Francais | English | Espanõl

NSA warrantless surveillance controversy

From Wikipedia, the free encyclopedia

Jump to: navigation, search
For the related controversy about data-mining of domestic call records see NSA call database.
Image:Current event marker.svg This article documents a current event.
Information may change rapidly as the event progresses.

The NSA warrantless surveillance controversy concerns eavesdropping by the United States National Security Agency (NSA) without the court oversight required by the Foreign Intelligence Surveillance Act (FISA). Under an ongoing and formerly secret program, certain telephone calls are monitored without obtaining a warrant from the Foreign Intelligence Surveillance Court either in advance or retroactively within three days as required by FISA.

In the case ACLU v. NSA, Detroit District Court judge Anna Diggs Taylor ruled on August 17, 2006 that the program is illegal under FISA as well as unconstitutional under the First and Fourth Amendments of the United States Constitution. She ordered that warrants be obtained for all wiretaps, although her decision is stayed pending appeal.<ref>Findlaw: PDF archive of judicial ruling</ref><ref>Wired News: Judge Halts NSA Snooping</ref><ref>[1]</ref>

Under the "terrorist surveillance program",<ref>Fox still echoing administration's "terrorist surveillance program" label; regional newspapers follow suit Media Matters, February 08, 2006</ref> the NSA monitors phone calls between the United States and a foreign country, without FISA court authorization, which Attorney General Alberto Gonzales acknowledged<ref>[2]The relevant quote is "Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides -- requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday, unless there is somehow -- there is -- unless otherwise authorized by statute or by Congress. That's what the law requires."</ref> is outlawed by the text of FISA.<ref> The law defines as a felony instances in which there is "substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party." [3] </ref><ref>Article 50 United States Code, Section 1809 (In FISA, subchapter 1)</ref> The Bush administration has argued that warrantless surveillance of US citizens can nonetheless legal on the grounds that FISA is an unconstitutional violation of the President's "inherent powers" and/or that FISA was implicitly overridden by other acts of Congress. Most legal scholars outside of the administration find these arguments unconvincing (see Third party legal analysis below).

It is unclear whether the program began before[4] or after the September 11, 2001 attacks. The program was unknown to the American public until a December 2005 report in The New York Times, although the paper had learned of the program approximately fourteen months earlier (before the 2004 Election).<ref>"Bush Lets U.S. Spy on Callers Without Courts". NYT's Risen & Lichtblau's December 16 2005 "Bush Lets U.S. Spy on Callers Without Courts". Retrieved on [[18 February]], 2006. via commondreams.org</ref>[5] Gonzales confirmed the report on December 19, 2005. He stated that the program involves intercepts where the government "has a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda."<ref>[6]</ref>

In addition to the legality and constitutionality of the program, the controversy extends to questions of the duties of Congress, the press's role in exposing a classified program, the legality of telecommunications companies cooperating with the program, President George W. Bush's earlier contradictory statement that the government did not wiretap without "getting a court order before we do so"[7] and the potential of the program for abuse.

Contents

[edit] Background

Main article: NSA electronic surveillance program

Soon after the September 11, 2001 attacks (or perhaps earlier[8]), U.S. President George W. Bush issued an executive order that authorized the National Security Agency (NSA) to conduct surveillance of certain telephone calls of a person in the United States without obtaining a warrant from a FISA court either before or after the surveillance. The complete details of this authorization are not known, but it is believed to cover telephone calls involving a person suspected of having links to terrorist organizations such as al-Qaeda or its affiliates and with one party to the call outside the United States. The legality and extent of this authorization is the core of the controversy. That the NSA maintained electronic surveillance on communications between persons in the United States and suspected terrorists outside the United States without obtaining a warrant was affirmed by President Bush after it was revealed in the press. On May 22 2006, it was reported by Seymour Hersh and Wired News that under this authority, the NSA had installed monitoring and interception supercomputers within the routing hubs of almost all major US telecoms companies capable of intercepting and monitoring a large proportion of all domestic and international telephone and Internet connections, and had used this to perform mass eavesdropping and order police investigations of tens of thousands of ordinary Americans without judicial warrants.<ref>Hersh, Seymour. "Listening In", The New Yorker, May 22 2006.</ref><ref>"Whistle-Blower's Evidence, Uncut", Wired, May 22 2006.</ref>

Public knowledge of this program promptly led to a major national controversy over such issues as:

The Administration's position is that President Bush's authority to ignore FISA and approve such surveillance programs personally, stems from two sources:

The administration also adds that the program is legal under Title II of the USA PATRIOT Act entitled Enhanced Surveillance Procedures,[citation needed] although it is not relying upon the domestic law enforcement provisions of the PATRIOT Act for authorization of any of the NSA program activities.[citation needed] The President had said prior to this, that Americans' civil liberties were being protected and that purely domestic wiretapping was being conducted pursuant to warrants under applicable law, including the Patriot Act.[9] However, it seems necessary to take such statements cautiously, given that the Administration considers its current program also to be conducted pursuant to applicable law; the meaning that might be attributed to such a statement is not necessarily the meaning that would be attributed in the light of more detailed information.

According to one source, historically (prior to the above mass expansion):

"[O]fficials familiar with it say the N.S.A. eavesdrops without warrants on up to 500 people in the United States at any given time. The list changes as some names are added and others dropped, so the number monitored in this country may have reached into the thousands since the program began, several officials said. Overseas, about 5,000 to 7,000 people suspected of terrorist ties are monitored at one time, according to those officials." [10]

[edit] History of wartime warrantless surveillence in the USA

Main article: Warrantless searches in the United States

The administration has compared the NSA warrantless surveillance program with historical wartime warrantless searches in the United States, going back to George Washington.<ref>US Department of Justice (February 6 2006). Prepared Statement of Hon. Alberto R. Gonzales, Attorney General of the United States. Press release.</ref> Critics have pointed out that Washington's surveillance occurred before the existence of the U.S. Constitution, and the other historical precedents cited by the administration were before the passage of FISA, and therefore did not directly contravene federal law. <ref>"Legal memorandum of David S. Kris, former Deputy Attorney General for national security", The Washington Post, January 25 2006.</ref> Abuses of electronic surveillance by the federal government led to reform legislation in the 1970's.<ref>National Security Archive at George Washington University. Wiretap Debate Déjà Vu. Retrieved on 4 February, 2006.</ref> Advancing technology began to present questions not directly addressed by the legislation as early as 1985.<ref>Princeton University. The OTA Legacy. Retrieved on February, 2006.</ref>

Executive orders by previous administrations including Clinton's and Carter's authorized the attorneys general to exercise authority with respect to both options under FISA. <ref>FAS. EXERCISE OF CERTAIN AUTHORITY RESPECTING ELECTRONIC SURVEILLANCE - EO 12139. Retrieved on January, 2006.</ref> <ref>FAS. FOREIGN INTELLIGENCE PHYSICAL SEARCHES - EO 12949. Retrieved on January, 2006.</ref> These legal and constitutional orders were exercises of executive power under Article II consistent with FISA. In Clinton's executive order, he authorized his attorney general "[pursuant] to section 302(a)(1)" to conduct physical searches without court order "if the Attorney General makes the certifications required by that section".

