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NSA warrantless surveillance controversy

NSA warrantless surveillance controversy

Overview
The NSA warrantless surveillance controversy (AKA "Warrantless Wiretapping") concerns surveillance
Surveillance
Surveillance is the monitoring of the behavior, activities, or other changing information, usually of people. It is sometimes done in a surreptitious manner...

 of persons within the United States during the collection of foreign intelligence by the U.S. 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...

 (NSA) 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 this program, referred to by the Bush administration as the "terrorist surveillance program", part of the broader 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...

, the NSA is authorized by executive order to monitor, without search warrant
Search warrant
A search warrant is a court order issued by a Magistrate, judge or Supreme Court Official that authorizes law enforcement officers to conduct a search of a person or location for evidence of a crime and to confiscate evidence if it is found....

s, phone calls
Telephone call
A telephone call is a connection over a telephone network between the calling party and the called party.-Information transmission:A telephone call may carry ordinary voice transmission using a telephone, data transmission when the calling party and called party are using modems, or facsimile...

, Internet
Internet
The Internet is a global system of interconnected computer networks that use the standard Internet protocol suite to serve billions of users worldwide...

 activity (Web, e-mail
E-mail
Electronic mail, commonly known as email or e-mail, is a method of exchanging digital messages from an author to one or more recipients. Modern email operates across the Internet or other computer networks. Some early email systems required that the author and the recipient both be online at the...

, etc.), text messaging
Text messaging
Text messaging, or texting, refers to the exchange of brief written text messages between fixed-line phone or mobile phone and fixed or portable devices over a network...

, 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.
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Encyclopedia
The NSA warrantless surveillance controversy (AKA "Warrantless Wiretapping") concerns surveillance
Surveillance
Surveillance is the monitoring of the behavior, activities, or other changing information, usually of people. It is sometimes done in a surreptitious manner...

 of persons within the United States during the collection of foreign intelligence by the U.S. 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...

 (NSA) 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 this program, referred to by the Bush administration as the "terrorist surveillance program", part of the broader 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...

, the NSA is authorized by executive order to monitor, without search warrant
Search warrant
A search warrant is a court order issued by a Magistrate, judge or Supreme Court Official that authorizes law enforcement officers to conduct a search of a person or location for evidence of a crime and to confiscate evidence if it is found....

s, phone calls
Telephone call
A telephone call is a connection over a telephone network between the calling party and the called party.-Information transmission:A telephone call may carry ordinary voice transmission using a telephone, data transmission when the calling party and called party are using modems, or facsimile...

, Internet
Internet
The Internet is a global system of interconnected computer networks that use the standard Internet protocol suite to serve billions of users worldwide...

 activity (Web, e-mail
E-mail
Electronic mail, commonly known as email or e-mail, is a method of exchanging digital messages from an author to one or more recipients. Modern email operates across the Internet or other computer networks. Some early email systems required that the author and the recipient both be online at the...

, etc.), text messaging
Text messaging
Text messaging, or texting, refers to the exchange of brief written text messages between fixed-line phone or mobile phone and fixed or portable devices over a network...

, 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. Critics, however, claimed that it was in an effort to attempt to silence critics of the Bush Administration and their handling of several hot button issues during its tenure. The Obama Administration has continued using these methods.

Overview


All wiretapping of American citizens by 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...

 requires a warrant from a three-judge court set up under the Foreign Intelligence Surveillance Act. After the 9/11 attacks, Congress passed the Patriot Act, which granted the President broad powers to fight a war against terrorism. The George W. Bush administration
George W. Bush administration
The presidency of George W. Bush began on January 20, 2001, when he was inaugurated as the 43rd President of the United States of America. The oldest son of former president George H. W. Bush, George W...

 used these powers to bypass the FISA court and directed the NSA to spy directly on al Qaeda in a new NSA electronic surveillance program
NSA electronic surveillance program
An electronic surveillance program, whose actual name is currently unknown, was implemented by the National Security Agency 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...

. Reports at the time indicate that an "apparently accidental" "glitch" resulted in the interception of communications that were purely domestic in nature. This action was challenged by a number of groups, including Congress, as unconstitutional.

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. http://www.eff.org/files/filenode/att/presskit/ATT_onepager.pdf. Critics said that such "domestic" intercepts required 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...

 authorization under the 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...

. The Bush administration
George W. Bush administration
The presidency of George W. Bush began on January 20, 2001, when he was inaugurated as the 43rd President of the United States of America. The oldest son of former president George H. W. Bush, George W...

 maintained 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
Authorization for Use of Military Force Against Terrorists
The Authorization for Use of Military Force Against Terrorists , one of two resolutions commonly known as "AUMF" , was a joint resolution passed by the United States Congress on September 14, 2001, authorizing the use of United States Armed Forces against those responsible for the attacks on...

 (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
United 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...

 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...

 confirmed the existence of the program, first reported in a December 16, 2005, article in The New York Times
The New York Times
The New York Times is an American daily newspaper founded and continuously published in New York City since 1851. The New York Times has won 106 Pulitzer Prizes, the most of any news organization...

. 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
Pentagon Papers
The Pentagon Papers, officially titled United States – Vietnam Relations, 1945–1967: A Study Prepared by the Department of Defense, is a United States Department of Defense history of the United States' political-military involvement in Vietnam from 1945 to 1967...

-style court injunction to block its publication. Critics of The Times have alleged that executive editor 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...

 had withheld the story from publication since before the 2004 Presidential election, and that the story that was ultimately published by The Times was essentially the same as reporters James Risen
James Risen
James Risen is a Pulitzer Prize-winning American journalist for The New York Times who previously worked for the Los Angeles Times. He has written or co-written many articles concerning U.S...

 and Eric Lichtblau
Eric Lichtblau
Eric Lichtblau is an American journalist and Washington bureau reporter for The New York Times.-Life:Lichtblau joined The Times in September 2002 as a correspondent covering the Justice Department. Previously, Lichtblau worked at the Los Angeles Times for 15 years, where he also covered the Justice...

 had submitted in 2004. In a December 2008 interview with Newsweek
Newsweek
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...

, former Justice Department employee Thomas Tamm
Thomas Tamm
Thomas 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...

 revealed himself to be the initial whistle-blower to The Times. The FBI began investigating leaks about the program in 2005, with 25 agents and 5 prosecutors on the case.

Gonzales said 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
Classified information
Classified information is sensitive information to which access is restricted by law or regulation to particular groups of persons. A formal security clearance is required to handle classified documents or access classified data. The clearance process requires a satisfactory background investigation...

 program, the role and responsibility of Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....

 in its executive oversight function and the scope and extent of Presidential powers under Article II
Article Two of the United States Constitution
Article Two of the United States Constitution creates the executive branch of the government, consisting of the President and other executive officers.-Clause 1: Executive power:...

 of the Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...

.

Developments


In mid-August 2007, a three-judge panel of the United States Court of Appeals for the Ninth Circuit
United States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...

 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 United States District Court for the Northern District of California
United States District Court for the Northern District of California
The United States District Court for the Northern District of California is the federal United States district court whose jurisdiction comprises following counties of California: Alameda, Contra Costa, Del Norte, Humboldt, Lake, Marin, Mendocino, Monterey, Napa, San Benito, San Francisco, San...

, Vaughn R. Walker
Vaughn R. Walker
Vaughn R. Walker served as a district judge of the United States District Court for the Northern District of California from 1989 to 2011.-Biography:Walker was born in Watseka, Illinois, in 1944...

. One of the cases is a class-action lawsuit against 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...

, 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 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...

 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
State Secrets Privilege
The state secrets privilege is an evidentiary rule created by United States legal precedent. Application of the privilege results in exclusion of evidence from a legal case based solely on affidavits submitted by the government stating that court proceedings might disclose sensitive information...

, 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
El Paso Times
The El Paso Times is the English-language newspaper for the U.S. city of El Paso, Texas. The paper was founded in 1881 by Marcellus Washington Carrico. It originally started out as a weekly but within a year's time, it became the daily newspaper for the frontier town.The newspaper has a daily...

 newspaper which was published on August 22, Director of National Intelligence Mike McConnell confirmed for the first time that the private sector helped the warrantless surveillance 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". Plaintiffs in the AT&T suit subsequently filed a motion with the court to have McConnell's acknowledgement admitted as evidence in their case.

The program may face an additional legal challenge in the appeal of two Albany, New York
Albany, New York
Albany is the capital city of the U.S. state of New York, the seat of Albany County, and the central city of New York's Capital District. Roughly north of New York City, Albany sits on the west bank of the Hudson River, about south of its confluence with the Mohawk River...

, men convicted of criminal charges in an FBI anti-terror sting operation
Sting operation
In law enforcement, a sting operation is a deceptive operation designed to catch a person committing a crime. A typical sting will have a law-enforcement officer or cooperative member of the public play a role as criminal partner or potential victim and go along with a suspect's actions to gather...

. Their lawyers say 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
The Washington Post
The Washington Post is Washington, D.C.'s largest newspaper and its oldest still-existing paper, founded in 1877. Located in the capital of the United States, The Post has a particular emphasis on national politics. D.C., Maryland, and Virginia editions are printed for daily circulation...

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
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...

 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
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...

, 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
United States Department of Justice
The United States Department of Justice , is the United States federal executive department responsible for the enforcement of the law and administration of justice, equivalent to the justice or interior ministries of other countries.The Department is led by the Attorney General, who is nominated...

 filed a response in opposition to the ACLU's motion with the court.

In previous developments, the case ACLU v. NSA
ACLU v. NSA
American Civil Liberties Union et al., v. National Security Agency / Central et al., 493 F.3d 644 , is a case decided July 6, 2007, in which the United States Court of Appeals for the Sixth Circuit held that the plaintiffs in the case did not have standing to bring the suit against the NSA, because...

was dismissed on July 6, 2007 by the United States 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...

.
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
Anna Diggs Taylor
Anna Diggs Taylor is a United States District Judge for the United States District Court for the Eastern District of Michigan. She graduated from Barnard College in 1954 and Yale Law School in 1957, and worked in the Office of Solicitor for the United States Department of Labor...

 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
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...

. Judicial Watch
Judicial Watch
Judicial Watch is an organization that describes itself as "a conservative, non-partisan American educational foundation that promotes transparency, accountability and integrity in government, politics and the law." According to its mission statement, Judicial Watch "advocates high standards of...

, 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 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 FISA court oversight. The DeWine bill, the Specter bill, and the Electronic Surveillance Modernization Act (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).

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. "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.

On September 18, 2008, the Electronic Frontier Foundation
Electronic Frontier Foundation
The Electronic Frontier Foundation is an international non-profit digital rights advocacy and legal organization based in the United States...

 (EFF), an Internet-privacy advocacy group, filed a new lawsuit against the NSA, President George W. Bush, Vice President Dick Cheney, Cheney's chief of staff David Addington, former Attorney General and White House Counsel Alberto Gonzales and other government agencies and individuals who ordered or participated in the warrantless surveillance. They sued on behalf of AT&T customers to seek redress for what the EFF alleges to be an illegal, unconstitutional, and ongoing dragnet surveillance of their communications and communications records. An earlier, ongoing suit by the EFF may be bogged down by the recent changes to FISA provisions, but these are not expected to impact this new case.

