NSA warrantless surveillance (2001–2007)

In 2002 the President of the United States, George W. Bush, issued an executive order which authorized the National Security Agency (NSA) to conduct warrantless phone-taps of persons who were believed to be linked to al-Qaeda or its affiliates. (The complete details of this authorization are still not fully known). The NSA maintained wiretaps on international communications, including those that included U.S. participants. Such spying on U.S persons without the approval of the United States Foreign Intelligence Surveillance Court was barred under the 1978 Foreign Intelligence Surveillance Act (FISA).

The 2002 presidential authorization was classified, and thus the program was concealed from public knowledge until December 2005, when it was first reported on by the The New York Times, which had somehow known about the program for approximately a year. Public knowledge of this program promptly led to a major national controversy over such issues as:

The legality of the warrantless wiretaps involving U.S. persons.
The efficiency of the program, and the legality of the NSA's handing-out the information to FBI ^[1]
Constitutional issues concerning the authority of Congress and the President's authority as Commander in Chief.
The possibility this program violates Constitutionally guaranteed rights.
The right to privacy.
The legality of the publication of this story by the New York Times, and the potential implications for U.S. national security arising from the disclosure of this highly-classified program.

The New York Times reports

On December 16, 2005, The New York Times printed a story that, under White House pressure and on the authority of an executive order from President George W. Bush, the National Security Agency had been conducting warrantless phone-taps on people in the U.S. calling people outside of the country, in an attempt to combat terrorism. ^[2]

Under a presidential order signed in 2002, the intelligence agency has 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.

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 balked in 2004 when asked to give approval of the wiretaps, 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 said that there had been resistance at the NSA to the warrantless wiretapping program. ^[3]

Congressional opposition to reported events

News of wiretapping without warrants sparked an outcry from the many quarters, including members of Congress representing both major parties, on constitutional grounds. Senator Arlen Specter (R-PA), the chairman of the Senate Judiciary Committee, said that "there is no doubt this is inappropriate" and referred to the White House program as "clearly and categorically wrong." Specter said that he would hold hearings into the matter early in 2006. His call for investigations was echoed by Congressman Rob Simmons (R-CT), the chairman of the House Homeland Security Intelligence Subcommittee. "Was the eavesdropping narrowly designed to go after possible terrorist threats in the United States or was it much, much more?" Simmons asked in a statement.

In a telephone interview with the Associated Press, Senator Russ Feingold (D-WI) called the president's remarks "breathtaking in how extreme they were." He added, "If that's true, he doesn't need the Patriot Act, because he can just make it up as he goes along. I tell you, he's President George Bush, not King George Bush. This is not the system of government we have and that we fought for." Feingold spoke just as harshly in an interview with CNN. "We have a president, not a king," he said. ^[4] Senator Patrick Leahy (D-VT), the ranking Democrat on the Judiciary Committee, added later, "The Bush administration seems to believe it is above the law."

On December 19, 2005, 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 to the Judiciary and Intelligence Committees calling for an investigation into the alleged domestic surveillance.^[5]

The Administration's response to the Times report

White House press secretary Scott McClellan refused to comment on the story on December 16, claiming "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." ^[6]

The next morning, however, 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 confirmed that he had in fact authorized warrantless searches and phone taps.^[7] He forcefully defended his actions as "crucial to our national security" and said 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 they acted illegally. "The unauthorized disclosure of this effort damages our national security and puts our citizens at risk," he said. ^[8]

The President's reaction to the disclosure of classified information and his defense of international wiretaps as "crucial" to national security differ with the reassurances he had given the nation, in defense of the USA PATRIOT Act, that Americans' civil liberties were being protected, and specifically that wiretapping was being pursued via warrants under applicable law. For instance, in a speech in Buffalo, NY on April 20 2004, Mr. Bush 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. ^[9]

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 said, "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 also 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. ^[10]

Foreign Intelligence Surveillance Court developments

On December 20 2005, Judge James Robertson, one of the 11 members of the Foreign Intelligence Surveillance Court, created by the 1978 FISA, sent Chief Justice John Roberts a resignation letter from the FISC. The letter gave no reason for Robertson's decision to resign.(Washington Post)

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", according to a report. (Washington Post) He and fellow judges on the court will reportedly attend a secret briefing, perhaps in January, called by presiding Judge Colleen Kollar-Kotelly. Since only she and her predecessor had been secretly briefed on the program, the rest of the court had presumably been learning about the Bush Administration's warrantless surveillance policy through press accounts. (Judge Kollar-Kotelly had begun lobbying the administation for a briefing disclosing the administration's position on their authoity to conduct warrantless wiretapping after Judge Robertson's resignation.)

