It appears that United States Code Chapter 36, Subchapter 1, Sections 1801-1811 is more appropriate to the matter of intelligence agency surveillance than is Executive Order 12333. Read the definitions of the highlighted words (§ 1801) before reading "Electronic surveillance authorization without court order; certification by Attorney General..." (§ 1802):
(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that—Here's § 1808, "Report of Attorney General to Congressional committees; ...":
(A) the electronic surveillance is solely directed at—
(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title;
(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (a)(1), (2), or (3) of this title;
(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and
(C) the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 1801 (h) of this title; and
if the Attorney General reports such minimization procedures and any changes thereto to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence at least thirty days prior to their effective date, unless the Attorney General determines immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their becoming effective immediately.
(1) On a semiannual basis the Attorney General shall fully inform the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence concerning all electronic surveillance under this subchapter. Nothing in this subchapter shall be deemed to limit the authority and responsibility of the appropriate committees of each House of Congress to obtain such information as they may need to carry out their respective functions and duties.(All emphasis mine.)
(2) Each report under the first sentence of paragraph (1) shall include a description of—
(A) each criminal case in which information acquired under this chapter has been passed for law enforcement purposes during the period covered by such report; and
(B) each criminal case in which information acquired under this chapter has been authorized for use at trial during such reporting period.
The last release date of this subchapter of this law was March 17, 2005.
Some of this is legalese and open to a small bit of interpretation. Can the NSA activities which the AP and the New York Times publicized be interpreted as illegal? Maybe. And, if they can, are the members of both the House and Senate Select Committees on Intelligence claiming that Preisdent Bush's Attorneys General--John Ashcroft and Alberto Gonzales--have failed to inform them of the NSA's activities? Yes? No? Assuming that these members of congress knew about the program and since they are encouraged--no, legally charged to wield their authority and be mindful of their responsibilities in all intelligence matters, one would think that someone would cry "foul" on any type of surveillance that might be illegal. Right? Because, after all, people like Senate Select Committee on Intelligence members Senators Carl Levin (D-MI) and John D. Rockefeller IV (D-WV) would just love to have something like this to hold over this president. So, if this particular NSA surveillance is so illegal, heinous and so detrimental to civil liberties, why didn't these legislators do something about it sooner?
Hmm. Let's see who else is on the SSCI. Neither Leahy nor Feingold are listed. Were they the dogsbodies of the committee Democrats? Or--having seen an opportunity to get in the necessary sound bite, one which would cast doubt about the intentons of President Bush (again) in the minds of the voters--did they merely seize the moment?
The Democrat legislators are not acting as if this program is illegal. My bet is that they're calculating that--if this matter is framed correctly (for them), it will gain their party seats in the two chambers of Congress. Win no matter the cost.
One thing is certain: whoever exposed this classified program to the press should be tried, found guilty and imprisoned--at least. (Valerie Plame, my...foot.)
It will be interesting to see whether the Democrats are so intent on regaining power that some of them would further expose the inner working of our intelligence activities to the public—and, therefore, to the enemy.
(Thanks to too many people to mention)