ACLU Letter to Attorney General Gonzales Requesting the Appointment of Outside Special Counsel for the Investigation and Prosecution of Violations, or Conspiracy to Violate, Criminal Laws Against Warrantless Wiretapping of American Persons

December 21, 2005

The Honorable Alberto Gonzales
United States Department of Justice
Robert F. Kennedy Building
950 Constitution Avenue, N.W.
Washington, D.C. 20530

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Re: Request for the Appointment of Outside Special Counsel for the Investigation and Prosecution of Violations, or Conspiracy to Violate, Criminal Laws Against Warrantless Wiretapping of American Persons

Dear Attorney General Gonzales:

The American Civil Liberties Union calls on the United States Department of Justice to appoint an outside special counsel with the independence to investigate and prosecute any and all criminal acts committed by any member of the Executive Branch in the warrantless electronic surveillance of people in the United States over the past four years by the National Security Agency (NSA). Due to the severe constitutional crisis created by these actions, it is essential that such a counsel be appointed immediately. Such crimes are serious felonies and they need to be fully and independently investigated.

An independent investigation by a prosecutor, not subject to dismissal by any political appointee or elected official, is the only way to ensure that all those who authorized this warrantless electronic surveillance, or engaged in this electronic interception or monitoring, are held accountable for committing these serious crimes. No person is above the law, not even the President of the United States of America.

For the past 27 years, U.S. law has made it a crime to "intentionally" "engage in electronic surveillance under color of law except as authorized by statute." 50 U.S.C. § 1809(a)(1). There is but a single defense to such a charge: that "the electronic surveillance was authorized by and conducted pursuant to a search warrant or court order of a court of competent jurisdiction." 50 U.S.C. § 1809(b). Conviction for violating this federal law is punishable "by a fine of not more than $10,000 or imprisonment for not more than five years, or both." 50 U.S.C. § 1809(c). It is clear from the president’s own statements that the electronic surveillance of hundreds or even thousands of people in this country has been conducted intentionally (and continues) without any warrant, in plain violation of this criminal prohibition in the Foreign Intelligence Surveillance Act (FISA).

The Appointment of an Outside Special Counsel Is Plainly Warranted.

As you know, the Justice Department’s own regulations require the appointment of an outside special counsel when a three-prong test is met. 28 C.F.R. part 600.1. First, a "criminal investigation of a person or matter [must be] warranted." Second, the "investigation or prosecution of that person or matter by a United States Attorney’s Office or litigating Division of the Department of Justice would present a conflict of interest for the Department." And, third, "under the circumstances it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter." If this three-prong test is met, under the federal regulations that govern the Justice Department, a special counsel must be selected from outside the government who has the authority to secure necessary resources for investigation and prosecution and who would have full investigatory and prosecutorial powers. 28 C.F.R. parts 600.3-600.6.

In the matter of whether members of the Executive Branch violated, or conspired to violate, the federal laws against warrantless wiretapping in national security investigations, the three-prong test for appointing an outside special counsel is easily met. Both the letter and spirit of FISA have been violated. The shocking revelations of the past few days make it clear that the administration cannot be entrusted with investigating itself, especially when the instructions to violate our federal criminals laws came from the president himself. President George W. Bush and members of his cabinet, including you, as well as the Principle Deputy Director for National Intelligence, have gone on the public offensive after reports broke that the NSA has engaged in a secret domestic program to listen in on conversations of American citizens and other people in this country without any court review or authority under FISA. These reports first appeared in the New York Times on December 16, 2005. The public interest demands that this prima facie case of criminal activity be referred to a special counsel who has the independence to investigate the violation of these criminal laws. The three prongs of the test for such appointment are discussed below.

I. The Appointment of a Special Prosecutor Is Warranted because Both the Letter and Spirit of FISA Have Been Violated by these Warrantless Wiretaps and No Legal Defense Precludes an Independent Investigation of Those Responsible.

