NSA warrantless surveillance (2001–2007)

The NSA warrantless surveillance controversy is a dispute heavily covered by the American news media about an eavesdropping program carried out by the National Security Agency (NSA) that the administration now refers to as the Terrorist Surveillance Program, and that conducts surveillance on international and domestic phone calls, without F.I.S.A. court authorization, which the text of F.I.S.A. defines as a felony. The controversy extends to the questions of the power the President to authorize the NSA, the duties of Congress, and question of press's role in exposing a classified program.

The presidential authorization creating the Terrorist Surveillance Program is classified and only select members of the Congressional Intelligence committees and leadership were briefed, although not entirely. The existence of the program was not known to the American public until December 2005, when the New York Times, after learning about the program more than a year earlier, first reported on it.

Background

Main article: Terrorist surveillance program

Soon after the September 11, 2001 attacks, U.S. President George W. Bush issued an executive order that authorized the National Security Agency (NSA) to conduct surveillance of international communication on any U.S. person who was suspected of having links to a terrorist organization such as al-Qaeda or its affiliates. (The complete details of this authorization are still not fully known.) The legality of this authorization is the core of the controversy. That the NSA maintained electronic surveillance on international communications between persons in the United States and suspected terrorists outside the United States was affirmed by President Bush after it was revealed in the press. On May 22, 2006, it was revealed by investigative reporter Seymour Hersh and Wired magazine that the program involved the NSA setting up splitters to the routing cores of many telecoms companies and to major Internet traffic hubs, that provided a direct connection to the NSA headquarters for most U.S. telecoms communications and all Internet traffic, and that the NSA had used this to eavesdrop and order police investigations of tens of thousands of ordinary Americans without judicial warrants.

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

• Legality of warrantless electronic surveillance of U.S. persons and on citizens' right to privacy.
• Constitutional issues concerning the separation of powers.
• The effectiveness and scope of the program.
• The legality of the publication of highly classified information.
• Implications for U.S. national security arising from the disclosure.
• Executive powers that are derived from "Use of Force" resolutions.

1978 Foreign Intelligence Surveillance Act (FISA)

Main article: Foreign Intelligence Surveillance Act

The 1978 Foreign Intelligence Surveillance Act (FISA) bars electronic surveillance of people within the U.S. without individual approval by the United States Foreign Intelligence Surveillance Court. The Bush Administration claims that such surveillance was implicitly authorized by the congressional Authorization for Use of Military Force of 2001. "Our position is that the authorization to use force, which was passed by the Congress in the days following September 11th, constitutes that other authorization, that other statute by Congress, to engage in this kind of signals intelligence," Attorney General Alberto Gonzales said on December 19, 2005. Moreover, legal authorities have argued on behalf of the White House that FISA did not apply during wartime on the grounds that Congress does not have authority to interfere in the "means and methods of engaging the enemy", invoking the so-called unitary executive theory.

Opponents of this interpretation have pointed out that this novel theory is diametrically opposed to the United States Constitution, which, for example, explicitly grants Congress the exclusive power to "make Rules concerning Captures on Land and Water" and "To make Rules for the Government and Regulation of the land and naval Forces". In January 2006, the Congressional Research Service released two legal analyses disputing the legality. In addition, the American Bar Association, in February 13 2006, issued a statement denouncing the warrantless domestic surveillance program, accusing the President of exceeding his powers under the Constitution. Their analysis opines that the key arguments advanced by the Bush administration are not compatible with the law. David Kris and five former FISC judges, one of whom resigned in protest, have also voiced their doubts as to the legality of a program bypassing FISA.

Notification of Congressional leaders

According to the Washington Post, four members of Congress were briefed on the surveillance, though more than four have stated that they were briefed. The Post interviewed former Democratic Senator Bob Graham, who stated that he "[had] no discussion about expanding [NSA eavesdropping] to include conversations of U.S. citizens or conversations that originated or ended in the United States... I came out of the room with the full sense that we were dealing with a change in technology but not policy." The Post further reported "he believed eavesdropping would continue to be limited to 'calls that initiated outside the United States, had a destination outside the United States but that transferred through a U.S.-based communications system.'"

California Democrat Nancy Pelosi acknowledged she was briefed about the warrantless surveillance. Pelosi has stated that:

"I was advised of President Bush's decision to provide authority to the National Security Agency to conduct unspecified activities shortly after he made it and have been provided with updates on several occasions.

The Bush Administration considered these briefings to be notification, not a request for approval. As is my practice whenever I am notified about such intelligence activities, I expressed my strong concerns during these briefings."

A letter that Pelosi wrote in October 2001 when she was Ranking Democrat on the House Intelligence Committee, was declassified at her request in January 2006, along with the response from Lieutenant General Michael Hayden, then the NSA Director (Pelosi release). The letter expressed concerns about "whether, and to what extent, the National Security Agency has received specific presidential authorization for the operations you are conducting." Hayden responded that he used authorities "to adjust NSA’s collection and reporting." Judith A. Emmel, a spokeswoman for the Office of the Director of National Intelligence said, "He had authority under E.O. 12333 that had been given to him, and he briefed Congress on what he did under those authorities."

Democratic Senator Jay Rockefeller of West Virginia, ranking member of the Intelligence also stated that he was briefed, and that he wrote to Vice President Dick Cheney expressing concern about the surveillance. The information he received was so confidential that Rockefeller actually handwrote a note to Cheney rather than have a staffer type one out. However, Republican Senator Pat Roberts of Kansas, the Intelligence Committee chairman, disputed this, saying that he did not recall Rockefeller expressing concerns during briefings, and also disputed whether he was effectively gagged from telling other senators about the surveillance. Roberts stated that "a United States Senator has significant tools with which to wield power and influence over the executive branch. Feigning helplessness is not one of those tools."

Rep. Jane Harman (D-CA), though expressing reservations based on media reports about whether the program might have exceeded her briefing and whether more members of Congress should be briefed, stated:

"As the Ranking Democrat on the House Intelligence Committee, I have been briefed since 2003 on a highly classified NSA foreign collection program that targeted Al Qaeda. I believe the program is essential to US national security and that its disclosure has damaged critical intelligence capabilities."

On January 4 2006, Harman wrote to the President that "In my view, failure to provide briefings to the full congressional intelligence committees is a continuing violation of the National Security Act." (Washington Post) Notification of Congress is not directly relevant to the legality of the wiretaps, but is important politically and for separation of powers. Suzanne Spaulding, who worked with the House and Senate Intelligence Committees as general counsel argues that the method of congressional notification Bush used "eliminates the possibility of any careful oversight" because only 8 legislators were notified, and it would have been illegal for them to discuss what they were told, even to other legislators or to their staff in order to determine the program's legality.

Attorney General Alberto Gonzales said that there was no need to notify Congress because Congress had already implicitly authorized the wiretaps with the AUMF. Gonzales says that the Bush administration chose not to ask Congress for an amendment to FISA to allow such wiretaps more explicitly, because Congress would have rejected the amendment.

Attorney General Alberto Gonzales, testified at a Senate Judiciary Committee hearing on February 6. On January 20, he sent a report to Capitol Hill outlining the legal basis for the National Security Agency's activities that Bush approved after the 11 September attacks. "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.

Department of Justice Response

In response to growing criticism, the United States Department of Justice on January 27, 2006 released a four page document [3] titled Myth vs Reality to defend the legality of the NSA program. [4] A mildly abridged version is reproduced below:

Myth: The NSA program is illegal.

Reality: The President's authority to authorize the terrorist surveillance program is firmly based both in his constitutional authority as Commander-in-Chief, and in the Authorization for Use of Military Force (AUMF) passed by Congress after the September 11 attacks.

• As Commander-in-Chief and Chief Executive, the President has legal authority under the

Constitution to authorize the NSA terrorist surveillance program.

The Constitution makes protecting our Nation from foreign attack the President's most solemn duty and provides him with the legal authority to keep America safe.

It has long been recognized that the President has inherent authority to conduct warrantless surveillance to gather foreign intelligence even in peacetime. Every federal appellate court to rule on the question has concluded that the President has this authority and that it is consistent with the Constitution.

• Congress confirmed and supplemented the President's constitutional authority to

authorize this program when it passed the AUMF.

The AUMF authorized the President to use "all necessary and appropriate military force against those nations, organizations, or persons he determines planned, authorized, committed, or aided in the terrorist attacks that occurred on September 11, 2001."

In its Hamdi decision, the Supreme Court ruled that the AUMF also authorizes the "fundamental incident[s] of waging war." The history of warfare makes clear that electronic surveillance of the enemy is a fundamental incident to the use of military force.

• A crucial responsibility of the President—charged by the AUMF and the Constitution—is to identify enemies who attacked us, especially if they are in the United States ready to strike against our Nation.
  

Al Qaeda's plans include infiltrating our cities and communities and plotting with affiliates abroad to kill innocent Americans.

