Fact Sheet: Legal Claims in ACLU v. National Security Agency

January 17, 2006

The ACLU is asking a federal court in Michigan to declare unconstitutional a secret government program to intercept vast quantities of the international telephone and Internet communications of innocent Americans without court approval. The National Security Agency (NSA) launched the program in 2001, and President George W. Bush ratified it in 2002. The ACLU is asking the court to permanently block the NSA program from continuing.

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The ACLU filed the lawsuit 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 groups and individuals to talk with sources, locate witnesses, conduct scholarship and engage in advocacy.

LEGAL BASIS FOR CLAIMS

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 believe have committed or are planning to commit any crime, without first obtaining a warrant or any prior judicial approval.

The ACLU also charges that the program violates the constitutional principle of separation of powers, because it was authorized by President Bush in excess of his Executive authority and contrary to limits imposed by Congress. In response to widespread domestic surveillance abuses committed by the Executive Branch and exposed in the 1960s and 1970s, Congress enacted legislation that provides the exclusive means by which electronic surveillance and the interception of domestic wire, oral and electronic communications may be conducted. Congress enacted two statutes which impose strict limits on domestic surveillance, including prior judicial approval -- Title III of the Omnibus Crime Control and Safe Streets Act of 1968 and the Foreign Intelligence Surveillance Act (FISA), passed in 1978.

Congress enacted FISA after the U.S. Supreme Court held, in United States v. United States District Court for the Eastern District of Michigan, that the Fourth Amendment does not permit warrantless surveillance in intelligence investigations of domestic security threats. FISA amended Title III to provide that the procedures set out therein and in FISA "shall be the exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted." 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.

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