[edit] Legal issues

The debate surrounding President Bush's authorization of warrantless surveillance is principally about checks and balances and separation of powers. Some lawyers believe the ultimate issue of legality is largely unknowable until the full details of the NSA surveillance operation are known; others, like Harold Koh, dean of Yale Law School, Suzanne Spaulding, former general counsel for the Intelligence Committees of the House and Senate, and former Counsel to the President John Dean, point out that FISA clearly makes the wiretapping illegal<ref>Spaulding, Suzanne E.. "Power Play - Did Bush Roll Past the Legal Stop Signs?", The Washington Post, December 25 2005, pp. B01.</ref>, and that the president's own admissions already constitute sufficient evidence of a violation of the Constitution and the criminal penalties of FISA, without requiring further factual evidence; and still others, like John Schmidt, former Associate Attorney General, <ref>apparent GOP copyright violation. Schmidt's Chicago Tribune op-ed column, "President Had Legal Authority To OK Taps". Retrieved on December 21, 2005.</ref> Douglas Kmiec, chair of Pepperdine Law School, and John Eastman, Chapman Law Professor and Director of the Claremont Institute Center for Constitutional Jurisprudence, claim either that Congress implicitly authorized an exemption to FISA or that FISA cannot bind the president in a time of war (although FISA explicitly states that it applies in a modified form in wartime); see "Third party legal analysis" below. The American Bar Association, of which more than half of all lawyers in the nation are members, expressly condemns the program as a blatant violation of the law.

As a general rule, the Supreme Court has consistently held since Katz v. United States (1967), that the monitoring and recording of private conversations constitutes an "unreasonable search and seizure" barred by the Fourth Amendment.

There are five main areas of legal issue: FISA and FISA oversight issues, constitutionality issues, the extent of authority created by the Authorization of Use of Military Force (AUMF) by Congress, issues relating to the program's classified nature, and admissibility of evidence obtained from the program.

[edit] FISA issues

The 1978 Foreign Intelligence Surveillance Act defines the Justice Department's authority to conduct physical and electronic surveillance for "foreign intelligence information". FISA provides two mechanisms to perform searches. First, FISA authorizes the Justice Department to obtain warrants from the secret Foreign Intelligence Surveillance Court (FISC) up to 72 hours after the beginning of the eavesdropping. In this case, FISA authorizes a FISC judge to grant an application for the electronic surveillance if "there is probable cause to believe that… the target of the electronic surveillance is a foreign power or an agent of a foreign power." 50 U.S.C. §1805(a)(3). Second, FISA permits the President to authorize the Justice Department to conduct foreign intelligence surveillance for up to one year without a court order. 50 U.S.C. §1802(a)(1). <ref>Cornell Law. 50 U.S.C. §1802(a)(1). Retrieved on January, 2006.</ref> In this situation, the surveillance must be directed solely at communications used exclusively by foreign powers; United States citizens can be considered agents of a foreign power, but not solely upon the basis of activities protected by the first amendment to the Constitution of the United States. 50 U.S.C. §1805(a)(3). FISA provides for both criminal and civil liability for intentional electronic surveillance under color of law but not authorized by statute. FISA defines a "foreign power" as a foreign government, any faction(s) or foreign governments not substantially composed of US persons, and any entity directed or controlled by a foreign government. FISA limits its use against US persons who are citizens, foreign resident aliens of US corporations. Finally, FISA applies to surveillance whose significant purpose must be for gathering foreign intelligence information, which is information necessary to protect against actual or potential grave attack, sabotage or international terrorism.

[edit] Sufficiency of FISA

On the December 19, 2005, U.S. Dept. of Justice Assistant Attorney General for Legislative Affairs, William Moschella, wrote a letter to the Chairs and Ranking Members of the U.S. Senate and House of Representatives, defending the NSA program:

As explained above. the President determined that it was necessary following September 11 to create an early warning detection system. FISA could not have provided the speed and agility required for the early warning detection system. In addition, any legislative change, other than the AUMF, that the President might have sought specifically to create such an early warning system would have been public and would have tipped off our enemies concerning our intelligence limitations and capabilities. Nevertheless, I want to stress that the United States makes full use of FISA to address the terrorist threat, and FISA has proven to be a very important tool, especially in longer-term investigations. In addition, the United States is constantly assessing all available legal options, taking full advantage of any developments in the law.

Fourteen constitutional scholars and former government officials<ref>Signatories: Beth Nolan, Curtis Bradley, David Cole, Geoffrey Stone, Harold Hongju Koh, Kathleen M. Sullivan, Laurence H. Tribe, Martin Lederman, Philip B. Heymann, Richard Epstein, Ronald Dworkin, Walter Dellinger, William S. Sessions, and William Van Alstyne.</ref> wrote a response dated January 9, 2006 to the Department of Justice letter, and transmitted it to Chairs and Ranking Members of the House and Senate concluding that "the Bush administration's National Security Agency domestic spying program... appears on its face to violate existing law." [11]

An excerpt from their letter:

In conclusion, the DOJ letter fails to offer a plausible legal defense of the NSA domestic spying program. If the Administration felt that FISA was insufficient, the proper course was to seek legislative amendment, as it did with other aspects of FISA in the Patriot Act, and as Congress expressly contemplated when it enacted the wartime wiretap provision in FISA. One of the crucial features of a constitutional democracy is that it is always open to the President—or anyone else—to seek to change the law. But it is also beyond dispute that, in such a democracy, the President cannot simply violate criminal laws behind closed doors because he deems them obsolete or impracticable.
</cite quote>

