Protecting America

It is absolutely necessary for the federal government to safeguard America from terrorist threats. To do this, the government must have the capability to monitor the activities of potential terrorists. In today’s world, this requires the monitoring of electronic communications – primarily internet and telephone communications. Few Americans would dispute the necessity for this.

What then is the cause of the current furor over recent wiretapping and phone record monitoring?

Is the Executive Branch Subject to US Law?

The issue is not whether monitoring should take place or not – it is whether it should be done in accordance with the laws of the land.

In time of war, declared or undeclared, is the executive branch subject to the laws enacted by congress? Is the executive branch subject to the judicial oversight prescribed by the constitution and legislation? Can the president, as commander-in-chief, ignore the laws at his discretion?

What are the Laws?

Congress has mandated very specific provisions for obtaining records connected to the surveillance of domestic and foreign threats to America’s security. Kate Martin, Director of the Center for National Security Studies, has offered a detailed analysis of this legislation and its application to current ongoing surveillance being conducted by the Bush Administration. Here is an excerpt from her analysis (emphasis mine):

It is illegal for the NSA to obtain records of phone numbers from the telephone companies unless the FISA court authorized it. The Stored Communications Act prohibits the telephone companies from disclosing such information to the government unless they receive a subpoena or a court order for the records. 18 U.S.C. 2702(c), 2703 (c).

In the case of the NSA, the Foreign Intelligence Surveillance Court would have to issue such an order. It does not appear that it has done so, apparently because the NSA worried that it would not approve such wholesale collection of information.

Moreover, if the NSA obtained such information in real time – using a pen register or trap and trace device – those who did so would be guilty of criminal conduct. (The law on pen registers and trap and trace devices provides that no one may use such a device without obtaining a court order either under the criminal wiretap law or the Foreign Intelligence Surveillance Act. 18 USC 3121.)

Some background: in 1979, the Supreme Court held that no search warrant was required for a pen register recording the numbers dialed from a particular phone number because the use of such a device was not a search under the Fourth Amendment. Smith v. Maryland, 442 U.S. 735 (1979). The Court’s analysis that there was no reasonable expectation of privacy in the phone numbers dialed by an individual rested at least in part on the fact that the pen register obtained limited information. Whether that analysis would apply given new technological surveillance capabilities is not clear.

In all events, Congress thereafter acted to protect the privacy of such information. Just as in the case of the bank secrecy law protecting the privacy of bank records, after the Supreme Court held that such records were not protected by the Fourth Amendment because they were held by the bank, rather than the individual, Congress required the government to obtain a court order for pen registers and trap and trace devices, 18 USC 3121 et seq., and a court order or subpoena for records of past telephone calls.

While the law provides several means for the government to obtain records showing what phone numbers were called or dialed by a particular phone number, in every instance, either a subpoena or court order is required. It appears that the NSA obtained the records of millions of Americans without having the required court order.

If the NSA used a pen register or trap and trace device in real time, it was required to obtain an order from the FISA court, either under the specific pen register provisions, 50 USC 1841 et seq. or under the provisions for electronic surveillance generally, 50 USC 1801 et seq. Under he electronic surveillance provisions, the NSA would have to show the court that the person whose calls were being targeted was an agent of a foreign power. Under the pen register provision, the NSA would have to show the court that the information was relevant to an ongoing terrorism investigation. Despite the low standard for a pen register, it is unlikely that the FISA court would have approved wholesale pen registers on every phone in America.

If the NSA obtained stored records, rather using a real time pen register, it would have to obtain an order from the FISA court under section 215 of the Patriot ct. That section contained an even lower standard for obtaining information.

It is important to note that the Patriot Act specifically provided that the FBI did not need a court order, but could use a National Security Letter – a form of administrative subpoena – to obtain such records. The Congress specifically withheld such subpoena authority from the NSA. The FBI investigates people or groups when it has some predication, however minimal that there is a nexus to terrorist activity. The NSA has no such limitation and thus wasn’t given this broad subpoena power by the Congress. Instead the Congress required the NSA to convince the FISA court that the information would be relevant.

The President evidently decided, that he could ignore even that minimal requirement intended to insure some basic accountability by the NSA and to safeguard Americans’ privacy.

Is National Security Incompatible with Lawful Democracy?

The current laws provide for checks and balances between the branches of government. They are in place to prevent the abuse of power, while facilitating the actions necessary to protect our country. If the laws are deemed to be insufficent by the executive branch, it is their duty to bring this before congress and request changes to the laws. This is how our democracy is designed. This is how our democracy should work.

For the most part, Americans are willing to sacrifice some privacy to safegusrd our nation. Most of us, however, want to see it done legally -- with sufficient oversight by all three branches of our government.