Myth: The NSA program is a domestic eavesdropping program used to spy on innocent Americans.

Reality: The NSA program is narrowly focused, aimed only at international calls and targeted at al Qaeda and related groups. Safeguards are in place to protect the civil liberties of ordinary Americans.

• The program only applies to communications where one party is located outside of the

United States.

• The NSA terrorist surveillance program described by the President is only focused on

members of Al Qaeda and affiliated groups. Communications are only intercepted if there is a reasonable basis to believe 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.

• The program is designed to target a key tactic of al Qaeda: infiltrating foreign agents into the United States and controlling their movements through electronic communications, just as it did leading up to the September 11 attacks.
  

• The NSA activities are reviewed and reauthorized approximately every 45 days. In

addition, the General Counsel and Inspector General of the NSA monitor the program to ensure that it is operating properly and that civil liberties are protected, and the intelligence agents involved receive extensive training.

Myth: The NSA activities violate the Fourth Amendment.

Reality: The NSA program is consistent with the Constitution’s protections of civil liberties, including the protections of the Fourth Amendment.

• The Supreme Court has long held that the Fourth Amendment allows warrantless searches where "special needs, beyond the normal need for law enforcement," exist. Foreign intelligence collection, especially in a time of war when catastrophic attacks have already been launched inside the United States, falls within the special needs context.
  

• As the Foreign Intelligence Surveillance Court of Review has observed, the nature of the "emergency" posed by al Qaeda "takes the matter out of the realm of ordinary crime control."
  

• The program easily meets the Court's reasonableness test for whether a warrant is

required. The NSA activities described by the President are narrow in scope and aim, and the government has an overwhelming interest in detecting and preventing further catastrophic attacks on American soil.

Myth: The NSA program violates the Foreign Intelligence Surveillance Act (FISA).

Reality: The NSA activities described by the President are consistent with FISA.

• 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.
  

Myth: The Administration could have used FISA but simply chose not to.

Reality: In the war on terrorism, it is sometimes imperative to detect—reliably, immediately, and without delay—whether an al Qaeda member or affiliate is in contact with someone in the United States. FISA is an extremely valuable tool in the war on terrorism, but it was passed in 1978 and there have been tremendous advances in technology since then.

• The NSA program is an "early warning system" with only one purpose: to detect and prevent the next attack on the United States from foreign agents hiding in our midst. It is a program with a military nature that requires speed and agility.
  

• The FISA process, by design, moves more slowly. It requires numerous lawyers, the

preparation of legal briefs, approval from a Cabinet-level officer, certification from the National Security Advisor or another Senate-confirmed officer, and finally, the approval of an Article III judge. This is a good process for traditional domestic foreign intelligence monitoring, but when even 24 hours can make the difference between success and failure in preventing a terrorist attack, a faster process is needed.

Myth: FISA has "emergency authorizations" to allow 72-hour surveillance without a court order that the Administration could easily utilize.

Reality: There is a serious misconception about so-called "emergency authorizations" under FISA, which allow 72 hours of surveillance without a court order. FISA requires the Attorney General to determine in advance that a FISA application for that particular intercept will be fully supported and will be approved by the court before an emergency authorization can be granted, and the review process itself can and does take precious time.

• The Justice Department does not approve emergency authorizations without knowing it will receive court approval within 72 hours.
  

• To initiate surveillance under a FISA emergency authorization, it is not enough to rely on the best judgment of our intelligence officers alone. Those intelligence officers would have to get the sign-off of lawyers at the NSA that all provisions of FISA have been

satisfied, then lawyers in the Department of Justice would have to be similarly satisfied, and finally, the Attorney General would have to be satisfied that the search meets the requirements of FISA. The government would have to be prepared to follow up with a full FISA application within 72 hours.

• A typical FISA application involves a substantial process in its own right: The work of several lawyers; the preparation of a legal brief and supporting declarations; the approval of a Cabinet-level officer; a certification from the National Security Advisor, the Director of the FBI, or another designated Senate-confirmed officer; and, finally the approval of an Article III judge.
  

• But the terrorist surveillance program operated by the NSA requires maximum speed and agility to achieve early warning, and even a very brief delay may make the difference between success and failure in detecting and preventing the next attack.
  

Throughout this document, the "terrorist surveillance program" and "the NSA program" refer to the NSA activities described by the President.

The actual text of the 72 hour notification procedure reads as follows:

50 USC 1805 (f) Emergency orders

Notwithstanding any other provision of this subchapter, when the Attorney General reasonably determines that—

(1) an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained; and

(2) the factual basis for issuance of an order under this subchapter to approve such surveillance exists;

he may authorize the emergency employment of electronic surveillance if a judge having jurisdiction under section 1803 of this title is informed by the Attorney General or his designee at the time of such authorization that the decision has been made to employ emergency electronic surveillance and if an application in accordance with this subchapter is made to that judge as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance. If the Attorney General authorizes such emergency employment of electronic surveillance, he shall require that the minimization procedures required by this subchapter for the issuance of a judicial order be followed. In the absence of a judicial order approving such electronic surveillance, the surveillance shall terminate when the information sought is obtained, when the application for the order is denied, or after the expiration of 72 hours from the time of authorization by the Attorney General, whichever is earliest. In the event that such application for approval is denied, or in any other case where the electronic surveillance is terminated and no order is issued approving the surveillance, no information obtained or evidence derived from such surveillance shall be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof, and no information concerning any United States person acquired from such surveillance shall subsequently be used or disclosed in any other manner by Federal officers or employees without the consent of such person, except with the approval of the Attorney General if the information indicates a threat of death or serious bodily harm to any person. A denial of the application made under this subsection may be reviewed as provided in section 1803 of this title.[5]

News reporting

December 16, 2005

On December 16, 2005, The New York Times printed a story asserting that following 9/11, "President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying" as part of the War on Terror.

Under a presidential order signed in 2002, the intelligence agency monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible "dirty numbers" linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications.

According to the Times:

The White House asked The New York Times not to publish this article, arguing that it could jeopardize continuing investigations and alert would-be terrorists that they might be under scrutiny. After meeting with senior administration officials to hear their concerns, the newspaper delayed publication for a year to conduct additional reporting. Some information that administration officials argued could be useful to terrorists has been omitted.

White House press secretary Scott McClellan refused to comment on the story on December 16, exclaiming "there’s a reason why we don’t get into discussing ongoing intelligence activities, because it could compromise our efforts to prevent attacks from happening."

The next morning, the President gave a live eight-minute television address instead of his normal weekly radio address, during which he addressed the wiretap story directly and admitted that he had in fact authorized domestic warrantless monitoring of calls originating or terminating overseas. He forcefully defended his actions as "crucial to our national security" and claimed that the American people expected him to "do everything in my power, under our laws and Constitution, to protect them and their civil liberties" as long as there was a "continuing threat" from al-Qaeda. The President also had harsh words for those who broke the story, saying that they acted illegally. "The unauthorized disclosure of this effort damages our national security and puts our citizens at risk," he said.

January 1, 2006

On January 1, 2006, The New York Times printed a story revealing that aspects of the program were suspended for weeks in 2004. The Times story said the U.S. Attorney General's office, then headed by John Ashcroft, balked in 2004 when asked to give approval of the program, and that then Deputy Attorney General James B. Comey "played a part in overseeing the reforms that were put in place in 2004." According to the Times, however, the oversight by the NSA shift supervisor continued to be unfettered by any pre-approval requirement. The story also pointed out that even NSA employees thought that the warrantless surveillance program was illegal.

The Times had withheld the article from publication for over a year. Both editor in chief Bill Keller and publisher Arthur Sulzberger Jr. were summoned by the President and White House officials in order to persuade the paper not to publish the story. The Times ran the story shortly before they would have been scooped by publication of their own reporter's book. The Times ombudsman speculates that the reason the backstory isn't being revealed is to protect sources. Russ Tice claims he was a source for the story.

January 3, 2006

On January 3, the independent news program Democracy Now!, and later on January 10 ABC news ran a story that, according to NSA whistleblower Russell Tice, the number of Americans affected by the range of NSA surveillance programs could be in the millions if the full extent of secret NSA programs is considered. He described a system that can:

...track and sort through every domestic and international phone call as they are switched through centers, such as one in New York, and to search for key words or phrases that a terrorist might use. "If you picked the word 'jihad' out of a conversation," Tice said, "the technology exists that you focus in on that conversation, and you pull it out of the system for processing." According to Tice, intelligence analysts use the information to develop graphs that resemble spiderwebs linking one suspect's phone number to hundreds or even thousands more. "That would mean for most Americans that if they conducted, or you know, placed an overseas communication, more than likely they were sucked into that vacuum," Tice said.

January 17, 2006

On January 17 the New York Times reported, "[m]ore than a dozen current and former law enforcement and counterterrorism officials," some of whom knew of the domestic spying program, "said the torrent of tips [from NSA wiretapping] led them to few potential terrorists inside the country they did not know of from other sources and diverted agents from counterterrorism work they viewed as more productive."

