2001-2007 NSA warrantless surveillance

Part of Terrorist Surveillance Program NSA wiretapping NSA warrantless surveillance the related controversy about data-mining of domestic call records MAINWAY the programs leaked in 2013 Global surveillance disclosures (2013–present) November 2025 August 2026 August 2013 right|thumb|180px|Seal of the National Security Agency 1 NSA warrantless surveillance — also commonly referred to as "warrantless-wiretapping" or "-wiretaps" — was the surveillance of persons within the United States, including U.S. citizens, during the collection of notionally foreign intelligence by the National Security Agency (NSA) as part of the Terrorist Surveillance Program.https://www.nytimes.com/2006/01/23/politics/23cnd-wiretap.html The New York Times White House Begins New Effort to Defend Surveillance Program David E. Sanger John O'Neil January 23, 2006 In late 2001, the NSA was authorized to monitor, without obtaining a FISA warrant, phone calls, Internet activities, text messages and other forms of communication involving any party believed by the NSA to be outside the U.S., even if the other end of the communication lay within the U.S. Critics claimed that the program was an effort to silence critics of the Bush administration and its handling of several controversial issues. Under public pressure, the Administration allegedly ended the program in January 2007 and resumed seeking warrants from the Foreign Intelligence Surveillance Court (FISC).http://graphics8.nytimes.com/packages/pdf/politics/20060117gonzales_Letter.pdf Gonzales_Letter The New York Times January 18, 2007 https://web.archive.org/web/20070120183203/http://graphics8.nytimes.com/packages/pdf/politics/20060117gonzales_Letter.pdf January 20, 2007 live In 2008, Congress passed the FISA Amendments Act of 2008, which relaxed some of the original FISC requirements. During the Obama administration, the U.S. Department of Justice (DOJ) continued to defend the warrantless surveillance program in court, arguing that a ruling on the merits would reveal state secrets.https://www.nytimes.com/2010/04/01/us/01nsa.html Charlie Savage James Risen March 31, 2010 The New York Times Federal Judge Finds N.S.A. Wiretaps Were Illegal February 22, 2017 https://web.archive.org/web/20170319114537/http://www.nytimes.com/2010/04/01/us/01nsa.html March 19, 2017 live In April 2009, officials at the DOJ acknowledged that the NSA had engaged in "overcollection" of domestic communications in excess of the FISC's authority, but claimed that the acts were unintentional and proceeded to continue overcollection of communications. 3 History A week after the 9/11 attacks, Congress passed the Authorization for Use of Military Force Against Terrorists (AUMF), which inaugurated the "war on terror". It later featured heavily in arguments over the NSA program. Soon after the 9/11 attacks, President Bush established the President's Surveillance Program. As part of the program, the Terrorist Surveillance Program was established pursuant to an executive order that authorized the NSA to surveil certain telephone calls without obtaining a warrant (see 50 1802 50 1809). The complete details of the executive order are not public, but according to administration statements,Prepared Statement of Hon. Alberto R. Gonzales, Attorney General of the United States February 6, 2006 US Department of Justice http://www.usdoj.gov/archive/ag/speeches/2006/ag_speech_060206.html the authorization covers communication originating overseas from or to a person suspected of having links to terrorist organizations or their affiliates even when the other party to the call is within the US. In October 2001, Congress passed the Patriot Act, which granted the administration broad powers to fight terrorism.Banks Christopher P. 2010-01-01 Security and Freedom After September 11 http://dx.doi.org/10.2753/pin1099-9922130101 Public Integrity 13 1 5–24 10.2753/pin1099-9922130101 141765924 1099-9922 subscription The Bush administration used these powers to bypass the FISC and directed the NSA to spy directly on al-Qaeda via a new NSA electronic surveillance program. Reports at the time indicate that "apparently accidental ... technical glitches at the National Security Agency" resulted in the interception of communications that were between two U.S. parties.https://www.nytimes.com/2005/12/21/politics/21nsa.html Spying Program Snared U.S. Calls The New York Times James Risen Eric Lichtblau amp December 21, 2005 May 28, 2006 This act was challenged by multiple groups, including Congress, as unconstitutional. The precise scope of the program remains secret, but the NSA was provided total, unsupervised access to all fiber-optic communications between the nation's largest telecommunication companies' major interconnected locations, encompassing phone conversations, email, Internet activity, text messages and corporate private network traffic.AT&T's Role in Dragnet Surveillance of Millions of Its Customers EFF https://www.eff.org/files/filenode/att/presskit/ATT_onepager.pdf FISA makes it illegal to intentionally engage in electronic surveillance as an official act or to disclose or use information obtained by such surveillance under as an official act, knowing that it was not authorized by statute; this is punishable with a fine of up to $10,000, up to five years in prison or both.https://www.law.cornell.edu/uscode/text/50/1809 US CODE: Title 50, section 1809. Criminal sanctions The Wiretap Act prohibits any person from illegally intercepting, disclosing, using or divulging phone calls or electronic communications; this is punishable with a fine, up to five years in prison, or both.https://www.law.cornell.edu/uscode/text/18/2511 US CODE: Title 18, section 2511. Interception and disclosure of wire, oral, or electronic communications prohibited After an article about the program, (which had been code-named Stellar Wind), was published in The New York Times on December 16, 2005, Attorney General Alberto Gonzales confirmed its existence.Bush Lets U.S. Spy on Callers Without Courts https://www.nytimes.com/2005/12/16/politics/16program.html?pagewanted=all December 29, 2012 The New York Times December 16, 2005 James Risen Eric Lichtblau amp Bush Lets U.S. Spy on Callers Without Courts NYT's Risen & Lichtblau's December 16, 2005 Bush Lets U.S. Spy on Callers Without Courts http://www.commondreams.org/headlines05/1216-01.htm February 18, 2006 dead https://web.archive.org/web/20060206162614/http://www.commondreams.org/headlines05/1216-01.htm February 6, 2006 mdy via commondreams.orghttps://www.nytimes.com/2006/08/13/opinion/13pubed.html The New York Times Eavesdropping and the Election: An Answer on the Question of Timing Byron Calame August 13, 2006 May 20, 2010 The Times had published the story after learning that the Bush administration was considering seeking a court injunction to block publication.http://www.slate.com/articles/news_and_politics/politics/2008/03/the_education_of_a_911_reporter.html The Education of a 9/11 Reporter: The inside drama behind the Times' warrantless wiretapping story. Lichtblau Eric Slate March 26, 2008 March 31, 2008 https://web.archive.org/web/20111205064425/http://www.slate.com/articles/news_and_politics/politics/2008/03/the_education_of_a_911_reporter.html December 5, 2011 live Bill Keller, the newspaper's executive editor, had withheld the story from publication since before the 2004 Presidential Election. The published story was essentially the same that reporters James Risen and Eric Lichtblau had submitted in 2004. The delay drew criticism, claiming that an earlier publication could have changed the election's outcome.https://www.salon.com/2006/08/14/times_24/ What the Times knew, and when it knew it Grieve Tim Salon August 14, 2006 June 22, 2008 In a December 2008 interview, former Justice Department employee Thomas Tamm claimed to be the initial whistle-blower.http://www.newsweek.com/whistleblower-who-exposed-warrantless-wiretaps-82805 The Fed Who Blew the Whistle Isikoff Michael Newsweek December 13, 2008 December 13, 2008 The FBI began investigating leaks about the program in 2005, assigning 25 agents and five prosecutors. Attorney and author Glenn Greenwald argued:http://glenngreenwald.blogspot.com/2006/02/nsa-legal-arguments.html NSA legal arguments Greenwald Glenn February 19, 2006 Glenngreenwald.blogspot.com February 23, 2013 https://web.archive.org/web/20130307175517/http://glenngreenwald.blogspot.com/2006/02/nsa-legal-arguments.html March 7, 2013 live 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. Gonzales said the program authorized warrantless intercepts where the government had "a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda" and that one party to the conversation was "outside of the United States".The White House December 19, 2005 Press Briefing by Attorney General Alberto Gonzales and General Michael Hayden, Principal Deputy Director for National Intelligence https://georgewbush-whitehouse.archives.gov/news/releases/2005/12/print/20051219-1.html September 5, 2017 https://web.archive.org/web/20180128032304/https://georgewbush-whitehouse.archives.gov/news/releases/2005/12/print/20051219-1.html January 28, 2018 live The revelation raised immediate concern among elected officials, civil rights activists, legal scholars and the public at large about the legality and constitutionality of the program and its potential for abuse. The controversy expanded to include the press's role in exposing a classified program, Congress's role and responsibility of executive oversight and the scope and extent of presidential powers.http://www.cruxlux.com/debate/50/the-warrantless-wiretapping-of-americans-by-the-bush-adminis Debate on warrantless wiretapping legality January 23, 2007 January 29, 2008 https://web.archive.org/web/20080129235544/http://www.cruxlux.com/debate/50/the-warrantless-wiretapping-of-americans-by-the-bush-adminis CRS released a report on the NSA program, "Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information", on January 5, 2006 that concluded: While courts have generally accepted that the President has the power to conduct domestic electronic surveillance within the United States inside the constraints of the Fourth Amendment, no court has held squarely that the Constitution disables the Congress from endeavoring to set limits on that power. To the contrary, the Supreme Court has stated that Congress does indeed have power to regulate domestic surveillance, and has not ruled on the extent to which Congress can act with respect to electronic surveillance to collect foreign intelligence information.Dan Eggen A05 Congressional Agency Questions Legality of Wiretaps January 19, 2006 The Washington Post https://www.washingtonpost.com/wp-dyn/content/article/2006/01/18/AR2006011802158.html September 5, 2017 https://web.archive.org/web/20180222085833/http://www.washingtonpost.com/wp-dyn/content/article/2006/01/18/AR2006011802158.html February 22, 2018 live Elizabeth Holtzman The Impeachment of George W. Bush January 11, 2006 The Nation http://www.thenation.com/doc/20060130/holtzman January 12, 2006 https://web.archive.org/web/20130325182639/http://www.thenation.com/doc/20060130/holtzman March 25, 2013 live On January 18, 2006 the Congressional Research Service released another report, "Statutory Procedures Under Which Congress Is To Be Informed of U.S. Intelligence Activities, Including Covert Actions".http://news.findlaw.com/hdocs/docs/nsa/crs11806rpt.pdf FindLaw Statutory Procedures Under Which Congress Is To Be Informed of U.S. Intelligence Activities, Including Covert Actions January 1, 2006 https://web.archive.org/web/20060130190732/http://news.findlaw.com/hdocs/docs/nsa/crs11806rpt.pdf January 30, 2006 livehttps://sgp.fas.org/crs/intel/m011806.pdf Statutory Procedures Under Which Congress Is To Be Informed of U.S. Intelligence Activities, Including Covert Actions Cumming Alfred January 18, 2006 Federation of American Scientists April 4, 2015 https://web.archive.org/web/20150718205953/http://www.fas.org/sgp/crs/intel/m011806.pdf July 18, 2015 live That report found that "[b]ased upon publicly reported descriptions of the program, the NSA surveillance program would appear to fall more closely under the definition of an intelligence collection program, rather than qualify as a covert action program as defined by statute", and, therefore, found no specific statutory basis for limiting briefings on the terrorist surveillance program."If the NSA surveillance program were to consider 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." – excerpted from the Congressional Research Service publication, "Statutory Procedures Under Which Congress Is To Be Informed of U.S. Intelligence Activities, Including Covert Actions" However, the report goes on to note in its concluding paragraph that limited disclosure is also permitted under the statute "in order to protect intelligence sources and methods"."The executive branch may assert that the mere discussion of the NSA program generally could expose certain intelligence sources and methods to disclosure, thus making it necessary to limit the number of those knowledgeable of the program in order to reduce the risk of such disclosure occurring." – excerpted from the Congressional Research Service publication, "Statutory Procedures Under Which Congress Is To Be Informed of U.S. Intelligence Activities, Including Covert Actions" Legal action section November 2025 While not directly ruling on the legality of domestic surveillance, the Supreme Court can be seen as having come down on both sides of the Constitution/statute question, in somewhat analogous circumstances.November 2025 In Hamdi v. Rumsfeld (2004) the government claimed that AUMF authorized the detention of U.S. citizens designated as an enemy combatant despite its lack of specific language to that effect and notwithstanding the provisions of f 18 4001(a) that forbids the government to detain an American citizen except by act of Congress. In that case, the Court ruled: [B]ecause we conclude that the Government's second assertion ["that § 4001(a) is satisfied, because Hamdi is being detained "pursuant to an Act of Congress" [the AUMF]"] is correct, we do not address the first. In other words, for the reasons that follow, we conclude that the AUMF is explicit congressional authorization for the detention of individuals ... and that the AUMF satisfied § 4001(a)'s requirement that a detention be "pursuant to an Act of Congress". However, in Hamdan v. Rumsfeld the Court rejected the government's argument that AUMF implicitly authorized the President to establish military commissions in violation of the Uniform Code of Military Justice. The Court held: Neither of these congressional Acts, [AUMF or ATC] however, expands the President's authority to convene military commissions. First, while we assume that the AUMF activated the President's war powers, see Hamdi v. Rumsfeld, f 542 507 2004) (plurality opinion), and that those powers include the authority to convene military