Hearings on Illegal NSA Spying are Not Enough

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Mon, 6 Feb 2006 14:39:27 -0500

Hearings on Illegal NSA Spying are Not Enough

 

 

The Center for Constitutional Rights

 

Action Alert: Hearings on Illegal NSA Spying are Not Enough

 

 

Once again, President Bush has broken the law. In violation of the

Federal Intelligence Surveillance Act, President Bush has authorized

the illegal surveillance of Americans without a warrant. Today,

Attorney General Alberto Gonzales is testifying before Congress.

Debate is good, but we need a special prosecutor to hold the Bush

Administration accountable for its actions.

 

Click here to join the Center for Constitutional Rights in writing

your representative and the members of the Senate Judiciary Committee

to call for a special prosecutor and the release of all the Justice

Department memos regarding spying on U.S. citizens.

 

http://www.democracyinaction.org/dia/track.jsp?key=80114927 & url_num=2 & url=http:/\

/www.democracyinaction.org/dia/organizationsORG/ccr/campaign.jsp?campaign_KEY=24\

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The Bush White House has consistently worked to avoid judicial

oversight and destroy the system of checks and balances upon which our

country was founded. Alberto Gonzales should tell Congress all the

facts regarding the Bush Administration's program of spying on

Americans. He should also resign. Finally we demand an investigation

of the Attorney General's ethical lapses for his part in this and the

many other instances where he advised the President to break the law

regarding torture, detention and rendition.

 

Hearings are not enough. Join CCR today in calling for the release of

the justice department memos and the appointment of a special

prosecutor. The Center for Constitutional Rights filed CCR v. Bush et

al. in federal court earlier this month to fight this latest threat to

Americans' civil liberties, but we need Washington to act now.

 

 

Sincerely,

Bill Goodman

Legal Director, The Center for Constitutional Rights

 

 

 

CCR's Responses to State of the Union Defenses of the NSA Surveillance

Program

 

 

 

Synopsis

 

The administration has offered a number of arguments in defense of its

warrantless NSA surveillance program, which CCR is challenging in a

pending lawsuit in federal court, Center for Constitutional Rights v.

Bush. We expect that the President will offer many of the following

arguments to the country in his State of the Union address, and we

offer the following responses:

 

Description and Status

 

Getting wiretap orders through the FISA Court in national security

cases is too slow a process; the NSA Program allows the government to

put wiretaps in place more quickly

 

FISA allows the government to put surveillance in place first, and go

to Court for retroactive approval afterwards. The government has up to

72 hours to go to the Court in such emergency situations. The existing

process places no limits whatsoever on the speed with which the

government can put a wiretap in place.

 

The administration has claimed that the government needs to take time

to carefully review the factual basis for such wiretaps before even

using the emergency procedures, lest the Court reject the application

after the fact. This concern is disingenuous, because the FISA Court

almost never denies wiretap orders-the Court didn't turn down a single

wiretap request in the first 23 years of its existence. From 1995 to

2004, the government made 10,617 applications and had only four rejected.

 

The " probable cause " standard that must be met to issue a FISA wiretap

order is too burdensome; the government should be able to proceed

under a lesser " reasonable suspicion " standard

 

FISA does not require probable cause that a surveillance target has

participated in a crime; it only requires probable cause that a target

is an agent of a foreign political or terrorist organization. Again,

this diminished form of " probable cause " has never been a hard

standard for the government to meet: from 1995 to 2004, the government

made 10,617 applications to the FISA Court and had only four rejected.

 

More significantly, in June, 2002, Republican Senator Michael DeWine

of Ohio introduced a bill (S.2659) that would " modify the standard of

proof for issuance of [FISA] orders ... from probable cause to

reasonable suspicion. " The Justice Department said in a position

statement that " the Administration at this time is not prepared to

support " the DeWine amendment. The Justice Department refused to

support the amendment because it had no evidence that FISA was

hindering its efforts to get the warrants it needed, and because it

feared that such wiretaps might violate the Fourth Amendment and thus

jeopardize any prosecutions based on such tainted evidence.

 

Whatever standard is applied, only review by a court can ensure that

the administration does not spy on ordinary citizens, lawyers, or

political opponents of its policies.

 

The President has said that if details of the Program become public or

are passed into law by Congress, " The enemy will think 'Here's what

they do-adjust.' "

 

Terrorists already know the government is trying to listen in on their

communications-the hijackers took elaborate precautions against

surveillance even before 9/11, when the nation was not yet on

permanent alert.

