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Some answers emerge on warrantless surveillance

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 [w: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 [w: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.)

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