SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2005, Issue No. 115
December 19, 2005

UNAUTHORIZED DOMESTIC SURVEILLANCE THREATENS RULE OF LAW

In an extraordinary move that undermines the legal foundation for the conduct of intelligence activities, President Bush ordered the National Security Agency to conduct electronic surveillance of U.S. persons outside of the statutory framework that was established to authorize such surveillance, the New York Times revealed last week.

Although the President insisted that his action was "consistent with U.S. law and the Constitution," the surveillance operation was not conducted in accordance with the Foreign Intelligence Surveillance Act of 1978, the statute that permits domestic intelligence surveillance with the approval of a specially designated federal court.

"Domestic intelligence collection is governed by the Foreign Intelligence Surveillance Act, known as FISA," explained Sen. Dianne Feinstein (D-CA), a member of the Senate Intelligence and Judiciary Committees. "FISA is the exclusive law in this area."

"We have changed aspects of that law at the request of the administration in the USA PATRIOT Act to allow for a more aggressive but still lawful defense against terror. So there have been amendments," Sen. Feinstein noted.

But to conduct domestic intelligence surveillance outside of the FISA framework "calls into question the integrity and credibility of our Nation's commitment to the rule of law," she said December 16. See:

The FISA process is not unduly burdensome or time-consuming. "Urgent requests that meet the criteria and requirements of FISA are handled as emergency or expedited matters," said the Attorney General in a written response to questions from the Senate Judiciary Committee, transmitted October 20, 2005.

"The fact of the matter is, FISA can grant emergency approval for wiretaps within hours and even minutes, if necessary," said Sen. Feinstein.

In a 2000 statement describing oversight of NSA activities, then-NSA Director Lt. Gen. Michael V. Hayden said "The American people must be confident that the power they have entrusted to us is not being, and will not be, abused."

NSA "operates within detailed, constitutionally-based, substantive, and procedural limits under the watchful eyes of Congress, numerous institutions within the Executive Branch, and -- through the FISA -- the judiciary."

"The privacy framework is technology neutral and does not require amendment to accommodate new communications technologies," he said.

"The regulatory and oversight structure, in place now for nearly a quarter of a century, has ensured that the imperatives of national security are balanced with democratic values," Gen. Hayden said then. See:

Under mounting pressure, the Bush Administration has groped for some legal justification for its departure from statutory requirements.

Attorney General Alberto Gonzales proposed today that the 2001 congressional resolution authorizing the use of "all necessary and appropriate force" against terrorists encompassed the right to conduct domestic wiretapping.

But that resolution plainly pertains to the use of military force, not intelligence collection.

Nor do the President's inherent authorities as commander in chief extend without limitation to warrantless surveillance of Americans.

"A state of war is not a blank check for the president when it comes to the rights of the nation's citizens," wrote Justice Sandra Day O'Connor in a ruling last year on the legal rights of detainees.

For background on the Foreign Intelligence Surveillance Act, see:

2004 FOREIGN MILITARY SALES DETAILED

The United States sold more than $12.6 billion worth of military equipment to foreign countries in 2004, according to a July 2005 report to Congress released in declassified form last week.

Items sold are broken down by country. Details of sales to several countries, including Australia, Japan and Taiwan, were blacked out in the declassified version.

The document was obtained under the Freedom of Information Act by Matthew Schroeder of the Federation of American Scientists Arms Sales Monitoring Project.

See the 2004 report to Congress on Foreign Military Sales here:

PRESIDENTIAL DIRECTIVE ON RECONSTRUCTION AND STABILIZATION

On December 7, President Bush issued National Security Presidential Directive 44 on "Mananagement of Interagency Efforts Concerning Reconstruction and Stabilization."

"The purpose of this Directive is to promote the security of the United States through improved coordination, planning, and implementation for reconstruction and stabilization assistance for foreign states and regions at risk of, in, or in transition from conflict or civil strife," the Directive states.

The full text of the Directive is posted here:

The use of presidential directives as an instrument of executive authority is discussed in "Presidential Directives: Background and Overview" by Harold C. Relyea, Congressional Research Service, updated January 7, 2005:

GAO INVENTORY OF AGENCY AUTOMATED INFO SYSTEMS (1991)

A descriptive inventory of more than one hundred automated information systems and databases used by government agencies in support of counter-drug law enforcement activities was compiled by the General Accounting Office in 1991 at the request of Congress.

The surprisingly expansive 75 page account is mainly of historical interest, though it may also be useful in focusing Freedom of Information Act requests and other research activities.

"Because the agencies consider the information contained in this report to be sensitive," the GAO wrote in 1991, "we have marked the report For Official Use Only."

It is still not included in GAO's public database. But a copy was obtained by Secrecy News.

See "War on Drugs: Inventory of Federal Agencies' Automated Information Systems," U.S. General Accounting Office, GAO/IMTEC-91-28FS, April 1991 (1.8 MB PDF file):

POSTSCRIPTS

  • Presidents have previously claimed authority over domestic communications, observed intelligence historian David Kahn, but they have done so with congressional sanction:

    "On 16 July 1918 a congressional resolution gave the president the power to assume control of wire communications during the war (40 Statutes at Large 904). A presidential proclamation of 22 July 1918 took that control and devolved the power on the postmaster general (40 Statutes Part 2, 1807-8). A law of 29 October 1918 (40 Statutes 1017-18) prohibited anybody from divulging the contents of those communications. The resolution was repealed in 41 Statutes 157."

  • In the 1990s, intrepid researcher Glenn Campbell probably did more than any other individual to make "Area 51" the most famous secret military base in the world. Now he has turned his peculiar talents to the even more challenging proceedings of family court in Las Vegas. See his web site www.familycourtchronicles.com and a profile of his activities in the Las Vegas Sun, "An eccentric's struggle for truth," December 18:

  • While the DNI Open Source Center monitors Lebanese Hizballah's unsavory Al Manar television broadcasts (Secrecy News, 12/15/05), Americans are effectively blocked from doing the same, observed Jack Shafer in Slate last year. See "Who's Afraid of Hezbollah TV? Not me":

    TIME OUT

    Secrecy News will resume publication after January 1, 2006.

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    Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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