Domestic Spying Criminal Penalties and Civil Liability
The Washington Post, following up on yesterday's New York Times revelations reports that the Bush administration's domestic spying violates the law:
President Bush signed a secret order in 2002 authorizing the National Security Agency to eavesdrop on U.S. citizens and foreign nationals in the United States, despite previous legal prohibitions against such domestic spying, sources with knowledge of the program said last night.For anyone interested the Foreign Intelligence Surveillance Act is here.The super-secretive NSA, which has generally been barred from domestic spying except in narrow circumstances involving foreign nationals, has monitored the e-mail, telephone calls and other communications of hundreds, and perhaps thousands, of people under the program, the New York Times disclosed last night...
The law governing clandestine surveillance in the United States, the Foreign Intelligence Surveillance Act, prohibits conducting electronic surveillance not authorized by statute. A government agent can try to avoid prosecution if he can show he was "engaged in the course of his official duties and the electronic surveillance was authorized by and conducted pursuant to a search warrant or court order of a court of competent jurisdiction," according to the law.
"This is as shocking a revelation as we have ever seen from the Bush administration," said Martin, who has been sharply critical of the administration's surveillance and detention policies. "It is, I believe, the first time a president has authorized government agencies to violate a specific criminal prohibition and eavesdrop on Americans."
Violations of the law carry criminal penalties and civil liability. The criminal sanctions are as follows:
(a) Prohibited activitiesThe potential civil liability is as follows:A person is guilty of an offense if he intentionally---
(1) engages in electronic surveillance under color of law except as authorized by statute; or
(2) discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by statute.
(b) Defense
It is a defense to a prosecution under subsection (a) of this section that the defendant was a law enforcement or investigative officer engaged in the course of his official duties and the electronic surveillance was authorized by and conducted pursuant to a search warrant or court order of a court of competent jurisdiction.
(c) Penalties
An offense described in this section is punishable by a fine of not more than $10,000 or imprisonment for not more than five years, or both.
An aggrieved person, other than a foreign power or an agent of a foreign power, as defined in section 1801 (a) or (b)(1)(A) of this title, respectively, who has been subjected to an electronic surveillance or about whom information obtained by electronic surveillance of such person has been disclosed or used in violation of section 1809 of this title shall have a cause of action against any person who committed such violation and shall be entitled to recover--
(a) actual damages, but not less than liquidated damages of $1,000 or $100 per day for each day of violation, whichever is greater;
(b) punitive damages; and
(c) reasonable attorney's fees and other investigation and litigation costs reasonably incurred.
Potentially thousands of Americans have claims for three years at $100 per day, or a maximum of about $110,000 each. I do wonder what the discovery rules are for those lawsuits.
Comments
And yet ANOTHER reason why the trial lawyers are out of control!
Posted by: shingles | December 16, 2005 02:31 PM
so how do I go about discovering whether I was illegally spied upon? (not a rhetorical question)
Posted by: renato | December 16, 2005 02:49 PM
renato, you could always file a FOIA request for your file from the FBI. Of course, filing a FOIA request for your file will prompt the FBI to open a file on you, even if you didn't have one before...
Posted by: Wally Whateley | December 16, 2005 03:26 PM
Renato, we spied on you three times. And we saw what you did with those Cheetoes on June 19, 2002. Totally disgusting. Go ahead and file your lawsuit and we'll spread the Cheetoes video all over the net.
Posted by: J. Bolton | December 16, 2005 03:28 PM
how much can you actually see when you FOIA for your "file"? Would these types of searches show up, or are they too secret to be recorded?
Posted by: verplanck colvin | December 16, 2005 03:33 PM
Mr. Bolton, why is the ambassador to the United Nations in on this?
I wonder what John Kerry would say about this. I guess he has more articles of impeachment to
prepare.
Posted by: Doug Crandall | December 16, 2005 03:43 PM
What are the chances that Iyman Faris' guilty plea gets set aside because evidence against him was gathered illegally? And how many other terrorists' cases have been put into similar jeopardy by Bush's stupid and irresponsible actions?
Posted by: Robert Earle | December 16, 2005 04:00 PM
so how do I go about discovering whether I was illegally spied upon?
