TESTIMONY OF GREGORY T. NOJEIM   ASSOCIATE DIRECTOR AND CHIEF LEGISLATIVE COUNSEL ACLU WASHINGTON LEGISLATIVE OFFICEBEFORE THE UNITED STATES COMMISSION ON CIVIL RIGHTS

Distinguished members of the Commission – thank you for the opportunity to testify today on behalf of the American Civil Liberties Union regarding the Fourth Amendment, due process and civil rights implications related to the Bush Administration’s Terrorist Surveillance Program (TSP). The ACLU is a nonpartisan, nongovernmental organization with hundreds of thousands of members and supporters, and 53 affiliates nationwide.

According to media reports, in 2002 President Bush signed a secret order authorizing the National Security Agency (NSA) to monitor overseas e-mails, telephone calls and other communications – originating within the United States – of hundreds, and perhaps thousands, of U.S. citizens and foreign nationals without first obtaining warrants.[1]  The administration subsequently admitted that such warrantless surveillance was occurring and it dubbed it the “Terrorist Surveillance Program.”  The ACLU believes this program is illegal and unconstitutional and a federal court agrees. We compliment the Commission for holding this briefing to shed additional light on the program, and on the intelligence surveillance that continues today.

It is clear to us that the NSA warrantless spying program violated the Fourth Amendment of the Constitution and federal law. The Fourth Amendment bars unreasonable searches and seizures and requires court approval for such activity except in an emergency. As a diverse group of legal experts—including Judge William Sessions, the former Director of the FBI under President Ronald Reagan—concluded after analyzing all the constitutional and statutory assertions of the administration: “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.”[2]

The U.S. Supreme Court has long held that the conversations of Americans in the U.S. cannot be seized under the Fourth Amendment without court oversight.[3] In a case involving warrantless wiretapping by the Nixon Administration in the name of national security, the Court stressed that “Fourth Amendment freedoms cannot properly be guaranteed if domestic surveillance may be conducted solely within the discretion of the Executive Branch.”[4] In that case, the Keith case, the Court reaffirmed that “prior judicial approval is required for the type of domestic surveillance involved in this case and that such approval may be made in accordance with such reasonable standards as Congress may prescribe.”[5]

In the aftermath of Watergate, the United States Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities (otherwise known as the Church Committee) found that the NSA had unconstitutionally monitored every single international telegram sent or received by American residents or businesses, amounting to millions of telegrams.[6] At that time, Congress determined that through the NSA's warrantless surveillance programs, the NSA alone had created specific files on approximately 75,000 United States citizens, and eavesdropped on journalists, Members of Congress and their spouses, and other government officials. Congress found that the NSA had also created a watch list of Americans who were suspected of foreign influence merely because they opposed a foreign war – including ordinary Americans who belonged to the Quaker church, as well as celebrities such as Joan Baez and Dr. Benjamin Spock.[7] The Church Committee found that in the absence of any judicial check, the executive branch had spied on government employees, journalists, anti-war activists and others for political purposes.

In response in part to the findings of the Church Committee, Congress passed the comprehensive Foreign Intelligence Surveillance Act (FISA) to provide the “exclusive” authority for the wiretapping of US persons in investigations to protect national security.[8] As the Senate Report noted, FISA “was designed . . . to curb the practice by which the Executive Branch may conduct warrantless electronic surveillance on its own unilateral determination that national security justifies it.”[9] Under FISA, federal agents are required to get court approval in order to monitor the communications of any person in the United States. FISA does permit the surveillance of people in the country linked to national security threats, but only with a court order. FISA provides that no one may engage in electronic surveillance “except as authorized by statute,” and it specifies civil and criminal penalties for electronic surveillance undertaken without statutory authority.

By failing to follow the exclusive provisions of FISA and Title III governing wiretaps of Americans, the warrantless NSA wiretapping program violated both the Fourth Amendment and the letter and spirit of the federal law passed to protect and vindicate privacy rights.

