National Security Agency
(NSA) Eavesdropping
LATEST DEVELOPMENTS: The Center recently testified before the House
Permanent Select Committee on Intelligence on the dramatic changes to the
rights of Americans pushed through Congress by the administration in
August. CNSS Deputy Director, Lisa
Graves, notes that:
Although
the administration initially said it was having difficulty obtaining access to
terrorists’ foreign-to-foreign communications that transit the US, the PAA
authorizes warrantless acquisition of vastly more
communications than simply those among foreign terrorists or even other foreign
nationals abroad…. The breadth of the statute’s exemptions from FISA’s warrant requirements is, in a word,
breathtaking. If not repealed, the PAA will undoubtedly sweep in
increasing numbers of American communications, with no independent protections
for their rights. Moreover, history has demonstrated that political
leaders will—especially in times of fear such as this period following the
tragic attacks of 9/11—unilaterally and secretly read even narrow
authorizations broadly.
And
globalization has meant an exponential increase in international communications
of Americans with friends, family and businesses—over 40 million Americans
travel out of the country each year, for vacations, jobs, missionary work,
health care or adoptions; almost half a million Americans serve in the military
or work overseas for the government; a couple million more live overseas; and
about a quarter-million Americans study abroad every year. In addition,
more Americans work for or deal with foreign-owned companies than ever before
in history, from J.C. Penney’s to Dr. Pepper. . . This globalization
calls for increased protections for the privacy of Americans’ communications,
not making them the same as those who do not have the Constitution’s
protection.
Please
read the full statement of Kate Martin and Lisa Graves: “The Foreign
Intelligence Surveillance Act and Effectively Protecting the Liberty and
Security of Americans.”
President Bush Authorized Unlawful
Domestic Spying After 9/11
On December
16, 2005, the New York Times reported
that the President authorized the National Security Agency (NSA) to eavesdrop
on individuals within the
The NSA’s surveillance program violates the Foreign
Intelligence Surveillance Act (FISA) and the Constitution. As the Director of CNSS explained, “This is
as shocking a revelation as we have ever seen from the Bush administration. It
is, I believe, the first time a President has authorized government agencies to
violate a specific criminal prohibition and eavesdrop on Americans.” The
Washington Post, 12/16/05. Martin stated
that “The President apparently believed that he could order government
officials to commit a crime, and if that’s the case then it is an astounding
and frightening incident of lawlessness.” Kate Martin quoted in The Guardian,
12/17/05. In the days immediately following the Center wrote a memorandum on
why the “President’s authorization of domestic spying
violates specific criminal prohibition,” December 20, 2005. On
January 20, 2006, CNSS Director Kate Martin testified before members of the
House Judiciary Committee and others of the House of Representatives that the
surveillance program is illegal.
HISTORICAL
Church Committee:
The current legal framework
for NSA surveillance was created, in part, in response to revelations of
widespread abuses by the intelligence community in the 1960’s and 1970’s. The
abuses were the subject of an extensive investigation by the Select Committee to
Study Governmental Relations (Church Committee) in the 1970’s. Details on the investigation are contained in the
following documents:
·
Book II: Intelligence
Activities and the Rights of Americans, Final Report of the Church
Committee, S. Rep. 94-755 (1976).
·
National Security
Agency Surveillance Affecting Americans, Book III: Supplementary
Detailed Staff Reports on Intelligence Activities and the Rights of Americans (1976).
·
Volume 5: The National
Security Agency and Fourth Amendment Rights: Hearings
Before the Select Committee to Study Governmental Operations with Respect to
Intelligence Activities, 94th Cong. (Oct. 29 and Nov. 6, 1975). Available at http://www.aarclibrary.org/publib/church/reports/vol5/contents.htm.
CNSS report on NSA abuses:
Morton H. Halperin, “NSA: More Abuses,” First Principles,
(November 1975): 15-16.
The NSA on its Legal Authorities and Surveillance of Americans
In
February 2000, the NSA issued a report required by Intelligence Authorization
of 2000: “Legal Standards for the Intelligence
Community in Conducting Electronic Surveillance.” Available at http://www.fas.org/irp/nsa/standards.html.
In April 2000, NSA Director Lt. Gen.
Michael V. Hayden USAF, testified before the House
Permanent Select Comm. on Intelligence.
Legal Standards Governing the NSA
The National Security Act
of 1947, 50 U.S.C. 401 et seq. This established the
The Foreign Intelligence
Surveillance Act of 1978, (FISA)
50 U.S.C. 1801 et seq. For the full legislative history, visit the FISA page.
Executive Order No. 12333 of United States
Intelligence Activities (Dec. 4,
1981) President
Reagan issued this executive order governing all intelligence activities.
