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The NSA warrantless surveillance controversy concerns surveillance of persons within the United States incident to the collection of foreign intelligence by the U.S. National Security Agency (NSA) as part of the war on terror. Under this program, referred to by the Bush administration as the "terrorist surveillance program", the NSA is authorized by executive order to monitor, without warrants, phone calls, e-mails, Internet activity, and text messaging, and other communication involving any party believed by the NSA to be outside the U.S., even if the other end of the communication lies within the U.S. The exact scope of the program is not known, but the NSA is or was provided total, unsupervised access to all fiber-optic communications going between some of the nation's major telecommunication companies' major interconnect locations, including phone conversations, email, web browsing, and corporate private network traffic. Shortly before Congress passed a new law in August of 2007 that legalized warrantless surveillance, the Protect America Act of 2007, critics stated that such "domestic" intercepts required FISC authorization under the Foreign Intelligence Surveillance Act,. The Bush administration maintains that the authorized intercepts are not domestic but rather foreign intelligence integral to the conduct of war and that the warrant requirements of FISA were implicitly superseded by the subsequent passage of the Authorization for Use of Military Force Against Terrorists (AUMF). FISA makes it illegal to intentionally engage in electronic surveillance under appearance of an official act or to disclose or use information obtained by electronic surveillance under appearance of an official act knowing that it was not authorized by statute; this is punishable with a fine of up to $10,000 or up to five years in prison, or both. In addition, the Wiretap Act prohibits any person from illegally intercepting, disclosing, using or divulging phone calls or electronic communications; this is punishable with a fine or up to five years in prison, or both.
Attorney General Alberto Gonzales confirmed the existence of the program, first reported in a December 16, 2005 article in The New York Times . The Times had posted the exclusive story on their website the night before, after learning that the Bush administration was considering seeking a Pentagon Papers-style court injunction to block its publication. Critics of The Times have openly alleged that executive editor Bill Keller had knowingly withheld the story from publication since before the 2004 Presidential election, and that the story that was ultimately first published by The Times was essentially the same one that reporters James Risen and Eric Lichtblau had first submitted at that time.
Gonzales stated that the program authorizes warrantless intercepts where the government "has a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda." and that one party to the conversation is "outside of the United States". The revelation raised immediate concern among elected officials, civil right activists, legal scholars and the public at large about the legality and constitutionality of the program and the potential for abuse. Since then, the controversy has expanded to include the press's role in exposing a classified program, the role and responsibility of Congress in its executive oversight function and the scope and extent of Presidential powers under Article II of the Constitution.
Developments
In mid-August 2007, a three-judge panel of the United States Court of Appeals for the Ninth Circuit heard arguments in two lawsuits challenging the surveillance program. The appeals were the first to reach the court after dozens of civil suits against the government and telecommunications companies over NSA surveillance were consolidated last year before the chief judge of the Ninth Circuit federal trial court, Vaughn R. Walker. One of the cases is a class action against AT&T, focusing on allegations that the company provided the NSA with its customers' phone and Internet communications for a vast data-mining operation. Plaintiffs in the second case are an Islamic charity and two of its lawyers.
On November 16, 2007, the three judges - M. Margaret McKeown, Michael Daly Hawkins, and Harry Pregerson - issued a 27-page ruling that the charity, the Al-Haramain Islamic Foundation, could not introduce a key piece of evidence in its case 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."
In an August 14, 2007 question-and-answer session with the El Paso Times newspaper which was published on August 22nd, Director of National Intelligence Mike McConnell confirmed for the first time that the private sector assisted with the warrantless surveillance program. "Now if you play out the suits at the value they're claimed, it would bankrupt these companies," McConnell said, arguing that they deserve immunity for their help. Plaintiffs in the AT&T suit subsequently filed a motion with the court to have McConnell's admission of corporate cooperation with the NSA admitted as evidence in their case.
The program may face an additional legal challenge in the appeal of two Albany, New York men convicted of criminal charges in an FBI anti-terror sting operation. Their lawyers contend that they have evidence the men were the subjects of NSA electronic surveillance, which was used to obtain their convictions but not made public at trial or made available in response to discovery requests by defense counsel at that time.
In an unusual related legal development, on October 13, 2007, The Washington Post reported that Joseph P. Nacchio, the former CEO of Qwest Communications, is appealing an April 2007 conviction on 19 counts of insider trading by alleging that the government withdrew opportunities for contracts worth hundreds of millions of dollars after Qwest refused to participate in an unidentified National Security Agency program that the company thought might be illegal. According to court documents unsealed in Denver in early October as part of Nacchio's appeal, the NSA approached Qwest about participating in a warrantless surveillance program more than six months before the Sept. 11, 2001 attacks which have been cited by the government as the main impetus for its efforts. Nacchio is using the allegation to try to show why his stock sale should not have been considered improper. 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.
On August 17, 2007, the Foreign Intelligence Surveillance Court said it would consider a request filed by the American Civil Liberties Union which asked the intelligence court to make public its recent, classified rulings on the scope of the government’s wiretapping powers. Judge Colleen Kollar-Kotelly, presiding judge of the FISC, signed an order calling the A.C.L.U.’s motion “an unprecedented request that warrants further briefing.” The FISC ordered the government to respond on the issue by Aug. 31, saying that anything involving classified material could be filed under court seal. On the August 31 deadline, the National Security Division of the Justice Department filed a response in opposition to the ACLU's motion with the court.
In previous developments, the case ACLU v. NSA was dismissed on July 6, 2007 by the United States Court of Appeals for the Sixth Circuit. The court did not rule on the spying program's legality. Instead, its 65-page opinion declared that the American Civil Liberties Union and the others who brought the case - including academics, lawyers and journalists - did not have the legal standing to sue because they could not demonstrate that they had been direct targets of the clandestine surveillance. Detroit District Court judge Anna Diggs Taylor had originally ruled on August 17, 2006 that the program is illegal under FISA as well as unconstitutional under the First and Fourth Amendments of the United States Constitution. 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." On February 19, 2008, the U.S. Supreme Court, without comment, turned down an appeal from the American Civil Liberties Union, letting stand the earlier decision dismissing the case.
On September 28, 2006 the U.S. House of Representatives passed the Electronic Surveillance Modernization Act (H.R. 5825). That bill now has been passed to the U.S. Senate where three competing, mutually-exclusive, bills -- the Terrorist Surveillance Act of 2006 (S.2455) (the DeWine bill), the National Security Surveillance Act of 2006 (S.2455) (the Specter bill), and the Foreign Intelligence Surveillance Improvement and Enhancement Act of 2006 (S.3001) (the Specter-Feinstein bill) -- were themselves referred for debate to the full Senate by the Senate Judiciary Committee on September 13, 2006. Each of these bills would in some form broaden the statutory authorization for electronic surveillance, while still subjecting it to so
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