Without court oversight, one cannot be sure that innocent people’s everyday communications are not monitored or catalogued by the NSA or other agencies. During the Cold War, the list of people considered by McCarthy to be “communists” was long and it was wrong in many notable instances. In the 1960s, J. Edgar Hoover secretly wiretapped the communications of the leader of the civil rights movement, the Reverend Dr. Martin Luther King Jr., under the guise of national security. And President Nixon personally approved wiretaps of cabinet members, government employees, journalists and other Americans he didn’t like or didn’t trust. These and other revelations led to the passage of FISA to protect Americans’ Fourth Amendment right to privacy in their conversations by requiring judicial oversight of all US wiretaps including those in the name of national security.

Unfortunately, the government has a lengthy track record post 9-11 track record of pursuing ineffective anti-terrorist dragnets that intrude on innocent Americans’ rights. Examples include certain airline passenger identity screening programs and the now-outlawed Total Information Awareness data-mining program. Other examples include disclosures that FBI or Defense Department agents are spying on Quakers and other pacifists, environmentalists, and vegetarians, the opening of Americans’ mail without a warrant, and revelations that the Pentagon and CIA are using “National Security Letters” without oversight or judicial approval to collect the financial records of Americans – all in the name of national security. Without a judicial check, the powerful electronic surveillance tools of the NSA can be trained on anyone.

The administration has repeatedly stated that the president is “mindful” of Americans’ civil liberties, but our system of government requires checks on power, not deference to those in power. The administration also claims that the Authorization for the Use of Military Force (AUMF) passed by Congress on September 18, 2001 authorized the warrantless NSA surveillance program. Yet there is no evidence that Congress intended to override FISA in passing the AUMF.   

In fact, within 40 days of the vote on the AUMF, Congress enacted 25 changes to FISA at the request of President Bush in the USA PATRIOT Act (Title II, including Section 215 relating to getting court approval for business or library records as well as Section 206 regarding getting court approval for multiple-point wiretaps), but none of these amendments struck the requirement that the president get judicial approval to conduct electronic surveillance of people in the U.S. Congress has made other changes to FISA in the past four years.[10] This legislative history only serves to reinforce the continuing legal obligation of the administration to follow FISA regardless of the AUMF.

On January 17, 2006, the ACLU filed a lawsuit in Michigan on behalf of prominent journalists, scholars, attorneys, and national nonprofit organizations whose work requires them to communicate by telephone and e-mail with people outside the United States, including people in the Middle East and Asia.[11] Because of the nature of their calls and e-mails, and the identities and locations of those with whom they communicate, the plaintiffs have a well-founded belief that the NSA is intercepting their communications. The NSA program is disrupting the ability of these groups and individuals to talk with sources, locate witnesses, conduct scholarship and engage in advocacy.

By seriously compromising the free speech and privacy rights of the plaintiffs and all Americans, the ACLU charges that the NSA program violates the First and Fourth Amendments of the United States Constitution. The program authorizes the NSA to intercept the private communications of people who the government has no reason to believe have committed, or are planning to commit, any crime without first obtaining a warrant or prior judicial approval. The ACLU also charges that the program violates the constitutional principle of separation of powers because President Bush authorized it in excess of his Executive authority and contrary to limits imposed by Congress.

The government responded to the lawsuit by arguing that the case should be dismissed under the state secrets privilege, meaning the program was so secret and so sensitive that not even a federal court could review what was happening and whether it violated the law.

On August 17, 2006, U.S. District Court Judge Anna Diggs Taylor refused to dismiss the challenge to the wiretapping program under the state secrets privilege. She ruled the NSA program violates the First Amendment, the Fourth Amendment, and the Foreign Intelligence Surveillance Act. “It was never the intent of the Framers to give the President such unfettered control,” Taylor wrote in the decision, “particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights.”[12] The government appealed that ruling.

The appeals were heard on January 31, 2007, before Judges Alice Batchelder, Ronald Gilman and Julia Gibbons of the United States Court of Appeals for the Sixth Circuit Court.[13] A decision is pending.

In May 2006, USA Today revealed that since shortly after 9/11 at least two major phone companies - AT&T and Verizon - have been voluntarily granting the NSA direct, mass access to their customers' calling records, and that the NSA had compiled a giant database of those records. Subsequently confirmed by 19 lawmakers, this program extends to all Americans, not just those suspected of terrorist or criminal activity.

According to media reports, the goal of this program is to “create a database of every call ever made” within the nation’s borders.[14] This information can easily be linked to determine a person’s identity, friends and interests.