A criminal investigation is warranted despite the weak rationalization put forward by the administration. The predicates for the criminal offenses at issue here have been met by any reading of the plain language of the applicable laws. President Bush has already admitted that he has been involved in the electronic surveillance of people in this country without court approval of those wiretaps. That this surveillance was intended to protect against international terrorism does not exempt it from FISA. This statute expressly governs all electronic surveillance by intelligence gathering agencies on these shores, whether to prevent "international terrorism" or sabotage or to monitor foreign spies. 50 U.S.C. §§ 1801 (c-d). Whether this surveillance takes the form of "detection" or "monitoring," the two words the president tried to distinguish in his press conference on December 19, 2005 or whether it involves "signals intelligence," as you mentioned in your press conference of the same day, makes no difference. FISA defines "electronic surveillance" to include any "acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communications." 50 U.S.C. § 1801(f). Similarly, the suggestion that there is some exemption from the statutory requirements for international conversations involving American persons is baseless. FISA covers any electronic communication "sent by or intended to be received by" a person in the United States, as well as purely domestic communications. Compare 50 U.S.C. §§ 1801(f)(1 and 2) with § 1801(f)(3).

Similarly, the claim that an emergency or other urgency necessitated the failure to follow the federal law governing electronic surveillance on U.S. soil is refuted by the statute itself. FISA expressly provides an "Emergency Authorization" process so that if "the Attorney General reasonably determines" that an emergency requires electronic surveillance to begin before an application can be made to the FISA court, surveillance is allowed so long as a court order is sought within 72 hours. 50 U.S.C. § 1805(f).

Likewise, there is no limitless statutory exception for warrantless wiretapping during wartime. FISA expressly governs wiretapping procedures "during time of war" and provides that "the President, through the Attorney General, may authorize electronic surveillance without a court order under this title to acquire foreign intelligence information for a period not to exceed fifteen days following a declaration of war by the Congress." 50 U.S.C. § 1811 (emphasis added). Thus, even to the extent the administration is claiming there was a declaration of war somehow allowing warrantless wiretapping based on the resolution on the Authorization for Use of Military Force in Afghanistan, 115 Stat. 224 (2001), federal law expressly permits such warrantless surveillance to continue only for 15 days after a declaration of war is passed by Congress.

In fact, Congress declined to declare war and trigger an array of executive authorities attendant to such a declaration under Article I § 8 of the Constitution. And, even if the resolution were misconstrued as a declaration of war, however, it did not provide any authority to violate federal law on wiretapping. The interplay between the express provisions in FISA governing wiretapping in the U.S. and the use of force declaration naturally leads to the conclusion that, at most, 15 days of wiretapping without a court order was and is still the law, even in time of war. Our federal courts are functioning and the FISA court has been fully operational for the past four years. The use of force resolution provided no extension of the 15-day exception to oversight by the secret court that was created to review all national security wiretaps in the U.S. relating to international terrorism or sabotage. See 50 U.S.C. §§ 1801 (c and d). Moreover, the limited exception to judicial approval for the 15 days immediately following the declaration of war does not provide for any extensions to this one-time exception. Compare 50 U.S.C. § 1811 with, e.g., 50 U.S.C. § 50 U.S.C § 105(e)(2) (providing extensions for court ordered wiretaps, available only upon approval by the FISA court). Any extension of Section 1811 of FISA would render the 15-day exception meaningless. Nor was any exception to the criminal liability in Section 1809 of FISA made part of the use of force resolution. It is black letter law that the president may not interpret our criminal laws to avoid his own criminal liability.

