- Ryan Singel has a post “Bush Wiretaps Supremely Illegal,” in which he discusses how this aspect of wiretaps are settled law.
- Perry Metzger’s excellent “A small editorial about recent events” is also worth reading:
As you may all be aware, the New York Times has reported, and the administration has admitted, that President of the United States apparently ordered the NSA to conduct surveillance operations against US citizens without prior permission of the secret court known as the Foreign Intelligence Surveillance Court (the “FISC”). This is in clear contravention of 50 USC 1801 – 50 USC 1811, a portion of the US code that provides for clear criminal penalties for violations. See:
The President claims he has the prerogative to order such surveillance. The law unambiguously disagrees with him.
- See also Matt Rustler’s “A Little Honesty, Perhaps” which contains this excellent argument after lots of detailed legal analysis:
If that’s not enough, allow me to offer what I’ll call the proof from common sense: If the NSA eavesdropping fit into any exception to the general FISA requirements, you can bet your sweet keister that the administration would be trumpeting the details from the rooftops. It isn’t.
Also, his “Questions and Suggestions for the Left and Right” is worth reading. I’d like to respond to his argument:
Do you have any background in counterrorism and intelligence? If not, how do you know that the existing FISA procedures were adequate for the task at hand? If you do have such a background, please enlighten the rest of us. Uninformed opinion about factual matters with which few of us have any practical experience is seldom helpful.
With one that mirrors his own: If existing FISA procedures were inadequate, then over the course of four years, that argument could have been brought to the Congress for a revision of the law. None was. Proof from common sense?
If you don’t catch the titular reference, you might want to read Richard Nixon’s resignation speech. You may believe that the commentators who have said the law is not clear are correct. If you do, I urge you to read the articles linked above. The law is not complex in this instance. It offers clear and unambiguous requirements for wiretapping. It offers secrecy in the cases. It offers exceptions that address the various urgencies that might exist, including a provision that allows wiretaps if, after they’re started, the agency goes and gets retro-active permission. Read the law.