DeWine Proposal on NSA Spying Would Ratify Illegal Activity, ACLU Says; Legislation Would Weaken Oversight, Punish Whistleblowers

March 16, 2006 12:00 am

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WASHINGTON – The American Civil Liberties Union today strongly rebuked legislation introduced by Senator Mike DeWine (R-OH) to ratify the warrantless surveillance of Americans by the National Security Agency. The “Terrorist Surveillance Act of 2006” would give congressional approval to the illegal program, despite the fact that a fair and comprehensive investigation of the operation has still not occurred.

“This bill makes a mockery of congressional oversight and must be rejected,” said Caroline Fredrickson, Director of the ACLU Washington Legislative Office. “Congress cannot approve an illegal program when so many questions remain unanswered. When the rule of law has been broken by anyone, especially a president, the proper response is a full and independent investigation — not a whitewash of the unlawful activity.”

The Republican-only bill, introduced today by Senator DeWine, has the support of Senators Lindsey Graham (R-SC), Olympia Snowe (R-ME), and Chuck Hagel (R-NE). If adopted, the legislation would give congressional approval to the warrantless NSA eavesdropping program. The ACLU has called on Congress to fully investigate the operation to determine the extent to which the law was broken and Americans rights have been violated before any legislation be considered.

DeWine’s proposal would allow Americans’ phone calls and e-mails to be monitored for 45 days without any court oversight, and makes court review after that period optional. The ACLU noted that the Fourth Amendment clearly states that judicial approval is required for such activities. After the 45-day period, the administration could either seek an order from the Foreign Intelligence Surveillance Court or notify a congressional subcommittee of the intent to continue the surveillance without a warrant. That subcommittee would have no power to deny or stop any warrantless wiretaps it was notified of.

The bill would undermine the long-standing requirement that all members of the Intelligence Committees in Congress be kept apprised of surveillance programs. The law currently forbids the president from asserting that information is too classified to be shared with oversight committee members. The National Security Act of 1947, as amended, requires that the president keep Congress, through the House and Senate intelligence committees, “fully and currently informed of all intelligence activities” of the federal government. The ACLU noted that the administration has failed to comply with this law and the DeWine bill would actually limit the oversight capacity of Congress of the warrantless spying program.

Members of the subcommittee would not be permitted to share the information they receive with other members of the full Intelligence Committees or other duly elected Members of Congress. The ACLU noted that a majority of the subcommittee could easily deny any requests for information by the minority, and the bill would be used as a sword by the administration to prevent other lawmakers from obtaining any information about the surveillance of Americans on their own.

Under the DeWine proposal, government agents could violate the Fourth Amendment and initiate surveillance based on belief that one party to an international communication is “affiliated” in some way, or somehow “supporting” any group that might be involved in terrorism. The ACLU noted that lawful conduct by Americans could trigger the indefinite surveillance of their conversations and e-mails.

For example, any Americans, such as those in the hospitality industry, could have their calls and e-mails monitored if anyone thought to be supporting any group involved in terrorism – for example, the Irish Republican Army – contacted them. Under the bill, the surveillance could occur even if the American had done nothing wrong and the person contacting him or her was not actually a member of a terrorist group. In this way, the bill would authorize even broader warrantless spying than the administration claims it is conducting.

The bill would also severely undermine the ability of the American public to learn more about the spying or other illegal activity. The proposal would impose harsh penalties on whistleblowers who make any unauthorized disclosures about the illegal program by allowing such whistleblowers to be fined up to $1 million and imprisoned for up to 15 years. The ACLU said that while no one who violated the law would be prosecuted, those brave Americans who blow the whistle would be – further insulating the administration’s wrongdoing.

“When a law has been broken, the proper response should be a full and independent investigation, not a cover-up,” said Lisa Graves, ACLU Senior Counsel for Legislative Strategy. “Congress must reject attempts to legitimize this illegal program, and instead insist that the truth be brought to light. No one, not even the president, should be above the law. The law should not be changed to protect politicians by making unlawful acts legal.”

To read the ACLU’s letter to the Senate on the Terrorist Surveillance Act of 2006, go to:

For more on the ACLU’s concerns with the warrantless NSA eavesdropping program, go to:

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