[edit] Wiretapping without warrants and FISA emergency authorizations

On January 20, 2006, Senator Patrick Leahy (D-VT), the ranking Democrat on the Senate Judiciary Committee along with lone co-sponsor Senator Ted Kennedy (D-MA) introduced S. Res. 350, a resolution "expressing the sense of the Senate that Senate Joint Resolution 23 (107th Congress), as adopted by the Senate on September 14 2001, and subsequently enacted as the Authorization for Use of Military Force does not authorize warrantless domestic surveillance of United States citizens." An excerpt of the proposed Leahy-Kennedy resolution follows: <ref>Proposed Resolution. Authorization for Use of Military Force (Public Law 107-40) does not authorize warrantless domestic surveillance of United States citizens. Retrieved on January 20, 2006.</ref> <ref>U.S. Senator Patrick Leahy (January 20 2006). Leahy On Friday Introduces Resolution Underscoring That Congress Did Not Authorize Illegal Spying On Americans. Press release.</ref>

Whereas Congress created the FISA court to review wiretapping applications for domestic electronic surveillance to be conducted by any Federal agency;

Whereas the Foreign Intelligence Surveillance Act of 1978 provides specific exceptions that allow the President to authorize warrantless electronic surveillance for foreign intelligence purposes (1) in emergency situations, provided an application for judicial approval from a FISA court is made within 72 hours; and (2) within 15 calendar days following a declaration of war by Congress;

Whereas the Foreign Intelligence Surveillance Act of 1978 makes criminal any electronic surveillance not authorized by statute;

Whereas the Foreign Intelligence Surveillance Act of 1978 has been amended over time by Congress since the September 11 2001, attacks on the United States;

Whereas President George W. Bush has confirmed that his administration engages in warrantless electronic surveillance of Americans inside the United States and that he has authorized such warrantless surveillance more than 30 times since September 11 2001;
</cite quote>

On January 27, in response to growing criticism, the Department of Justice released an informal four page document titled The NSA Program to Detect and Prevent Terrorist Attacks - Myth vs Reality defending the NSA program. It argued that "[t]he NSA activities described by the President are consistent with FISA" on the grounds that:

  • FISA expressly envisions a need for the President to conduct electronic surveillance outside of its provisions when a later statute authorizes that surveillance. The AUMF is such a statute.
  • The NSA activities come from the very center of the Commander-in-Chief power, and it would raise serious constitutional issues if FISA were read to allow Congress to interfere with the President’s well-recognized, inherent constitutional authority. FISA can and should be read to avoid this.

[edit] Constitutional Issues

[edit] Separation of Powers and Unitary Executive theory

See also: Separation of powers, Unitary Executive theory

However, the authorization granted by President Bush to the NSA apparently uses neither FISC approval nor the one-year foreign surveillance authority granted by FISA. Instead, the administration argues that the power was granted by the Constitution and by a statutory exemption, as is advocated by the Unitary Executive theory using the interpretation of John Yoo et al. He argues that the President had the "inherent authority to conduct warrantless searches to obtain foreign intelligence information."

Article II of the Constitution of the United States of America makes the President "Commander in Chief of the Army and Navy of the United States," and also mandates that he "shall take Care that the Laws be faithfully executed", where "the Laws" refer to federal statutes passed by Congress. Article I vests Congress with the sole authority "To make Rules for the Government and Regulation of the land and naval Forces" and "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." The president is an officer of the government of the United States, so is subject to Congress's sole authority to make all laws for carrying the powers of the president into execution, while the president is specifically charged with the duty to take care that those laws be faithfully executed.

One court has said that the President's Commander-in-Chief authority extends to the "independent authority to repel aggressive acts... without specific congressional authorization" and without court review of the "level of force selected." Campbell v. Clinton, 203 F.3d 19 (D.C. Cir. 2000). Whether such declarations apply to foreign intelligence has been examined by few courts. It is also uncertain whether the allegation that surveillance involves foreign parties suffices to extend law governing the president's military and foreign affairs powers to cover domestic activities. The Supreme Court voiced this concern in Hamdi v. Rumsfeld, ruling that "a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens."

The Congressional Research Service, a nonpartisan research arm of the Library of Congress, released a detailed report on January 5 2006 regarding the NSA electronic surveillance of communications, titled "Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information" and concluding that<ref>Congressional Research Service (January 5 2006). Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information. Press release.</ref><ref>Eggen, Dan. "Congressional Agency Questions Legality of Wiretaps", The Washington Post, January 19 2006, pp. A05.</ref><ref>Holtzman, Elizabeth. "The Impeachment of George W. Bush", The Nation, January 11 2006.</ref>

From the foregoing analysis, it appears unlikely that a court would hold that Congress has expressly or impliedly authorized the NSA electronic surveillance operations here under discussion, and it would likewise appear that, to the extent that those surveillances fall within the definition of “electronic surveillance” within the meaning of FISA or any activity regulated under Title III, Congress intended to cover the entire field with these statutes. To the extent that the NSA activity is not permitted by some reading of Title III or FISA, it may represent an exercise of presidential power at its lowest ebb, in which case exclusive presidential control is sustainable only by “disabling Congress from acting upon the subject.” While courts have generally accepted that the President has the power to conduct domestic electronic surveillance within the United States inside the constraints of the Fourth Amendment, no court has held squarely that the Constitution disables the Congress from endeavoring to set limits on that power. To the contrary, the Supreme Court has stated that Congress does indeed have power to regulate domestic surveillance, and has not ruled on the extent to which Congress can act with respect to electronic surveillance to collect foreign intelligence information.

[edit] Duty to notify Congressional leaders and Congress

Under the National Security Act of 1947, §501-503, codified as 50 USC §413-§413b, <ref>Title 50, Chapter 15, Subchapter III ACCOUNTABILITY FOR INTELLIGENCE ACTIVITIES, Legal Information Institute, Cornell Law School</ref> the President is required to keep Congressional intelligence committees "fully and currently" informed of U.S. intelligence activities, "to the extent consistent with due regard for the protection from unauthorized disclosure of classified information relating to sensitive intelligence sources and methods or other exceptionally sensitive matters." For covert actions (which are specifically defined in §413b(e)(1) not to include intelligence gathering activiities), the President is specifically permitted to limit reporting to the so-called Gang of Eight. <ref>[http://www.law.cornell.edu/uscode/uscode50/usc_sec_50_00000413---b000-.html 50 USC §413b.</ref>

According to Peter J. Wallison, former White House Counsel to President Ronald Reagan: "It is true, of course, that a president's failure to report to Congress when he is required to do so by law is a serious matter, but in reality the reporting requirement was a technicality that a President could not be expected to know about. Lawyers and laws have always made distinctions between violations of law that are malum prohibitum (wrong because prohibited) and those that are malum in se (wrong in themselves); reasonable and moral people are expected to know what is malum in se, but not necessarily what is called malum prohibitum. While ignorance of the law is no excuse, there is always a lighter punishment for violating a rule that is malum prohibitum..." <ref>Wallison, Peter J.. "Ronald Reagan: The Power of Conviction and the Success of His Presidency", Westview Press, 2003, pp. 190.</ref>