On January 23, 2009, the administration of President Barack Obama
Barack Obama
Barack Hussein Obama II is the 44th and current President of the United States. He is the first African American to hold the office. Obama previously served as a United States Senator from Illinois, from January 2005 until he resigned following his victory in the 2008 presidential election.Born in...

 adopted the same position as his predecessor when it urged U.S. District Judge Vaughn Walker to set aside a ruling in Al-Haramain Islamic Foundation et al. v. Obama, et al. The Obama administration also sided with the former administration in its legal defense of July, 2008 legislation that immunized the nation's telecommunications companies from lawsuits accusing them of complicity in the eavesdropping program, according to testimony by Attorney General Eric Holder
Eric Holder
Eric Himpton Holder, Jr. is the 82nd and current Attorney General of the United States and the first African American to hold the position, serving under President Barack Obama....

.

On March 31, 2010, Judge Vaughn R. Walker, chief judge of the Federal District Court in San Francisco, ruled that the National Security Agency’s program of surveillance without warrants 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 to pay them damages.

Trailblazer and Whistleblowing prosecution


The Trailblazer Project
Trailblazer Project
Trailblazer 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...

, an NSA IT project that began in 2000, has also been linked to warrantless surveillance. It was chosen over ThinThread
ThinThread
ThinThread 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...

, which had included some privacy protections. Three ex-NSA staffers, Binney, Wiebe, and Loomis, all of whom had quit NSA over concerns about the legality of the agency's activities, teamed with Diane Roark, a staffer on the House Intelligence Committee, to ask the Inspector General to investigate. A major source for the IG report was Thomas Andrews Drake
Thomas Andrews Drake
Thomas 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'...

, an ex-Air Force senior NSA official with an expertise in computers. Siobhan Gorman of the Baltimore Sun published a series of articles about Trailblazer in 2006-2007.

The FBI agents investigating the 2005 New York Times story eventually made their way to the Baltimore Sun story, and then to Binney, Wiebe, Loomis, Roark, and Drake. In 2007 armed FBI agents raided the houses of Roark, Binney, and Wiebe. Binney claimed they pointed guns at his head. Wiebe said it reminded him of the Soviet Union. None were charged with crimes except for Drake. In 2010 he was indicted under the Espionage Act of 1917
Espionage Act of 1917
The Espionage Act of 1917 is a United States federal law passed on June 15, 1917, shortly after the U.S. entry into World War I. It has been amended numerous times over the years. It was originally found in Title 50 of the U.S. Code but is now found under Title 18, Crime...

, as part of Obama's unprecedented crackdown on whistleblowers and leakers. The charges against him were dropped in 2011 and he pled to a single misdemeanor.

FISA


The 1978 Foreign Intelligence Surveillance Act (FISA) regulates U.S. government agencies' carrying out of physical searches, and electronic surveillance, wherein the main purpose is the gathering of foreign intelligence information. "Foreign intelligence information" is defined in as information necessary to protect the U.S. or its allies against actual or potential attack from a foreign power, sabotage
Sabotage
Sabotage is a deliberate action aimed at weakening another entity through subversion, obstruction, disruption, or destruction. In a workplace setting, sabotage is the conscious withdrawal of efficiency generally directed at causing some change in workplace conditions. One who engages in sabotage is...

 or international terrorism
Terrorism
Terrorism is the systematic use of terror, especially as a means of coercion. In the international community, however, terrorism has no universally agreed, legally binding, criminal law definition...

. FISA defines a "foreign power" as a foreign government
Government
Government refers to the legislators, administrators, and arbitrators in the administrative bureaucracy who control a state at a given time, and to the system of government by which they are organized...

 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
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...

 and civil
Civil law (common law)
Civil law, as opposed to criminal law, is the branch of law dealing with disputes between individuals or organizations, in which compensation may be awarded to the victim...

 liability for intentional electronic surveillance under color of law
Color (law)
In U.S. law, the term color of denotes the “mere semblance of legal right”, the “pretense or appearance of” right; hence, an action done under color of law colors the law to the circumstance, yet said apparently legal action contravenes the law....

 except as authorized by statute.

FISA provides 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 for the electronic cameras if "there is probable cause
Probable cause
In United States criminal law, probable cause is the standard by which an officer or agent of the law has the grounds to make an arrest, to conduct a personal or property search, or to obtain a warrant for arrest, etc. when criminal charges are being considered. It is also used to refer to the...

 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).

NSA surveillance program


Soon after 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...

 U.S. President 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....

 issued an executive order that 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...

 (NSA) to conduct surveillance of certain telephone calls without obtaining a warrant from the FISC as stipulated by FISA (see ). The complete details of the executive order are not known, but according to statements by the administration, the authorization covers telephone calls originating overseas from or to a person suspected of having links to terrorist organizations such as 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...

 or its affiliates even when the other party to the call is within the US. The legality of surveillance involving US persons and extent of this authorization is at the core of this controversy which has steadily grown to include:
  • Constitutional issues concerning the separation of powers
    Separation of powers
    The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...

     and the Fourth Amendment
    Fourth Amendment to the United States Constitution
    The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause...

     immunities.
  • The effectiveness and scope of the program.
  • The legality of the leaking and publication of classified information and the implications for U.S. national security arising from the disclosure.
  • Adequacy of FISA as a tool for fighting terrorism

Authorization for Use of Military Force (AUMF) Resolution



About a week after the 9/11 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...

, Congress passed the Authorization for Use of Military Force Against Terrorists
Authorization for Use of Military Force Against Terrorists
The Authorization for Use of Military Force Against Terrorists , one of two resolutions commonly known as "AUMF" , was a joint resolution passed by the United States Congress on September 14, 2001, authorizing the use of United States Armed Forces against those responsible for the attacks on...

 (AUMF) which authorized the President 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 administration has argued that the language used in the AUMF implicitly authorized the President to exercise those powers "incident to the waging of war", including the collection of enemy intelligence, FISA provisions notwithstanding.

On January 20, 2006, Senator Patrick Leahy
Patrick Leahy
Patrick Joseph Leahy is the senior United States Senator from Vermont and member of the Democratic Party. He is the first and only elected Democratic United States Senator in Vermont's history. He is the chairman of the Senate Judiciary Committee. Leahy is the second most senior U.S. Senator,...

 (D-VT
Vermont
Vermont is a state in the New England region of the northeastern United States of America. The state ranks 43rd in land area, , and 45th in total area. Its population according to the 2010 census, 630,337, is the second smallest in the country, larger only than Wyoming. It is the only New England...

), the ranking Democrat on the Senate Judiciary Committee along with lone co-sponsor Senator Ted Kennedy (D-MA) introduced S. Res. 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." This non-binding resolution died in the Senate without being brought up for debate or being voted upon.

Legal issues


The NSA surveillance controversy involves legal issues that fall into two broad disciplines: statutory interpretation
Statutory interpretation
Statutory interpretation is the process by which courts interpret and apply legislation. Some amount of interpretation is always necessary when a case involves a statute. Sometimes the words of a statute have a plain and straightforward meaning. But in many cases, there is some ambiguity or...

 and Constitutional law
United States constitutional law
United States constitutional law is the body of law governing the interpretation and implementation of the United States Constitution.- Introduction :United States constitutional law defines the scope and application of the terms of the Constitution...

. Statutory interpretation is the process of interpreting and applying legislation to the facts of a given case. Constitutional law is the body of law that governs the interpretation of the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...

 and covers areas of law such as the relationship between the federal government and state governments, the rights of individuals, and other fundamental aspects of the application of government authority in the United States.

Statutory interpretation issues


A court of law
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...

 faced with determining the legality of the NSA program would have to first grapple with the statutory interpretation
Statutory interpretation
Statutory interpretation is the process by which courts interpret and apply legislation. Some amount of interpretation is always necessary when a case involves a statute. Sometimes the words of a statute have a plain and straightforward meaning. But in many cases, there is some ambiguity or...

 of FISA itself Since FISA has the potential to raise certain Constitutional conflicts relating to the powers assigned to Congress and the Executive in Articles I
Article One of the United States Constitution
Article One of the United States Constitution describes the powers of Congress, the legislative branch of the federal government. The Article establishes the powers of and limitations on the Congress, consisting of a House of Representatives composed of Representatives, with each state gaining or...

 and II
Article Two of the United States Constitution
Article Two of the United States Constitution creates the executive branch of the government, consisting of the President and other executive officers.-Clause 1: Executive power:...

 respectively, the canon of constitutional avoidance requires a court to first determine if the FISA statutes can be "fairly read" to avoid Constitutional conflict. Assuming such an interpretation can be found, the question then turns to whether or not the NSA wiretap authorizations were violative of the statute as so read. Without knowing how a court would resolve the first issue and the classified specifics of the program itself, it is not possible to predict the outcome.

FISA exclusivity provision



(2)(f) provides in relevant part that "the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in ... and the intercept of domestic [communications] may be conducted." The interpretation of this clause is central to the controversy because both sides agree that the NSA program operates outside of the procedural framework provided by FISA. The interpretive conflict arises because other provisions of FISA, including the criminal sanctions subpart include an "unless authorized by statute" provision, raising the issue of statutory ambiguity. The administration's position is that the AUMF is an authorizing statute which satisfies the FISA criteria. Critics contend that by the canon of Ejusdem generis (the doctrine that if ambiguity exists, generic legislative language must yield to specific provisions), the specific provisions of the FISA restrictions supersede the general authority granted by the AUMF. In their letter to the Senate Judiciary Committee a group of law professors and former government officials addressed this issue directly:
The U.S. Supreme Court faced a similar issue in Hamdi v. Rumsfeld
Hamdi v. Rumsfeld
Hamdi v. Rumsfeld, 542 U.S. 507 was a U.S. Supreme Court decision reversing the dismissal of a habeas corpus petition brought on behalf of Yaser Esam Hamdi, a U.S. citizen being detained indefinitely as an "illegal enemy combatant." The Court recognized the power of the government to detain enemy...

where the government claimed that the AUMF authorized the President to detain U.S. citizens designated as an enemy combatant
Enemy combatant
Enemy combatant is a term historically referring to members of the armed forces of the state with which another state is at war. Prior to 2008, the definition was: "Any person in an armed conflict who could be properly detained under the laws and customs of war." In the case of a civil war or an...

 despite its lack of specific language to that intent and notwithstanding the provisions of which requires that the United States government cannot detain an American citizen except by an act of Congress. In that case, the Court ruled:
In Hamdan v. Rumsfeld
Hamdan v. Rumsfeld
Hamdan v. Rumsfeld, 548 U.S. 557 , is a case in which the Supreme Court of the United States held that military commissions set up by the Bush administration to try detainees at Guantanamo Bay lack "the power to proceed because its structures and procedures violate both the Uniform Code of Military...

however, the court rejected the government's argument that the AUMF implicitly authorized the President to establish military commissions in violation of the UCMJ. The opinion of the Court held:
Determining when explicit congressional authorization is and is not required appears by this decision to require a court to first determine whether an implicit authorization would amount to a "repeal by implication" of the governing Act.

The exclusivity clause also raises a separation of powers
Separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...

 issue. (See Constitutional law issues below)

Domestic versus foreign intelligence


The arguments against the legality of the NSA fall into two broad categories, those who argue that FISA raises no Constitutional issues and therefore the NSA program is illegal on its face and those who argue that FISA (perhaps purposefully) raises a Constitutional conflict, one which they believe should be resolved in Congress' favor.

