NPR : The Law Behind NSA Eavesdropping

NPR : The Law Behind NSA Eavesdropping: "The NSA: America's Eavesdropper-in-Chief
by Maria Godoy

"The National Security Agency might be described as the federal government's chief eavesdropper. Created in 1952 to centralize and broaden intelligence efforts previously managed by the military, the NSA is so secretive that for years, the U.S. government wouldn't even acknowledge its existence."

While it is absolutely necessary, especially in the realities we face in our current world, to have secret resources that aid our nation in protecting itself from terrorists, enemies and nations that would seek to undermine us in the eyes of the world, the NSA has long had a record of acting outside of the provisions of the Constitution, especially the Fourth Amendment, and away from most forms of oversight, scrutiny and checks/balances that were designed in our form of government. The NSA, CIA and other intelligence gathering agencies are not supposed to act in a manner inconsistent with our laws and first principles. But, it has a record of doing so.

"The NSA intercepts and decodes communications around the world to protect the United States from foreign security threats. In so doing, it spies on individuals, organizations and governments. The agency intercepts e-mails, phone calls, faxes and other communications using a system of space-based satellites and ground-based listening posts, among other tools. It shares the analyzed information with other government agencies."

Again, the NSA and agencies like it serve as a valuable tool for our defense. But there is a difference between monitoring the communications of a foreign government, known terrorists, identifiable enemies, and in circumstances where probable cause exists. Let us be clear, the FISA Court exists to assure that the NSA could legally tap into any form of communications where there was probable cause, and the standard for establishing the need for a warrant was specifically lowered from that required for a law enforcement warrant. Additionally, there is a provision in FISA that allows the government to establish the tap for 72 hours before actually seeking the warrant and using the intelligence gathered in that period to support the warrant. The is no logistical or logical argument that will sufficiently defend not using FISA provisions, not allowing court oversight, not fully informing congressional intelligence committees, and completely ignoring the law. None.

"The agency also keeps close tabs on its own people, tracking such details as who carpools to work together. It administers polygraph tests to employees and keeps detailed computer files on them."

Fun place to work, I am sure.

"During the Cold War, the NSA helped start the computer revolution by working with technology companies to develop faster, more sophisticated code-breaking machines. Cutting-edge technology helped the agency snoop on Soviet leaders, whose phone calls were regularly monitored by NSA employees."

We could argue that the NSA played a role in the computer revolution, but the NSA only had a small piece of that enterprise. But over the years, there have been numerous NSA screw-ups that have led to embarrassment.

"In 1999, investigators revealed the existence of Echelon, an electronic eavesdropping and intelligence-sharing network that the NSA developed during the Cold War with Britain, Australia and other allies to spy across national borders. The network was reportedly so extensive that it could potentially pick up on most communications on the planet. The next year, former CIA director James Woolsey admitted that the U.S. had been spying on foreign firms to see whether they were using bribery to win contracts from competing American companies. Woolsey did not specify whether Echelon was involved, but critics suspected it was. Privacy advocates questioned whether the NSA was using Echelon to spy on Americans as well."

This is one of those embarrassments: The NSA had no business doing industrial espionage. There is no defense role in doing so and the authority to do so was vague, arbitrary and capricious. This is only one of many incidents where questions regarding the scope of NSA surveillance was questioned, and the issue of domestic spying came into the light of day.

"The agency has been known to spy on Americans before. Most notoriously, in the 1960s Presidents Johnson and Nixon used the agency to listen in on hundreds of Americans, including Vietnam War protesters and the Rev. Martin Luther King Jr."

The FBI was also involved in unauthorized and illegal spying, including developing dossiers on Bobby Kennedy, Eugene McCarthy, and others involved in the anti-war protests of the Vietnam and Civil Rights eras. As a result, we had developed a principle that no government agency was to ever have carte blanche in regard to spying, especially domestic surveillance, and even more stringent rules regarding electronic surveillance.

"Revelations about these Vietnam-era abuses were investigated by Congress in the mid-1970s, prompting lawmakers to rein in the NSA with the 1978 Foreign Intelligence Surveillance Act. The law lets the agency surveil Americans suspected of being agents of a foreign power with the permission of a special FISA Court. Judges on the court are appointed by the U.S. chief justice for seven-year non-renewable terms. In 2002, Congress added four new judges to the court to deal with an anticipated increase in cases resulting from the war on terrorism. The court has rarely denied a request for a warrant."

FISA was a direct effort to put specific parameters around the NSA and other government agencies, provide judicial oversight, and protect US citizens from illegal, unconstitutional surveillance. Attorney General Gonzalez totally ignored this history and the foundation of FISA in his testimony before the senate judiciary committee. It would appear that several other Republican senators forgot that history as well, especially Sen. Cronyn.

"The willingness of FISA to accommodate requests is one reason why many civil libertarians and lawmakers are concerned by revelations that since 2002, the NSA has been bypassing the FISA Court and conducting surveillance on domestic communications without a warrant. Critics emphasize that FISA allows emergency wiretaps, without a warrant, for 72 hours, as long as a warrant is obtained within that time frame. The Bush administration counters that FISA's warrant requirements don't allow the spy agency to keep up with the flood of phone and Internet traffic it needs to monitor for terrorist threats in a timely manner. And once again, lawmakers find themselves asking whether the agency that eavesdrops on the world may itself need to be watched more closely."

"Liberty demands our attention. Our inattention creates the perfect breeding environment for fascism and those that would govern us in a climate of fear and oppression. We must teach our children that Liberty is held in the smallest details and the highest of regard. We must arouse our neighbors out of the sleep that is apathy to preserve Liberty in our time. Our clarion call is the Constitution and the Bill of Rights. It is not our military might that makes us a great nation, but our willingness to stand on the principles that preserve and guarantee Liberty to one and all. Liberty is a high ideal and a hard task master. But when Liberty diminishes--even in the smallest way--our own greatness is diminished tenfold." -- Jim Downey