Thursday, March 02, 2006

Dean Koh's Testimony on NSA Surveillance

Some commentary on the NSA's surveillance program. Very well written. Of course, I expect nothing less from the dean of the country's most prestigious law school. (Note: these are not my personal views, simply some well written commentary)

Yale Law School Dean Harold Hongju Koh testified before the U.S. Senate Judiciary Committee on Tuesday, February 28, 2006, at the full committee hearing on "Wartime Executive Power and the NSA's Surveillance Authority II."

Yale Law School - Dean Koh's Testimony on NSA Surveillance

Quoted from the first few pages:
To state my conclusions briefly: I have served the United States government in both Republican and Democratic Administrations. I have also filed lawsuits against both Republican and Democratic administrations when I became convinced that their conduct violated the law. In my professional opinion, the ongoing NSA domestic surveillance program is blatantly illegal, whether or not – as its defenders claim – it is limited to international calls with one end in the United States.

None of the program’s defenders – including those who appear today – has identified any convincing legal justification for conducting such a sweeping program without the legally required checks of congressional authorization and oversight and judicial review. My government service makes me fully sensitive to the ongoing threat from al Qaeda and the need for law enforcement officials to be able to gather vital information before another terrorist attack occurs. Of course, in time of war, our Constitution recognizes the President as Commander in Chief. But the same Constitution requires that the Commander in Chief obey the Fourth Amendment, which guarantees that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” By so saying, the Fourth Amendment requires that any government surveillance be reasonable, supported except in emergency situations by warrants issued by courts, and based upon specific probable cause. The current NSA surveillance program, as I understand it, violates all three constitutional standards.

For nearly thirty years, the Foreign Intelligence Surveillance Act of 1978 (FISA) has guaranteed compliance with these constitutional requirements by providing a comprehensive, exclusive statutory framework for electronic surveillance. Even as Commander in Chief, the President carries the solemn constitutional duty to “take Care that the Laws be faithfully executed.” Yet apparently, the NSA has violated these statutory requirements repeatedly by carrying on a sustained program of secret, unreviewed, warrantless electronic surveillance of American citizens and residents. As Justice Paterson wrote two centuries ago in United States v. Smith: “[t]he president of the United States cannot control the statute, nor dispense with its execution, and still less can he authorize a person to do what law forbids.”


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