Re: The  “Terrorist Surveillance Act of 2006,” authorizing warrantless surveillance by NSA

Dear Senator:

On behalf of the American Civil Liberties Union, and its hundreds of thousands of activists, members and fifty-three affiliates nationwide, we write to express our strong opposition to the “Terrorist Surveillance Act of 2006,” which would authorize warrantless wiretapping of American residents.

This bill would severely weaken constitutional rights by ratifying the secret and illegal program of the National Security Agency (NSA) to monitor telephone and e-mail communications without requiring court approval.  The bill does not, as its proponents contend, require judicial review or increase disclosure to Congress, and it would actually limit the oversight already required by long-standing laws.  The Senate should reject it.

The proposed legislation bill would authorize potentially indefinite wiretaps and monitoring of e-mails and telephone calls of Americans in this country without any individualized determination by an independent court that such Americans have done anything wrong.  It would accomplish that objective by making several changes to current legal requirements flouted by the administration.  First, the bill would allow Americans’ phone calls and e-mails to be monitored for several weeks (45 days) without any possibility of court intervention, and then make court review optional.  Current law, in accordance with the Fourth Amendment, requires judicial approval before Americans’ communications are seized by the government, unless there is an emergency and then approval must be sought within three days.  Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. § 1805(f).     

Second, for surveillance beyond 45 days, the bill would give the administration the option of either seeking an order from the Foreign Intelligence Surveillance Court (FISC) or notifying a congressional subcommittee of the intent to continue the surveillance without having the probable cause of wrongdoing required by FISA.  Because the subcommittee is not a court, it would not have the power to deny approval to any such wiretaps, and it lacks the structural independence and competence of the judiciary to make or enforce individualized determinations.  Current law requires that judicially approved wiretaps under Title III or FISA provide the “exclusive” authority for wiretapping Americans in this country.  18 U.S.C. § 2511(2)(f); see also 50 U.S.C. § 1809 (making it a crime to wiretap Americans without a court order under the guise of national security or other rationales).  Thus, under this bill, court approval for wiretapping of Americans would no longer be mandatory as a matter of statute, despite the strictures of the Fourth Amendment.  Eroding the requirement of judicial review is a big step in the wrong direction.      

Third, the bill attempts to water down the meaning of “probable cause” for these warrantless wiretaps in a way that is inconsistent with the long-standing meaning of the probable cause required by the Constitution before an Americans’ communications, domestic or international, can be seized by the government.  Not only would this legislation substitute a decision by the executive branch for an independent check by the judicial branch, it would also allow government agents to initiate surveillance based on what is in essence suspicion that one party of the communication is “affiliated” in some way, or “supporting,” any group that might be involved in terrorism.  The bill would eliminate the requirement that there be probable cause to believe the Americans targeted have done something wrong.      

Current law, consistent with the Fourth Amendment as well as First Amendment freedoms, requires that there be probable cause to believe that a U.S. person who is the target of an investigation is conspiring with agents of a foreign power, such as al Qaeda, or knowingly aiding such persons.  Under the bill, the law would be changed to allow lawful conduct by Americans to trigger indefinite surveillance of their conversations and emails.  For example, any American or American business in the hospitality industry could have telephone calls and emails monitored by federal agents if anyone thought to be “supporting” any group involved in terrorism, such as the Irish Republican Army for example, contacts them.  Under the bill, not only would the American not have done anything wrong but even the person contacting the American need not be a member of a terrorist group.   The breadth of reach of the bill is breathtaking.   

One need not look far into our history to see the folly of such an approach.  Before FISA was passed in 1978, the esteemed Church Committee found that the NSA had monitored millions of international telegrams, the precursor of e-mail.  Nearly thirty years ago, a Congress determined to get to the bottom of the warrantless surveillance of Americans found that the NSA had also put 1,200 American names, mostly people opposed the Vietnam War, on a watch list based on suspicion that they were somehow associating with people affiliated with or supporting foreign groups. That Congress, undeterred by assertions of inherent presidential power and transcending partisan politics, found that communications

“mentioning the wife of a U.S. Senator was intercepted by NSA, as were communications discussing a peace concert, a correspondent's report from Southeast Asia to his magazine in New York, and a pro-Vietnam war activist's invitations to speakers for a rally.” Final Report of the Church Committee, Book 3, “National Security Agency Surveillance Affecting Americans,” April 23, 1976. 

The Church Committee found that through its warrantless surveillance programs, the NSA had files on "approximately 75,000 United States citizens."  The Church Committee also found that federal agencies had been eavesdropping on the Reverend Martin Luther King, Jr., based on the belief that some of the people in contact with him were supporters of communism--defined as supporting the violent overthrow of governments, or in modern lingo, terrorism.  The Church Committee sought to prevent a return to these dark days by requiring the government to establish probable cause to a court that any American wiretapped be knowingly aiding foreign terrorists.  And that is the very requirement the DeWine bill expediently seeks to undo. 

Passage of this legislation without obtaining the facts about the NSA’s surveillance activities would reward the stonewalling of the Bush Administration and its failure to follow the law.   Congress still has not obtained basic information about the NSA spying that it is entitled to, including how many innocent Americans have had their personal telephone calls and e-mails monitored and what has happened to all of the conversations captured.  Congress has a duty to find out such basic information before lending its support to such a program.

Another major flaw of the bill is that it greatly diminishes congressional oversight.  While some of its supporters may believe it would enhance congressional oversight, the bill actually does the opposite.  For decades, federal law has required the president to keep Congress, through the House and Senate intelligence committees, “fully and currently informed of all intelligence activities” of the federal government.  National Security Act of 1947, as amended,  50 U.S.C. §§ 413(a)(1), 413a(a)(1).  Because the NSA program does not qualify for the “covert action” exception to such full briefings, there is no statutory basis for limiting disclosures of the details of the operation of the program to the so-called “gang of eight” – the chairs and ranking members of the intelligence committees and House and Senate leadership.

Instead of insisting that the law be followed and that the full intelligence committees of the House and Senate be briefed, the proposal would set up special subcommittees to oversee the program, which would not be permitted to share information outside of the subcommittee, even to the rest of the intelligence committees.  Membership on the subcommittee could easily be manipulated to thwart even this limited oversight, and the subcommittee’s power to request information would be used as a shield to prevent other members from obtaining such information on their own.  The bill would further insulate from disclosure full information about the program, despite the legal requirement that the executive branch must share classified evidence with Congress.  See 50 U.S.C. § 413(e).  Rather than greatly increasing congressional access to information, the bill would reduce the number of lawmakers with access to information about the program and also limit the quality of information that must be shared.   

Additionally, rather than get to the bottom of the administration’s breach of numerous legal requirements through both this program and the stonewalling about the program, the bill would impose harsh penalties on whistleblowers who make any unauthorized disclosures about the so-called “terrorist surveillance” program.  The bill would allow such whistleblowers to be fined up to $1 million and imprisoned for up to 15 years.   But without these brave whistleblowers, Congress, let alone the American public, would know nothing about this illegal surveillance. 

In summary, this bill essentially makes court orders based on probable cause of wrongdoing optional for secret surveillance of Americans’ telephone calls and e-mails.  The Constitution does not.  The legislation would also ensure that lawmakers remain ignorant of this spying program at a time when the American people want answers.  And, the bill would increase the likelihood that the administration officials who violated federal laws will get away with their misconduct but those who would dare to tell the truth to Congress and the American people will be punished by the administration.  Congress should reject this legislation.

Thank you for your consideration of our views.

Sincerely,

Caroline Fredrickson
Director

Lisa Graves
Senior Counsel for Legislative Strategy