The administration contends that with regard to the NSA surveillance program, the administration fulfilled its notification obligations by briefing the Gang of Eight. Eight key members of Congress (thirteen individuals in this case between the 107th and 109th Congressional Sessions) have been briefed on the NSA program more than a dozen times (but they were forbidden from sharing information about the program with other members or staff):

On January 19, the Department of Justice issued a report outlining the legal basis for the program.<ref>U.S. Department of Justice White Paper on NSA Legal Authorities "Legal Authorities Supporting the Activities of the National Security Agency Described by the President" (pdf) January 19 2006.</ref> "These NSA activities are lawful in all respects," Gonzalez said in a letter to Senate leaders in releasing the Justice Department's 42-page legal analysis<ref>Letter Transmitting White Paper Letter from U.S. Attorney General Alberto Gonzales to U.S. Senate Majority Leader Bill Frist) (pdf) January 19 2006.</ref>.

On January 18 2006, the Congressional Research Service released a report, "Statutory Procedures Under Which Congress Is To Be Informed of U.S. Intelligence Activities, Including Covert Actions". <ref>FindLaw. Statutory Procedures Under Which Congress Is To Be Informed of U.S. Intelligence Activities, Including Covert Actions. Retrieved on January, 2006.</ref> <ref>Cumming, Alfred. "Statutory Procedures Under Which Congress Is To Be Informed of U.S. Intelligence Activities, Including Covert Actions", FAS, January 18 2006.</ref> That report found that "[b]ased upon publicly reported descriptions of the program, the NSA surveillance program would appear to fall more closely under the definition of an intelligence collection program, rather than qualify as a covert action program as defined by statute", and, therefore, concluded there was no specific statutory basis for limiting briefings on the terrorist surveillance program to the Gang of Eight:

If the NSA surveillance program were to considered an intelligence collection program, limiting congressional notification of the NSA program to the Gang of Eight, which some Members who were briefed about the program contend, would appear to be inconsistent with the law, which requires that the "congressional intelligence committees be kept fully and currently informed of all intelligence activities," other than those involving covert actions.

However, the report goes on to note that limited disclosure is also permitted under the statute "in order to protect intelligence sources and methods," noting in its concluding paragraph:

The executive branch may assert that the mere discussion of the NSA program generally could expose certain intelligence sources and methods to disclosure, thus making it necessary to limit the number of those knowledgeable of the program in order to reduce the risk of such disclosure occurring.

Thus, although the specific statutory Gang of Eight notification procedure for covert action would not seem to apply to the NSA program it is not clear if such limited notification procedure intended to protect sources and methods is prohibited. Additionally, should the sources and methods exception apply it will require a factual determination whether it should apply to disclosure of the program itself or only to specific sensitve aspects.

As discussed below in "Propsed FISA Amendments", the administration has argued that it did not seek FISA amendment to accommodate the NSA program because getting such an amendment would "have been difficult, if not impossible" without disclosing "the nature of the program" and that such disclosure would likely have harmed national security. Whether avoiding disclosure of the "nature of the program" also justifies limited disclosure under the National Security Act is unclear.

[edit] Fourth Amendment

In 2002, the United States Foreign Intelligence Surveillance Court of Review (Court of Review) met for the first time and issued an important foreign intelligence opinion, In Re Sealed Case No. 02-001. The Court of Review examined all the significant appellate decisions. They noted all the Federal courts of appeal having looked at the issue had concluded that there was such constitutional power. Furthermore, if there was such power, "FISA could not encroach on the president's constitutional power." However, In Re Sealed Case "[took] for granted" that these cases are correct. Furthermore, professor Orin Kerr argues that the part of In Re Sealed Case that dealt with FISA (rather than the Fourth Amendment) was nonbinding dicta and that the argument does not restrict Congress's power to regulate the executive in general.<ref>The Volokh Conspiracy Blog. The NSA Surveillance Program and the Article II Argument. Retrieved on December 29, 2005.</ref>

In In Re Sealed Case No. 02-001 the United States Foreign Intelligence Surveillance Court of Review [12] ruled, "Even without taking into account the President’s inherent constitutional authority to conduct warrantless foreign intelligence surveillance, we think the procedures and government showings required under FISA, if they do not meet the minimum Fourth Amendment warrant standards, certainly come close. We, therefore, believe firmly, applying the balancing test drawn from Keith, that FISA as amended is constitutional because the surveillances it authorizes are reasonable."

The balancing test from Keith referred to above is a legal test that asks whether the primary use of the warrantless search or tap to collect foreign intelligence as per presidential authority or was the primary use of the warrantless search or tap to gather evidence to use in a criminal trial.

There may be significant legal problems should information gathered under President Bush's authorization be used in criminal trials. Ordinarily, the Fourth Amendment protects the "right of the people to be secure... against unreasonable searches and seizures". It continues that "no Warrants shall issue, but upon probable cause". A number of cases have found that authorization for surveillance under FISA did not violate the Fourth Amendment. The Fourth Amendment is couched in reasonableness. Courts have long recognized exceptions from the warrant requirement for "special needs" outside "the normal need for law enforcement." It is not superfluous to note, however, that the American Bar Association's position, a bipartisan organization, as stated by ABA president Michael Greco on the program DemocracyNow! (7-26-06)[13] is that:

"...the ABA's position is there's no reason to do drastic surgery on FISA. That bill, enacted in 1978 to address abuses by the then administration of spying on Americans, has some very important safeguards in it. It requires that, before someone is spied on, that a warrant be gotten by the Justice Department or by the prosecution or the prosecutors. Any amendment to FISA -- and some of these bills, including the Specter bill and others, would eliminate that requirement of a warrant, and in doing that, damage, fatal damage, would be done to the Fourth Amendment of the U.S. Constitution. And we can't afford to have one of our Bill of Rights so easily dismissed. The Fourth Amendment requires that there be a warrant issued and that there be probable cause existing before someone is spied on. Any bill that Congress enacts must continue to have those two Fourth Amendment protections."

In In Re Sealed Case, the court recognized foreign intelligence surveillance is different from surveillance used for criminal prosecution. In addition, courts have rejected arguments under the Due process or the Equal protection clauses. This is not clearly the case for authorization given to the NSA by the President. Other cases have allowed the use at criminal trial of evidence obtained incident to authorized FISA.

