Entries Tagged "courts"

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Unreliable Programming

One response to software liability:

Now suppose that there was a magical wand for taking snapshots of computer states just before crashes. Or that the legal system would permit claims on grounds of only the second part of the proof. Then there would be a strong positive incentive to write software that fails unreproducibly: “If our software’s errors cannot be demonstrated reliably in court, we will never lose money in product liability cases.”

Follow the link for examples.

Posted on July 11, 2006 at 7:47 AMView Comments

Yet Another Redacting Failure

This sort of thing happens so often it’s no longer news:

Conte’s e-mails were intended to be blacked out in a 51-page electronic filing Wednesday in which the government argued against the Chronicle’s motion to quash the subpoena. Eight of those pages were not supposed to be public.

But the redacted parts in the computer file could be seen by copying them and pasting the material in a word processing program.

Another news article here.

Posted on June 26, 2006 at 12:29 PMView Comments

Lying to Government Agents

“How to Avoid Going to Jail under 18 U.S.C. Section 1001 for Lying to Government Agents”

Title 18, United States Code, Section 1001 makes it a crime to: 1) knowingly and willfully; 2) make any materially false, fictitious or fraudulent statement or representation; 3) in any matter within the jurisdiction of the executive, legislative or judicial branch of the United States. Your lie does not even have to be made directly to an employee of the national government as long as it is “within the jurisdiction” of the ever expanding federal bureaucracy. Though the falsehood must be “material” this requirement is met if the statement has the “natural tendency to influence or [is] capable of influencing, the decision of the decisionmaking body to which it is addressed.” United States v. Gaudin, 515 U.S. 506, 510 (1995). (In other words, it is not necessary to show that your particular lie ever really influenced anyone.) Although you must know that your statement is false at the time you make it in order to be guilty of this crime, you do not have to know that lying to the government is a crime or even that the matter you are lying about is “within the jurisdiction” of a government agency. United States v. Yermian, 468 U.S. 63, 69 (1984). For example, if you lie to your employer on your time and attendance records and, unbeknownst to you, he submits your records, along with those of other employees, to the federal government pursuant to some regulatory duty, you could be criminally liable.

Posted on June 5, 2006 at 1:24 PMView Comments

Man Sues Compaq for False Advertising

Convicted felon Michael Crooker is suing Compaq (now HP) for false advertising. He bought a computer promised to be secure, but the FBI got his data anyway:

He bought it in September 2002, expressly because it had a feature called DriveLock, which freezes up the hard drive if you don’t have the proper password.

The computer’s manual claims that “if one were to lose his Master Password and his User Password, then the hard drive is useless and the data cannot be resurrected even by Compaq’s headquarters staff,” Crooker wrote in the suit.

Crooker has a copy of an ATF search warrant for files on the computer, which includes a handwritten notation: “Computer lock not able to be broken/disabled. Computer forwarded to FBI lab.” Crooker says he refused to give investigators the password, and was told the computer would be broken into “through a backdoor provided by Compaq,” which is now part of HP.

It’s unclear what was done with the laptop, but Crooker says a subsequent search warrant for his e-mail account, issued in January 2005, showed investigators had somehow gained access to his 40 gigabyte hard drive. The FBI had broken through DriveLock and accessed his e-mails (both deleted and not) as well as lists of websites he’d visited and other information. The only files they couldn’t read were ones he’d encrypted using Wexcrypt, a software program freely available on the Internet.

I think this is great. It’s about time that computer companies were held liable for their advertising claims.

But his lawsuit against HP may be a long shot. Crooker appears to face strong counterarguments to his claim that HP is guilty of breach of contract, especially if the FBI made the company provide a backdoor.

“If they had a warrant, then I don’t see how his case has any merit at all,” said Steven Certilman, a Stamford attorney who heads the Technology Law section of the Connecticut Bar Association. “Whatever means they used, if it’s covered by the warrant, it’s legitimate.”

If HP claimed DriveLock was unbreakable when the company knew it was not, that might be a kind of false advertising.

But while documents on HP’s web site do claim that without the correct passwords, a DriveLock’ed hard drive is “permanently unusable,” such warnings may not constitute actual legal guarantees.

According to Certilman and other computer security experts, hardware and software makers are careful not to make themselves liable for the performance of their products.

