NSA electronic surveillance program
Encyclopedia
An electronic surveillance program, whose actual name is currently unknown, was implemented by the National Security Agency
(NSA) of the United States in the wake of the September 11, 2001 attacks
. It was part of the President's Surveillance Program
which was in turn conducted under the overall umbrella of the War on Terrorism
. The NSA, a signals intelligence agency, implemented the program to intercept al Qaeda communications overseas where at least one party is not a US person. In 2005 the New York Times disclosed that technical glitches resulted in some of the intercepts including communications were "purely domestic" in nature, igniting the NSA warrantless surveillance controversy
. Later works, such as James Bamford
's The Shadow Factory
, would describe how the nature of the domestic surveillance was much, much more widespread than initially disclosed. In a 2011 New Yorker article, former NSA worker Bill Binney said that his people told him "They’re getting billing records on U.S. citizens! They’re putting pen registers on everyone in the country!’”
The program was named the Terrorist Surveillance Program by the George W. Bush
administration in response to the NSA warrantless surveillance controversy
following disclosure of the program. It is claimed that this program operated without the judicial oversight
mandated by Foreign Intelligence Surveillance Act
(FISA), and legal challenges to the program are currently undergoing judicial review. Because the technical specifics of the program have not been disclosed, it is unclear if the program is subject to FISA. It is unknown if this is the original name of the program; the term was first used publicly by President Bush in a speech on January 23, 2006.
On August 17, 2006, U.S. District Judge Anna Diggs Taylor initially ruled the program unconstitutional and illegal. On appeal, the decision was overturned on procedural grounds and the lawsuit was dismissed without addressing the merits of the claims, although one further challenge is still pending in the courts. On January 17, 2007, Attorney General Alberto Gonzales
informed U.S. Senate leaders by letter http://graphics8.nytimes.com/packages/pdf/politics/20060117gonzales_Letter.pdf that the program would not be reauthorized by the president, but would be subjected to judicial oversight. "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.
The complete details of the program are not known, as the Bush administration contends that security concerns do not allow it to release details, and limit judicial authorization and review. Implemented sometime after the September 11, 2001 attacks, the existence of the program was not made public until a 2005 New York Times article. Additional details came to light in a May 2006 USA Today
article.
President Bush has stated that he has reviewed and reauthorized the program approximately every 45 days since it was implemented. The leadership of the Intelligence Committees
of both the House
and Senate
were briefed a number of times since initiation of the program. They were not, however, allowed to make notes or confer with others to determine the legal ramifications, or even to mention the existence of the program to the full membership of the Intelligence Committees. Further, the administration has even refused to identify to the public which members of the committees were briefed; it has however provided a complete list of these members to the Senate Intelligence Committee
.
The only physical evidence of the NSA program are documents accidentally leaked to lawyers for an al-Qaeda
front group the Al-Haramain Foundation
. These documents only contain logs of phone calls being placed, but not actual transcripts, suggesting the wiretapping program is merely a pen-register tap.
reported that the NSA has had a separate, previously undisclosed program in place since 9/11 to build a database of information about calls
placed within the United States, including phone numbers, and the date and duration of the calls. According to the article, phone companies AT&T
, Verizon, and Bell South disclosed the records to the NSA, while Qwest
did not. The article quotes an unnamed source that "it's the largest database ever assembled in the world." Most reports indicate that this is a different program than Terrorist Surveillance Program. The administration has not confirmed the existence of this aspect of the program.
secretly authorized the National Security Agency
to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying" as part of the War on Terror
.
According to the Times:
White House press secretary Scott McClellan
refused to comment on the story on December 16, exclaiming "there’s a reason why we don’t get into discussing ongoing intelligence activities, because it could compromise our efforts to prevent attacks from happening."
The next morning, the President gave a live eight-minute television address instead of his normal weekly radio address, during which he addressed the wiretap story directly:
In the address, President Bush implied he had approved the tracing of domestic calls originating or terminating overseas, stating the program would "make it more likely that killers like these 9/11 hijackers will be identified and located in time.'"
He forcefully defended his actions as "crucial to our national security" and claimed that the American people expected him to "do everything in my power, under our laws and Constitution, to protect them and their civil liberties" as long as there was a "continuing threat" from al-Qaeda. The President also had harsh words for those who broke the story, saying that they acted illegally. "The unauthorized disclosure of this effort damages our national security and puts our citizens at risk," he said.
The FBI began an investigation into the leaks surrounding this program in 2005, with 25 agents and 5 prosecutors on the case.
office, then headed by John Ashcroft
, balked in 2004 when asked to give approval of the program, and that then Deputy Attorney General
James B. Comey
"played a part in overseeing the reforms that were put in place in 2004." According to the Times, however, the oversight by the NSA shift supervisor continued to be unfettered by any pre-approval requirement. The story also pointed out that even some NSA employees thought that the warrantless surveillance program was illegal.