And, although any justifications proffered by the administration go to any defense rather than to whether the predicates for investigation and indictment exist, it is clear that the United States Supreme Court has not endorsed any "plenary authority" of the president under Article II of the Constitution to wiretap in violation of the Fourth Amendment of the Constitution or federal laws enforcing the rights protected therein. See Hamdi v. Rumsfeld, 524 U.S. 507, 517-18 (2004). The court’s decision in the Hamdi case was very carefully limited to the detention of enemies captured on the battlefield. The warrantless wiretapping of people in the United States is simply not equivalent to such battlefield detentions. Despite the urging of the Justice Department to have the court declare that the president has unlimited or unimpaired commander-in-chief authority to take any action he deems necessary, the court declined to reach such a result. To apply the holding in Hamdi to authorize the actions at issue in the warrantless wiretapping that has been admitted by the administration, one would have to accept the assertion that the battlefield is everywhere and so the use of force resolution gave President Bush the power to re-write any law, criminal or civil, without any limitation. That is clearly not what Congress intended; nor is it what the Supreme Court endorsed.

In Hamdi, the court narrowly focused its decision on the conclusion that the capture and detention of lawful combatants on the battlefield is universally considered an important incident of war. Id. at 518. Even with the court’s approval of the authority to detain combatants, whether citizen or foreign, the court emphasized the critical importance of judicial review of the actions of the president that affect the rights of Americans. Id. at 536-37 (noting that "even the war power does not remove constitutional limitations safeguarding essential liberties"). The Hamdi decision expressly rejected the administration’s argument that respect for the commander-in-chief’s powers necessitates a heavily circumscribed role for the courts during wartime, and the court considered such an approach to be an unacceptable effort to "condense power into a single branch of government," contrary to the checks and balances on power required by the Constitution. Id. at 535-36. As the court declared, it is "clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens."

Yet, in the matter at hand, without the mandate of FISA there is no way to safeguard Fourth Amendment rights or have any independent judicial check on those civil liberties when there is no judicial review of the wiretapping of people in America. The electronic surveillance at issue is conducted in secret and the individuals whose rights may be violated may never know that their conversations were captured by intelligence agents. Without the judicial oversight that is legally required by FISA there is no way to know whether any of the hundreds or thousands of individuals in this country whose international communications are being surveilled by the NSA are enemies or agents of a foreign power. Without the judicial oversight required by law, there is no independent check on whether all the citizens or residents of this country subjected to these wiretaps are involved in criminal wrongdoing or connected to the activities of al Qaeda.

The entire point of FISA’s requirement of judicial review is to ensure that only suspected foreign agents are subject to government seizure of their every electronic communication. The process due under the Constitution to vindicate the fundamental Fourth Amendment right to privacy surrounding private conversations-whether by telephone, e-mail, or facsimile, whether international or domestic, and whether with loved ones or coworkers-is that the government must show a court that there is reason to believe the person in this country is an agent of a foreign power, before round-the-clock surveillance or recording of the intimate or mundane conversations of free people is permitted. And, nothing Congress has voted for since September 11, 2001 constitutes permission for the president to strip away these rights, secretly and unilaterally.

Indeed, the facts immediately following the passage of the Afghanistan resolution show that there was no congressional intent that the use of force resolution be construed to set aside the legal requirements of FISA. Within 40 days of the vote on the use of force resolution in the fall of 2001, Congress passed extensive changes to FISA at the request of President Bush, but none of these amendments struck the requirement that the president get judicial approval to conduct electronic surveillance of people in the U.S. The USA PATRIOT Act, which was drafted primarily by the Bush Administration and passed by Congress, contains 25 separate enhancements of electronic surveillance procedures, making numerous revisions to FISA. Public Law No. 107-56, 115 Stat. 272 (2001) (Title II). But not one of these amendments altered the fundamental requirement that there be judicial review of all foreign intelligence wiretaps in the U.S. Not one of them extended the 15-day exception immediately following declarations of war. Not one of them created a loophole to the short-term emergency exception to begin FISA wiretaps and then seek court approval. Not one of them altered the criminalization of any intelligence wiretaps conducted without a court order. Not one of them modified the mandate of federal law that the procedures for Title III criminal wiretaps and Title 50 FISA wiretaps "shall be the exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted" in the U.S. 18 U.S.C. § 2511(2)(f) (emphasis added). This makes the FISA laws distinct from the statute at issue in the Hamdi case.