The unauthorized sharing of phone records is illegal under both state and federal law.  As with the NSA's program of wiretapping on Americans' conversations and e-mail, the president has evoked the threat of terrorism and used a convoluted interpretation of presidential power to ignore the law.  That means the NSA is operating outside the law - and without independent review by Congress or outside regulators.

In an effort to expose the depth of the NSA’s unlawful wiretapping, the ACLU has filed complaints with the Public Utility Commissions (PUCs) in 24 states to trigger investigations into whether AT&T and/or Verizon have provided the NSA with their customers' phone records. Without revealing secret information, utility commissions have the power and the legal obligation to learn what the phone companies are doing with their customers’ private information and whether they are being upfront with their customers about those practices.

In Maine, Connecticut, Vermont and Missouri the government filed federal lawsuits to prevent the PUCs from investigating the program. The government also filed a separate lawsuit in New Jersey to stop subpoenas about the program. The phone companies, in conjunction with the federal government, have moved to consolidate and transfer all of the cases to California. More than 40 cases posing challenges to telephone companies’ use of consumer data in compliance with the NSA’s program have already been consolidated in California, including the Maine lawsuit. The ACLU of Illinois and the ACLU of Northern California originally brought two of the cases.

Additionally, the Maine Public Utilities Commission had initiated contempt proceedings against Verizon Maine for failure to comply with an August 9 order by the Commission. The order required a Verizon official to swear under oath to the truth of previous statements issued by the company stating it did not give customer records to the NSA. In February the US District Court of Maine, sighting national security concerns, ruled that the Maine PUC cannot compel Verizon to disclose whether the telephone company participated in the warrantless domestic surveillance program.

In January 2007, the Bush administration announced that it had abandoned its warrantless wiretapping program in favor of a new program it did not describe that is subject to FISA court approval. Unfortunately the administration is still claiming the President has the “inherent authority” to engage in warrantless eavesdropping[15], and nothing would stop the administration from resuming warrantless surveillance at any time. But it is clear that the inherent powers of the president do not include the ability to conduct a warrantless, indefinite and unlimited domestic surveillance campaign that is expressly prohibited by law. 

The process used to get the new program approved by a FISA court judge created a number of questions that need to be answered. For example, why did it take two years to get the approval of just one of the fifteen FISA judges? Were other judges approached to approve the program? What kind of  “innovative arrangement” was used to obtain approval?  And to what extent will the government release information to the public that will help legal scholars ascertain whether the order complies with the requirements of FISA?   

It is not yet clear as to whether the government is now getting individualized warrants based on individual suspicion, or “program warrants” that do not require individualized suspicion of wrongdoing. Both FISA and the Fourth Amendment require warrants be based on individual suspicion. The Bush administration has strongly advocated for legislation that would allow the use of program warrants, and the Justice Department has said it came up with an “innovative arrangement” to get the program approved. But there are questions as to whether this process used will survive legal and constitutional scrutiny. We have yet to see other than conclusive documents from the administration describing the new program and how it complies with federal law and the Constitution.

Program warrants (also known as general warrants) were one of the reasons Americans fought the Revolutionary War and are specifically prohibited by the framers of the Constitution in the Fourth Amendment. Certainly no one could suggestion that our nation’s founders would approve of program warrants. 

With a program warrant, agents are more likely to eavesdrop on conversations that do not involve a person legitimately targeted for surveillance. In other words, the net they cast is unconstitutionally wide. The purpose of the Fourth Amendment is to focus any investigative intrusion on the wrongdoer. Yet program warrants raise the possibility of an unfocussed intrusion on many people, possibly affecting countless individuals who have done nothing wrong and are not agents of foreign powers.

Furthermore, the administration’s claim that the new program now complies with FISA does not pardon those responsible for five years of lawless surveillance. In fact, this assertion raises serious questions as to why the government had not complied with FISA in the first place.  

The ACLU believes that both privacy and security can be successfully pursued and that privacy need not be sacrificed for security. We believe that both need to be maximized. For almost 30 years FISA has been successfully protecting both privacy and security.