Department
of Defense Directive 5240.1 R, “Activities
of DoD Intelligence Components that Affect
Department of Defense Directive 5240.1, (Apr. 25, 1988) (authorizing publication of 5240.1 R). These directives were issued pursuant to
Executive Order 12333.
NSA/
NSA/CSS 1-23,
Procedures
Governing NSA/
See also CNSS’ FISA
PAGE
Developments in 2006:
In February,
2006, the special court created to issue secret electronic surveillance orders,
the FISA court, called on the Department of Justice to brief the court on the warrantless surveillance program. On February, 28, 2006, CNSS, in collaboration
with the Constitution Project, filed a memorandum with the FISA
court arguing that warrantless surveillance within
the
On
Since
the story of illegal NSA surveillance broke, over twenty lawsuits have been
filed in federal district courts. Many
challenge the legality of the government’s actions. Others challenge the legality of private
telecommunications companies’ participation in the program without proper legal
authorization from the government. The
government has moved to have many of the cases dismissed on the grounds that
judicial review of the allegations of illegal surveillance would reveal “state
secrets” and thereby endanger national security.
On
June 16, 2006, the Center filed an amicus brief challenging the government’s invocation of the state secrets
privilege in a case alleging that AT&T had permitted the NSA to eavesdrop
on its customers without a warrant. The U.S. District Court for the Northern District of California
subsequently denied the government’s motion to dismiss on state secrets
grounds. See Hepting v. AT&T, documents
available at http://www.eff.org/legal/cases/att/.
Many of the other cases challenging the illegal surveillance program were later
transferred to the U.S. District Court for the Northern District of California.
Senate
Judiciary Committee Chairman Arlen Specter (R-Pa.) introduced legislation that
would give congressional sanction to the unconstitutional surveillance
program. On August, 3, 2006, more than
30 groups from across the political spectrum sent a letter to Senator Specter urging
him to abandon a proposal that would authorize unchecked, warrantless
surveillance of Americans in the
The Chairmen
of the House Committee on the Judiciary and the Permanent Select Committee on
Intelligence have also introduced legislation that would permit the government
to eavesdrop on the international calls of persons in the
A prominent group of
former national security officials have issued a statement opposing legislation
radically amending the Foreign Intelligence Surveillance Act (FISA). The former officials, including two former
FBI directors and a former NSA general counsel, strongly oppose legislation
that makes the FISA optional rather than mandatory. Bipartisan group of
former national security officials who oppose administration backed FISA
legislation.
Developments in 2007:
The Chief Judge of the Foreign Intelligence
Surveillance Court informed Congress that the court has no objection to sharing
with the Senate Judiciary Committee the orders authorizing wiretapping of
people in the US who have been subject to warrantless
wiretapping by the administration. Attorney General Gonzales, however, refused to
agree to sharing that information with the Committee
during his hearing on Tuesday, saying he needs to consult with his “principal,”
President Bush. For more on these
developments please visit our NSA page.
For more information please follow the links below and listen to Center
Director Kate Martin’s analysis on the NewsHour with Jim Lehrer. On January
31, 2007, Attorney General Gonzales announced that he would share the orders
and applications with Senator Patrick Leahy and Senator Arlen Specter, but
these documents have not been shared with other members of the Senate Judiciary
Committee or other interested Members of Congress. The Center has filed a Freedom of Information
Act request for the legal reasoning behind such order, given the administration
statements that the orders were “creative” and “pushed the envelope” and that
it took time for the administration to get a judge “comfortable” with the
administration’s arguments.
Letter from Senator
Leahy and Senator Specter to Chief Judge of the Foreign Intelligence Court,
Judge Kollar-Kotelly, January 17, 2007.
Response from Judge Kollar-Kotelly to Senator Leahy and Senator Specter,
January 17, 2007.
Letter from Attorney General Gonzales to
Senator Leahy and Specter, January 17, 2007.
Attorney
General Gonzales’ response to questions concerning the Terrorist Surveillance
Program, January 18, 2007.
Congressional
Press Releases
·
Statement of Senator
Russ Feingold
·
Statement of Speaker of
the House Rep. Nancy Pelosi
·
Statement of Rep.
Sylvester Reyes
·
Statement of Senator Patrick Leahy
·
Statement of Senator Specter
Articles
·
Newsday, “Wiretap Policy Reversal,”
Tom Brune, January 18, 2007. Featuring comments by CNSS Director, Kate
Martin.
·
The New York Times, “Court to Oversee U.S.
Wiretapping in Terror Cases,” Eric Lichtblau and David Johnston, January 18, 2007.
·
The
·
Congressional Quarterly, “Bush Change on NSA
Surveillance Might Undercut Congressional Oversight,” By Keith Perine and Seth Stern, January 18, 2007.