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 S.2453, the “National Security Surveillance Act of 2006.”  For the following main reasons, the ACLU urges Senators to vote against this legislation:

• A Thorough Inquiry Is Still Needed.  The bill would have the effect of ending the Senate Judiciary Committee's examination of the program of the National Security Agency (NSA) to conduct electronic surveillance of Americans, despite the administration's refusal to share basic information about the program beyond its rhetoric.  It is premature to change the law when no evidence has been presented to justify provisions to extend warrantless wiretapping as the bill does.

• Legislation Is Premature Without Key Facts.  Supporting this bill would signal that Congress is too weak or too partisan to insist on public disclosure of key facts, such as how many Americans have had their electronic communications captured at the behest of the president.  There is clear precedent for public disclosure of such information from the 1975-76 Church Committee hearings that led to the creation of the Foreign Intelligence Surveillance Act (FISA) with its exclusive procedures for national security wiretapping.

• Full Disclosure Requirements Have Been Ignored.  Despite the noble intention of restoring judicial review, the bill would effectively aid the Bush administration's stonewalling regarding the full disclosure of classified information the president is required to make to Congress under the National Security Act of 1947, as amended.

• Passing the Buck to the FISA Court Is Not the Solution.  If passed, the legislation would marginalize Congress, despite its co-equal authority in this area under the Constitution.  It would in essence delegate to the Foreign Intelligence Surveillance Court (FISC) the power to authorize, and serially re-authorize, the president's secret program to conduct electronic surveillance of American residents, through secret court rulings without any adversarial process to protect Americans' civil liberties.

We sincerely appreciate the efforts of Senator Arlen Specter in holding three hearings regarding the NSA's warrantless spying on Americans, but unfortunately the administration blocked efforts to pierce through its talking points.  The Chairman's instinct in trying to restore judicial oversight is a good one, but the short-circuiting of congressional investigation and the retrospective ratification of illegal acts by the administration are very problematic from a civil liberties standpoint.  Our concerns are described in more detail in the attached memorandum. 

We hope the Senate Judiciary Committee will return to its roots and insist on getting facts and key material from the executive branch before altering FISA, which was intended to protect the American people by ensuring that federal agents are focused on foreign powers and terrorist agents and not on innocent Americans.  Thank you for considering our views.

Sincerely,

Caroline Fredrickson
Director, Washington Legislative Office

Lisa Graves
Senior Counsel for Legislative Strategy

Memorandum on S. 2453, the  “National Security Surveillance Act”

A Thorough Inquiry Is Still Needed. 

The administration has refused to share basic information about the NSA program to spy on Americans without warrants and instead has sought refuge in its legal rhetoric.  Members of the Senate Judiciary Committee have recognized this: 

More than three months and two committee hearings after the president was forced to acknowledge the program's existence, this committee remains in the dark with regard to nearly every aspect of the program. As Senator Specter has succinctly put it recently, we're still flying blind on a great deal of this.

Statement of Senator Patrick Leahy, Senate Judiciary Committee  Hearing, March 28, 2006 (at the third hearing, hereinafter the “FISC Hearing”).  

In short, Congress should not legislate while “flying blind,” but instead should use all of the tools at its disposal to insist that the Executive Branch treat Congress as its co-equal in this shared area of power under the Constitution and not like a junior partner.

Indeed, the administration has intentionally thwarted the Chairman's efforts to receive testimony from several former administration officials who have reportedly expressed concerns about the program.  The hearing statements of Attorney General Gonzales, who the administration insisted not be under oath, have also proven to be very unreliable. As the Ranking Member noted, the attorney general's testimony was “more obstructionist than enlightening”:  He flatly refused to discuss anything beyond those facts the president has publicly confirmed and nothing more.  In other words, he wouldn't tell us anything more than what we just read in the papers. And the stonewalling's gotten worse since then. Three weeks later, the attorney general wrote an extraordinary letter to Chairman Specter seeking to alter his live televised testimony, meaning by making it even less responsive. That letter raised serious additional concerns about the scope of the administration's domestic spying activities, the shifting legal rationalizations and, of course, the attorney  general's own credibility.  Id.  The Committee doesn't even have the true legal theories of the program. 