Courts have only addressed this issue with respect to authorized surveillance of foreign powers, their agents and those communications incident to such surveillance. The courts have never specifically addressed whether it is reasonable to use evidence gained from broad warrantless surveillance, which may more broadly cover the communications of US persons. The National Security Act of 1947<ref>U.S. INTELLIGENCE Community. NATIONAL SECURITY ACT OF 1947. Retrieved on January, 2006.</ref> requires Presidential findings for covert acts. SEC. 503. [50 U.S.C. 413b] (a) (5) of that act states: "A finding may not authorize any action that would violate the Constitution or any statute of the United States."

[edit] Authorization for Use of Military Force Resolution (AUMF)

Following the 9/11 attacks, Congress passed the Authorization for Use of Military Force Against Terrorists (AUMF) which authorized the President to "use all necessary... force against those nations, organizations or persons he determines planned, authorized, committed or aided the [9/11] terrorist attacks." However, according to the canons of statutory construction, if a statute that governs a specific question in great detail is apparently contradicted by a statute that may apply only generally or vaguely, the detailed statute is the one that applies. In this case, FISA provides a very detailed legal regime for domestic wiretapping, while the AUMF makes no mention of wiretapping and can only be argued to apply to the NSA warrantless surveillance program by a vague and generalized interpretation. This indicates that the AUMF does not affect the applicability of FISA.

The administration argues that the authority to perform warrantless domestic wiretapping was implicit in the authorization to use force in the AUMF. FISA provides that intentional surveillance without authority is a felony "except as authorized by statute." The argument is that "all necessary force" includes "foreign surveillance", and that the AUMF therefore authorizes the surveillance, satisfying FISA's conditions for not constituting a felony. In Hamdi, the Supreme Court found that the detention of both American and foreign citizens was "clearly and unmistakably" a "fundamental incident of waging war". The administration argues that this suggests intelligence gathering would fall under this same rubric of incidents of war. As such, if the AUMF would be understood as a "statutory" authority under FISA, neither the criminal nor civil penalities would apply, at the very least, to those individuals targeted by the AUMF.

On January 19, the Department of Justice published a memorandum that stated in part:

For the foregoing reasons, the President—in light of the broad authority to use military force in response to the attacks of September 11 and to prevent further catastrophic attack expressly conferred on the President by the Constitution and confirmed and supplemented by Congress in the AUMF—has legal authority to authorize the NSA to conduct the signals intelligence activities he has described. Those activities are authorized by the Constitution and by statute, and they violate neither FISA nor the Fourth Amendment.

On February 2, 2006 the same 14 constitutional scholars and former government officials responded:

In sum, we remain as unpersuaded by the DOJ's 42-page attempt to find authority for the NSA spying program as we were of its initial five-page version. The DOJ's more extended discussion only reaffirms our initial conclusion, because it makes clear that to find this program statutorily authorized would requires rewriting not only clear specific federal legislation, but major aspects of constitutional doctrine. Accordingly, we continue to believe that the administration has failed to offer any plausible legal justification for the NSA program.

[edit] Classified information

[edit] Leaking of classified information

Disclosure of classified information is governed by federal statute, 18 USCS §798 (2005). This statute says that

... whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, [including by publication,] classified information [relating to] the communication intelligence activities of the United States or any foreign government, [shall be fined or imprisoned for up to ten years.]

This statute is not limited in application to only federal government employees. However, the Code of Federal Regulations suggests the statute may apply primarily to the "[c]ommunication of classified information by Government officer or employee". 50 USCS §783 (2005).

There is a statutory procedure for a "whistleblower" in the intelligence community to report concerns with the propriety of a secret program, The Intelligence Community Whistleblower Protection Act of 1998, Pub. L. 105-272, Title VII, 112 Stat. 2413 (1998). Essentially the Act provides for disclosure to the agency Inspector General, and if the result of that is unsatisfactory, appeal to the Congressional Intelligence Committees. A former official of the NSA, Russ Tice, has asked to testify under the terms of the Intelligence Community Whistleblower Protection Act, in order to provide information to these committees about "highly classified Special Access Programs, or SAPs, that were improperly carried out by both the NSA and the Defense Intelligence Agency." (Washington Times)

Executive Order 13292, which sets up the U.S. security classification system, provides (Sec 1.7) that "[i]n no case shall information be classified in order to conceal violations of law". Given doubts about the legality of the overall program, the classification of its existence may not have been valid under E.O. 13292.

[edit] Publication of classified information

It is unlikely that the New York Times could be held liable for publishing its article under established Supreme Court precedent. In Bartnicki v. Vopper, 532 U.S. 514, the Supreme Court held that the First Amendment precluded liability for a media defendant for publication of illegally obtained communications that the media defendant itself did nothing illegal to obtain if the topic involves a public controversy. The high court in Bartnicki accepted due to the suit's procedural position, that interception of information which was ultimately broadcast by the defendant radio station was initially illegal (in violation of ECPA), but nonetheless gave the radio station a pass because it did nothing itself illegal to obtain the information.

Nor could the government have prevented the publication of the classified information by obtaining an injunction. In the Pentagon Papers case, (New York Times Co. v. U.S. (403 US 713)), the Supreme Court held in a 6-3 decision that injunctions against the New York Times publication of classified information (United States-Vietnam Relations, 1945-1967: A Study Prepared by The Department of Defense, a 47 volume, 7,000-page, top-secret United States Department of Defense history of the United States' political and military involvement in the Vietnam War from 1945 to 1971) were unconstitutional prior restraints and that the government had not met the heavy burden of proof required for prior restraint.

The 1917 Espionage Act as amended in 1950 forbids unauthorized possession of classified information. Although the Justice Department as a matter of law sees no exemption for the press, as a matter of fact it has refrained from prosecuting:

"A prosecution under the espionage laws of an actual member of the press for publishing classified information leaked to it by a government source would raise legitimate and serious issues and would not be undertaken lightly, indeed, the fact that there has never been such a prosecution speaks for itself."