“I haven’t heard of manufacturers, at least for the consumer market, making a promise of computer security. Usually you buy naked hardware and you’re on your own,” Certilman said. In general, computer warrantees are “limited only to replacement and repair of the component, and not to incidental consequential damages such as the exposure of the underlying data to snooping third parties,” he said. “So I would be quite surprised if there were a gaping hole in their warranty that would allow that kind of claim.”

That point meets with agreement from the noted computer security skeptic Bruce Schneier, the chief technology officer at Counterpane Internet Security in Mountain View, Calif.

“I mean, the computer industry promises nothing,” he said last week. “Did you ever read a shrink-wrapped license agreement? You should read one. It basically says, if this product deliberately kills your children, and we knew it would, and we decided not to tell you because it might harm sales, we’re not liable. I mean, it says stuff like that. They’re absurd documents. You have no rights.”

My final quote in the article:

“Unfortunately, this probably isn’t a great case,” Schneier said. “Here’s a man who’s not going to get much sympathy. You want a defendant who bought the Compaq computer, and then, you know, his competitor, or a rogue employee, or someone who broke into his office, got the data. That’s a much more sympathetic defendant.”

Posted on May 3, 2006 at 9:26 AMView Comments

Da Vinci Code Ruling Code

There is a code embedded in the ruling in The Da Vinci Code plagiarism case.

You can find it by searching for the characters in italic and boldface scattered throughout the ruling. The first characters spell out “SMITHCODE”: that’s the name of the judge who wrote the ruling The rest remains unsolved.

According to The Times, the remaining letters are: J, a, e, i, e, x, t, o, s, t, p, s, a, c, g, r, e, a, m, q, w, f, k, a, d, p, m, q, z.

According to The Register, the remaining letters are: j a e i e x t o s t g p s a c g r e a m q w f k a d p m q z v.

According to one of my readers, who says he “may have missed some letters,” it’s: SMITHYCODEJAEIEXTOSTGPSACGREAMQWFKADPMQZV.

I think a bunch of us need to check for ourselves, and then compare notes.

And then we have to start working on solving the thing.

From the BBC:

Although he would not be drawn on his code and its meaning, Mr Justice Smith said he would probably confirm it if someone cracked it, which was “not a difficult thing to do”.

As an aside, I am mentioned in Da Vinci Code. No, really. Page 199 of the American hardcover edition. “Da Vinci had been a cryptography pioneer, Sophie knew, although he was seldom given credit. Sophie’s university instructors, while presenting computer encryption methods for securing data, praised modern cryptologists like Zimmermann and Schneier but failed to mention that it was Leonardo who had invented one of the first rudimentary forms of public key encryption centuries ago.”

That’s right. I am a realistic background detail.

EDITED TO ADD (4/28): The code is broken. Details are in The New York Times:

Among Justice Smith’s hints, he told decoders to look at page 255 in the British paperback edition of “The Da Vinci Code,” where the protagonists discuss the Fibonacci Sequence, a famous numerical series in which each number is the sum of the two preceding ones. Omitting the zero as Dan Brown, “The Da Vinci Code” author, does the series begins 1, 1, 2, 3, 5, 8, 13, 21.

Solving the judge’s code requires repeatedly applying the Fibonacci Sequence, through the number 21, to the apparently random coded letters that appear in boldfaced italics in the text of his ruling: JAEIEXTOSTGPSACGREAMQWFKADPMQZVZ.

For example, the fourth letter of the coded message is I. The fourth number of the Fibonacci Sequence, as used in “The Da Vinci Code,” is 3. Therefore, decoding the I requires an alphabet that starts at the third letter of the regular alphabet, C. I is the ninth letter regularly; the ninth letter of the alphabet starting with C is K; thus, the I in the coded message stands for the letter K.

The judge inserted two twists to confound codebreakers. One is a typographical error: a letter that should have been an H in both the coded message and its translation is instead a T. The other is drawn from “Holy Blood, Holy Grail,” the other book in the copy right case. It concerns the number 2 in the Fibonacci series, which becomes a requirement to count two letters back in the regular alphabet rather than a signal to use an alphabet that begins with B. For instance, the first E in the coded message, which corresponds to a 2 in the Fibonacci series, becomes a C in the answer.