Given both the lack of express amendment or revision to FISA in the use of force resolution and the fact that Congress worked with the White House to extensively revise and reinforce FISA as the exclusive means by which electronic surveillance in intelligence investigations in the U.S. was to be conducted to fight terrorism, there can be no credible argument that the resolution allows the president to disregard the legal obligations of FISA. FISA was written specifically to require independent federal court review of all electronic surveillance requests in investigations of international terrorism or international terrorist plots in the U.S. 50 U.S.C. § 1801 et seq. The USA PATRIOT Act, which was even titled "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism," modified the FISA powers extensively but made no changes that would authorize the illegal actions taken by the president or excuse or permit the warrantless wiretapping of Americans in this country.

Thus, the Afghanistan resolution did not repeal the specific statutory requirement of FISA that the president or his agents must get a court order to wiretap the communications of people in the United States in national security investigations governed by Title 50 of the United States Code. Whatever the expansive interpretation argued by administration lawyers, such claims cannot pretermit the appointment of a special prosecutor to investigate these clear violations of federal law. Such matters may be argued in defense during any criminal trials that result from any indictments brought by a federal grand jury.

II. It Is Beyond Dispute that a Criminal Investigation by the Justice Department into Conduct Approved by the President and Leaders of the Justice Department Presents a Clear Conflict of Interest for the Justice Department.

Given your own defense of the president’s actions, your imputed involvement in the continuation of these warrantless wiretaps over the past 11 months as attorney general, as well as your former responsibilities as White House counsel at the time this program of warrantless electronic surveillance was begun, it is clear that the Justice Department under your leadership would have an unavoidable conflict of interest in fully investigating and prosecuting the violations of 50 U.S.C § 1809. Regrettably, your own statements indicate that you, yourself, are implicated in violating these federal laws, regardless of any defense you may assert.

You have also publicly stated that you discussed trying to change the FISA laws that require court approval of electronic surveillance in intelligence cases but you were told by political allies in Congress that a change in the law to permit the actions the administration was taking "was not something we could likely get, certainly not without jeopardizing the existence of the program, and therefore, killing the program." Attorney General Press Conference, December 19, 2005 (emphasis added). As the nation’s top law enforcement officer, rather than stop a program operating in violation of the law or seek to amend the law to permit what is otherwise illegal activity, it appears you and others chose to cover it up. And, although it has been repeatedly suggested that Congress was kept apprised and somehow ratified this criminal behavior, it appears that those few members who were informed of the general outlines of the program were ordered to keep silent. And some of those few who the administration is suggesting somehow ratified the repeal of the requirements of FISA have now noted that they were not informed of the true nature of this secret program and that even the inadequate information they were provided caused them to object. The president cannot amend the law with a briefing.

Under such circumstances, it is obviously impossible for you to have any genuine independence in this matter. Moreover, any appearance of impartiality you might have had to investigate this matter has been shattered by your recent media appearances defending this unlawful conduct. Your claim, and that of the president, that this warrantless wiretapping of people in this country was authorized by the use of force resolution following September 11, 2001 is not grounded in any provision in this resolution suspending either the requirements of FISA or the reach of U.S. criminal law.

For a Justice Department inquiry to be credible, an outside special counsel with no ties to the Justice Department and no prior relation to the issue is essential. In the absence of an outside special counsel, the nation will have no assurance of accountability or responsibility for any criminal wrongdoing for these actions in violation of their rights.

III. With a Constitutional Crisis Created by the Administration’s Refusal to Follow the Law, the Public Interest Demands the Appointment of an Outside Special Counsel.

