ACLU Chief Calls on President to Shut Down Illegal Spying on Americans

January 31, 2006 12:00 am

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“The State of Our Union Cannot be Strong if the President Continues to Violate the Law,” Says Anthony D. Romero, Executive Director of the ACLU

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NEW YORK – The president has an opportunity in his State of the Union address tonight to allay the concerns of millions by abandoning his illegal program of warrantless domestic spying, conducted by the most secretive entity in government — the National Security Agency.

We hope the president will do that, but we fear he will not. Instead, we expect President Bush to continue to aggressively claim sweeping authority to override congressional statutes and the courts when it comes to invading our privacy.

He has said that this program is legal, not because he or his advisors can point to any particular law authorizing it (and indeed legal scholars and national security experts can point to laws explicitly saying the opposite), but because he has merely assumed the powers as commander in chief. Despite the recent public relations offensive, the president’s warrantless and secret spying program has come under attack from Democrats and Republicans alike.

To be clear, this program is not lawful. No matter how many times the president claims his actions are legal, they are not. They violate the Foreign Intelligence Surveillance Act (FISA) as well as the First and Fourth Amendments to the Constitution, and they pose serious threats to the constitutional checks and balances on presidential power that serve to protect our individual liberties.

A great nation rules itself through laws, not people. We need independent judges making sure that domestic spying is actually targeting the right people. We know from history that giving the president a blank check, especially in the context of national security, is a recipe for abuse.

The American people deserve to know how far afield the warrantless NSA surveillance has gone from targeting actual terrorists. Security experts confirm that “collateral” surveillance — otherwise known as spying on innocent people — is part of the game when you circumvent judicial oversight in the manner the NSA is said to have done.

We also know that the Justice Department had serious concerns about the program. Top officials, including Deputy Attorney General James Comey, had apparently questioned the legality of the surveillance. Rank-and-file agents reportedly started to joke that the intelligence gleaned from the spying was so unreliable that a new batch of tips meant more “calls to Pizza Hut.” It bears noting that the very individuals who now claim that the NSA program is illegal may be the ones who broke the law in the first instance.

The president has repeatedly said that “if al Qaeda’s calling you, we want to know why.” Surely every American would want the government to track calls from known terrorists. That does not, however, mean we can abandon court review of government surveillance.

In fact, the president had an efficient and secure legal framework, most notably including the Foreign Intelligence Surveillance Court, within which to listen to al Qaeda phone calls or read al Qaeda e-mails. Indeed, that framework is, by law, exclusive: there can be no foreign intelligence surveillance in the United States authorized outside of it.

Worse than the surveillance, however, is the impunity surrounding it and the open disregard for the rule of law. The vice president freely admitted that the White House decided to operate above the law, at the expense of the courts and Congress. For reasons of ideology and expediency, the administration turned its back on the core principle of our democracy: that each branch of government is equal, and should act as a check on the others.

If the president does not call an immediate end to this illegal spying, Congress must hold thorough hearings. The Justice Department must also appoint a special counsel to investigate the breadth and legality of the NSA spying program.

As Americans, we believe that the state of our union cannot be strong if the president continues to violate our Constitution and our most fundamental freedoms. Because the Bush administration has shown its disdain for accountability and its critics, we have taken our case directly to the American people. Today, we ran paid national newspaper advertisements detailing the administration’s disturbing record on civil liberties, and calling for the appointment of a special counsel to investigate the NSA spying program. The NSA scandal is merely the culmination of five years of disdain for the Constitution. These practices must end now.

The previous ads and more information on the ACLU’s call for an outside counsel are online at

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