The message reads: “Jackie Fisher who are you Dreadnought.”

I’m disappointed, actually. That was a whopper of a hint, and I would have preferred the judge to keep quiet.

EDITED TO ADD (5/8): Commentary on my name being in The Da Vinci Code.

Posted on April 27, 2006 at 6:47 PMView Comments

AT&T Assisting NSA Surveillance

Interesting details emerging from EFF’s lawsuit:

According to a statement released by Klein’s attorney, an NSA agent showed up at the San Francisco switching center in 2002 to interview a management-level technician for a special job. In January 2003, Klein observed a new room being built adjacent to the room housing AT&T’s #4ESS switching equipment, which is responsible for routing long distance and international calls.

“I learned that the person whom the NSA interviewed for the secret job was the person working to install equipment in this room,” Klein wrote. “The regular technician work force was not allowed in the room.”

Klein’s job eventually included connecting internet circuits to a splitting cabinet that led to the secret room. During the course of that work, he learned from a co-worker that similar cabinets were being installed in other cities, including Seattle, San Jose, Los Angeles and San Diego.

“While doing my job, I learned that fiber optic cables from the secret room were tapping into the Worldnet (AT&T’s internet service) circuits by splitting off a portion of the light signal,” Klein wrote.

The split circuits included traffic from peering links connecting to other internet backbone providers, meaning that AT&T was also diverting traffic routed from its network to or from other domestic and international providers, according to Klein’s statement.

The secret room also included data-mining equipment called a Narus STA 6400, “known to be used particularly by government intelligence agencies because of its ability to sift through large amounts of data looking for preprogrammed targets,” according to Klein’s statement.

Narus, whose website touts AT&T as a client, sells software to help internet service providers and telecoms monitor and manage their networks, look for intrusions, and wiretap phone calls as mandated by federal law.

More about what the Narus box can do.

EDITED TO ADD (4/14): More about Narus.

Posted on April 14, 2006 at 7:58 AMView Comments

Evading Copyright Through XOR

Monolith is an open-source program that can XOR two files together to create a third file, and—of course—can XOR that third file with one of the original two to create the other original file.

The website wonders about the copyright implications of all of this:

Things get interesting when you apply Monolith to copyrighted files. For example, munging two copyrighted files will produce a completely new file that, in most cases, contains no information from either file. In other words, the resulting Mono file is not “owned” by the original copyright holders (if owned at all, it would be owned by the person who did the munging). Given that the Mono file can be combined with either of the original, copyrighted files to reconstruct the other copyrighted file, this lack of Mono ownership may be seem hard to believe.

The website then postulates this as a mechanism to get around copyright law:

What does this mean? This means that Mono files can be freely distributed.

So what? Mono files are useless without their corresponding Basis files, right? And the Basis files are copyrighted too, so they cannot be freely distributed, right? There is one more twist to this idea. What happens when we use Basis files that are freely distributable? For example, we could use a Basis file that is in the public domain or one that is licensed for free distribution. Now we are getting somewhere.

None of the aforementioned properties of Mono files change when we use freely distributable Basis files, since the same arguments hold. Mono files are still not copyrighted by the people who hold the copyrights over the corresponding Element files. Now we can freely distribute Mono files and Basis files.

Interesting? Not really. But what you can do with these files, in the privacy of your own home, might be interesting, depending on your proclivities. For example, you can use the Mono files and the Basis files to reconstruct the Element files.

Clever, but it won’t hold up in court. In general, technical hair splitting is not an effective way to get around the law. My guess is that anyone who distributes that third file—they call it a “Mono” file—along with instructions on how to recover the copyrighted file is going to be found guilty of copyright violation.

The correct way to solve this problem is through law, not technology.

Posted on March 30, 2006 at 8:07 AMView Comments

Unfortunate Court Ruling Regarding Gramm-Leach-Bliley

A Federal Court Rules That A Financial Institution Has No Duty To Encrypt A Customer Database“:

In a legal decision that could have broad implications for financial institutions, a court has ruled recently that a student loan company was not negligent and did not have a duty under the Gramm-Leach-Bliley statute to encrypt a customer database on a laptop computer that fell into the wrong hands.