February 5, 2006

On February 5, The Washington Post noted that "Fewer than 10 U.S. citizens or residents a year, according to an authoritative account, have aroused enough suspicion during warrantless eavesdropping to justify interception of their (purely) domestic calls, as well. That step still requires a warrant from a federal judge, for which the government must supply evidence of probable cause." Also in the article: "The minimum legal definition of probable cause, said a government official who has studied the program closely, is that evidence used to support eavesdropping ought to turn out to be 'right for one out of every two guys at least.' Those who devised the surveillance plan, the official said, 'knew they could never meet that standard -- that's why they didn't go through'" the Foreign Intelligence Surveillance Court.

However, the opinion expressed by the unnamed government official is not consistent with the law as there is no general probabilistic test (i.e., "right 1 out of X times") of "probable cause" for electronic surveillance or otherwise, nor for determining reasonableness more generally under the Fourth Amendment. The courts have consistently made clear that the very concept of "probable cause" and "reasonableness" implies a continuum of probability along which increasing intrusion may be justified by reference to the totality of the circumstances. Determining probable cause or reasonableness requires evaluating not just the predicate for action, but also the availability of alternatives, balancing the consequences to the individual of the intrusion and the particular governmental need, and the procedures for mitigating or correcting errors.

On February 5, USA Today ran a story that, according to seven telecommunications executives, the NSA had secured the cooperation of the main telecommunications companies in charge of international phone-calls, including AT&T, MCI and Sprint, in its efforts to eavesdrop without warrants on international calls . (The EFF filed a class action lawsuit against AT&T in January 2006 in connection with this - see #Electronic Frontier Foundation below for details)

May 10, 2006

Main article: NSA call database

On May 10 2006, USA Today reported that the NSA has had a separate, prieviously undisclosed program in place since 9/11 to build a database of information about calls placed within the United States, including phone numbers, date, and duration of the calls. According to the article, phone companies AT&T, Verizon, and Bell South disclosed the records to the NSA, while Qwest did not. The article quotes an unnamed source that "it's the largest database ever assembled in the world".

May 22, 2006

In its issue dated May 22, 2006, Newsweek put the controversy on the cover of its magazine and ran several stories inside sumarizing what is known and speculations about it.

On May 22 2006, Wired Magazine released the text of AT&T documents, currently under court seal in the EFF case, that allegedly describe NSA wiretap arrangements.[6]

Administration response to Press stories

The Administration's view is that the President had the authority under the "Authorization for Use of Military Force Against September 11 Terrorists" ("AUMF") and under his inherent powers under Article II of the Constitution to authorize the NSA surveillance program, including the monitoring of international calls of US persons with suspected terrorists abroad without seeking warrants under FISA (see discussion of "Legal Issues", below). The AUMF states, "[t]hat the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." The Administration believes that "all necessary and appropriate force" includes foreign intelligence surveillance activity, including the monitoring of communications between terrorists that contact persons on American soil and vice-versa. Further, the administration argues that the phrase "he determines" implies that determining appropriate foreign intelligence targets is at the sole discretion of the President as Commander-in-Chief and no other authorization is required to approve these operations.

The administration does not claim to be conducting any of the NSA program activities under the domestic law enforcement provisions of the USA PATRIOT Act. The President had previously defended the PATRIOT Act, saying 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. For instance, in a speech in Buffalo, NY on April 20 2004, The President said:

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.

Indeed, even under the NSA program authorized by the President under the secret EO, "[t]he agency ... still seeks warrants to monitor entirely domestic communications."

File:Michael V. Hayden4star.jpg

General Michael Hayden.

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." Gen. Hayden also commented on the provisions in FISA allowing for emergency authorization by the Attorney General prior to obtaining a warrant. He stated that even an emergency authorization under FISA required marshaling arguments and "looping paperwork around". Hayden even implied that the decisions on whom to intercept under the wiretapping program were being made in real time or near real time by a shift supervisor and another person, but he refused to discuss details of the specific requirements for speed.

Questions about Gen. Hayden's assertion of the effectiveness of the program were raised in a NY Times report on January 17 alleging FBI complaints about the quality of the leads being generated by the NSA program. In the article, anonymous sources said that FBI agents and resources were distracted by NSA leads that didn't pan out and that those leads that were useful related to activity that the FBI was already investigating. And, on February 5, the Washington Post reported that the program had netted few suspects.

Beginning in mid-January the Administration campaigned trying to assert the legality of the program. Dick Cheney said the program "is fully consistent with the constitutional responsibilities and legal authority of the President, and with the civil liberties of the American people," in a speech on January 19. Also on the 19th, the United States Department of Justice sent a 42 page white paper to congress claiming that the NSA program was entirely legal. The white paper restates and elaborates on reasoning Gonzales used at the December press conference when the legality of the program was questioned. Gonzales spoke 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.

After his address to the National Press Club on January 23, 2006, General Hayden answered questions. He said, "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." He stressed the respect the NSA had for the Fourth Amendment, and gave reasons why he believed the program was legal. Also on January 23, 2006, President Bush continued his defense in a speech at Kansas State University, objecting to the term "domestic spying" and adopting the term "terrorist surveillance program" for the first time in reference to the NSA program. Terrorist surveillance program has since become a common talking point used by Administration supporters. In a speech at the NSA on January 25, 2006, he said, "I have the authority, both from the Constitution and the Congress, to undertake this vital program." "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," Bush told the House Republican Caucus February 10 at their conference in Maryland.

President Bush reacted to the May 10 domestic call records article in USA Today by saying it is "not mining or trolling through the personal lives of millions of innocent Americans."

Congressional reaction to reported events

Senate

Judiciary Committee

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. An excerpt from the letter reads:

We respectfully request that the Select Committee on Intelligence and the Committee on the Judiciary, which share jurisdiction and oversight of this issue, jointly undertake an inquiry into the facts and law surrounding these allegations. The overlapping jurisdiction of these two Committees is particularly critical where civil liberties and the rule of law hang in the balance.

On Saturday the President stated that he "authorized the National Security Agency, consistent with U.S. law and the Constitution, to intercept the international communications of people with known links to al Qaeda and related terrorist organizations." It is critical that Congress determine, as quickly as possible, exactly what collection activities were authorized, what were actually undertaken, how many names and numbers were involved over what period, and what was the asserted legal authority for such activities. In sum, we must determine the facts.

Senator Patrick Leahy (D-VT), the ranking Democrat on the Judiciary Committee along with lone co-sponsor Senator Ted Kennedy (D-MA) on January 20, 2006 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:

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;

In preparation for the February 6th hearing before the Judiciary Committee, two Democrat senators announced questions they submitted in advance. Senator Russ Feingold (D-WI) submitted four questions, on January 23, 2006 in a letter to John D. Negroponte, Donald Rumsfeld and Keith B. Alexander "requesting information about whether data mining of information has been employed in the context of warrantless surveillance." The four questions within Feingold's letter are:

1. Please explain how and under what authority the NSA intercepts or analyzes communications or related transactional data that are either entirely within the United States or have at least one party inside the United States, when NSA is not targeting the communications of a specific person.

2. Please explain how and under what authority the NSA carries out surveillance with the cooperation of U.S. communications compaines as opposed to situations where NSA operates domestically without such cooperation. When the NSA has the cooperation of U.S. communications companies, explain under what circumstances that cooperation is pursuant to court order and when it is not.

3. Has the NSA been employing automated data analysis, or data mining, techniques to analyze the communications of Americans within the United States, or working with other agencies within the Intelligence Community to do so? If so, does the analysis involve transactional information about those communications, the contents of those communications, or both? Has the results of this analysis served as the basis for warrantless wiretaps of Americans in the United States or for obtaining FISA warrants for surveillance? For what other purposes have these results been used?

4. Please provide and studies, reports, memos, or other analyses generated within the NSA, the Defense Department or the Office of the Director of National Intelligence, or provided to those entities by the Department of Justice or any other department or agency, discussing the NSA's legal authority to conduct automated data analysis, or data mining, within the United States; the effectiveness of such technology; or any consideration of the privacy issues relating to implementing such a program within the United States.

Eight Democrat members of the Judiciary Committee in preparation for the panel's hearing sent a letter with six questions dated January 27, 2006 to Attorney General Alberto Gonzales seeking documents and correspondence from the days immediately following the September 11, 2001 attacks. The letter signers include: Leahy, Kennedy, Senator Joseph Biden of Delaware, Herb Kohl of Washington, Feinstein, Feingold, Senator Charles Schumer of New York, and Senator Richard Durbin of Illinois. The six questions submitted to Gonzales from within the letter are:

(1) Please provide all letters, memoranda, notes, e-mails or other documents that are or reflect communications from the Administration to Congress during the time period September 11 through September 14, 2001, of proposals for, or draft language to be included in what came to be the Authorization for Use of Military Force.