On the other hand, Bill Keller, New York Times Executive Editor, told the Washington Post,

"There's a tone of gleeful relish in the way they talk about dragging reporters before grand juries, their appetite for withholding information, and the hints that reporters who look too hard into the public's business risk being branded traitors."<ref>Eggen, Dan. "White House Trains Efforts on Media Leaks - Sources, Reporters Could Be Prosecuted", The Washington Post, March 5 2006, pp. A01.</ref>

[edit] Admissibility

It is a rule of law that evidence obtained without lawful authority, or improperly, may not be used to prosecute a person. This is a fundamental safeguard against abuse of power. According to unnamed officials, in other surveillance cases such as Faris, the "Brooklyn Bridge" plotter:

"[S]enior Justice Department officials worried what would happen if the N.S.A. picked up information that needed to be presented in court. The government would then either have to disclose the N.S.A. program or mislead a criminal court about how it had gotten the information." [14]

According to another source:

"A complaint from Judge Colleen Kollar-Kotelly, the federal judge who oversees the Federal Intelligence Surveillance Court, helped spur the suspension, officials said. The judge questioned whether information obtained under the N.S.A. program was being improperly used as the basis for F.I.S.A. wiretap warrant requests from the Justice Department, according to senior government officials. While not knowing all the details of the exchange, several government lawyers said there appeared to be concerns that the Justice Department, by trying to shield the existence of the N.S.A. program, was in danger of misleading the court about the origins of the information cited to justify the warrants."
"One official familiar with the episode said the judge insisted to Justice Department lawyers at one point that any material gathered under the special N.S.A. program not be used in seeking wiretap warrants from her court. Judge Kollar-Kotelly did not return calls for comment." [15]

[edit] Responses

[edit] Administration response to press stories

On December 17, 2005, President George Bush addressed the growing controversy in his weekly radio broadcast.[16] He stated that he was using his authority as President, as Commander in Chief of the US military, and such authority as Congress had given him, to intercept international communications of "people with known links to al Qaeda and related terrorist organizations". He added that before intercepting any communications, "the government must have information that establishes a clear link to these terrorist networks." He speculated that had the right communications been intercepted, perhaps the 9/11 attacks could have been prevented. He said the NSA program was re-authorized every 45 days, having at that time been reauthorized "more than 30 times"; it was reviewed by the Justice Department and NSA lawyers "including NSA's general counsel and inspector general", and Congress leaders had been briefed "more than a dozen times". [17]

In a speech in Buffalo, New York on April 20 2004, he added that:

"Secondly, there are such things as roving wiretaps. Now, by the way, 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. It's important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution." <ref>The White House (April 20 2004). President Bush: Information Sharing, Patriot Act Vital to Homeland Security. Press release.</ref>

And again, during a speech<ref>The White House (January 23 2006). President Discusses Global War on Terror at Kansas State University. Press release.</ref> at Kansas State University on January 23, 2006, President Bush mentioned the program, and added that it was "what I would call a terrorist surveillance program", intended to "best... use information to protect the American people", and that:

"What I'm talking about is the intercept of certain communications emanating between somebody inside the United States and outside the United States; and one of the numbers would be reasonably suspected to be an al Qaeda link or affiliate. In other words, we have ways to determine whether or not someone can be an al Qaeda affiliate or al Qaeda. And if they're making a phone call in the United States, it seems like to me we want to know why."
"This is a -- I repeat to you, even though you hear words, "domestic spying," these are not phone calls within the United States. It's a phone call of an al Qaeda, known al Qaeda suspect, making a phone call into the United States [...] I told you it's a different kind of war with a different kind of enemy. If they're making phone calls into the United States, we need to know why -- to protect you."

During a speech<ref>The White House (January 19 2006). Vice President's Remarks on Iraq and the War on Terror at the Manhattan Institute for Policy Research. Press release.</ref> in New York on January 19, 2006 Vice President Dick Cheney commented on the controversy, stating that a "vital requirement in the war on terror is that we use whatever means are appropriate to try to find out the intentions of the enemy," that complacency towards further attack was dangerous, and that the lack of another major attack since 2001 was due to "round the clock efforts" and "decisive policies", and "more than luck." He stated that:

"[B]ecause you frequently hear this called a 'domestic surveillance program.' It is not. We are talking about international communications, one end of which we have reason to believe is related to al Qaeda or to terrorist networks affiliated with al Qaeda.. a wartime measure, limited in scope to surveillance associated with terrorists, and conducted in a way that safeguards the civil liberties of our people."
Image:Michael V. Hayden4star.jpg

In a press conference on December 19 held by both Attorney General Alberto Gonzales and General Michael Hayden, the Principal Deputy Director for National Intelligence, General Hayden claimed, "This program has been successful in detecting and preventing attacks inside the United States." He stated that even an emergency authorization under FISA required marshaling arguments and "looping paperwork around". Hayden also implied that decisions on whom to intercept under the wiretapping program were being made on the spot in real time by a shift supervisor and another person, but refused to discuss details of the specific requirements for speed. <ref>The White House (December 19 2005). Press Briefing by Attorney General Alberto Gonzales and General Michael Hayden, Principal Deputy Director for National Intelligence. Press release.</ref>

Beginning in mid-January 2006 there was an increase in public discussion on the legality of the terrorist surveillance program by the Administration. <ref>"Administration Lays Out Legal Case for Wiretapping Program", The New York Times, January 19 2006.</ref>

The United States Department of Justice sent a 42 page white paper to Congress on January 19 2006 stating the grounds upon which it was felt the NSA program was entirely legal, which restates and elaborates on reasoning Attorney General Alberto Gonzales used at the December press conference when the legality of the program was questioned. <ref>hotlineblog. US Department of Justice White Paper on NSA Legal Authorities. Retrieved on January 19, 2006.</ref> Gonzales spoke further at Georgetown University January 24, claiming that Congress had given the President the authority to order the surveillance without going through the courts, and that normal procedures to order surveillance were too slow and cumbersome. <ref>Attorney General Alberto Gonzales' speech at Georgetown University January 24 2006.</ref>

General Hayden stressed the NSA respect for the Fourth Amendment, stating at the National Press Club on January 23 2006 that, "Had this program been in effect prior to 9/11, it is my professional judgment that we would have detected some of the 9/11 al Qaeda operatives in the United States, and we would have identified them as such." <ref>General Hayden's address to the National Press Club on January 23 2006</ref>

Some sources state that despite the NSA program, "[t]he agency ... still seeks warrants to monitor entirely domestic communications." <ref>James Risen, Eric Lichtblau. "Bush Lets U.S. Spy on Callers Without Courts", The New York Times, December 16 2005.</ref> An article from February 5, 2006 in the Washington Post reported that the program had netted few suspects. <ref>Barton Gellman, Dafna Linzer and Carol D. Leonnig. "Surveillance Net Yields Few Suspects - NSA's Hunt for Terrorists Scrutinizes Thousands of Americans, but Most Are Later Cleared", The Washington Post, February 5 2006, pp. A01.</ref>

In a speech on January 25, 2006, Bush said, "I have the authority, both from the Constitution and the Congress, to undertake this vital program," <ref>The White House (January 25 2006). President Visits National Security Agency. Press release.</ref> telling the House Republican Caucus at their February 10 conference in Maryland that "I wake up every morning thinking about a future attack, and therefore, a lot of my thinking, and a lot of the decisions I make are based upon the attack that hurt us." <ref>Loven, Jennifer. "Update 19: Bush Reveals Rationale Behind Surveillance", Forbes, February 10 2006.</ref>

President Bush reacted to a May 10 domestic call records article in USA Today by restating his position, that it is "not mining or trolling through the personal lives of millions of innocent Americans." <ref>"Bush says U.S. not 'trolling through personal lives'", CNN, May 11 2006.</ref>

[edit] Congressional response

Main article: Congressional response to the NSA warrantless surveillance program

Three days after news broke about the Terrorist Surveillance Program, a bipartisan group of Senators--Democrats Dianne Feinstein of California, Carl Levin of Michigan, Ron Wyden of Oregon and Republicans Chuck Hagel of Nebraska and Olympia Snowe of Maine, sent a letter dated December 19, 2005 to Judiciary and Intelligence Committees chairmen and ranking members requesting the two committees to "seek to answer the factual and legal questions" about the program.

