Monday, January 02, 2006

When executive war power attacks

Bruce Schneier, a security expert mainly known for his expertise with encryption and computer security, has an eye-opening article on the implications of the Bush Administration's authorization in 2001 of the expansion of the National Security Agency's eavesdropping powers inward to include citizens of the United States.

Awareness of this authorization implicates many issues including the compromise of the 4th Amendment Constitutional principle of the protection against unreasonable searches and seizures, the separation of powers among the three branches of government, the limit of Presidential power during times of war, and even what "war" means. All of these things are being discussed, and Schneier's article has many links for further reading.

One issue I was not aware of is related to the resignation of federal District Court judge James Robertson who is also a member of the Foreign Intelligence Surveillance Court (FISC). The FISC was created in 1978 when the Foreign Intelligence Surveillance Act (FISA) was made law, in order to review warrant requests for wiretaps and other electronic surveillance made by U.S. intelligence and / or law enforcement agencies in connection with suspected spy and terrorist activity.

Schneier pulls the relevant passages out of a Washington Post article (finish reading the first page before going to the second or you'll have to register to go back) reporting the resignation:
Two associates familiar with his decision said yesterday that Robertson privately expressed deep concern that the warrantless surveillance program authorized by the president in 2001 was legally questionable and may have tainted the FISA court's work.

....Robertson indicated privately to colleagues in recent conversations that he was concerned that information gained from warrantless NSA surveillance could have then been used to obtain FISA warrants. FISA court Presiding Judge Colleen Kollar-Kotelly, who had been briefed on the spying program by the administration, raised the same concern in 2004 and insisted that the Justice Department certify in writing that it was not occurring.

"They just don't know if the product of wiretaps were used for FISA warrants -- to kind of cleanse the information," said one source, who spoke on the condition of anonymity because of the classified nature of the FISA warrants. "What I've heard some of the judges say is they feel they've participated in a Potemkin court."

If any of you are like me you'd like to know what a Potemkin court is. It's not directly defined in Wikipedia (amazing!) but is referred to under Potemkin village as a change to the use of the name "Potemkin" to an adjective. According to Wikipedia, when the term modifies "court" the resulting phrase indicates that "the court's reason to exist is being called into question, not its standard of justice."

So not only has the current legal procedure for obtaining warrants to surveil United States citizens been bypassed, the court that was established specifically to review such warrant requests has potentially been compromised because it is unknown whether unwarranted NSA surveillance was used as the basis of apparently legal FISA warrants issued since 2001.

I'm not sure I can make a final conclusion with this one. I understand there can be an urgent need when national security is at stake, but how far do we want the government to go? It is very likely that as time progresses from the horror of the September 11th terrorist attacks on the World Trade Center and the Pentagon the power of the executive branch will recede and self-correct as Congress asserts itself again. The problem is, now that the U.S. has characterized our struggle as a "war on terror," when does the "war" end?

Obviously there will be hearings, and the FISA law may ultimately need to be amended or rewritten to take modern realities into consideration. It's times like these that the importance of the First Amendment protection of a free press is paramount to the existence of a representative democracy.

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