commissions in appropriate circumstances, see id., at 518; Quirin, 317 U. S., at 28–29; see also Yamashita, 327 U. S., at 11, there is nothing in the text or legislative history of the AUMF even hinting that Congress intended to expand or alter the authorization set forth in Article 21 of the UCMJ. Cf. Yerger, 8 Wall., at 105 ("Repeals by implication are not favored") In footnote 23, the Court rejected the notion that Congress is impotent to regulate the exercise of executive war powers: Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 637 (1952) (Jackson, J., concurring). The Government does not argue otherwise. Dozens of civil suits against the government and telecommunications companies over the program were consolidated before the chief judge of the Northern District of California, Vaughn R. Walker. One of the cases was a class-action lawsuit against AT&T, focusing on allegations that the company had provided the NSA with its customers' phone and Internet communications for a data-mining operation. Plaintiffs in a second case were the al-Haramain Foundation and two of its lawyers.Adam Liptak U.S. Defends Surveillance to 3 Skeptical Judges August 16, 2007 The New York Times https://www.nytimes.com/2007/08/16/washington/16nsa.html February 22, 2017 https://web.archive.org/web/20180116161734/http://www.nytimes.com/2007/08/16/washington/16nsa.html January 16, 2018 liveBob Egelko Classified evidence debated: Court likely to allow suit against AT&T, reject wiretap case August 16, 2007 San Francisco Chronicle http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2007/08/16/BAPCRJEFN.DTL&type=printable https://archive.today/20121203015055/http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2007/08/16/BAPCRJEFN.DTL&type=printable dead December 3, 2012 On August 17, 2006, Judge Anna Diggs Taylor of the United States District Court for the Eastern District of Michigan ruled in ACLU v. NSA that the Terrorist Surveillance Program was unconstitutional under the Fourth and First Amendments and enjoined the NSA from using the program to conduct electronic surveillance "in contravention of [FISA or Title III]". She wrote:Ruling https://web.archive.org/web/20060820121827/http://www.mied.uscourts.gov/eGov/taylorpdf/06%2010204.pdf August 20, 2006 The quote is from page 33. The President of the United States, a creature of the same Constitution which gave us these Amendments, has indisputably violated the Fourth in failing to procure judicial orders as required by FISA, and accordingly has violated the First Amendment Rights of these Plaintiffs as well. In August 2007, a three-judge panel of the United States Court of Appeals for the Ninth Circuit heard arguments in two lawsuits challenging the program. On November 16, 2007, the three judges—M. Margaret McKeown, Michael Daly Hawkins and Harry Pregerson—issued a 27-page ruling that the al-Haramain Foundation could not introduce a key piece of evidence because it fell under the government's claim of state secrets, although the judges said that "In light of extensive government disclosures, the government is hard-pressed to sustain its claim that the very subject matter of the litigation is a state secret."For Publication United States Court of Appeals for the Ninth Circuit November 16, 2007 United States Court of Appeals for the Ninth Circuit http://www.ca9.uscourts.gov/datastore/opinions/2007/11/15/0636083.pdf December 21, 2009 https://web.archive.org/web/20090514133512/http://www.ca9.uscourts.gov/datastore/opinions/2007/11/15/0636083.pdf May 14, 2009 liveEric Lichtblau Court Bars Secret Papers in Eavesdropping Case November 17, 2007 The New York Times https://www.nytimes.com/2007/11/17/washington/17nsa.html?pagewanted=print February 22, 2017 https://web.archive.org/web/20180315070543/http://www.nytimes.com/2007/11/17/washington/17nsa.html?pagewanted=print March 15, 2018 live In a question-and-answer session published on August 22, Director of National Intelligence Mike McConnell first confirmed that the private sector had helped the program. McConnell argued that the companies deserved immunity for their help: "Now if you play out the suits at the value they're claimed, it would bankrupt these companies."http://www.elpasotimes.com/ci_6685679 https://archive.today/20120731104224/http://www.elpasotimes.com/ci_6685679 dead July 31, 2012 Chris Roberts Transcript: Debate on the foreign intelligence surveillance act August 22, 2007 El Paso Times Plaintiffs in the AT&T suit subsequently moved to have McConnell's acknowledgement admitted as evidence.Ellen Nakashima AT&T Plaintiffs Cite McConnell Remarks Admission of Telecom Firms' Involvement in Warrantless Wiretaps Sought as Evidence September 1, 2007 The Washington Post https://www.washingtonpost.com/wp-dyn/content/article/2007/08/31/AR2007083101873_pf.html March 2018 In a related legal development, on October 13, 2007, Joseph Nacchio, the former CEO of Qwest Communications, appealed an April 2007 insider trading conviction by alleging that the government withdrew opportunities for contracts worth hundreds of millions of dollars after Qwest refused to participate in an unidentified NSA program that the company thought might be illegal. He claimed that the NSA approached Qwest about participating in a warrantless surveillance program more than six months before 9/11. Nacchio used the allegation to show why his stock sale was not improper.Ellen Nakashima Dan Eggen amp Former CEO Says U.S. Punished Phone Firm Qwest Feared NSA Plan Was Illegal, Filing Says October 13, 2007 The Washington Post https://www.washingtonpost.com/wp-dyn/content/article/2007/10/12/AR2007101202485_pf.html According to a lawsuit filed against other telecommunications companies for violating customer privacy, AT&T began preparing facilities for the NSA to monitor "phone call information and Internet traffic" seven months before 9/11.Scott Shane Former Phone Chief Says Spy Agency Sought Surveillance Help Before 9/11 October 14, 2007 https://www.nytimes.com/2007/10/14/business/14qwest.html?ref=todayspaper The New York Times October 14, 2007 On January 20, 2006, cosponsors Senator Patrick Leahy and Ted Kennedy introduced Senate Resolution 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".http://leahy.senate.gov/press/200601/UpdatedAUMF%20Resolution%201-19.pdf Proposed Resolution Authorization for Use of Military Force (Public Law 107-40) does not authorize warrantless domestic surveillance of United States citizens https://web.archive.org/web/20060126214740/http://leahy.senate.gov/press/200601/UpdatedAUMF+Resolution+1-19.pdf January 26, 2006 January 20, 2006Leahy on Friday Introduces Resolution Underscoring That Congress Did Not Authorize Illegal Spying on Americans January 20, 2006 U.S. Senator Patrick Leahy http://leahy.senate.gov/press/200601/012006.html dead https://web.archive.org/web/20060125203726/http://leahy.senate.gov/press/200601/012006.html January 25, 2006 mdy-all This non-binding resolution died without debate.http://thomas.loc.gov/cgi-bin/bdquery/z?d109:s.res.00350: https://web.archive.org/web/20160114025331/http://thomas.loc.gov/cgi-bin/bdquery/z?d109:s.res.00350: dead January 14, 2016 S.RES.350 – THOMAS (Library of Congress) Thomas.loc.gov February 23, 2013 On September 28, 2006, the U.S. House of Representatives passed the Electronic Surveillance Modernization Act (H.R. 5825).House Passes Wilson FISA Bill January 2018 medicmedic, Press Release, September 29, 2006. It died in the Senate. Three competing, mutually exclusive, bills—the Terrorist Surveillance Act of 2006 (S.2455), the National Security Surveillance Act of 2006 (S.2455) and the Foreign Intelligence Surveillance Improvement and Enhancement Act of 2006 (S.3001) – were referred for debate to the full Senate,Conflicting Bills on Warrantless Surveillance Advance in Senate https://web.archive.org/web/20130414170236/http://www.fas.org/blog/secrecy/2006/09/conflicting_bills_on_warrantle.html April 14, 2013 , Secrecy News, September 14, 2006 but did not pass. Each of these bills would have broadened the statutory authorization for electronic surveillance, while subjecting it to some restrictions. Termination On January 17, 2007, Gonzales informed Senate leaders that the program would not be reauthorized. "Any electronic surveillance that was occurring as part of the Terrorist Surveillance Program will now be conducted subject to the approval of the Foreign Intelligence Surveillance Court," according to his letter.https://irp.fas.org/congress/2007_cr/fisa011707.html Congressional Record: January 17, 2007, Congressional Record: January 17, 2007 Federation of American Scientists February 23, 2013 https://web.archive.org/web/20130414170240/http://www.fas.org/irp/congress/2007_cr/fisa011707.html April 14, 2013 live Further legal action The American Civil Liberties Union (ACLU) sued NSA over the program. Detroit District Court judge Anna Diggs Taylor ruled on August 17, 2006 that the program was illegal under FISA as well as unconstitutional under the First and Fourth amendments of the Constitution.http://fl1.findlaw.com/news.findlaw.com/nytimes/docs/nsa/aclunsa81706opn.pdf Findlaw: PDF archive of judicial ruling February 23, 2013 https://web.archive.org/web/20130112211357/http://fl1.findlaw.com/news.findlaw.com/nytimes/docs/nsa/aclunsa81706opn.pdf January 12, 2013 livehttps://www.wired.com/news/politics/0,71610-0.html?tw=wn_index_3 Wired News: Judge Halts NSA Snooping Ryan Singel August 17, 2006 Wired February 23, 2013https://www.nytimes.com/2006/08/18/washington/18nsa.html Judge Finds Wiretap Actions Violate the Law Liptak Adam Lichtblau Eric The New York Times August 18, 2006 Judicial Watch, a watchdog group, discovered that at the time of the ruling Taylor "serves as a secretary and trustee for a foundation that donated funds to the ACLU of Michigan, a plaintiff in the case".http://www.judicialwatch.org/printer_5862.shtml US District Judge Who Presided Over Government Wiretapping Case May Have Had Conflict of Interest August 21, 2006 Judicial Watch https://web.archive.org/web/20080327032011/http://www.judicialwatch.org/printer_5862.shtml March 27, 2008 dead February 20, 2008 mdy-all ACLU v. NSA was dismissed on January 31, 2007 by the United States Court of Appeals for the Sixth Circuit.https://www.washingtonpost.com/wp-dyn/content/article/2007/07/06/AR2007070600779.html Lawsuit Against Wiretaps Rejected; Case's Plaintiffs Have No Standing, Appeals Court Rules The Washington Post July 7, 2007 February 20, 2008 Amy Goldstein The court did not rule on the spying program's legality. Instead, it declared that the plaintiffs did not have standing to sue because they could not demonstrate that they had been direct targets of the program.http://www.ca6.uscourts.gov/opinions.pdf/07a0253p-06.pdf \\ca6cin4\opinions\OPINS.TXT\07a0253p-06.txt February 23, 2013 https://web.archive.org/web/20130115071422/http://www.ca6.uscourts.gov/opinions.pdf/07a0253p-06.pdf January 15, 2013 live The Supreme Court let the ruling stand. On August 17, 2007, FISC said it would consider a request by the ACLU that asked the court to make public its recent, classified rulings on the scope of the government's wiretapping powers. FISC presiding judge Colleen Kollar-Kotelly signed an order calling the ACLU's motion "an unprecedented request that warrants further briefing".https://www.aclu.org/pdfs/safefree/fisc_order_08162007.pdf IN RE MOTION FOR RELEASE OF COURT RECORDS Docket Number MISC 07-01 August 17, 2007 United States Foreign Intelligence Surveillance Court December 4, 2016 https://web.archive.org/web/20121007155006/http://www.aclu.org/pdfs/safefree/fisc_order_08162007.pdf October 7, 2012 live The FISC ordered the government to respond on the issue by August 31.https://www.nytimes.com/2007/08/18/us/nationalspecial3/18fisa.html Court Weighs Making Public Rulings on U.S. Wiretapping Lichtblau Eric August 18, 2007 The New York Times February 22, 2017 https://web.archive.org/web/20180116153446/http://www.nytimes.com/2007/08/18/us/nationalspecial3/18fisa.html January 16, 2018 livehttps://www.washingtonpost.com/wp-dyn/content/article/2007/08/17/AR2007081701923_pf.html Secret Court Asks For White House View on Inquiry Eggen Dan August 18, 2007 The Washington Post ACLU Seeking Rulings Issued on Warrantless Wiretapping September 5, 2017 https://web.archive.org/web/20180315200250/http://www.washingtonpost.com/wp-dyn/content/article/2007/08/17/AR2007081701923_pf.html March 15, 2018 live On the August 31 deadline, the National Security Division of the Justice Department filed a response in opposition to the ACLU's motion.https://www.aclu.org/pdfs/safefree/dojresponse_fisc_request.pdf OPPOSITION TO THE AMERICAN CIVIL LIBERTIES UNION'S MOTION FOR RELEASE OF COURT RECORDS Docket Number: MISC. 07-01 August 31, 2007 United States Department of Justice National Security Division December 4, 2016 https://web.archive.org/web/20121007155011/http://www.aclu.org/pdfs/safefree/dojresponse_fisc_request.pdf October 7, 2012 live On February 19, 2008, the U.S. Supreme Court, without comment, turned down an ACLU appeal, letting stand the earlier decision dismissing the case.http://ap.google.com/article/ALeqM5jyusZ2V1ACKGV2iJuGVmuPUERi_QD8UTICG00 Court Rejects ACLU Challenge to Wiretaps Associated Press February 19, 2008 February 20, 2008 dead https://web.archive.org/web/20080304143202/http://ap.google.com/article/ALeqM5jyusZ2V1ACKGV2iJuGVmuPUERi_QD8UTICG00 March 4, 2008 mdy-all On September 18, 2008, the Electronic Frontier Foundation (EFF) sued the NSA, President Bush, Vice President Cheney, Cheney's chief of staff David Addington, Gonzales and other government agencies and individuals who ordered or participated in the program. They sued on behalf of AT&T customers. An earlier, ongoing suit (Hepting v. AT&T) by the EFF bogged down over the recent FISA changes.Jewel v National Security Agency https://www.eff.org/files/filenode/jewel/jewel.complaint.pdf September 18, 2018 March 1, 2018 https://web.archive.org/web/20180528044116/https://www.eff.org/files/filenode/jewel/jewel.complaint.pdf May 28, 2018 livehttps://www.theregister.co.uk/2008/09/18/eff_sues_bush/ EFF sues Dubya over warrantless surveillance theregister.co.uk August 10, 2017 https://web.archive.org/web/20170810141100/https://www.theregister.co.uk/2008/09/18/eff_sues_bush/ August 10, 2017 live On January 23, 2009, the Obama administration adopted the same position as its predecessor when it urged Judge Walker to set aside a ruling in Al-Haramain Islamic Foundation et al. v. Obama, et al.Kravets David http://blog.wired.com/27bstroke6/2009/01/obama-sides-wit.html Obama Sides With Bush in Spy Case Wired February 23, 2013 January 22, 2009 https://web.archive.org/web/20090425084300/http://blog.wired.com/27bstroke6/2009/01/obama-sides-wit.html April 25, 2009 live The Obama administration sided with the Bush administration in its legal defense of July 2008 legislation that immunized the nation's telecommunications companies from lawsuits accusing them of complicity in the program, according to Attorney General Eric