This is particularly problematic because the same rationale may well have been used to justify this illegal warrantless wiretapping as was used to justify redefining torture in the thoroughly discredited memoranda of Jay Bybee and John Woo, disavowed by the administration after they became public.  As former Reagan administration official Bruce Fein has noted, the same theory of virtually unlimited presidential power seems to be at the heart of both issues and could be used to rationalize warrantless searches of Americans' homes and opening their mail or other secret abuses.  This pattern of abuse of power  deserves the full attention of Congress.  The Committee should not embrace legislation that would in effect change the subject and seal the fate of legitimate efforts by Members of Congress to obtain key materials.

Legislation Is Premature Without Key Facts. 

Congress is entitled not only to the true legal theories of the program but also to the facts.  Passing this bill would signal that Congress is too weak or too partisan to insist on public disclosure of key facts such as how many American residents have had their emails or phone calls captured by the NSA at the behest of the president.  The claim that such facts are “operational” and cannot be disclosed is utterly at odds with historical precedent.

Congress conducted numerous hearings for more than two years to gather such facts as a predicate to passing FISA (which was co-sponsored by staunch conservatives such as Senator Strom Thurmond and Senate Judiciary Chairman Eastland), by a nearly unanimous bipartisan vote of 95-1.  The Church Committee insisted on getting answers to the following questions, which are relevant today:

• Which government agencies have engaged in domestic spying?
  
• How many citizens have been targets of government intelligence activity?
  
• Which standards have governed the opening of intelligence investigation and when have intelligence investigations been terminated [and what happens to the files in the latter case]?
  
• Where have the targets fit on the spectrum between those who commit violent acts and those who seek only to dissent peacefully from government policy?
  
• To what extent has information collected included intimate details of the targets personal lives or the political views, and has such information been disseminated or used to injure individuals?
  
• What actions beyond surveillance have intelligence agencies taken, such as attempting to disrupt, discredit, or destroy persons or groups who have been the targets of surveillance?
  
• Have intelligence agencies been used to serve the political aims of Presidents or other high officials or the agencies themselves?
  
• How have the agencies responded either to proper orders or to excessive pressures from their superiors? To what extent have intelligence agencies disclosed, or concealed them from, outside bodies charged with overseeing them?
  
• Have intelligence agencies acted outside the law? What as been the attitude of the intelligence  community toward the rule of law? 
  
• To what extent has the Executive Branch or Congress controlled intelligence agencies and held them accountable?
  
• How well has the federal system of checks and balances between the branches worked to control  intelligence activity?  “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 II, pp.4-5, April 26, 1976.  www.icdc/~paulwolf/cointelpro/churchfinalreportIIa.htm.

The claim that the president cannot or will not answer similar questions should not be tolerated.  Without public answers, the people have no basis to accept the claim that the NSA is only focusing on al Qaeda, whose members can readily be wiretapped under the law.  In 2002, administration officials even testified before Congress, under oath, that for targeting suspected al Qaeda members, “FISA works very well.” 

Statement of FBI Deputy General Counsel, Hearing of the Senate Intelligence Committee, July 31, 2002. 

FISA allows the government to get a wiretap to monitor American residents believed to be conspiring with or aiding such terrorists, interposing a constitutionally required judicial check, to protect the innocent and ensure the focus is on al Qaeda.  No legislation that would permit the authorization of the NSA program should be allowed to pass before the public is informed about the facts that affect their fundamental privacy rights. 

Prior to FISA, 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. “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).  Before FISA was passed, Congress determined that through the NSA's warrantless surveillance programs that agency alone had created specific files on “approximately 75,000 United States citizens,” and had eavesdropped on journalists, members of Congress and their spouses, and other government officials.  Id.  Before FISA, Congress actually investigated the NSA and found that the agency also had 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 famous people like Joan Baez and Dr. Benjamin Spock.  Id.; see James Bamford, “Big Brother Is Listening,” the Atlantic Monthly, pp. 65-70, April 2006.

And, it is noteworthy as we have just marked the anniversary of the assassination of Martin Luther King, Jr., that he too was the subject of warrantless wiretapping by the federal government in the name of national security. Final Report of the Select Committee to Study Governmental Operations with respect to Intelligence Activities, United States Senate, Book III (Dr. Martin Luther King, Jr., a Case Study).  FISA was intended to close off all loopholes to avoid a repeat of this history.  Yet, here we are faced with an administration that has determined that it is not bound by the exclusive rules created by Congress to protect the rights of Americans.  And Congress is refusing to press for the facts while writing legislation that would for years to come alter the protections of FISA that were violated by the administration.       

Full Disclosure Requirements Have Been Ignored. 

