Year Two Day 134 Obama Administration June 3, 2010 - History

Year Two Day 134 Obama Administration June 3, 2010 - History

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11:05AM THE PRESIDENT receives the Presidential Daily Briefing

Oval Office


Private Dining Room

1:30PM THE PRESIDENT meets with Governor Brewer

Oval Office

3:00PM THE PRESIDENT and THE VICE PRESIDENT meet with Secretary Clinton

Oval Office

3:30PM THE PRESIDENT meets with senior advisors

Oval Office

5:25PM THE PRESIDENT participates in U. S. India Strategic Dialogue reception

State Department

Michelle Obama

Michelle LaVaughn Robinson Obama [1] (born January 17, 1964) is an American attorney and author who served as the First Lady of the United States from 2009 to 2017. She was the first African-American woman to serve in this position. She is married to the 44th President of the United States, Barack Obama.

Raised on the South Side of Chicago, Illinois, Obama is a graduate of Princeton University and Harvard Law School. In her early legal career, she worked at the law firm Sidley Austin where she met Barack Obama. She subsequently worked in nonprofits and as the associate dean of Student Services at the University of Chicago as well as the vice president for Community and External Affairs of the University of Chicago Medical Center. Michelle married Barack in 1992, and together they have two daughters.

Obama campaigned for her husband's presidential bid throughout 2007 and 2008, delivering a keynote address at the 2008 Democratic National Convention. She has subsequently delivered acclaimed speeches at the 2012, 2016, and 2020 conventions.

As first lady, Obama served as a role model for women and worked as an advocate for poverty awareness, education, nutrition, physical activity, and healthy eating. She supported American designers and was considered a fashion icon. [2] [3]

After her husband's presidency, her influence remained high in 2020, Obama topped Gallup's poll of the most admired woman in America for the third year running. [4]

Propaganda Pre$ Monitor

A 43-year-old Quincy man, who has admitted being an errand runner for an Asian prostitution ring operating in Boston and its nearby suburbs, was sentenced this week to 15 months in prison.

Dong Kai Chen is one of five defendants charged in a scheme that lured Asian women from New York and California, among other places, to come to Massachusetts and work as prostitutes in Boston and suburbs including Stoneham, Wellesley, Malden, Burlington, and Newton.

Customers were recruited through ads offering the services of Asian women that ran in the Boston Phoenix and Craigslist, the indictment said.

During sentencing on Thursday, US District Court Judge George O’Toole declined Dong Kai Chen’s request to spare him prison time based on his consistent work record in the Asian food market business in Boston, as well as his lack of a criminal record.

In a phone interview Friday, Chen’s attorney, Robert Peabody, characterized him as a bit player in this prostitution business. He said Chen was a single man, a cash-strapped factory worker who responded to an ad in a Chinese-language newspaper, distributed in Boston, for “a driver.’’ Peabody said Chen discovered only later that the job was related to an illicit escort business.

“He did not know what he was getting into at first,’’ Peabody said. “He needed the cash.’’

Federal prosecutors portrayed Chen as the one who picked up women arriving at South Station or Logan Airport, deposited large amounts of cash at banks, and delivered bed linens, towels, food, and condoms to prostitutes at various locations. Chen, who immigrated here from Guangdong province, became a US citizen a few years ago, Peabody said.

Prosecutors say the leaders of the brothel operation are the alleged “madam’’ Hong Wei and two men, Jing Liang Chen, and Darren Liu, also known as Xiang Hua Zhang.

Year Two Day 134 Obama Administration June 3, 2010 - History

It looks like President Petulant has tried his hand at petty school yard politics. Did you hear about Obama's planned "jobs address"? This wasn't urgent enough to tell the nation before he went on vacation for ten days, but all of the sudden, he wants to make an address to Congress the same day, the same time the Republicans had scheduled a candidate's debate at the Reagan Library.

House Speaker John Boehner (R-Ohio) has asked President Obama to address a joint-session of Congress on Thursday, Sept. 8, when it wouldn't conflict with the Republican presidential debate.

Citing logistical difficulties, Boehner requested that Obama hold his jobs address, which Obama wants to deliver next Wednesday, one day later.

The Speaker's letter made no mention of the more obvious conflict: between the president's speech, and a Republican presidential debate scheduled on Wednesday night at 8 p.m. EST. That debate is the first of the post-Labor Day political season, and the first one in which Texas Gov. Rick Perry (R) is set to participate.

It was a juvenile move. Strictly "bush league" (Small "B"). He wanted to upstage the Republicans on the one hand, and use Congress as a bunch of props and a backdrop to stage the glory that is Obama.
One small problem: The President has to be invited to address Congress. Apparently, the President didn't even ask Congress about the speech, but arrogantly expected that if he said "jump" the peasants would ask "How high?".

Enter the adults with a cold splash of harsh reality for President Petulant. Boehner said that there might be "parliamentary or logistical impediments" that might interfere with his speech. That's right. "Parliamentary" (wink, wink) or "logistical" (nudge, nudge) impediments". If fact, I think that Boehner could probably give Obama an iron clad guarantee that there'd be at the very least a parliamentary impediment to the President's proposed schedule.

NSA warrantless surveillance (2001–2007)

NSA warrantless surveillance — also commonly referred to as "warrantless-wiretapping" or "-wiretaps" — refers to the surveillance of persons within the United States, including U.S. citizens, during the collection of notionally foreign intelligence by the National Security Agency (NSA) as part of the Terrorist Surveillance Program. [1] In late 2001, the NSA was authorized to monitor, without obtaining a FISA warrant, the phone calls, Internet activity, text messages and other communication involving any party believed by the NSA to be outside the U.S., even if the other end of the communication lay within the U.S.

Critics claimed that the program was an effort to silence critics of the Administration and its handling of several controversial issues. Under public pressure, the Administration allegedly ended the program in January 2007 and resumed seeking warrants from the Foreign Intelligence Surveillance Court (FISC). [2] In 2008 Congress passed the FISA Amendments Act of 2008, which relaxed some of the original FISC requirements.

During the Obama administration, the U.S. Department of Justice (DOJ) continued to defend the warrantless surveillance program in court, arguing that a ruling on the merits would reveal state secrets. [3] In April 2009 officials at DOJ acknowledged that the NSA had engaged in "overcollection" of domestic communications in excess of the FISC's authority, but claimed that the acts were unintentional and had since been rectified. [4]


A week after the 9/11 attacks, Congress passed the Authorization for Use of Military Force Against Terrorists (AUMF), which inaugurated the "War on Terror". It later featured heavily in arguments over the NSA program.

Soon after the 9/11 attacks President Bush established the President's Surveillance Program. As part of the program, the Terrorist Surveillance Program was established pursuant to an executive order that authorized the NSA to surveil certain telephone calls without obtaining a warrant (see 50 U.S.C. § 1802 50 U.S.C. § 1809). The complete details of the executive order are not public, but according to administration statements, [5] the authorization covers communication originating overseas from or to a person suspected of having links to terrorist organizations or their affiliates even when the other party to the call is within the US.

In October 2001, Congress passed the Patriot Act, which granted the administration broad powers to fight terrorism. [6] The Bush administration used these powers to bypass the FISC and directed the NSA to spy directly on al-Qaeda via a new NSA electronic surveillance program. Reports at the time indicate that an "apparently accidental" "glitch" resulted in the interception of communications that were between two U.S. parties. [7] This act was challenged by multiple groups, including Congress, as unconstitutional.

The precise scope of the program remains secret, but the NSA was provided total, unsupervised access to all fiber-optic communications between the nation's largest telecommunication companies' major interconnected locations, encompassing phone conversations, email, Internet activity, text messages and corporate private network traffic. [8]

FISA makes it illegal to intentionally engage in electronic surveillance as an official act or to disclose or use information obtained by such surveillance under as an official act, knowing that it was not authorized by statute this is punishable with a fine of up to $10,000, up to five years in prison or both. [9] The Wiretap Act prohibits any person from illegally intercepting, disclosing, using or divulging phone calls or electronic communications this is punishable with a fine, up to five years in prison, or both. [10]

After an article about the program, (which had been code-named Stellar Wind), was published in The New York Times on December 16, 2005, Attorney General Alberto Gonzales confirmed its existence. [11] [12] [13] The Times had published the story after learning that the Bush administration was considering seeking a court injunction to block publication. [14] Bill Keller, the newspaper's executive editor, had withheld the story from publication since before the 2004 Presidential Election. The published story was essentially the same that reporters James Risen and Eric Lichtblau had submitted in 2004. The delay drew criticism, claiming that an earlier publication could have changed the election's outcome. [15] In a December 2008 interview, former Justice Department employee Thomas Tamm claimed to be the initial whistle-blower. [16] The FBI began investigating leaks about the program in 2005, assigning 25 agents and 5 prosecutors. [17]

Attorney and author Glenn Greenwald argued: [18]

Congress passed a law in 1978 making it a criminal offense to eavesdrop on Americans without judicial oversight. Nobody of any significance ever claimed that that law was unconstitutional. The Administration not only never claimed it was unconstitutional, but Bush expressly asked for changes to the law in the aftermath of 9/11, thereafter praised the law, and misled Congress and the American people into believing that they were complying with the law. In reality, the Administration was secretly breaking the law, and then pleaded with The New York Times not to reveal this. Once caught, the Administration claimed it has the right to break the law and will continue to do so.

Gonzales said the program authorized warrantless intercepts where the government had "a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda" and that one party to the conversation was "outside of the United States". [19] The revelation raised immediate concern among elected officials, civil right activists, legal scholars and the public at large about the legality and constitutionality of the program and its potential for abuse. The controversy expanded to include the press' role in exposing a classified program, the role and responsibility of Congress executive oversight and the scope and extent of presidential powers. [20]

CRS released a report on the NSA program, "Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information", on January 5, 2006 that concluded:

While courts have generally accepted that the President has the power to conduct 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 the extent to which Congress can act with respect to electronic surveillance to collect foreign intelligence information. [21] [22] [23]

On January 18, 2006 the Congressional Research Service released another report, "Statutory Procedures Under Which Congress Is To Be Informed of U.S. Intelligence Activities, Including Covert Actions". [24] [25] That report found that "[b]ased upon publicly reported descriptions of the program, the NSA surveillance program would appear to fall more closely under the definition of an intelligence collection program, rather than qualify as a covert action program as defined by statute", and, therefore, found no specific statutory basis for limiting briefings on the terrorist surveillance program. [26] However, the report goes on to note in its concluding paragraph that limited disclosure is also permitted under the statute "in order to protect intelligence sources and methods". [27]

Legal action

While not directly ruling on the legality of domestic surveillance, the Supreme Court can be seen as having come down on both sides of the Constitution/statute question, in somewhat analogous circumstances.

In Hamdi v. Rumsfeld (2004) the government claimed that AUMF authorized the detention of U.S. citizens designated as an enemy combatant despite its lack of specific language to that effect and notwithstanding the provisions of 18 U.S.C. § 4001(a) that forbids the government to detain an American citizen except by act of Congress. In that case, the Court ruled:

[B]ecause we conclude that the Government's second assertion ["that § 4001(a) is satisfied, because Hamdi is being detained "pursuant to an Act of Congress" [the AUMF]"] is correct, we do not address the first. In other words, for the reasons that follow, we conclude that the AUMF is explicit congressional authorization for the detention of individuals . and that the AUMF satisfied § 4001(a)'s requirement that a detention be "pursuant to an Act of Congress".

