U.S.
persons, and the fact is, Bush ordered that those procedures not be
followed.
Government eavesdropping on Americans is an extremely serious matter;
the ability to intrude on the private realm is a tremendous power
that can be used to monitor, embarrass, control, disgrace, or ruin an
individual.-[and supporters of the President's assertions forget that
what might be good for protection of our national security can also
be misused in the ways just described(no threat posed by the
"surveilled" at al) once the precedent has been established-and our
entire legal system does depend on the importance of precedent-ph]
Because it is so invasive, the technology of wiretapping has been
subject to
carefully crafted statutory controls almost since it was invented.
Ignoring those controls and wiretapping without a court order is a
crime that carries a significant prison sentence (in fact, criminal
violations of the wiretap statute were among the articles of
impeachment that were drafted against President Nixon shortly before
his resignation).
Clearly Illegal
Unfortunately, although the law in this matter is crystal clear, many
Americans, faced with President Bush’s bold assertions of “inherent”
authority for these actions, will not know what to believe. There
are only
5 points they need to understand:
Point #1: Electronic surveillance by the Government is strictly
limited by the Constitution and Federal Law
The law on surveillance begins with the Fourth Amendment to the
Constitution, which states clearly that Americans’ privacy may not be
invaded without a warrant based on probable cause.
United States Constitution
Fourth Amendment The right of the people to be secure in their
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. (emphasis added)
The US Supreme Court (US v. Katz 389 US 347) has made it clear that
this core privacy protection does cover government eavesdropping. As
a result, all electronic surveillance by the government in the United
States is illegal, unless it falls under one of a small number of
precise exceptions specifically carved out in the law.
United States Code Title 50, Chapter 36, Subchapter 1 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
In other words, the NSA can only spy where it is explicitly granted
permission to do so by statute. Citizens concerned about
surveillance do not have to answer the question, “what law restricts
the NSA’s spying?”
Rather, the government is required to supply an answer to the
question “what law permits the NSA to spy?”
Point #2: There are only three laws that permit the government to spy
There are only three laws that authorize any exceptions to the ban on
electronic eavesdropping by the government. Congress has explicitly
stated that these three laws are the exclusive means by which
domestic electronic surveillance can be carried out (18 USC, Section
2511(2)(f)). They are:
· Title III and ECPA. Title III and the Electronic Communications
Privacy Act make up the statutes that govern criminal wiretaps in the
United States.
· FISA. The Foreign Intelligence Surveillance Act is the law that
governs eavesdropping on agents of “foreign powers” within the United
States, including suspected foreign terrorists.
Point #3: The Bush-NSA spying was not authorized by any of these laws
Title III and ECPA govern domestic criminal wiretaps and are not
relevant to the NSA’s spying. FISA is the law under which the NSA
should have operated.
It authorizes the government to conduct surveillance in certain
situations without meeting all of the requirements of the Fourth
Amendment that apply under criminal law, but requires that an
independent Foreign Intelligence Surveillance Court oversee that
surveillance to make sure that Americans who have no ties to foreign
terrorist organizations or other “foreign powers” are not spied upon.
FISA was significantly loosened by the Patriot Act (which, for
example, allowed it to be used for some criminal investigations), and
parts of it now stand in clear violation of the Constitution’s Fourth
Amendment in the view of the ACLU and many others. However, even the
post-Patriot Act version of FISA does not authorize the president to
conduct warrantless eavesdropping on U.S. citizens or permanent legal
residents in the U.S. without an order from the FISA Court. Yet it
is that very court order requirement – imposed to protect innocent
Americans – that the President has ignored.
In fact, one member of the FISA Court, Judge James Roberston, has
apparently resigned from the court in protest of President Bush's
secret authorization of this program. And the New York Times
reported that the court’s chief judge complained about the program
when she was (belatedly) notified of it, and refused to allow
information gathered under the program to be used as the basis for
FISA wiretap orders.-[and also required,, after she became concerned
with the President's use of FISA, that some representative of the
govt seeking authority swear, under oath, that the source of the
material being used to support a warrant has been legally obtain
itself.-ph]
Point #4: Congress’s post-9/11 use-of-force resolution does not
legitimize the Bush-NSA spying
Congress after 9/11 approved an Authorization to Use Military Force
against those responsible for the attacks in order to authorize the
president to conduct foreign military operations such as the invasion
of Afghanistan.
But that resolution contains no language changing, overriding or
repealing any laws passed by Congress. Congress does not repeal
legislation through hints and innuendos, and the Authorization to Use
Military Force does not authorize the president to violate the law
against surveillance without a warrant any more than it authorizes
him to carry out an armed robbery or seize control of Citibank in
order to pay for operations against terrorists.[to me, this is the
crux of the argument against the President's assertion of virtually
unlimited in the service of national security-ph]
In fact, when President Truman tried to seize control of steel mills
that were gripped by strikes in 1952, the Supreme Court decisively
rejected his authority to make such a seizure, even in the face of
arguments that the strike would interfere with the supply of weapons
and ammunition to American troops then under fire on the battlefields
of the Korean War. The Supreme Court also rejected similar
assertions of inherent executive power by Richard Nixon.