The Times had withheld the article from publication for over a year. Both editor in chief Bill Keller
and publisher Arthur Sulzberger Jr. were summoned by the President and White House officials in order to persuade the paper not to publish the story. The Times ran the story shortly before they would have been scooped by publication of their own reporter's book. The Times ombudsman speculates that the reason the backstory isn't being revealed is to protect sources. Russ Tice
claims he was a source for the story.
Also on February 5, USA Today
ran a story reporting that, according to seven telecommunications executives, the NSA had secured the cooperation of the main telecommunications companies in charge of international phone-calls, including AT&T
, MCI
and Sprint, in its efforts to eavesdrop without warrants on international calls.
put the controversy on the cover of its magazine and ran several stories inside summarizing what is known and speculations about it.
On May 22, 2006, Wired Magazine released the text of AT&T documents, currently under court seal in the EFF case, that allegedly describe NSA wiretap arrangements.
(FISA); Executive Order 12333
; and United States Signals Intelligence Directive 18. The primary legal challenge to the program currently in US courts is the suit brought by the Al-Haramain Foundation
. All other challenges to the program have been dismissed by U.S. courts.
Critics of the Bush administration have regularly compared the current NSA surveillance program to those of Richard Nixon
during the Vietnam War
(i.e. Operation Shamrock
, Operation Minaret, Church committee
). However, these programs occurred prior to the 1978 Foreign Intelligence Surveillance Act (FISA), which was passed into law in response to widespread concern over these abuses of domestic surveillance activities. According to opponents of this program that is exactly what the current program is doing and why FISA was enacted.
The American Civil Liberties Union
filed an ultimately unsuccessful lawsuit against the program in 2006 on behalf of journalists, scholars, and lawyers. In the initial trial, U.S. District Judge Anna Diggs Taylor on August 17, 2006 ruled the program was unconstitutional and imposed an injunction
against it. The Justice Department filed an appeal within hours of the ruling and requested a stay of the injunction pending appeal. While opposing the stay, the ACLU agreed to delay implementation of the injunction until September 7 to allow time for the judge to hear the appeal. On appeal, the U.S. Court of Appeals for the Sixth Circuit
dismissed the case without addressing the merits of the claims, holding 2-1 that the plaintiffs lacked standing
to bring the suit.
. The crux of the debate over legality is twofold, the main issues being:
FISA explicitly covers "electronic surveillance for foreign intelligence information" performed within the United States, and there is no court decision supporting the theory that the President's constitutional authority allows him to override statutory law. This was emphasized by fourteen constitutional law scholars, including the dean of Yale Law School
and the former deans of Stanford Law School
and the University of Chicago Law School
:
The American Bar Association
, the Congressional Research Service
, former Congressional representative of New York Elizabeth Holtzman
, former White House Counsel John Dean
, and lawyer/author Jennifer van Bergen have also criticized the administration's justification for conducting electronic surveillance within the US without first obtaining warrants as contrary to current U.S. law.
President Bush's former Assistant Deputy Attorney General for national security issues, David Kris
, and five former FISC
judges, one of whom resigned in protest, have also voiced their doubts as to the legality of a program bypassing FISA Stanford's Chip Pitts
has usefully distinguished between the core NSA eavesdropping program, the data mining program, and the use of National Security Letters to clarify that each continues to present serious legal problems despite the government's supposedly bringing them within the relevant laws.
Whistleblowers
National Security Agency
The National Security Agency/Central Security Service is a cryptologic intelligence agency of the United States Department of Defense responsible for the collection and analysis of foreign communications and foreign signals intelligence, as well as protecting U.S...
(NSA) of the United States in the wake of the September 11, 2001 attacks
September 11, 2001 attacks
The September 11 attacks The September 11 attacks The September 11 attacks (also referred to as September 11, September 11th or 9/119/11 is pronounced "nine eleven". The slash is not part of the pronunciation...
. It was part of the President's Surveillance Program
President's Surveillance Program
The President's Surveillance Program is a collection of secret intelligence activities authorized by then President of the United States George W. Bush after the September 11 attacks in 2001 as part of the War on Terrorism...
which was in turn conducted under the overall umbrella of the War on Terrorism
War on Terrorism
The War on Terror is a term commonly applied to an international military campaign led by the United States and the United Kingdom with the support of other North Atlantic Treaty Organisation as well as non-NATO countries...