On January 25 2006, in response to the administration's asserted legal justification of the NSA program being based in part on the AUMF, Senators Leahy (D-VT) and Kennedy (D-MA) introduced Resolution 350 to the Judiciary Committee that purported to express a "sense of the Senate" that the AUMF "does not authorize warrantless domestic surveillance of United States citizens". Resolution 350 has not been reported out of committee and has no effect.

In introducing their resolution to committee, <ref>The following statements are taken from the Library of Congress records, pages S137 - S139. Online versions: p.137, p.138, p.139 (PDF).</ref> they quoted Justice O'Connor's opinion that even war "is not a blank check for the President when it comes to the rights of the Nation's citizens."

Additionally, they asserted their opinion that the US DOJ legal justification for the NSA program was a "manipulation of the law" similar to other "overreaching" and "twisted interpretations" in recent times. Leahy and Kennedy also asserted that Attorney General Gonzales "admitted" at a press conference on December 19 2005, that the Administration did not seek to amend FISA to authorize the NSA spying program because it was advised that "it was not something we could likely get." (However, as noted below under "Proposed Amendments to FISA", Gonzales has made clear that what he actually said was that such an amendment was "not something [they] could likely get" without disclosing the nature of the program and operational limitations and that it was believed that such disclosure would be damaging to national security.)

Leahy and Kennedy also asserted that in their view the procedures being followed in the NSA program, specifically, the ongoing 45 day reapproval by the Attorney General, the White House Counsel and the Inspector General of the National Security Agency, was "not good enough" because each of these is an executive branch appointees who in turn report directly to the Executive. Finally, they concluded that Congressional and Judicial oversight were fundamental and should not be unilaterally discarded. Resolution 350 has not been reported out of committee.

Senate Judiciary Committee Chairman Arlen Specter, in a three-page letter dated June 7, 2006 to Vice President Dick Cheney, to prompt the Administration to provide: input on his proposed legislation, briefings to his committee about the program, and more cooperation with Congressional oversight. Specter also wrote about the Vice President lobbying the other Republican members of the Judiciary Committee about compelling telephone companies to testify about classified information.

[edit] Foreign Intelligence Surveillance Court developments

U.S. District Judge Dee Benson of Utah, also of the FISC, stated that he was unclear on why the FISC's emergency authority would not meet the administration's stated "need to move quickly." He and fellow judges on the court attended a briefing in January, called by presiding Judge Colleen Kollar-Kotelly. <ref>"Judges of secret court briefed on NSA activity", Associated Press, January 10 2006.</ref> <ref>Carol D. Leonnig and Dafna Linzer. "Judges on Surveillance Court To Be Briefed on Spy Program", The Washington Post, December 22 2005, pp. A01.</ref>

Reportedly, the court was also concerned about "whether the administration had misled their court about its sources of information on possible terrorism suspects . . . [as this] could taint the integrity of the court's work." <ref>Leonnig, Carol D.. "Surveillance Court Is Seeking Answers - Judges Were Unaware of Eavesdropping", The Washington Post, January 5 2006.</ref>

In part to address this problem, several commentators have raised the issue of whether, regardless how one feels about the authorization issue, FISA needs to be amended to address specific foreign intelligence needs, current technology developments, and advanced technical methods of intelligence gathering, in particular to provide for programmatic approvals of general or automated surveillance of foreign terrorist communications, the results of which could then legally be used as predicate for FISA warrants. For example, see Fixing Surveillance <ref>K.A. Taipale, James Jay Carafano. "Fixing surveillance", The Washington Times, January 25 2006.</ref>. See also Why We Listen <ref>Bobbitt, Phillip. "Why We Listen", The New York Times, January 30 2006.</ref>, The Eavesdropping Debate We Should be Having <ref>Bryan Cunnigham, Daniel B. Prieto. "The Eavesdropping Debate We Should be Having", The Denver Post, February 5 2006.</ref>; A New Surveillance Act <ref>Posner, Richard A.. "A New Surveillance Act", The Wall Street Journal, February 15 2006.</ref>; and A historical solution to the Bush spying issue <ref>A historical solution to the Bush spying issue; John Schmidt, The Chicago Tribune; February 12 2006.</ref> (the latter setting out a historical perspective on the need for programmatic approval in foreign intelligence surveillance generally). And see Whispering Wires and Warrantless Wiretaps <ref>Taipale, K. A.. "Whispering Wires and Warrantless Wiretaps: Data Mining and Foreign Intelligence Surveillance", N.Y.U. Rev. L. & Security, No. 8, (forthcoming, June 2006).</ref> (discussing how FISA is inadequate to address certain technology developments).

[edit] Proposed FISA Amendments

The Administration has contended that amendment was unnecessary because they believe that the President had inherent authority to approve the NSA program, and that the process of amending FISA might require disclosure of classified information that could harm national security. In response, Senator Leahy said, "If you do not even attempt to persuade Congress to amend the law, you must abide by the law as written." <ref>U.S. Senate Committee on the Judiciary (February 6 2006). Statement of The Honorable Patrick Leahy. Press release.</ref> As discussed below, however, it is not clear that a President is restricted to following statutory procedures in cases where he is exercising his inherent authority.

