Balkinization

Tales from the Unitary Executive-- The NSA and Domestic Surveillance

The Bush Administration has used its power to crush any investigation into the legality or the legal ethics of the NSA's domestic surveillance program. The Justice Department has sought to dismiss public interest lawsuits against AT&T for colluding with the government to operate the NSA program illegally, and the New York Times reports that Justice Department's own Office of Professional Responsibility has now ended an inquiry into the NSA program "because the NSA refused to grant Justice Department lawyers the necessary security clearance to probe the matter":

The Justice Department's Office of Professional Responsibility, or OPR, sent a fax to Rep. Maurice Hinchey, D-N.Y., on Wednesday saying they were closing their inquiry because without clearance their lawyers cannot examine Justice lawyers' role in the program.
''We have been unable to make any meaningful progress in our investigation because OPR has been denied security clearances for access to information about the NSA program,'' OPR counsel H. Marshall Jarrett wrote to Hinchey. Hinchey's office shared the letter with The Associated Press.
Jarrett wrote that beginning in January, his office has made a series of requests for the necessary clearances. Those requests were denied Tuesday.
''Without these clearances, we cannot investigate this matter and therefore have closed our investigation,'' wrote Jarrett.
Justice Department spokesman Brian Roehrkasse said the terrorist surveillance program ''has been subject to extensive oversight both in the executive branch and in Congress from the time of its inception.''

Note the irony: While private phone company employees at AT&T and other corporations must have sufficient security clearances to know what is going on in the NSA program- because they are helping to run it-- the Justice Department's own ethics lawyers do not. It's a convenient way to forestall any investigation into wrongdoing.

Meanwhile, USA Today reports that the NSA has been secretly collecting phone call records of tens of millions of Americans, including calls made within the United States. It is important to note that obtaining these phone call records is not the same thing as actual eavesdropping of calls. Nevertheless, the program involves serious invasions of individual privacy, as "the phone numbers the NSA collects can easily be cross-checked with other databases to obtain" customers' names, street addresses and other personal information.

The Bush Administration has been careful to say that it is only eavesdropping on calls bewteen the United States and foreign countries, while refusing to state whether there are any purely domestic intelligence operations currently underway. However, as I've argued previously , the Bush Administration's justifications for the program based on the unitary executive are so strong that the distinction between foreign intelligence surveillance and purely domestic surveillance is irrelevant for purposes of the theory.

Posted 7:47 AM by JB [link]