. The NSA, a signals intelligence agency, implemented the program to intercept al Qaeda communications overseas where at least one party is not a US person. In 2005 the New York Times disclosed that technical glitches resulted in some of the intercepts including communications were "purely domestic" in nature, igniting the NSA warrantless surveillance controversy
NSA warrantless surveillance controversy
The NSA warrantless surveillance controversy concerns surveillance of persons within the United States during the collection of foreign intelligence by the U.S. National Security Agency as part of the war on terror...
. Later works, such as James Bamford
James Bamford
V. James Bamford is an American bestselling author and journalist who writes about United States intelligence agencies, most notably the National Security Agency.-Biography:...
's The Shadow Factory
The Shadow Factory
The Shadow Factory: The Ultra-Secret NSA from 9/11 to the Eavesdropping on America is a book on the National Security Agency by bestselling author James Bamford.- Fort Gordon, Georgia :...
, would describe how the nature of the domestic surveillance was much, much more widespread than initially disclosed. In a 2011 New Yorker article, former NSA worker Bill Binney said that his people told him "They’re getting billing records on U.S. citizens! They’re putting pen registers on everyone in the country!’”
The program was named the Terrorist Surveillance Program by the George W. Bush
George W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....
administration in response to the NSA warrantless surveillance controversy
NSA warrantless surveillance controversy
The NSA warrantless surveillance controversy concerns surveillance of persons within the United States during the collection of foreign intelligence by the U.S. National Security Agency as part of the war on terror...
following disclosure of the program. It is claimed that this program operated without the judicial oversight
Judicial oversight
Judicial oversight describes an aspect of the separation of powers prescribed by the Constitution of the United States, specifically the process whereby independent courts may review and restrain actions of the administrative and legislative branches...
mandated by Foreign Intelligence Surveillance Act
Foreign Intelligence Surveillance Act of 1978
America's Foreign Intelligence Surveillance Act of 1978 is an Act of Congress, , which prescribes procedures for the physical and electronic surveillance and collection of "foreign intelligence information" between "foreign powers" and "agents of foreign powers" America's Foreign Intelligence...
(FISA), and legal challenges to the program are currently undergoing judicial review. Because the technical specifics of the program have not been disclosed, it is unclear if the program is subject to FISA. It is unknown if this is the original name of the program; the term was first used publicly by President Bush in a speech on January 23, 2006.
On August 17, 2006, U.S. District Judge Anna Diggs Taylor initially ruled the program unconstitutional and illegal. On appeal, the decision was overturned on procedural grounds and the lawsuit was dismissed without addressing the merits of the claims, although one further challenge is still pending in the courts. On January 17, 2007, Attorney General Alberto Gonzales
Alberto Gonzales
Alberto R. Gonzales was the 80th Attorney General of the United States. Gonzales was appointed to the post in February 2005 by President George W. Bush. Gonzales was the first Hispanic Attorney General in U.S. history and the highest-ranking Hispanic government official ever...
informed U.S. Senate leaders by letter http://graphics8.nytimes.com/packages/pdf/politics/20060117gonzales_Letter.pdf that the program would not be reauthorized by the president, but would be subjected to judicial oversight. "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.
Description
While no specific information has been offered, the Bush administration has indicated that the wiretapping program targets communications where at least one party is outside the United States, and where it asserts that there are reasonable grounds to believe that one or more parties involved in the communication have ties to al Qaeda. However, anonymous sources have come forward stating a small number of instances where purely domestic calls were intercepted. These sources said the NSA accidentally intercepted these calls, apparently caused by technical glitches in determining whether a communication was in fact "international," probably due to the use of international cell phones.The complete details of the program are not known, as the Bush administration contends that security concerns do not allow it to release details, and limit judicial authorization and review. Implemented sometime after the September 11, 2001 attacks, the existence of the program was not made public until a 2005 New York Times article. Additional details came to light in a May 2006 USA Today
USA Today
USA Today is a national American daily newspaper published by the Gannett Company. It was founded by Al Neuharth. The newspaper vies with The Wall Street Journal for the position of having the widest circulation of any newspaper in the United States, something it previously held since 2003...
article.
President Bush has stated that he has reviewed and reauthorized the program approximately every 45 days since it was implemented. The leadership of the Intelligence Committees
United States Congressional committee
A congressional committee is a legislative sub-organization in the United States Congress that handles a specific duty . Committee membership enables members to develop specialized knowledge of the matters under their jurisdiction...
of both the House
United States House of Representatives
The United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House are established in Article One of the Constitution...
and Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
were briefed a number of times since initiation of the program. They were not, however, allowed to make notes or confer with others to determine the legal ramifications, or even to mention the existence of the program to the full membership of the Intelligence Committees. Further, the administration has even refused to identify to the public which members of the committees were briefed; it has however provided a complete list of these members to the Senate Intelligence Committee
United States Senate Select Committee on Intelligence
The United States Senate Select Committee on Intelligence is dedicated to overseeing the United States Intelligence Community—the agencies and bureaus of the federal government of the United States who provide information and analysis for leaders of the executive and legislative branches. The...