 

It makes no difference to al Qaeda whether they are being wiretapped

with a warrant or without a warrant. That's only important to the

people for whom oversight and accountability of government officials

matter-the American public.

 

Congress implicitly authorized this surveillance when it passed the

authorization to use force in Afghanistan (the " AUMF " )

 

Congress made slight adjustments to the wiretapping statutes in

December 2001 (extending the period for retroactive approval of

wiretaps from 24 to 72 hours), just a few weeks after passing the

AUMF. Congress would not have needed to do so if it intended to

authorize wholesale surveillance with the AUMF.

 

In his December 19, 2005 Press Briefing, Attorney General Gonzales

said the administration thought about asking Congress for approval of

changes to the FISA statute to make the NSA program legal, but they

did not ask Congress for permission because they thought Congress

would not grant it. It is disingenuous for the administration to say

on the one hand that Congress implicitly approved the NSA Program

while also saying that they thought Congress would not have approved

of it explicitly.

 

The President has said " not one lawmaker asked me to stop " the

surveillance program. Why did Congress acquiesce?

 

It didn't. Only a few Congressional leaders and select committee

members were briefed, and, more importantly, they were briefed alone,

without their counsel or legislative staffers present. These

conditions guaranteed that they would feel constrained from opposing

the program. At the same time, by informing legislators in even this

threadbare fashion, the administration made it much less likely that

those legislators would feel free to criticize the program once its

details became public.

 

We would have caught the hijackers if this program has been in place

before 9/11

 

The NSA knew that 9/11 hijackers Khalid al-Midhair and Nawaf al-Hamzi

were in the United States (in San Diego) prior to the attacks because

of a legal wiretap it had on an al Qaeda safe house in Yemen. But-as

then-NSA head General Hayden admitted-the NSA never bothered to

provide the information to law enforcement agencies because it didn't

appreciate its significance.

 

Law enforcement failed to catch the San Diego hijackers because of a

failure to communicate and share information between intelligence

agencies, not because the wiretapping laws were too strict.

 

FISA stood in the way of getting a warrant to search " Twentieth

Hijacker " Zacharias Moussaoui's laptop before he was arrested (and

well before 9/11)

 

In the first months after 9/11, the administration claimed that FBI

agent Colleen Rowley wanted a FISA warrant to search Zacharias

Moussaoui's computer, but she could not obtain one because FBI had no

evidence to link him to a " recognized terrorist organization. "

 

This was simply not what the law required at the time Rowley sought

the warrant: in testimony in a Sept. 24, 2002 Senate Intelligence

Committee hearing, FBI officials admitted that they had gotten bad

legal advice. They thought they needed to link Moussaoui to a to a

designated terrorist organization, but that was wrong under the law

then in place: FISA allowed a warrant to issue if Moussaoui was an

agent of any group making preparations for terrorism, regardless of

whether it was formally designated as a terrorist organization by the

State Department.

 

If al Qaeda is calling you, the government should be able to listen to

the call

 

If the government had any evidence at all to back up such a claim, it

could put a wiretap in place and seek FISA Court approval after the

fact under the law. What the government is really claiming is the

power to put a wiretap in place where there is no evidence at all that

a person on the line is a member of al Qaeda.

 

The program is legal.

 

This program is unquestionably illegal-Congress has made all

electronic surveillance outside the Wiretap Act and FISA a felony.

 

Many people within the administration felt this program was illegal.

It has been widely reported that Deputy Attorney General James Comey

refused to sign off on reauthorization of the Program in March 2004,

when John Ashcroft was in the hospital, and White House officials were

forced to visit Ashcroft in his hospital bed to seek reapproval.

 

The President has inherent power to conduct warrantless surveillance

to gather foreign intelligence.

 

The federal appellate court cases the administration cites for this

principle are all cases decided under the standards applicable before

Congress created FISA (United States v. Clay; United States v. Brown;

United States v. Butenko; United States v. Buck; and United States v.

Truong). So are the historical precedents: Lincoln's telegraph

wiretaps during the civil war, or FDR's wiretaps during World War II.

 

FISA was intended to be comprehensive, covering all electronic

surveillance of foreign powers and their agents, and FISA makes all

surveillance outside its terms a felony, including the NSA program.