Holder.Kravets David http://blog.wired.com/27bstroke6/2009/01/obama-to-fight.html Obama to Defend Telco Spy Immunity Wired 2001-09-11 2014-03-18 https://web.archive.org/web/20090302060805/http://blog.wired.com//27bstroke6//2009//01//obama-to-fight.html March 2, 2009 live On March 31, 2010, Judge Walker ruled that the program was illegal when it intercepted phone calls of Al Haramain. Declaring that the plaintiffs had been "subjected to unlawful surveillance", the judge said the government was liable for damages.https://www.nytimes.com/2010/04/01/us/01nsa.html The New York Times Charlie Savage James Risen Federal Judge Finds N.S.A. Wiretaps Were Illegal March 31, 2010 February 22, 2017 https://web.archive.org/web/20170319114537/http://www.nytimes.com/2010/04/01/us/01nsa.html March 19, 2017 live In 2012, the Ninth Circuit vacated the judgment against the United States and affirmed the district court's dismissal of the claim.Civil Actions Against the United States, Its Agencies, Officers and Employees 2013 Westlaw, Thomson Reuters § 1:5 Proposed FISA amendments Several commentators raised the issue of whether FISA needed to be amended to address foreign intelligence needs, technology developments and advanced technical intelligence gathering. The intent was to provide programmatic approvals of surveillance of foreign terrorist communications, so that they could then legally be used as evidence for FISA warrants. Fixing Surveillance;http://www.heritage.org/Press/Commentary/ed012706a.cfm Fixing surveillance K.A. Taipale James Jay Carafano January 25, 2006 The Washington Times https://web.archive.org/web/20061202001709/http://www.heritage.org/Press/Commentary/ed012706a.cfm December 2, 2006 unfit mdy-all Why We Listen,https://www.nytimes.com/2006/01/30/opinion/30bobbitt.html Why We Listen Bobbitt Phillip January 30, 2006 The New York Times February 22, 2017 https://web.archive.org/web/20160114025331/http://www.nytimes.com/2006/01/30/opinion/30bobbitt.html January 14, 2016 live The Eavesdropping Debate We Should be Having;http://bcsia.ksg.harvard.edu/publication.cfm?program=CORE&ctype=article&item_id=1373 The Eavesdropping Debate We Should be Having Bryan Cunnigham Daniel B. Prieto February 5, 2006 The Denver Post https://web.archive.org/web/20060901135852/http://bcsia.ksg.harvard.edu/publication.cfm?program=CORE&ctype=article&item_id=1373 September 1, 2006 dead mdy-all A New Surveillance Act;https://www.wsj.com/articles/SB113996743590074183 A New Surveillance Act Posner Richard A. February 15, 2006 The Wall Street Journal August 9, 2017 https://web.archive.org/web/20170809132108/https://www.wsj.com/articles/SB113996743590074183 August 9, 2017 live A historical solution to the Bush spying issue,A historical solution to the Bush spying issue; John Schmidt, The Chicago Tribune; February 12, 2006. Whispering Wires and Warrantless WiretapsTaipale K. A. June 2006 Whispering Wires and Warrantless Wiretaps: Data Mining and Foreign Intelligence Surveillance NYU Review of Law & Security 7 889120 address FISA's inadequacies in the post-9/11 context. The Bush administration contended that amendment was unnecessary because they claimed 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."Statement of The Honorable Patrick Leahy February 6, 2006 U.S. Senate Committee on the Judiciary http://judiciary.senate.gov/member_statement.cfm?id=1727&wit_id=2629 February 8, 2006 https://web.archive.org/web/20060210131544/http://judiciary.senate.gov/member_statement.cfm?id=1727&wit_id=2629 February 10, 2006 dead President Bush claimed that the law did not apply because the Constitution gave him "inherent authority" to act.https://www.aclu.org/privacy/spying/23279res20051229.html NSA Spying on Americans Is Illegal | American Civil Liberties Union December 29, 2005 Aclu.org February 23, 2013 https://web.archive.org/web/20091019084422/http://www.aclu.org/privacy/spying/23279res20051229.html October 19, 2009 livehttps://georgewbush-whitehouse.archives.gov/news/releases/2006/01/print/20060122.html Democrats Continue to Attack Terrorist Surveillance Program November 29, 2012 Georgewbush-whitehouse.archives.gov February 23, 2013 https://web.archive.org/web/20130610101949/http://georgewbush-whitehouse.archives.gov/news/releases/2006/01/print/20060122.html June 10, 2013 live Some politicians and commentators used "difficult, if not impossible" to argue that the administration believed Congress would have rejected an amendment. In his written "Responses to Questions from Senator Specter" in which Specter specifically asked why the administration had not sought to amend FISA,"Responses to Questions from Senator Specter". https://web.archive.org/web/20061102113024/http://childedlaw.org/publiclaw/pdf/gonzalesanswers.pdf November 2, 2006, February 2005. Gonzales wrote: [W]e were advised by members of Congress that it would be difficult, if not impossible to pass such legislation without revealing the nature of the program and the nature of certain intelligence capabilities. That disclosure would likely have harmed our national security, and that was an unacceptable risk we were not prepared to take. Competing legislative proposals to authorize the NSA program subject to Congressional or FISC oversight were the subject of Congressional hearings.https://irp.fas.org/congress/2006_hr/index.html#fisa4 FIS linking to 2006 FISA Congressional Hearings material Fas.org February 23, 2013 https://web.archive.org/web/20121102132018/http://www.fas.org/irp/congress/2006_hr/index.html#fisa4 November 2, 2012 live On March 16, 2006, Senators Mike DeWine, Lindsey Graham, Chuck Hagel and Olympia Snowe introduced the Terrorist Surveillance Act of 2006 (S.2455),https://irp.fas.org/congress/2006_cr/dewine031606.html Press Release of Senator DeWine Fas.org February 23, 2013 https://web.archive.org/web/20121126111142/http://www.fas.org/irp/congress/2006_cr/dewine031606.html November 26, 2012 livehttp://www.cdt.org/security/20060324dewinebill.pdf Dewine Bill as introduced February 23, 2013 https://web.archive.org/web/20130707053122/https://www.cdt.org/security/20060324dewinebill.pdf July 7, 2013 live that gave the President limited statutory authority to conduct electronic surveillance of suspected terrorists in the US, subject to enhanced Congressional oversight. That day Specter introduced the National Security Surveillance Act of 2006 (S.2453),http://information-retrieval.info/docs/SpecterFloorStmt.pdf Specter Floor Statement February 23, 2013 https://web.archive.org/web/20120904112507/http://information-retrieval.info/docs/SpecterFloorStmt.pdf September 4, 2012 livehttp://information-retrieval.info/docs/NSAfinal.pdf Specter Bill as introduced February 23, 2013 https://web.archive.org/web/20120722061605/http://information-retrieval.info/docs/NSAFinal.pdf July 22, 2012 live which would amend FISA to grant retroactive amnesty"Specter Offers Compromise on NSA Surveillance" https://web.archive.org/web/20170820041207/http://www.washingtonpost.com/wp-dyn/content/article/2006/06/08/AR2006060801992.html August 20, 2017 , The Washington Post, June 9, 2006 for warrantless surveillance conducted under presidential authority and provide FISC jurisdiction to review, authorize and oversee "electronic surveillance programs". On May 24, 2006, Specter and Feinstein introduced the Foreign Intelligence Surveillance Improvement and Enhancement Act of 2006 (S.3001) denoting FISA as the exclusive means to conduct foreign intelligence surveillance. On September 13, 2006, the Senate Judiciary Committee voted to approve all three, mutually exclusive bills, thus, leaving it to the full Senate to resolve. On July 18, 2006, U.S. Representative Heather Wilson introduced the Electronic Surveillance Modernization Act (H.R. 5825). Wilson's bill would give the President the authority to authorize electronic surveillance of international phone calls and e-mail linked specifically to identified terrorist groups immediately following or in anticipation of an armed or terrorist attack. Surveillance beyond the initially authorized period would require a FISA warrant or a presidential certification to Congress. On September 28, 2006 the House of Representatives passed Wilson's bill and it was referred to the Senate. Each of these bills would in some form broaden the statutory authorization for electronic surveillance, while still subjecting it to some restrictions. The Specter-Feinstein bill would extend the peacetime period for obtaining retroactive warrants to seven days and implement other changes to facilitate eavesdropping while maintaining FISC oversight. The DeWine bill, the Specter bill, and the Electronic Surveillance Modernization Act (already passed by the House) would all authorize some limited forms or periods of warrantless electronic surveillance subject to additional programmatic oversight by either the FISC (Specter bill) or Congress (DeWine and Wilson bills). FISC order On January 18, 2007, Gonzales told the Senate Judiciary Committee, Court orders issued last week by a Judge of the Foreign Intelligence Surveillance Court will enable the government to conduct electronic surveillance – very specifically, surveillance into or out of the United States where there is probable cause to believe that one of the communicants is a member or agent of al Qaeda or an associated terrorist organization – subject to the approval of the FISC. We believe that the court's orders will allow the necessary speed and agility the government needs to protect our Nation from the terrorist threat.http://www.usdoj.gov/archive/ag/testimony/2007/ag_speech_070118.html Prepared Opening Remarks of Attorney General Alberto R. Gonzales at the Justice Department Oversight Hearing of the Senate Judiciary Committee January 18, 2007 Department of Justice The ruling by the FISC was the result of a two-year effort between the White House and the court to find a way to obtain court approval that also would "allow the necessary speed and agility" to find terrorists, Gonzales said in a letter to the top committee members. The court order on January 10 will do that, Gonzales wrote. Senior Justice department officials would not say whether the orders provided individual warrants for each wiretap or whether the court had given blanket legal approval for the entire NSA program. The ACLU said in a statement that "without more information about what the secret FISC has authorized, there is no way to determine whether the NSA's current activities are lawful".https://www.chicagotribune.com/2007/01/18/bush-cedes-authority-on-spy-program/ Bush cedes authority on spy program Siobhan Gorman January 18, 2007 Chicago Tribune Law professor Chip Pitts argued that substantial legal questions remain regarding the core NSA program as well as the related data mining program (and the use of National Security Letters), despite the government's apparently bringing the NSA program within the purview of FISA.Chip Pitts March 15, 2007 The End of Illegal Domestic Spying? Don't Count on It http://www.washingtonspectator.com/articles/20070315surveillance_1.cfm dead Washington Spectator https://archive.today/20070927034053/http://www.washingtonspectator.com/articles/20070315surveillance_1.cfm September 27, 2007 mdy-all FISCR ruling In August 2008, the United States Foreign Intelligence Surveillance Court of Review (FISCR) affirmed the constitutionality of the Protect America Act of 2007 in a heavily redacted opinion released on January 15, 2009, only the second such public ruling since the enactment of the FISA Act.https://www.nytimes.com/2009/01/16/washington/16fisa.html?_r=1&hp Court Affirms Wiretapping Without Warrants Risen James January 16, 2009 The New York Times January 16, 2009 Lichtblau Eric https://web.archive.org/web/20130328012330/http://www.nytimes.com/2009/01/16/washington/16fisa.html?_r=1&hp March 28, 2013 livehttps://www.wsj.com/articles/SB123206893587088395?mod=googlenews_wsj Court Backs U.S. Wiretapping Perez Evan January 16, 2009 The Wall Street Journal, January 16, 2009 January 16, 2009https://www.washingtonpost.com/wp-dyn/content/article/2009/01/15/AR2009011502311.html?hpid=topnews Intelligence Court Releases Ruling in Favor of Warrantless Wiretapping January 16, 2009 The Washington Post, January 15, 2009 January 16, 2009https://www.google.com/hostednews/ap/article/ALeqM5g9Q7M6scz4PEW8SuEo_bpOer6ZAQD95NRD1G0 https://web.archive.org/web/20090117180553/http://www.google.com/hostednews/ap/article/ALeqM5g9Q7M6scz4PEW8SuEo_bpOer6ZAQD95NRD1G0 dead January 17, 2009 Court ruling endorses Bush surveillance policy Associated Press, January 15, 2009 January 16, 2009http://www.uscourts.gov/newsroom/2009/FISCR_Opinion.pdf?WT.cg_n=FISCROpinion_WhatsNew_homepage No. 08-01 IN RE: DIRECTIVE (Redacted) * PURSUANT TO SECTION 105B OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT (redacted tect) ON PETITION FOR REVIEW OF A DECISION OF THE UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT August 22, 2008 United States Foreign Intelligence Surveillance Court of Review https://web.archive.org/web/20090117194044/http://www.uscourts.gov/newsroom/2009/FISCR_Opinion.pdf?WT.cg_n=FISCROpinion_WhatsNew_homepage January 17, 2009 dead January 16, 2009 Relevant constitutional, statutory and administrative provisions section November 2025 U.S. Constitution Article I and II 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 Supreme Court has used the "necessary and proper" clause to affirm broad Congressional authority to legislate as it sees fit in the domestic arena,McCulloch v. Maryland, 17 U.S. 316 (1819) but has limited its application in foreign affairs. In the landmark US v. Curtiss-Wright (1936) decision, Justice George Sutherland for the Court: The ["powers of the federal government in respect of foreign or external affairs and those in respect of domestic or internal affairs"] are different, both in respect of their origin and their nature. The broad statement that the federal government can exercise no powers except those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect of our internal affairs. Article II vests the President with power as "Commander in Chief of the Army and Navy of the United States," and requires that the President "shall take Care that the Laws be faithfully executed". Fourth Amendment The Fourth Amendment is part of the Bill of Rights and prohibits "unreasonable" searches and seizures by the government. A search warrant must be judicially sanctioned, based on probable cause, supported by oath or affirmation (usually by a law enforcement officer), particularly describing the place to be searched and the persons or things to be seized, limited in scope (according to specific information supplied to the issuing court). It is solely a right of the people that neither the Executive nor Legislative branch can lawfully abrogate, even if acting in concert: no statute can make an unreasonable search reasonable. The term "unreasonable" connotes the sense that a constitutional search has a rational basis, that it is not an excessive imposition upon the individual