However, Attorney General Alberto Gonzales has stated that the Bush administration chose not to ask Congress for an amendment to FISA to authorize such wiretaps explicitly because it would have been difficult to get such an amendment without compromising classified information relating to operational details. "This is not a backdoor approach. We believe Congress has authorized this kind of surveillance. We have had discussions with Congress in the past -- certain members of Congress -- as to whether or not FISA could be amended to allow us to adequately deal with this kind of threat, and we were advised that that would be difficult, if not impossible." <ref>Gonzales; Press Briefing by Attorney General Alberto Gonzales and General Michael Hayden, Principal Deputy Director for National Intelligence; December 19 2005.</ref> Some politicians and commentators have used this statement -- “would be difficult, if not impossible” -- to argue that the Administration declined to seek a specific amendment to FISA because the administration believed Congress would have rejected it. However, later in the same briefing Gonzales clarified his earlier remark to say that the administration had been advised that amendment was something they were not likely to get "without jeopardizing the existence of the program." At another briefing, two days later, Gonzales made this point again: <ref>Remarks by Homeland Security Secretary Chertoff and Attorney General Gonzales on the USA PATRIOT Act, December 21, 2005.</ref>

"What I said, or what I surely intended to say, if I didn't say, is that we consulted with leaders in the congress about the feasibility of legislation to allow this type of surveillance. We were advised that it would be virtually impossible to obtain legislation of this type without compromising the program. And I want to emphasize the addition of, without compromising the program. That was the concern. "

Finally, in his written Responses to Questions from Senator Specter in which Specter specifically asked why the administration had not sought to amend FISA to accommodate the NSA program, <ref>Responses to Questions from Senator Specter, February 2005." </ref> Gonzales wrote:

"[W]e were advised by members of Congress that it would be difficult, if not impossible to pass such legislation without revealing the nature of the program and the nature of certain intelligence capabilities. That disclosure would likely have harmed our national security, and that was an unacceptable risk we were not prepared to take."


Nevertheless, competing legislative proposals to authorize the NSA program subject to Congressional or FISA court oversight have been proposed and have been the subject of Congressional hearings throughout the summer. <ref>FIS linking to 2006 FISA Congressional Hearings material</ref>.

On March 16, 2006, Senators Mike DeWine (R-OH), Lindsey Graham (R-SC), Chuck Hagel (R-NE), and Olympia Snowe (R-ME) introduced the Terrorist Surveillance Act of 2006 (S.2455),<ref>Press Release of Senator DeWine</ref><ref>Dewine Bill as introduced </ref> under which the President would be given certain additional limited statutory authority to conduct electronic surveillance of suspected terrorists in the United States subject to enhanced Congressional oversight. Also on March 16, 2006, Senator Arlen Specter (R-PA) introduced The National Security Surveillance Act of 2006 (S.2453),<ref>Specter Floor Statement</ref><ref>Specter Bill as introduced</ref> which would amend FISA to grant retroactive amnesty<ref>Specter Offers Compromise on NSA Surveillance, Washington Post, June 9, 2006</ref> for warrantless surveillance conducted under presidential authority and provide FISA court (FISC) jurisdiction to review, authorize, and oversight "electronic surveillance programs." On May 24, 2006, Senator Specter and Senator Dianne Feinstein (D-CA) introduced the Foreign Intelligence Surveillance Improvement and Enhancement Act of 2006 (S.3001) asserting FISA as the exclusive means to conduct foreign intelligence surveillance.

On September 13, 2006, the Senate Judiciary Committee voted to approve all three mutually exclusive bills, thus, leaving it to the full Senate to resolve. <ref>Conflicting Bills on Warrantless Surveillance Advance in Senate, Secrecy News, September 14, 2006</ref>

On July 18, 2006, U.S. Representative Heather Wilson (R-NM) introduced the Electronic Surveillance Modernization Act (H.R. 5825). Wilson's bill would give the President the authority to authorize electronic surveillance of international phone calls and e-mail linked specifically to identified terrorist groups immediately following or in anticipation of an armed or terrorist attack on the United States. Surveillance beyond the initial authorized period would require a FISA warrant or a presidential certification to Congress. On September 28, 2006 the House of Representatives passed Wilson's bill and it was referred to the Senate. <ref>House Passes Wilson FISA Bill, Press Release, September 29, 2006.</ref>

Each of these bills would in some form broaden the statutory authorization for electronic surveillance, while still subjecting it to some restrictions. The Specter-Feinstein bill would extend the peacetime period for obtaining retroactive warrants to seven days and implement other changes to facilitate eavesdropping while maintaining FISA court oversight. The DeWine bill, the Specter bill, and the Electronic Surveillance Modernization Act (already passed by the House) would all authorize some limited forms or periods of warrantless electronic surveillance subject to additional programmatic oversight by either the FISC (Specter bill) or Congress (DeWine and Wilson bills).

[edit] Third-party legal analysis

[edit] Arguing that the program is legal or probably legal

  • John Eastman, Chapman Law professor and Director of the Claremont Institute Center for Constitutional Jurisprudence, wrote in a letter to House Judiciary Committee Chaiman James Sensenbrenner on January 27 2006, that the Congressional Research Service's assessment was institutionally biased against the President, ignored key constitutional text and Supreme Court precedent, and that the case made by the Department of Justice in support of the President's authority to conduct surveillance of enemy communications in time of war was compelling.<ref>House Judiciary Committee (January 27 2006). NSA Eastman Letter. Press release.</ref>
  • Robert Turner, Associate Director of the Center for National Security Law at the University of Virginia, testified before Congress on March 31, 2006, that "I believe the President has this authority by virtue of his “executive Power” vested in him by Article II, Section 1, of the Constitution. And if he needed any additional authority, the AUMF statute—enacted with but a single dissenting vote in the entire Congress—clearly empowers him to exercise the intelligence-gathering component of his Commander in Chief power as well."[18]

[edit] Arguing that the program is illegal or probably illegal

  • On February 13 2006, the American Bar Association (ABA) denounced the warrantless domestic surveillance program, accusing the President of exceeding his powers under the Constitution. The ABA also formulated a policy opposing any future government use of electronic surveillance in the United States for foreign intelligence purposes without obtaining warrants from a special secret court as required by the 1978 Foreign Intelligence Surveillance Act.[19]
  • Professor Peter Swire, the C. William O’Neill Professor of Law at the Ohio State University Moritz College of Law and Visiting Senior Fellow at the Center for American Progress, wrote a detailed "Legal FAQs on NSA Wiretaps" concluding that "[b]ased on the facts available to date, the wiretap program appears to be clearly illegal."<ref>Legal FAQs on NSA Wiretaps by Peter Swire, Law Professor at Ohio State University and Visiting Senior Fellow at the Center for American Progress January 26 2006.</ref> Prof. Swire has previously written a very detailed history and analysis of the Foreign Intelligence Surveillance Act, published in Volume 72 of the George Washington Law Review, at 1306 (2004) and previously chaired a White House Working Group, including the intelligence agencies, on how to update electronic surveillance law for the Internet Age.