Reportedly, the court is 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." (Washington Post)

Political and legal challenges to the warrantless spying program

On January 15, 2006, Republican Senate judiciary committee chairman Arlen Specter, who is launching an investigation of the warrantless spying program, mentioned impeachment and criminal prosecution as potential remedies if President Bush broke the law, though he downplayed the likelihood of such an outcome. Washington Post

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

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. New York Times

Legal issues

There are a number of legal issues surrounding the surveillance without warrants controversy. There is the possibility that President Bush, in authorizing such surveillance, is in violation of the 1978 Foreign Intelligence Surveillance Act (FISA) and the Constitution. President Bush, however, has justified the eavesdropping by the authority accorded to him by the September 18, 2001 Presidential Military Order.

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, and Suzanne Spaulding, former general counsel for the Intelligence Committees of the House and Senate, arguing that FISA clearly makes the wiretapping illegal^[11]; and still others, like John Schmidt, former Associate Attorney General, ^[12] and Douglas Kmiec, chair of Pepperdine Law School, arguing either that Congress implicitly authorized an exemption to FISA or that FISA cansnot bind the president in a time of war; see "Other legal analysis" below.

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)^[13]. In this situation, the surveillance must be directed solely at communications used exclusively by foreign powers, not U.S. persons. 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 surveillence 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.^[14] 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 is granted by the Constitution and by a statutory exemption. Case law supports the idea that the President has 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 with the responsibility to protect the Nation. This 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.

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.^[15]

Even assuming the President has no authority under Article II of the Consitution, the President's decision may nevertheless be protectible under FISA. Following the 9/11 attacks, Congress passed the Authorization for the Use of Military Force (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." Under FISA, this provides for two basic legal arguments. First, FISA allows for both physical searches and electronic surveillance without a court order for fifteen days after a declaration of war by Congress. 50 U.S.C. §1811. Several cases, including Hamdi v. Rumsfeld and Rumsfeld v. Padilla, have construed the AUMF as a declaration of war-at least, insofar as it authorizes war against Al Qaeda and its agents—although the language it uses also has notable differences with prior declarations of war. In this case, 50 U.S.C. §1811 may permit some level of surveillance. The meaning of 50 U.S.C. §1811 is somewhat ambiguous as to scope of authority permitted under this section. One argument is that it permits the President to authorize, for a period of fifteen days following the declaration, indefinite surveillance of Al Qaeda and its agents, but the repeated reauthorization of the surveillance by the President suggests this argument is not being used by the White House. Another interpretation is that it permits short term surveillance of fifteen days authorized at any point after the declaration of war.

The AUMF may also relieve the administration of any criminal or civil liability under 50 U.S.C. §§ 1809 and 1810. These two provisions, and their corresponding provisions for physical searches, provide 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." In Hamdi and Padilla, the Supreme Court found that the detention of both American and Foreign citizens were "clearly and unmistakably" a "fundamental incident of waging war". Intelligence gathering, some argue, would fall under this same rubric of incidents of war. As such, if the AUMF is 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." (Washington Post)

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

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." (Bazan & Elsea at Congressional Research Service) 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." (Elizabeth Holtzman in The Nation)

The Congressional Research Service released another report on January 18, 2006, concluding that 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." The New York Times

Fourteen of the nation's top constitutional scholars, from across the political spectrum, sent a legal brief to the 535 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." ^[16] 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

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

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". ^[17]

Jonathan Turley, a law professor at George Washington University 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." ^[18] 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." ^[19]

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." ^[20]

Orin S. Kerr, a professor of law at 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". ^[21] 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. ^[22] Kerr cautiously estimates that about eight of the nine Supreme Court justices would agree with him that Article Two cannot trump statutes like FISA.^[23] 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.^[24].