Beyond the need for a thorough public inquiry into the facts and the legal theories about the program, the administration has also failed to comply with federal  laws that require it to provide classified information about any surveillance programs to all of the Members of the intelligence committees that were created by the judiciary committees as part of FISA.     

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, as Congresswoman Harman has noted, there is no statutory basis for limiting disclosures about the program to the so-called “gang of eight” - the chairs and ranking members of the intelligence committees and House and Senate leadership.

The National Security Act also makes clear that the executive branch cannot assert that information is too classified to share with the legislative branch.  50 U.S.C. § 413(e).  As Chairman Specter noted, “The president says he is unwilling to share the information with the Intelligence Committees, as mandated by the National Security Act of 1947, because Congress leaks. That certainly is true. But so does the White House.”  March 28, 2006.  This is no excuse, however, to deny Members of Congress information they are entitled to by virtue of their election--the same public stewardship, if not greater, that allows unelected executive branch employees access to such information. 

Like the DeWine bill we strongly oppose, S. 2455, the Chairman's bill would allow the administration to continue to dictate which Members of Congress can be briefed and to what extent, barring them from consulting with their trusted advisors.  Instead of insisting that the law be followed and that the full intelligence committees of the House and Senate be briefed, S. 2453 would statutorily endorse the use of special subcommittees to oversee information about the program.  As with the current briefings, the administration would be permitted to dictate silence by senators in exchange for some selective information about the program that senators would then not be permitted to share with other senators.  And membership on the subcommittee could easily be manipulated to thwart even this limited oversight with the subcommittee's power to request information used as a shield to prevent other from obtaining such information themselves. 

Given the White House's recalcitrance, some might believe that some legislation is better than nothing, but legislating in a way that would allow the program to continue without key facts being disclosed is not prudent when such a secret program poses such significant risks to the civil liberties of Americans.  If S. 2453 passes and the baton is passed to the secretive FISC, Congress and the American people will never get the facts.  In this way, despite the noble intention of restoring judicial review, the bill would have the effect of aiding the Bush administration's stonewalling of Congress. 

Passing the Buck to the Courts Is Not the Solution. 

If passed, the legislation would marginalize Congress, despite its co-equal authority in this area under the Constitution.  In essence, the bill would delegate to the FISC the power to authorize the president's secret program to conduct electronic surveillance of American residents, through secret court rulings without any adversarial process to protect Americans' civil liberties. 

Senator Biden, while thanking the Chairman for breaking with party leadership by holding public hearings, eloquently described this problem.  He stated: 

[I]t is difficult to analyze a surveillance program and almost impossible to comment on legislation to regulate such a program without knowing the facts. You have Stuart Taylor . . . saying that the administration argument about not . . . tipping our hand to terrorists by telling the Intelligence Committee, because no oversight is appropriate[:] "It's utterly unpersuasive and rather alarming.  Carried to its logical conclusion, it would argue that any and all congressional oversight in censoring the media coverage of all sensitive intelligence and defense activities."  That's it in a nutshell . . . . [T]he idea that I'm going to delegate to the courts as well as the administration something as fundamental to the security of my country to make a substantive judgment of whether what they're doing makes sense, not really whether it's legal. Does it make sense? . ..  What has happened to the notion that this is something that the people have a right to have an input on? It's bizarre. It's absolutely bizarre. 

FISC Hearing.  Even though the courts do have the constitutional responsibility to interpret the laws, it is the province of Congress to make the law and the responsibility of the president to faithfully execute it.  S. 2453 would turn this on its head, allowing the courts to remake the law now that the president has failed to execute it, taking Congress out of the equation.  As such, it seems to be an impermissible delegation of congressional power, in addition to being a bad policy.

The fact is that the constitutionality of the president's program could be assessed by the FISC tomorrow if the administration would submit one of the wiretaps it is engaged in to the FISC for approval.  If the FISC found that the wiretap was not focused on a suspected agent of al Qaeda in this country or not predicated on probable cause that an American targeted for surveillance is conspiring with al Qaeda, the court could deny the application.  The administration could then appeal to the FISA court of review, and failing there the administration could petition the Supreme Court for a ruling, all on an expedited basis as provided for by FISA.  50 U.S.C. § 1803.  Congress does not need to pass any legislation to allow this to happen.  In fact, passing  S. 2453 would not compel the administration to submit its surveillance to  legal test by the FISC any more than the current law compels the administration to following since the president believes he is not bound by FISA itself to get a warrant now before initiating such surveillance or obtain one after the fact in the case of an emergency as provided by law.