Common to both of these views is the argument that the participation of "US persons" as defined in FISA renders the objectional intercepts "domestic" in nature. Those advocating the "no constitutional issue" position, argue that Congress has the authority it needs to legislate in this area under Article I and the Fourth Amendment
Fourth Amendment to the United States Constitution
The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause...

 while those who see a constitutional conflict acknowledge that the existing delineation between Congressional and Executive authority in this area is not clear but that Congress, in including the exclusivity clause in FISA, meant to carve out a legitimate role for itself in this arena.

The administration holds that an exception to the normal warrant requirements exists when the purpose of the surveillance is to prevent attack from a foreign threat. Such an exception has been upheld at the Circuit Court
United States circuit court
The United States circuit courts were the original intermediate level courts of the United States federal court system. They were established by the Judiciary Act of 1789. They had trial court jurisdiction over civil suits of diversity jurisdiction and major federal crimes. They also had appellate...

 level when the target was a foreign agent
Foreign agent
A foreign agent is anyone who actively carries out the interests of a foreign country while located in another host country, but generally outside the protections offered to those working in their official capacity for a diplomatic mission. Foreign agents may be citizens of the host country...

 residing abroad a foreign agent residing in the US and a US citizen abroad. The warrantless exception was struck down when both the target and the threat was deemed domestic. The legality of targeting US persons acting as agents of a foreign power and residing in this country has not been addressed by the US Supreme Court, but has occurred at least once, in the case of Aldrich Ames
Aldrich Ames
Aldrich Hazen Ames is a former Central Intelligence Agency counter-intelligence officer and analyst, who, in 1994, was convicted of spying for the Soviet Union and Russia...

.

Administration's statutory position


The Administration's position with regard to statutory interpretation, as outlined in the DOJ whitepaper, is to avoid what it has termed the "difficult Constitutional questions" by
  • interpreting the FISA "except as authorized by statute" clause to mean that Congress allowed for future legislative statute(s) to provide exceptions to the FISA warrant requirements,
  • that the AUMF was such a statute, and
  • as such, implicitly provided executive authority to authorize warrantless interception of enemy communication.

This argument, as outlined in the DOJ whitepaper, is based on the language of the AUMF, 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 itself;
The administration also adds that the program is legal under Title II of the USA PATRIOT Act
USA PATRIOT Act
The USA PATRIOT Act is an Act of the U.S. Congress that was signed into law by President George W. Bush on October 26, 2001...

 entitled Enhanced Surveillance Procedures
USA PATRIOT Act, Title II
The USA PATRIOT Act was passed by the United States Congress in 2001 as a response to the September 11, 2001 attacks. It has ten titles, each containing numerous sections. Title II: Enhanced Surveillance Procedures granted increased powers of surveillance to various government agencies and bodies...

, although it is not relying upon the domestic law enforcement provisions of the PATRIOT Act for authorization of any of the NSA program activities. The President had said prior to this, that Americans' civil liberties were being protected and that purely domestic wiretapping was being conducted pursuant to warrants under applicable law, including the Patriot Act.Remarks by the President in a Conversation on the USA Patriot Act

These arguments must be compared to the language of the FISA itself, which states:
Because the law only authorizes the President to bypass the FISA court during the first 15 days of a war declared by Congress (see "Declaration of war"
Declaration of war by the United States
A declaration of war is a formal declaration issued by a national government indicating that a state of war exists between that nation and another. For the United States, Article One, Section Eight of the Constitution says "Congress shall have power to ... declare War"...

), the administration's argument rests on the assumption that the AUMF gave the President more power than was understood as absolutely implicit in any Congressional "declaration of war" at the time of the statute's enactment. However, as a "declaration of war by the Congress" encompasses all military actions so declared, no matter how small, brief or otherwise constrained by Congress, the above citation could be seen as setting not a default or typical level of Presidential wartime authority, but instead a presumptive minimum, which might more often than not be extended (explicitly or implicitly) by Congress's war declaration.

Duty to notify Congress


According to Peter J. Wallison, former White House Counsel to President Ronald Reagan
Ronald Reagan
Ronald Wilson Reagan was the 40th President of the United States , the 33rd Governor of California and, prior to that, a radio, film and television actor....

: "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." In regard to this program, a Gang of Eight
Gang of Eight
The Gang of Eight is a common colloquial term for a set of eight leaders within the United States Congress. Specifically, the Gang of Eight includes the leaders of each of the two parties from both the Senate and House of Representatives, and the chairs and ranking minority members of both the...

 (eight key members of Congress, thirteen in this case between the 107th and 109th Congressional Sessions) have been kept informed to some degree:
  • Speaker of the House: (Dennis Hastert
    Dennis Hastert
    John Dennis "Denny" Hastert was the 59th Speaker of the House serving from 1999 to 2007. He represented as a Republican for twenty years, 1987 to 2007.He is the longest-serving Republican Speaker in history...

     (R-IL))
  • House Minority Leader: (Dick Gephardt (D-MO); Nancy Pelosi
    Nancy Pelosi
    Nancy Patricia D'Alesandro Pelosi is the Minority Leader of the United States House of Representatives and served as the 60th Speaker of the United States House of Representatives from 2007 to 2011...

     (D-CA))
  • Chair and Ranking Member of House Permanent Select Committee on Intelligence: (Porter Goss (R-FL); Peter Hoekstra (R-MI); Jane Harman
    Jane Harman
    Jane Margaret Lakes Harman is the former U.S. Representative for , serving from 1993 to 1999, and from 2001 to 2011. She is a member of the Democratic Party....

     (D-CA))
  • Senate Majority Leader: (Trent Lott
    Trent Lott
    Chester Trent Lott, Sr. , is a former United States Senator from Mississippi and has served in numerous leadership positions in the House of Representatives and the Senate....

     (R-MS); Bill Frist
    Bill Frist
    William Harrison "Bill" Frist, Sr. is an American physician, businessman, and politician. He began his career as an heir and major stockholder to the for-profit hospital chain of Hospital Corporation of America. Frist later served two terms as a Republican United States Senator representing...

     (R-TN))
  • Senate Minority Leader: (Tom Daschle
    Tom Daschle
    Thomas Andrew "Tom" Daschle is a former U.S. Senator from South Dakota and former U.S. Senate Majority Leader. He is a member of the Democratic Party....

     (D-SD); Harry Reid
    Harry Reid
    Harry Mason Reid is the senior United States Senator from Nevada, serving since 1987. A member of the Democratic Party, he has been the Senate Majority Leader since January 2007, having previously served as Minority Leader and Minority and Majority Whip.Previously, Reid was a member of the U.S...

     (D-NV))
  • Chair and Vice Chair of Senate Select Committee on Intelligence: (Pat Roberts
    Pat Roberts
    Charles Patrick "Pat" Roberts is the senior United States Senator from Kansas. A member of the Republican Party, he has served since 1997...

     (R-KS); Bob Graham
    Bob Graham
    Daniel Robert "Bob" Graham is an American politician. He was the 38th Governor of Florida from 1979 to 1987 and a United States Senator from that state from 1987 to 2005...

     (D-FL); Jay Rockefeller
    Jay Rockefeller
    John Davison "Jay" Rockefeller IV is the senior United States Senator from West Virginia. He was first elected to the Senate in 1984, while in office as Governor of West Virginia, a position he held from 1977 to 1985...

     (D-WV))


Under the National Security Act of 1947, §501-503, codified as 50 USC §413-§413b, 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 the so-called Gang of Eight
Gang of Eight
The Gang of Eight is a common colloquial term for a set of eight leaders within the United States Congress. Specifically, the Gang of Eight includes the leaders of each of the two parties from both the Senate and House of Representatives, and the chairs and ranking minority members of both the...

.

The administration contends that with regard to the NSA surveillance program, the administration fulfilled its notification obligations by briefing key members of Congress (thirteen individuals in this case between the 107th and 109th Congressional sessions) have been briefed on the NSA program more than a dozen times but they were forbidden from sharing information about the program with other members or staff.

On January 18, 2006, the Congressional Research Service released a report, "Statutory Procedures Under Which Congress Is To Be Informed of U.S. Intelligence Activities, Including Covert Actions". 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, concluded there was no specific statutory basis for limiting briefings on the terrorist surveillance program to the Gang of Eight 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".

Thus, although the specific statutory "Gang of Eight" notification procedure for covert action would not seem to apply to the NSA program, it is not clear if a limited notification procedure intended to protect sources and methods is expressly prohibited. Additionally, should the sources and methods exception apply it will require a factual determination as to whether it should apply to disclosure of the program itself or only to specific sensitive aspects.

Constitutional law issues


The constitutional debate surrounding executive authorization of warrantless surveillance is principally about separation of powers
Separation of powers under the United States Constitution
Separation of powers is a political doctrine originating from the United States Constitution, according to which the legislative, executive, and judicial branches of the United States government are kept distinct in order to prevent abuse of power. This U.S...

 ("checks and balances"). If, as discussed above, no "fair reading" of FISA can be found in satisfaction of the canon of avoidance, these issues will have to be decided at the appellate level, by United States courts of appeals
United States court of appeals
The United States courts of appeals are the intermediate appellate courts of the United States federal court system...

. It should be noted that in such a separation of powers dispute, the burden of proof is placed upon the Congress to establish its supremacy in the matter: the Executive branch enjoys the presumption of authority until an Appellate Court rules against it.

Article I and II


Article I
Article One of the United States Constitution
Article One of the United States Constitution describes the powers of Congress, the legislative branch of the federal government. The Article establishes the powers of and limitations on the Congress, consisting of a House of Representatives composed of Representatives, with each state gaining or...

 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 U.S. Supreme Court has used "the necessary and proper" clause of Article I to affirm broad Congressional authority to legislate as it sees fit in the domestic arena but has limited its application in the arena of foreign affairs. In the landmark Curtiss-Wright
United States v. Curtiss-Wright Export Corp.
United States v. Curtiss-Wright Export Corp., 299 U.S. 304 , was a United States Supreme Court case involving principles of both governmental regulation of business and the supremacy of the executive branch of the federal government to conduct foreign affairs.-The Facts:In Curtiss-Wright, the...

 decision, Justice Sutherland writes in his opinion of the Court:
Article II
Article Two of the United States Constitution
Article Two of the United States Constitution creates the executive branch of the government, consisting of the President and other executive officers.-Clause 1: Executive power:...

 vests the President with power as "Commander in Chief
Commander-in-Chief
A commander-in-chief is the commander of a nation's military forces or significant element of those forces. In the latter case, the force element may be defined as those forces within a particular region or those forces which are associated by function. As a practical term it refers to the military...

 of the Army and Navy of the United States," and requires that he "shall take Care that the Laws be faithfully executed".

The U.S. Supreme Court has historically used Article II to justify wide deference to the President in the arena of foreign affairs. Two historical and recent Supreme Court cases define the secret wiretapping by the NSA. Quoting again from the Curtiss-Wright
United States v. Curtiss-Wright Export Corp.
United States v. Curtiss-Wright Export Corp., 299 U.S. 304 , was a United States Supreme Court case involving principles of both governmental regulation of business and the supremacy of the executive branch of the federal government to conduct foreign affairs.-The Facts:In Curtiss-Wright, the...

 decision:
The extent of the President's power as Commander-in-Chief has never been fully defined, but two U.S. Supreme Court cases are considered seminal in this area. -Youngstown Sheet and Tube Co. v. Sawyer and Curtiss-Wright
United States v. Curtiss-Wright Export Corp.
United States v. Curtiss-Wright Export Corp., 299 U.S. 304 , was a United States Supreme Court case involving principles of both governmental regulation of business and the supremacy of the executive branch of the federal government to conduct foreign affairs.-The Facts:In Curtiss-Wright, the...

