Folding Under Pressure, Bush Administration Concedes Judicial Role Over NSA Spying Program

January 17, 2007 12:00 am

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WASHINGTON - Just two weeks before the Justice Department is set to defend the program before the Sixth Circuit Court of Appeals, and one day before the Attorney General is to testify before Congress, the Bush administration conceded that the judicial branch has a role in overseeing surveillance by the NSA. However, the American Civil Liberties Union expressed skepticism that the changes announced by the administration comply with the Foreign Intelligence Surveillance Act and the Constitution.

"The Justice Department announcement today is a quintessential flip-flop," said Anthony D. Romero, ACLU Executive Director. "The NSA was operating illegally and this eleventh-hour ploy is clearly an effort to avoid judicial and Congressional scrutiny. Despite this adroit back flip, the constitutional problems with the president's actions remain unaddressed."

On Jan. 31, the Court of Appeals for the Sixth Circuit is scheduled to hear the government’s appeal from a ruling declaring the NSA warrantless wiretapping program unconstitutional. The ACLU said that the court should still rule on the case, adding that the Justice Department stated that the president still retains the inherent authority to engage in wiretapping without the oversight of the FISA court. The ACLU also said that, without more information about what the secret FISA court has authorized, there is no way to determine whether the NSA’s current activities are lawful.

The Justice Department refused to confirm whether the orders generally authorize the program as opposed to authorizing surveillance of individual persons based on probable cause. The ACLU said that generalized program warrants are unconstitutional and violate FISA.

"The legality of this unprecedented surveillance program should not be decided by a secret court in one-sided proceedings," said Ann Beeson, lead counsel in ACLU v. NSA and Associate Legal Director of the ACLU. "And without a court order that prohibits warrantless wiretapping, Americans can’t be sure that their private calls and e-mails are safe from unchecked government intrusion."

The ACLU said it will send a letter to the Foreign Intelligence Surveillance Court calling on it to release more information on the new orders.

The ACLU is also calling on the Senate Judiciary Committee to demand answers from Attorney General Alberto Gonzales during a hearing scheduled tomorrow.

"The Senate Judiciary Committee must demand Attorney General Gonzales answer the many questions that remain," said Caroline Fredrickson, Director of the ACLU Washington Legislative Office. "This move is pure smoke and mirrors to avoid the scrutiny of the courts and Congress, and lawmakers should not be fooled. If the White House now recognizes that the FISA court is the right entity to approve wiretapping, why did the president continue to violate the law for years?"

The Justice Department’s letter to Congress on the NSA warrantless wiretapping program is up at:

To read more about the ACLU’s concerns with the NSA warrantless wiretapping program, go to

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