NSA Spies On Americans Outside The Law

April 16, 2009 12:00 am

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WASHINGTON – The National Security Agency (NSA) has been intercepting Americans’ emails and phone calls in recent months to an extent that exceeded even the overbroad limits permitted under the controversial spying legislation passed last summer. According to the New York Times, the NSA’s “overcollection” of American’ communications has been “significant and systemic.”

The FISA Amendments Act of 2008 (FAA) was passed last July despite opposition from the American Civil Liberties Union and other privacy advocates. It effectively legalized the secret warrantless surveillance program President Bush approved in late 2001, but it also gave the government new spying powers, including the power to conduct dragnet surveillance of Americans’ international communications. The ACLU filed a federal lawsuit immediately after Congress passed the law challenging its constitutionality. The lawsuit is still pending.

“Congress was repeatedly warned that this type of abuse would be the obvious outcome of passing the FISA Amendments Act,” said Caroline Fredrickson, Director of the ACLU Washington Legislative Office. “Congressional leadership promised after this law’s passage that it would be reexamined along with the Patriot Act. It’s time to fulfill that promise and restore the checks and balances of our surveillance system. Warrantless surveillance has no place in an America we can be proud of. These revelations make it clear that Congress must now make a commitment to rein in government surveillance.”

The ACLU is urging Congress to form a select committee to investigate whether laws were broken in the Bush administration’s efforts to fight terrorism. A select committee with subpoena power would be able to review past and present national security laws and activities, restore the rule of law and help adopt fair standards for the future. Ideally, reform legislation adopted as a consequence of the Select Committee investigation – not unlike the reforms that resulted from the Church Committee – would help ensure that future administrations follow the law and respect individual rights, regardless of the party in power.

“These revelations are as alarming as they are predictable,” said Jameel Jaffer, Director of the ACLU National Security Project. “The FAA set virtually no limits on the government’s eavesdropping authority, but it appears that the NSA has disregarded even what minimal limits existed. The new law should have ensured that the government’s surveillance powers would be subject to meaningful judicial oversight. Instead the new law allowed the NSA to operate without the safeguards that the Constitution requires. The Bush administration argued that the law was necessary to protect national security, but in fact the law implicates all kinds of communications that have nothing to do with terrorism or criminal activity of any kind. The law was ill-advised, and today’s report only underscores that the law should be struck down as unconstitutional.”

The ACLU’s lawsuit argues that the FAA violates Americans’ rights to free speech and privacy under the First and Fourth Amendments to the Constitution. The law permits the government to conduct intrusive surveillance without ever telling a court who it intends to spy on, what phone lines and email addresses it intends to monitor, where its surveillance targets are located, why it’s conducting the surveillance or whether it suspects any party to the communication of wrongdoing. Plaintiffs in the ACLU’s case include journalists, attorneys and human rights organizations who count on confidentiality to perform their jobs. They include:

The Nation and its contributing journalists Naomi Klein and Chris Hedges Amnesty International USA, Global Rights, Global Fund for Women, Human Rights Watch, PEN American Center, Service Employees International Union, Washington Office on Latin America, and the International Criminal Defence Attorneys Association Defense attorneys Dan Arshack, David Nevin, Scott McKay and Sylvia Royce

More information about the ACLU’s efforts on FISA, including its lawsuit, are available online at: www.aclu.org/faa

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