.

In addition, two relatively new cases, Hamdi v. Rumsfeld
Hamdi v. Rumsfeld
Hamdi v. Rumsfeld, 542 U.S. 507 was a U.S. Supreme Court decision reversing the dismissal of a habeas corpus petition brought on behalf of Yaser Esam Hamdi, a U.S. citizen being detained indefinitely as an "illegal enemy combatant." The Court recognized the power of the government to detain enemy...

 and Hamdan v. Rumsfeld
Hamdan v. Rumsfeld
Hamdan v. Rumsfeld, 548 U.S. 557 , is a case in which the Supreme Court of the United States held that military commissions set up by the Bush administration to try detainees at Guantanamo Bay lack "the power to proceed because its structures and procedures violate both the Uniform Code of Military...

, have clarified, and in the case of Hamdan limited, the scope of executive power to detain and try suspected terrorists as enemy combatants.

In Hamdan, the Court's opinion in footnote 23, rejected the notion that Congress is impotent to regulate the exercise of executive war powers:
Whether "proper exercise" of Congressional war powers includes authority to regulate the gathering of foreign intelligence, which in other rulings has been recognized as "fundamentally incident to the waging of war", is a historical point of contention between the Executive and Legislative branches.

As noted in "Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information", published by 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...

:
The same report makes clear the Congressional view that intelligence gathered within the U.S. and where "one party is a U.S. person" qualifes as domestic in nature and as such completely within their purview to regulate, and further that Congress may "tailor the President’s use of an inherent constitutional power":


Fourth Amendment issues


The Fourth Amendment to the United States Constitution
Fourth Amendment to the United States Constitution
The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause...

 is the part of the Bill of Rights which guards against "unreasonable" searches and seizures by agents of the government, and, for "reasonable" searches or seizures by such agents, requires an order from a court known as a warrant
Warrant (law)
Most often, the term warrant refers to a specific type of authorization; a writ issued by a competent officer, usually a judge or magistrate, which permits an otherwise illegal act that would violate individual rights and affords the person executing the writ protection from damages if the act is...

. It is solely a right of the individual that neither the Executive nor Legislative branch can lawfully abrogate, not even if acting in concert: no statute can make an unreasonable search reasonable, nor a reasonable search unreasonable.

The term "unreasonable" is deliberately imprecise but connotes the sense that there is a rational basis for the search and that it is not an excessive imposition upon the individual given the motivation for and circumstances of the search, and is in accordance with customary societal norms. It is conceived that a judge will be sufficiently distanced from the authorities seeking a warrant that he can render an impartial decision unaffected by any prejudices or improper motivations they (or the legislators who enacted a law they are seeking to enforce) may harbor.

An individual who believes that his Fourth Amendment rights have been violated by an unreasonable search or seizure may file a civil suit for monetary compensation and to seek a court-ordered end to a pattern or practice of such unlawful activities by government authorities. Such civil rights violations are sometimes punishable by state or federal law. Evidence obtained in an unlawful search or seizure is generally inadmissible in a criminal trial.

The law countenances searches without warrant as "reasonable" in numerous circumstances, among them (see below): the persons, property, and papers of individuals crossing the border of the United States and those of paroled felons; in prisons, public schools and government offices; and of international mail. Although these are undertaken as a result of statute or Executive order, they should not be seen as deriving their legitimacy from these, rather, the Fourth Amendment explicitly allows reasonable searches, and the government has instituted some of these as public policy.

The Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...

 held in Katz v. United States
Katz v. United States
Katz v. United States, , is a United States Supreme Court case discussing the nature of the "right to privacy" and the legal definition of a "search." The Court’s ruling adjusted previous interpretations of the unreasonable search and seizure clause of the Fourth Amendment to count immaterial...

(1967), that the monitoring and recording of private conversations within the United States constitutes a "search" for Fourth Amendment
Fourth Amendment to the United States Constitution
The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause...

 purposes, and therefore the government must generally obtain a warrant before undertaking such domestic wiretapping.

The protection of "private conversations" has been held to apply only to conversations where the participants have not merely a desire but a reasonable expectation that the conversation is indeed private to themselves and that no party whatsoever is listening in. 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.

The law also 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. 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 would be required to engage in even physical searches of non-U.S. citizens abroad.

The U.S. Supreme Court has never ruled on the constitutionality of warrantless searches targeting foreign powers or their agents within the US. There have been, however, a number of Circuit Court
Circuit court
Circuit court is the name of court systems in several common law jurisdictions.-History:King Henry II instituted the custom of having judges ride around the countryside each year to hear appeals, rather than forcing everyone to bring their appeals to London...

 rulings upholding the constitutionality of such warrantless searches. In USA v. Osama 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." Assistant Attorney General William Moschella
William Moschella
William Emil Moschella , a United States lawyer and former Associate Deputy Attorney General.- Career :Moschella received a bachelor's degree from the University of Virginia in 1990. Following graduation, he spent seven years in a variety of positions in the office of Congressman Frank R...

 in his written response to questions from the House Judiciary Committee explained that in the administration's view, this unanimity of pre-FISA Circuit Court decisions vindicates their argument that warrantless foreign-intelligence surveillance authority existed prior to FISA and since, as these ruling indicate, that authority derives from the Executive's inherent Article II powers, they may not be encroached by statute. In 2002, the United States Foreign Intelligence Surveillance Court of Review
United States Foreign Intelligence Surveillance Court of Review
The United States Foreign Intelligence Surveillance Court of Review is a U.S. federal court authorized under and established by the Foreign Intelligence Surveillance Act of 1978...

 (Court of Review) met for the first time and issued an opinion (In Re Sealed Case No. 02-001
In Re Sealed Case No. 02-001
In re Sealed Case, 310 F.3d 717 , is decision by the United States Foreign Intelligence Surveillance Court of Review reviewing a "denial" of a Foreign Intelligence Surveillance Act application handed down on May 17, 2002. The Court of Review reversed the Foreign Intelligence Surveillance Court ...

) which seems to echo that view. They too noted all the Federal courts of appeal having looked at the issue had concluded that there was constitutional power for the president to conduct warrantless foreign intelligence surveillance. Furthermore, based on these rulings it "took for granted such power exits" and ruled that under this presumption, "FISA could not encroach on the president's constitutional power." Professor Orin Kerr argues in rebuttal that the part of In Re Sealed Case that dealt with FISA (rather than the Fourth Amendment) was nonbinding obiter dicta
Obiter dictum
Obiter dictum is Latin for a statement "said in passing". An obiter dictum is a remark or observation made by a judge that, although included in the body of the court's opinion, does not form a necessary part of the court's decision...

 and that the argument does not restrict Congress's power to regulate the executive in general.

Harold Koh, 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...

, Suzanne Spaulding, former general counsel for the Intelligence Committees of the House and Senate, and former Counsel to the President 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...

, contend that FISA clearly makes the wiretapping illegal and subject to the criminal penalties of FISA, (in seeming disagreement with the FISA Court of Review finding above) and that the president's own admissions already constitute sufficient evidence of a violation of the Fourth Amendment
Fourth Amendment to the United States Constitution
The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause...

, without requiring further factual evidence. Professor John C. Eastman
John C. Eastman
John C. Eastman is an American law professor and politician. He is the Donald P. Kennedy Chair in Law and former Dean at Chapman University School of Law. in Orange, California...

, in his analysis, prepared at the behest of the House Judiciary Committee, comparing the CRS
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...

 and DOJ
United States Department of Justice
The United States Department of Justice , is the United States federal executive department responsible for the enforcement of the law and administration of justice, equivalent to the justice or interior ministries of other countries.The Department is led by the Attorney General, who is nominated...

 reports, 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."
Border search exception

Orin S. Kerr, associate professor of law at The George Washington University Law School
The George Washington University Law School
The George Washington University Law School, commonly referred to as GW Law, is the law school of The George Washington University. It was founded in 1825 and is the oldest law school in Washington, D.C. The school is accredited by the American Bar Association and is a charter member of the...

 and a leading scholar in the subjects of computer crime law
Computer crime
Computer crime, or cybercrime, refers to any crime that involves a computer and a network. The computer may have been used in the commission of a crime, or it may be the target. Netcrime refers to criminal exploitation of the Internet. Such crimes may threaten a nation’s security and financial health...

 and internet surveillance, points to an analogy between the NSA intercepts and searches allowed by the Fourth Amendment under the border search exception.
Criminal prosecution under the NSA program

Evidence gathered without warrant may raise significant Fourth Amendment
Fourth Amendment to the United States Constitution
The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause...

 issues which could preclude its use in a criminal trial. As a general rule of law, evidence obtained improperly without lawful authority, may not be used in a criminal prosecution. The U.S. Supreme Court has never addressed the constitutionality of warrantless searches (which has been broadly defined by the court to include surveillance) targeting foreign powers or their agents, the admissibility of such evidence in a criminal trial nor whether it is permissible to obtain or use evidence gathered without warrant against US persons acting as agents of a foreign power.
Presidential findings

The National Security Act of 1947 requires Presidential findings for covert acts. SEC. 503. [50 U.S.C. 413b] (a) (5) of that act states: "A finding may not authorize any action that would violate the Constitution or any statute of the United States."

District Court findings


On August 17, 2006, Judge Anna Diggs Taylor
Anna Diggs Taylor
Anna Diggs Taylor is a United States District Judge for the United States District Court for the Eastern District of Michigan. She graduated from Barnard College in 1954 and Yale Law School in 1957, and worked in the Office of Solicitor for the United States Department of Labor...

 of the United States District Court for the Eastern District of Michigan
United States District Court for the Eastern District of Michigan
The United States District Court for the Eastern District of Michigan is the Federal district court with jurisdiction over of the eastern portion of the state of Michigan. The Court is based in Detroit, with courthouses also located in Ann Arbor, Bay City, Flint, and Port Huron...

 ruled in ACLU v. NSA
ACLU v. NSA
American Civil Liberties Union et al., v. National Security Agency / Central et al., 493 F.3d 644 , is a case decided July 6, 2007, in which the United States Court of Appeals for the Sixth Circuit held that the plaintiffs in the case did not have standing to bring the suit against the NSA, because...

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]". In her ruling, she wrote:
Even some legal experts who agreed with the outcome have criticized the reasoning set forth in the opinion Others have 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 chose to focus solely on arguments about standing and state secrets grounds).

On October 4, 2006, a panel of the United States 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...

 unanimously ruled that the government can continue the program while it appeals the lower court decision.

On July 6, 2007 the Sixth Circuit dismissed the case, finding that the plaintiffs had no standing.

The Court found that:

Corporate confidentiality analysis


Corporate secrecy is also an issue. Wired reported: In a letter to the EFF
Electronic Frontier Foundation
The Electronic Frontier Foundation is an international non-profit digital rights advocacy and legal organization based in the United States...

