ACLU Calls on Gonzales to Appoint Special Counsel on NSA Domestic Spying; Investigation of Violations of Law Must Be Independent, Free of Political Pressure

December 21, 2005 12:00 am

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WASHINGTON – In a formal request to Attorney General Alberto Gonzales, the American Civil Liberties Union today called for the immediate appointment of an outside special counsel to investigate and prosecute any criminal acts and violations of laws as a result of the National Security Agency’s surveillance of domestic targets as authorized by President Bush.

“President Bush’s disregard and disrespect for the Constitution are evident, but in America, we are all bound by the rule of law,” said Anthony D. Romero, ACLU Executive Director. “The president took an oath to ‘preserve, protect and defend the constitution of the United States.’ He cannot use a claim of seeking to preserve our nation to undermine the rules that serve as our foundation. The Attorney General, who may have been involved with the formulation of this policy, must appoint an outside special counsel to let justice be served.”

In its letter, the ACLU called on the Attorney General 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 NSA,” noting that, “such crimes are serious felonies and they need to be fully and independently investigated.”

An outside special counsel is the only way to ensure that all those who authorized the warrantless electronic surveillance, or engaged in this electronic interception or monitoring, are held accountable for committing serious violations of the law. The Foreign Intelligence Surveillance Act of 1978 states that electronic surveillance is only permissible following “a search warrant or court order.” The statements of the president and other officials make it clear that domestic surveillance, without court approval or review, has occurred and will continue to occur.

The ACLU also rejected the White House position that the “Authorization for Use of Military Force” resolutions passed by Congress granted the president the broad authority to circumvent the Fourth Amendment. As then-White House Counsel, Attorney General Gonzales may have, along with other legal advisors to the president, offered interpretations of the law to encourage the president to authorize the NSA to engage in domestic surveillance. His possible involvement only further underscores the need for an independent investigation.

Additionally, the ACLU noted warrantless domestic surveillance was unnecessary, as well as illegal. FISA already contains a provision to permit the government to retroactively apply for a wiretap order in cases of emergencies. The government had legal means at its disposal to engage in the very surveillance it conducted through the NSA, procedures that had some judicial oversight and review.

There have already been some calls from Congress that the legality of the president’s actions must be examined. Senator Arlen Specter (R-PA), chair of the Senate Judiciary Committee, has committed to conduct oversight hearings on the NSA’s actions. However, no other Congressional committees, particularly the Intelligence committees, have committed to conducting inquiries or oversight hearings into the matter.

The ACLU’s call for an independent special counsel follows its expedited records request on Tuesday, under the Freedom of Information Act, to the NSA, the Department of Justice and the Central Intelligence Agency for information about the NSA’s program of warrantless spying on Americans.

“The president cannot use the pursuit of national security as a carte blanche to undermine the very freedoms that define America,” said Caroline Fredrickson, Director of the ACLU Washington Legislative Office. “This administration – like that of President Nixon – has apparently secretly adopted a legal view of the Executive Branch’s power that is unbounded. A commitment to the Constitution and our laws demand an independent investigation.”

To read the ACLU’s letter to the Attorney General calling for a special counsel, go to:

The ACLU’s FOIA request to the National Security Agency is available at:

The ACLU’s FOIA request to the Department of Justice is available at:

The ACLU’s FOIA request to the Central Intelligence Agency is available here:

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