Senate Intelligence Committee Holds Closed Hearing on Warrantless NSA Program; As Reports Indicate that Illegally Obtained Information Was Used to Obtain Warrants

February 9, 2006 12:00 am

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WASHINGTON — The American Civil Liberties Union expressed disappointment at the closed-door hearing held today by the Senate Select Committee on Intelligence on the warrantless spying by the National Security Agency. Attorney General Alberto Gonzales and General Michael Hayden, the deputy director of national intelligence, are expected to testify. The hearing coincides with revelations that the head of the Foreign Intelligence Surveillance Court (FISC) was warned that information illegally obtained by NSA may have been used to obtain wiretap warrants.

“Our democratic system relies on transparency and candor from the executive, and so far, we have seen neither,” said Caroline Fredrickson, Director of the ACLU Washington Legislative Office. “The White House was quick to defend the program, but when pressed for the facts, it has refused to provide them. Congress must conduct oversight and let the American public know the answers to the critical questions surrounding this illegal program. An aggressive public relations campaign and secret hearings cannot restore the public’s confidence.”

“Today’s revelations only further underscore the need to stop this illegal program,” Fredrickson added. “Our legal system is based upon the Constitution. If courts are using evidence that is improperly obtained, we run the risk that legitimate threats to this country will go unpunished because crucial evidence has been ruled inadmissible. The warrantless NSA program undermines justice; adhering to the rule of law ensures that justice will be served properly.”

The ACLU has challenged the legality of the program and called for a full and independent review of the warrantless spying by the NSA on Americans. Senate Judiciary Chairman Arlen Specter (R-PA) is drafting legislation to require the president to have the FISC review the program. House Judiciary Committee Chairman F. James Sensenbrenner (R-WI), who has yet to schedule a public oversight hearing on the program, sent the attorney general dozens of questions about the program on Wednesday.

Some lawmakers have suggested that Foreign Intelligence Surveillance Act needs to be modified. However, the ACLU believes that there is no need to change the existing law, but there is a need to properly enforce it. FISA specifically requires judicial review for the surveillance of domestic targets; the ACLU noted that the president took an oath to “faithfully execute the laws” and does not have the authority to choose which laws to follow.

Today’s Washington Post reported that twice in the past four years, Judge Colleen Kollar-Kotelly, the head of FISC, was warned by a Justice Department lawyer that information that was obtained through the warrantless NSA program may have been used to secure wiretap warrants from the secret court. Kollar-Kotelly has already expressed doubts about the legality of the warrantless wiretapping conducted by the NSA. According to the Post, at one point, her concerns lead to a temporary suspension of the program.

On Monday, Attorney Gonzales testified before the Senate Judiciary Committee, where he failed to answer basic questions from Senators about the program, sticking close to talking points and rhetoric rather than facts and figures. The ACLU said that concerns about the illegal NSA spying program remain, including: the number of Americans who have had their communications monitored or mined without a court order and how many resources have been wasted on this unlawful program.

On Wednesday, Congresswoman Heather A. Wilson (R-NM), chair of the House Intelligence Subcommittee on Technical and Tactical Intelligence, expressed “serious concerns” about the warrantless NSA domestic spying program, and called for a full congressional inquiry into the matter. The ACLU said that Wilson’s stance underscores congressional frustration with the White House’s refusal to share information with a co-equal branch of government in violation of the plain language of laws passed by Congress.

Gonzales and Hayden briefed Wilson and other members of the House Intelligence Committee on Wednesday, but not all lawmakers were satisfied with the closed session. The ACLU also noted that the White House had failed to properly inform the House and Senate Intelligence Committees since the start of the program, as required by the law. The non-partisan Congressional Research Service agreed with the same assessment of Congresswoman Jane Harman (D-CA), the Vice-Chair of the House Intelligence Committee.

“We applaud those lawmakers, from both sides of the aisle, who have demanded the truth from the government,” said Lisa Graves, ACLU Senior Counsel for Legislative Strategy. “The rule of law has been broken, and Congress and the public have a right to know. Effective and public oversight can be done without compromising state secrets. The administration must stop using national security as a blanket reason to keep their illegal activities hidden in the shadows.”

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

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