(2) Please provide all letters, memoranda, notes, e-mails or other documents that are or reflect communications from the Administration to Congress during the time period September 11 through September 14, 2001, of the Administration's understanding of the meaning of the language being considered for inclusion in what came to be the Authorization for Use of Military Force.

(3) Please provide all documents that are or reflect internal Administration communications during the time period September 11 through September 18, 2001, regarding the meaning of the language being considered for inclusion in what came to be the Authorization for Use of Military Force.

(4) The Authorization for Use of Military Force makes no mention of domestic surveillance. What specific language does the Administration assert grants authority to the President to conduct domestic surveillance without seeking warrants from the Foreign Intelligence Surveillance Court?

(5) Please provide copies of all memoranda and legal opinions rendered by the Department of Justice during the past 30 years that address the constitutionality of government practices and procedures with respect to electronic surveillance.

(6) Please provide any documents by which the President has, prior to and after September 11, 2001, authorized the NSA surveillance programs, including all underlying legal opinions authored by the White House.

Attorney General Alberto Gonzales.

On February 6 the Judiciary Committee held an open hearing. Republicans insisted that Attoney General Gonzales not be sworn in, which means that he can't be charged with perjury. Gonzalez argued that the "except as authorized by statute" provision of 50 U.S.C. § 1809(a)(1) meant that, due to the passage of the Authorization for the Use of Military Force, FISA isn't the exclusive means by which domestic electronic surveillance can be done. Specter suggested letting the Foreign Intelligence Surveillance Court decide the legality of the program. Gonzales sidestepped. Leahy tried to pin Gonzales down - "You're not answering my question," he told Gonzales. Kennedy said terror suspects could get off due to tainted evidence. "We don't believe prosecutions are going to be jeopardized," Gonzales responded.

Gonzales's testimony drew comment from Jimmy Carter who said, "It's a ridiculous argument, not only bad, it's ridiculous. Obviously, the attorney general who said it's all right to torture prisoners and so forth is going to support the person who put him in office." Insight on the News reported, "Congressional sources said Deputy Chief of Staff Karl Rove has threatened to blacklist any Republican who votes against the president." In a February 28 follow up letter to his March 6 testimony, Gonzales called the NSA domestic spying program "The Terrorist Surveillance Program."

Senator Arlen Specter (R-Pa.) received a letter from Assistant Attorney General William E. Moschella February 15 which said, "We do not believe that Messrs. Ashcroft and Comey would be in a position to provide any new information," referring to a request by the Judiciary Committee for testimony from former attorney general John Ashcroft and former deputy attorney general James B. Comey. Specter is circulating legislation that would require the Foreign Intelligence Surveillance Court to rule on the constitutionality of the NSA program. "Unless they're prepared to have a determination on constitutionality as to their programs, window dressing oversight will not be sufficient," Mr. Specter said. Mike DeWine (R-O) has proposed authorizing the program and using subcomittees to oversee it.

On March 12 2006, Senator Feingold called on the Senate to censure the President over the controversy. [7]

On March 16, 2006, Senator Arlen Specter (R-PA) introduced The National Security Surveillance Act of 2006 (statement) (text), which would amend FISA to provide FISA court (FISC) jurisdiction to review, authorize, and oversight "electronic surveillance programs."

On April 1, 2006, the Senate Judiciary Committee held a hearing about Feingold's motion to censure. At the hearing, John Dean, former counsel to Richard Nixon, remarked:

No presidency that I can find in history has adopted a policy of expanding presidential powers merely for the sake of expanding presidential powers.... It has been the announced policy of the Bush/Cheney presidency, however, from its outset, to expand presidential power for its own sake, and it continually searched for avenues to do just that, while constantly testing to see how far it can push the limits. I must add that never before have I felt the slightest reason to fear our government. Nor do I frighten easily. But I do fear the Bush/Cheney government (and the precedents they are creating) because this administration is caught up in the rectitude of its own self-righteousness, and for all practical purposes this presidency has remained largely unchecked by its constitutional coequals....

Congress is now confronted with executive branch attorneys who take the most aggressive reading possible in all situations that favor executive power.... If this committee does not believe this Administration is hell bent on expanding its powers ... you have been looking the other way for some five years of this presidency.... That is why censure might be the only way for the Senate to avoid acquiescing in what is clearly a blatant violation of the 1978 FISA stature (sic), not to mention the Fourth Amendment.

GOP lawmakers called Feingold's resolution "irresponsible," "inappropriate," "excessive," "perverse," "false," "surreal," "beyond the pale," and "destructive." Republican Senator Orrin Hatch, contradicting Dean's assumption that "...it is stipulated that no one disagrees with the Administration’s desire to deal aggressively with terrorism," said "I can only hope that this constitutionally suspect and, I believe, inflammatory attempt to punish the president for leading this war on terror will not weaken his ability to do so," and the Committee's ranking Democrat, Patrick Leahy, stated "I ... have no hesitation in condemning the president for secretly and systematically violating the laws of the United States of America."

On April 27, 2006, Judiciary Committee Chairman Arlen Specter (R-Pa.) initiated legislative consideration of cutting off funds for NSA domestic surveillance unless Congress is kept fully and currently informed. He said, "The four hearings we have had and the way the matter is drifting, in my view, is insufficient to safeguard civil liberties. These are matters which require some active congressional action and that's what I'm looking toward."

On May 11, 2006, Arlen Specter said, "We will be calling in ATT, Verizon and BellSouth, as well as others, to see some of the underlying facts when we can't find out from the Department of Justice or other administration officials."

On May 15, 2006 Sen. Trent Lott (R-Mississippi) Was quoted by CNN as stating "What are people worried about? What is the problem? Are you doing something you're not supposed to?"

Intelligence Committee

File:John D. (Jay) Rockefeller IV.png

Sen. Jay Rockefeller Intelligence Co-Chair.

The United States Senate Select Committee on Intelligence held a four hour open hearing February 2 2006. Jay Rockefeller (D-W.V.) said Administration response was creating a disturbing impression "that the Intelligence Community has became a public relations arm of the White House in recent weeks. Even more troubling are the actions of the Intelligence Community to sidestep our Committee in its public defense of the NSA program."National Intelligence Director John Negroponte characterized al-Qaida and its ilk as his "top concern." He said the NSA warrantless surveillance program was crucial for protecting the nation. "This was not about domestic surveillance," he said. FBI Director Robert Mueller, responding to Sen. Jay Rockefeller (D-WV), said, "It's not fair to point a finger as to the responsibility of the leak." Michael Hayden stated that NSA capabilities "in a broad sense" were not "immune to this kind of information going out into the public domain." CIA Director Porter Goss told the Committee, "I'm stunned to the quick when I get questions from my professional counterparts saying, `Mr. Goss, can't you Americans keep a secret?"

On February 3, 2006 Pat Roberts, (R-KS) Chairman, said in a letter to the Chairman of the Senate Judiciary Committee, "Any exercise of the constitutional authority to conduct warrantless electronic surveillance must comply with the 'touchstone of the Fourth Amendment' - 'reasonableness.' The terrorist surveillance program authorized by the President more than meets that test."

On February 9, 2006 Michael V. Hayden and Alberto R. Gonzales gave the committee a secret briefing. Before the hearing Sen. Chuck Hagel (R-Neb.) was quoted as saying, "The administration cannot unilaterally assume that they have the answers to get around or go over a law."

At a closed door meeting on February 16, 2006, citing administration willingness to talk about legislation, Pat Roberts (R-Kan.) used a party-line vote to adjourn to avoid a vote on a motion by Jay Rockefeller (D-WV) for an investigation. In a press release, Rockefeller said, "It is apparent to me that the White House has applied heavy pressure in recent weeks to prevent the committee from doing its job." Olympia J. Snowe (R-Maine) said "The administration must demonstrate its commitment to avoiding a constitutional deadlock by engaging in good-faith negotiations." Chairman Roberts said the panel could consider an investigation at its next meeting on March 7 if no agreement had been worked out with the White House.

By late February - early March 2006, competing proposals to authorize the NSA domestic spying program subject to Congressional or FISA court oversight have been proposed and are being discussed. For example, Senator Mike DeWine (R-Ohio) introduced a proposal that would approve the NSA program subject to oversight by special congressional committees and Senator Arlen Spector (R-Pa.) put forward one that would require FISA court approval every 45 days to continue the program. The White House indicated it preferred the DeWine approach.

In a letter to Senate majority leader Bill Frist (R-Tenn.) on March 1, 2006, Senate minority leader Harry Reid (D-NV) said he would take the matter to the full senate if Intelligence Chairman Roberts once again did not allow voting on whether to have an investigation at their next meeting on March 7. In a reply on March 3 Frist suggested that he, Roberts, Rockefeller and Reid have a meeting; also stating that the committee had more important things to do than investigate, and suggested that the committee's special nonpartisan rules could be removed unless the democrats became less partisan.