However, in Hamdan v. Rumsfeld the Court rejected the government's argument that AUMF implicitly authorized the President to establish military commissions in violation of the Uniform Code of Military Justice. The Court held:

Neither of these congressional Acts, [AUMF or ATC] however, expands the President's authority to convene military commissions. First, while we assume that the AUMF activated the President's war powers, see Hamdi v. Rumsfeld, 542 U.S. 507 (2004)) (plurality opinion), and that those powers include the authority to convene military commissions in appropriate circumstances, see id., at 518 Quirin, 317 U. S., at 28–29 see also Yamashita, 327 U. S., at 11, there is nothing in the text or legislative history of the AUMF even hinting that Congress intended to expand or alter the authorization set forth in Article 21 of the UCMJ. Cf. Yerger, 8 Wall., at 105 ("Repeals by implication are not favored")

In footnote 23, the Court rejected the notion that Congress is impotent to regulate the exercise of executive war powers:

Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 637 (1952) (Jackson, J., concurring). The Government does not argue otherwise.

Dozens of civil suits against the government and telecommunications companies over the program were consolidated before the chief judge of the Northern District of California, Vaughn R. Walker. One of the cases was a class-action lawsuit against AT&T, focusing on allegations that the company had provided the NSA with its customers' phone and Internet communications for a data-mining operation. Plaintiffs in a second case were the al-Haramain Foundation and two of its lawyers. [28] [29]

On August 17, 2006, Judge Anna Diggs Taylor of the United States District Court for the Eastern District of Michigan ruled in ACLU v. NSA that the Terrorist Surveillance Program was unconstitutional under the Fourth and First Amendments and enjoined the NSA from using the program to conduct electronic surveillance "in contravention of [FISA or Title III]". [30] She wrote: [31]

The President of the United States, a creature of the same Constitution which gave us these Amendments, has indisputably violated the Fourth in failing to procure judicial orders as required by FISA, and accordingly has violated the First Amendment Rights of these Plaintiffs as well.

In August 2007, a three-judge panel of the United States Court of Appeals for the Ninth Circuit heard arguments in two lawsuits challenging the program. On November 16, 2007, the three judges—M. Margaret McKeown, Michael Daly Hawkins and Harry Pregerson—issued a 27-page ruling that the al-Haramain Foundation could not introduce a key piece of evidence because it fell under the government's claim of state secrets, although the judges said that "In light of extensive government disclosures, the government is hard-pressed to sustain its claim that the very subject matter of the litigation is a state secret." [32] [33]

In a question-and-answer session published on August 22, Director of National Intelligence Mike McConnell first confirmed that the private sector had helped the program. McConnell argued that the companies deserved immunity for their help: "Now if you play out the suits at the value they're claimed, it would bankrupt these companies." [34] Plaintiffs in the AT&T suit subsequently moved to have McConnell's acknowledgement admitted as evidence. [35]

In a related legal development, on October 13, 2007, Joseph P. Nacchio, the former CEO of Qwest Communications, appealed an April 2007 insider trading conviction by alleging that the government withdrew opportunities for contracts worth hundreds of millions of dollars after Qwest refused to participate in an unidentified NSA program that the company thought might be illegal. He claimed that the NSA approached Qwest about participating in a warrantless surveillance program more than six months before 9/11. Nacchio used the allegation to show why his stock sale was not improper. [36] According to a lawsuit filed against other telecommunications companies for violating customer privacy, AT&T began preparing facilities for the NSA to monitor "phone call information and Internet traffic" seven months before 9/11. [37]

On January 20, 2006, cosponsors Senator Patrick Leahy and Ted Kennedy introduced Senate Resolution 350, a resolution "expressing the sense of the Senate that Senate Joint Resolution 23 (107th Congress), as adopted by the Senate on September 14, 2001, and subsequently enacted as the Authorization for Use of Military Force does not authorize warrantless domestic surveillance of United States citizens". [38] [39] This non-binding resolution died without debate. [40]

On September 28, 2006, the U.S. House of Representatives passed the Electronic Surveillance Modernization Act (H.R. 5825). [41] It died in the Senate. Three competing, mutually exclusive, bills—the Terrorist Surveillance Act of 2006 (S.2455), the National Security Surveillance Act of 2006 (S.2455) and the Foreign Intelligence Surveillance Improvement and Enhancement Act of 2006 (S.3001) – were referred for debate to the full Senate, [42] but did not pass. Each of these bills would have broadened the statutory authorization for electronic surveillance, while subjecting it to some restrictions.


On January 17, 2007, Gonzales informed Senate leaders that the program would not be reauthorized. [2] "Any electronic surveillance that was occurring as part of the Terrorist Surveillance Program will now be conducted subject to the approval of the Foreign Intelligence Surveillance Court," according to his letter. [43]

Further legal action

The American Civil Liberties Union (ACLU) sued NSA over the program. Detroit District Court judge Anna Diggs Taylor ruled on August 17, 2006 that the program was illegal under FISA as well as unconstitutional under the First and Fourth amendments of the Constitution. [44] [30] [45] Judicial Watch, a watchdog group, discovered that at the time of the ruling Taylor "serves as a secretary and trustee for a foundation that donated funds to the ACLU of Michigan, a plaintiff in the case". [46]

ACLU v. NSA was dismissed on January 31, 2007 by the United States Court of Appeals for the Sixth Circuit. [47] The court did not rule on the spying program's legality. Instead, it declared that the plaintiffs did not have standing to sue because they could not demonstrate that they had been direct targets of the program. [48] The Supreme Court let the ruling stand.

On August 17, 2007, FISC said it would consider a request by the ACLU that asked the court to make public its recent, classified rulings on the scope of the government's wiretapping powers. FISC presiding judge Colleen Kollar-Kotelly signed an order calling the ACLU's motion "an unprecedented request that warrants further briefing". [49] The FISC ordered the government to respond on the issue by August 31. [50] [51] On the August 31 deadline, the National Security Division of the Justice Department filed a response in opposition to the ACLU's motion. [52] On February 19, 2008, the U.S. Supreme Court, without comment, turned down an ACLU appeal, letting stand the earlier decision dismissing the case. [53]

On September 18, 2008, the Electronic Frontier Foundation (EFF) sued the NSA, President Bush, Vice President Cheney, Cheney's chief of staff David Addington, Gonzales and other government agencies and individuals who ordered or participated in the program. They sued on behalf of AT&T customers. An earlier, ongoing suit (Hepting v. AT&T) by the EFF bogged down over the recent FISA changes. [54] [55]

On January 23, 2009, the Obama administration adopted the same position as its predecessor when it urged Judge Walker to set aside a ruling in Al-Haramain Islamic Foundation et al. v. Obama, et al. [56] The Obama administration sided with the Bush administration in its legal defense of July 2008 legislation that immunized the nation's telecommunications companies from lawsuits accusing them of complicity in the program, according to Attorney General Eric Holder. [57]

On March 31, 2010, Judge Walker ruled that the program was illegal when it intercepted phone calls of Al Haramain. Declaring that the plaintiffs had been "subjected to unlawful surveillance", the judge said the government was liable for damages. [58] In 2012, the Ninth Circuit vacated the judgment against the United States and affirmed the district court's dismissal of the claim. [59]

Proposed FISA amendments

Several commentators raised the issue of whether FISA needed to be amended to address foreign intelligence needs, technology developments and advanced technical intelligence gathering. The intent was to provide programmatic approvals of surveillance of foreign terrorist communications, so that they could then legally be used as evidence for FISA warrants. Fixing Surveillance [60] Why We Listen, [61] The Eavesdropping Debate We Should be Having [62] A New Surveillance Act [63] A historical solution to the Bush spying issue, [64] Whispering Wires and Warrantless Wiretaps [65] address FISA's inadequacies in the post-9/11 context.

The Bush administration contended that amendment was unnecessary because they claimed that the President had inherent authority to approve the NSA program, and that the process of amending FISA might require disclosure of classified information that could harm national security. [19] In response, Senator Leahy said, "If you do not even attempt to persuade Congress to amend the law, you must abide by the law as written." [66] President Bush claimed that the law did not apply because the Constitution gave him "inherent authority" to act. [67] [68]

Some politicians and commentators used "difficult, if not impossible" to argue that the administration believed Congress would have rejected an amendment. In his written "Responses to Questions from Senator Specter" in which Specter specifically asked why the administration had not sought to amend FISA, [69] Gonzales wrote:

[W]e were advised by members of Congress that it would be difficult, if not impossible to pass such legislation without revealing the nature of the program and the nature of certain intelligence capabilities. That disclosure would likely have harmed our national security, and that was an unacceptable risk we were not prepared to take.

Competing legislative proposals to authorize the NSA program subject to Congressional or FISC oversight were the subject of Congressional hearings. [70] On March 16, 2006, Senators Mike DeWine, Lindsey Graham, Chuck Hagel and Olympia Snowe introduced the Terrorist Surveillance Act of 2006 (S.2455), [71] [72] that gave the President limited statutory authority to conduct electronic surveillance of suspected terrorists in the US, subject to enhanced Congressional oversight. That day Specter introduced the National Security Surveillance Act of 2006 (S.2453), [73] [74] which would amend FISA to grant retroactive amnesty [75] for warrantless surveillance conducted under presidential authority and provide FISC jurisdiction to review, authorize and oversee "electronic surveillance programs". On May 24, 2006, Specter and Feinstein introduced the Foreign Intelligence Surveillance Improvement and Enhancement Act of 2006 (S.3001) denoting FISA as the exclusive means to conduct foreign intelligence surveillance.

On September 13, 2006, the Senate Judiciary Committee voted to approve all three, mutually exclusive bills, thus, leaving it to the full Senate to resolve. [42]

On July 18, 2006, U.S. Representative Heather Wilson introduced the Electronic Surveillance Modernization Act (H.R. 5825). Wilson's bill would give the President the authority to authorize electronic surveillance of international phone calls and e-mail linked specifically to identified terrorist groups immediately following or in anticipation of an armed or terrorist attack. Surveillance beyond the initially authorized period would require a FISA warrant or a presidential certification to Congress. On September 28, 2006 the House of Representatives passed Wilson's bill and it was referred to the Senate. [41]

Each of these bills would in some form broaden the statutory authorization for electronic surveillance, while still subjecting it to some restrictions. The Specter-Feinstein bill would extend the peacetime period for obtaining retroactive warrants to seven days and implement other changes to facilitate eavesdropping while maintaining FISC oversight. The DeWine bill, the Specter bill, and the Electronic Surveillance Modernization Act (already passed by the House) would all authorize some limited forms or periods of warrantless electronic surveillance subject to additional programmatic oversight by either the FISC (Specter bill) or Congress (DeWine and Wilson bills).

FISC order

On January 18, 2007, Gonzales told the Senate Judiciary Committee,

Court orders issued last week by a Judge of the Foreign Intelligence Surveillance Court will enable the government to conduct electronic surveillance – very specifically, surveillance into or out of the United States where there is probable cause to believe that one of the communicants is a member or agent of al Qaeda or an associated terrorist organization – subject to the approval of the FISC. We believe that the court's orders will allow the necessary speed and agility the government needs to protect our Nation from the terrorist threat. [76]

The ruling by the FISC was the result of a two-year effort between the White House and the court to find a way to obtain court approval that also would "allow the necessary speed and agility" to find terrorists, Gonzales said in a letter to the top committee members. The court order on January 10 will do that, Gonzales wrote. Senior Justice department officials would not say whether the orders provided individual warrants for each wiretap or whether the court had given blanket legal approval for the entire NSA program. The ACLU said in a statement that "without more information about what the secret FISC has authorized, there is no way to determine whether the NSA's current activities are lawful". [77] Law professor Chip Pitts argued that substantial legal questions remain regarding the core NSA program as well as the related data mining program (and the use of National Security Letters), despite the government's apparently bringing the NSA program within the purview of FISA. [78]

FISCR ruling

In August 2008, the United States Foreign Intelligence Surveillance Court of Review (FISCR) affirmed the constitutionality of the Protect America Act of 2007 in a heavily redacted opinion released on January 15, 2009, only the second such public ruling since the enactment of the FISA Act. [79] [80] [81] [82] [83]

Relevant constitutional, statutory and administrative provisions

U.S. Constitution

Article I vests Congress with the sole authority "To make Rules for the Government and Regulation of the land and naval Forces" and "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." The Supreme Court has used the "necessary and proper" clause to affirm broad Congressional authority to legislate as it sees fit in the domestic arena, [84] but has limited its application in foreign affairs. In the landmark US v. Curtiss-Wright (1936) decision, Justice George Sutherland for the Court:

The ["powers of the federal government in respect of foreign or external affairs and those in respect of domestic or internal affairs"] are different, both in respect of their origin and their nature. The broad statement that the federal government can exercise no powers except those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect of our internal affairs.

