Back on September 18, 2007, the House Judiciary Committee chaired by John Conyers (D-Michigan) held a hearing entitled "Warrantless Surveillance and the Foreign Intelligence Surveillance Act". In that hearing, Conyers posed some questions to the Justice Department to get at the Department’s views on the legal framework governing electronic surveillance under the amended Foreign Intelligence Surveillance Act (FISA) -- we've been tracking FISA for some time on FGI. The Committee hearing volume (pdf) was published in June 2008 without the Justice Department’s answers to these questions, because they were provided to Congress too late to be included in the published record.

As you might remember, back in December, 2005 the NY Times broke a story about the Bush administration secretly authorized the National Security Agency (NSA) to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials. FAS as well as the Electronic Frontier Foundation (EFF) and other civil liberties organizations have been tracking the NSA warrantless surveillance controversy.

Many thanks to Steven Aftergood and the Federation of American Scientists (FAS) for submitting a FOIA request to make public Assistant Attorney General Kenneth Wainstein's written responses to those questions posed about this important program and bringing to light the legal perspective that held sway within the Bush administration's Justice Department.

“If the so-called Terrorist Surveillance Program (TSP) was perfectly legal as has been claimed, why would companies who cooperated in it need immunity?” the Committee asked. (To protect classified information, among other reasons, the Department responded.) “Is the President free to disregard any provisions of FISA with which he disagrees?” (No, not exactly.) “If an individual in the United States is suspected of working in collusion with persons outside the United States–such that an investigation of one is in effect the investigation of the other–under what circumstances, generally, would you use criminal or other FISA wiretaps?” (Targeting of persons in the United States can only be done under FISA procedures.)

Today, New York Times reported that the Wiretapping Program will be legalized by a federal intelligence court. It will authorize both the president and Congress to monitor overseas phone calls and e-mail messages without a court order, although this may include Americans’ personal communications. The report states that “in validating the government’s wide authority to collect foreign intelligence, it may offer legal credence to the Bush administration’s repeated assertions that the president has constitutional authority to act without specific court approval in ordering national security eavesdropping.”

We've been trying to follow the FISA debate but it's not been easy since there's a lot of politically charged rhetoric going around. The ACLU has done some fact-checking to try and help out.

The major sticking point seems to be whether or not there should be immunity for the telecommunications companies that aided the president’s warrantless wiretapping program -- the Senate bill has it, the House bill does not. As we noted in August, 2006, U.S. District Judge Anna Diggs Taylor found the NSA's wiretapping program unconstitutional. So it would seem that the telecom companies broke the law and violated their customers' privacy rights in participating in the NSA program. This, then, is why the administration is pushing for their immunity. See the Electronic Frontier Foundation for more information.

New York Times reporters Eric Lichtbaum and Maek Mazzetti report in the January 14, 2007 issue, about the expanding role of the U. S. military in domestic espionage, and deletions in a U.S. Army Manual that may indicate the executive branch is once again wiretapping without a warrant.

The Pentagon has been using a little-known power to obtain banking and credit records of hundreds of Americans and others suspected of terrorism or espionage inside the U.S.

(Military Expands Intelligence Role in U.S., by Eric Lichtbaum and Maek Mazzetti.)

Deep into an updated Army manual, the deletion of 10 words has left some national security experts wondering whether government lawyers are again asserting the executive branch’s right to wiretap Americans without a court warrant.

(Deletions in Army Manual Raise Wiretapping Concerns, by Eric Lichtbaum and Maek Mazzetti)

A subscription to the New York Times is required to read these articles.

Hot off the presses:

A federal judge ruled Thursday that the government's warrantless wiretapping program is unconstitutional and ordered an immediate halt to it.

U.S. District Judge Anna Diggs Taylor in Detroit became the first judge to strike down the National Security Agency's program, which she says violates the rights to free speech and privacy.

Glenn Greenwald is tracking and analyzing the issue and has updated several times. He includes links to both the opinion and the injunction.

Secrecy News recently released the CRS report giving a detailed evaluation of Bush Administration legal claims regarding Presidential authority to conduct warrantless electronic surveillance within the United States. CRS evaluated the arguments presented in defense of the reported NSA surveillance activity, and ultimately (if delicately) find them wanting. Definitely one to read and print out for one's library collection.

PDF of report from Secrecy News

From the foregoing analysis, it appears unlikely that a court would hold that Congress has expressly or impliedly authorized the NSA electronic surveillance operations here under discussion, and it would likewise appear that, to the extent that those surveillances fall within the definition of “electronic surveillance” within the meaning of FISA or any activity regulated under Title III, Congress intended to cover the entire field with these statutes. To the extent that the NSA activity is not permitted by some reading of Title III or FISA, it may represent an exercise of presidential power at its lowest ebb, in which case exclusive presidential control is sustainable only by “disabling Congress from acting upon the subject.” While courts have generally accepted that the President has the power to conduct domestic electronic surveillance within the United States inside the constraints of the Fourth Amendment, no court has held squarely that the Constitution disables the Congress from endeavoring to set limits on that power. To the contrary, the Supreme Court has stated that Congress does indeed have power to regulate domestic surveillance, and has not ruled on the extent to which Congress can act with respect to electronic surveillance to collect foreign intelligence information. Given such uncertainty, the Administration’s legal justification, as presented in the summary analysis from the Office of Legislative Affairs, does not seem to be as well-grounded as the tenor of that letter suggests.