.
Pen Register Tap
Prominent legal scholar and blogger Orin Kerr has argued that the program is probably not a wiretap nor call database, but more likely to be a pen register (or tap and trace) tap. Unlike wiretaps, where the actual content of the call is monitored, or listened to, a pen register is a limited form of wiretap where only basic call data, such as originating and receiving telephone numbers, time of call and duration is logged. Due to the limited nature of the data, frequently characterized as "outside the envelope", pen register taps have much lower legal standard than conventional wiretaps, and not subject to fourth amendment protection.The only physical evidence of the NSA program are documents accidentally leaked to lawyers for an al-Qaeda
Al-Qaeda
Al-Qaeda is a global broad-based militant Islamist terrorist organization founded by Osama bin Laden sometime between August 1988 and late 1989. It operates as a network comprising both a multinational, stateless army and a radical Sunni Muslim movement calling for global Jihad...
front group the Al-Haramain Foundation
Al-Haramain Foundation
Al-Haramain Islamic Foundation was a charity foundation, based in Saudi Arabia, alleged by the U.S. Department of the Treasury in a September 2004 press release to have "direct links" with Osama bin Laden...
. These documents only contain logs of phone calls being placed, but not actual transcripts, suggesting the wiretapping program is merely a pen-register tap.
Call database
On May 10, 2006, USA TodayUSA Today
USA Today is a national American daily newspaper published by the Gannett Company. It was founded by Al Neuharth. The newspaper vies with The Wall Street Journal for the position of having the widest circulation of any newspaper in the United States, something it previously held since 2003...
reported that the NSA has had a separate, previously undisclosed program in place since 9/11 to build a database of information about calls
Call detail record
A call detail record , also known as call data record, is a data record produced by a telephone exchange or other telecommunications equipment documenting the details of a phone call that passed through the facility or device...
placed within the United States, including phone numbers, and the date and duration of the calls. According to the article, phone companies AT&T
AT&T
AT&T Inc. is an American multinational telecommunications corporation headquartered in Whitacre Tower, Dallas, Texas, United States. It is the largest provider of mobile telephony and fixed telephony in the United States, and is also a provider of broadband and subscription television services...
, Verizon, and Bell South disclosed the records to the NSA, while Qwest
Qwest
Qwest Communications International, Inc. was a large United States telecommunications carrier. Qwest provided local service in 14 western U.S. states: Arizona, Colorado, Idaho, Iowa, Minnesota, Montana, Nebraska, New Mexico, North Dakota, Oregon, South Dakota, Utah, Washington, and Wyoming.On April...
did not. The article quotes an unnamed source that "it's the largest database ever assembled in the world." Most reports indicate that this is a different program than Terrorist Surveillance Program. The administration has not confirmed the existence of this aspect of the program.
December 16, 2005
On December 16, 2005, The New York Times printed a story asserting that following 9/11, "President BushGeorge W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....
secretly authorized the National Security Agency
National Security Agency
The National Security Agency/Central Security Service is a cryptologic intelligence agency of the United States Department of Defense responsible for the collection and analysis of foreign communications and foreign signals intelligence, as well as protecting U.S...
to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying" as part of the War on Terror
War on Terror
The War on Terror is a term commonly applied to an international military campaign led by the United States and the United Kingdom with the support of other North Atlantic Treaty Organisation as well as non-NATO countries...
.
Under a presidential order signed in 2002, the intelligence agency monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible "dirty numbers" linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications.
According to the Times:
The White House asked The New York Times not to publish this article, arguing that it could jeopardize continuing investigations and alert would-be terrorists that they might be under scrutiny. After meeting with senior administration officials to hear their concerns, the newspaper delayed publication for a year to conduct additional reporting. Some information that administration officials argued could be useful to terrorists has been omitted.
White House press secretary Scott McClellan
Scott McClellan
Scott McClellan is a former White House Press Secretary for President George W. Bush, and author of a controversial No. 1 New York Times bestseller about the Bush Administration titled What Happened. He replaced Ari Fleischer as press secretary in July 2003 and served until May 10, 2006...
refused to comment on the story on December 16, exclaiming "there’s a reason why we don’t get into discussing ongoing intelligence activities, because it could compromise our efforts to prevent attacks from happening."