Article II vests the President with power as "Commander in Chief of the Army and Navy of the United States," and requires that the President "shall take Care that the Laws be faithfully executed".

The Fourth Amendment is part of the Bill of Rights and prohibits "unreasonable" searches and seizures by the government. A search warrant must be judicially sanctioned, based on probable cause, supported by oath or affirmation (usually by a law enforcement officer), particularly describing the place to be searched and the persons or things to be seized, limited in scope (according to specific information supplied to the issuing court). It is solely a right of the people that neither the Executive nor Legislative branch can lawfully abrogate, even if acting in concert: no statute can make an unreasonable search reasonable.

The term "unreasonable" connotes the sense that a constitutional search has a rational basis, that it is not an excessive imposition upon the individual given the circumstances and is in accordance with societal norms. It relies on judges to be sufficiently independent of the authorities seeking warrants that they can render an impartial decision. Evidence obtained in an unconstitutional search is inadmissible in a criminal trial (with certain exceptions).

The Fourth Amendment explicitly allows reasonable searches, including searches without warrant in specific circumstances. Such circumstances include the persons, property and papers of individuals crossing the border of the United States and those of paroled felons prison inmates, public schools and government offices and of international mail. Although these are undertaken pursuant to a statute or an executive order, they derive their legitimacy from the Amendment, rather than these.

The Tenth Amendment explicitly states that powers neither granted to the federal government nor prohibited to the states are reserved to the states or the people. The Ninth Amendment states, "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."

The Ninth Amendment bars denial of unenumerated rights if the denial is based on the "enumeration of certain rights" in the Constitution, but does not bar denial of unenumerated rights if the denial is based on the "enumeration of certain powers" in the Constitution. [85]

The Supreme Court has historically used Article II to justify wide deference to the President in foreign affairs. [86] Two historical and recent cases define the secret wiretapping by the NSA. Curtiss-Wright:

It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations–a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution.

The extent of the President's power as Commander-in-Chief has never been fully defined, but two Supreme Court cases are considered seminal in this area: [87] [88] Youngstown Sheet and Tube Co. v. Sawyer (1952) and Curtiss-Wright.

The Supreme Court held in Katz v. United States (1967), that the monitoring and recording of private conversations within the United States constitutes a "search" for Fourth Amendment purposes, and therefore require a warrant.

The Supreme Court held in Smith v Maryland (1979) that a judicial warrant is required for the government to acquire the content of electronic communications. However, subpoenas but not warrants are required for the business records ( metadata) of their communications, data such as the numbers that an individual has phoned, when and, to a limited degree, where the phone conversation occurred.

The protection of "private conversations" has been held to apply only to conversations where the participants have manifested both a desire and a reasonable expectation that their conversation is indeed private and that no other party is privy to it. In the absence of such a reasonable expectation, the Fourth Amendment does not apply, and surveillance without warrant does not violate it. Privacy is clearly not a reasonable expectation in communications to persons in the many countries whose governments openly intercept electronic communications, and is of dubious reasonability in countries against which the United States is waging war.

Various Circuit Courts upheld warrantless surveillance when the target was a foreign agent residing abroad, [89] [90] a foreign agent residing in the US [91] [92] [93] [94] and a US citizen abroad. [95] The exception does not apply when both the target and the threat were deemed domestic. [96] The legality of targeting US persons acting as agents of a foreign power and residing in this country has not been addressed by the Supreme Court, but occurred in the case of Aldrich Ames. [97]

The law recognizes a distinction between domestic surveillance taking place within U.S. borders and foreign surveillance of non-U.S. persons either in the U.S. or abroad. [98] In United States v. Verdugo-Urquidez, the Supreme Court reaffirmed the principle that the Constitution does not extend protection to non-U.S. persons located outside of the United States, so no warrant was required to engage in even physical searches of non-U.S. citizens abroad.

In 1985 the Supreme Court established the "border search exception", which permits warrantless searches at the US border "or its functional equivalent" in United States v. Montoya De Hernandez, 473 U.S. 531, 538. The US can do so as a sovereign nation to protect its interests. Courts have explicitly included computer hard drives within the exception (United States v. Ickes, 393 F.3d 501 4th Cir. 2005), while United States v. Ramsey, explicitly included all international postal mail.

The Supreme Court has not ruled on the constitutionality of warrantless searches targeting foreign powers or their agents within the US. Multiple Circuit Court rulings uphold the constitutionality of warrantless searches or the admissibility of evidence so obtained. [99] In United States v. Bin Laden, the Second Circuit noted that "no court, prior to FISA, that was faced with the choice, imposed a warrant requirement for foreign intelligence searches undertaken within the United States." [100]

National Security Act of 1947

The National Security Act of 1947 [101] requires Presidential findings for covert acts. SEC. 503. [50 U.S.C. 413b] (a) (5) of that act states: "A finding may not authorize any action that would violate the Constitution or any statute of the United States."

Under § 501–503, codified as 50 USC § 413-§ 413b, [102] the President is required to keep Congressional intelligence committees "fully and currently" informed of U.S. intelligence activities, "consistent with . protection from unauthorized disclosure of classified information relating to sensitive intelligence sources and methods or other exceptionally sensitive matters." For covert actions, from which intelligence gathering activities are specifically excluded in § 413b(e)(1), the President is specifically permitted to limit reporting to selected Members. [103]

Foreign Intelligence Surveillance Act

The 1978 Foreign Intelligence Surveillance Act (FISA) regulates government agencies' physical searches and electronic surveillance, in cases wherein a significant purpose is to gather 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 specifies 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 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). [104]

In 2002, the United States Foreign Intelligence Surveillance Court of Review (Court of Review) met for the first time and issued an opinion (In re: Sealed Case No. 02-001). They noted that all of the Federal courts of appeal had considered the issue and concluded that constitutional power allowed the president to conduct warrantless foreign intelligence surveillance. Furthermore, based on these rulings it "took for granted such power exists" and ruled that under this presumption, "FISA could not encroach on the president's constitutional power."

18 U.S.C. § 2511(2)(f) provides in part that FISA "shall be the exclusive means by which electronic surveillance, as defined in 50 U.S.C. § 1801(f) . and the intercept of domestic [communications] may be conducted". The statute includes a criminal sanctions subpart 50 U.S.C. § 1809 granting an exception, "unless authorized by statute".

Authorization for the Use of Military Force

The Authorization for Use of Military Force was passed by Congress shortly after the 9/11 attacks. AUMF was used to justify the Patriot Act and related laws. It explicitly states in Section 2:

(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.


Section 215 of the PATRIOT act authorized the FBI to subpoena some or all business records from a business record holder using a warrant applied for in the Foreign Intelligence Surveillance Court.

Terrorist surveillance program

The legality of surveillance involving US persons and extent of this authorization is the core of this controversy which includes:

    issues concerning the separation of powers and the Fourth Amendment immunities
  • The program's effectiveness [105] and scope [106]
  • The legality of the leaking and publication of classified information and their implications for national security
  • Adequacy of FISA as a tool for fighting terrorism

Technical and operational details

Because of its highly classified status, the implementation of the TSP is not fairly known by the public. Once Mark Klein, a retired AT&T communications technician, submitted an affidavit describing technical details known to him personally in support of the 2006 Hepting v. AT&T court case. [109] [110]

Klein's January 16, 2004 statement included additional details regarding the construction of an NSA monitoring facility in Room 641A of 611 Folsom Street in San Francisco, the site of a large SBC phone building, three floors of which were occupied by AT&T. [111] [112]

According to Klein's affidavit, the NSA-equipped room used equipment built by Narus Corporation to intercept and analyze communications traffic, as well as to perform data-mining. [113]

Experts from academia and the computing industry analyzed potential security risks posed by the NSA program, based on Klein's affidavits and those of expert witness J. Scott Marcus, a designer of large-scale IP-based data networks, former CTO at GTE Internetworking and at Genuity, and former senior advisor for Internet Technology at the Federal Communications Commission. [114] They concluded that the likely architecture of the system created serious security risks, including the danger that it could be exploited by unauthorized users, criminally misused by trusted insiders or abused by government agents. [115]

David Addington – at that time legal counsel to former Vice President Dick Cheney – was reported to be the author of the controlling legal and technical documents for the program. [116] [117] [118]

Legal issues

While the dispute over the NSA program was waged on multiple fronts, the legal dispute pitted Bush and Obama administrations against opponents in Congress and elsewhere. Supporters claimed that the President's Constitutional duties as commander in chief allowed him to take all necessary steps in wartime to protect the nation and that AUMF activated those powers. Opponents countered by claiming that instead that existing statutes (predominantly FISA) circumscribed those powers, including during wartime. [119]

Formally, the question can be seen as a disagreement over whether Constitutional or statutory law should rule in this case. [120]

As the debate continued, other arguments were advanced.

Constitutional issues

The constitutional debate surrounding the program is principally about separation of powers. If no "fair reading" of FISA can satisfy the canon of avoidance, these issues must be decided at the appellate level. In such a separation of powers dispute, Congress bears burden of proof to establish its supremacy: the Executive branch enjoys the presumption of authority until an Appellate Court rules against it. [121]

Whether "proper exercise" of Congressional war powers includes authority to regulate the gathering of foreign intelligence is a historical point of contention between the Executive and Legislative branches. In other rulings [122] has been recognized as "fundamentally incident to the waging of war". [123] [21]

"Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information", [21] published by The Congressional Research Service stated:

A review of the history of intelligence collection and its regulation by Congress suggests that the two political branches have never quite achieved a meeting of the minds regarding their respective powers. Presidents have long contended that the ability to conduct surveillance for intelligence purposes is a purely executive function, and have tended to make broad assertions of authority while resisting efforts on the part of Congress or the courts to impose restrictions. Congress has asserted itself with respect to domestic surveillance, but has largely left matters involving overseas surveillance to executive self-regulation, subject to congressional oversight and willingness to provide funds.

The same report repeats the Congressional view that intelligence gathered within the U.S. and where "one party is a U.S. person" qualifies as domestic in nature and as such is within their purview to regulate, and further that Congress may "tailor the President's use of an inherent constitutional power":

  • The basis for this legislation [FISA] is the understanding – concurred in by the Attorney General – that even if the President has an "inherent" constitutional power to authorize warrantless surveillance for foreign intelligence purposes, Congress has the power to regulate the exercise of this authority by legislating a reasonable warrant procedure governing foreign intelligence surveillance

The Bush administration claimed that the administration viewed the unanimity of pre-FISA Circuit Court decisions as vindicating their argument that warrantless foreign-intelligence surveillance authority existed prior to and subsequent to FISA and that this derived its authority from the Executive's inherent Article II powers, which may not be encroached upon by statute. [124]

Even some legal experts who agreed with the outcome of ACLU v. NSA criticized the opinion's reasoning. [125] Glenn Greenwald argued that the perceived flaws in the opinion in fact reflect the Department of Justice's refusal to argue the legal merits of the program (they focused solely on standing and state secrets grounds). [126]

FISA practicality

FISA grants FISC the exclusive power to authorize surveillance of US persons as part of foreign intelligence gathering and makes no separate provision for surveillance in wartime. The interpretation of FISA's exclusivity clause is central because both sides agree that the NSA program operated outside FISA. If FISA is the controlling authority, the program is illegal. [127]

The "no constitutional issue" critique is that Congress has the authority to legislate in this area under Article I and the Fourth Amendment, [128] while the "constitutional conflict" critique [129] claims that the delineation between Congressional and Executive authority in this area is unclear, [130] but that FISA's exclusivity clause shows that Congress had established a role for itself in this arena.