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."^[25] There is significant controversy over whether Schmidt's interpretation is correct, given that the quoted language in In Re Sealed Case No. 02-001 concerned a line of constitutional inquiry that predated the enactment of FISA, in particular United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980).

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."^[26] 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.

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 publication of illegally obtained communications involving a public controversy.

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.

Lawsuit

On January 17, 2006, several plaintiffs, including the ACLU, sued the NSA in the United States District Court for the Eastern District of Michigan challenging the constitutionality of the "secret government program to intercept vast quantities of international telephone and Internet communications of innocent Americans without court approval". ^[27] The complaint alleges violations of the Separation of Powers and the First and Fourth Amendments. The plaintiffs seek an injunction. Because of the nature of the program, the plaintiffs do not allege any specific instance of harm, but that because of the nature of the plaintiffs' work they have a "well-founded belief that their communications are being intercepted".

Among the co-plaintiffs is Larry Diamond who was an advisor to Iraq's Coalition Provisional Authority. In a statement, Larry Diamond states that the NSA program which intercepts communications will have a chilling effect on communications to and from the Middle East. ^[28]

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.'" ^[29]

California Democrat Nancy Pelosi also admitted to being 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." ^[30]

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."^[31]

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." ^[32]

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 2005, 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.^[33]

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.^[34]

Editorials

With few exceptions, most major American newspapers condemned the president's actions. The language in some editorials was particularly strong. For instance, the Des Moines Register claimed that Bush "has declared war on the American people."^[35] The (Nashville) Tennessean called the president's actions "reckless" and "frontier justice."^[36].

Criticism also came from newspapers that usually support Republicans. For instance, the Detroit News called the spying effort "an unacceptable and unnecessary shortcut that must be halted immediately."^[37] 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."^[38] And the Idaho Statesman called the wiretaps "dead wrong" and "an assault on civil liberties."^[39] 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."^[40] 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.^[41]