With respect to this specific story, it seems if you made an international phone call, or sent or received an international email, in the last three years, you were illegally eavesdropped on, and are entitled to sue Shrub for statutory damages of at least $1,000. Perhaps not much on your own, but there are these things called "class action lawsuits," see....
Y'know, I can think of no more fitting punishment for Shrub than to lose every dime of his ill-gotten money in a multi-million-dollar suit. Unfortunately, Texas lets him keep his "residence" - the entire Crawford ranch - if he were forced into bankruptcy by such a judgment. (Funny how this year's bankruptcy "reform" did nothing about that particular loophole. Besides, his buddies would just bail him out yet again....)
Posted by: Mathwiz | December 16, 2005 04:03 PM
how much can you actually see when you FOIA for your "file"?
Depends on the agency. Traditionally, the FBI has been relatively forthcoming. The CIA, not so much, but at least you'd learn whether they had one on you! This is the Cheney assministration, however, so no guarantees.
You'd have to FOIA the NSA for these intercepts, however, and they'd undoubtedly be even less forthcoming than the CIA.
Posted by: Mathwiz | December 16, 2005 04:08 PM
This isn't the first time Bush violated federal law. The very moment he took office in 2001, he issued an executive order that allowed a former president or his family or a current president to bar disclosure of presindential records. Under current federal law, presidential records must be divulged unless they contain classified information (the balance to fall in favor of disclosure) 12 years after the president in question left office. Thus any presidential records from 1989 and earlier were scheduled to be released but the dauphin Bush changed that to prevent that information from going public. Look at the dates. That would be when Bush Pere was VP and involved in Iran-Contra and it would also involve some of Bush Pere's term of office as president. The only people that were upset at the time were historians because that was when that was when the dauphin Bush administration was bringing "honor and integrity" to the office of the president.
The president does not have the power to amend or viscerate a federal statute by a presidential order. It is a separation of powers issue. Apologists might say that he was just defining some of the criteria in which disclosure would take place, but the criteria were written in such a way that no disclosure will EVER take place so long as the former president is still alive or so long as the current president is politically aligned with the former president. That is not making regulation, that is a regulation rewriting the law.
Posted by: Coltergeist | December 16, 2005 04:56 PM
With respect to this specific story, it seems if you made an international phone call, or sent or received an international email, in the last three years, you were illegally eavesdropped on, and are entitled to sue Shrub for statutory damages of at least $1,000. Perhaps not much on your own, but there are these things called "class action lawsuits," see....
I have made many an international phone call and sent international emails in the last three years, plus I have protested the war. I am very interested in filing a FOIA in order to help bolster the case for Bush's impeachment as well as collecting my damages.
Posted by: renato | December 16, 2005 05:22 PM
Seems to me that this is right up with lying about a blowjob, right?
Posted by: reboho | December 16, 2005 06:29 PM
A friend online was put on a no-fly list. Her crime? Being part of a peaceable environmental rights group, and being a Dennis Kucinich supporter...
Posted by: Mr.Murder | December 16, 2005 09:15 PM
You might be interested in a report I did a few years ago
regarding the NSA spying on us domestically.
It includes a treatment of how they perform Internet email
monitoring, by way of my describing how I monitored the
emails of more than 7000 employees on Wall Street.
http://orwellian.org/Cryptography_Manifesto.txt
It's a bit of a slog, but hey, it was my first large polemic.
Posted by: George Orwell | December 16, 2005 09:45 PM
AS GEORGE CONTINUES TO DISREGARD AND BREAK EVERY LAW THAT HE DON'T FEEL HELPS COVER HIS LITTLE CHICKEN HAWK COWARDLY ASS.BELIEVES GOD SPEAKS TO MORONS AND SCUM BAGS,AND REPUGS.FEED OFF HIS CRAZY JACKASS SPEACHES THIS COUNTRY IS IN DEEP TROUBLE.NEXT THING WAR WITH IRAN,TO SHIFT OUR EYES OFF WHITE HOUSE CRIMES.
Posted by: hobojo | January 13, 2006 11:07 AM