The Fourth Amendment was specifically enshrined in the Constitution to prevent the type of warrantless surveillance the President and the NSA have engaged in, and current law requires that judicially approved wiretaps under Title III or FISA provide the “exclusive” authority for wiretapping Americans in this country. FISA is a criminal statute. When warrantless wiretapping outside of FISA was conducted, a crime was committed.[16] One way to protect civil rights of Americans and ensure that this type of illegal and unconstitutional behavior does not happen again is to hold accountable those responsible for five years of lawbreaking.

The administrations’ lack of disclosure about both the warrantless surveillance program and the new program has been one of the most troubling aspects of this process. Clearly, full oversight and transparency are needed to ensure that the new domestic surveillance program is addressing civil rights and due process concerns. The documents that justify the program should be made available consistent with national security needs, and independent Constitutional scholars should scrutinize them.

It is evident that the government has gathered information illegally, but has not disclosed whether, or how, it will minimize the damage that has been done. This means that audits will also be required to make certain that illegally gathered information is not being used – including all information gathered through the warrantless surveillance program.

We commend the Commission for holding this briefing. As part of its oversight function and statutory duty to appraise the Federal government’s administration of justice, we ask that Commission conduct formal hearings into the program and that the Commission recommend that Congress do the same.

In holding additional hearings on this matter, we would ask that the Commission, if necessary, use its authority to issue subpoenas and interrogatories to the appropriate government agencies in order to shed much needed light onto the government’s actions. At the conclusion of its investigation, we are hopeful the Commission will recommend in any forthcoming report that Congress find out how many Americans have had their privacy violated through the surveillance programs, what has been done with the information collected and how it is being used.

The Commission should also recommend that Congress investigate the administration's claims that the program now operates under the supervision of the FISA Court, and that the administration is upholding the letter and spirit of the law. Congress must find out who is responsible for the decision to break the law and hold them accountable. And in that respect, the Commission should recommend that Congress consider how best to ensure that this and future presidents stay within the bounds of the Constitution. It is critical that lawmakers uphold their responsibility to the Constitution and the American people and conduct a thorough inquiry.

Endnotes

[1] http://http://www.washingtonpost.com/wp-dyn/content/article/2005/12/16/AR2005121600021.html.
[2] http://www.aclu.org/safefree/nsaspying/24071leg20060109.html.
[3] Katz v. United States, 389 U.S. 347 (1967).
[4] United States v. United States District Court, 407 U.S. 297 (1972).
[5] Id. at 324.  Of course, the Keith case is not directly in point because the NSA’s warrantless surveillance involves interception of conversations between a person in the U.S. and a person abroad, as opposed to wholly domestic conversations.
[6] “Intelligence Activities and the Rights of Americans,” Final Report of the Select Committee to Study Governmental Operations with Respect to Intelligence Activities, United States Senate, Book III (National Security Surveillance Affecting Americans).
[7] James Bamford, “Big Brother Is Listening,” the Atlantic Monthly, pp. 65-70, April 2006.
[8] 18 U.S.C. § 2511(2)(f).
[9] S. Rep. No. 95-604(I), at 7, 1978 U.S.C.C.A.N. 3904, 3908.
[10] Pub. L. No. 107-56, 115 Stat. 272 (2001).
[11] The clients in the case include the American Civil Liberties Union; the Council on American-Islamic Relations (CAIR); the National Association of Criminal Defense Lawyers; Greenpeace; James Bamford, author; Larry Diamond, senior fellow at the Hoover Institution; Christopher Hitchens, author and reporter; and Tara McKelvey, senior editor at The American Prospect.   
[12] http://www.aclu.org/pdfs/safefree/nsamemo.opinion.judge.taylor.081706.pdf.
[13] The ACLU was supported by a number of organizations who filed an amicus brief, including the National Association for the Advancement of Colored People, the American-Arab Anti-Discrimination Committee, the Asian American Legal Defense and Education Fund, Japanese Americans Citizens League, and the League of United Latin American Citizens, among others.  [Chris:  please check whether they filed amicus “briefs” or “an amicus brief” in which they all joined and modify if necessary.]
[14] http://www.usatoday.com/news/washington/2006-05-10-nsa_x.htm.
[15] http://www.pbs.org/newshour/bb/law/jan-june07/gonzales_01-19.html. 
[16] 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)