, 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."
However, Chief Judge Vaughn Walker stated, during the September 12, 2008 hearing in the class-action lawsuit filed by the EFF, that the Klein evidence could be presented in court, effectively ruling that AT&T's trade secret and security claims were unfounded.

Arguing that the program is legal or probably legal based upon War Powers Resolution


The majority of legal arguments supporting the NSA warrantless surveillance program have been based on the War Powers Resolution
War Powers Resolution
The War Powers Resolution of 1973 is a federal law intended to check the power of the President in committing the United States to an armed conflict without the consent of Congress. The resolution was adopted in the form of a United States Congress joint resolution; this provides that the...

. There have not been any other noteworthy types of supporting legal arguments. The War Powers Resolution has been questioned as unconstitutional since its creation, and its adaptation to the NSA warrantless surveillance program has been questionable.
  • John C. Eastman
    John C. Eastman
    John C. Eastman is an American law professor and politician. He is the Donald P. Kennedy Chair in Law and former Dean at Chapman University School of Law. in Orange, California...

    , Chapman Law professor and Director of the Claremont Institute Center for Constitutional Jurisprudence, wrote in a letter to House Judiciary Committee Chairman James Sensenbrenner on January 27, 2006, that the Congressional Research Service's assessment was institutionally biased against the President, ignored key constitutional text and Supreme Court precedent, and that the case made by the Department of Justice in support of the President's authority to conduct surveillance of enemy communications in time of war was compelling.
  • Robert Turner, Associate Director of the Center for National Security Law at the University of Virginia
    University of Virginia
    The University of Virginia is a public research university located in Charlottesville, Virginia, United States, founded by Thomas Jefferson...

    , testified before Congress on March 31, 2006, that "I believe the President has this authority by virtue of his “executive Power” vested in him by Article II, Section 1, of the Constitution. And if he needed any additional authority, the AUMF statute—enacted with but a single dissenting vote in the entire Congress—clearly empowers him to exercise the intelligence-gathering component of his Commander in Chief power as well."http://judiciary.senate.gov/testimony.cfm?id=1841&wit_id=5217
  • Michael Stokes Paulsen, Professor at the University of St. Thomas
    University of St. Thomas (Minnesota)
    The University of St. Thomas is a private, Catholic, liberal arts, and archdiocesan university located in St. Paul and Minneapolis, Minnesota, United States...

    , in a debate with Professors Heidi Kitrosser and Dale Carpenter
    Dale Carpenter
    Dale Carpenter is an American legal commentator and Earl R. Larson Professor of Civil Rights and Civil Liberties Law at the University of Minnesota Law School...

     of University of Minnesota Law School
    University of Minnesota Law School
    The University of Minnesota Law School, located in Minneapolis, Minnesota, USA, is a professional school of the University of Minnesota. The school offers a Juris Doctor , Masters of Law for Foreign Lawyers, and joint degrees with J.D./M.B.A., J.D./M.P.A, J.D./M.A., J.D./M.S., J.D./Ph.D.,...

     entitled Presidential Powers in Time of War
  • Letter from Senator Pat Roberts to Senator Arlen Specter Senator defending NSA program legality, February 3, 2006

War Powers Resolution used against US citizens in an undeclared war and without Authorization for Use of Military Force is unconstitutional


Some people assert that the Patriot Act is not unconstitutional as pertaining to its implications on US citizens. Their arguments are based on the assertion that government has unlimited powers to protect against enemies during wartime. There have been no Declarations of war by the US that could include a direct declaration of war against US citizens. Under the War Powers Resolution
War Powers Resolution
The War Powers Resolution of 1973 is a federal law intended to check the power of the President in committing the United States to an armed conflict without the consent of Congress. The resolution was adopted in the form of a United States Congress joint resolution; this provides that the...

 the only option otherwise was to enact an authorization of the use of military force (which has been seen as unconstitutional since its creation. Under the War Powers Resolution Authorization for Use of Military Force Against Terrorists
Authorization for Use of Military Force Against Terrorists
The Authorization for Use of Military Force Against Terrorists , one of two resolutions commonly known as "AUMF" , was a joint resolution passed by the United States Congress on September 14, 2001, authorizing the use of United States Armed Forces against those responsible for the attacks on...

 (AUMF) was enacted. The AUMF has been used as a basis for justifying the Patriot Act and related laws. The AUMF strictly 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. This declaration of war only goes so far though. Since it clearly identifies the enemy "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" & it states a war-time goal of " in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." Therefore these "nations, organizations or persons" would have had to have been identified as having "planned, authorized, committed, or aided the (9/11) terrorist attacks... or harbored such organizations or persons." Since the language in the declaration of war clearly states that the declared enemy had to have been involved with a specific aspect of causing (planned, authorized, committed, aided, or harbored) 9/11,the enforcement of such policies is legally limited to those parties as well. The application of wartime powers worldwide (and within USA) assumed under these pretenses can be seen as an implicit interpretation of the law, although it explicitly states that the enemies must have been involved with 9/11.

Since no US citizens have been identified as being involved in the 9/11 attacks, and since AUMF strictly states that war-time enemies are those who were involved in 9/11, extending these war-time powers to US citizens can be seen as unconstitutional or an undeclared war.

While the Patriot Act does not explicitly state that its powers are based on the AUMF, the opinions that its resulting actions are constitutional are. Without a wartime declaration or Authorization for Use of Military Force against a particular group, the US government would not have the ability to adopt limitless constitution-breaking powers, as such is strictly forbidden in the constitution. The Tenth Amendment
Tenth Amendment to the United States Constitution
The Tenth Amendment to the United States Constitution, which is part of the Bill of Rights, was ratified on December 15, 1791...

 explicitly states that powers not granted to the federal government nor prohibited to the states by the Constitution of the United States are reserved to the states or the people." The Ninth Amendment
Ninth Amendment to the United States Constitution
The Ninth Amendment to the United States Constitution, which is part of the Bill of Rights, addresses rights of the people that are not specifically enumerated in the Constitution.-Text:-Adoption:When the U.S...

 states that "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. Hence since the war-time powers have not been legally enacted against US citizens the enumeration of certain powers does not override the enumeration of certain rights. Without the backing of a declaration of war stating the US citizens as an enemy, the powers that have been enacted against US citizens under the Patriot Act are unconstitutional (as they violate 1st, 4th and other amendments).

Arguing that the program is illegal or probably illegal


The arguments against the legality of the NSA fall into two broad categories, those who argue that FISA raises no Constitutional issues and therefore the NSA program is illegal on its face and those who argue that FISA (perhaps purposefully) raises a Constitutional conflict which should be resolved in Congress' favor.
  • On February 13, 2006, 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...

     (ABA) denounced the warrantless domestic surveillance program, accusing the President of exceeding his powers under the Constitution. The ABA also formulated a policy opposing any future government use of electronic surveillance in the United States for foreign intelligence purposes without obtaining warrants from a special secret court as required by the 1978 Foreign Intelligence Surveillance Act.http://www.washingtonpost.com/wp-dyn/content/article/2006/02/13/AR2006021302006.html
  • According to a report in The Boston Globe on February 2, 2006 three law professors, David D. Cole
    David D. Cole
    David D. Cole is an American law professor at the Georgetown University Law Center. He has published in various legal fields including civil rights, criminal justice, constitutional law and law and literature...

     (Georgetown University
    Georgetown University
    Georgetown University is a private, Jesuit, research university whose main campus is in the Georgetown neighborhood of Washington, D.C. Founded in 1789, it is the oldest Catholic university in the United States...

    ), Richard Epstein (University of Chicago
    University of Chicago
    The University of Chicago is a private research university in Chicago, Illinois, USA. It was founded by the American Baptist Education Society with a donation from oil magnate and philanthropist John D. Rockefeller and incorporated in 1890...

    ), and Philip Heymann (Harvard), said that what 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....

     is doing is unprecedented. Bush's claim that other presidents asserted that wartime powers supersede an act of Congress, "is either intentionally misleading or downright false," Cole said. He said Bush is misstating the In Re Sealed Case No. 02-001
    In Re Sealed Case No. 02-001
    In re Sealed Case, 310 F.3d 717 , is decision by the United States Foreign Intelligence Surveillance Court of Review reviewing a "denial" of a Foreign Intelligence Surveillance Act application handed down on May 17, 2002. The Court of Review reversed the Foreign Intelligence Surveillance Court ...

     ruling which supported Congressional regulation of surveillance. Epstein believes the United States Supreme Court would reject the Administration's argument and said, "I find every bit of this legal argument disingenuous...The president's position is essentially that (Congress
    United States Congress
    The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....

    ) is not doing the right thing, so I'm going to act on my own." Professor Heymann, a former deputy US attorney general 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."
  • Cole, Epstein, Heynmann and eleven other prominent legal scholars (Beth Nolan
    Beth Nolan
    Beth Nolan is a vice president and general counsel ofthe George Washington University. She was Bill Clinton's final White House Counsel...

    , Curtis Bradley, Geoffrey Stone, Harold Hongju Koh
    Harold Hongju Koh
    Harold Hongju Koh is an Korean American lawyer and legal scholar. He currently serves as the Legal Adviser of the Department of State. He was nominated to his current position by President Barack Obama on March 23, 2009, and confirmed by the Senate on June 25, 2009.In public service, Koh...

    , Kathleen Sullivan
    Kathleen Sullivan
    Kathleen Marie Sullivan is a professor at the Stanford Law School and name partner at Quinn Emanuel Urquhart & Sullivan, a litigation-only law firm with offices in California, New York, Silicon Valley, Chicago, San Francisco, Germany, London, and Tokyo where she chairs their national appellate...

    , Laurence Tribe
    Laurence Tribe
    Laurence Henry Tribe is a professor of constitutional law at Harvard Law School and the Carl M. Loeb University Professor at Harvard University. He also works with the firm Massey & Gail LLP on a variety of matters....

    , Martin Lederman, Ronald Dworkin
    Ronald Dworkin
    Ronald Myles Dworkin, QC, FBA is an American philosopher and scholar of constitutional law. He is Frank Henry Sommer Professor of Law and Philosophy at New York University and Emeritus Professor of Jurisprudence at University College London, and has taught previously at Yale Law School and the...

    , Walter Dellinger, William S. Sessions
    William S. Sessions
    William Steele Sessions is a civil servant who served as a judge and 4th Director of the Federal Bureau of Investigation...

     and William Van Alstyne
    William Van Alstyne
    William Warner Van Alstyne is an American lawyer, law professor, and constitutional law scholar. He currently holds the named position of Lee Professor of Law at William and Mary Law School....

    ) wrote a letter to Congress that appeared in the New York Review of Books on February 9, 2006.http://www.nybooks.com/articles/18650 They wrote that "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. Accordingly the program appears on its face to violate existing law." They summarized:
  • Professor Peter Swire
    Peter Swire
    Peter Swire is the C. William O'Neil Professor at the Moritz College of Law of Ohio State University and an internationally recognized expert in privacy law. Swire is also a Senior Fellow at the Center for American Progress...

    , the C. William O’Neill Professor of Law at the Ohio State University Moritz College of Law
    Moritz College of Law
    The Ohio State University Moritz College of Law is a public law school and charter member of the Association of American Law Schools. According to the 2010 U.S. News & World Report rankings, the Moritz College of Law is 35th in the nation overall and is in the top ten among public law schools. The...

     and Visiting Senior Fellow at the Center for American Progress
    Center for American Progress
    The Center for American Progress is a progressive public policy research and advocacy organization. Its website states that the organization is "dedicated to improving the lives of Americans through progressive ideas and action." It has its headquarters in Washington D.C.Its President and Chief...