given the circumstances and is in accordance with societal norms. It relies on judges to be sufficiently independent of the authorities seeking warrants that they can render an impartial decision. Evidence obtained in an unconstitutional search is inadmissible in a criminal trial (with certain exceptions). The Fourth Amendment explicitly allows reasonable searches, including searches without warrant in specific circumstances. Such circumstances include the persons, property and papers of individuals crossing the border of the United States and those of paroled felons; prison inmates, public schools and government offices; and of international mail. Although these are undertaken pursuant to a statute or an executive order, they derive their legitimacy from the Amendment, rather than these. Ninth and Tenth Amendments The Tenth Amendment explicitly states that powers neither granted to the federal government nor prohibited to the states are reserved to the states or the people. The Ninth Amendment states, "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." The Ninth Amendment bars denial of unenumerated rights if the denial is based on the "enumeration of certain rights" in the Constitution, but does not bar denial of unenumerated rights if the denial is based on the "enumeration of certain powers" in the Constitution.United Public Workers v. Mitchell, 330 U.S. 75 (1947) https://web.archive.org/web/20110519050636/http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=330&page=75 May 19, 2011 . See also Jenkins v. Commissioner of Internal Revenue, 483 F.3d 90 (2d Cir 2007). Related Court opinions The Supreme Court has historically used Article II to justify wide deference to the President in foreign affairs.King Kimi Lynn Meernik James December 1999 The Supreme Court and the Powers of the Executive: The Adjudication of Foreign Policy https://www.jstor.org/stable/449187 Political Research Quarterly 52 4 801 10.2307/449187 449187 subscription Two historical and recent cases define the secret wiretapping by the NSA. Curtiss-Wright: It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations–a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution. The extent of the President's power as Commander-in-Chief has never been fully defined, but two Supreme Court cases are considered seminal in this area:"Any neutral assessment of the important separation of powers questions at issue here warranted a thorough consideration of Curtiss-Wright and the theory of presidential power it recognized (as well as the even more long-standing precedent on which the decision in Curtiss-Wright relied, including The Prize Cases, 67 U.S. (2 Black) 635" – PROFESSOR JOHN C. EASTMAN in his solicited letter to the Senate Judiciary Committee"The Steel Seizure Case12 is frequently cited as providing a framework for the courts to decide the extent of the President's authority, particularly in matters involving national security." CRS, "Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information" Youngstown Sheet and Tube Co. v. Sawyer (1952) and Curtiss-Wright. The Supreme Court held in Katz v. United States (1967), that the monitoring and recording of private conversations within the United States constitutes a "search" for Fourth Amendment purposes, and therefore require a warrant. The Supreme Court held in Smith v Maryland (1979) that a judicial warrant is required for the government to acquire the content of electronic communications. However, subpoenas but not warrants are required for the business records ( metadata) of their communications, data such as the numbers that an individual has phoned, when and, to a limited degree, where the phone conversation occurred. The protection of "private conversations" has been held to apply only to conversations where the participants have manifested both a desire and a reasonable expectation that their conversation is indeed private and that no other party is privy to it. In the absence of such a reasonable expectation, the Fourth Amendment does not apply, and surveillance without warrant does not violate it. Privacy is clearly not a reasonable expectation in communications to persons in the many countries whose governments openly intercept electronic communications, and is of dubious reasonability in countries against which the United States is waging war. Various Circuit Courts upheld warrantless surveillance when the target was a foreign agent residing abroad,United States v. Duggan, 743 F.2d 59, 72 (2d Cir. 1984) (citing cases)https://irp.fas.org/agency/doj/fisa/092502sup.html Justice Dept Supplemental Brief to the U.S. Foreign Intelligence Court of Review Fas.org February 23, 2013 a foreign agent residing in the USClay v. United States, 403 698 1971United States v. Brown, 484 F.2d 418 (5th Cir. 1973)United States v. Butenko, 494 F.2d 593 (3rd Cir. 1974)United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980) and a US citizen abroad.United States v. Bin Laden https://web.archive.org/web/20061213060636/http://www.law.syr.edu/faculty/banks/terrorism/dummyfl/binladen_12_19_00.pdf December 13, 2006, 126 F.Supp.2d 264 (S.D.N.Y. 2000) The exception does not apply when both the target and the threat were deemed domestic.United States v. U.S. District Court, 407 297 1972 The legality of targeting US persons acting as agents of a foreign power and residing in this country has not been addressed by the Supreme Court, but occurred in the case of Aldrich Ames.http://www.nationalreview.com/york/york200512200946.asp Clinton Claimed Authority to Order No-Warrant Searches – Does anyone remember that? York Byron December 20, 2005 National Review July 1, 2007 https://web.archive.org/web/20070504042611/http://nationalreview.com/york/york200512200946.asp May 4, 2007 live The law recognizes a distinction between domestic surveillance taking place within U.S. borders and foreign surveillance of non-U.S. persons either in the U.S. or abroad.David Alan Jordan."Decrypting the Fourth Amendment: Warrantless NSA Surveillance and the Enhanced Expectation of Privacy Provided by Encrypted Voice over Internet Protocol" https://web.archive.org/web/20071030095250/http://iilj.org/documents/Jordan-47_BC_L_Rev_000.pdf October 30, 2007. Boston College Law Review. May 2006. Last access date January 23, 2007 In United States v. Verdugo-Urquidez, the Supreme Court reaffirmed the principle that the Constitution does not extend protection to non-U.S. persons located outside of the United States, so no warrant was required to engage in even physical searches of non-U.S. citizens abroad. In 1985 the Supreme Court established the "border search exception", which permits warrantless searches at the US border "or its functional equivalent" in United States v. Montoya De Hernandez, 473 U.S. 531, 538. The US can do so as a sovereign nation to protect its interests. Courts have explicitly included computer hard drives within the exception (United States v. Ickes, 393 F.3d 501 4th Cir. 2005), while United States v. Ramsey, explicitly included all international postal mail. The Supreme Court has not ruled on the constitutionality of warrantless searches targeting foreign powers or their agents within the US. Multiple Circuit Court rulings uphold the constitutionality of warrantless searches or the admissibility of evidence so obtained.Circuit courts applying Keith to the foreign intelligence context have affirmed the existence of a foreign intelligence exception to the warrant requirement for searches conducted within the United States which target foreign powers or their agents. See United States v. Clay, 430 F.2d 165, 171 (5th Cir.1970); United States v. Brown, 484 F.2d 418, 426 (5th Cir.1973); United States v. Butenko, 494 F.2d 593, 605 (3d Cir.1974); United States v. Buck, 548 F.2d 871, 875 (9th Cir.1977); United States v. Truong Dinh Hung, 629 F.2d 908, 913 (4th Cir.1980) In United States v. Bin Laden, the Second Circuit noted that "no court, prior to FISA, that was faced with the choice, imposed a warrant requirement for foreign intelligence searches undertaken within the United States."United States v. Usama bin Laden Dist. Court, SD New York F.Supp.2d 93 484 2000 https://scholar.google.com/scholar_case?hl=en&as_sdt=2,22&case=14432880949103009491&scilh=0 June 12, 2013 National Security Act of 1947 The National Security Act of 1947http://www.intelligence.gov/0-natsecact_1947.shtml U.S. INTELLIGENCE Community National Security Act of 1947 https://web.archive.org/web/20080512165955/http://www.intelligence.gov/0-natsecact_1947.shtml May 12, 2008 dead January 1, 2006 mdy 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." Under § 501–503, codified as 50 USC § 413-§ 413b,Title 50, Chapter 15, Subchapter III ACCOUNTABILITY FOR INTELLIGENCE ACTIVITIES, Legal Information Institute, Cornell Law School the President is required to keep Congressional intelligence committees "fully and currently" informed of U.S. intelligence activities, "consistent with ... protection from unauthorized disclosure of classified information relating to sensitive intelligence sources and methods or other exceptionally sensitive matters." For covert actions, from which intelligence gathering activities are specifically excluded in § 413b(e)(1), the President is specifically permitted to limit reporting to selected Members.https://www.law.cornell.edu/uscode/text/50/413b 50 USC § 413b Law.cornell.edu February 23, 2013 Foreign Intelligence Surveillance Act Foreign Intelligence Surveillance Act The 1978 Foreign Intelligence Surveillance Act (FISA) regulates government agencies' physical searches and electronic surveillance, in cases wherein a significant purpose is to gather foreign intelligence information. "Foreign intelligence information" is defined in 50 1801 as information necessary to protect the U.S. or its allies against actual or potential attack from a foreign power, sabotage or international terrorism. FISA defines a "foreign power" as a foreign government or any faction(s) of a foreign government not substantially composed of US persons, or any entity directed or controlled by a foreign government. FISA provides for both criminal and civil liability for intentional electronic surveillance under color of law except as authorized by statute. FISA specifies two documents for the authorization of surveillance. First, FISA allows the Justice Department to obtain warrants from the Foreign Intelligence Surveillance Court (FISC) before or up to 72 hours after the beginning of the surveillance. FISA authorizes a FISC judge to issue a warrant 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 or his delegate to authorize warrantless surveillance for the collection of foreign intelligence if "there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party". 50 U.S.C. § 1802(a)(1).Cornell Law 50 U.S.C. § 1802(a)(1) https://www.law.cornell.edu/uscode/text/50/1802#a_1 January 1, 2006 In 2002, the United States Foreign Intelligence Surveillance Court of Review (Court of Review) met for the first time and issued an opinion (In re: Sealed Case No. 02-001). They noted that all of the Federal courts of appeal had considered the issue and concluded that constitutional power allowed the president to conduct warrantless foreign intelligence surveillance. Furthermore, based on these rulings it "took for granted such power exists" and ruled that under this presumption, "FISA could not encroach on the president's constitutional power." 18 2511(2)(f) provides in part that FISA "shall be the exclusive means by which electronic surveillance, as defined in 50 1801(f) ... and the intercept of domestic [communications] may be conducted". The statute includes a criminal sanctions subpart 50 1809 granting an exception, "unless authorized by statute". Authorization for the Use of Military Force The Authorization for Use of Military Force was passed by Congress shortly after the 9/11 attacks. AUMF was used to justify the Patriot Act and related laws. It explicitly states in Section 2: (a) IN GENERAL- That 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. USA PATRIOT Act Section 215 of the PATRIOT act authorized the FBI to subpoena some or all business records from a business record holder using a warrant applied for in the Foreign Intelligence Surveillance Court. Terrorist surveillance program Terrorist Surveillance Program The legality of surveillance involving US persons and extent of this authorization is the core of this controversy which includes: Constitutional issues concerning the separation of powers and the Fourth Amendment immunities The program's effectivenessBergman, Lichtblau Shane, and Van Natta Jr. Spy Agency Data After 11 September Led F.B.I. to Dead Ends January 17, 2006 The New York Times https://www.nytimes.com/2006/01/17/politics/17spy.html February 22, 2017 https://web.archive.org/web/20160521183458/http://www.nytimes.com/2006/01/17/politics/17spy.html May 21, 2016 live and scopeDafna Linzer and Carol D. Leonnig Barton Gellman A01 Surveillance Net Yields Few Suspects – NSA's Hunt for Terrorists Scrutinizes Thousands of Americans, but Most Are Later Cleared February 5, 2006 The Washington Post https://www.washingtonpost.com/wp-dyn/content/article/2006/02/04/AR2006020401373.html September 5, 2017 https://web.archive.org/web/20170427183009/http://www.washingtonpost.com/wp-dyn/content/article/2006/02/04/AR2006020401373.html April 27, 2017 live The legality of the leaking and publication of classified information and their implications for national security Adequacy of FISA as a tool for fighting terrorism Technical and operational details thumb|page=17|Basic diagram of how the alleged wiretapping was accomplished. From EFF court filings thumb|Higher detail diagram of how alleged wiretapping worked. From EFF court filings Because of its highly classified status, the implementation of the TSP is not fairly known by the public. Once Mark Klein, a retired AT&T communications technician, submitted an affidavit describing technical details known to him personally in support of the 2006 Hepting v. AT&T court case.https://www.wired.com/science/discoveries/news/2006/04/70619 Wired Whistle-Blower Outs NSA Spy Room Ryan Singel April 7, 2006 August 15, 2007 https://web.archive.org/web/20080430142924/http://www.wired.com/science/discoveries/news/2006/04/70619 April 30, 2008 livehttps://www.pbs.org/wgbh/pages/frontline/homefront/interviews/klein.html Public Broadcasting System "Spying on the Home Front" – Interview with Mark Klein Frontline January 9, 2007 August 15, 2007 https://web.archive.org/web/20070809030838/http://www.pbs.org/wgbh/pages/frontline/homefront/interviews/klein.html August 9, 2007 live Klein's January 16, 2004 statement included additional details regarding the construction of an NSA monitoring facility in Room 641A of 611 Folsom Street in San Francisco, the site of a large SBC phone building, three floors of which were occupied by AT&T.http://www.commondreams.org/headlines06/0517-10.htm CommonDreams.org Newscenter AT&T Whistle-Blower's Evidence May 17, 2006 August 15, 