Surveillance


	Constitution of the United States of America Amendment IV: Search and Seizure. "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

U.S. Code:
Title 50 - War and National Defense, Chapter 36 - Foreign Intelligence Surveillance,
Subchapter I - Electronic Surveillance, sec. 1801.
Definitions (h) (4)

“…with respect to any electronic surveillance approved pursuant to section 1802 (a) of this title, procedures that require that no contents of any communication to which a United States person is a party shall be disclosed, disseminated, or used for any purpose or retained for longer than 72 hours unless a court order under section 1805 of this title is obtained or unless the Attorney General determines that the information indicates a threat of death or serious bodily harm to any person.”

sec. 1809. Criminal sanctions

(a) Prohibited activities: A person is guilty of an offense if he intentionally—

engages in electronic surveillance under color of law except as authorized by statute; or
discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by statute.

(b) Defense: It is a defense to a prosecution under subsection (a) of this section that the defendant was a law enforcement or investigative officer engaged in the course of his official duties and the electronic surveillance was authorized by and conducted pursuant to a search warrant or court order of a court of competent jurisdiction.
(c) Penalties: An offense described in this section is punishable by a fine of not more than $10,000 or imprisonment for not more than five years, or both.
(d) Federal jurisdiction: There is Federal jurisdiction over an offense under this section if the person committing the offense was an officer or employee of the United States at the time the offense was committed.

October, 2001: In response to 9/11 attack Bush requests FISA amendments, modernizing the law and allowing the government to listen in to terrorists’ communications effectively.

“The bill before me takes account of the new realities and dangers posed by modern terrorists. It will help law enforcement to identify, to dismantle, to disrupt, and to punish terrorists before they strike…”

“Under the new law, officials may conduct court-ordered surveillance of all modern forms of communication used by terrorists.”

October, 2001: Bush tells NSA to ignore the law, and conduct warrantless surveillance, in violation of the law he just had amended only days before

“Now, by the way, any time you hear the United States government talking about wiretap, it requires - a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so.”

Responding to a question following the NYT publication of apparent White House FISA violations: “…why did you skip the basic safeguards of asking courts for permission for the intercepts?“

“…FISA is for long-term monitoring. What is needed in order to protect the American people is the ability to move quickly to detect.

Now, having suggested this idea, I then, obviously, went to the question, is it legal to do so? I am -- I swore to uphold the laws. Do I have the legal authority to do this? And the answer is, absolutely. As I mentioned in my remarks, the legal authority is derived from the Constitution, as well as the authorization of force by the United States Congress.”

“When FISA was passed in 1978, there was no widely accessible Internet, and almost all calls were made on fixed landlines. Since then, the nature of communications has changed, quite dramatically. The terrorists who want to harm America can now buy disposable cell phones, and open anonymous e-mail addresses. Our laws need to change to take these changes into account.”

Statement Of Sen. Patrick Leahy,
Ranking Member, Senate Judiciary Committee

Hearing On

"Wartime Executive Power And The NSA's Surveillance Authority"
Monday, February 6, 2006

“The law has been updated five times since September 11, 2001, in order to keep pace with intelligence needs and technological developments. It provides broad and flexible authority. On July 31, 2002, the Justice Department testified that this law “is a highly flexible statute that has proven effective” and noted: “When you are trying to prevent terrorist acts, that is really what FISA was intended to do and it was written with that in mind.”

Comment:

To me, this series of President Bush’s quotes, intercut with the events that actually occurred, demonstrate an intentional pattern of deception – particularly stating in December 2004 that he understood warrants were required for surveillance while knowing he had ordered warrantless surveillance as early as October 2001. Further, his statement in September 2006 regarding the inadequacy of the FISA regulations is utterly at odds with the record of changes made in FISA (at the government’s request) and his (and his Justice Department's) previously stated satisfaction with the changes made.

The continued use of warrantless surveillance seems indefensible and the persistent use of warrantless surveillance and attacks against those who would question the practice seem, to me, consistent with concealing or justifying known illegal behavior.