U.S. Supreme Court
YOUNGSTOWN CO. v. SAWYER, 343 U.S. 579 (1952)
“The order cannot properly be sustained as an exercise of the
President’s
military power as Commander in Chief of the Armed Forces. . . .
“Nor can the seizure order be sustained because of the several
constitutional provisions that grant executive power to the
President. . . . The Constitution limits his functions in the
lawmaking process to the recommending of laws he thinks wise and the
vetoing of laws he thinks bad.
And the Constitution is neither silent nor equivocal about who shall
make
laws which the President is to execute. . . . “The Founders of this
Nation entrusted the lawmaking power to the Congress alone in both
good and bad times.”
In fact, FISA contains explicit language describing the president’s
powers “during time of war” and provides that “the President, through
the Attorney General, may authorize electronic surveillance without a
court order under this title to acquire foreign intelligence
information for a period not to exceed fifteen days following a
declaration of war by the Congress." 50 U.S.C. § 1811 (emphasis
added). So even if we accept the argument that the use-of-force
resolution places us on a war footing, warrantless surveillance would
have been legal for only 15 days after the resolution was passed on
September 18, 2001.
Point #5: The need for quick action does not justify an end-run
around the courts
The FISA law takes account of the need for emergency surveillance,
and the need for quick action cannot be used as a rationale for going
outside the law. FISA allows wiretapping without a court order in an
emergency; the court must simply be notified within 72 hours. The
government is aware of this emergency power and has used it
repeatedly. In addition, the Foreign Intelligence court is
physically located in the Justice Department building, and the FISA
law requires that at least two of the FISA judges reside in the
Washington, DC area, for precisely the reason that rapid action is
sometimes needed.
If President Bush still for some reason finds these provisions to be
inadequate, he must take his case to Congress and ask for the law to
be changed, not simply ignore it.
The president is bound by the rule of law President Bush’s claim that
he has “inherent authority” as Commander-in-Chief to use our spy
agencies to eavesdrop on Americans is astonishing, and such spying is
clearly illegal. It must be halted immediately, and its origins must
be thoroughly investigated by Congress and by a special counsel.
(See letter from the ACLU to Attorney General Gonzales calling for a
special counsel <http://www.aclu.org/safefree/general/
23184leg20051221.html> ).
Given the extensive (indeed, excessive) surveillance powers that the
government already possesses, the Administration’s blatantly illegal
use of warrantless surveillance raises an important question: why?
One possibility, raised by the New York Times in a Dec. 24, 2005
story (“Spy Agency Minded Vast Data Trove, Officials Report <http://
www.nytimes.com/2005/12/24/politics/24spy.html> ”), is that the NSA
is relying on assistance from several unnamed telecommunications
companies to “trace and analyze large volumes of communications” and
is “much larger than the White House has acknowledged.”
This, as security expert Bruce Schneier has noted, suggests the Bush
Administration has developed a “a whole new surveillance paradigm” –
exploiting the NSA’s well known capabilities to spy on individuals
not one at a time, as FISA permits, but to run communications en
masse through computers in the search for suspicious individuals or
patterns. [the President and his representatives have asserted that
this surveillance has only encompassed members of Al Qaeda,
associates of members of Al Qaeda, and organizations associated with
Al Qaeda-this "vacumm approach" is clearly much more than they argued
in their defense, and is, IMHO, illegal under CURRENT law-ph]
This “new paradigm” may well be connected to the NSA program
sometimes known as “Echelon,” which carries out just that kind of
mass collection of communications (see www.nsawatch.org <http://
www.nsawatch.org/> ). This “wholesale” surveillance, as Schneier
calls it, would constitute an illegal invasion of Americans’ privacy
on a scale that has never before been seen.
(See Schneier, “NSA and Bush’s Illegal Eavesdropping <http://
www.salon.com/opinion/feature/2005/12/20/surveillance/> ,”
Salon.com)
According to the Times, several telecommunications companies provided
the NSA with direct access to streams of communications over their
networks. In other words, the NSA appears to have direct access to a
large volume of Americans’ communications – with not simply the
assent, but the
cooperation of the companies handling those communications.
We do not know from the report which companies are involved or
precisely how or what the NSA can access. But this revelation
raises questions about both the legal authority of the NSA to request
and receive this data, and whether these companies may have violated
either the Federal laws protecting these communications or their own
stated privacy polices (which may, for example, provide that they
will only turn over their customers’ data with their consent or in
response to a proper order). [so, even if you grant the President
this kind of mass surveillance authority (NOT), what right, and under
what law do these private companies have to give up this kind of
quite "private information" to the government-ph]
Regardless of the scale of this spying, we are facing a historic
moment: the President of the United states has claimed a sweeping
wartime power to brush aside the clear limits on his power set by our
Constitution and laws – a chilling assertion of presidential power
that has not been seen since Richard Nixon.
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yes, whatever money I have is 'bout 'leben years
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counts, isn't it, sport? Jim Williams,Midnight in
the Garden of Good and Evil
Peter Homans
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