2007 dead https://web.archive.org/web/20070613191804/http://www.commondreams.org/headlines06/0517-10.htm June 13, 2007 mdy https://www.pbs.org/wgbh/pages/frontline/homefront/etc/kleindoc.pdf PBS Frontline Klein's "2004 Package" May 17, 2007 August 15, 2007 https://web.archive.org/web/20080227135041/http://www.pbs.org/wgbh/pages/frontline/homefront/etc/kleindoc.pdf February 27, 2008 live According to Klein's affidavit, the NSA-equipped room used equipment built by Narus Corporation to intercept and analyze communications traffic, as well as to perform data-mining.NarusInsight Intercept Suite http://www.narus.com/products/intercept.html October 18, 2007 https://web.archive.org/web/20071018035437/http://www.narus.com/products/intercept.html October 18, 2007 Experts from academia and the computing industry analyzed potential security risks posed by the NSA program, based on Klein's affidavits and those of expert witness J. Scott Marcus, a designer of large-scale IP-based data networks, former CTO at GTE Internetworking and at Genuity, and former senior advisor for Internet Technology at the Federal Communications Commission.DECLARATION OF J. SCOTT MARCUS IN SUPPORT OF PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION https://www.eff.org/files/filenode/att/SER_marcus_decl.pdf March 29, 2006 February 6, 2008 https://web.archive.org/web/20080216080328/http://www.eff.org/files/filenode/att/SER_marcus_decl.pdf February 16, 2008 live They concluded that the likely architecture of the system created serious security risks, including the danger that it could be exploited by unauthorized users, criminally misused by trusted insiders or abused by government agents.Steven M. Bellovin, Matt Blaze, Whitfield Diffie, Susan Landau, Peter G. Neumann, and Jennifer Rexford Risking Communications Security: Potential Hazards of the Protect America Act IEEE Security & Privacy February 5, 2008 http://www.crypto.com/papers/paa-ieee.pdf 10.1109/MSP.2008.17 February 5, 2008 6 1 24 2008ISPri...6a..24B 874506 https://web.archive.org/web/20080227135042/http://www.crypto.com/papers/paa-ieee.pdf February 27, 2008 dead mdy-all David Addington – at that time legal counsel to former Vice President Dick Cheney – was reported to be the author of the controlling legal and technical documents for the program.https://www.washingtonpost.com/wp-dyn/content/article/2008/09/13/AR2008091302284_pf.html Conflict Over Spying Led White House to Brink Barton Gelman The Washington Post September 14, 2008 May 28, 2012 https://web.archive.org/web/20121112023753/http://www.washingtonpost.com/wp-dyn/content/article/2008/09/13/AR2008091302284_pf.html November 12, 2012 livehttps://www.pbs.org/newshour/bb/nation/jan-june13/snowden2_06-28.html To What Extent Did the Government Monitor Phone, Internet Activity After 9/11? PBS Newshour June 28, 2013 June 29, 2013 https://web.archive.org/web/20130630033027/http://www.pbs.org/newshour/bb/nation/jan-june13/snowden2_06-28.html June 30, 2013 dead https://www.theguardian.com/world/interactive/2013/jun/27/nsa-inspector-general-report-document-data-collection NSA inspector general report on email and internet data collection under Stellar Wind – full document The Guardian June 27, 2013 June 28, 2013 London Legal issues While the dispute over the NSA program was waged on multiple fronts, the legal dispute pitted Bush and Obama administrations against opponents in Congress and elsewhere. Supporters claimed that the President's Constitutional duties as commander in chief allowed him to take all necessary steps in wartime to protect the nation and that AUMF activated those powers. Opponents countered by claiming that instead that existing statutes (predominantly FISA) circumscribed those powers, including during wartime.https://www.washingtonpost.com/wp-srv/nation/documents/NSAProgramQuestions.pdf Legal memorandum of David S. Kris, former Deputy Attorney General for national security January 25, 2006 The Washington Post Formally, the question can be seen as a disagreement over whether Constitutional or statutory law should rule in this case.https://www.law.cornell.edu/wex/Constitutional_law Cornell University – Constitutional law Law.cornell.edu February 23, 2013 https://web.archive.org/web/20130120153737/http://www.law.cornell.edu/wex/index.php/Constitutional_law January 20, 2013 live As the debate continued, other arguments were advanced. Constitutional issues The constitutional debate surrounding the program is principally about separation of powers. If no "fair reading" of FISA can satisfy the canon of avoidance, these issues must be decided at the appellate level. In such a separation of powers dispute, Congress bears burden of proof to establish its supremacy: the Executive branch enjoys the presumption of authority until an Appellate Court rules against it.Constitutional Rights Foundation https://www.crf-usa.org/bill-of-rights-in-action/bria-22-3-c-the-national-security-agency-warrantless-wiretaps 2020-10-31 www.crf-usa.org Article I and II Whether "proper exercise" of Congressional war powers includes authority to regulate the gathering of foreign intelligence is a historical point of contention between the Executive and Legislative branches. In other rulingsHasian Marouf January 2006 Unitary Executives, Rhetorical Histories, and the National Security Agency's Strategic Remembrances of the Foreign Intelligence Surveillance Act (FISA) http://dx.doi.org/10.1080/08997225.2006.10556326 Free Speech Yearbook 43 1 1–19 10.1080/08997225.2006.10556326 155825691 0899-7225 subscription has been recognized as "fundamentally incident to the waging of war".U.S. Department of Justice White Paper on NSA Legal Authorities "Legal Authorities Supporting the Activities of the National Security Agency Described by the President" (pdf) https://web.archive.org/web/20060130132834/http://news.findlaw.com/hdocs/docs/nsa/dojnsa11906wp.pdf January 30, 2006 January 19, 2006.Congressional Research Service January 5, 2006 Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information https://sgp.fas.org/crs/intel/m010506.pdf "Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information", published by The Congressional Research Service stated: A review of the history of intelligence collection and its regulation by Congress suggests that the two political branches have never quite achieved a meeting of the minds regarding their respective powers. Presidents have long contended that the ability to conduct surveillance for intelligence purposes is a purely executive function, and have tended to make broad assertions of authority while resisting efforts on the part of Congress or the courts to impose restrictions. Congress has asserted itself with respect to domestic surveillance, but has largely left matters involving overseas surveillance to executive self-regulation, subject to congressional oversight and willingness to provide funds. The same report repeats the Congressional view that intelligence gathered within the U.S. and where "one party is a U.S. person" qualifies as domestic in nature and as such is within their purview to regulate, and further that Congress may "tailor the President's use of an inherent constitutional power": The passage of FISA and the inclusion of such exclusivity language reflects Congress's view of its authority to cabin the President's use of any inherent constitutional authority with respect to warrantless electronic surveillance to gather foreign intelligence. The Senate Judiciary Committee articulated its view with respect to congressional power to tailor the President's use of an inherent constitutional power: The basis for this legislation [FISA] is the understanding – concurred in by the Attorney General – that even if the President has an "inherent" constitutional power to authorize warrantless surveillance for foreign intelligence purposes, Congress has the power to regulate the exercise of this authority by legislating a reasonable warrant procedure governing foreign intelligence surveillance Fourth Amendment The Bush administration claimed that the administration viewed the unanimity of pre-FISA Circuit Court decisions as vindicating their argument that warrantless foreign-intelligence surveillance authority existed prior to and subsequent to FISA and that this derived its authority from the Executive's inherent Article II powers, which may not be encroached upon by statute.https://irp.fas.org/agency/doj/fisa/doj032406.pdf DOJ/Attorney General Gonzales' responses to the House Judiciary Committee's oversight questions regarding the NSA Terrorist Surveillance Program, March 24, 2006 February 23, 2013 District Court findings Even some legal experts who agreed with the outcome of ACLU v. NSA criticized the opinion's reasoning.Adam Liptak, "Experts Fault Reasoning in Surveillance Decision", New York Times, August 19, 2006. Glenn Greenwald argued that the perceived flaws in the opinion in fact reflect the Department of Justice's refusal to argue the legal merits of the program (they focused solely on standing and state secrets grounds)."Grading the law professors; apologies due Judge Taylor" https://web.archive.org/web/20061023211310/http://glenngreenwald.blogspot.com/2006/08/grading-law-professors-apologies-due.html October 23, 2006 by Glenn Greenwald, August 22, 2006. FISA practicality FISA grants FISC the exclusive power to authorize surveillance of US persons as part of foreign intelligence gathering and makes no separate provision for surveillance in wartime. The interpretation of FISA's exclusivity clause is central because both sides agree that the NSA program operated outside FISA. If FISA is the controlling authority, the program is illegal.That Congress sees this as domestic intelligence can be inferred from the CRS position paper, "Congress has asserted itself with respect to domestic surveillance, but has largely left matters involving overseas surveillance to executive self-regulation, subject to congressional oversight and willingness to provide funds." The "no constitutional issue" critique is that Congress has the authority to legislate in this area under Article I and the Fourth Amendment,See for example,Cole, Epstein, Heynmann Open Letter to Congress https://web.archive.org/web/20060117055721/http://www.nybooks.com/articles/18650 January 17, 2006 Congress indisputably has authority to regulate electronic surveillance within the United States, as it has done in FISA. Where Congress has so regulated, the President can act in contravention of statute only if his authority is exclusive, that is, not subject to the check of statutory regulation. while the "constitutional conflict" critiquehttps://www.washingtonpost.com/wp-srv/nation/documents/NSAProgramQuestions.pdf Legal memorandum of David S. Kris, former Deputy Attorney General for national security January 25, 2006 The Washington Post September 5, 2017 https://web.archive.org/web/20160114025330/http://www.washingtonpost.com/wp-srv/nation/documents/NSAProgramQuestions.pdf January 14, 2016 live claims that the delineation between Congressional and Executive authority in this area is unclear,The CRS report itself notes "A review of the history of intelligence collection and its regulation by Congress suggests that the two political branches have never quite achieved a meeting of the minds regarding their respective powers." but that FISA's exclusivity clause shows that Congress had established a role for itself in this arena. The Bush administration argued both that the President had the necessary power based solely on the Constitution and that conforming to FISA was not practical given the circumstances. Assistant Attorney General for Legislative Affairs, William Moschella, wrote: As explained above, the President determined that it was necessary following September 11 to create an early warning detection system. FISA could not have provided the speed and agility required for the early warning detection system. In addition, any legislative change, other than the AUMF, that the President might have sought specifically to create such an early warning system would have been public and would have tipped off our enemies concerning our intelligence limitations and capabilities. FBI Special Agent Coleen Rowley, in her capacity as legal counsel to the Minneapolis Field Officehttp://www.apfn.org/APFN/WTC_whistleblower1.htm Coleen Rowley's Memo to FBI Director Robert Mueller Apfn.org February 23, 2013 https://web.archive.org/web/20190920090649/http://www.apfn.org/apfn/WTC_whistleblower1.htm September 20, 2019 dead recounted how FISA procedural hurdles had hampered the FBI's investigation of Zacarias Moussaoui (the so-called "20th hijacker") prior to the 9/11 attacks. Among the factors she cited were the complexity of the application, the amount of detailed information required, confusion by field operatives about the standard of probable cause required by the FISC and the strength of the required link to a foreign power. At his appearance before the Senate Judiciary Committee in June 2002, FBI Director Robert Mueller responded to questions about the Rowley allegations, testifying that unlike normal criminal procedures, FISA warrant applications are "complex and detailed", requiring the intervention of FBI Headquarters (FBIHQ) personnel trained in a specialized procedure (the "Woods" procedure) to ensure accuracy.https://irp.fas.org/agency/doj/fisa/fbi082903.pdf FBI Director Mueller Explains the Significance of the Woods Procedures February 23, 2013 The Supreme Court made no ruling on this question. However, on June 29, 2006, in Hamdan, the Supreme Court rejected an analogous argument. Writing for the majority, Justice John Paul Stevens, while ruling that "the AUMF activated the President's war powers, and that those powers include the authority to convene military commissions in appropriate circumstances" (citations omitted), held that nothing in the AUMF language expanded or altered the Uniform Code of Military Justice (which governs military commissions.) Stevens distinguished Hamdan from Hamdi (in which AUMF language was found to override the explicit language regarding detention in 18 U.S.C. § 4001(a)) in that Hamdan would require a "Repeal by implication" of the UCMJ. Authorizing statute The Bush administration held that AUMF enables warrantless surveillance because it is an authorizing statute. An Obama Department of Justice whitepaper interpreted FISA's "except as authorized by statute" clause to mean that Congress allowed for future legislative statute(s) to provide exceptions to the FISA warrant requirementsDOJ fact sheet:The NSA Program to Detect and Prevent Terrorist Attacks – Myth vs Reality January 27, 2006 U.S. Department of Justice http://www.usdoj.gov/ag/readingroom/surveillance16.pdf 2014-03-18 https://web.archive.org/web/20071204090917/http://www.usdoj.gov/ag/readingroom/surveillance16.pdf December 4, 2007 live and that the AUMF was such a statute. They further claimed that AUMF implicitly provided executive authority to authorize warrantless surveillance. This