On March 7, 2006 the committee voted along straight party lines to reject Rockefeller's proposed investigation. "The committee - to put it bluntly - basically is in the control of the White House," he said. Pat Roberts had obtained an agreement with the White House to create House and Senate oversight subcommittees. He said, "We should fight the enemy. We should not fight each other." Majority Leader Bill Frist (R-Tenn.) stated, "While I believe the president has the constitutional authority to conduct this program, I support the efforts by my colleagues to establish a statutory framework to conduct the program..."

On March 8, 2006 Roberts spoke of his resentment at what he said was a "lap dog of the administration" characterization of himself, and indicated that he got the best that threat of investigation could obtain from a White House that "wanted the status quo." Chuck Hagel said that he, DeWine and Snowe were three of the most independent Republicans in the Senate. The Mike DeWine crafted framework is to give "full access" to operational details of the NSA program to one House and one Senate subcommittee, each with seven members. To extend warrantless surveillance of a subject beyond 45 days, the U.S. Attorney General is required to explain under oath before each subcommittee why it's necessary; otherwise that surveillance must be dropped or go through FISA. The Senate subcommittee is to be composed of Republicans Roberts, Hatch, DeWine and Bond; and Democrats Rockefeller, Levin and Feinstein. Rockefeller conceded that the Roberts deal was, "a step in the right direction." Senators Mike DeWine of Ohio, Olympia Snowe of Maine, Chuck Hagel of Nebraska and Lindsey Graham of South Carolina introduced the bill on March 7, 2006.

On March 12, 2006 Sen. Russ Feingold (D-Wisconsin) appeared on ABC's "This Week" and said that he intended to introduce a resolution to censure president Bush. "What I'm interested in is my colleagues acknowledging that we as a Congress have to stand up to a president who acts as if the Bill of Rights and the Constitution were repealed on September 11," he said. Senate Majority Leader Bill Frist, who also spoke on ABC, said Feingold, "is just wrong...He is flat wrong, he is dead wrong...attacking our commander in chief...doesn't make sense...We are right now at an unprecedented war where they really want to take us down...A censure resolution ...is wrong. It sends a signal around the world." Sen. John Warner (R-Virginia) characterized Feingold's move as "political grandstanding." Carl Levin (D-Michigan) said, "I think criticism of the president is legitimate." Senator Russ Feingold, who is on both the Intelligence and Justice Committees, introduced a Resolution to censure George W. Bush on March 13, 2006.

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 (announcement) (text), 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), chairman of the Judiciary Committee, introduced The National Security Surveillance Act of 2006 (statement) (text), which would amend FISA to provide FISA court (FISC) jurisdiction to review, authorize, and oversight "electronic surveillance programs."

House of Representatives

United States House Permanent Select Committee on Intelligence

On February 1, 2006 Chairman Peter Hoekstra (R-MI) wrote a letter criticising the release and content of two papers analysing the legality of the program by the Congressional Research Service.

On February 7, 2006 Congresswoman Heather Wilson (R-NM), chairwoman of the House Intelligence Subcommittee on Technical and Tactical Intelligence, broke ranks with congressional Republicans and declared support for a full congressional inquiry regarding the surveillance program. Wilson said that she had "serious concerns" about the surveillance program. By withholding information about its operations from many lawmakers, she said, the administration has deepened her apprehension about who the agency is monitoring and why. On February 8, 2006 Michael V. Hayden and Alberto R. Gonzales gave the committee a secret briefing. Jane Harman (D-Calif.), told reporters that "the ice is falling."

On February 16, 2006 co-chairmen said the committee will hold closed door investigations. Jamal Ware, a spokesman for Chairman Hoekstra, denied the inquiry would examine operational details, however anonymous congressional aides and representative Heather A. Wilson said it would. Rep. Jane Harman (D-Calif.) said she was told there was no broader program than the NSA warrantless surveillance by White House counsel Harriet Miers on March 1 and by Attorney General Alberto R. Gonzales on March 2, 2006.

Judiciary Committee

On February 8, 2006, Congressman James Sensenbrenner, Chairman of the House Judiciary Committee wrote [8] Congressional Research Service director Daniel Mulholland, complaining about the incomplete analysis of the NSA surveillance analysis and attaching letters by Law Professors Robert Alt [9] and John C. Eastman. [10] Alt is associated with the John Ashbrook Center for Public Affairs and Eastman with the Claremont Institute, both dedicated to teaching the conservative tenets of strict constructionism and limited government.

On January 10, 2006, John Conyers (D-MI) announced in a press release on his official website that the Democratic members of the House Judiciary Committee would hold an informal hearing on the warrantless spying program.

On January 20, 2006, the Democratic members of the House Judiciary Committee held an informal hearing on the warrantless spying program. They heard the testimony of Caroline Fredrickson of the ACLU, who told them, "The executive power of our country is not an imperial power... The president has demonstrated a dangerous disregard for our Constitution and our laws with his authorization for this illegal program". On that day Conyers also sent a letter to a number of telecommunications companies asking how much they had cooperated with the government.

On May 10, 2006, Maurice Hinchey (D-NY) received a letter from the Department of Justice advising him that their investigation of the program had to be terminated due to denial of security clearances. CNN quoted Hinchey as saying, "This administration thinks they can just violate any law they want, and they've created a culture of fear to try to get away with that. It's up to us to stand up to them."

Congressional Research Service

On January 5, 2006, Congressional Research Service (CRS) Analysts Elizabeth B. Bazan and Jennifer K. Elsea issued their memorandum entitled, "Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information." The memorandum concluded, "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...Congress intended to cover the entire field with these statutes. To the extent that the NSA activity is not permitted...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.'... 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....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."

On January 18, 2006, CRS Analyst Alfred Cumming issued his memorandum entitled "Statutory Procedures Under Which Congress Is To Be Informed of U.S. Intelligence Activities, Including Covert Actions." That report found that "Based 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..."

• The Congressional Research Service, a nonpartisan research arm of the Library of Congress, released a detailed memo on January 5 2006 regarding the NSA electronic surveillance of communications, concluding that "it appears unlikely that a court would hold that Congress has expressly or impliedly authorized the NSA electronic surveillance operations" and that the Administrations reliance on executive power was not "well-grounded." Furthermore, it is evident the interpretation that has been advanced (by most notably John Yoo) is more broad than originally intended. More to the point: "the legislative history of the force resolution shows that Congress had no intention of broadening the scope of presidential warmaking powers to cover activity in the United States. According to Senator Tom Daschle, the former Senate majority leader who negotiated the resolution with the White House, the Administration wanted to include language explicitly enlarging the President's warmaking powers to include domestic activity. That language was rejected. Obviously, if the Administration felt it already had the power, it would not have tried to insert the language into the resolution."

• The Congressional Research Service released another report on January 18 2006, "Statutory Procedures Under Which Congress Is To Be Informed of U.S. Intelligence Activities, Including Covert Actions". The report argued that it was an intelligence collection, rather than a covert action program, and as such the Bush administration's refusal to brief any members of Congress on the warrantless domestic spying program other than the so-called Gang of Eight congressional leaders is "inconsistent with the law."

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.

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." 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 . See also Why We Listen , The Eavesdropping Debate We Should be Having ; A New Surveillance Act ; and A historical solution to the Bush spying issue (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 (discussing how FISA is inadequate to address certain technology developments).

The Administration has contended that amendment is 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." 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.

Competing proposals to authorize the NSA program subject to Congressional or FISA court oversight have been proposed and are being discussed. For example, Senator Mike DeWine (R-Ohio) has introduced a proposal that would approve the NSA program subject to oversight by special congressional committees and Senator Arlen Spector (R-Pa.) has put forward one that would require FISA court approval every 45 days to continue the program. The White House has indicated it prefers the DeWine approach but Senator Pat Roberts (R-Ka.), chairman of the Senate Intelligence Committee, has indicated that some FISA court involvement is probably necessary for Congressional support.

Legal challenges

Main article: Legal challenges to NSA warrantless searches in the United States

The NSA warrantless spying program has included extraordinary obstacles to open litigation. Alberto Gonzales has admitted that the NSA program includes spying on attorney-client communications , and one of the attorneys for the Center for Constitutional Rights has pointed out that the administration is routinely arguing that its court filings in defense of the NSA program are so secret they cannot be served on the defense counsel for rebuttal, a procedure that is unprecedented in the history of American justice that some courts are accepting.

On January 17, 2006, the ACLU and the Center for Constitutional Rights filed separate lawsuits, ACLU v. NSA and Center for Constitutional Rights v. Bush, challenging the legality of the warrantless spying program, with a range of plaintiffs such as defense lawyers, journalists, scholars, political activists, and organizations, including Christopher Hitchens, Larry Diamond, and Greenpeace, who communicate with or travel extensively to Middle Eastern nations. The Electronic Privacy Information Center (EPIC) filed a Freedom of Information Act (United States) lawsuit two days after the lawsuits filed by the ACLU and the CCR.

