NSA warrantless surveillance (2001–2007)
NSA warrantless surveillance — also commonly referred to as "warrantless-wiretapping" or "-wiretaps" — was the surveillance of persons within the United States, including U.S. citizens, during the collection of notionally foreign intelligence by the National Security Agency as part of the Terrorist Surveillance Program. In late 2001, the NSA was authorized to monitor, without obtaining a FISA warrant, phone calls, Internet activities, text messages and other forms of communication involving any party believed by the NSA to be outside the U.S., even if the other end of the communication lay within the U.S.
Critics claimed that the program was an effort to silence critics of the Bush administration and its handling of several controversial issues. Under public pressure, the Administration allegedly ended the program in January 2007 and resumed seeking warrants from the Foreign Intelligence Surveillance Court. In 2008, Congress passed the FISA Amendments Act of 2008, which relaxed some of the original FISC requirements.
During the Obama administration, the U.S. Department of Justice continued to defend the warrantless surveillance program in court, arguing that a ruling on the merits would reveal state secrets. In April 2009, officials at the DOJ acknowledged that the NSA had engaged in "overcollection" of domestic communications in excess of the FISC's authority, but claimed that the acts were unintentional and proceeded to continue overcollection of communications.
History
A week after the 9/11 attacks, Congress passed the Authorization for Use of Military Force Against Terrorists, which inaugurated the "war on terror". It later featured heavily in arguments over the NSA program.Soon after the 9/11 attacks, President Bush established the President's Surveillance Program. As part of the program, the Terrorist Surveillance Program was established pursuant to an executive order that authorized the NSA to surveil certain telephone calls without obtaining a warrant. The complete details of the executive order are not public, but according to administration statements, the authorization covers communication originating overseas from or to a person suspected of having links to terrorist organizations or their affiliates even when the other party to the call is within the US.
In October 2001, Congress passed the Patriot Act, which granted the administration broad powers to fight terrorism. The Bush administration used these powers to bypass the FISC and directed the NSA to spy directly on al-Qaeda via a new NSA electronic surveillance program. Reports at the time indicate that "apparently accidental... technical glitches at the National Security Agency" resulted in the interception of communications that were between two U.S. parties. This act was challenged by multiple groups, including Congress, as unconstitutional.
The precise scope of the program remains secret, but the NSA was provided total, unsupervised access to all fiber-optic communications between the nation's largest telecommunication companies' major interconnected locations, encompassing phone conversations, email, Internet activity, text messages and corporate private network traffic.
FISA makes it illegal to intentionally engage in electronic surveillance as an official act or to disclose or use information obtained by such surveillance under as an official act, knowing that it was not authorized by statute; this is punishable with a fine of up to $10,000, up to five years in prison or both. The Wiretap Act prohibits any person from illegally intercepting, disclosing, using or divulging phone calls or electronic communications; this is punishable with a fine, up to five years in prison, or both.
After an article about the program,, was published in The New York Times on December 16, 2005, Attorney General Alberto Gonzales confirmed its existence. The Times had published the story after learning that the Bush administration was considering seeking a court injunction to block publication. Bill Keller, the newspaper's executive editor, had withheld the story from publication since before the 2004 Presidential Election. The published story was essentially the same that reporters James Risen and Eric Lichtblau had submitted in 2004. The delay drew criticism, claiming that an earlier publication could have changed the election's outcome. In a December 2008 interview, former Justice Department employee Thomas Tamm claimed to be the initial whistle-blower. The FBI began investigating leaks about the program in 2005, assigning 25 agents and five prosecutors.
Attorney and author Glenn Greenwald argued:
Gonzales said the program authorized warrantless intercepts where the government had "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 was "outside of the United States". The revelation raised immediate concern among elected officials, civil rights activists, legal scholars and the public at large about the legality and constitutionality of the program and its potential for abuse. The controversy expanded to include the press's role in exposing a classified program, Congress's role and responsibility of executive oversight and the scope and extent of presidential powers.
CRS released a report on the NSA program, "Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information", on January 5, 2006 that concluded:
On January 18, 2006 the Congressional Research Service released another report, "Statutory Procedures Under Which Congress Is To Be Informed of U.S. Intelligence Activities, Including Covert Actions". That report found that "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, found no specific statutory basis for limiting briefings on the terrorist surveillance program. 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".
Legal action
While not directly ruling on the legality of domestic surveillance, the Supreme Court can be seen as having come down on both sides of the Constitution/statute question, in somewhat analogous circumstances.In Hamdi v. Rumsfeld the government claimed that AUMF authorized the detention of U.S. citizens designated as an enemy combatant despite its lack of specific language to that effect and notwithstanding the provisions of that forbids the government to detain an American citizen except by act of Congress. In that case, the Court ruled:
However, in Hamdan v. Rumsfeld the Court rejected the government's argument that AUMF implicitly authorized the President to establish military commissions in violation of the Uniform Code of Military Justice. The Court held:
In footnote 23, the Court rejected the notion that Congress is impotent to regulate the exercise of executive war powers:
Dozens of civil suits against the government and telecommunications companies over the program were consolidated before the chief judge of the Northern District of California, Vaughn R. Walker. One of the cases was a class-action lawsuit against AT&T, focusing on allegations that the company had provided the NSA with its customers' phone and Internet communications for a data-mining operation. Plaintiffs in a second case were the al-Haramain Foundation and two of its lawyers.
On August 17, 2006, Judge Anna Diggs Taylor of the United States District Court for the Eastern District of Michigan ruled in ACLU v. NSA 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 ". She wrote:
In August 2007, a three-judge panel of the United States Court of Appeals for the Ninth Circuit heard arguments in two lawsuits challenging the program. On November 16, 2007, the three judges—M. Margaret McKeown, Michael Daly Hawkins and Harry Pregerson—issued a 27-page ruling that the al-Haramain Foundation could not introduce a key piece of evidence because it fell under the government's claim of state secrets, 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 a question-and-answer session published on August 22, Director of National Intelligence Mike McConnell first confirmed that the private sector had helped the 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 moved to have McConnell's acknowledgement admitted as evidence.
In a related legal development, on October 13, 2007, Joseph Nacchio, the former CEO of Qwest Communications, appealed an April 2007 insider trading conviction by alleging that the government withdrew opportunities for contracts worth hundreds of millions of dollars after Qwest refused to participate in an unidentified NSA program that the company thought might be illegal. He claimed that the NSA approached Qwest about participating in a warrantless surveillance program more than six months before 9/11. Nacchio used the allegation to show why his stock sale was not 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 January 20, 2006, cosponsors Senator Patrick Leahy and Ted Kennedy introduced Senate Resolution 350, a resolution "expressing the sense of the Senate that Senate Joint Resolution 23, 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 without debate.
On September 28, 2006, the U.S. House of Representatives passed the Electronic Surveillance Modernization Act. It died in the Senate. Three competing, mutually exclusive, bills—the Terrorist Surveillance Act of 2006, the National Security Surveillance Act of 2006 and the Foreign Intelligence Surveillance Improvement and Enhancement Act of 2006 – were referred for debate to the full Senate, but did not pass. Each of these bills would have broadened the statutory authorization for electronic surveillance, while subjecting it to some restrictions.