argument is based on AUMF language, specifically, the acknowledgment of the President's Constitutional authority contained in the preamble: Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States ... and the language in the resolution; [Be it resolved] [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 Obama administration further claimed that Title II of the USA PATRIOT Act entitled Enhanced Surveillance Procedures also allowed the program,Edgar Timothy H Beyond snowden: privacy, mass surveillance, and the struggle to reform the NSA Brookings Institution Press 2017 Obama stated that Americans' civil liberties were protected and that purely domestic wiretapping was conducted only pursuant to warrants.https://georgewbush-whitehouse.archives.gov/news/releases/2004/04/print/20040420-2.html Remarks by the President in a Conversation on the USA Patriot Act Georgewbush-whitehouse.archives.gov February 23, 2013 https://web.archive.org/web/20130610131232/http://georgewbush-whitehouse.archives.gov/news/releases/2004/04/print/20040420-2.html June 10, 2013 live Because FISA authorizes the President to bypass the FISC only during the first 15 days of a war declared by Congress, the argument claimed the AUMF implicitly gave the President the necessary power (as would any Congressional declaration of war). However, as a declaration of war encompasses all military actions so declared, including any otherwise constrained by Congress, the administration held that FISA set a presumptive minimum, which might be extended (explicitly or implicitly) by a declaration. Corporate confidentiality analysis Corporate secrecy is also an issue. In a letter to the EFF, AT&T objected to the filing of the documents in any manner, saying that they contain sensitive trade secrets and could be "used to 'hack' into the AT&T network, compromising its integrity".https://www.wired.com/science/discoveries/news/2006/04/70619 Wired Whistle-Blower Outs NSA Spy Room April 7, 2006 dead https://web.archive.org/web/20080430142924/http://www.wired.com/science/discoveries/news/2006/04/70619 April 30, 2008 However, Chief Judge Walker stated, during the September 12, 2008 hearing in the EFF class-action lawsuit, that the Klein evidence could be presented in court, effectively ruling that AT&T's trade secret and security claims were unfounded. Duty to notify Congress The Bush administration contended that with regard to the NSA program, it had fulfilled its notification obligations by briefing key members of Congress (thirteen individuals between the 107th and 109th Congressional sessions) more than a dozen times,February 2007Zegart Amy B Eyes on Spies: Congress and the United States Intelligence Community Hoover Press 2013 but they were forbidden from sharing that information with other members or staff.February 2007 The CRS report asserted that the specific statutory notification procedure for covert action did not apply to the NSA program. It is not clear whether a restricted notification procedure intended to protect sources and methods was expressly prohibited. Additionally, the sources and methods exception requires a factual determination as to whether it should apply to disclosure of the program itself or only to specific aspects. Peter J. Wallison, former White House Counsel to President Ronald Reagan stated, "It is true, of course, that a president's failure to report to Congress when he is required to do so by law is a serious matter, but in reality the reporting requirement was a technicality that a President could not be expected to know about."Ronald Reagan: The Power of Conviction and the Success of His Presidency Wallison Peter J. Westview Press 2003 190 0-8133-4046-2 registration https://archive.org/details/isbn_9780813340463/page/190 War Powers Resolution The majority of legal arguments supporting the program were based on the War Powers Resolution. The War Powers Resolution has been questioned since its creation, and its application to the NSA program was questioned. US citizens No declaration of war explicitly applied to US citizens. Under the War Powers Resolution the only option to include them was to enact an encompassing authorization of the use of military force. The AUMF did not explicitly do so. Under AUMF, "nations, organizations or persons" must be identified as having planned, authorized, committed, aided or harbored the (9/11) attackers. Military force is thereby limited to those parties. Since no US citizens were alleged to be involved in the 9/11 attacks, and since AUMF strictly states that war-time enemies are those who were involved in 9/11, including US citizens in general exceeds these provisions. Opinions that actions stemming from the Patriot Act are constitutional follow from the AUMF. Since AUMF wartime powers do not explicitly apply to US citizens in general, they are exempted from its provision as a function of Ninth Amendment unenumerated rights. Therefore, Patriot Act provisions that are unconstitutionally (violating the first, fourth and other amendments) applied to US citizens are not rescued by the AUMF. Attorney-client privilege Wilner v. NSA was a Freedom of Information Act lawsuit filed by Thomas Wilner and fifteen other lawyers who represented Guantanamo captives against the United States National Security Agency.Mike Rosen-Molina Mike Rosen-Molina May 19, 2007 Ex-Guantanamo lawyers sue for recordings of client meetings http://jurist.law.pitt.edu/paperchase/2007/05/ex-guantanamo-lawyers-sue-for.php dead https://web.archive.org/web/20080502051556/http://jurist.law.pitt.edu/paperchase/2007/05/ex-guantanamo-lawyers-sue-for.php May 2, 2008 2007-05-22 The JuristWilner v. NSA http://www.ccr-ny.org/v2/legal/september_11th/sept11Article.asp?ObjID=DmJtlh90ID&Content=1035 https://web.archive.org/web/20070523183659/http://www.ccr-ny.org/v2/legal/september_11th/sept11Article.asp?ObjID=DmJtlh90ID&Content=1035 May 23, 2007 May 22, 2007 Center for Constitutional RightsJune 19, 2009 Wilner v. NSA http://ccrjustice.org/files/Wilner_FOIANSAComplaint.pdf June 19, 2009 Center for Constitutional Rights The lawyers argued that the NSA, through its warrantless wiretap program, had violated their attorney-client privilege. They referred to the January 18, 2006 lawsuit CCR v. Bush, and called the NSA's response "inadequate". They assert that while the Government had released 85 pages of documents they had withheld another 85 that the law obliged them to release. The government, for its part, issued a Glomar response, refusing to affirm or deny the existence of the requested documents for reasons of national security.Kittichaisaree Kriangsak https://books.google.com/books?id=iylBDgAAQBAJ&pg=PA112 Public International Law of Cyberspace February 28, 2017 Springer 978-3-319-54657-5 112 Google Books Other arguments Philip Heymann claimed Bush had misstated the In re: Sealed Case No. 02-001 ruling that supported Congressional regulation of surveillance. Heymann 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."Charlie Savage Specialists doubt legality of wiretaps February 2, 2006 The Boston Globe http://archive.boston.com/news/nation/articles/2006/02/02/specialists_doubt_legality_of_wiretaps/ April 16, 2020 https://web.archive.org/web/20160304135938/http://www.boston.com/news/nation/articles/2006/02/02/specialists_doubt_legality_of_wiretaps/ March 4, 2016 live Cole, Epstein, Heynmann, Beth Nolan, Curtis Bradley, Geoffrey Stone, Harold Koh, Kathleen Sullivan, Laurence Tribe, Martin Lederman, Ronald Dworkin, Walter Dellinger, William Sessions and William Van Alstyne wrote, "the Justice Department's defense of what it concedes was secret and warrantless electronic surveillance of persons within the United States fails to identify any plausible legal authority for such surveillance."http://www.nybooks.com/articles/18650 On NSA Spying: A Letter to Congress by Ronald Dworkin, Kathleen M. Sullivan, and Laurence H. Tribe The New York Review of Books February 23, 2013 https://web.archive.org/web/20100330192918/http://www.nybooks.com/articles/18650 March 30, 2010 live Alstyne William Van Stone Geoffrey Sessions William S. Nolan Beth Lederman Martin Koh Harold Hongju Heymann Philip B. Epstein Richard Dellinger Walter Bradley Curtis Cole David Tribe Laurence H. Sullivan Kathleen M. Dworkin Ronald They summarized: If the administration felt that FISA was insufficient, the proper course was to seek legislative amendment, as it did with other aspects of FISA in the Patriot Act, and as Congress expressly contemplated when it enacted the wartime wiretap provision in FISA. One of the crucial features of a constitutional democracy is that it is always open to the President—or anyone else—to seek to change the law. But it is also beyond dispute that, in such a democracy, the President cannot simply violate criminal laws behind closed doors because he deems them obsolete or impracticable. Law school dean Robert Reinstein asserted that the warrantless domestic spying program isLegal Rationale by Justice Dept. on Spying Effort Eric Lichtblau James Risenjan January 20, 2006 The New York Times https://www.nytimes.com/2006/01/20/politics/20nsa.html February 22, 2017 https://web.archive.org/web/20151229193053/http://www.nytimes.com/2006/01/20/politics/20nsa.html December 29, 2015 live Lichtblau Eric Risen James 2006-01-20 Legal Rationale by Justice Dept. on Spying Effort en-US The New York Times https://www.nytimes.com/2006/01/20/politics/legal-rationale-by-justice-dept-on-spying-effort.html 2021-04-24 0362-4331 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. Law professor Robert M. Bloom and William J. Dunn, a former Defense Department intelligence analyst, claimed:Robert M. Bloom William J. Dunn The Constitutional Infirmity of Warrantless NSA Surveillance: The Abuse of Presidential Power and the Injury to the Fourth Amendment William & Mary Bill of Rights Journal 15 147–202 2006 926997 President Bush argues that the surveillance program passes constitutional inquiry based upon his constitutionally delegated war and foreign policy powers, as well as from the congressional joint resolution passed following the September 11, 2001 terrorist attacks. These arguments fail to supersede the explicit and exhaustive statutory framework provided by Congress and amended repeatedly since 2001 for judicial approval and authorization of electronic surveillance. The specific regulation by Congress based upon war powers shared concurrently with the President provides a constitutional requirement that cannot be bypassed or ignored by the President. Law professor Jordan Paust argued:http://jurist.law.pitt.edu/forumy/2005/12/not-authorized-by-law-domestic-spying.php JURIST – Forum: Not Authorized By Law: Domestic Spying and Congressional Consent Jurist.law.pitt.edu 2014-03-18 https://web.archive.org/web/20051227042140/http://jurist.law.pitt.edu/forumy/2005/12/not-authorized-by-law-domestic-spying.php December 27, 2005 live any so-called inherent presidential authority to spy on Americans at home (perhaps of the kind denounced in Youngstown (1952) and which no strict constructionist should pretend to recognize), has been clearly limited in the FISA in 18 U.S.C. § 2511(2)(f) and 50 U.S.C. § 1809(a)(1), as supplemented by the criminal provisions in 18 U.S.C. § 2511(1). Law Dean Harold Koh, Suzanne Spaulding and John Dean contended that FISA was controlling,https://www.washingtonpost.com/wp-dyn/content/article/2005/12/23/AR2005122302050.html Power Play – Did Bush Roll Past the Legal Stop Signs? Spaulding Suzanne E. December 25, 2005 The Washington Post B01 September 5, 2017 https://web.archive.org/web/20180315200249/http://www.washingtonpost.com/wp-dyn/content/article/2005/12/23/AR2005122302050.html March 15, 2018 live (in seeming disagreement with the FISC of Review finding) and that the President's admissions constituted sufficient evidence of a violation of the Fourth Amendment, without requiring further factual evidence. Law professor John C. Eastman compared the CRS and DOJ reports and concluded instead that under the Constitution and ratified by both historical and Supreme Court precedent, "the President clearly has the authority to conduct surveillance of enemy communications in time of war and of the communications to and from those he reasonably believes are affiliated with our enemies. Moreover, it should go without saying that such activities are a fundamental incident of war."NSA Eastman Letter January 27, 2006 House Judiciary Committee http://judiciary.house.gov/media/pdfs/nsaeastmanltr.pdf dead https://web.archive.org/web/20060224214356/http://judiciary.house.gov/media/pdfs/nsaeastmanltr.pdf February 24, 2006 mdy-all Law professor Orin Kerr argued that the part of In re: Sealed Case No. 02-001 that dealt with FISA (rather than the Fourth Amendment) was nonbinding obiter dicta and that the argument did not restrict Congress's power to regulate the executive in general.http://volokh.com/posts/1135893533.shtml The Volokh Conspiracy Blog The NSA Surveillance Program and the Article II Argument December 29, 2005 https://web.archive.org/web/20060513080025/http://volokh.com/posts/1135893533.shtml May 13, 2006 live Separately Kerr argued for wireless surveillance based on the fact that the border search exception permits searches at the border "or its functional equivalent." (United States v. Montoya De Hernandez, 473 U.S. 531, 538 (1985)). As a sovereign nation the US can inspect goods crossing the border. The ruling interpreted the Fourth Amendment to permit such searches. Courts have applied the border search exception to computers and hard drives, e.g., United States v. Ickes, 393 F.3d 501 (4th Cir. 2005) Case law does not treat data differently than physical objects. Case law applies the exception to international airports and international mail (United States v. Ramsey). Case law is phrased broadly. The exception could analogously apply to monitoring an ISP or telephony provider.http://www.law.gwu.edu/faculty/profile.asp?ID=3568 George Washington Law School Profile gwu.edu https://web.archive.org/web/20050405231606/http://www.law.gwu.edu/faculty/profile.asp?ID=3568 April 5, 2005 dead mdy-allhttp://www.law.gwu.edu/Bibliography/showbibPRINT.asp?uid=3568 Orin Kerr Bibliography at GWU gwu.edu https://web.archive.org/web/20070213011233/http://www.law.gwu.edu/Bibliography/showbibPRINT.asp?uid=3568 February 13, 2007 dead mdy-all U.S. District Judge Dee Benson, who served on 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".http://www.baltimoresun.com/news/custom/attack/bal-te.court10jan10,1,4401538.story?coll=bal-attack-headlines Judges of secret court briefed on NSA activity January 10, 2006 Associated PressAugust 2026 medicmedichttps://www.washingtonpost.com/wp-dyn/content/article/2005/12/21/AR2005122102326.html Judges on Surveillance Court To Be Briefed on Spy Program Leonnig Carol D. December 22, 2005 The Washington Post Linzer Dafna A01 Carol D. Leonnig Dafna Linzer September 5, 2017 https://web.archive.org/web/20170220024646/http://www.washingtonpost.com/wp-dyn/content/article/2005/12/21/AR2005122102326.html