The Electronic Frontier Foundation filed Hepting vs. AT&T, a Class-Action Lawsuit Against AT&T for Collaboration with Illegal Domestic Spying Program, on January 31 2006 in the U.S District Court, Northern District of California. The U.S. Government joined the case on April 28th, 2006, stating that it would argue that the case must be dismissed on grounds of State Secrets Privilege.

On February 28, 2006, the Center for National Security Studies (CNSS) and The Constitution Project (TCP) filed a 48-page amici curiae (friend of the court) brief entitled In re Warrantless Electronic Surveillance with the United States Foreign Intelligence Surveillance Court.

BellSouth Corp and Verizon Telecommunications are now facing lawsuits seeking billions of dollars in damages for illegally turning over personal calling records to the government. The damages amount to over $1,000 per person affected. Consumers can sue their phone service provider under communications privacy legislation that dates back to the 1930s. Relevant laws include the Communications Act, first passed in 1934, and a variety of provisions of the Electronic Communications and Privacy Act, including the Stored Communications Act, passed in 1986.

Legal issues

There are a number of legal issues surrounding the surveillance without warrants controversy. It has been suggested that President Bush, in authorizing such surveillance, is in violation of the Privacy Act of 1974, the Foreign Intelligence Surveillance Act of 1978 (FISA), and the Fourth Amendment to the United States Constitution (the Fourth Amendment is part of the Bill of Rights which seeks to guard Americans against unreasonable search and seizure). President Bush, however, has claimed authority to approve surveillance programs under the September 18, 2001 Congressional Authorization for the Use of Military Force, under Title II of the USA PATRIOT Act entitled Enhanced Surveillance Procedures, and under his inherent powers as described in Article Two of the United States Constitution, Section Two (giving the President constitutional authority and powers as commander in chief).

Legality of warrantless surveillance

The debate surrounding President Bush's authorization of warrantless surveillance is principally about the extent of the authority the executive branch derives from its constitutional and statutory authority to protect the nation from attack and its relation to restrictions imposed by FISA. The legal community is split; 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, 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, 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; see "Other legal analysis" below.

The In re sealed case decision in section III says, "The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power. The question before us is the reverse, does FISA amplify the President’s power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government’s contention that FISA searches are constitutionally reasonable."

K.A. Taipale of the World Policy Institute and James Jay Carafano of the Heritage Foundation , Philip Bobbitt of the University of Texas at Austin Law School , Judge Richard A. Posner , and others (See, e.g., The Eavesdropping Debate We Should be Having ) have suggested that, regardless of how one feels about this important Constitutional power issue, FISA itself is no longer adequate to deal with certain foreign intelligence surveillance requirements and related technology developments and thus needs to be amended. In particular, FISA may no longer be adequate to address the transition from circuit-based communications to packet-based communications, the globalization of communications infrastructure, and the development of automated monitoring techniques, including data mining and traffic analysis (see Whispering Wires and Warrantless Wiretaps ).

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). 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.

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. These legal and constitutional orders were exercises of executive power under Article II consistent with FISA. In Clinton's executive order, he authorizes 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".

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. It is argued 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."

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.

In In Re Sealed Case No. 02-001 the United States Foreign Intelligence Surveillance Court of Review [11] 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, was 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.

Even assuming the President has no authority under Article II of the Constitution, the administration has argued that the President's decision may nevertheless be protectible under FISA. Following the 9/11 attacks, Congress passed the Authorization for Use of Military Force Against Terrorists (AUMF). Section 2(a) of the AUMF 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, critics have pointed out that 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. This is further supported by reports from many members of Congress who have said they had no idea of overturning FISA by passing the AUMF, while no member of Congress has volunteered the opposite, that they conceived of overturning FISA by passing the AUMF. The conservative Republican senator Lindsay Graham went further, during the testimony of Alberto Gonzales to the Senate Judiciary Committee, and made the point that Congress will be far more hesitant to pass general authorizations to use military force in the future, and will have to take the time to work out narrowly detailed statutory authorizations in the future, out of wariness of the precedent of the AUMF having been interpreted to authorize far greater powers than Congress had in mind.

The administration argues instead 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, in this case, is that "all necessary force" includes "foreign surveillance", and that the AUMF is therefore a statute that otherwise 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 were "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. However, former Senate majority leader Tom Daschle, who negotiated the language of the AUMF, explained that "the president has exercised authority that I do not believe is granted to him in the Constitution, and that I know is not granted to him in the law that I helped negotiate."

Finally, 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."

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 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."

Other legal analysis

• Bruce Fein, former Assistant Deputy Attorney General under Ronald Reagan and well known as a conservative Constitutional scholar, responded to the revelation of the warrantless NSA program by saying, “On its face, if President Bush is totally unapologetic and says I continue to maintain that as a war-time President I can do anything I want – I don’t need to consult any other branches – that is an impeachable offense. It’s more dangerous than Clinton’s lying under oath because it jeopardizes our democratic dispensation and civil liberties for the ages. It would set a precedent that … would lie around like a loaded gun, able to be used indefinitely for any future occupant.”

• Professor Peter Swire, the C. William O’Neill Professor of Law at the Ohio State University 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." 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.

• Fourteen of the nation's top constitutional scholars, from across the political spectrum, sent a legal brief to leading members of Congress in which they concluded that "the Bush administration's National Security Agency domestic spying program... appears on its face to violate existing law." After the Department of Justice released its memo of January 19 arguing for the legality of the program, the same fourteen authors issued a second letter to the same Congressional leaders rebutting the Justice Department's legal analysis. The fourteen authors are:

Curtis Bradley, law professor, Duke Law School, former Counselor on International Law in the State Department Legal Adviser's Office

David Cole, law professor, Georgetown University Law Center

Walter Dellinger, law professor, Duke Law School, former Deputy Assistant Attorney General, Office of Legal Counsel and Acting Solicitor General * See Below

Ronald Dworkin, law professor, NYU Law School

Richard Epstein, law professor, University of Chicago Law School, Senior Fellow, Hoover Institution

Philip B. Heymann, law professor, Harvard Law School, former Deputy Attorney General

Harold Hongju Koh, law professor and Dean, Yale Law School, former Assistant Secretary of State for Democracy, Human Rights and Labor, former Attorney-Adviser, Office of Legal Counsel, DOJ

Martin Lederman, law professor, Georgetown University Law Center, former Attorney-Adviser, Office of Legal Counsel, DOJ

Beth Nolan, former Counsel to the President and Deputy Assistant Attorney General, Office of Legal Counsel

William S. Sessions, former Director of the FBI under Presidents Reagan and Bush I, former Chief United States District Judge

Geoffrey Stone, law professor and former Provost, University of Chicago

Kathleen Sullivan, law professor and former Dean, Stanford Law School

Laurence H. Tribe, law professor, Harvard Law School

William Van Alstyne, law professor, William & Mary Law School, former Justice Department attorney under President Eisenhower

• Robert Reinstein, dean of the law school at Temple University, has asserted that the warrantless domestic spying program is "a pretty straightforward case where the president is acting illegally... When Congress speaks on questions that are domestic in nature, I really can't think of a situation where the president has successfully asserted a constitutional power to supersede that... This is domestic surveillance over American citizens for whom there is no evidence or proof that they are involved in any illegal activity, and it is in contravention of a statute of Congress specifically designed to prevent this." Mr. Reinstein asserted that the broad consensus among legal scholars and national security experts is similar to his own analysis, and he predicted that the courts will rule that the program is unconstitutional. New York Times

• Edward Lazarus, law professor and former U.S. Supreme Court clerk and federal prosecutor, has argued in articles such as "Warrantless Wiretapping: Why It Seriously Imperils the Separation of Powers, And Continues the Executive's Sapping of Power From Congress and the Courts", that "Unilateral executive power is tyranny, plain and simple".

• Jonathan Turley, a professor at The George Washington University Law School and a specialist in surveillance, speaking about Bush's admission that he authorized warrantless wiretaps, was quoted on December 20, 2005 by Knight Ridder writer Ron Hutcheson, "The president’s dead wrong. It’s not a close question. Federal law is clear. When the president admits that he violated federal law, that raises serious constitutional questions of high crimes and misdemeanors." Turley had testified against Clinton, according to an December 22, 2005 interview in Salon. "Many of my Republican friends joined in that hearing and insisted that this was a matter of defending the rule of law, and had nothing to do with political antagonism. I'm surprised that many of those same voices are silent. The crime in this case was a knowing and premeditated act. This operation violated not just the federal statute but the United States Constitution. For Republicans to suggest that this is not a legitimate question of federal crimes makes a mockery of their position during the Clinton period. For Republicans, this is the ultimate test of principle."