The next morning, the President gave a live eight-minute television address instead of his normal weekly radio address, during which he addressed the wiretap story directly:
I authorized the National Security Agency, consistent with U.S. law and the Constitution, to intercept the international communications of people with known links to al Qaeda and related terrorist organizations. Before we intercept these communications, the government must have information that establishes a clear link to these terrorist networks.
In the address, President Bush implied he had approved the tracing of domestic calls originating or terminating overseas, stating the program would "make it more likely that killers like these 9/11 hijackers will be identified and located in time.'"
He forcefully defended his actions as "crucial to our national security" and claimed that the American people expected him to "do everything in my power, under our laws and Constitution, to protect them and their civil liberties" as long as there was a "continuing threat" from al-Qaeda. The President also had harsh words for those who broke the story, saying that they acted illegally. "The unauthorized disclosure of this effort damages our national security and puts our citizens at risk," he said.
The FBI began an investigation into the leaks surrounding this program in 2005, with 25 agents and 5 prosecutors on the case.
January 1, 2006
On January 1, 2006, The New York Times printed a story revealing that aspects of the program were suspended for weeks in 2004. The Times story said the U.S. Attorney General'sUnited States Attorney General
The United States Attorney General is the head of the United States Department of Justice concerned with legal affairs and is the chief law enforcement officer of the United States government. The attorney general is considered to be the chief lawyer of the U.S. government...
office, then headed by John Ashcroft
John Ashcroft
John David Ashcroft is a United States politician who served as the 79th United States Attorney General, from 2001 until 2005, appointed by President George W. Bush. Ashcroft previously served as the 50th Governor of Missouri and a U.S...
, balked in 2004 when asked to give approval of the program, and that then Deputy Attorney General
United States Deputy Attorney General
United States Deputy Attorney General is the second-highest-ranking official in the United States Department of Justice. In the United States federal government, the Deputy Attorney General oversees the day-to-day operation of the Department of Justice, and may act as Attorney General during the...
James B. Comey
James B. Comey
James B. Comey, Jr. was United States Deputy Attorney General, serving in President George W. Bush's administration. As Deputy Attorney General, Comey was the second-highest ranking official in the United States Department of Justice and ran the day-to-day operations of the Department, serving in...
"played a part in overseeing the reforms that were put in place in 2004." According to the Times, however, the oversight by the NSA shift supervisor continued to be unfettered by any pre-approval requirement. The story also pointed out that even some NSA employees thought that the warrantless surveillance program was illegal.
The Times had withheld the article from publication for over a year. Both editor in chief Bill Keller
Bill Keller
Bill Keller is a writer for the The New York Times, of which Keller was the executive editor from July 2003 until September 2011. On June 2, 2011, Keller announced that he would step down from the position to become a full-time writer...
and publisher Arthur Sulzberger Jr. were summoned by the President and White House officials in order to persuade the paper not to publish the story. The Times ran the story shortly before they would have been scooped by publication of their own reporter's book. The Times ombudsman speculates that the reason the backstory isn't being revealed is to protect sources. Russ Tice
Russ Tice
Russell D. Tice is a former intelligence analyst for the U.S. Air Force, Office of Naval Intelligence, Defense Intelligence Agency and National Security Agency...
claims he was a source for the story.
January 3, 2006
On January 3, the independent news program Democracy Now!, and later on January 10 ABC news ran a story that, according to NSA whistleblower Russell Tice, the number of Americans affected by the range of NSA surveillance programs could be in the millions if the full extent of secret NSA programs is considered:
Tice says the technology exists to track and sort through every domestic and international phone call as they are switched through centers, such as one in New York, and to search for key words or phrases that a terrorist might use.
"If you picked the word 'jihad' out of a conversation," Tice said, "the technology exists that you focus in on that conversation, and you pull it out of the system for processing."
According to Tice, intelligence analysts use the information to develop graphs that resemble spiderwebs linking one suspect's phone number to hundreds or even thousands more.
"That would mean for most Americans that if they conducted, or you know, placed an overseas communication, more than likely they were sucked into that vacuum," Tice said.
