Friday, December 16, 2005

Bush Secret Order Illegal, Punishable Under Patriot Act



The recent disclosure that "President Bush signed a secret order in 2002 authorizing the National Security Agency to eavesdrop on U.S. citizens" is a bombshell. If true, the President authorized criminal eavesdropping on US citizens, punishable by up to $10,000 per aggrieved person, or the total of any loss incurred by that person as a result, whichever is greater.

According to the New York Times, the NSA has acted upon this secret order consistently over the past three years, spying on the e-mail, phone conversations, and other electronic communications of "hundreds, perhaps thousands" of people in America.

This is illegal under several sections of US Code, defined by the Foreign Intelligence Surveillance Act, which very clearly sets out the conditions under which electronic surveilance can be carried out.

The following breaks down the many ways in which President Bush broke US law (including the Patriot Act) by signing this secret order. I invite feedback and criticism in the comments section!

In English: Why What Bush Did Is Illegal
(distilled largely from this document on the laws involved)
  • "Electronic surveillance" is defined as targeted surveillance of any usually-private electronic communication to or from a specific person in the US. (e.g., a phone conversation, which usually cannot be intercepted without a court-ordered wiretap)
    50 U.S.C. § 1801(f)(2)
  • The President can authorize such surveillance without a court order in only two situations. Surveillance can be authorized...
    1. ...for one year if the Attorney General certifies in writing that it is unlikely to intercept the communications of any "United States person" AND that steps will be taken to further minimize any such unlikely interception (these steps must be reported to congress by the AG).
      50 U.S.C. § 1802

    2. ..for 15 days following a declaration of war by Congress.
      50 U.S.C. § 1802
  • If these criteria are not met, people who have been spied upon can:
    1. Sue for actual or punitive damages, plus legal costs, if the information was disclosed.
      50 U.S.C. § 1827

    2. Under the Patriot Act, sue for actual damages or $10,000, whichever is greater, plus legal costs.
      Patriot Act section 223, 18 U.S.C. § 2712

So let's review:
  • Did the President authorize the NSA to conduct Electronic Sureveillance?
    • Yes. The NSA has intercepted phone calls and emails of hundreds of people in the US.
  • Did the President violate US Law with such authorization?
    • With the information currently available, yes. The NSA says it still seeks warrants for 'entirely domestic' communications, but does not say it does so when intercepting communications of US persons. Of course, there also has been no declaration of war.

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