A small editorial about recent events.

[Perry E. Metzger]

Bill Stewart <bill.stewart at pobox.com> writes:
> At 10:58 AM 12/18/2005, Perry E. Metzger wrote:
>>The President claims he has the prerogative to order such
>>surveillance. The law unambiguously disagrees with him.
>>
>>There are minor exceptions in the law, but they clearly do not apply
>>in this case. They cover only the 15 days after a declaration of war
>>by congress, a period of 72 hours prior to seeking court authorization
>>(which was never sought), and similar exceptions that clearly are not
>>germane.
>
> One of the NYT articles also said that the
> President's lawyers gave him an opinion saying that the
> post-9/11 resolutions gave him the authority to do this.
> If the resolutions actually did that, then that could
> supersede the previous laws that made it criminal.

I have been unable to find any evidence in the text of said
resolutions that they in any way altered or amended the law on this,
even temporarily.  Perhaps it is the argument of the President's
lawyers that something analogous to a state of war was authorized, but
the fact that there is a time limit even when an explicit declaration
of war exists leads me to disbelieve such arguments on their face.

I fully expect the President's lawyers and media spokespeople to
vigorously deny that the President has broken a criminal statute. It
would, in fact, be shocking if they did anything else -- an attorney
or spokesman who claimed in the press that his client had committed a
crime would be a very unusual thing indeed. That should not sway us,
the members of the public.

Unlike previous eras, it is trivial for anyone who wishes to to
examine the US Code, in moments, without having to leave their
desk. It is trivial for someone to examine the texts of congressional
resolutions, too. It is fairly simple to verify that regardless of any
assertions made by the President's legal advocates and staff, a
felony has been committed. The White House has not even denied that
the activities took place, so the only real question at hand is the
law, and anyone can read the law for themselves.

> But this wasn't the only domestic spying story in the news this week.

Yes, but this was the first instance that I know of in which the White
House has essentially admitted that the President specifically
solicited and authorized the commission of a federal crime.

Again, I encourage people to go and read:

http://www.law.cornell.edu/uscode/html/uscode50/usc_sup_01_50_10_36_20_I.html

Unlike most federal law, this section of the US Code is exceptionally
clear and unambiguous. It declares that surveillance of US citizens is
legal only with court approval, creates a (useless) court to authorize
surveillance of US citizens, it lists a few exceptions to the law (none
of which apply) and then states:

    A person is guilty of an offense if he intentionally[...] engages
    in electronic surveillance under color of law except as authorized
    by statute[...]
    [...]
    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.
    [...]
    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. 

This law was specifically instituted in the 1970s after it was
discovered that the NSA was conducting surveillance of US
persons. There can be no question as to its intent.

Our problem in this instance is not the facts, since the White House
has stipulated the facts, and it is not the law, since the law is
clear on the fact that the actions taken are criminal. Our problem is
with the fact that our system of justice depends on human beings
who are often scared of the consequences of prosecuting the
powerful. It is up to us as citizens to make it clear to our
representatives that we care.

The ugliest thing in this incident is the fact it was clearly a pure
demonstration of power. The FISC rarely if ever denies requests, and
that the law specifically allows surveillance to begin BEFORE the FISC
is asked for an order. The administration would have had no difficulty
whatsoever routinely spying on US citizens without breaking the
law. The administration is clearly so fully convinced that the
President is above the law that it did not bother even to pay lip
service to such worthless protections as the law provided for.

> We'll see if he gets away with it this time - he needs to be
> stopped.

He will get away with it if we stand idly by. If this is to be
stopped, people like us must make our voices heard.


Perry

---------------------------------------------------------------------
The Cryptography Mailing List
Unsubscribe by sending "unsubscribe cryptography" to majordomo at metzdowd.com