January 17, 2006
On January 17 the New York Times reported, "[m]ore than a dozen current and former law enforcement and counterterrorism officials," some of whom knew of the domestic spying program, "said the torrent of tips [from NSA wiretapping] led them to few potential terrorists inside the country they did not know of from other sources and diverted agents from counterterrorism work they viewed as more productive."February 5, 2006
On February 5, The Washington Post noted that "Fewer than 10 U.S. citizens or residents a year, according to an authoritative account, have aroused enough suspicion during warrantless eavesdropping to justify interception of their (purely) domestic calls, as well. That step still requires a warrant from a federal judge, for which the government must supply evidence of probable cause." Also in the article: "The minimum legal definition of probable cause, said a government official who has studied the program closely, is that evidence used to support eavesdropping ought to turn out to be 'right for one out of every two guys at least.' Those who devised the surveillance plan, the official said, 'knew they could never meet that standard -- that's why they didn't go through'" the Foreign Intelligence Surveillance Court.Also on February 5, USA Today
USA Today
USA Today is a national American daily newspaper published by the Gannett Company. It was founded by Al Neuharth. The newspaper vies with The Wall Street Journal for the position of having the widest circulation of any newspaper in the United States, something it previously held since 2003...
ran a story reporting that, according to seven telecommunications executives, the NSA had secured the cooperation of the main telecommunications companies in charge of international phone-calls, including AT&T
AT&T
AT&T Inc. is an American multinational telecommunications corporation headquartered in Whitacre Tower, Dallas, Texas, United States. It is the largest provider of mobile telephony and fixed telephony in the United States, and is also a provider of broadband and subscription television services...
, MCI
MCI Inc.
MCI, Inc. is an American telecommunications subsidiary of Verizon Communications that is headquartered in Ashburn, Virginia...
and Sprint, in its efforts to eavesdrop without warrants on international calls.
May 22, 2006
In its issue dated May 22, 2006, NewsweekNewsweek
Newsweek is an American weekly news magazine published in New York City. It is distributed throughout the United States and internationally. It is the second-largest news weekly magazine in the U.S., having trailed Time in circulation and advertising revenue for most of its existence...
put the controversy on the cover of its magazine and ran several stories inside summarizing what is known and speculations about it.
On May 22, 2006, Wired Magazine released the text of AT&T documents, currently under court seal in the EFF case, that allegedly describe NSA wiretap arrangements.
Legality of the program
The NSA's electronic surveillance operations are governed primarily by four legal sources: the Fourth Amendment to the U.S. Constitution; the Foreign Intelligence Surveillance Act of 1978Foreign Intelligence Surveillance Act of 1978
America's Foreign Intelligence Surveillance Act of 1978 is an Act of Congress, , which prescribes procedures for the physical and electronic surveillance and collection of "foreign intelligence information" between "foreign powers" and "agents of foreign powers" America's Foreign Intelligence...
(FISA); Executive Order 12333
Executive Order 12333
On December 4, 1981 President Ronald Reagan signedExecutive Order 12333,an Executive Order intended toextend powers and responsibilities of US intelligence agencies and direct the leaders of U.S...
; and United States Signals Intelligence Directive 18. The primary legal challenge to the program currently in US courts is the suit brought by the Al-Haramain Foundation
Al-Haramain Foundation
Al-Haramain Islamic Foundation was a charity foundation, based in Saudi Arabia, alleged by the U.S. Department of the Treasury in a September 2004 press release to have "direct links" with Osama bin Laden...
. All other challenges to the program have been dismissed by U.S. courts.
Critics of the Bush administration have regularly compared the current NSA surveillance program to those of Richard Nixon
Richard Nixon
Richard Milhous Nixon was the 37th President of the United States, serving from 1969 to 1974. The only president to resign the office, Nixon had previously served as a US representative and senator from California and as the 36th Vice President of the United States from 1953 to 1961 under...
during the Vietnam War
Vietnam War
The Vietnam War was a Cold War-era military conflict that occurred in Vietnam, Laos, and Cambodia from 1 November 1955 to the fall of Saigon on 30 April 1975. This war followed the First Indochina War and was fought between North Vietnam, supported by its communist allies, and the government of...
(i.e. Operation Shamrock
Operation Shamrock
Operation Shamrock was the name of a plan to bring German children to Ireland from post World War II Germany.Operation Shamrock was also the name of a sweeping 2007 drug sting done in Saint Paul, Minnesota. It was called this as the operation started around St...
, Operation Minaret, Church committee
Church Committee
The Church Committee is the common term referring to the United States Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, a U.S. Senate committee chaired by Senator Frank Church in 1975. A precursor to the U.S...
). However, these programs occurred prior to the 1978 Foreign Intelligence Surveillance Act (FISA), which was passed into law in response to widespread concern over these abuses of domestic surveillance activities. According to opponents of this program that is exactly what the current program is doing and why FISA was enacted.