    , wrote a detailed "Legal FAQs on NSA Wiretaps" concluding that "[b]ased on the facts available to date, the wiretap program appears to be clearly illegal." Prof. Swire has previously written a very detailed history and analysis of the Foreign Intelligence Surveillance Act, published in Volume 72 of the George Washington Law Review, at 1306 (2004) and previously chaired a White House Working Group, including the intelligence agencies, on how to update electronic surveillance law for the Internet Age.
  • Robert Reinstein, dean of the law school at Temple University
    Temple University
    Temple University is a comprehensive public research university in Philadelphia, Pennsylvania, United States. Originally founded in 1884 by Dr. Russell Conwell, Temple University is among the nation's largest providers of professional education and prepares the largest body of professional...

    , has asserted that the warrantless domestic spying program is
    • Mr. Reinstein asserted that the broad consensus among legal scholars and national security experts is similar to his own analysis, and he predicted that the courts will rule that the program is unconstitutional. New York Times
  • Edward Lazarus
    Edward Lazarus
    Edward Lazarus is a lawyer and writer who was named Chief of Staff of the Federal Communications Commission on June 29, 2009. He went to the FCC from the Los Angeles office of the law firm Akin Gump Strauss Hauer & Feld....

    , author
    Closed Chambers
    Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court is a 1998 book by Edward Lazarus, who served as a law clerk for U.S. Supreme Court Justice Harry Blackmun during the October Term 1988...

    , law professor and former U.S. Supreme Court clerk and federal prosecutor, has argued in articles such as "Warrantless Wiretapping: Why It Seriously Imperils the Separation of Powers, And Continues the Executive's Sapping of Power From Congress and the Courts", that "Unilateral executive power is tyranny, plain and simple".
  • Orin S. Kerr, a professor at The George Washington University Law School
    The George Washington University Law School
    The George Washington University Law School, commonly referred to as GW Law, is the law school of The George Washington University. It was founded in 1825 and is the oldest law school in Washington, D.C. The school is accredited by the American Bar Association and is a charter member of the...

    , prominent blogger and scholar of the legal framework of electronic surveillance has opined that the issues are complex, but that after his first analysis he concluded that the wiretapping probably does not infringe on Fourth Amendment constitutional rights, though it probably does violate FISA. President Bush has maintained he acted within "legal authority derived from the constitution" and that Congress "granted [him] additional authority to use military force against al Qaeda". However, while the President may argue that the necessary statutory authority to override FISA's warrant provisions is provided by the authorization to use "all necessary force" in the employment of military resources to protect the security of the United States, and that the use of wiretapping is a qualifying use of force (under the terms of the authorization for the use of military force against al-Qaida as found in Senate Joint Resolution 23, 2001), Kerr believes that this justification is ultimately unpersuasive, as is the argument that the President's power as the Commander-in-Chief (as derived from Article Two of the United States Constitution
    Article Two of the United States Constitution
    Article Two of the United States Constitution creates the executive branch of the government, consisting of the President and other executive officers.-Clause 1: Executive power:...

    ) provides him with the necessary constitutional authority to circumvent FISA during a time of war. Kerr cautiously estimates that about eight of the nine Supreme Court justices would agree with him that Article Two cannot trump statutes like FISA.
  • Robert M. Bloom, Professor of Law at Boston College
    Boston College
    Boston College is a private Jesuit research university located in the village of Chestnut Hill, Massachusetts, USA. The main campus is bisected by the border between the cities of Boston and Newton. It has 9,200 full-time undergraduates and 4,000 graduate students. Its name reflects its early...

    , says this in a paper entitled "The Constitutional Infirmity of Warrantless NSA Surveillance: The Abuse of Presidential Power and the Injury to the Fourth Amendment," published on February 19, 2007, which he co-authored with William J. Dunn, a former Defense Department intelligence analyst, also of BC Law School:http://lsr.nellco.org/cgi/viewcontent.cgi?article=1164&context=bc/bclsfp
  • Glenn Greenwald
    Glenn Greenwald
    Glenn Greenwald is an American lawyer, columnist, blogger, and author. Greenwald worked as a constitutional and civil rights litigator before becoming a contributor to Salon.com, where he focuses on political and legal topics...

    , constitutional lawyer, author
    How Would a Patriot Act?
    How Would A Patriot Act? Defending American Values From A President Run Amok is a New York Times best selling book by constitutional lawyer and blogger Glenn Greenwald that appeared in May 2006...

     and prominent blogger (Greenwald's legal blog) arguing that the NSA program is illegal summarized:http://glenngreenwald.blogspot.com/2006/02/nsa-legal-arguments.html
  • Jordan Paust, Mike and Teresa Baker College Professor of Law at the University of Houston Law Center
    University of Houston Law Center
    The University of Houston Law Center is a law school located in Houston, Texas. It is accredited by the American Bar Association and is a member of the Association of American Law Schools. Founded in 1947, the Law Center is one of 12 academic colleges of the University of Houston...

    , rejected the administration's legal arguments for the NSA program writing:http://jurist.law.pitt.edu/forumy/2005/12/not-authorized-by-law-domestic-spying.php
  • William C. Banks, Professor of Law and Director of the Institute for National Security and Counterterrorism at Syracuse University
    Syracuse University
    Syracuse University is a private research university located in Syracuse, New York, United States. Its roots can be traced back to Genesee Wesleyan Seminary, founded by the Methodist Episcopal Church in 1832, which also later founded Genesee College...

     argued that the NSA program is unconstitutional, writing that "in the unlikely event that legal authority for the NSA program can be found, this domestic spying violates the Fourth Amendment."http://jurist.law.pitt.edu/forumy/2006/03/nsa-eavesdropping-and-fourth-amendment.php
  • 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...

    , Author and former White House Counsel to President Richard Nixon testified before Congress on March 31, 2006, on the issue of censuring George 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....

     for authorizing the NSA wiretap program, saying "I hope... you will not place the president above the law by inaction. As I was gathering my thoughts yesterday to respond to the hasty invitation, it occurred to me that had the Senate or House, or both, censured or somehow warned Richard Nixon, the tragedy of Watergate might have been prevented. Hopefully the Senate will not sit by while even more serious abuses unfold before it."http://judiciary.senate.gov/testimony.cfm?id=1841&wit_id=5218

Technical and operational details


Because of its highly classified status, little is publicly known about the actual implementation of the NSA domestic electronic surveillance program. Mark Klein, a retired 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...

 communications technician, submitted an affidavit including limited technical details known to him personally in support of a class-action lawsuit filed by the Electronic Frontier Foundation
Electronic Frontier Foundation
The Electronic Frontier Foundation is an international non-profit digital rights advocacy and legal organization based in the United States...


in federal district court in San Francisco in January 2006 on behalf of AT&T customers who alleged that they had been damaged by the telecommunications corporation's cooperation with the NSA. The lawsuit is called Hepting v. AT&T
Hepting v. AT&T
Hepting 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...

.
A January 16, 2004 statement by Mr. Klein includes additional technical details regarding the secret 2003 construction of an NSA-operated monitoring facility in Room 641A
Room 641A
Room 641A is an intercept facility operated by AT&T for the U.S. National Security Agency, beginning in 2003. Room 641A is located in the SBC Communications building at 611 Folsom Street, San Francisco, three floors of which were occupied by AT&T before SBC purchased AT&T...

 of 611 Folsom Street in San Francisco, the site of a large SBC phone building, three floors of which are occupied by AT&T.
According to Klein's affidavit, the NSA-equipped room uses equipment built by Narus Corporation to intercept and analyze communications traffic, as well as perform data-mining functions.

In an article appearing in the January/February 2008 issue of the Institute of Electrical and Electronics Engineers
Institute of Electrical and Electronics Engineers
The Institute of Electrical and Electronics Engineers is a non-profit professional association headquartered in New York City that is dedicated to advancing technological innovation and excellence...

 journal of Security and Privacy, noted technology experts from academia and the computing industry analyzed potential security risks posed by the NSA program, based on information contained in Klein's affidavits as well as 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 US Federal Communications Commission.
They concluded that the likely architecture of the system created serious security risks, including the danger that such a surveillance system could be exploited by unauthorized users, criminally misused by trusted insiders, or abused by government agents.

Warrantless wiretaps and the history of FISA


The administration has compared the NSA warrantless surveillance program with historical wartime warrantless searches in the United States, going back to George Washington
George Washington
George Washington was the dominant military and political leader of the new United States of America from 1775 to 1799. He led the American victory over Great Britain in the American Revolutionary War as commander-in-chief of the Continental Army from 1775 to 1783, and presided over the writing of...

.

Critics have pointed out that Washington's surveillance occurred before the existence of the U.S. Constitution, and the other historical precedents cited by the administration were before the passage of FISA, and therefore did not directly contravene federal law. Abuses of electronic surveillance by the federal government such as Project SHAMROCK
Project SHAMROCK
Project SHAMROCK, considered to be the sister project for Project MINARET, was an espionage exercise that involved the accumulation of all telegraphic data entering into or exiting from the United States...

 led to reform legislation in the 1970s. Advancing technology began to present questions not directly addressed by the legislation as early as 1985.

Executive orders by previous administrations including Clinton
Bill Clinton
William Jefferson "Bill" Clinton is an American politician who served as the 42nd President of the United States from 1993 to 2001. Inaugurated at age 46, he was the third-youngest president. He took office at the end of the Cold War, and was the first president of the baby boomer generation...

's and Carter
Jimmy Carter
James Earl "Jimmy" Carter, Jr. is an American politician who served as the 39th President of the United States and was the recipient of the 2002 Nobel Peace Prize, the only U.S. President to have received the Prize after leaving office...

's authorized the attorneys general to exercise authority with respect to both options under FISA. In Clinton's executive order, he 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".

Sufficiency of FISA in the war on terror


On December 19, 2005, U.S. Dept. of Justice Assistant Attorney General for Legislative Affairs, William Moschella, wrote a letter to the Chairs and Ranking Members of the U.S. Senate and House of Representatives, defending the NSA program:
U.S. District Judge Dee Benson
Dee Benson
Dee Vance Benson is a Federal judge and former chief judge for the United States District Court for the District of Utah. He was briefly a professional soccer player. He was nominated as judge by President George H. W. Bush on May 16, 1991, and confirmed by the United States Senate on September...

 of Utah, also of the FISC, stated that he was unclear on why the FISC's emergency authority would not meet the administration's stated "need to move quickly." He and fellow judges on the court attended a briefing in January, called by presiding Judge Colleen Kollar-Kotelly. Reportedly, 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."

In part to address this problem, several commentators have raised the issue of whether, regardless how one feels about the authorization issue, FISA needs to be amended to address specific foreign intelligence needs, current technology developments, and advanced technical methods of intelligence gathering, in particular to provide for programmatic approvals of general or automated surveillance of foreign terrorist communications, the results of which could then legally be used as predicate for FISA warrants. In a recent essay, Judge Richard A. 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.”
For other examples, see Fixing Surveillance; Why We Listen, The Eavesdropping Debate We Should be Having; A New Surveillance Act; and A historical solution to the Bush spying issue (the latter setting out a historical perspective on the need for programmatic approval in foreign intelligence surveillance generally). And see Whispering Wires and Warrantless Wiretaps (discussing how FISA is inadequate to address certain technology developments).