The process for judicial review already provided by the law is not without its flaws, however.  Only this year has the FISC published rules to allow attorneys (with clearance) other than government attorneys to appear before it.  FISC Rules of Procedure, Rule 6.  However, it is unclear how an attorney would get notice of the need to appear to challenge an application for a court order to authorize the NSA's surveillance under the program, as these orders are considered in a non-adversarial setting, as with criminal search warrants.  Any judicial process to assess the constitutionality of any warrants under the president's program should be an adversarial one that allows for full briefing and argument about the issues in controversy.  Legislation should not go forward that would commit such a decision to a secret court process.  Any American residents who have had the rights violated by the program should be allowed to sue to vindicate those rights in the federal district in which they reside.

The ACLU is litigating such a suit right now on behalf of a diverse group of prominent journalists, scholars, attorneys and national nonprofit organizations who frequently communicate by telephone and e-mail with people outside the United States, including people in the Middle East. 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 their communications are being intercepted by the NSA. The NSA program is disrupting the ability of these individuals to talk with sources, locate witnesses, conduct scholarship and engage in advocacy.  Our suit is pending in the federal district court in Michigan, the same district court that heard the challenge to warrantless wiretapping in the name of national security that helped lay the foundation for FISA.  United States v. United States District Court for the Eastern District of Michigan, 407 U.S. 297 (1972).

In that case, the Supreme Court stressed that “Fourth Amendment freedoms cannot properly be guaranteed if domestic surveillance may be conducted solely within the discretion of the Executive Branch” and noted that under the Constitution, “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.”   Taking up the Court's invitation, the Church Committee conducted extensive hearings and found that in the absence of any judicial check and standards based on the probable cause required by the Fourth Amendment, the executive branch had spied on government employees, journalists, anti-war activists and others for political purposes or under the guise of national security.  So, Congress passed FISA to provide the “exclusive” authority for the wiretapping of US persons in investigations to protect national security.  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.”

A related concern about S. 2453 is that it seems to allow the FISC to approve the administration's certification of the “program,” authorizing a program warrant, or general warrant, a bad idea that was advanced by some in the Ford administration but wisely rejected by Congress as inconsistent with the Constitution.  S. 2453 would lay the foundation for allowing federal agents to obtain general warrants for foreign intelligence investigation.  General warrants are contrary to the plain command of the Fourth Amendment which requires that warrants be based on probable cause and describe with “particularity . . .the place to be searched and the persons or things to be seized.”

The Fourth Amendment was intended to “secure” Americans' privacy against “the wide ranging exploratory searches the Framers intended to prohibit.”  Maryland v. Garrison, 480 U.S. 79, 84 (1987).  The Fourth Amendment was a specific response to the very kind of search authority the bill would allow.  American colonists insisted that the Fourth Amendment be added to the Constitution before ratification to guard against “Writs of Assistance,” general, perpetual, transferable search warrants King George III used to allow government agents to enter American homes and businesses at will to search for smuggling contraband and seize people's property without probable cause. 

Writs of Assistance were so pernicious that they were banned in England, but not the colonies, because allowing government agents without any evidence of wrongdoing to “lawfully break into a man's house and study to search for evidence against him; this would be worse than the Spanish Inquisition; for ransacking a man's secret drawers and boxes to come at evidence against him is like ransacking his body to come at his secret thoughts.”  Entick v. Carrington, 95 Eng. Rep. 807 (K.B. 1765).  

With the advent of telephones and email, allowing federal agents to search and seize electronic communications of American residents in secret without probable cause to believe they have done anything wrong would allow the federal government to ransack a person's private spoken or written thoughts and keep a permanent record of them.  This sort of invasion of the privacy of innocent Americans strikes at the very heart of liberty, of the rights of a free people.  As Justice Brandeis observed: Ways may some day be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home . . . It is not the breaking of his doors, and the rummaging of his drawers that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty, and private property.   Boyd v. U.S., 116 U.S. 616 (1886).  That is why the Supreme Court ruled that the Fourth Amendment protects Americans' telephone conversations and is one of the reasons why Congress passed the Foreign Intelligence Surveillance Act-an innocent person's every communication should not be allowed to be monitored by government agents or we are all suspects in our own country. 

S. 2453 would not cure these fundamental flaws with the president's program.  The bill would instead ratify the legal theory that such general warrants are permissible and consistent with liberty.  They are not. 

For all of these reasons, despite the good intentions of the author, S. 2453 should be rejected.