The American Civil Liberties Union
American Civil Liberties Union
The American Civil Liberties Union is a U.S. non-profit organization whose stated mission is "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States." It works through litigation, legislation, and...
filed an ultimately unsuccessful lawsuit against the program in 2006 on behalf of journalists, scholars, and lawyers. In the initial trial, U.S. District Judge Anna Diggs Taylor on August 17, 2006 ruled the program was unconstitutional and imposed an injunction
Injunction
An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...
against it. The Justice Department filed an appeal within hours of the ruling and requested a stay of the injunction pending appeal. While opposing the stay, the ACLU agreed to delay implementation of the injunction until September 7 to allow time for the judge to hear the appeal. On appeal, the U.S. Court of Appeals for the Sixth Circuit
United States Court of Appeals for the Sixth Circuit
The United States Court of Appeals for the Sixth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* Eastern District of Kentucky* Western District of Kentucky...
dismissed the case without addressing the merits of the claims, holding 2-1 that the plaintiffs lacked standing
Standing (law)
In law, standing or locus standi is the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case...
to bring the suit.
Controversy
When classified details were leaked to the press at some point in 2005, critics began to question the legality of the programNSA warrantless surveillance controversy
The NSA warrantless surveillance controversy concerns surveillance of persons within the United States during the collection of foreign intelligence by the U.S. National Security Agency as part of the war on terror...
. The crux of the debate over legality is twofold, the main issues being:
- Are the parameters of this program subject to FISA and
- if so, did the president have authority, inherent or otherwise, to bypass FISA.
FISA explicitly covers "electronic surveillance for foreign intelligence information" performed within the United States, and there is no court decision supporting the theory that the President's constitutional authority allows him to override statutory law. This was emphasized by fourteen constitutional law scholars, including the dean of Yale Law School
Yale Law School
Yale Law School, or YLS, is the law school of Yale University in New Haven, Connecticut, United States. Established in 1824, it offers the J.D., LL.M., J.S.D. and M.S.L. degrees in law. It also hosts visiting scholars, visiting researchers and a number of legal research centers...
and the former deans of Stanford Law School
Stanford Law School
Stanford Law School is a graduate school at Stanford University located in the area known as the Silicon Valley, near Palo Alto, California in the United States. The Law School was established in 1893 when former President Benjamin Harrison joined the faculty as the first professor of law...
and the University of Chicago Law School
University of Chicago Law School
The University of Chicago Law School was founded in 1902 as the graduate school of law at the University of Chicago and is among the most prestigious and selective law schools in the world. The U.S. News & World Report currently ranks it fifth among U.S...
:
- "The argument that conduct undertaken by the Commander in Chief that has some relevance to 'engaging the enemy' is immune from congressional regulation finds no support in, and is directly contradicted by, both case law and historical precedent. Every time the Supreme Court has confronted a statute limiting the Commander-in-Chief’s authority, it has upheld the statute. No precedent holds that the President, when acting as Commander in Chief, is free to disregard an Act of Congress, much less a criminal statute enacted by Congress, that was designed specifically to restrain the President as such." (Emphasis in original.)
The American Bar Association
American Bar Association
The American Bar Association , founded August 21, 1878, is a voluntary bar association of lawyers and law students, which is not specific to any jurisdiction in the United States. The ABA's most important stated activities are the setting of academic standards for law schools, and the formulation...
, the Congressional Research Service
Congressional Research Service
The Congressional Research Service , known as "Congress's think tank", is the public policy research arm of the United States Congress. As a legislative branch agency within the Library of Congress, CRS works exclusively and directly for Members of Congress, their Committees and staff on a...
, former Congressional representative of New York Elizabeth Holtzman
Elizabeth Holtzman
Elizabeth Holtzman is an American lawyer and former Democratic politician, pioneer woman officeholder, four term U.S. Representative , two term District Attorney of Kings County , and New York City Comptroller .Her role on the House Judiciary Committee during the Watergate scandal drew national...
, former White House Counsel John Dean
John Dean
John Wesley Dean III is an American lawyer who served as White House Counsel to United States President Richard Nixon from July 1970 until April 1973. In this position, he became deeply involved in events leading up to the Watergate burglaries and the subsequent Watergate scandal cover-up...
, and lawyer/author Jennifer van Bergen have also criticized the administration's justification for conducting electronic surveillance within the US without first obtaining warrants as contrary to current U.S. law.
President Bush's former Assistant Deputy Attorney General for national security issues, David Kris
David S. Kris
David S. Kris is an American lawyer. Since 2009 he has served as the United States Assistant Attorney General for the National Security Division of the United States Department of Justice...
, and five former FISC
United States Foreign Intelligence Surveillance Court
The United States Foreign Intelligence Surveillance Court is a U.S. federal court authorized under , . It was established by the Foreign Intelligence Surveillance Act of 1978 . The FISC oversees requests for surveillance warrants against suspected foreign intelligence agents inside the United...
judges, one of whom resigned in protest, have also voiced their doubts as to the legality of a program bypassing FISA Stanford's Chip Pitts
Chip Pitts
Chip Pitts is the Board President of the Bill of Rights Defense Committee and former Chairman of Amnesty International USA.-Career:Pitts is an international attorney, human rights activist, and law educator who lectures on human rights and international business at law schools and universities...
has usefully distinguished between the core NSA eavesdropping program, the data mining program, and the use of National Security Letters to clarify that each continues to present serious legal problems despite the government's supposedly bringing them within the relevant laws.