Basically, an employee of Brazos Higher Education Service Corporation, Inc., had customer information on a laptop computer he was using at home. The computer was stolen, and a customer sued Brazos.

The judge dismissed the lawsuit. And then he went further:

Significantly, while recognizing that Gramm-Leach-Bliley does require financial institutions to protect against unauthorized access to customer records, Judge Kyle held that the statute “does not prohibit someone from working with sensitive data on a laptop computer in a home office,” and does not require that “any nonpublic personal information stored on a laptop computer should be encrypted.”

I know nothing of the legal merits of the case, nor do I have an opinion about whether Gramm-Leach-Bliley does or does not require financial companies to encrypt personal data in its purview. But I do know that we as a society need to force companies to encrypt personal data about us. Companies won’t do it on their own—the market just doesn’t encourage this behavior—so legislation or liability are the only available mechanisms. If this law doesn’t do it, we need another one.

EDITED TO ADD (2/22): Some commentary here.

Posted on February 21, 2006 at 1:34 PMView Comments

How the French Spy on Their Citizens

Interesting article on how the French utilize domestic spying as a counterterrorism tool:

In the French system, an investigating judge is the equivalent of an empowered U.S. prosecutor. The judge is in charge of a secret probe, through which he or she can file charges, order wiretaps, and issue warrants and subpoenas. The conclusions of the judge are then transmitted to the prosecutor’s office, which decides whether to send the case to trial. The antiterrorist magistrates have even broader powers than their peers. For instance, they can request the assistance of the police and intelligence services, order the preventive detention of suspects for six days without charge, and justify keeping someone behind bars for several years pending an investigation. In addition, they have an international mandate when a French national is involved in a terrorist act, be it as a perpetrator or as a victim. As a result, France today has a pool of specialized judges and investigators adept at dismantling and prosecuting terrorist networks.

Posted on January 24, 2006 at 6:25 AMView Comments

The Security Threat of Unchecked Presidential Power

This past Thursday, the New York Times exposed the most significant violation of federal surveillance law in the post-Watergate era. President Bush secretly authorized the National Security Agency to engage in domestic spying, wiretapping thousands of Americans and bypassing the legal procedures regulating this activity.

This isn’t about the spying, although that’s a major issue in itself. This is about the Fourth Amendment protections against illegal search. This is about circumventing a teeny tiny check by the judicial branch, placed there by the legislative branch, placed there 27 years ago—on the last occasion that the executive branch abused its power so broadly.

In defending this secret spying on Americans, Bush said that he relied on his constitutional powers (Article 2) and the joint resolution passed by Congress after 9/11 that led to the war in Iraq. This rationale was spelled out in a memo written by John Yoo, a White House attorney, less than two weeks after the attacks of 9/11. It’s a dense read and a terrifying piece of legal contortionism, but it basically says that the president has unlimited powers to fight terrorism. He can spy on anyone, arrest anyone, and kidnap anyone and ship him to another country … merely on the suspicion that he might be a terrorist. And according to the memo, this power lasts until there is no more terrorism in the world.

Yoo starts by arguing that the Constitution gives the president total power during wartime. He also notes that Congress has recently been quiescent when the president takes some military action on his own, citing President Clinton’s 1998 strike against Sudan and Afghanistan.

Yoo then says: “The terrorist incidents of September 11, 2001, were surely far graver a threat to the national security of the United States than the 1998 attacks. … The President’s power to respond militarily to the later attacks must be correspondingly broader.”

This is novel reasoning. It’s as if the police would have greater powers when investigating a murder than a burglary.

More to the point, the congressional resolution of Sept. 14, 2001, specifically refused the White House’s initial attempt to seek authority to preempt any future acts of terrorism, and narrowly gave Bush permission to go after those responsible for the attacks on the Pentagon and World Trade Center.

Yoo’s memo ignored this. Written 11 days after Congress refused to grant the president wide-ranging powers, it admitted that “the Joint Resolution is somewhat narrower than the President’s constitutional authority,” but argued “the President’s broad constitutional power to use military force … would allow the President to … [take] whatever actions he deems appropriate … to pre-empt or respond to terrorist threats from new quarters.”

Even if Congress specifically says no.

