Tuesday, May 16, 2006

The NSA's Day in Court?

Some time back, I had a post discussing the problem of dealing with illegal acts by government in the context of NSA's apparent violation of the Foreign Intelligence Surveillance Act. The act provides substantial criminal penalties for its violation. But criminal prosecution is controlled by government, in this case the federal government, which can choose not to prosecute crimes it approves of.

The act also provides civil penalties for its violation, but in order to get them you have to show that your phone was tapped in violation of the law—and the NSA has, not surprisingly, declined to make public the list of tapped phones. I suggested a possible way around that problem, but so far nobody I know of has tried it, and it might well not work.

The latest story on arguably illegal acts by the NSA—obtaining information from phone companies in apparent violation of the Communications Act—may provide a solution. If the news stories are correct, it sounds as though all customers of at least two of the major phone companies have claims for damages under the act. While such a suit would not bear directly on the NSA interceptions revealed earlier, it would raise, and hopefully settle, the same legal issues. So far as I can tell, the defense would have to argue either that the Communications Act was implicitly amended by the congressional authorization of the use of force or that Congress cannot restrict the President in his war making activities—the two arguments offered in defense of wiretapping in violation of FISA. If the Court rejects those arguments, as I would hope it would, that raises serious problems for NSA and the Administration.


Anonymous said...

I get the idea sir that the courts will not reject those two key arguments. The point being: You will recall the infamous Roy Cohn's take on the law; i.e., "Shut up to me about the law! Who's the Judge!?" If you can't fight and apocryphal City Hall then you sure as hell can't fight The Dept. of Defense's Intelligence Operation. Tell me if I'm wrong. And if so, do you see this going to the Supreme Court?

David Friedman said...

I think it quite likely that a court would reject those two arguments, and I think some version of the case is likely to eventually make its way up to the Supreme Court.