Sources

^ "Spy Agency Data After Sept. 11 Led F.B.I. to Dead Ends". January 17, 2006. {{cite news}}: Unknown parameter |org= ignored (help)
^ Bush Lets U.S. Spy on Callers Without Courts; James Risen & Eric Lichtblau, New York Times; December 16 2005.
^ James B. Comey reported unwilling to give his certification to crucial aspects of the classified program; Eric Lichtblau and James Risen, New York Times; January 1 2006.
^ "Executive decision to spy"; Newsday; December 18 2005.
^ Bipartisan letter to the Judiciary and Intelligence Committees; Sen. Dianne Feinstein (Do-CA); December 20 2005.
^ Transcript of Press Briefing by Scottse McClellan, White House Office of the Press Secretary, The White house; December 16 2005; Video of Press Briefing by Scott McClellan, C-SPAN.
^ President Bush's Radio Address; George W. Bush, The White house; December 17 2005.
^ "US eavesdropping program 'saves lives': Bush"; Sydney Morning Herald; December 18 2005.
^ Information Sharing, Patriot Act Vital to Homeland Security, Remarks by the President in a Conversation on the USA Patriot Act; Kleinshans Music Hall (Buffalo, New York); George W. Bush, The White house; April 20 2004.
^ Press Briefing by Attorney General Alberto Gonzales and General Michael Hayden; The White house; December 19 2005.
^ Power Play; Suzanne Spaulding, The Washington Post; December 25 2005
^ President had legal authority to OK taps; John Schmidt, The Chicago Tribune; December 21 2005
^ 50 U.S.C. §1802(a)(1) Conditions under which the President, through the Attorney General, may authorize electronic surveillance without a court order.
^ Jimmy Carter's E.O. 12139 and Bill Clinton's E.O. 12949
^ "The NSA Surveillance Program and the Article II Argument."; Orin Kerr, The Volokh Conspiracy Blog; December 29 2005.
^ ON NSA SPYING: A LETTER TO CONGRESS By Beth Nolan, Curtis Bradley, David Cole, Geoffrey Stone, Harold Hongju Koh, Kathleen M. Sullivan, Laurence H. Tribe, Martin Lederman, Philip B. Heymann, Richard Epstein, Ronald Dworkin, Walter Dellinger, William S. Sessions, William Van Alstyne.
^ Warrantless Wiretapping Why It Seriously Imperils the Separation of Powers, And Continues the Executive's Sapping of Power From Congress and the Courts; Edward Lazarus, FindLaw; Thursday, Dec. 22, 2005.
^ Bush: I have power to order spying in U.S. Some legal experts say president broke the law; Ron Hutcheson,Knight Ridder; December 20, 2005
^ Bush's impeachable offense Yes, the president committed a federal crime by wiretapping Americans, say constitutional scholars, former intelligence officers and politicians. What's missing is the political will to impeach him; Michelle Goldberg, Salon.com.
^ It's Not Just Alito's Quandary Reconciling Executive and Legislative Power; Douglas W. Kmiec, FindLaw; Monday, Jan. 16, 2006.
^ Transcript of Bush Press Conference; White House Office of the Press Secretary; December 19 2005.
^ Legal Analysis of the NSA Domestic Surveillance Program; Orin S. Kerr, The Volokh Conspiracy blog; December 19 2005.
^ The NSA Surveillance Program and the Article II Argument; Orin S. Kerr, The Volokh Conspiracy Blog; December 29 2005.
^ Daschle: Congress Denied Bush War Powers in U.S.; Barton Gellman, The Washington Post, December 23 2005.
^ President had legal authority to OK taps; John Schmidt, The Chicago Tribune; December 21 2005.
^ The President's Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them; John Yoo, United States Department of Justice; (September 25 2001).
^ ACLU complaint for declaratory and injunctive relief (PDF) lawsuit to challenge the constitutionality of a secret government program to intercept vast quantities of the international telephone and Internet communications of innocent Americans without court approval.
^ ACLU Statement by Larry Diamond, NSA Lawsuit Client
^ Pushing the Limits Of Wartime Powers; Barton Gellman & Dafna Linzer, The Washington Post; December 18 2005.
^ Pelosi Statement on President Bush's Authorization of National Security Agency's Activities; Jennifer Crider of the Office of House Democratic Leader Nancy Pelosi; December 17 2005.
^ Files say Agency Initiated Growth of Spying Effort; Eric Lichtblau and Scott Shane, New York Times; January 4 2006
^ "Roberts 'puzzled' by Rockefeller's concerns"; Charles Hurt, The Washington Times; December 21 2005.
^ Power Play; Suzanne Spaulding, The Washington Post; December 25 2005.
^ "This is not a backdoor approach. We believe Congress has authorized this kind of surveillance. We have had discussions with Congress in the past -- certain members of Congress -- as to whether or not FISA could be amended to allow us to adequately deal with this kind of threat, and we were advised that that would be difficult, if not impossible." Gonzales; Press Briefing by Attorney General Alberto Gonzales and General Michael Hayden, Principal Deputy Director for National Intelligence; December 19 2005.
^ King George went too far: No more spying; unsigned editorial, Des Moines Register; December 20 2005.
^ Spying on citizens is no way to thwart terrorism; unsigned editorial, The Tennesean; December 20 2005,
^ Bush Should Put an End to Domestic Spying Program, unsigned editorial, Detroit News; December 20 2005.
^ The Bush Eavesdropping: Restore the Principle; unsigned editorial, The Pittsburgh Tribune-Review; December 20 2005.
^ Spying Revelations Generate Some Hard Questions; unsigned editorial, The Idaho Statesman,; December 20 2005.
^ Thank You for Wiretapping; unsigned editorial, The Wall Street Journal; December 20 2005.
^ Unwarranted Executive Power; Thomas G. Donlan, Barrons; December 26 2005.

External links

Department of Justice Letter to the Senate Select Intelligence Committee 22 December (PDF)
The Foreign Intelligence Surveillance Act: An Overview of the Statutory Framework and Recent Judicial Decisions - Congressional Research Service - April 2005
Not Authorized By Law: Domestic Spying and Congressional Consent, JURIST
Washington Monthly blog post on an opposed conservative reaction
Government's Brief in the Padilla case (PDF); FindLaw
Surveillance law resources, JURIST
T.J. Rodgers. U.S. gets closer to Orwell's Big Brother, San Jose Mercury News, December 29 2005.