The result is that the president’s wartime powers, with its armies, battles, victories, and congressional declarations, now extend to the rhetorical “War on Terror”: a war with no fronts, no boundaries, no opposing army, and—most ominously—no knowable “victory.” Investigations, arrests, and trials are not tools of war. But according to the Yoo memo, the president can define war however he chooses, and remain “at war” for as long as he chooses.

This is indefinite dictatorial power. And I don’t use that term lightly; the very definition of a dictatorship is a system that puts a ruler above the law. In the weeks after 9/11, while America and the world were grieving, Bush built a legal rationale for a dictatorship. Then he immediately started using it to avoid the law.

This is, fundamentally, why this issue crossed political lines in Congress. If the president can ignore laws regulating surveillance and wiretapping, why is Congress bothering to debate reauthorizing certain provisions of the Patriot Act? Any debate over laws is predicated on the belief that the executive branch will follow the law.

This is not a partisan issue between Democrats and Republicans; it’s a president unilaterally overriding the Fourth Amendment, Congress and the Supreme Court. Unchecked presidential power has nothing to do with how much you either love or hate George W. Bush. You have to imagine this power in the hands of the person you most don’t want to see as president, whether it be Dick Cheney or Hillary Rodham Clinton, Michael Moore or Ann Coulter.

Laws are what give us security against the actions of the majority and the powerful. If we discard our constitutional protections against tyranny in an attempt to protect us from terrorism, we’re all less safe as a result.

This essay was published today as an op-ed in the Minneapolis Star Tribune.

Here’s the opening paragraph of the Yoo memo. Remember, think of this power in the hands of your least favorite politician when you read it:

You have asked for our opinion as to the scope of the President’s authority to take military action in response to the terrorist attacks on the United States on September 11, 2001. We conclude that the President has broad constitutional power to use military force. Congress has acknowledged this inherent executive power in both the War Powers Resolution, Pub. L. No. 93-148, 87 Stat. 555 (1973), codified at 50 U.S.C. § 1541-1548 (the “WPR”), and in the Joint Resolution passed by Congress on September 14, 2001, Pub. L. No. 107-40, 115 Stat. 224 (2001). Further, the President has the constitutional power not only to retaliate against any person, organization, or State suspected of involvement in terrorist attacks on the United States, but also against foreign States suspected of harboring or supporting such organizations. Finally, the President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11.

There’s a similar reasoning in the Braybee memo, which was written in 2002 about torture:

In a series of opinions examining various legal questions arising after September 11, we have examined the scope of the President’s Commander-in-Chief power. . . . Foremost among the objectives committed by the Constitution to [the President’s] trust. As Hamilton explained in arguing for the Constitution’s adoption, “because the circumstances which may affect the public safety are not reducible within certain limits, it must be admitted, as a necessary consequence, that there can be no limitation of that authority, which is to provide for the defense and safety of the community, in any manner essential to its efficacy.”

. . . [The Constitution’s] sweeping grant vests in the President an unenumerated Executive power . . . The Commander in Chief power and the President’s obligation to protect the Nation imply the ancillary powers necessary to their successful exercise.

NSA watcher James Bamford points out how this action was definitely considered illegal in 1978, which is why FISA was passed in the first place:

When the Foreign Intelligence Surveillance Act was created in 1978, one of the things that the Attorney General at the time, Griffin Bell, said—he testified before the intelligence committee, and he said that the current bill recognizes no inherent power of the President to conduct electronic surveillance. He said, “This bill specifically states that the procedures in the bill are the exclusive means by which electronic surveillance may be conducted.” In other words, what the President is saying is that he has these inherent powers to conduct electronic surveillance, but the whole reason for creating this act, according to the Attorney General at the time, was to prevent the President from using any inherent powers and to use exclusively this act.

Also this from Salon, discussing a 1952 precedent:

Attorney General Alberto Gonzales argues that the president’s authority rests on two foundations: Congress’s authorization to use military force against al-Qaida, and the Constitution’s vesting of power in the president as commander-in-chief, which necessarily includes gathering “signals intelligence” on the enemy. But that argument cannot be squared with Supreme Court precedent. In 1952, the Supreme Court considered a remarkably similar argument during the Korean War. Youngstown Sheet & Tube Co. v. Sawyer, widely considered the most important separation-of-powers case ever decided by the court, flatly rejected the president’s assertion of unilateral domestic authority during wartime. President Truman had invoked the commander-in-chief clause to justify seizing most of the nation’s steel mills. A nationwide strike threatened to undermine the war, Truman contended, because the mills were critical to manufacturing munitions.