See also
- Hepting v. AT&THepting v. AT&THepting v. AT&T is a United States class action lawsuit filed in January 2006 by the Electronic Frontier Foundation against the telecommunications company AT&T, in which the EFF alleges that AT&T permitted and assisted the National Security Agency in unlawfully monitoring the communications of...
- NSA warrantless surveillance controversyNSA warrantless surveillance controversyThe NSA warrantless surveillance controversy concerns surveillance of persons within the United States during the collection of foreign intelligence by the U.S. National Security Agency as part of the war on terror...
- SurveillanceSurveillanceSurveillance is the monitoring of the behavior, activities, or other changing information, usually of people. It is sometimes done in a surreptitious manner...
- Mass surveillanceMass surveillanceMass surveillance is the pervasive surveillance of an entire population, or a substantial fraction thereof.Modern governments today commonly perform mass surveillance of their citizens, explaining that they believe that it is necessary to protect them from dangerous groups such as terrorists,...
- Communications Assistance for Law Enforcement ActCommunications Assistance for Law Enforcement ActThe Communications Assistance for Law Enforcement Act is a United States wiretapping law passed in 1994, during the presidency of Bill Clinton...
- ThinThreadThinThreadThinThread is the name of a project that the United States National Security Agency engaged in during the 1990s, according to a May 17, 2006 article in the Baltimore Sun...
- Trailblazer ProjectTrailblazer ProjectTrailblazer was a United States National Security Agency program intended to analyze data carried on communications networks like the internet. It was able to track communication methods such as cell phones and e-mail...
Whistleblowers
- Russ TiceRuss TiceRussell D. Tice is a former intelligence analyst for the U.S. Air Force, Office of Naval Intelligence, Defense Intelligence Agency and National Security Agency...
- Thomas TammThomas TammThomas Tamm is a former lawyer in the United States Department of Justice's Office of Intelligence Policy and Review during the period in 2004 when senior Justice officials fought against the widening scope of warrantless NSA surveillance—and was the anonymous initial whistleblower to The...
- Thomas Andrews DrakeThomas Andrews DrakeThomas Andrews Drake is a former senior official of the U.S. National Security Agency , decorated United States Air Force and United States Navy veteran, computer software expert, linguist, management and leadership specialist, and whistleblower. In 2010 the government alleged that he 'mishandled'...
External links
- WhiteHouse.gov: "Setting the Record Straight"
- thewall.civiblog.org: "Yale Law Professor Harold Hongju Koh Statement 28 February 2006 to Senate Judiciary Committee re Wartime Executive Power and legal limits of NSA Surveillance Authority"
- thewall.civiblog.org: "Harvard Law Professor Laurence H. Tribe's 6 January 2006 Letter to Rep. Conyers re: legal limits of NSA Domestic Surveillance - House Judiciary Democratic Congressional Briefing - 20 January 2006"
- thewall.civiblog.org: "Congressional Research Service - Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information by Elizabeth B. Bazan and Jennifer K. Elsea, January 5, 2006" (HTMLHTMLHyperText Markup Language is the predominant markup language for web pages. HTML elements are the basic building-blocks of webpages....
) - thewall.civiblog.org: "Congressional Research Service - Statutory Procedures Under Which Congress Is To Be Informed of U.S. Intelligence Activities, Including Covert Actions by Alfred Cumming, January 18, 2006" (HTML)
- thewall.civiblog.org: "EFF Class Action Complaint (Initial Filing) against AT&T" (HTML)
- thewall.civiblog.org: "ACLU Complaint (Initial Filing) against the NSA Central Security Service and Lieutenant General Keith B. Alexander"
- thewall.civiblog.org: "Big Brother Is Watching You Part 2 - collection of mirrored USA Today Print coverage, May 11, 2006"
- thewall.civiblog.org: "NSA has massive database of Americans' phone calls - from collection of mirrored USA Today Print coverage, May 11, 2006"
- thewall.civiblog.org: "Questions and answers about the NSA phone record collection program - from collection of mirrored USA Today Print coverage, May 11, 2006"
- thewall.civiblog.org: "Fractured phone system consolidating once again - from collection of mirrored USA Today Print coverage, May 11, 2006"
- thewall.civiblog.org: "TIA Lives On - Shane Harris, National Journal - February 23, 2006 (mirrored with permission)"