Thursday, March 09, 2006

Legal Case For NSA Program Weak, Ex-Justice Dept. Official Says

A specialist in national security law who was formerly a Justice Department official early in the Bush administration is weighing in on the extra-legal NSA warrantless eavesdropping program.

A former senior national security lawyer at the Justice Department is highly critical of some of the Bush administration's key legal justifications for warrantless spying, saying that many of the government's arguments are weak and unlikely to be endorsed by the courts, according to documents released yesterday.

David S. Kris, a former associate deputy attorney general who now works at Time Warner Inc., concludes that a National Security Agency domestic spying program is clearly covered by a 1978 law governing clandestine surveillance, according to a legal analysis and e-mails sent to current Justice officials.


Kris, who oversaw national security issues at Justice from 2000 until he left the department in 2003, also wrote that the Bush administration's contention that Congress had authorized the NSA program by approving the use of force against al-Qaeda was a "weak justification" unlikely to be supported by the courts...


Kris's views are contained both in a 23-page legal analysis that he provided yesterday to journalists and in a series of e-mails that he sent in December to Courtney Elwood, an associate counsel to Attorney General Alberto R. Gonzales. The e-mails were released yesterday by the Electronic Privacy Information Center, which obtained them as part of ongoing Freedom of Information Act litigation...


"In sum, I do not believe the statutory law will bear the government's weight," Kris wrote in his paper, dated Jan. 25. ". . . I do not think Congress can be said to have authorized the NSA surveillance."


Even when the authorities try to keep to the letter of the FISA law, problems do arise, according to a new FBI IG report:


The FBI reported more than 100 possible violations to an intelligence oversight board over the past two years, including cases in which agents tapped the wrong telephone, intercepted the wrong e-mails or continued to listen to conversations after a warrant had expired, according to a report issued yesterday.

In one case, the FBI obtained the contents of 181 telephone calls rather than just the billing records to which it was entitled. In another, a communication was monitored for more than a year after eavesdropping should have ended -- although investigators blamed a third-party provider for the mix-up...

Rep. John Conyers Jr. (Mich.), ranking Democrat on the House Judiciary Committee, said Fine's report "is yet another vindication for those of us who have raised concerns about the administration's policies in the war on terror."

"Despite the Bush administration's attempt to demonize critics of its anti-terrorism policies as advancing phantom or trivial concerns, the report demonstrates that the independent Office of Inspector General has found that many of these policies indeed warrant full investigations," Conyers said.

Today's New York Times features an editorial about the shameful way in which the Republicans have destroyed the Senate Intelligence Committee in order to protect the administration:

It's breathtakingly cynical. Faced with a president who is almost certainly breaking the law, the Senate sets up a panel to watch him do it and calls that control. This new Senate plan is being presented as a way to increase the supervision of intelligence gathering while giving the spies needed flexibility. But it does no such thing.

One would hope that the concerned citizens of the United States are fed up enough with all the Republican malfeasance to vote them out in this year's mid-terms.

The actions of Republican politicians, from the president on down, tell me that I may be mistaken.

The Republicans are acting like they already have future elections "in the bag", by hook or by crook.

8 Comments:

Blogger gardoglee said...

"In another, a communication was monitored for more than a year after eavesdropping should have ended -- although investigators blamed a third-party provider for the mix-up..."

Hmmm. So now we have third party providers who have access to our personal phone calls, emails and the like. The Feds are outsourcing spying? The list of questions which spring to mind is dizzying. What are the security procedures of the outsourcers? Who enforces them? What are the hiring policies? And by the way, what countries does the outsourcing company send this stuff to for analysis? India, China, Russia, Singapore, Saudi Arabia? They all have outsourcing industries which subcontract to American based companies.

3/09/2006 2:03 PM  
Blogger Effwit said...

Gardoglee:

The Feds are most certainly outsourcing spying.

The NSA is one of the biggest utilizers of subcontractors, the FBI (as evidenced by the article) does it too. Same with CIA, and the other three-letter agencies.

AFAIK, the intelligence yield is not sent to any other countries for processing. Even though they routinely need translation help, all that stuff is supposed to be done by cleared American citizens.

3/09/2006 2:37 PM  
Blogger DrewL said...

So much for the vaunted American system of checks and balances. When all three branches - executive, legislative, and arguably judicial - are all controlled by the same party/faction, it's pretty difficult to find any semblance of legitimate checks OR balance.

It's kind of like that "fair and balanced" news network. Actions speak louder than words.

3/09/2006 3:08 PM  
Blogger Effwit said...

DrewL:

Actions indeed.

Not too many years ago, when the Democrats ran all three branches, the goopers couldn't shut up about the "tax and spend" Dems.

Kinda interesting that now when the situation is reversed, the GOP is spending the nation into bankruptcy.

Not to mention the more important theft of the good name of the United States of America.

3/09/2006 3:23 PM  
Blogger M1 said...

"...the intelligence yield is not sent to any other countries for processing"
Me not thinky so, ie M1 disagrees with Effy. 'Supposed' is the concensus-saver if consensus is to be saved.

Me bet my 2 blonde wives and a roundtrip ticket to anywhere on this one. Any crazy owner of 2 redheads willing to take this bet?

3/09/2006 8:47 PM  
Blogger Effwit said...

M1:

I stand corrected.

I not willing to bet against da man.

I was considering the private contractor angle.

I wasn't even thinking about ECHELON.

Or the longstanding UKUSA agreement.

Or anything else you be privy to.

3/10/2006 9:13 AM  
Blogger M1 said...

Darn, I really wanted 2 redheads.

I was indeed thinking of ECHELON and UKUSA covenants.

Added to that, moi thinks we have good reason to believe that protocols are already in place for database exchanges and data-mining outsourcing between the US and at least a couple of other Euro countries beside the UK. (Let us not forget that such outsourcing in its most generic form is one proven method for circumventing domestic eavesdropping restrictions - to the extent any such restrictions apply anymore.)

We know as much as that the US has been granted fondue dipping rights in a few national databases within the Eurozone and that these databases are of the most discreet nature and that free feeding rights for foreigners in these datatroughs certainly can be considered to challenge concepts of national sovereignty. And...most of these deals seem to entail varying degrees of reciprocity d'access.

I keep meaning to write about this but I postpone for various anxiety-ridden reasons.

3/11/2006 2:35 AM  
Blogger Effwit said...

M1:

Let us not forget that such outsourcing in its most generic form is one proven method for circumventing domestic eavesdropping restrictions

Truer words on the subject have rarely been conveyed (at least in a non-classified forum).

3/11/2006 9:10 AM  

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