The Bush administration argued both that the President had the necessary power based solely on the Constitution and that conforming to FISA was not practical given the circumstances. Assistant Attorney General for Legislative Affairs, William Moschella, wrote:

As explained above, the President determined that it was necessary following September 11 to create an early warning detection system. FISA could not have provided the speed and agility required for the early warning detection system. In addition, any legislative change, other than the AUMF, that the President might have sought specifically to create such an early warning system would have been public and would have tipped off our enemies concerning our intelligence limitations and capabilities.

FBI Special Agent Coleen Rowley, in her capacity as legal counsel to the Minneapolis Field Office [131] recounted how FISA procedural hurdles had hampered the FBI's investigation of Zacarias Moussaoui (the so-called "20th hijacker") prior to the 9/11 attacks. Among the factors she cited were the complexity of the application, the amount of detailed information required, confusion by field operatives about the standard of probable cause required by the FISC and the strength of the required link to a foreign power. At his appearance before the Senate Judiciary Committee in June 2002, FBI Director Robert Mueller responded to questions about the Rowley allegations, testifying that unlike normal criminal procedures, FISA warrant applications are "complex and detailed", requiring the intervention of FBI Headquarters (FBIHQ) personnel trained in a specialized procedure (the "Woods" procedure) to ensure accuracy. [132]

The Supreme Court made no ruling on this question. However, on June 29, 2006, in Hamdan, the Supreme Court rejected an analogous argument. Writing for the majority, Justice John Paul Stevens, while ruling that "the AUMF activated the President's war powers, and that those powers include the authority to convene military commissions in appropriate circumstances" (citations omitted), held that nothing in the AUMF language expanded or altered the Uniform Code of Military Justice (which governs military commissions.) Stevens distinguished Hamdan from Hamdi (in which AUMF language was found to override the explicit language regarding detention in 18 U.S.C. § 4001(a)) in that Hamdan would require a "Repeal by implication" of the UCMJ.

Authorizing statute

The Bush administration held that AUMF enables warrantless surveillance because it is an authorizing statute.

An Obama Department of Justice whitepaper interpreted FISA's "except as authorized by statute" clause to mean that Congress allowed for future legislative statute(s) to provide exceptions to the FISA warrant requirements [133] and that the AUMF was such a statute. They further claimed that AUMF implicitly provided executive authority to authorize warrantless surveillance.

This argument is based on AUMF language, specifically, the acknowledgment of the President's Constitutional authority contained in the preamble:

Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States .

and the language in the resolution

[Be it resolved] [t]hat the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

The Obama administration further claimed that Title II of the USA PATRIOT Act entitled Enhanced Surveillance Procedures also allowed the program, [134] Obama stated that Americans' civil liberties were protected and that purely domestic wiretapping was conducted only pursuant to warrants. [135]

Because FISA authorizes the President to bypass the FISC only during the first 15 days of a war declared by Congress, the argument claimed the AUMF implicitly gave the President the necessary power (as would any Congressional declaration of war). However, as a declaration of war encompasses all military actions so declared, including any otherwise constrained by Congress, the administration held that FISA set a presumptive minimum, which might be extended (explicitly or implicitly) by a declaration.

Corporate confidentiality analysis

Corporate secrecy is also an issue. In a letter to the EFF, AT&T objected to the filing of the documents in any manner, saying that they contain sensitive trade secrets and could be "used to 'hack' into the AT&T network, compromising its integrity". [136] However, Chief Judge Walker stated, during the September 12, 2008 hearing in the EFF class-action lawsuit, that the Klein evidence could be presented in court, effectively ruling that AT&T's trade secret and security claims were unfounded.

Duty to notify Congress

The Bush administration contended that with regard to the NSA program, it had fulfilled its notification obligations by briefing key members of Congress (thirteen individuals between the 107th and 109th Congressional sessions) more than a dozen times, [ citation needed ] but they were forbidden from sharing that information with other members or staff. [ citation needed ]

The CRS report asserted that the specific statutory notification procedure for covert action did not apply to the NSA program. It is not clear whether a restricted notification procedure intended to protect sources and methods was expressly prohibited. Additionally, the sources and methods exception requires a factual determination as to whether it should apply to disclosure of the program itself or only to specific aspects.

Peter J. Wallison, former White House Counsel to President Ronald Reagan stated, "It is true, of course, that a president's failure to report to Congress when he is required to do so by law is a serious matter, but in reality the reporting requirement was a technicality that a President could not be expected to know about." [137]

War Powers Resolution

The majority of legal arguments supporting the program were based on the War Powers Resolution. The War Powers Resolution has been questioned since its creation, and its application to the NSA program was questioned.

No declaration of war explicitly applied to US citizens. Under the War Powers Resolution the only option to include them was to enact an encompassing authorization of the use of military force. The AUMF did not explicitly do so. Under AUMF, "nations, organizations or persons" must be identified as having planned, authorized, committed, aided or harbored the (9/11) attackers. Military force is thereby limited to those parties. Since no US citizens were alleged to be involved in the 9/11 attacks, and since AUMF strictly states that war-time enemies are those who were involved in 9/11, including US citizens in general exceeds these provisions.

Opinions that actions stemming from the Patriot Act are constitutional follow from the AUMF. Since AUMF wartime powers do not explicitly apply to US citizens in general, they are exempted from its provision as a function of Ninth Amendment unenumerated rights. Thus Patriot Act provisions that are unconstitutionally (violating first, fourth and other amendments) applied to US citizens, are not rescued by the AUMF.

Other arguments

Philip Heymann claimed Bush had misstated the In re: Sealed Case No. 02-001 ruling that supported Congressional regulation of surveillance. Heymann said, "The bottom line is, I know of no electronic surveillance for intelligence purposes since the Foreign Intelligence Surveillance Act was passed that was not done under the . statute." [138]

Cole, Epstein, Heynmann, Beth Nolan, Curtis Bradley, Geoffrey Stone, Harold Koh, Kathleen Sullivan, Laurence Tribe, Martin Lederman, Ronald Dworkin, Walter Dellinger, William Sessions and William Van Alstyne wrote, "the Justice Department's defense of what it concedes was secret and warrantless electronic surveillance of persons within the United States fails to identify any plausible legal authority for such surveillance." [139] They summarized:

If the administration felt that FISA was insufficient, the proper course was to seek legislative amendment, as it did with other aspects of FISA in the Patriot Act, and as Congress expressly contemplated when it enacted the wartime wiretap provision in FISA. One of the crucial features of a constitutional democracy is that it is always open to the President—or anyone else—to seek to change the law. But it is also beyond dispute that, in such a democracy, the President cannot simply violate criminal laws behind closed doors because he deems them obsolete or impracticable.

Law school dean Robert Reinstein asserted that the warrantless domestic spying program is [140] [141]

a pretty straightforward case where the president is acting illegally. . When Congress speaks on questions that are domestic in nature, I really can't think of a situation where the president has successfully asserted a constitutional power to supersede that. . This is domestic surveillance over American citizens for whom there is no evidence or proof that they are involved in any illegal activity, and it is in contravention of a statute of Congress specifically designed to prevent this.

Law professor Robert M. Bloom and William J. Dunn, a former Defense Department intelligence analyst, claimed: [142]

President Bush argues that the surveillance program passes constitutional inquiry based upon his constitutionally delegated war and foreign policy powers, as well as from the congressional joint resolution passed following the September 11, 2001 terrorist attacks. These arguments fail to supersede the explicit and exhaustive statutory framework provided by Congress and amended repeatedly since 2001 for judicial approval and authorization of electronic surveillance. The specific regulation by Congress based upon war powers shared concurrently with the President provides a constitutional requirement that cannot be bypassed or ignored by the President.

Law professor Jordan Paust argued: [143]

any so-called inherent presidential authority to spy on Americans at home (perhaps of the kind denounced in Youngstown (1952) and which no strict constructionist should pretend to recognize), has been clearly limited in the FISA in 18 U.S.C. § 2511(2)(f) and 50 U.S.C. § 1809(a)(1), as supplemented by the criminal provisions in 18 U.S.C. § 2511(1).

Law Dean Harold Koh, Suzanne Spaulding and John Dean contended that FISA was controlling, [144] (in seeming disagreement with the FISC of Review finding) and that the President's admissions constituted sufficient evidence of a violation of the Fourth Amendment, without requiring further factual evidence.

Law professor John C. Eastman compared the CRS and DOJ reports and concluded instead that under the Constitution and ratified by both historical and Supreme Court precedent, "the President clearly has the authority to conduct surveillance of enemy communications in time of war and of the communications to and from those he reasonably believes are affiliated with our enemies. Moreover, it should go without saying that such activities are a fundamental incident of war." [145]

Law professor Orin Kerr argued that the part of In re: Sealed Case No. 02-001 that dealt with FISA (rather than the Fourth Amendment) was nonbinding obiter dicta and that the argument did not restrict Congress's power to regulate the executive in general. [146] Separately Kerr argued for wireless surveillance based on the fact that the border search exception permits searches at the border "or its functional equivalent." (United States v. Montoya De Hernandez, 473 U.S. 531, 538 (1985)). As a sovereign nation the US can inspect goods crossing the border. The ruling interpreted the Fourth Amendment to permit such searches. Courts have applied the border search exception to computers and hard drives, e.g., United States v. Ickes, 393 F.3d 501 (4th Cir. 2005) Case law does not treat data differently than physical objects. Case law applies the exception to international airports and international mail (United States v. Ramsey). Case law is phrased broadly. The exception could analogously apply to monitoring an ISP or telephony provider. [147] [148]

U.S. District Judge Dee Benson, who served on the FISC, stated that he was unclear on why the FISC's emergency authority would not meet the administration's stated "need to move quickly". [149] [150] The court was also concerned about "whether the administration had misled their court about its sources of information on possible terrorism suspects . [as this] could taint the integrity of the court's work." [151]

Judge Richard Posner opined that FISA "retains value as a framework for monitoring the communications of known terrorists, but it is hopeless as a framework for detecting terrorists. [FISA] requires that surveillance be conducted pursuant to warrants based on probable cause to believe that the target of surveillance is a terrorist, when the desperate need is to find out who is a terrorist." [152]

Related issues

Earlier warrantless surveillance

The Bush administration compared the NSA warrantless surveillance program with historical wartime warrantless searches in the US, going back to the time of the nation's founding. [5]

Critics pointed out that the first warrantless surveillance occurred before the adoption of the U.S. Constitution, and the other historical precedents cited by the administration were before FISA's passage and therefore did not directly contravene federal law. [129] Earlier electronic surveillance by the federal government such as Project SHAMROCK, led to reform legislation in the 1970s. [153] Advancing technology presented novel questions as early as 1985. [154]

Executive orders by previous administrations including Presidents Clinton and Carter authorized their Attorneys General to exercise authority with respect to both options under FISA. [155] [156] Clinton's executive order authorized his Attorney General "[pursuant] to section 302(a)(1)" to conduct physical searches without court order "if the Attorney General makes the certifications required by that section".

Unitary Executive theory

The Unitary Executive theory as interpreted by John Yoo et al., supported the Bush administration's Constitutional argument. He argued that the President had the "inherent authority to conduct warrantless searches to obtain foreign intelligence". [157] [158]

The United States Court of Appeals for the District of Columbia ruled that the President's authority as commander-in-chief extends to the "independent authority to repel aggressive acts . without specific congressional authorization" and without court review of the "level of force selected". [159] Whether such declarations applying to foreign intelligence are or must be in compliance with FISA has been examined by few courts.

