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American Bar Association-accuses President Bush, of violating both the Constitution and federal law.

02/13/06 -- Full text American Bar Association Task Force Report

American Bar Association

Adopted By The House Of Delegates

RESOLVED, that the American Bar Association calls upon the President to abide by the limitations which the Constitution imposes on a president under our system of checks and balances and respect the essential roles of the Congress and the judicial branch in ensuring that our national security is protected in a manner consistent with constitutional guarantees;

FURTHER RESOLVED, that the American Bar Association opposes any future electronic surveillance inside the United States by any U.S. government agency for foreign intelligence purposes that does not comply with the provisions of the Foreign Intelligence Surveillance Act, 50 U.S.C. 1801 et seq. (FISA), and urges the President, if he believes that FISA is inadequate to safeguard national security, to seek appropriate amendments or new legislation rather than acting without explicit statutory authorization;

FURTHER RESOLVED, that the American Bar Association urges the Congress to affirm that the Authorization for Use of Military Force of September 18, 2001, Pub.L. No. 107-40, 115 Stat. 224 2(a) (2001) (AUMF), did not provide a statutory exception to the FISA requirements, and that any such exception can be authorized only through affirmative and explicit congressional action;

FURTHER RESOLVED, that the American Bar Association urges the Congress to conduct a thorough, comprehensive investigation to determine: (a) the nature and extent of electronic surveillance of U.S. persons conducted by any U.S. government agency for foreign intelligence purposes that does not comply with FISA; (b) what basis or bases were advanced (at the time it was initiated and subsequently) for the legality of such surveillance; (c) whether the Congress was properly informed of and consulted as to the surveillance; (d) the nature of the information obtained as a result of the surveillance and whether it was retained or shared with other agencies; and (e) whether this information was used in legal proceedings against any U.S. citizen.

FURTHER RESOLVED, that the American Bar Association urges the Congress to ensure that such proceedings are open to the public and conducted in a fashion that will provide a clear and credible account to the people of the United States, except to the extent the Congress determines that any portions of such proceedings must be closed to prevent the disclosure of classified or other protected information; and

FURTHER RESOLVED, that the American Bar Association urges the Congress to thoroughly review and make recommendations concerning the intelligence oversight process, and urges the President to ensure that the House and Senate are fully and currently informed of all intelligence operations as required by the National Security Act of 1947.

REPORT

"Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. . . .”


Olmstead v. United States, 277 U.S. 438, 479 (1928) (Brandeis, J., dissenting).

Introduction

On December 16, 2005, the New York Times reported that the President had “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.”1

The New York Times revelation has created a major national controversy. The NSA program has drawn severe critics and staunch defenders; dozens of newspaper editorials and op-ed pieces have published, it has been a “hot topic” on hundreds of blogs, and both Democrat and Republican members of Congress have called for hearings.2

A number of terrorism defendants have filed legal challenges to their previous pleas of guilty or convictions,3 and a lawsuit has been filed in Detroit against the NSA by the American Civil Liberties Union (ACLU), the National Association of Criminal Defense Lawyers (NACDL), the Council on American Islamic Relations (CAIR) and named individual plaintiffs -- including several lawyers -- seeking declaratory and injunctive relief demanding the NSA cease and desist warrantless interception of Americans’ electronic and telephone conversations because such interceptions “seriously compromise the First Amendment’s guarantees of the freedoms of speech, of the press, and of association, and the Fourth Amendment’s prohibition on warrantless searches and seizures.”

In light of the importance of these issues, ABA President Michael S. Greco appointed a Task Force on Domestic Surveillance in the Fight Against Terrorism5 to “examine the legal issues surrounding federal government surveillance conducted inside the United States relating to the investigation of potential terrorist activities” and bring a preliminary report with recommendations to the ABA House of Delegates at the February 2006 Midyear Meeting. In his appointment letters, President Greco stated:

Recent revelations about the National Security Agency's domestic surveillance program remind us that we must continually and vigilantly protect our Constitution and defend the rule of law.