During the investigational phase of the 9/11 Commission
9/11 Commission
The National Commission on Terrorist Attacks Upon the United States, also known as the 9/11 Commission, was set up on November 27, 2002, "to prepare a full and complete account of the circumstances surrounding the September 11, 2001 attacks", including preparedness for and the immediate response to...

, a letter written by Special Agent Coleen Rowley
Coleen Rowley
Coleen Rowley is a former FBI agent and whistleblower, and was a Democratic-Farmer-Labor Party candidate for Congress in Minnesota's 2nd congressional district, one of eight congressional districts in Minnesota in 2006...

, in her capacity as legal council to the FBI's Minneapolis Field Office, to FBI Director Robert Mueller
Robert Mueller
Robert Swan Mueller III is the 6th and current Director of the United States Federal Bureau of Investigation .-Early life:...

 came to the attention of the committee. In that letter and in subsequent testimony before the commission and the Senate Judiciary Committee, SA Rowley recounted among other things, the manner in which FISA procedural hurdles had hampered the FBI's investigation of Zacarias Moussaoui
Zacarias Moussaoui
Zacarias Moussaoui is a French citizen who was convicted of conspiring to kill citizens of the US as part of the September 11 attacks...

 (the so called "20th hijacker") prior to the 9/11 attacks. Among the factors she cited were the complexity of the application and the detailed information required and 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, Director Mueller in response to questions about the Rowley allegations testified 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.

FISA exclusivity controversy


On January 19, 2006 the Department of Justice published a memorandum that stated in part:
The following day, Senator Patrick Leahy
Patrick Leahy
Patrick Joseph Leahy is the senior United States Senator from Vermont and member of the Democratic Party. He is the first and only elected Democratic United States Senator in Vermont's history. He is the chairman of the Senate Judiciary Committee. Leahy is the second most senior U.S. Senator,...

 (D-VT
Vermont
Vermont is a state in the New England region of the northeastern United States of America. The state ranks 43rd in land area, , and 45th in total area. Its population according to the 2010 census, 630,337, is the second smallest in the country, larger only than Wyoming. It is the only New England...

), the ranking Democrat on the Senate Judiciary Committee along with lone co-sponsor Senator Ted Kennedy (D-MA) introduced S. Res. 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." This non-binding resolution died in the Senate without being brought up for debate or being voted upon, so cannot be considered the "sense of the Senate."

On February 2, 2006 the same 14 constitutional scholars and former government officials responded:
On June 29, 2006, in a detainee case Hamdan v. Rumsfeld
Hamdan v. Rumsfeld
Hamdan v. Rumsfeld, 548 U.S. 557 , is a case in which the Supreme Court of the United States held that military commissions set up by the Bush administration to try detainees at Guantanamo Bay lack "the power to proceed because its structures and procedures violate both the Uniform Code of Military...

, the Supreme Court rejected an analogous AUMF argument. Writing for the majority, Justice 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 there was nothing in the AUMF language "even hinting that Congress intended to expand or alter the authorization set forth in Article 21 of the Uniform Code of Military Justice
Uniform Code of Military Justice
The Uniform Code of Military Justice , is the foundation of military law in the United States. It is was established by the United States Congress in accordance with the authority given by the United States Constitution in Article I, Section 8, which provides that "The Congress shall have Power . ....

. The distinction drawn by J. Stevens in Hamdan between that case and Hamdi, where the AUMF language was found to override the explicit language regarding detention in 18 U.S.C. § 4001(a) is that the instant case would require a "Repeal by implication" of the UCMJ. How this distinction would be drawn in future cases involving the NSA program is unclear.

Separation of powers and Unitary Executive theory


The administration argues that the power to conduct the warrantless surveillance within U.S. borders was granted by the Constitution and by a statutory exemption, as is advocated by the Unitary Executive theory
Unitary executive theory
The unitary executive theory is a theory of American constitutional law holding that the President controls the entire executive branch. The doctrine is based upon Article Two of the United States Constitution, which vests "the executive power" of the United States in the President.Although that...

 using the interpretation of John Yoo
John Yoo
John Choon Yoo is an American attorney, law professor, and author. As a former official in the United States Department of Justice during the George W...

 et al.. He argues that the President had the "inherent authority to conduct warrantless searches to obtain foreign intelligence information."

The United States Court of Appeals for the District of Columbia Circuit
United States Court of Appeals for the District of Columbia Circuit
The United States Court of Appeals for the District of Columbia Circuit known informally as the D.C. Circuit, is the federal appellate court for the U.S. District Court for the District of Columbia. Appeals from the D.C. Circuit, as with all the U.S. Courts of Appeals, are heard on a...

 has 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." Whether such declarations applying to foreign intelligence are in compliance with FISA has been examined by few courts since the passage of the act in 1978.

It is also uncertain whether the allegation that surveillance involves foreign parties suffices to extend law governing the president's military and foreign affairs powers to cover domestic activities. The Supreme Court voiced this concern in Hamdi v. Rumsfeld
Hamdi v. Rumsfeld
Hamdi v. Rumsfeld, 542 U.S. 507 was a U.S. Supreme Court decision reversing the dismissal of a habeas corpus petition brought on behalf of Yaser Esam Hamdi, a U.S. citizen being detained indefinitely as an "illegal enemy combatant." The Court recognized the power of the government to detain enemy...

, ruling that "a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens."

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...

, a nonpartisan research arm of the Library of Congress, released a detailed report on NSA electronic surveillance, "Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information," on January 5, 2006, which concluded:

Leaking of classified information


There is no single law that criminalizes the leaking of all classified information. There are certain statutes that prohibit certain types of classified information being leaked under certain circumstances. One such law is ; it was tacked on to the Espionage Act of 1917
Espionage Act of 1917
The Espionage Act of 1917 is a United States federal law passed on June 15, 1917, shortly after the U.S. entry into World War I. It has been amended numerous times over the years. It was originally found in Title 50 of the U.S. Code but is now found under Title 18, Crime...

 during the Second Red Scare in 1950. It is the 'SIGINT' statute, meaning signals intelligence. This statute says that
This statute is not limited in application to only federal government employees. However, the Code of Federal Regulations
Code of Federal Regulations
The Code of Federal Regulations is the codification of the general and permanent rules and regulations published in the Federal Register by the executive departments and agencies of the Federal Government of the United States.The CFR is published by the Office of the Federal Register, an agency...

 suggests the statute may apply primarily to the "[c]ommunication of classified information by Government officer or employee". 50 USCS §783 (2005).

There is a statutory procedure for a "whistleblower" in the intelligence community to report concerns with the propriety of a secret program, The Intelligence Community Whistleblower Protection Act
Intelligence Community Whistleblower Protection Act
The Intelligence Community Whistleblower Protection Act of 1998, amending the Central Intelligence Agency Act of 1949 and the Inspector General Act of 1978, sets forth a procedure for employees and contractors of specified federal intelligence agencies to report complaints or information to...

of 1998, Pub. L. 105-272, Title VII, 112 Stat. 2413 (1998). Essentially the Act provides for disclosure to the agency Inspector General, and if the result of that is unsatisfactory, appeal to the Congressional Intelligence Committees. A former official of the NSA, Russ Tice, has asked to testify under the terms of the Intelligence Community Whistleblower Protection Act, in order to provide information to these committees about "highly classified Special Access Programs, or SAPs, that were improperly carried out by both the NSA and the Defense Intelligence Agency
Defense Intelligence Agency
The Defense Intelligence Agency is a member of the Intelligence Community of the United States, and is the central producer and manager of military intelligence for the United States Department of Defense, employing over 16,500 U.S. military and civilian employees worldwide...

." (Washington Times)

Executive Order 13292
Executive Order 13292
Executive Order 13292 was an executive order issued by United States President George W. Bush on March 25, 2003, entitled "Further Amendment to Executive Order 12958, as Amended, Classified National Security Information." The Executive Order modified the manner in which sensitive information was...

, 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.

Publication of classified information


It is unlikely that the New York Times could be held liable for publishing its article under established Supreme Court precedent. In Bartnicki v. Vopper
Bartnicki v. Vopper
Bartnicki v. Vopper, 532 U.S. 514 , is a United States Supreme Court case relieving a media defendant of liability for broadcasting a taped conversation of a labor official talking to other union people about a teachers' strike...

,
532 U.S. 514, 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. The high court in Bartnicki accepted due to the suit's procedural position, that interception of information which was ultimately broadcast by the defendant radio station 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
Pentagon Papers
The Pentagon Papers, officially titled United States – Vietnam Relations, 1945–1967: A Study Prepared by the Department of Defense, is a United States Department of Defense history of the United States' political-military involvement in Vietnam from 1945 to 1967...

 case, (New York Times Co. v. U.S. (403 US 713)), the Supreme Court held in a 6-3 decision that injunctions against the New York Times publication of classified information (United States-Vietnam Relations, 1945-1967: A Study Prepared by The Department of Defense, a 47 volume, 7,000-page, top-secret United States Department of Defense
United States Department of Defense
The United States Department of Defense is the U.S...

 history of the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...

' political and military involvement in 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...

 from 1945 to 1971) 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 statute 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:
On the other hand, Sean McGahan of Northeastern University, told the Washington Post,

Administration response to press stories


On December 17, 2005, President George W. Bush addressed the growing controversy in his weekly radio broadcast. He stated that he was using his authority as President, as Commander in Chief of the US military, and such authority as the United States Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....

 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 the Justice Department
United States Department of Justice
The United States Department of Justice , is the United States federal executive department responsible for the enforcement of the law and administration of justice, equivalent to the justice or interior ministries of other countries.The Department is led by the Attorney General, who is nominated...

 and NSA lawyers "including NSA's general counsel and inspector general", and Congress leaders had been briefed "more than a dozen times". President's December 17, 2005 Radio Address

In a speech in Buffalo, New York on April 20, 2004, he had said that:
And again, during a speech at Kansas State University
Kansas State University
Kansas State University, commonly shortened to K-State, is an institution of higher learning located in Manhattan, Kansas, in the United States...

 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", and that:
During a speech in New York on January 19, 2006 Vice President Dick 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 that:

In a press conference on December 19 held by both 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...

 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 also 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 there was an increase in public discussion on the legality of the terrorist surveillance program by the Administration.

The United States Department of Justice
United States Department of Justice
The United States Department of Justice , is the United States federal executive department responsible for the enforcement of the law and administration of justice, equivalent to the justice or interior ministries of other countries.The Department is led by the Attorney General, who is nominated...

 sent a 42 page white paper
White paper
A white paper is an authoritative report or guide that helps solve a problem. White papers are used to educate readers and help people make decisions, and are often requested and used in politics, policy, business, and technical fields. In commercial use, the term has also come to refer to...

 to Congress on January 19, 2006 stating the grounds upon which it was felt the NSA program was entirely legal, which restates and elaborates on reasoning 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...

 used at the December press conference when the legality of the program was questioned. Gonzales spoke further at Georgetown University
Georgetown University
Georgetown University is a private, Jesuit, research university whose main campus is in the Georgetown neighborhood of Washington, D.C. Founded in 1789, it is the oldest Catholic university in the United States...

 January 24, claiming that Congress had given the President the authority to order the surveillance without going through the courts, and that normal procedures to order surveillance were too slow and cumbersome.