Classified information

No single law criminalizes the leaking of classified information. Statutes prohibit leaking certain types of classified information under certain circumstances. One such law is 18 U.S.C. § 798 it was tacked on to the Espionage Act of 1917. It is known as the 'SIGINT' statute, meaning signals intelligence. This statute says:

. whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, [including by publication,] classified information [relating to] the communication intelligence activities of the United States or any foreign government, [shall be fined or imprisoned for up to ten years.]

This statute is not limited in application to only federal government employees. However, the Code of Federal Regulations suggests the statute may apply primarily to the "[c]ommunication of classified information by Government officer or employee". 50 USCS § 783 (2005).

A statutory procedure [160] allows a "whistleblower" in the intelligence community to report concerns with the propriety of a secret program. The Intelligence Community Whistleblower Protection Act of 1998, Pub. L. 105–272, Title VII, 112 Stat. 2413 (1998) essentially provides for disclosure to the agency Inspector General, and if the result of that is unsatisfactory, appeal to the Congressional Intelligence Committees. Former NSA official Russ Tice asked to testify under the terms of the Intelligence Community Whistleblower Protection Act, in order to provide information to these committees about "highly classified Special Access Programs, or SAPs, that were improperly carried out by both the NSA and the Defense Intelligence Agency". [161]

Executive Order 13292, which sets up the U.S. security classification system, provides (Sec 1.7) that "[i]n no case shall information be classified in order to conceal violations of law".

Given doubts about the legality of the overall program, the classification of its existence may not have been valid under E.O. 13292. [ citation needed ]

It is unlikely that a media outlet could be held liable for publishing classified information under established Supreme Court precedent. In Bartnicki v. Vopper, 532 U.S. 514, [162] the Supreme Court held that the First Amendment precluded liability for a media defendant for publication of illegally obtained communications that the media defendant itself did nothing illegal to obtain, if the topic involves a public controversy. Due to the suit's procedural position, the Court accepted that intercepting information that was ultimately broadcast by the defendant was initially illegal (in violation of ECPA), but nonetheless gave the radio station a pass because it did nothing itself illegal to obtain the information.

Nor could the government have prevented the publication of the classified information by obtaining an injunction. In the Pentagon Papers case, (New York Times Co. v. U.S., 403 U.S. 713 (1971)), [163] the Supreme Court held that injunctions against the publication of classified information (United States-Vietnam Relations, 1945–1967: A Study Prepared by The Department of Defense – a 47-volume, 7,000-page, top-secret United States Department of Defense history of the United States' involvement in the Vietnam War) were unconstitutional prior restraints and that the government had not met the heavy burden of proof required for prior restraint.

The 1917 Espionage Act, aside from the SIGINT provision discussed above, only criminalizes 'national defense' information, not 'classified' information. Although the Justice Department as a matter of law sees no exemption for the press, as a matter of fact it has refrained from prosecuting:

A prosecution under the espionage laws of an actual member of the press for publishing classified information leaked to it by a government source would raise legitimate and serious issues and would not be undertaken lightly, indeed, the fact that there has never been such a prosecution speaks for itself.

On the other hand, Sean McGahan of Northeastern University stated,

There's a tone of gleeful relish in the way they talk about dragging reporters before grand juries, their appetite for withholding information, and the hints that reporters who look too hard into the public's business risk being branded traitors. [164]

Responses and analyses

Administration response to press coverage

On December 17, 2005, President Bush addressed the growing controversy in his weekly radio broadcast. [165] He stated that he was using his authority as President, as Commander in Chief and such authority as the Congress had given him, to intercept international communications of "people with known links to al Qaeda and related terrorist organizations". He added that before intercepting any communications, "the government must have information that establishes a clear link to these terrorist networks." He speculated that had the right communications been intercepted, perhaps the 9/11 attacks could have been prevented. He said the NSA program was re-authorized every 45 days, having at that time been reauthorized "more than 30 times" it was reviewed by DOJ and NSA lawyers "including NSA's general counsel and inspector general", and Congress leaders had been briefed "more than a dozen times". [166]

In a speech in Buffalo, New York on April 20, 2004, he said that:

Secondly, there are such things as roving wiretaps. Now, by the way, any time you hear the United States government talking about wiretap, it requires – a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so. It's important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution. [167]

And again, during a speech at Kansas State University on January 23, 2006, President Bush mentioned the program, and added that it was "what I would call a terrorist surveillance program", intended to "best . use information to protect the American people", [168] and that:

What I'm talking about is the intercept of certain communications emanating between somebody inside the United States and outside the United States and one of the numbers would be reasonably suspected to be an al Qaeda link or affiliate. In other words, we have ways to determine whether or not someone can be an al Qaeda affiliate or al Qaeda. And if they're making a phone call in the United States, it seems like to me we want to know why. This is a – I repeat to you, even though you hear words, "domestic spying," these are not phone calls within the United States. It's a phone call of an al Qaeda, known al Qaeda suspect, making a phone call into the United States . I told you it's a different kind of war with a different kind of enemy. If they're making phone calls into the United States, we need to know why – to protect you.

During a speech [169] in New York on January 19, 2006 Vice President Cheney commented on the controversy, stating that a "vital requirement in the war on terror is that we use whatever means are appropriate to try to find out the intentions of the enemy," that complacency towards further attack was dangerous, and that the lack of another major attack since 2001 was due to "round the clock efforts" and "decisive policies", and "more than luck." He stated:

[B]ecause you frequently hear this called a 'domestic surveillance program.' It is not. We are talking about international communications, one end of which we have reason to believe is related to al Qaeda or to terrorist networks affiliated with al Qaeda.. a wartime measure, limited in scope to surveillance associated with terrorists, and conducted in a way that safeguards the civil liberties of our people.

In a press conference on December 19 held by both Attorney General Gonzales and General Michael Hayden, the Principal Deputy Director for National Intelligence, General Hayden claimed, "This program has been successful in detecting and preventing attacks inside the United States." He stated that even an emergency authorization under FISA required marshaling arguments and "looping paperwork around". Hayden implied that decisions on whom to intercept under the wiretapping program were being made on the spot by a shift supervisor and another person, but refused to discuss details of the specific requirements for speed. [19]

Beginning in mid-January 2006 public discussion increased on the legality of the terrorist surveillance program. [170]

DOJ sent a 42-page white paper to Congress on January 19, 2006 stating the grounds upon which it was felt the NSA program was legal, which restated and elaborated on reasoning Gonzales used at the December press conference. [171] Gonzales spoke again on January 24, claiming that Congress had given the President the authority to order surveillance without going through the courts, and that normal procedures to order surveillance were too slow and cumbersome. [172]

General Hayden stressed the NSA's respect for the Fourth Amendment, stating at the National Press Club on January 23, 2006, "Had this program been in effect prior to 9/11, it is my professional judgment that we would have detected some of the 9/11 al Qaeda operatives in the United States, and we would have identified them as such." [173]

In a speech on January 25, 2006, President Bush said, "I have the authority, both from the Constitution and the Congress, to undertake this vital program," [174] telling the House Republican Caucus at their February 10 conference in Maryland that "I wake up every morning thinking about a future attack, and therefore, a lot of my thinking, and a lot of the decisions I make are based upon the attack that hurt us." [175]

President Bush reacted to a May 10 domestic call records article by restating his position, that it is "not mining or trolling through the personal lives of millions of innocent Americans". [176]

Congressional response

Three days after news broke about the NSA program, a bipartisan group of Senators—Democrats Dianne Feinstein, Carl Levin, Ron Wyden and Republicans Chuck Hagel and Olympia Snowe, wrote to the Judiciary and Intelligence Committee chairs and ranking members requesting the two committees to "seek to answer the factual and legal questions" about the program.

On January 20, 2006, in response to the administration's asserted claim to base the NSA program in part on the AUMF, Senators Leahy and Kennedy introduced Senate Resolution 350 that purported to express a "sense of the Senate" that the AUMF "does not authorize warrantless domestic surveillance of United States citizens". [38] [39] It was not reported out of committee. [40]

In introducing their resolution to committee, [177] they quoted Supreme Court Justice Sandra Day O'Connor's opinion that even war "is not a blank check for the President when it comes to the rights of the Nation's citizens".

Additionally, they asserted that the DOJ legal justification was a "manipulation of the law" similar to other "overreaching" and "twisted interpretations" in recent times. Leahy and Kennedy also asserted that Gonzales had "admitted" at a press conference on December 19, 2005, that the Administration did not seek to amend FISA to authorize the NSA spying program because it was advised that "it was not something we could likely get." (However, as noted below under "Proposed Amendments to FISA", Gonzales made clear that what he actually said was that such an amendment was "not something [they] could likely get" without disclosing the nature of the program and operational limitations and that it was believed that such disclosure would be damaging to national security.)

Leahy and Kennedy asserted that the procedures adopted for the NSA program, specifically the 45-day reapproval cycle was "not good enough" because the review group were executive branch appointees. Finally, they concluded that Congressional and Judicial oversight were fundamental and should not be unilaterally discarded.

In February 2008, the Bush administration backed a new version of FISA that would grant telecom companies retroactive immunity from lawsuits stemming from surveillance. On March 14, the House passed a bill that did not grant such immunity.

Anonymity networks

Edward Snowden copied and leaked thousands of classified NSA documents to journalists. The information revealed the access of some federal agencies to the public's online identity and led to wider use anonymizing technologies. In late 2013, soon after Snowden's leaks, it was loosely calculated that encrypted browsing software, such as Tor, I2P and Freenet had "combined to more than double in size . and approximately 1,050,000 total machines 'legitimately' use the networks on a daily basis, amounting to an anonymous population that is about 0.011 percent of all machines currently connected to the Internet." [178] Given that these tools are designed to protect the identity and privacy of their users, an exact calculation of the growth of the anonymous population cannot be accurately rendered, but all estimates predict rapid growth.

These networks were accused of supporting illegal activity. They can be used for the illicit trade of drugs, guns and pornography. However, Tor executive director Roger Dingledine claimed that the "hidden services" represent only 2 percent of total traffic on Tor's network. [179] This fact suggests that the large majority of those who use it do so in order to protect their normal browsing activity, an effort to protect their personal values of privacy rather than to participate in illegal activity.

Trade-off between security and liberty

Polls analyzed the trade-off between security and liberty. A June 2015 poll conducted by Gallup asked participants if the US should take all the necessary steps to prevent terrorist attacks even if civil liberties are violated. 30% of respondents agreed: 65% instead said take steps, but do not violate civil liberties. [180]

In a 2004 Pew poll, 60% of respondents rejected the idea of sacrificing privacy and freedom in the name of security. [181] By 2014 a similar Pew poll found that 74% of respondents preferred privacy, while 22% said the opposite. Pew noted that post 9/11 surveys revealed that in the periods during which prominent incidents that related to privacy and security first came up, the majority of respondents favored an ideology of "security first", while maintaining that a dramatic reduction in civil liberties should be avoided. Events often caused Americans to back allow government to investigate suspected terrorists more effectively, even if those steps might infringe on the privacy of ordinary citizens. The majority of respondents reject steps that translate into extreme intrusion into their lives. [182]

Various administrations claimed that reducing privacy protections reduces obstacles that anti-terrorism agencies face attempting to foil terrorist attacks and that fewer privacy protections makes it more difficult for terrorist groups to operate. [183]

See also

  • Clapper v. Amnesty International – 2013 Supreme Court decision
  • General Michael Hayden
  • Hepting v. AT&T – a CIA project to intercept mail destined for the Soviet Union and China that operated from 1952 until 1973.
  • In the First Circle, Alexander Solzhenytsin – the program that replaced the warrantless surveillance program – details of the program itself