February 20, 2017 live 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."https://www.washingtonpost.com/wp-dyn/content/article/2006/01/04/AR2006010401864.html Surveillance Court Is Seeking Answers – Judges Were Unaware of Eavesdropping Leonnig Carol D. January 5, 2006 The Washington Post Carol D. Leonnig September 5, 2017 https://web.archive.org/web/20180316214523/http://www.washingtonpost.com/wp-dyn/content/article/2006/01/04/AR2006010401864.html March 16, 2018 live Judge Richard Posner opined that FISA "retains value as a framework for monitoring the communications of known terrorists, but it is hopeless as a framework for detecting terrorists. [FISA] requires that surveillance be conducted pursuant to warrants based on probable cause to believe that the target of surveillance is a terrorist, when the desperate need is to find out who is a terrorist."A New Surveillance Act https://web.archive.org/web/20170809132108/https://www.wsj.com/articles/SB113996743590074183 August 9, 2017 , Wall Street Journal February 15, 2006 Related issues Earlier warrantless surveillance Warrantless searches in the United States The Bush administration compared the NSA warrantless surveillance program with historical wartime warrantless searches in the US, going back to the time of the nation's founding. Critics pointed out that the first warrantless surveillance occurred before the adoption of the U.S. Constitution, and the other historical precedents cited by the administration were before FISA's passage and therefore did not directly contravene federal law. Earlier electronic surveillance by the federal government such as Project SHAMROCK, led to reform legislation in the 1970s.National Security Archive at George Washington University Wiretap Debate Déjà Vu http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB178/index.htm February 4, 2006 https://web.archive.org/web/20060207023252/http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB178/index.htm February 7, 2006 live Advancing technology presented novel questions as early as 1985.Princeton University The OTA Legacy http://www.wws.princeton.edu/ota/ February 1, 2006 dead https://web.archive.org/web/20060209171940/http://www.wws.princeton.edu/ota/ February 9, 2006 mdy-all Executive orders by previous administrations including Presidents Clinton and Carter authorized their Attorneys General to exercise authority with respect to both options under FISA.Federation of American Scientists Exercise Of Certain Authority Respecting Electronic Surveillance – EO 12139 https://irp.fas.org/offdocs/eo12139.htm January 1, 2006 https://web.archive.org/web/20051231060635/http://www.fas.org/irp/offdocs/eo12139.htm December 31, 2005 live Executive Order 12949 Federation of American Scientists https://irp.fas.org/offdocs/eo/eo-12949.htm January 1, 2006 https://web.archive.org/web/20051231063229/http://www.fas.org/irp/offdocs/eo/eo-12949.htm December 31, 2005 live Clinton's executive order authorized his Attorney General "[pursuant] to section 302(a)(1)" to conduct physical searches without court order "if the Attorney General makes the certifications required by that section". Unitary Executive theory Unitary Executive theory Commander-in-Chief Separation of powers The Unitary Executive theory as interpreted by John Yoo et al., supported the Bush administration's Constitutional argument. He argued that the President had the "inherent authority to conduct warrantless searches to obtain foreign intelligence".https://www.washingtonpost.com/wp-dyn/content/article/2006/01/19/AR2006011903276.html Administration Paper Defends Spy Program Leonnig Carol D. Carol D. Leonnig January 20, 2006 The Washington Post June 23, 2009 https://web.archive.org/web/20080515141848/http://www.washingtonpost.com/wp-dyn/content/article/2006/01/19/AR2006011903276.html May 15, 2008 liveIgnoring FISA George W. Bush as the New Richard M. Nixon: Both Wiretapped Illegally, and Impeachable; Both Claimed That a President May Violate Congress' Laws to Protect National Security https://web.archive.org/web/20160304064700/http://writ.corporate.findlaw.com/dean/20051230.html March 4, 2016 By JOHN W. DEAN, FindLaw, December 30, 2005 The President's End Run https://web.archive.org/web/20161222093810/http://www.washingtonpost.com/wp-dyn/content/article/2006/01/22/AR2006012200779.html December 22, 2016 , The Washington Post, January 23, 2006 The United States Court of Appeals for the District of Columbia ruled that the President's authority as commander-in-chief 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 applying to foreign intelligence are or must be in compliance with FISA has been examined by few courts. Classified information Leaks No single law criminalizes the leaking of classified information. Statutes prohibit leaking certain types of classified information under certain circumstances. One such law is 18 798; it was tacked on to the Espionage Act of 1917. It is known as the 'SIGINT' statute, meaning signals intelligence. This statute says: ... 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). A statutory procedure INTELLIGENCE AUTHORIZATION ACT FOR FISCAL YEAR 1999 http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=105_cong_public_laws&docid=f:publ272.105 October 20, 1998 allows 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 provides for disclosure to the agency Inspector General, and if the result of that is unsatisfactory, appeal to the Congressional Intelligence Committees. Former NSA official Russ Tice 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 The http://www.washingtontimes.com/national/20060104-114052-6606r.htm NSA whistleblower asks to testify The Washington Times January 4, 2006 February 23, 2013 https://web.archive.org/web/20061216014237/http://www.washingtontimes.com/national/20060104-114052-6606r.htm December 16, 2006 live Executive Order 13292, which sets up the U.S. security classification system, provides (Sec 1.7) that "[i]n no case shall information be classified in order to conceal violations of law". Given doubts about the legality of the overall program, the classification of its existence may not have been valid under E.O. 13292.Kaminer Joan Gibson The future of Freedom of Information: An analysis of the impact of executive orders on the freedom of information act national security exemptions. University of Maryland, College Park https://drum.lib.umd.edu/bitstream/handle/1903/11271/Kaminer_umd_0117N_11846.pdf?sequence=1 Publication of classified information It is unlikely that a media outlet could be held liable for publishing classified information under established Supreme Court precedent. In Bartnicki v. Vopper, 532 U.S. 514,http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=532&page=514 FindLaw | Cases and Codes Caselaw.lp.findlaw.com February 23, 2013 https://web.archive.org/web/20130218121231/http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=532&page=514 February 18, 2013 live 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. Due to the suit's procedural position, the Court accepted that intercepting information that was ultimately broadcast by the defendant 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., 403 713 1971),http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=403&page=713 FindLaw | Cases and Codes Caselaw.lp.findlaw.com February 23, 2013 https://web.archive.org/web/20130218121221/http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=403&page=713 February 18, 2013 live the Supreme Court held that injunctions against the 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' involvement in the Vietnam War) were unconstitutional prior restraints and that the government had not met the heavy burden of proof required for prior restraint. The 1917 Espionage Act, aside from the SIGINT provision discussed above, only criminalizes 'national defense' information, not '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, Sean McGahan of Northeastern University stated, 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.Dan Eggen A01 White House Trains Efforts on Media Leaks – Sources, Reporters Could Be Prosecuted March 5, 2006 The Washington Post https://www.washingtonpost.com/wp-dyn/content/article/2006/03/04/AR2006030400867.html Responses and analyses Administration response to press coverage On December 17, 2005, President Bush addressed the growing controversy in his weekly radio broadcast.s:Presidential Radio Address – 17 December 2005 He stated that he was using his authority as President, as Commander in Chief and such authority as the Congress had given him, to intercept international communications of "people with known links to al Qaeda and related terrorist organizations". He added that before intercepting any communications, "the government must have information that establishes a clear link to these terrorist networks." He speculated that had the right communications been intercepted, perhaps the 9/11 attacks could have been prevented. He said the NSA program was re-authorized every 45 days, having at that time been reauthorized "more than 30 times"; it was reviewed by DOJ and NSA lawyers "including NSA's general counsel and inspector general", and Congress leaders had been briefed "more than a dozen times".https://georgewbush-whitehouse.archives.gov/news/releases/2005/12/print/20051217.html President's December 17, 2005 Radio Address Georgewbush-whitehouse.archives.gov February 23, 2013 https://web.archive.org/web/20130609220554/http://georgewbush-whitehouse.archives.gov/news/releases/2005/12/print/20051217.html June 9, 2013 live In a speech in Buffalo, New York on April 20, 2004, he said that: Secondly, there are such things as roving wiretaps. Now, by the way, any time you hear the United States government talking about wiretap, it requires – a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so. It's important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.The White House April 20, 2004 President Bush: Information Sharing, Patriot Act Vital to Homeland Security https://georgewbush-whitehouse.archives.gov/news/releases/2004/04/print/20040420-2.html And again, during a speech at Kansas State University on January 23, 2006, President Bush mentioned the program, and added that it was "what I would call a terrorist surveillance program", intended to "best ... use information to protect the American people",The White House January 23, 2006 President Discusses Global War on Terror at Kansas State University https://georgewbush-whitehouse.archives.gov/news/releases/2006/01/print/20060123-4.html September 5, 2017 https://web.archive.org/web/20160304195411/http://georgewbush-whitehouse.archives.gov/news/releases/2006/01/print/20060123-4.html March 4, 2016 live and that: What I'm talking about is the intercept of certain communications emanating between somebody inside the United States and outside the United States; and one of the numbers would be reasonably suspected to be an al Qaeda link or affiliate. In other words, we have ways to determine whether or not someone can be an al Qaeda affiliate or al Qaeda. And if they're making a phone call in the United States, it seems like to me we want to know why. This is a – I repeat to you, even though you hear words, "domestic spying," these are not phone calls within the United States. It's a phone call of an al Qaeda, known al Qaeda suspect, making a phone call into the United States ... I told you it's a different kind of war with a different kind of enemy. If they're making phone calls into the United States, we need to know why – to protect you. During a speechThe White House January 19, 2006 Vice President's Remarks on Iraq and the War on Terror at the Manhattan Institute for Policy Research https://georgewbush-whitehouse.archives.gov/news/releases/2006/01/print/20060119-5.html September 5, 2017 https://web.archive.org/web/20180316152558/https://georgewbush-whitehouse.archives.gov/news/releases/2006/01/print/20060119-5.html March 16, 2018 live in New York on January 19, 2006 Vice President Cheney commented on the controversy, stating that a "vital requirement in the war on terror is that we use whatever means are appropriate to try to find out the intentions of the enemy," that complacency towards further attack was dangerous, and that the lack of another major attack since 2001 was due to "round the clock efforts" and "decisive policies", and "more than luck." He stated: [B]ecause you frequently hear this called a 'domestic surveillance program.' It is not. We are talking about international communications, one end of which we have reason to believe is related to al Qaeda or to terrorist networks affiliated with al Qaeda.. a wartime measure, limited in scope to surveillance associated with terrorists, and conducted in a way that safeguards the civil liberties of our people. right|thumb|General Michael Hayden In a press conference on December 19 held by both Attorney General Gonzales and General Michael Hayden, the Principal Deputy Director for National Intelligence, General Hayden claimed, "This program has been successful in detecting and preventing attacks inside the United States." He stated that even an emergency authorization under FISA required marshaling arguments and "looping paperwork around". Hayden implied that decisions on whom to intercept under the wiretapping program were being made on the spot by a shift supervisor and another person, but refused to discuss details of the specific requirements for speed. Beginning in mid-January 2006 public discussion increased on the legality of the terrorist surveillance program.Eric Lichtblau Administration Lays Out Legal Case for Wiretapping Program January 19, 2006 The New York Times https://www.nytimes.com/2006/01/19/politics/19cndnsa.html May 20, 2010 DOJ sent a 42-page white paper to Congress on January 19, 2006 stating the grounds upon which it was felt the NSA program was legal, which restated and elaborated on reasoning Gonzales used at the December press conference.hotlineblog US Department of Justice White Paper on NSA Legal Authorities http://hotlineblog.nationaljournal.com/archives/White%20Paper%20on%20NSA%20Legal%20Authorities.pdf https://web.archive.org/web/20060218054524/http://hotlineblog.nationaljournal.com/archives/White%20Paper%20on%20NSA%20Legal%20Authorities.pdf dead February 18, 2006 January 19, 2006 Gonzales spoke again on January 24, claiming that Congress had given the President the authority to order surveillance without going through the courts, and that normal procedures to order surveillance were too slow and cumbersome.Attorney General Alberto Gonzales' speech at Georgetown University January 24, 2006. General Hayden stressed the NSA's respect for the Fourth Amendment, stating at the National Press Club on January 23, 2006, "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."John Pike http://www.globalsecurity.org/intell/library/news/2006/intell-060123-dni01.htm General Hayden's address to the National Press Club on January 23, 2006 Globalsecurity.org