• Douglas Kmiec, constitutional law professor and law school chair at Pepperdine University, believes that "There is not a scholar alive who could confidently say who would prevail in a clash between a federal statute and the President's assertion of inherent power vis-à-vis the McCain Amendment, or, for that matter, war-on-terror-related wiretapping", while conceding that "Admittedly, FISA's own statutory wartime exception (excusing the warrant requirement for a brief period following a war declaration) is in tension with a sweeping inherent power claim."

• Orin S. Kerr, a professor of law at The George Washington University Law School and scholar of the legal framework of electronic surveillance has opined that the question of whether the wiretapping violated the Fourth Amendment and the criminal provisions of FISA is a complex issue, but that after his first analysis he concluded that the wiretapping probably did not infringe on Fourth Amendment constitutional rights, but, in his opinion, probably did violate the FISA statute.

• President Bush has maintained he acted within "legal authority derived from the constitution" and that Congress "granted [him] additional authority to use military force against al Qaeda". However, while the President may argue that the necessary statutory authority to override FISA's warrant provisions is provided by the authorization to use "all necessary force" in the employment of military resources to protect the security of the United States, and that the use of wiretapping is a qualifying use of force (under the terms of the authorization for the use of military force against al-Qaida as found in Senate Joint Resolution 23, 2001), Kerr believes that this justification is ultimately unpersuasive, as is the argument that the President's power as the Commander-in-Chief (as derived from Article Two of the United States Constitution) provides him with the necessary constitutional authority to circumvent FISA during a time of war. Kerr cautiously estimates that about eight of the nine Supreme Court justices would agree with him that Article Two cannot trump statutes like FISA. Bush's efforts to find justification for the wiretap program within the authorization to use "all necessary force" was further undermined when former Senator Tom Daschle said in a Washington Post op-ed that Congress turned down a specific Bush request for the power to pursue terrorist activity in the United States immediately after the September 11 attacks in the United States.

• John Schmidt, an associate attorney general during the Clinton Administration (1994-1997), believes the President's authorization of the NSA electronic surveillance of communications is consistent with court decisions and with the positions of the Justice Department under prior presidents. He argues that the passage of FISA did not alter any constitutional authority given to the president to conduct and authorize warrantless searches and surveillance for the purposes of foreign intelligence gathering. Schmidt cites the recent Foreign Intelligence Surveillance Court of Review opinion, In Re Sealed Case No. 02-001, for the proposition that "[a]ll the ... courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence ... We take for granted that the president does have that authority." In another piece , Schmidt also recalls that then-Attorney General Edward Levi (the bipartisanly well-respected AG during the Ford administration), despite supporting legislation in the foreign intelligence area, told the Church Committee that in his view Presidential authority to conduct foreign intelligence could not be limited by Congress to a statutory procedure.

• John Yoo, law professor and former deputy director of the Justice Department's Office of Legal Counsel, wrote on September 25 2001, that "[in] the exercise of his plenary power to use military force, the President's decisions are for him alone and are unreviewable." The memo examined closely the Executive branch's authority to deploy troops and respond to emergencies. If the NSA's foreign intelligence gathering is akin troop deployment or other war making activities, Yoo's memo would suggest that President Bush's authorization is both legal and constitutional.

• 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 in favor of Congress, 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.

• On January 16 2006, former Vice President Al Gore gave a major speech critical of the administration, said "At present, we still have much to learn about the NSA's domestic surveillance. What we do know about this pervasive wiretapping virtually compels the conclusion that the president of the United States has been breaking the law, repeatedly and insistently." Washington Post

• John W. Dean wrote a column published 30 December in Findlaw stating: "There can be no serious question that warrantless wiretapping, in violation of the law, is impeachable." Mr. Dean went on to say, "These parallel violations underscore the continuing, disturbing parallels between this Administration and the Nixon Administration..." "Indeed, here, Bush may have outdone Nixon..."

In comparing the wiretapping policies adopted by the Bush Administration, Mr. Dean commented: "No president before Bush has taken as aggressive a posture -- the position that his powers as commander-in-chief, under Article II of the Constitution, license any action he may take in the name of national security - although Richard Nixon, my former boss, took a similar position."

Commenting on Professor John Yoo's legal arguments justifying the Bush Administration policy, Mr. Dean remarked that he found "Professor Yoo's legal thinking bordering on fantasy." In support of his conclusion, he referenced the recent review of The Powers of War and Peace:The Constitution and Foreign Affairs After 9/11 by John Yoo in the New York Review of Books (Volume 52, Number 18 · November 17 2005) by Georgetown University School of Law professor David Cole.

In his review, "What Bush Wants to Hear", Professor Cole commented that "Yoo was so influential in the Bush administration..." because his arguments were exactly what "the president would have wanted to hear." Professor Cole writes: "Yoo contends that the president has unilateral authority to initiate wars without congressional approval, and to interpret, terminate, and violate international treaties at will. In other words, when it comes to foreign affairs, the president exercises unilateral authority largely unchecked by law—constitutional or international."

• According to a report in The Boston Globe on February 2, 2006 three law professors, David Cole (Georgetown University), Richard Epstein (University of Chicago), and Philip Heymann (Harvard), said that what Bush is doing is unprecedented. Bush's claim that other presidents asserted that wartime powers supersede an act of Congress, "is either intentionally misleading or downright false," Cole said. He said Bush is misstating the In Re Sealed Case No. 02-001 ruling which supported Congressional regulation of surveillance. Epstein believes the United States Supreme Court would reject the Administration's argument and said, "I find every bit of this legal argument disingenuous...The president's position is essentially that (Congress) is not doing the right thing, so I'm going to act on my own." Professor Heymann, a former duputy US attorney general said, "The bottom line is, I know of no electronic surveillance for intelligence purposes since the Foreign Intelligence Surveillance Act was passed that was not done under the . . . statute."

• Bryan Cunningham, a national security lawyer and Justice and CIA officer in the Clinton and Bush Administrations (Deputy Legal Advisor to the National Security Council from 2002 - 2004) wrote extensively about the Constitutional and legal authorities supporting the President's authority to authorize the NSA activities in a February 3 2006 letter to Congress, available on the website of Cunningham's Denver law firm Morgan & Cunningham LLC, along with the relevant federal statute.

• On February 13 2006, the American Bar Association issued a statement denouncing 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 first obtaining warrants from a special secret court set up under the 1978 Foreign Intelligence Surveillance Act.[12]

• Walter Dellinger argued the opposite position for the Clinton Administration in 1994. [13]

• An internal 23-page legal analysis by David S. Kris, the Associate Deputy Attorney General for national security under President Bush until 2003, was released by the Department of Justice in EPIC's FOIA case on March 8, 2006. Kris' analysis, furnished to Courtney Elwood in the Department of Justice in December, 2005, examines the administration's legal arguments and finds them weak. It expresses doubt that the administration's arguments for its legal authority to conduct the warrantless surveillance program would be upheld by the courts. [14][15] [16] [17]

• Glenn Greenwald, constitutional lawyer and prominent blogger[18] arguing that the NSA controversy is illegal summarized: "Ultimately, though, the entire legal debate in the NSA scandal comes down to these few, very clear and straightforward facts: Congress passed a law in 1978 making it a criminal offense to eavesdrop on Americans without judicial oversight. Nobody of any significance ever claimed that that law was unconstitutional. The Administration not only never claimed it was unconstitutional, but Bush expressly asked for changes to the law in the aftermath of 9/11, thereafter praised the law, and misled Congress and the American people into believing that they were complying with the law. In reality, the Administration was secretly breaking the law, and then pleaded with The New York Times not to reveal this. Once caught, the Administration claimed it has the right to break the law and will continue to do so."[19]

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... (a) In no case shall information be classified in order to: (1) 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.

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... (a) In no case shall information be classified in order to: (1) 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.

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."

Precedents for warrantless searches 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 Sates, going back to George Washington. 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. Abuses of electronic surveillance by the federal government led to reform legislation in the 1970's. Advancing technology began to present questions not directly addressed by the legislation as early as 1985.

Editorials

Major American newspapers condemned the president's actions with particularly strong language. For instance, the Des Moines Register claimed that Bush "has declared war on the American people." The (Nashville) Tennessean called the president's actions "reckless" and "frontier justice."

Even Televangelist Pat Robertson called the NSA wire-tapping a "tool of oppression." and papers that usually support Republicans (for instance, the Detroit News) have called it "an unacceptable and unnecessary shortcut that must be halted immediately." The Pittsburgh Tribune-Review conceded that Bush had broad powers to protect the country, but reminded the president that "the check and balance of first obtaining a warrant -- hardly a hurdle too high -- should be sacrosanct." And the Idaho Statesman called the wiretaps "dead wrong" and "an assault on civil liberties." However, The Wall Street Journal praised Bush's move and called on his critics to "please stop stripping the Presidency of its Constitutional authority to defend America."