This constitutional crisis warrants the appointment of a special counsel to investigate these serious matters. This administration - like that of President Nixon - has apparently adopted, in secret, a legal view of the Executive Branch’s power that is unbounded. The president's powers to safeguard our nation are subject to the laws enacted by the people's representatives or those laws are nothing more than an illusion.

Neither war nor emergency provides an excuse for violating those laws, let alone violating them intentionally and repeatedly. A secret program to spy on the telephone conversations or e-mail of as many as 500 people a day, including American citizens and residents in the U.S., without any court order, clearly violates the plain language of the laws passed by Congress. This remains true even with the broadened surveillance powers Congress approved at your request in 2001 to amend FISA with the Patriot Act.

This is not a matter that can be left solely to the legislative branch to resolve. We believe crimes may have been committed. While Congress has a responsibility to hold hearings to expose the scope of this unlawful activity, congressional hearings alone are insufficient to address the criminal conduct at issue in violating the federal felony wiretapping law.

As a general matter, the violation of criminal laws is to be investigated by prosecutors and tried by independent federal courts. Regardless of whether Congress chooses to vigorously exercise its oversight powers and try to repair this breach of trust with the American people, the matters at issue are also serious criminal matters.

No one with the authority to prosecute violations of federal criminal laws has investigated, or been ready to prosecute if warranted, the full scope of potential criminal liability of all those involved in this warrantless wiretapping on American soil. There is an obvious public interest in investigating and prosecuting violations of the federal law against wiretapping without judicial oversight. Given the concession that these decisions to violate the law were made at the highest levels of the Executive Branch, an outside special counsel is clearly in the public interest. In fact, the public interest is only heightened by the fact that the president is determined to continue this warrantless wiretapping of people in the U.S., regardless of its lawlessness and the public outcry against it.

Several Members of Congress as well as editorial pages across the country have expressed shock at these warrantless wiretaps. For example, the Washington Post noted:

The rules here are not ambiguous. . . . The Foreign Intelligence Surveillance Act (FISA) requires that national security wiretaps be authorized by the secretive FISA court. "A person is guilty of an offense," the law reads, "if he intentionally . . . engages in electronic surveillance under color of law except as authorized by statute" -- which appears, at least on its face, to be precisely what the president has authorized.

Washington Post

(December 18, 2001). The entire point of FISA, written in the wake of revelations of President Nixon’s claim of national security justifications for spying on his enemies, is to channel all electronic surveillance in the U.S. in national security investigations through the FISA court. The Justice Department and the White House have failed to rationalize the refusal to follow FISA’s legal requirements and are obviously not independent. But federal law is clear: to monitor the communications of any person in the U.S., federal agents must get court approval, subject only to the exceptions in the statute, none of which authorizes the misconduct described or admitted. The willful and repeated evasion of our federal laws must be fully and independently investigated.

America must be governed by laws and not men. The law trumps good intent. Nobody is above the law. That is the essence of the rule of law. The president simply cannot pick and choose which laws he will or will not follow. Such an ideology is leading our nation into the wilderness of lawlessness yet again. Even in times of war the president is not a law unto himself-FISA’s rules and criminal penalties have not been repealed, the Fourth Amendment has not been suspended, and the Constitution with its bedrock principle of checks and balances was not destroyed on September 11, 2001, and we must not allow it be rendered moot. Nothing less than the rule of law is at stake.

We thank you for your attention to this critically important matter. We trust you will make a proper referral of this request to a person at the Justice Department not involved in the breaches of trust at issue in this call for the appointment of an outside special counsel to conduct a thorough and independent criminal investigation. We look forward to the Department’s response. Please contact us to arrange a meeting to discuss this request.

Very truly yours,

Anthony D. Romero
Executive Director
ACLU

Caroline Fredrickson
Director
ACLU Washington Legislative Office

Lisa Graves
Senior Counsel for Legislative Strategy
ACLU Washington Legislative Office

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