The Supreme Court’s rationale for rejecting Truman’s claims applies with full force to Bush’s policy. In what proved to be the most influential opinion in the case, Justice Robert Jackson identified three possible scenarios in which a president’s actions may be challenged. Where the president acts with explicit or implicit authorization from Congress, his authority “is at its maximum,” and will generally be upheld. Where Congress has been silent, the president acts in a “zone of twilight” in which legality “is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.” But where the president acts in defiance of “the expressed or implied will of Congress,” Justice Jackson maintained, his power is “at its lowest ebb,” and his actions can be sustained only if Congress has no authority to regulate the subject at all.

In the steel seizure case, Congress had considered and rejected giving the president the authority to seize businesses in the face of threatened strikes, thereby placing President Truman’s action in the third of Justice Jackson’s categories. As to the war power, Justice Jackson noted, “The Constitution did not contemplate that the Commander in Chief of the Army and Navy will constitute him also Commander in Chief of the country, its industries, and its inhabitants.”

Like Truman, President Bush acted in the face of contrary congressional authority. In FISA, Congress expressly addressed the subject of warrantless wiretaps during wartime, and limited them to the first 15 days after war is declared. Congress then went further and made it a crime, punishable by up to five years in jail, to conduct a wiretap without statutory authorization.

The Attorney General said that the Administration didn’t try to do this legally, because they didn’t think they could get the law passed. But don’t worry, an NSA shift supervisor is acting in the role of a FISC judge:

GENERAL HAYDEN: FISA involves the process—FISA involves marshaling arguments; FISA involves looping paperwork around, even in the case of emergency authorizations from the Attorney General. And beyond that, it’s a little—it’s difficult for me to get into further discussions as to why this is more optimized under this process without, frankly, revealing too much about what it is we do and why and how we do it.

Q If FISA didn’t work, why didn’t you seek a new statute that allowed something like this legally?

ATTORNEY GENERAL GONZALES: That question was asked earlier. We’ve had discussions with members of Congress, certain members of Congress, about whether or not we could get an amendment to FISA, and we were advised that that was not likely to be—that was not something we could likely get, certainly not without jeopardizing the existence of the program, and therefore, killing the program. And that—and so a decision was made that because we felt that the authorities were there, that we should continue moving forward with this program.

Q And who determined that these targets were al Qaeda? Did you wiretap them?

GENERAL HAYDEN: The judgment is made by the operational work force at the National Security Agency using the information available to them at the time, and the standard that they apply—and it’s a two-person standard that must be signed off by a shift supervisor, and carefully recorded as to what created the operational imperative to cover any target, but particularly with regard to those inside the United States.

Q So a shift supervisor is now making decisions that a FISA judge would normally make? I just want to make sure I understand. Is that what you’re saying?

Senators from both parties are demanding hearings:

Democratic and Republican calls mounted on Tuesday for U.S. congressional hearings into President George W. Bush’s assertion that he can order warrantless spying on Americans with suspected terrorist ties.

Vice President Dick Cheney predicted a backlash against critics of the administration’s anti-terrorism policies. He also dismissed charges that Bush overstepped his constitutional bounds when he implemented the recently disclosed eavesdropping shortly after the September 11 attacks.

Republican Sens. Chuck Hagel of Nebraska and Olympia Snowe of Maine joined Democratic Sens. Carl Levin of Michigan, Dianne Feinstein of California and Ron Wyden of Oregon in calling for a joint investigation by the Senate Intelligence and Judiciary Committees into whether the government eavesdropped “without appropriate legal authority.”

Senate Minority Leader Harry Reid, a Nevada Democrat, said he would prefer separate hearings by the Judiciary Committee, which has already promised one, and Intelligence Committee.

This New York Times paragraph is further evidence that we’re talking about an Echelon-like surveillance program here:

Administration officials, speaking anonymously because of the sensitivity of the information, suggested that the speed with which the operation identified “hot numbers” – the telephone numbers of suspects – and then hooked into their conversations lay behind the need to operate outside the old law.

