Unconstitutional NSA Spying

In a press briefing US Attorney General Alberto Gonzales put forward the legal justification for the current policy of using the NSA to spy on US citizens.

US Att. Gen. Gonzales

"Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides -- requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday, unless there is somehow -- there is -- unless otherwise authorized by statute or by Congress. That's what the law requires. Our position is, is that the authorization to use force, which was passed by the Congress in the days following September 11th, constitutes that other authorization, that other statute by Congress, to engage in this kind of signals intelligence. "-Gonzales

"I'm not -- I can't get into the specific numbers because that information remains classified. Again, this is not a situation where -- of domestic spying. To the extent that there is a moderate and heavy communication involving an American citizen, it would be a communication where the other end of the call is outside the United States and where we believe that either the American citizen or the person outside the United States is somehow affiliated with al Qaeda. "-Gonzales

Question: It's been done retroactively before, hasn't it?

ATTORNEY GENERAL GONZALES: What do you mean, "retroactively"?

Question: You just go ahead and then you apply for the FISA clearance, because it's damn near automatic.

ATTORNEY GENERAL GONZALES: If we -- but there are standards that have to be met, obviously, and you're right, there is a procedure where we -- an emergency procedure that allows us to make a decision to authorize -- to utilize FISA, and then we go to the court and get confirmation of that authority.

Question: General, when you discussed the emergency powers, you said, agility is critical here. And in the case of the emergency powers, as I understand it, you can go in, do whatever you need to do, and within 72 hours just report it after the fact. And as you say, these may not even last very long at all. What would be the difficulty in setting up a paperwork system in which the logs that you say you have the shift supervisors record are simply sent to a judge after the fact? If the judge says that this is not legitimate, by that time probably your intercept is over, wouldn't that be correct?

We shouldn't let Congress off the hook so easily just because, the consultations with them were classified. Hopefully, the Democrat leadership at least attempted a classified hearing and were shutdown by the Republican majority. Although, they may have seen a block by the Republican majority as eminent and thus refused to try.

I say that FISA is in some regards Unconstitutional. However, I wanted to reiterate Att. Gen. Gonzales rationale for claiming FISA protections:

Under FISA a court order must be obtained prior to engaging in surveillance. It can also be done retroactively as mentioned by the reporter in the briefing. Retroactively meaning that you can engage in surveillance and then within 72 hrs. consult with a judge for approval. This is to address issues of "agility" and emergency. This still would provide judicial oversight. The questioner asked Gonzales why this wasn't simply done retroactively if speed was of the essence. His reply was simply that they didn't have to.

FISA stipulates that a court order is necessary unless "otherwise authorized by statute or by Congress." The Bush administration legal team will assert that the Authorization to Use Force given to the President after September 11th by Congress satisfies this.

Under the Congressional Authorization of Force it will be argued that the Bush Administration did indeed have legal grounds for Intelligence activities based on the Hamdi ruling. Hamdi was a US citizen detained as a war criminal. The Supreme Court ruled that the detention of Hamdi was consistent with the Authorization of Force and in line with the War Powers afforded to the President. From this Gonzales draws the grounds for Intelligence gathering involving a US citizen.

This is still not in line with the Constitution. Although, the administration will try to lay this at the feet of Congress to escape scrutiny. Congress wrote FISA, not them. According to FISA, a court order is necessary unless *otherwise authorized by statute or by Congress*. This is key. In an unconstitutional manner judicial oversight is removed and power is shifted from the Judicial Branch to the Legislative Branch. It should also be mentioned that Congress authorized the use of force and did not issue an actual Declaration of War.