  1. ^ Sanger, David E. O'Neil, John (January 23, 2006). "White House Begins New Effort to Defend Surveillance Program". The New York Times.
  2. ^ ab
  3. "Gonzales_Letter" (PDF) . The New York Times. Archived (PDF) from the original on January 20, 2007 . Retrieved January 18, 2007 .
  4. ^
  5. Savage, Charlie Risen, James (March 31, 2010). "Federal Judge Finds N.S.A. Wiretaps Were Illegal". The New York Times. Archived from the original on March 19, 2017 . Retrieved February 22, 2017 .
  6. ^
  7. Eric Lichtblau and James Risen (April 15, 2009). "Officials Say U.S. Wiretaps Exceeded Law". The New York Times. Archived from the original on September 2, 2012 . Retrieved September 5, 2012 .
  8. ^ ab
  9. "Prepared Statement of Hon. Alberto R. Gonzales, Attorney General of the United States" (Press release). US Department of Justice. February 6, 2006.
  10. ^
  11. Banks, Christopher P. (January 1, 2010). "Security and Freedom After September 11". Public Integrity. 13 (1): 5–24. doi:10.2753/pin1099-9922130101. ISSN1099-9922. S2CID141765924.
  12. ^
  13. James Risen & Eric Lichtblau (December 21, 2005). "Spying Program Snared U.S. Calls". The New York Times . Retrieved May 28, 2006 .
  14. ^
  15. "AT&T's Role in Dragnet Surveillance of Millions of Its Customers" (PDF) . EFF.
  16. ^
  17. "US CODE: Title 50, section 1809. Criminal sanctions".
  18. ^
  19. "US CODE: Title 18, section 2511. Interception and disclosure of wire, oral, or electronic communications prohibited".
  20. ^
  21. James Risen & Eric Lichtblau (December 16, 2005). "Bush Lets U.S. Spy on Callers Without Courts". The New York Times . Retrieved December 29, 2012 .
  22. ^
  23. "Bush Lets U.S. Spy on Callers Without Courts". NYT's Risen & Lichtblau's December 16, 2005 Bush Lets U.S. Spy on Callers Without Courts. Archived from the original on February 6, 2006 . Retrieved February 18, 2006 . via
  24. ^
  25. Calame, Byron (August 13, 2006). "Eavesdropping and the Election: An Answer on the Question of Timing". The New York Times . Retrieved May 20, 2010 .
  26. ^
  27. Lichtblau, Eric (March 26, 2008). "The Education of a 9/11 Reporter: The inside drama behind the Times' warrantless wiretapping story". Slate. Archived from the original on December 5, 2011 . Retrieved March 31, 2008 .
  28. ^
  29. Grieve, Tim (August 14, 2006). "What the Times knew, and when it knew it". Salon . Retrieved June 22, 2008 .
  30. ^
  31. Isikoff, Michael (December 13, 2008). "The Fed Who Blew the Whistle". Newsweek . Retrieved December 13, 2008 .
  32. ^
  33. Scott Shane (June 11, 2010). "Obama Takes a Hard Line Against Leaks to Press". The New York Times. Archived from the original on February 15, 2017 . Retrieved February 22, 2017 .
  34. ^
  35. Greenwald, Glenn (February 19, 2006). "NSA legal arguments". Archived from the original on March 7, 2013 . Retrieved February 23, 2013 .
  36. ^ abc
  37. "Press Briefing by Attorney General Alberto Gonzales and General Michael Hayden, Principal Deputy Director for National Intelligence" (Press release). The White House. December 19, 2005. Archived from the original on January 28, 2018 . Retrieved September 5, 2017 .
  38. ^
  39. "Debate on warrantless wiretapping legality". Archived from the original on January 29, 2008 . Retrieved January 23, 2007 .
  40. ^ abc
  41. "Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information" (PDF) (Press release). Congressional Research Service. January 5, 2006.
  42. ^
  43. Eggen, Dan (January 19, 2006). "Congressional Agency Questions Legality of Wiretaps". The Washington Post. pp. A05. Archived from the original on February 22, 2018 . Retrieved September 5, 2017 .
  44. ^
  45. Holtzman, Elizabeth (January 11, 2006). "The Impeachment of George W. Bush". The Nation. Archived from the original on March 25, 2013 . Retrieved January 12, 2006 .
  46. ^
  47. "FindLaw" (PDF) . Statutory Procedures Under Which Congress Is To Be Informed of U.S. Intelligence Activities, Including Covert Actions. Archived (PDF) from the original on January 30, 2006 . Retrieved January 1, 2006 .
  48. ^
  49. Cumming, Alfred (January 18, 2006). "Statutory Procedures Under Which Congress Is To Be Informed of U.S. Intelligence Activities, Including Covert Actions" (PDF) . Federation of American Scientists. Archived (PDF) from the original on July 18, 2015 . Retrieved April 4, 2015 .
  50. ^ "If the NSA surveillance program were to consider an intelligence collection program, limiting congressional notification of the NSA program to the Gang of Eight, which some Members who were briefed about the program contend, would appear to be inconsistent with the law, which requires that the 'congressional intelligence committees be kept fully and currently informed of all intelligence activities', other than those involving covert actions." – excerpted from the Congressional Research Service publication, "Statutory Procedures Under Which Congress Is To Be Informed of U.S. Intelligence Activities, Including Covert Actions"
  51. ^ "The executive branch may assert that the mere discussion of the NSA program generally could expose certain intelligence sources and methods to disclosure, thus making it necessary to limit the number of those knowledgeable of the program in order to reduce the risk of such disclosure occurring." – excerpted from the Congressional Research Service publication, "Statutory Procedures Under Which Congress Is To Be Informed of U.S. Intelligence Activities, Including Covert Actions"
  52. ^
  53. Liptak, Adam (August 16, 2007). "U.S. Defends Surveillance to 3 Skeptical Judges". The New York Times. Archived from the original on January 16, 2018 . Retrieved February 22, 2017 .
  54. ^
  55. Egelko, Bob (August 16, 2007). "Classified evidence debated: Court likely to allow suit against AT&T, reject wiretap case". San Francisco Chronicle.
  56. ^ ab
  57. Ryan Singel (August 17, 2006). "Wired News: Judge Halts NSA Snooping". Wired . Retrieved February 23, 2013 .
  58. ^RulingArchived August 20, 2006, at the Wayback Machine The quote is from page 33.
  59. ^
  60. "For Publication United States Court of Appeals for the Ninth Circuit" (PDF) . United States Court of Appeals for the Ninth Circuit. November 16, 2007. Archived (PDF) from the original on May 14, 2009 . Retrieved December 21, 2009 .
  61. ^
  62. Lichtblau, Eric (November 17, 2007). "Court Bars Secret Papers in Eavesdropping Case". The New York Times. Archived from the original on March 15, 2018 . Retrieved February 22, 2017 .
  63. ^
  64. Roberts, Chris (August 22, 2007). "Transcript: Debate on the foreign intelligence surveillance act". El Paso Times. Archived from the original on July 31, 2012.
  65. ^
  66. Nakashima, Ellen (September 1, 2007). "AT&T Plaintiffs Cite McConnell Remarks". The Washington Post. Admission of Telecom Firms' Involvement in Warrantless Wiretaps Sought as Evidence.
  67. ^
  68. Ellen Nakashima & Dan Eggen (October 13, 2007). "Former CEO Says U.S. Punished Phone Firm". The Washington Post. Qwest Feared NSA Plan Was Illegal, Filing Says.
  69. ^
  70. Shane, Scott (October 14, 2007). "Former Phone Chief Says Spy Agency Sought Surveillance Help Before 9/11". The New York Times . Retrieved October 14, 2007 .
  71. ^ ab
  72. "Proposed Resolution" (PDF) . Authorization for Use of Military Force (Public Law 107-40) does not authorize warrantless domestic surveillance of United States citizens. Archived from the original (PDF) on January 26, 2006 . Retrieved January 20, 2006 .
  73. ^ ab
  74. "Leahy on Friday Introduces Resolution Underscoring That Congress Did Not Authorize Illegal Spying on Americans" (Press release). U.S. Senator Patrick Leahy. January 20, 2006. Archived from the original on January 25, 2006.
  75. ^ ab
  76. "S.RES.350 – THOMAS (Library of Congress)". . Retrieved February 23, 2013 .
  77. ^ abHouse Passes Wilson FISA Bill [dead link] , Press Release, September 29, 2006.
  78. ^ abConflicting Bills on Warrantless Surveillance Advance in SenateArchived April 14, 2013, at the Wayback Machine, Secrecy News, September 14, 2006
  79. ^
  80. "Congressional Record: January 17, 2007, Congressional Record: January 17, 2007". Federation of American Scientists. Archived from the original on April 14, 2013 . Retrieved February 23, 2013 .
  81. ^
  82. "Findlaw: PDF archive of judicial ruling" (PDF) . Archived (PDF) from the original on January 12, 2013 . Retrieved February 23, 2013 .
  83. ^
  84. Liptak, Adam Lichtblau, Eric (August 18, 2006). "Judge Finds Wiretap Actions Violate the Law" – via
  85. ^
  86. "US District Judge Who Presided Over Government Wiretapping Case May Have Had Conflict of Interest". Judicial Watch. August 21, 2006. Archived from the original on March 27, 2008 . Retrieved February 20, 2008 .
  87. ^
  88. Goldstein, Amy (July 7, 2007). "Lawsuit Against Wiretaps Rejected Case's Plaintiffs Have No Standing, Appeals Court Rules". The Washington Post . Retrieved February 20, 2008 .
  89. ^
  90. "ca6cin4opinionsOPINS.TXT7a0253p-06.txt" (PDF) . Archived (PDF) from the original on January 15, 2013 . Retrieved February 23, 2013 .
  91. ^
  92. "IN RE MOTION FOR RELEASE OF COURT RECORDS Docket Number MISC 07-01" (PDF) . United States Foreign Intelligence Surveillance Court. August 17, 2007. Archived (PDF) from the original on October 7, 2012 . Retrieved December 4, 2016 .
  93. ^
  94. Lichtblau, Eric (August 18, 2007). "Court Weighs Making Public Rulings on U.S. Wiretapping". The New York Times. Archived from the original on January 16, 2018 . Retrieved February 22, 2017 .
  95. ^
  96. Eggen, Dan (August 18, 2007). "Secret Court Asks For White House View on Inquiry". The Washington Post. ACLU Seeking Rulings Issued on Warrantless Wiretapping. Archived from the original on March 15, 2018 . Retrieved September 5, 2017 .
  97. ^
  98. "OPPOSITION TO THE AMERICAN CIVIL LIBERTIES UNION'S MOTION FOR RELEASE OF COURT RECORDS Docket Number: MISC. 07-01" (PDF) . United States Department of Justice National Security Division. August 31, 2007. Archived (PDF) from the original on October 7, 2012 . Retrieved December 4, 2016 .
  99. ^
  100. "Court Rejects ACLU Challenge to Wiretaps". Associated Press. February 19, 2008. Archived from the original on March 4, 2008 . Retrieved February 20, 2008 .
  101. ^
  102. "Jewel v National Security Agency" (PDF) . September 18, 2018. Archived (PDF) from the original on May 28, 2018 . Retrieved March 1, 2018 .
  103. ^
  104. "EFF sues Dubya over warrantless surveillance". Archived from the original on August 10, 2017 . Retrieved August 10, 2017 .
  105. ^
  106. Kravets, David (January 22, 2009). "Obama Sides With Bush in Spy Case". Wired. Archived from the original on April 25, 2009 . Retrieved February 23, 2013 .
  107. ^
  108. Kravets, David (September 11, 2001). "Obama to Defend Telco Spy Immunity". Wired. Archived from the original on March 2, 2009 . Retrieved March 18, 2014 .
  109. ^
  110. Savage, Charlie Risen, James (March 31, 2010). "Federal Judge Finds N.S.A. Wiretaps Were Illegal". The New York Times. Archived from the original on March 19, 2017 . Retrieved February 22, 2017 .
  111. ^
  112. Civil Actions Against the United States, Its Agencies, Officers and Employees. Westlaw, Thomson Reuters. 2013. p. § 1:5.
  113. ^
  114. K.A. Taipale, James Jay Carafano (January 25, 2006). "Fixing surveillance". The Washington Times. Archived from the original on December 2, 2006.
  115. ^
  116. Bobbitt, Phillip (January 30, 2006). "Why We Listen". The New York Times. Archived from the original on January 14, 2016 . Retrieved February 22, 2017 .
  117. ^
  118. Bryan Cunnigham, Daniel B. Prieto (February 5, 2006). "The Eavesdropping Debate We Should be Having". The Denver Post. Archived from the original on September 1, 2006.
  119. ^
  120. Posner, Richard A. (February 15, 2006). "A New Surveillance Act". The Wall Street Journal. Archived from the original on August 9, 2017 . Retrieved August 9, 2017 .
  121. ^A historical solution to the Bush spying issue [permanent dead link] John Schmidt, The Chicago Tribune February 12, 2006.
  122. ^
