NSA spying is clearly illegal

A group of constitutional law scholars and former government officials, including at least one prominent conservative has clearly and briefly explained why the NSA spying is illegal. Hat tip to Bloodless Coup for the link to the NY Review of Books piece.

Here's a great paragraph:

With minor exceptions, FISA authorizes electronic surveillance only upon certain specified showings, and only if approved by a court. The statute specifically allows for warrantless wartime domestic electronic surveillance—but only for the first fifteen days of a war. 50 U.S.C. § 1811. It makes criminal any electronic surveillance not authorized by statute, id. § 1809; and it expressly establishes FISA and specified provisions of the federal criminal code (which govern wiretaps for criminal investigation) as the "exclusive means by which electronic surveillance...may be conducted," 18 U.S.C. § 2511(2)(f) (emphasis added).

The lawyers dissect and destroy the administration's argument that the spying was implicitly authorized in the September 2001 authorization of force by Congress.

Oh, and the White House apparently knows that it is acting illegally. Tuesday, Steve Clemons referenced a President Bush speech from April 20, 2004:

any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so.

While the President was trying to reassure everyone about the Patriot Act, his sweeping language clearly speaks to the NSA spying as well.


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