January 23, 2006 February 23, 2013 https://web.archive.org/web/20130327223654/http://www.globalsecurity.org/intell/library/news/2006/intell-060123-dni01.htm March 27, 2013 live In a speech on January 25, 2006, President Bush said, "I have the authority, both from the Constitution and the Congress, to undertake this vital program,"The White House January 25, 2006 President Visits National Security Agency https://georgewbush-whitehouse.archives.gov/news/releases/2006/01/print/20060125-1.html telling the House Republican Caucus at their February 10 conference in Maryland that "I wake up every morning thinking about a future attack, and therefore, a lot of my thinking, and a lot of the decisions I make are based upon the attack that hurt us."Jennifer Loven Update 19: Bush Reveals Rationale Behind Surveillance February 10, 2006 Forbes https://www.forbes.com/technology/ebusiness/feeds/ap/2006/02/10/ap2517004.html https://web.archive.org/web/20060227202800/http://www.forbes.com/technology/ebusiness/feeds/ap/2006/02/10/ap2517004.html dead February 27, 2006 President Bush reacted to a May 10 domestic call records article by restating his position, that it is "not mining or trolling through the personal lives of millions of innocent Americans".Bush says U.S. not 'trolling through personal lives' CNN May 11, 2006 http://www.cnn.com/2006/POLITICS/05/11/nsa.phonerecords/index.html dead https://web.archive.org/web/20060615052647/http://www.cnn.com/2006/POLITICS/05/11/nsa.phonerecords/index.html June 15, 2006 Congressional response Three days after news broke about the NSA program, a bipartisan group of Senators—Democrats Dianne Feinstein, Carl Levin, Ron Wyden and Republicans Chuck Hagel and Olympia Snowe, wrote to the Judiciary and Intelligence Committee chairs and ranking members requesting the two committees to "seek to answer the factual and legal questions" about the program. On January 20, 2006, in response to the administration's asserted claim to base the NSA program in part on the AUMF, Senators Leahy and Kennedy introduced Senate Resolution 350 that purported to express a "sense of the Senate" that the AUMF "does not authorize warrantless domestic surveillance of United States citizens". It was not reported out of committee. In introducing their resolution to committee,The following statements are taken from the Library of Congress records, pages S137 – S139. Online versions: p.137, p.138, p.139 (PDF). they quoted Supreme Court Justice Sandra Day O'Connor's opinion that even war "is not a blank check for the President when it comes to the rights of the Nation's citizens". Additionally, they asserted that the DOJ legal justification was a "manipulation of the law" similar to other "overreaching" and "twisted interpretations" in recent times. Leahy and Kennedy also asserted that Gonzales had "admitted" at a press conference on December 19, 2005, that the Administration did not seek to amend FISA to authorize the NSA spying program because it was advised that "it was not something we could likely get." (However, as noted below under "Proposed Amendments to FISA", Gonzales made clear that what he actually said was that such an amendment was "not something [they] could likely get" without disclosing the nature of the program and operational limitations and that it was believed that such disclosure would be damaging to national security.) Leahy and Kennedy asserted that the procedures adopted for the NSA program, specifically the 45-day reapproval cycle was "not good enough" because the review group were executive branch appointees. Finally, they concluded that Congressional and Judicial oversight were fundamental and should not be unilaterally discarded. In February 2008, the Bush administration backed a new version of FISA that would grant telecom companies retroactive immunity from lawsuits stemming from surveillance. On March 14, the House passed a bill that did not grant such immunity. Anonymity networks Edward Snowden copied and leaked thousands of classified NSA documents to journalists. The information revealed the access of some federal agencies to the public's online identity and led to wider use anonymizing technologies. In late 2013, soon after Snowden's leaks, it was loosely calculated that encrypted browsing software, such as Tor, I2P and Freenet had "combined to more than double in size ... and approximately 1,050,000 total machines 'legitimately' use the networks on a daily basis, amounting to an anonymous population that is about 0.011 percent of all machines currently connected to the Internet."O'Neill Patrick Tor and the rise of anonymity networks http://www.dailydot.com/technology/tor-freenet-i2p-anonymous-network/ The Daily Dot October 24, 2013 April 21, 2016 https://web.archive.org/web/20160509021940/http://www.dailydot.com/technology/tor-freenet-i2p-anonymous-network/ May 9, 2016 live Given that these tools are designed to protect the identity and privacy of their users, an exact calculation of the growth of the anonymous population cannot be accurately rendered, but all estimates predict rapid growth. These networks were accused of supporting illegal activity. They can be used for the illicit trade of drugs, guns and pornography. However, Tor executive director Roger Dingledine claimed that the "hidden services" represent only 2 percent of total traffic on Tor's network.Greenberg Andy Over 80 Percent of Dark-Web Visits Relate to Pedophilia, Study Finds https://www.wired.com/2014/12/80-percent-dark-web-visits-relate-pedophilia-study-finds/ Wired March 10, 2017 https://web.archive.org/web/20170313135841/https://www.wired.com/2014/12/80-percent-dark-web-visits-relate-pedophilia-study-finds/ March 13, 2017 live This fact suggests that the large majority of those who use it do so in order to protect their normal browsing activity, an effort to protect their personal values of privacy rather than to participate in illegal activity. Trade-off between security and liberty Polls analyzed the trade-off between security and liberty. A June 2015 poll conducted by Gallup asked participants if the US should take all the necessary steps to prevent terrorist attacks even if civil liberties are violated. 30% of respondents agreed: 65% instead said take steps, but do not violate civil liberties.Jones Jeffrey Americans Still Say Liberties Should Trump Anti-Terrorism http://news.gallup.com/poll/183548/americans-say-liberties-trump-anti-terrorism.aspx Gallup June 10, 2015 27 October 2017 https://web.archive.org/web/20171107011322/http://news.gallup.com/poll/183548/americans-say-liberties-trump-anti-terrorism.aspx November 7, 2017 live In a 2004 Pew poll, 60% of respondents rejected the idea of sacrificing privacy and freedom in the name of security.Gao George What Americans think about NSA surveillance, national security and privacy http://www.pewresearch.org/fact-tank/2015/05/29/what-americans-think-about-nsa-surveillance-national-security-and-privacy/ Pew Research Center May 29, 2015 November 9, 2017 https://web.archive.org/web/20171110004911/http://www.pewresearch.org/fact-tank/2015/05/29/what-americans-think-about-nsa-surveillance-national-security-and-privacy/ November 10, 2017 live By 2014 a similar Pew poll found that 74% of respondents preferred privacy, while 22% said the opposite. Pew noted that post 9/11 surveys revealed that in the periods during which prominent incidents that related to privacy and security first came up, the majority of respondents favored an ideology of "security first", while maintaining that a dramatic reduction in civil liberties should be avoided. Events often caused Americans to back allow government to investigate suspected terrorists more effectively, even if those steps might infringe on the privacy of ordinary citizens. The majority of respondents reject steps that translate into extreme intrusion into their lives.Raine Lee Maniam Shiva Americans feel the tensions between privacy and security concerns http://www.pewresearch.org/fact-tank/2016/02/19/americans-feel-the-tensions-between-privacy-and-security-concerns/ Pew Research February 19, 2016 November 9, 2017 https://web.archive.org/web/20171110061655/http://www.pewresearch.org/fact-tank/2016/02/19/americans-feel-the-tensions-between-privacy-and-security-concerns/ November 10, 2017 live Various administrations claimed that reducing privacy protections reduces obstacles that anti-terrorism agencies face attempting to foil terrorist attacks and that fewer privacy protections makes it more difficult for terrorist groups to operate.Dragu Tiberiu Is There a Trade-off between Security and Liberty? Executive Bias, Privacy Protections, and Terrorism Prevention The American Political Science Review February 2011 105 1 65 41480827 10.1017/S0003055410000614 144032377 https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID2138317_code1072454.pdf?abstractid=1566935&mirid=2 See also Clapper v. Amnesty International – 2013 Supreme Court decision Communications Assistance for Law Enforcement Act Criticism of the war on terror Data mining Deep packet inspection ECHELON Edward Snowden Electronic Privacy Information Center v. Department of Justice Foreign Intelligence Surveillance Act General Michael Hayden Global surveillance disclosures (1970–2013) Global surveillance whistleblowers Hepting v. AT&T HTLINGUAL – a CIA project to intercept mail destined for the Soviet Union and China that operated from 1952 until 1973. Information Awareness Office In the First Circle, Alexander Solzhenytsin Mark Riebling Mass surveillance NSA call database NSA domestic surveillance Omnibus Crime Control and Safe Streets Act of 1968 PRISM – the program that replaced the warrantless surveillance program Reichstag Fire Decree Room 641A Secure communication Terrorist Surveillance Program – details of the program itself Trailblazer Project References 30em Obama Takes a Hard Line Against Leaks to Press Scott Shane The New York Times June 11, 2010 https://www.nytimes.com/2010/06/12/us/politics/12leak.html February 22, 2017 https://web.archive.org/web/20170215004616/http://www.nytimes.com/2010/06/12/us/politics/12leak.html February 15, 2017 live "Marcus Declaration" Document from Hepting vs AT&T lawsuit from 2006. Reported by Ryan Singel in Wired Magazine, article "AT&T 'Spy Room' Documents Unsealed; You've Already Seen Them" https://web.archive.org/web/20140122162440/http://www.wired.com/politics/law/news/2007/06/spy_room January 22, 2014 6/13/07, Documents posted at the Electronic Frontier Foundation https://web.archive.org/web/20081016100545/http://www.eff.org/ October 16, 2008 website, here: http://eff.org/legal/cases/att https://web.archive.org/web/20081011182610/http://www.eff.org/legal/cases/att/ October 11, 2008 (File "SER marcus decl.pdf") "Klein Exhibit" Document from Hepting vs AT&T lawsuit from 2007. Reported by Ryan Singel in Wired Magazine, article "AT&T 'Spy Room' Documents Unsealed; You've Already Seen Them" https://web.archive.org/web/20140122162440/http://www.wired.com/politics/law/news/2007/06/spy_room January 22, 2014 6/13/07, Documents posted at the Electronic Frontier Foundation https://web.archive.org/web/20081016100545/http://www.eff.org/ October 16, 2008 website, here: http://eff.org/legal/cases/att https://web.archive.org/web/20081011182610/http://www.eff.org/legal/cases/att/ October 11, 2008 (File "SER_klein_exhibits.pdf") External links NSA Spying Scandal is repeating Hewlett-Packard Spying Scandal (2006) story – Read HP Pretexting Scandal (pdf) by Faraz Davani, publisher Scribd, August 14, 2011 U.S. Department of Justice White Paper on NSA Legal Authorities, Legal Authorities Supporting the Activities of the National Security Agency Described by the President, January 19, 2006 Department of Justice Letter to the Senate Select Intelligence Committee December 22 (PDF) via Federation of American Scientists Justice Dept Supplemental Brief to the U.S. Foreign Intelligence Court of Review 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 FindLaw News Document Archive for National Security Agency (NSA) Cornell Law: US CODE Title 50, Chapter 36—Foreign Intelligence Surveillance FAS FISA Resource Page Response by the American Bar Association: Letter to George W. Bush (pdf) from ABA President Michael S. Greco, dated February 13, 2006 Resolution https://web.archive.org/web/20090326213933/http://www.abanet.org/op/greco/memos/aba_house302-0206.pdf March 26, 2009 (26-page pdf) from the ABA denouncing the warrantless wiretaps David Alan Jordan, Decrypting the Fourth Amendment: Warrantless NSA Surveillance and the Enhanced Expectation of Privacy Provided by Encrypted Voice over Internet Protocol – Boston College Law Review, Vol. 47, 2006 Washington Monthly blog post on an opposed conservative reaction An Open Letter to George Bush partly on this issue FindLaw News Document Archive for National Security Agency (NSA) The New York Review of Books: ON NSA SPYING: A LETTER TO CONGRESS (Volume 53, Number 2, February 9, 2006) JENNIFER VAN BERGEN, The Unitary Executive: Is The Doctrine Behind the Bush Presidency Consistent with a Democratic State? Findlaw (Monday, January 9, 2006) The Secret Sharer: Is Thomas Drake an enemy of the state? A reportage by The New Yorkers Jane Mayer from May 23, 2011 about the prosecution against Thomas Andrews Drake in general and in particular in the context of the NSA warrantless surveillance controversy Swire, Peter P., "The System of Foreign Intelligence Surveillance Law" – George Washington Law Review, Vol. 72, 2004 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 Washington Posts overview: NSA: Spying at Home ACLU v. NSA ruling, which held that the NSA warrantless surveillance program is illegal and unconstitutional and must be halted immediately. "NSA warrantless wiretapping is illegal" argument diagram https://web.archive.org/web/20070927090729/http://honestargument.com/arg/8 September 27, 2007 at HonestArgument.com "So Judge, How Do I Get That FISA Warrant?": The Policy and Procedure for Conducting Electronic Surveillance, The Army Lawyer, October 1997 Amicus Filed in NSA Wiretapping Case News War: Secrets, Sources & Spin, Part II Frontline Frontline (American TV program) PBS WGBH February 13, 2007 25 2 https://www.pbs.org/wgbh/frontline/documentary/newswar/? August 28, 2021 Spying on the Home Front Frontline PBS WGBH May 15, 2007 25 10 https://www.pbs.org/wgbh/frontline/documentary/homefront/ April 8, 2025 Cheney's Law Frontline PBS WGBH October 16, 2007 25 12 https://www.pbs.org/wgbh/frontline/documentary/cheney/ March 31, 2025 Top Secret America Frontline PBS WGBH April 30, 2013 https://www.pbs.org/wgbh/frontline/documentary/topsecretamerica/ April 8, 2025 United States of Secrets (Part One): The Program Frontline PBS WGBH May 13, 2014 32 9 https://www.pbs.org/wgbh/frontline/documentary/united-states-of-secrets/ April 8, 2025 Category:Counterterrorism in the United States Category:Emergency laws in the United States Category:Espionage scandals and incidents Category:George W. 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