And some more snippets.

There are about a zillion more URLs I could list here. I posted these already, but both Oren Kerr and
Daniel Solove have good discussions of the legal issues. And here are three legal posts by Marty Lederman. A summary of the Republican arguments. Four good blog posts. Spooks comment on the issue.

And this George W. Bush quote (video and transcript), from December 18, 2000, is just too surreal not to reprint: “If this were a dictatorship, it’d be a heck of a lot easier, just so long as I’m the dictator.”

I guess 9/11 made it a heck of a lot easier.

Look, I don’t think 100% of the blame belongs to President Bush. (This kind of thing was also debated under Clinton.) The Congress, Democrats included, have allowed the Executive to gather power at the expense of the other two branches. This is the fundamental security issue here, and it’ll be an issue regardless of who wins the White House in 2008.

EDITED TO ADD (12/21): FISC Judge James Robertson resigned yesterday:

Two associates familiar with his decision said yesterday that Robertson privately expressed deep concern that the warrantless surveillance program authorized by the president in 2001 was legally questionable and may have tainted the FISA court’s work.

….Robertson indicated privately to colleagues in recent conversations that he was concerned that information gained from warrantless NSA surveillance could have then been used to obtain FISA warrants. FISA court Presiding Judge Colleen Kollar-Kotelly, who had been briefed on the spying program by the administration, raised the same concern in 2004 and insisted that the Justice Department certify in writing that it was not occurring.

“They just don’t know if the product of wiretaps were used for FISA warrants—to kind of cleanse the information,” said one source, who spoke on the condition of anonymity because of the classified nature of the FISA warrants. “What I’ve heard some of the judges say is they feel they’ve participated in a Potemkin court.”

More generally, here’s some of the relevant statutes and decisions:

Foreign Intelligence Surveillance Act (FISA)” (1978).

Authorization for Use of Military Force (2001),” the law authorizing Bush to use military force against the 9/11 terrorists.

United States v. United States District Court,” 407 U.S. 297 (1972), a national security surveillance case that turned on the Fourth Amendment.

Hamdi v. Rumsfeld,” 124 S. Ct. 981 (2004), the recent Supreme Court case examining the president’s powers during wartime.

[The Government’s position] cannot be mandated by any reasonable view of the separation of powers, as this view only serves to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens. Youngstown Steel and Tube, 343 U.S. at 587. Whatever power the United States Constitution envisions for the Executive in times of conflict with other Nations or enemy organizations, it most assuredly envisions a role for all three branches when individual liberties are at stake.

And here are a bunch of blog posts:

Daniel Solove: “Hypothetical: What If President Bush Were Correct About His Surveillance Powers?.”

Seth Weinberger: “Declaring War and Executive Power.”

Juliette Kayyem: “Wiretaps, AUMF and Bush’s Comments Today.”

Mark Schmitt: “Alito and the Wiretaps.”

Eric Muller: “Lawless Like I Said.”

Cass Sunstein: “Presidential Wiretap.”

Spencer Overton: “Judge Damon J. Keith: No Warrantless Wiretaps of Citizens.”

Will Baude: “Presidential Authority, A Lament.”

And news articles:

Washington Post: “Clash Is Latest Chapter in Bush Effort to Widen Executive Power.”

The clash over the secret domestic spying program is one slice of a broader struggle over the power of the presidency that has animated the Bush administration. George W. Bush and Dick Cheney came to office convinced that the authority of the presidency had eroded and have spent the past five years trying to reclaim it.

From shielding energy policy deliberations to setting up military tribunals without court involvement, Bush, with Cheney’s encouragement, has taken what scholars call a more expansive view of his role than any commander in chief in decades. With few exceptions, Congress and the courts have largely stayed out of the way, deferential to the argument that a president needs free rein, especially in wartime.

New York Times: Spying Program Snared U.S. Calls.”

A surveillance program approved by President Bush to conduct eavesdropping without warrants has captured what are purely domestic communications in some cases, despite a requirement by the White House that one end of the intercepted conversations take place on foreign soil, officials say.

Posted on December 21, 2005 at 6:50 AM

Sidebar photo of Bruce Schneier by Joe MacInnis.