  123. Taipale, K. A. (June 2006). "Whispering Wires and Warrantless Wiretaps: Data Mining and Foreign Intelligence Surveillance". N.Y.U. Rev. L. & Security, No. 8. SSRN889120 . Cite journal requires |journal= (help)
  124. ^
  125. "Statement of The Honorable Patrick Leahy" (Press release). U.S. Senate Committee on the Judiciary. February 6, 2006. Archived from the original on February 10, 2006 . Retrieved February 8, 2006 .
  126. ^
  127. "NSA Spying on Americans Is Illegal | American Civil Liberties Union". December 29, 2005. Archived from the original on October 19, 2009 . Retrieved February 23, 2013 .
  128. ^
  129. "Democrats Continue to Attack Terrorist Surveillance Program". November 29, 2012. Archived from the original on June 10, 2013 . Retrieved February 23, 2013 .
  130. ^"Responses to Questions from Senator Specter". Archived November 2, 2006, at the Wayback Machine, February 2005.
  131. ^
  132. "FIS linking to 2006 FISA Congressional Hearings material". Archived from the original on November 2, 2012 . Retrieved February 23, 2013 .
  133. ^
  134. "Press Release of Senator DeWine". Archived from the original on November 26, 2012 . Retrieved February 23, 2013 .
  135. ^
  136. "Dewine Bill as introduced" (PDF) . Archived (PDF) from the original on July 7, 2013 . Retrieved February 23, 2013 .
  137. ^
  138. "Specter Floor Statement" (PDF) . Archived (PDF) from the original on September 4, 2012 . Retrieved February 23, 2013 .
  139. ^
  140. "Specter Bill as introduced" (PDF) . Archived (PDF) from the original on July 22, 2012 . Retrieved February 23, 2013 .
  141. ^"Specter Offers Compromise on NSA Surveillance"Archived August 20, 2017, at the Wayback Machine, The Washington Post, June 9, 2006
  142. ^
  143. "Prepared Opening Remarks of Attorney General Alberto R. Gonzales at the Justice Department Oversight Hearing of the Senate Judiciary Committee". Department of Justice. January 18, 2007.
  144. ^
  145. Siobhan Gorman (January 18, 2007). "Bush cedes authority on spy program". Chicago Tribune. [permanent dead link]
  146. ^
  147. Chip Pitts (March 15, 2007). "The End of Illegal Domestic Spying? Don't Count on It". Washington Spectator. Archived from the original on October 29, 2007.
  148. ^
  149. Risen, James Lichtblau, Eric (January 16, 2009). "Court Affirms Wiretapping Without Warrants". New York Times. Archived from the original on March 28, 2013 . Retrieved January 16, 2009 .
  150. ^
  151. Perez, Evan (January 16, 2009). "Court Backs U.S. Wiretapping". Wall Street Journal, January 16, 2009 . Retrieved January 16, 2009 .
  152. ^
  153. "Intelligence Court Releases Ruling in Favor of Warrantless Wiretapping". Washington Post, January 15, 2009. January 16, 2009 . Retrieved January 16, 2009 .
  154. ^
  155. "Court ruling endorses Bush surveillance policy". Associated Press, January 15, 2009 . Retrieved January 16, 2009 .
  156. ^
  157. "No. 08-01 IN RE: DIRECTIVE (Redacted) * PURSUANT TO SECTION 105B OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT (redacted tect) ON PETITION FOR REVIEW OF A DECISION OF THE UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT" (PDF) . United States Foreign Intelligence Surveillance Court of Review. August 22, 2008. Archived from the original (PDF) on January 17, 2009 . Retrieved January 16, 2009 .
  158. ^McCulloch v. Maryland, 17 U.S. 316 (1819)
  159. ^United Public Workers v. Mitchell, 330 U.S. 75 (1947)Archived May 19, 2011, at the Wayback Machine. See also Jenkins v. Commissioner of Internal Revenue, 483 F.3d 90Archived March 28, 2014, at the Wayback Machine (2d Cir 2007).
  160. ^
  161. King, Kimi Lynn Meernik, James (December 1999). "The Supreme Court and the Powers of the Executive: The Adjudication of Foreign Policy". Political Research Quarterly. 52 (4): 801. doi:10.2307/449187. JSTOR449187.
  162. ^ "Any neutral assessment of the important separation of powers questions at issue here warranted a thorough consideration of Curtiss-Wright and the theory of presidential power it recognized (as well as the even more long-standing precedent on which the decision in Curtiss-Wright relied, including The Prize Cases, 67 U.S. (2 Black) 635" – PROFESSOR JOHN C. EASTMAN in his solicited letter to the Senate Judiciary Committee
  163. ^ "The Steel Seizure Case12 is frequently cited as providing a framework for the courts to decide the extent of the President's authority, particularly in matters involving national security." CRS, "Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information"
  164. ^United States v. Duggan, 743 F.2d 59, 72 (2d Cir. 1984) (citing cases)
  165. ^
  166. "Justice Dept Supplemental Brief to the U.S. Foreign Intelligence Court of Review". . Retrieved February 23, 2013 .
  167. ^Clay v. United States, 403U.S.698 (1971)
  168. ^United States v. Brown, 484 F.2d 418 (5th Cir. 1973)
  169. ^United States v. Butenko, 494 F.2d 593 (3rd Cir. 1974)
  170. ^United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980)
  171. ^United States v. Bin LadenArchived December 13, 2006, at the Wayback Machine, 126 F.Supp.2d 264 (S.D.N.Y. 2000)
  172. ^United States v. U.S. District Court, 407U.S.297 (1972)
  173. ^
  174. York, Byron (December 20, 2005). "Clinton Claimed Authority to Order No-Warrant Searches – Does anyone remember that?". National Review. Archived from the original on May 4, 2007 . Retrieved July 1, 2007 .
  175. ^ David Alan Jordan."Decrypting the Fourth Amendment: Warrantless NSA Surveillance and the Enhanced Expectation of Privacy Provided by Encrypted Voice over Internet Protocol"Archived October 30, 2007, at the Wayback Machine. Boston College Law Review. May 2006. Last access date January 23, 2007
  176. ^ Circuit courts applying Keith to the foreign intelligence context have affirmed the existence of a foreign intelligence exception to the warrant requirement for searches conducted within the United States which target foreign powers or their agents. See United States v. Clay, 430 F.2d 165, 171 (5th Cir.1970) United States v. Brown, 484 F.2d 418, 426 (5th Cir.1973) United States v. Butenko, 494 F.2d 593, 605 (3d Cir.1974) United States v. Buck, 548 F.2d 871, 875 (9th Cir.1977) United States v. Truong Dinh Hung, 629 F.2d 908, 913 (4th Cir.1980)
  177. ^United States v. Usama bin Laden , 93 F.Supp.2d 484 (Dist. Court, SD New York 2000).
  178. ^
  179. "U.S. INTELLIGENCE Community". National Security Act of 1947. Archived from the original on May 10, 2008 . Retrieved January 1, 2006 .
  180. ^Title 50, Chapter 15, Subchapter III ACCOUNTABILITY FOR INTELLIGENCE ACTIVITIES, Legal Information Institute, Cornell Law School
  181. ^
  182. "50 USC § 413b". . Retrieved February 23, 2013 .
  183. ^
  184. "Cornell Law". 50 U.S.C. § 1802(a)(1) . Retrieved January 1, 2006 .
  185. ^
  186. Bergman, Lichtblau, Shane, and Van Natta Jr. (January 17, 2006). "Spy Agency Data After 11 September Led F.B.I. to Dead Ends". The New York Times. Archived from the original on May 21, 2016 . Retrieved February 22, 2017 .
  187. ^
  188. Barton Gellman, Dafna Linzer and Carol D. Leonnig (February 5, 2006). "Surveillance Net Yields Few Suspects – NSA's Hunt for Terrorists Scrutinizes Thousands of Americans, but Most Are Later Cleared". The Washington Post. pp. A01. Archived from the original on April 27, 2017 . Retrieved September 5, 2017 .
  189. ^ "Marcus Declaration" Document from Hepting vs AT&T lawsuit from 2006. Reported by Ryan Singel in Wired Magazine, article "AT&T 'Spy Room' Documents Unsealed You've Already Seen Them"Archived January 22, 2014, at the Wayback Machine 6/13/07 , Documents posted at the Electronic Frontier FoundationArchived October 16, 2008, at the Wayback Machine website, here: October 11, 2008, at the Wayback Machine (File "SER marcus decl.pdf")
  190. ^ "Klein Exhibit" Document from Hepting vs AT&T lawsuit from 2007. Reported by Ryan Singel in Wired Magazine, article "AT&T 'Spy Room' Documents Unsealed You've Already Seen Them"Archived January 22, 2014, at the Wayback Machine 6/13/07 , Documents posted at the Electronic Frontier FoundationArchived October 16, 2008, at the Wayback Machine website, here: October 11, 2008, at the Wayback Machine (File "SER_klein_exhibits.pdf")
  191. ^
  192. Ryan Singel (April 7, 2006). "Whistle-Blower Outs NSA Spy Room". Wired. Archived from the original on April 30, 2008 . Retrieved August 15, 2007 .
  193. ^
  194. " " Spying on the Home Front" – Interview with Mark Klein". Public Broadcasting System. Frontline. January 9, 2007. Archived from the original on August 9, 2007 . Retrieved August 15, 2007 .
  195. ^
  196. "AT&T Whistle-Blower's Evidence". Newscenter. May 17, 2006. Archived from the original on June 13, 2007 . Retrieved August 15, 2007 .
  197. ^
  198. "Klein's "2004 Package " " (PDF) . PBS Frontline. May 17, 2007. Archived (PDF) from the original on February 27, 2008 . Retrieved August 15, 2007 .
  199. ^
  200. "NarusInsight Intercept Suite". Archived from the original on October 18, 2007 . Retrieved October 18, 2007 .
  201. ^
  202. "DECLARATION OF J. SCOTT MARCUS IN SUPPORT OF PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION" (PDF) . March 29, 2006. Archived (PDF) from the original on February 16, 2008 . Retrieved February 6, 2008 .
  203. ^
  204. Steven M. Bellovin, Matt Blaze, Whitfield Diffie, Susan Landau, Peter G. Neumann, and Jennifer Rexford (February 5, 2008). "Risking Communications Security: Potential Hazards of the Protect America Act" (PDF) . Institute of Electrical and Electronics Engineers Security and Privacy. 6: 24. doi:10.1109/MSP.2008.17. S2CID874506. Archived from the original (PDF) on February 27, 2008 . Retrieved February 5, 2008 . CS1 maint: multiple names: authors list (link)
  205. ^
  206. Barton Gelman (September 14, 2008). "Conflict Over Spying Led White House to Brink". The Washington Post. Archived from the original on November 12, 2012 . Retrieved May 28, 2012 .
  207. ^
  208. "To What Extent Did the Government Monitor Phone, Internet Activity After 9/11?". PBS Newshour. June 28, 2013. Archived from the original on June 30, 2013 . Retrieved June 29, 2013 .
  209. ^
  210. "NSA inspector general report on email and internet data collection under Stellar Wind – full document". The Guardian. London. June 27, 2013 . Retrieved June 28, 2013 .
  211. ^
  212. "Legal memorandum of David S. Kris, former Deputy Attorney General for national security" (PDF) . The Washington Post. January 25, 2006.
  213. ^
  214. "Cornell University – Constitutional law". Archived from the original on January 20, 2013 . Retrieved February 23, 2013 .
  215. ^
  216. "Constitutional Rights Foundation". . Retrieved October 31, 2020 .
  217. ^
  218. Hasian, Marouf (January 2006). "Unitary Executives, Rhetorical Histories, and the National Security Agency's Strategic Remembrances of the Foreign Intelligence Surveillance Act (FISA)". Free Speech Yearbook. 43 (1): 1–19. doi:10.1080/08997225.2006.10556326. ISSN0899-7225. S2CID155825691.
  219. ^ U.S. Department of Justice White Paper on NSA Legal Authorities "Legal Authorities Supporting the Activities of the National Security Agency Described by the President" (pdf)Archived January 30, 2006, at the Wayback Machine January 19, 2006.
  220. ^
  221. "DOJ/Attorney General Gonzales' responses to the House Judiciary Committee's oversight questions regarding the NSA Terrorist Surveillance Program, March 24, 2006" (PDF) . Retrieved February 23, 2013 .
  222. ^ Adam Liptak, "Experts Fault Reasoning in Surveillance Decision", New York Times, August 19, 2006.
  223. ^"Grading the law professors apologies due Judge Taylor"Archived October 23, 2006, at the Wayback Machine by Glenn Greenwald, August 22, 2006.
  224. ^ That Congress sees this as domestic intelligence can be inferred from the CRS position paper, "Congress has asserted itself with respect to domestic surveillance, but has largely left matters involving overseas surveillance to executive self-regulation, subject to congressional oversight and willingness to provide funds."
  225. ^ See for example,Cole, Epstein, Heynmann Open Letter to CongressArchived January 17, 2006, at the Wayback Machine