General Hayden stressed the NSA respect for the Fourth Amendment, stating at the National Press Club on January 23, 2006 that, "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."

Some sources state that despite the NSA program, "[t]he agency ... still seeks warrants to monitor entirely domestic communications." An article from February 5, 2006 in the Washington Post reported that the program had netted few suspects.

In a speech on January 25, 2006, Bush said, "I have the authority, both from the Constitution and the Congress, to undertake this vital program," 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."

President Bush reacted to a May 10 domestic call records article in 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...

by restating his position, that it is "not mining or trolling through the personal lives of millions of innocent Americans."

Congressional response



Three days after news broke about the warrantless wiretapping program, a bipartisan group of Senators—Democrats Dianne Feinstein
Dianne Feinstein
Dianne Goldman Berman Feinstein is the senior U.S. Senator from California. A member of the Democratic Party, she has served in the Senate since 1992. She also served as 38th Mayor of San Francisco from 1978 to 1988....

 of California
California
California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...

, Carl Levin
Carl Levin
Carl Milton Levin is a Jewish-American United States Senator from Michigan, serving since 1979. He is the Chairman of the Senate Committee on Armed Services. He is a member of the Democratic Party....

 of Michigan
Michigan
Michigan is a U.S. state located in the Great Lakes Region of the United States of America. The name Michigan is the French form of the Ojibwa word mishigamaa, meaning "large water" or "large lake"....

, Ron Wyden
Ron Wyden
Ronald Lee "Ron" Wyden is the senior U.S. Senator for Oregon, serving since 1996, and a member of the Democratic Party. He previously served in the United States House of Representatives from 1981 to 1996....

 of Oregon
Oregon
Oregon is a state in the Pacific Northwest region of the United States. It is located on the Pacific coast, with Washington to the north, California to the south, Nevada on the southeast and Idaho to the east. The Columbia and Snake rivers delineate much of Oregon's northern and eastern...

 and Republicans Chuck Hagel
Chuck Hagel
Charles Timothy "Chuck" Hagel is a former United States Senator from Nebraska. A member of the Republican Party, he was first elected in 1996 and was reelected in 2002...

 of Nebraska
Nebraska
Nebraska is a state on the Great Plains of the Midwestern United States. The state's capital is Lincoln and its largest city is Omaha, on the Missouri River....

 and Olympia Snowe
Olympia Snowe
Olympia Jean Snowe , née Bouchles, is the senior United States Senator from Maine and a member of the Republican Party. Snowe has become widely known for her ability to influence the outcome of close votes, including whether to end filibusters. She and her fellow Senator from Maine, Susan Collins,...

 of Maine
Maine
Maine is a state in the New England region of the northeastern United States, bordered by the Atlantic Ocean to the east and south, New Hampshire to the west, and the Canadian provinces of Quebec to the northwest and New Brunswick to the northeast. Maine is both the northernmost and easternmost...

, sent a letter dated December 19, 2005 to Judiciary
United States Senate Committee on the Judiciary
The United States Senate Committee on the Judiciary is a standing committee of the United States Senate, of the United States Congress. The Judiciary Committee, with 18 members, is charged with conducting hearings prior to the Senate votes on confirmation of federal judges nominated by the...

 and Intelligence Committees
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...

 chairmen 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 legal justification of the NSA program being based in part on the AUMF, Senators Leahy (D-VT) and Kennedy (D-MA) introduced Resolution 350 to the Judiciary Committee that purported to express a "sense of the Senate" that the AUMF "does not authorize warrantless domestic surveillance of United States citizens". Resolution 350 was never reported out of committee and has no effect.

In introducing their resolution to committee, they quoted Justice 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 their opinion that the US DOJ legal justification for the NSA program was a "manipulation of the law" similar to other "overreaching" and "twisted interpretations" in recent times. Leahy and Kennedy also asserted that Attorney General Gonzales "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 has 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 also asserted that in their view the procedures being followed in the NSA program, specifically, the ongoing 45 day reapproval by the Attorney General, the White House Counsel and the Inspector General of the National Security Agency, was "not good enough" because each of these is an executive branch appointees who in turn report directly to the Executive. Finally, they concluded that Congressional and Judicial oversight were fundamental and should not be unilaterally discarded. Resolution 350 has not been reported out of committee.

Senate Judiciary Committee Chairman Arlen Specter, in a three-page letter dated June 7, 2006 to Vice President Dick Cheney, to prompt the Administration to provide: input on his proposed legislation, briefings to his committee about the program, and more cooperation with Congressional oversight. Specter also wrote about the Vice President lobbying the other Republican members of the Judiciary Committee about compelling telephone companies to testify about classified information.

In February 2008, the Bush Administration backed a new version of the Foreign Intelligence Surveillance Act (FISA) that would grant telecom companies retroactive immunity from lawsuits stemming from the alleged surveillance. On March 13, 2008 the U.S. House of Representatives held a secret session to discuss classified information relating to the new FISA. On March 14, the House passed a bill that would not grant the immunity sought by the Bush administration.

Congressionally proposed FISA amendments


The Administration has contended that amendment was unnecessary because they believe 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." President Bush claims that he can ignore the law because he claims that the Constitution gives him "inherent authority" to do so.

However, 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...

 has stated that the Bush administration chose not to ask Congress for an amendment to FISA to authorize such wiretaps explicitly because it would have been difficult to get such an amendment without compromising classified information relating to operational details. "This is not a backdoor approach. We believe Congress has authorized this kind of surveillance. We have had discussions with Congress in the past -- certain members of Congress -- as to whether or not FISA could be amended to allow us to adequately deal with this kind of threat, and we were advised that that would be difficult, if not impossible." Some politicians and commentators have used this statement -- “would be difficult, if not impossible” -- to argue that the Administration declined to seek a specific amendment to FISA because the administration believed Congress would have rejected it. However, later in the same briefing Gonzales clarified his earlier remark to say that the administration had been advised that amendment was something they were not likely to get "without jeopardizing the existence of the program." At another briefing, two days later, Gonzales made this point again:
Finally, in his written Responses to Questions from Senator Specter in which Specter specifically asked why the administration had not sought to amend FISA to accommodate the NSA program, Gonzales wrote:
Nevertheless, competing legislative proposals to authorize the NSA program subject to Congressional or FISA court oversight have been proposed and have been the subject of Congressional hearings throughout the summer.

On March 16, 2006, Senators Mike DeWine (R-OH), Lindsey Graham (R-SC), Chuck Hagel (R-NE), and Olympia Snowe (R-ME) introduced the Terrorist Surveillance Act of 2006 (S.2455), under which the President would be given certain additional limited statutory authority to conduct electronic surveillance of suspected terrorists in the United States subject to enhanced Congressional oversight. Also on March 16, 2006, Senator Arlen Specter (R-PA) introduced The National Security Surveillance Act of 2006 (S.2453), which would amend FISA to grant retroactive amnesty for warrantless surveillance conducted under presidential authority and provide FISA court (FISC) jurisdiction to review, authorize, and oversight "electronic surveillance programs." On May 24, 2006, Senator Specter and Senator Dianne Feinstein (D-CA) introduced the Foreign Intelligence Surveillance Improvement and Enhancement Act of 2006 (S.3001) asserting 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 (R-NM) 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 on the United States. Surveillance beyond the initial 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 FISA court 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).

FISA court order


On January 18, 2007, Attorney General Alberto 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 FISA Court. 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." The ruling by the FISA Court 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 "innovative" court order on Jan. 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 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...

 said in a statement that "without more information about what the secret FISA court has authorized, there is no way to determine whether the NSA's current activities are lawful." 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...

 of Stanford Law School argues 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 the FISA law.

FISCR Ruling of August 2008


In August 2008, the United States Foreign Intelligence Surveillance Court of Review (FISCR)
United States Foreign Intelligence Surveillance Court of Review
The United States Foreign Intelligence Surveillance Court of Review is a U.S. federal court authorized under and established by the Foreign Intelligence Surveillance Act of 1978...

 affirmed the constitutionality of the Protect America Act of 2007
Protect America Act of 2007
The Protect America Act of 2007 , , is a controversial amendment to the Foreign Intelligence Surveillance Act that was signed into law on August 5, 2007. It removed the warrant requirement for government surveillance of foreign intelligence targets "reasonably believed" to be outside of the...

 in a heavily redacted opinion released on January 15, 2009, which is only the second such public ruling since the enactment of the FISA Act.

See also


  • Communications Assistance For Law Enforcement Act
    Communications Assistance for Law Enforcement Act
    The Communications Assistance for Law Enforcement Act is a United States wiretapping law passed in 1994, during the presidency of Bill Clinton...

  • Congressional response to the NSA warrantless surveillance program
  • Criticisms of the War on Terrorism
  • Data mining
    Data mining
    Data mining , a relatively young and interdisciplinary field of computer science is the process of discovering new patterns from large data sets involving methods at the intersection of artificial intelligence, machine learning, statistics and database systems...

  • Deep packet inspection
    Deep packet inspection
    Deep Packet Inspection is a form of computer network packet filtering that examines the data part of a packet as it passes an inspection point, searching for protocol non-compliance, viruses, spam, intrusions or predefined criteria to decide if the packet can...

  • ECHELON
    ECHELON
    ECHELON is a name used in global media and in popular culture to describe a signals intelligence collection and analysis network operated on behalf of the five signatory states to the UK–USA Security Agreement...

  • Foreign Intelligence Surveillance Act
  • General Michael Hayden
  • Hepting v. AT&T
    Hepting v. AT&T
    Hepting 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...

  • Information Awareness Office
    Information Awareness Office
    The Information Awareness Office was established by the Defense Advanced Research Projects Agency in January 2002 to bring together several DARPA projects focused on applying surveillance and information technology to track and monitor terrorists and other asymmetric threats to national security,...

  • Mark Riebling
    Mark Riebling
    Mark Riebling is a U.S. historian, essayist, and policy analyst. He has written on national security, the history of ideas, and Vatican foreign policy during Cold War and Second World War, and is the author of Wedge: The Secret War between the FBI and CIA....

  • Mass Surveillance
    Mass surveillance
    Mass 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,...

  • NSA call database
    NSA call database
    The United States' National Security Agency maintains a database containing hundreds of billions of records of telephone calls made by U.S...

  • Reichstag Fire Decree
    Reichstag Fire Decree
    The Reichstag Fire Decree is the common name of the Decree of the Reich President for the Protection of People and State issued by German President Paul von Hindenburg in direct response to the Reichstag fire of 27 February 1933. The decree nullified many of the key civil liberties of German...

  • Room 641A
    Room 641A
    Room 641A is an intercept facility operated by AT&T for the U.S. National Security Agency, beginning in 2003. Room 641A is located in the SBC Communications building at 611 Folsom Street, San Francisco, three floors of which were occupied by AT&T before SBC purchased AT&T...

  • Secure Communication
    Secure communication
    When two entities are communicating and do not want a third party to listen in, they need to communicate in a way not susceptible to eavesdropping or interception. This is known as communicating in a secure manner or secure communication...

  • Terrorist surveillance program - details of the program itself
  • The First Circle
    The First Circle
    In the First Circle is a novel by Aleksandr Solzhenitsyn released in 1968. A fuller version of the book was published in English in 2009....

    , Alexander Solzhenytsin

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