Domestic Security

2006 - 2007

Materials arranged chronologically.

Bazan, Elizabeth B., and Jennifer K. Elsea. "Memorandum: Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information." Washington, DC: Congressional Research Service, Library of Congress, 5 Jan. 2006. Available at: http://www.fas.org/sgp/crs/intel/m010506.pdf.

After a detailed analysis of "the constitutional and statutory issues raised by the NSA electronic surveillance activity," the memorandum concludes that "the Administration's legal justification, as presented in the summary analysis from the Office of Legislative Affairs, does not seem to be as well-grounded as the tenor of that letter suggests."

Cumming, Alfred. "Memorandum: Statutory Procedures Under Which Congress Is To Be Informed of U.S. Intelligence Activities, Including Covert Actions." Washington, DC: Congressional Research Service, Library of Congress, 18 Jan. 2006. Available at: http://www.fas.org/sgp/crs/intel/m011806.pdf.

See Scott Shane, "Report Questions Legality of Briefings on Surveillance," New York Times, 19 Jan. 2006: A CRS legal analysis "concludes that the Bush administration's limited briefings for Congress" on NSA's "domestic eavesdropping without warrants are 'inconsistent with the law.'" The memorandum "explores the requirement in the National Security Act of 1947 that the committees be kept 'fully and currently informed' of intelligence activities. It notes that the law specifically allows notification of 'covert actions'" to the Republican and Democratic leaders of the House and Senate and of the Intelligence Committees, (the so-called Gang of Eight), "but says the security agency's program does not appear to be a covert action program."

Lichtblau, Eric. "Judges on Secretive Panel Speak Out on Spy Program." New York Times, 29 Mar. 2006. [http://www.nytimes.com]

On 28 March 2006, five former judges on the Foreign Intelligence Surveillance Court, "including one who resigned in apparent protest over President Bush's domestic eavesdropping, urged Congress ... to give the court a formal role in overseeing the surveillance program.... [S]everal former judges who served on the panel also voiced skepticism .... about the president's constitutional authority to order wiretapping on Americans without a court order."

Kaplan, David E. "Spies Among Us." U.S. News & World Report, 8 May 2006, 40-49.

"Despite a troubled history, police across the nation are keeping tabs on ordinary Americans.... U.S. News has identified nearly a dozen cases in which city and county police, in the name of homeland security, have surveilled or harassed animal-rights and antiwar protesters, union activists, and even library patrons surfing the Web." Includes sidebar, D.E.K., "When the Cops Only Saw Red," p. 48, on the local "Red Squads" of 1950s and 1960s.

Tumulty, Karen. "Inside Bush's Secret Spy Net." Time, 22 May 2006, 32-36.

"Your phone records have been enlisted in the war on terrorism. Should that make you worry more or less?"

Posner, Richard A. "We Need Our Own MI5." Washington Post, 15 Aug. 2006, A13. [http://www.washingtonpost.com]

Judge Posner's argument is clearly stated in the title to this Op-ed piece. The United States lacks "a counterpart to MI5. This is a serious gap in our defenses. Primary responsibility for national security intelligence has been given to the FBI. The bureau is a criminal investigation agency. Its orientation is toward arrest and prosecution rather than toward the patient gathering of intelligence with a view to understanding and penetrating a terrorist network."

Eggen, Dan, and Dafna Linzer. "Judge Rules Against Wiretaps: NSA Program Called Unconstitutional." Washington Post, 18 Aug. 2006, A1. [http://www.washingtonpost.com]

Judge Anna Diggs Taylor of the U.S. District Court of Eastern Michigan ruled on 17 August 2006 that NSA's "warrantless surveillance program is unconstitutional." Judge Taylor "ordered a halt to the wiretap program..., but both sides in the lawsuit agreed to delay that action until a Sept. 7 hearing.... The eavesdropping program ... allows the NSA to intercept telephone calls and e-mails between the United States and overseas without court approval in cases in which the government suspects one party of having links to terrorism." See also, Adam Liptak and Eric Lichtblau, "U.S. Judge Finds Wiretap Actions Violate the Law," New York Times, 18 Aug. 2006.

Lehman, John. "Five Years Later: Are We Any Safer?" U.S. Naval Institute Proceedings 132, no. 9 (Sep. 2006): 18-22.

The former Secretary of the Navy and 9/11 commission member does not really answer the question raised in the title. Other than that, however, this article is a powerful indictment of how Congress and the White House mishandled the intelligence reform effort. His most pointed criticisms are directed at the FBI ("Our attempt to reform the FBI has failed.") and the failure to create a strong DNI.

Posner, Richard A. Countering Terrorism: Blurred Focus, Halting Steps. Lanham, MD: Rowman and Littlefield, 2007.

Peake, Studies 52.1 (Mar. 2008) and Intelligencer 16.1 (Spring 2008), finds that the author "is convinced that creating a new MI5-like organization with only a security and counterintelligence mission is necessary to achieve effective domestic counterterrorism efforts." However, Posner does not consider "the level of personal and organizational disruption that creating another new intelligence organization would entail and the time required for it to become proficient." This work merits "very serious consideration."

Bazan, Elizabeth B., Gina Marie Stevens, and Brian T. Yeh. Government Access to Phone Calling Activity and Related Records: Legal Authorities. Washington, DC: Congressional Research Service, Library of Congress, 20 Aug. 2007. Available at: http://www.fas.org/sgp/crs/intel/RL33424.pdf.

"This report summarizes statutory authorities regarding access by the government, for either foreign intelligence or law enforcement purposes, to information related to telephone calling patterns or practices. Where pertinent, it also discusses statutory prohibitions against accessing or disclosing such information, along with relevant exceptions to those prohibitions."

Hudson, Audrey. "Homeland Security Revives Supersnoop." Washington Times, 8 Mar. 2007. [http://www.washingtontimes.com]

"Homeland Security officials are testing a supersnoop computer system [called ADVISE -- Analysis, Dissemination, Visualization, Insight and Semantic Enhancement] that sifts through personal information on U.S. citizens to detect possible terrorist attacks, prompting concerns from lawmakers who have called for investigations. The system uses the same data-mining process that was developed by the Pentagon's Total Information Awareness (TIA) project that was banned by Congress in 2003 because of vast privacy violations."

Block, Robert. "U.S. to Expand Domestic Use of Spy Satellites." Wall Street Journal, 15 Aug. 2007, A1. [http://online.wsj.com]

A May 2007 decision by DNI Michael McConnell "greatly expanded the range of federal and local authorities who can get access to information" from U.S. spy satellites. A memo to Secretary Michael Chertoff asked DHS "to facilitate access to the spy network on behalf of civilian agencies and law enforcement." DHS chief intelligence officer Charles Allen "will be in charge of the new program."

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