Congress indisputably has authority to regulate electronic surveillance within the United States, as it has done in FISA. Where Congress has so regulated, the President can act in contravention of statute only if his authority is exclusive, that is, not subject to the check of statutory regulation.

Propaganda Pre$ Monitor

DAKAR, Senegal — Protesters demanding the departure of Senegal’s aging president seized control of a three-block stretch in the heart of the capital yesterday, erecting barricades and lobbing rocks at police just days before a contentious presidential poll.

It was the fifth day of violent protests ahead of the country’s crucial vote, and so far six people have been killed. President Abdoulaye Wade, 85, is insisting on running, despite the deepening unrest and calls from France and the United States to hand power to the next generation .

I take that to initially mean the U.S. is behind these protests.

A new concern was raised yesterday, as the friction took on a religious dimension in this normally tolerant Muslim nation. Hundreds had gathered outside a mosque as religious leaders met to discuss a Friday incident in which police used grenade launchers to throw tear gas down the wide boulevard, at one point hitting the wall of the mosque.

Footage of the incident shown on Senegalese TV indicated that the police had not shot inside the mosque, but outside where a crowd had gathered.

But the cloud of gas enveloped worshipers praying inside and outside the shrine, deeply offending Senegal’s largest Muslim brotherhood, which owns the mosque.

"Senegalese president booed on election day" Associated Press, February 27, 2012

DAKAR, Senegal - Voters booed Senegal’s president as he went to cast his ballot in elections yesterday, the latest sign of how his decision to seek a third term in office has caused his popularity to plummet and divided a country that is often held up as a model of stability and tolerance.

The unrest leading to the vote has threatened the reputation of this normally unflappable republic on Africa’s western coast as one of the continent’s oldest and most mature democracies.

He argues that those restrictions should not apply to him since he was elected before they went into effect, and the deadly riots that have rocked the country began last month when the nation’s highest court agreed with him.

Wade was jeered and insulted when he arrived to vote.

And the next person voted out of Senegal is.

"Senegal’s vote results lag, spurring questions Unofficial returns hint the president may face a runoff" by Rukmini Callimachi | Associated Press, February 29, 2012

DAKAR, Senegal — European Union observers questioned why Senegal’s government is not publishing real-time results from a contentious presidential election, saying yesterday that in the Internet age there is no reason for the delay.

It is a long way to fall for 85-year-old President Abdoulaye Wade, who spent 25 years as the country’s main opposition leader. When elected in 2000, he was so popular that his rallies were attended by hundreds of thousands of people. Even in the polling station where he has voted for decades, Wade was loudly booed on Sunday when he went to cast his ballot.

Many believe that for Wade to maintain power, he needed to win in the first round when the opposition was split. His chances of winning are much slimmer in a runoff when he will be facing a united opposition.

Wade has refused calls from France and the United States to retire, insisting on running for a third term in contradiction of the term limits he himself introduced into the constitution, but which he says do not apply retroactively to him. Weeks of protest preceded the vote, endangering the reputation of a nation considered a model of stability.

Thijs Berman, the head of the 90-member observation mission, said that although the campaign leading to the election was marred by violence, the actual vote proceeded peacefully. Few irregularities were noted, among them the late opening of some polling stations and the fact that not all election monitors checked to make sure that voters dipped their fingers in indelible ink.

Wade has appeared disconnected from the criticism, telling reporters that he was going to win with a crushing majority and the demonstrations were “nothing more than a light breeze.’’

Ibrahima Mbow, a spokesman for the coalition supporting Sall, the leading opposition candidate, used Wade’s words against him during a TV round-table discussion Monday night hosted by private channel Africa-7.

“Seventy percent of Senegalese rejected him,’’ Mbow said. “He said it was a little breeze? This breeze is now threatening to blow over his throne. He needs to go.

“He refused to leave via the big door. Now we’ll watch him crawl out the window.’’

Today With President Barack Obama

MR. GIBBS: Good afternoon. Welcome to the White House. Before we get started, I have one quick announcement. On Sunday, August 29th, President Obama will travel to New Orleans, Louisiana, to mark the fifth anniversary of Hurricane Katrina. The visit will include remarks by the President at Xavier University of Louisiana. Members of the President’s Cabinet who have worked to speed recovery and restoration efforts in the region also will be in New Orleans to mark the anniversary. We will have more on that trip obviously as it gets closer.

Next, we are joined today by Secretary Napolitano. As you know, just a little while ago, with Secretary Napolitano, the President signed into law a border security bill that puts more agents and more equipment along the Mexican border. And she is here to talk about that, our efforts to bolster the border region since coming into office. And I will turn it over to the Secretary.

SECRETARY NAPOLITANO: Thank you. Well, thank you. Good afternoon, everybody, and thank you for being here today. I was very pleased to be with the President earlier as he signed a bill providing $600 million in additional resources to further strengthen security along the Southwest border. We applaud Congress for acting in a bipartisan manner to take quick action on this bill. I'd like to especially thank leaders Reid and Pelosi, and also Schumer and McCaskill.

The legislation adds permanent resources that will continue to bolster security along the Southwest border, supporting our efforts to crack down on transnational criminal organizations, and reduce the trafficking of people, drugs, currency and weapons.

The bill is important in two respects. First, it adds new resources to the border. Second, it makes permanent many of the assets that this administration has surged along the border during the past 18 months.

Now, let me pause there for a moment. I have worked on border issues as a public servant for 17 years, starting in 1993, as United States state’s attorney in Arizona, then the attorney general of Arizona, then the governor of Arizona, continuing through today as the Secretary of Homeland Security. What’s significant about this bill, in addition to its contents, is that it passed something with bipartisan support that gives us the resources to continue efforts that were well underway, and demonstrates that the border is not and should not be a political issue it is a matter of national security in which we all, both parties, have a stake.

And on that score, even before the President signed this bill, the administration had already devoted more resources to the Southwest than any point in American history. These efforts are making a difference. And they are the reason why everything that is supposed to be going up is going up, and everything that is supposed to be going down is going down.

Seizures are up and rose across the board last year. Apprehensions for illegal crossings are down. For the first time ever, we are screening 100 percent of southbound rail. Criminal alien removals are at an all-time high. We've added more technology, manpower, and resources to the border than ever before.

This is a long-term, systematic effort to defeat the cartels and to continue to secure the border. The administration is dedicated to that approach. And that's why the President ordered 1,200 National Guard troops to the border, and it’s why he asked Congress for this supplemental funding. Read the rest here.

Today With President Barack Obama

I have made securing our Southwest Border a top priority since I came to office. That is why my administration has dedicated unprecedented resources and personnel to combating the transnational criminal organizations that traffic in drugs, weapons, and money, and smuggle people across the border with Mexico. Today's action by Congress answers my call to bolster the essential work of federal law enforcement officials and improve their ability to partner with state, local, and tribal law enforcement. The resources made available through this legislation will build upon our successful efforts to protect communities along the Southwest border and across the country. And this new law will also strengthen our partnership with Mexico in targeting the gangs and criminal organizations that operate on both sides of our shared border. So these steps will make an important difference as my administration continues to work with Congress toward bipartisan comprehensive immigration reform to secure our borders, and restore responsibility and accountability to our broken immigration system.

Year Two Day 134 Obama Administration June 3, 2010 - History

Ever notice how, with the Obama administration, the hits just keep on comin'?

Money quote starts at :48
The Obama administration seems to be the new home of economic illiteracy (innumeracy). Remember last December, when Nancy Pelosi (who told us in 2007 that the price of gas was way too high at $2.25 a gallon and she and a Democrat Congress were going to "do something about it"), told us of the economic benefits of unemployment?

So, for the moment, let's say that the Speaker has her facts straight: Every dollar spent on unemployment insurance returns two dollars to the economy. Would not the reverse be true as well:
For every dollar taken from someone in taxes, two dollars is removed from the economy?

At best, that would be a wash. Factor in that the government is so inefficient in nearly everything it does, the overhead to get that dollar where it is going may siphon off 70 to 80% in bloated government overhead, and you've got a losing proposition.

So, here is Obama's Agriculture Secretary parroting the same economic nonsense. A dollar of food stamps received, for starters, takes more than a dollar to deliver the benefit to the recipient. A lot gets siphoned of in the bureaucracy. But, setting aside for the moment the waste and inefficiency inherent in most government endeavors, the same holds true for food stamps as for unemployment. Before that dollar of food stamps can "generate" (stop laughing!) the mythical $1.84, it must first take a dollar out of the economy, through taxes, which, if left alone, would presumably "generate" the identical amount of economic activity. More, actually, since the overhead is less. The only "economic activity" generated is for the salaries of government bureaucrat, office space to house them, and all the expenses in staffing, heating, cooling and furnishing government offices.

Of course this is an administration that believes we can spend our way out of debt by "spreading the wealth". Tom and Nancy fit right in.

Today With President Barack Obama

The United States congratulates the Kenyan people and government on the holding of a peaceful, transparent, and credible constitutional referendum. This was a significant step forward for Kenya's democracy, and the peaceful nature of the election was a testament to the character of the Kenyan people. My Administration has been pleased to support Kenya's democratic development and the Kenyan people, including through the visit of Vice President Biden earlier this year.

The overwhelming approval of the proposed new constitution reflects the desire of the Kenyan people to put their country on a path toward improved governance, greater stability, and increased prosperity. As it is fully implemented, the new constitution can play a decisive role in achieving these objectives in a way which benefits all Kenyans.

Kenyans across the political, social, and ethnic spectrum now have a chance to come together to support implementation through an inclusive dialogue. Reaching out to one another, Kenyans will be able to take advantage of this historic opportunity to move their country forward. As Kenya’s close friend and partner, the United States will work with the international community to support the implementation process, and to stand with the Kenyan people as they reach for a better future.

Watch the video: Ιστορική επίσκεψη Μπαράκ Ομπάμα. ΕΡΤ (May 2022).