Support also came from an editorial in the Daily Illini where columnist John Bambenek suggested that Congress could have at any point simply defunded the program, providing a Congressional check on the President's power. The harshest criticism so far, however, has come from the Journal's sister publication, Barron's. In its December 26 edition, Barron's called for Congress to consider impeaching Bush for his actions.

Sean Hannity defended Bush during his January 3, 2006 broadcast saying that Americans should be thankful that the president was doing his job and protecting the country. "What are we supposed to do if Osama bin Laden calls the United States?", he states, and says that the president is just upholding his oath of office by protecting the nation. He ends by asking, "If Osama calls America, should we listen in or worry about his civil liberties?" However, many commentators have pointed out that while defenders of the warrantless wiretapping typically reframe the debate as a choice of whether or not to wiretap Al Qaeda, no Democratic politician has suggested that wiretaps not be performed on Al Qaeda, only that wiretaps be performed in accordance with the law. [20]

After Attorney General Gonzales' February 6, 2006 testimony before the Senate Judiciary Committee the Los Angeles Times editorialized, "It's hard to say what's more disturbing: the attorney general's unsound legal reasoning or his transparent efforts to avoid a legal conversation altogether in favor of emotional appeals aimed squarely at the court of public opinion." The Wall Street Journal, on the other hand, said "Any attempt to expand FISA would be the largest assault on Presidential power since the 1970s...Far from expanding FISA, Congress could best serve the country by abolishing it."

In an editorial on March 10, 2006 about the Senate Intelligence Committee's oversight plan, the San Jose Mercury News said that, "Congress is abdicating its watchdog role and condoning a program that may well violate specific laws and the Constitution."

Polls

A poll, which failed to mention the warrantless nature of the program, conducted by Rasmussen Reports in late December 2005 showed that 64% of Americans believed that the NSA should be allowed to intercept telephone conversations between terrorism suspects in other countries and people living in the United States, while 23% disagreed with that statement, while another poll by Rasmussen Reports showed that just 33% of Americans believe that the President broke the law, while 50% do not believe the law was broken.

Other polls:

a 58% majority of the American public would like a full investigation into the legality of the program.White House defends spying policy - BBC

a public split A NYT/CBS poll conducted at the beginning of the 4th week of January 2006, with an edge within the poll's 3% margin of sampling error.

A Zogby poll (commissioned by AfterDowningStreet.org) shows that 52% of respondents agreed with the statement: "If President Bush wiretapped American citizens without the approval of a judge, do you agree or disagree that Congress should consider holding him accountable through impeachment." 43% disagreed with the statement. A clear partisan split was shown by this poll; independents were evenly split, 76% of Democrats agreed, but only 29% of Republicans agreed with the statement.

53% of Americans said that "the NSA's surveillance program is illegal and goes too far in invading privacy" and 57% said that in light of the NSA data-mining news and other executive actions the Bush-Cheney Administration has “gone too far in expanding presidential power" while only 41% see it as a tool to "combat terrorism" and 35% think the Administration’s actions were appropriate in a Newsweek poll NEWSWEEK poll in May 2006,

Other US domestic surveillance programs

See also main article: ECHELON

On February 8, 2006, The Christian Science Monitor reported that the US is developing a massive computer system that can collect and sort through huge amounts of data to search for terrorists and patterns of terrorist activity. According to the report, the system under development, parts of which are already operational, is being funded by the Department of Homeland Security (DHS) as part of its Threat and Vulnerability, Testing, and Assessment (TVTA) program, which received nearly $50 million in federal funding this year.

The core of the effort is a system known as the "Analysis, Dissemination, Visualization, Insight, and Semantic Enhancement" (ADVISE)" project, which uses automated data analysis tools, including data mining and visualizaton, to discover links between entitities (that is, between people, places, and things extracted from commercial and public online sources cross-referenced against intelligence and law enforcement data) as well as to discover patterns of suspicious activity. According to the article, some aspects of ADVISE are already operational. For example, Starlight, a data visualization tool that allows non-obvious relationships in data to be visualized provides human analysts with a graphical view of data.

The ADVISE project is intended to develop a comprehensive knowledge discovery in database system in which links, relationships, and patterns in data are combined with other intelligence as well as social network and organizational behavior theories and analysis in order better to understand terrorist's motivations and intentions.

According to the article, some are concerned that the ADVISE program echoes the earlier Terrorism Information Awareness program (TIA). TIA was a research and development program of the Defense Department's DARPA research agency to develop many of the same tools that ADVISE is developing. TIA was defunded by Congress in 2003 over potential privacy concerns. Many of the projects that were being developed in TIA were continued under classified programs.

Other domestic surveillance programs have been reported as well. For example, the Department of Defense has conducted domestic force protection and counterintelligence surveillance through the Counterintelligence Field Activity (CIFA) agency. CIFA properly collects raw "Threat and Local Observation Notices" (TALONs) relating to potential threats to military installations through its "Joint Protection Enterprise Network" (JPEN) database. However, it has been reported that "irregularities" exist in the database, including reports on U.S. citizens conducting antiwar activity at US military bases that has been improperly retained beyond the 90 day authorized period during which threat assessments are to be made.

On May 16, 2006 the FBI acknowledged that it was seeking the phone records of journalists. When asked specifically by ABC News the FBI did not deny that it had sought phone records of journalists from ABC News, the New York Times and the Washington Post as part of an ongoing investigation on leaks in the CIA. The ABC News reporter who broke the story, Brian Ross, claims that he had been given a phone call by a government official warning him that the government was aware of what he and other ABC journalists were saying over the phone.

See also

• Terrorist surveillance program details of the program itself
• Criticisms of the War on Terrorism
• ECHELON
• Constitution of the United States
• Foreign Intelligence Surveillance Act
• Fourth Amendment to the United States Constitution
• Greek telephone tapping case 2004-2005
• Movement to impeach George W. Bush
• Unitary Executive theory
• USA PATRIOT Act, Title II
• "War on terror"
• Data mining

External links

• House Judiciary 20 January 2006 Briefing Statements, Transcript, EFF and ACLU Complaints and Related Action Documents in HTML via thewall.civiblog.org
• Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information by Elizabeth B. Bazan and Jennifer K. Elsea, January 5 2006 (HTML) - Congressional Research Service via thewall.civiblog.org
• Statutory Procedures Under Which Congress Is To Be Informed of U.S. Intelligence Activities, Including Covert Actions by Alfred Cumming, January 18 2006 (HTML) - Congressional Research Service via thewall.civiblog.org
• EFF Class Action Complaint (Initial Filing) against AT&T (HTML) via thewall.civiblog.org
• ACLU Complaint (Initial Filing) against the NSA Central Security Serice and Lieutenant General Keith B. Alexander (HTML) via thewall.civiblog.org
• The American Bar Association objects to Bush's Wiretaps
• Department of Justice Letter to the Senate Select Intelligence Committee 22 December (PDF) via Federation of American Scientists
• The Foreign Intelligence Surveillance Act: An Overview of the Statutory Framework and Recent Judicial Decisions - Congressional Research Service - April 2005 via Federation of American Scientists
• Not Authorized By Law: Domestic Spying and Congressional Consent, JURIST
• Washington Monthly blog post on an opposed conservative reaction
• Surveillance law resources, JURIST
• T.J. Rodgers. U.S. gets closer to Orwell's Big Brother, San Jose Mercury News, December 29 2005.
• Cornell Law: US CODE Title 50, Chapter 36—Foreign Intelligence Surveillance
• FindLaw News Document Archive for National Security Agency (NSA)
• Justice Dept. Defense of Domestic Surveillance 22 December 2005 (EPIC)[21]
• The New York Review of Books: ON NSA SPYING: A LETTER TO CONGRESS(Volume 53, Number 2 · February 9 2006)
• ALEXANDER COCKBURN and JEFFREY ST. CLAIR, Time-Delayed Journalism: the NYT and the NSA's Illegal Spying Operation December 17 2005
• Gabriel Sherman, Why Times Ran Wiretap Story, Defying Bush The New York Observer, December 26 2005
• JENNIFER VAN BERGEN, The Unitary Executive: Is The Doctrine Behind the Bush Presidency Consistent with a Democratic State? Findlaw (Monday, 9 January 2006)
• Swire, Peter P., "The System of Foreign Intelligence Surveillance Law" - George Washington Law Review, Vol. 72, 2004
• No Oil for Pacifists, Wiretap Law--Debate and Answer, blog post providing legal and policy analysis, extensively hyperlinked to cases, statutes and articles (30 January 2006)
• C-SPAN videos (require RealPlayer)
• Whistleblower says NSA violations bigger United Press International, February 14 2006
• Letter from Senator Pat Roberts to Senator Arlen Specter Senator defends NSA program legality, February 3 2006 via Federation of American Scientists
• Presidential Secrecy and the NSA Spying Controversy, JURIST
• NSA Eavesdropping and the Fourth Amendment, JURIST
• Washington Post's overview: NSA: Spying at Home

• National Do Not Wiretap Registry (parody)