While the Task Force was operating under intense time pressures, it benefitted from the fact that substantial analyses of the legal issues had already been undertaken by a wide and diverse variety of sources. For example, the Department of Justice issued a 42 page “white paper,” an Assistant Attorney General sent a strong letter responding to congressional inquiries, and the Attorney General delivered a major address on the issue at the Georgetown Law Center. Each, as expected, vigorously defended what the Administration is calling a “terrorist surveillance program” (as opposed to “domestic surveillance” or “warrantless eavesdropping”), as being entirely lawful and within the President’s constitutional and statutory authority. 6

On the other side of the issue, a variety of constitutional law scholars and former government officials have released letters and memoranda decrying the NSA program as a violation of FISA, and the Constitution,7 and several Web sites have collected documents related to the NSA domestic surveillance issues.8

The bipartisan Congressional Research Service issued three reports: a report on the legislative history of the AUMF issued on January 4, 2006; a lengthy report issued on January 5, 2006, analyzing the NSA program, and another report on January 18, 2006, regarding the statutory reporting procedures required in intelligence matters.9

The Task Force unanimously agreed that the President should abide by the limitations which the Constitution imposes on a president under our system of checks and balances and respect the essential roles of the Congress and the judicial branch in ensuring that our national security is protected in a manner consistent with constitutional guarantees. There was also consensus that any electronic surveillance inside the United States by any U.S. government agency for foreign intelligence purposes must comply with the provisions of FISA and that, if the President believes that FISA is inadequate to safeguard national security, he should seek appropriate amendments or new legislation rather than acting without explicit statutory authorization.

The Recommendation also urges the Congress to conduct a thorough, comprehensive investigation of the issues surrounding the NSA domestic surveillance program, with proceedings that are open to the public and conducted in a fashion that will provide a clear and credible account to the people of the United States, except to the extent the Congress determines that any portions of such proceedings must be closed to prevent the disclosure of classified or other protected information.

The Task Force also calls for the Congress to thoroughly review and make recommendations concerning the intelligence oversight process, and urges the president to ensure that the House and Senate are fully and currently informed of all intelligence operations as required by the National Security Act of 1947.

Electronic Surveillance for Foreign Intelligence Purposes Conducted Within the United States Should Comply with FISA

The Administration concedes that its secret NSA electronic surveillance program entails “electronic surveillance” of “United States persons” as those terms are defined by the Foreign Intelligence Surveillance Act (“FISA”). The Administration maintains, however, that Congress, in enacting the Authorization for the Use of Military Force on September 18, 2001 (“AUMF”), Pub. L. No. 107-40, 115 Stat. 224, authorized the President to conduct such foreign intelligence electronic surveillance without obtaining the court orders required by FISA.

As we explain, FISA is a detailed and comprehensive statute that was enacted to strike a balance between the recognized need to conduct foreign intelligence surveillance and the need to protect fundamental civil liberties. FISA makes specific provision for exceptions to its requirements in emergencies and in the event of war. Moreover, following 9/11, FISA was amended by the Patriot Act, at the behest of the President, to provide the greater flexibility the administration argued was needed to address the enhanced threat of international terrorism so tragically dramatized by the 9/11 attacks. The Patriot Act amendments, however, left intact FISA’s explicit provisions making FISA procedures the exclusive means for conducting electronic surveillance for foreign intelligence purposes in the United States.

There is nothing in either the language of the AUMF or its legislative history to justify the assertion that the general grant of authority to use “all necessary and appropriate force” against Al Qaeda and those affiliated with or supporting it, was intended to amend, repeal or nullify the very specific and comprehensive terms of FISA. Nor, under our system of checks and balances, is there any serious constitutional issue concerning Congress’ power to regulate electronic surveillance for foreign intelligence purposes where it intercepts the communications of persons within the United States, to assure that the Nation has the necessary means to combat terrorism while also assuring that those means are not abused to unjustifiably infringe civil liberties, through invasions of privacy that not only violate the Fourth Amendment but chill the freedom of speech and association protected by the First Amendment.

The FISA Statutory Framework

In 1967, the Supreme Court held for the first time that as a general matter wiretapping was subject to the Fourth Amendment’s protections against unreasonable searches and its requirement of a warrant in most circumstances. Katz v. United States, 389 U.S. 347 (1967). The Court left open, however, the question of whether the Fourth Amendment applied to wiretapping conducted to protect national security.

Subsequently, in 1972, the Court held that wiretapping conducted for domestic security purposes was subject to the Fourth Amendment and required a warrant. United States v. United States District Court, 407 U.S. 297, 313-14, 317, 319-20 (1972). It left open the question, however, whether electronic surveillance for foreign intelligence purposes was subject to the Fourth Amendment’s requirement of a warrant issued by a court authorizing the surveillance. Id. at 308.

There followed a period in which lower courts differed on this question. During this same period, following the Watergate scandal and revelations of abuses of wiretapping during the Nixon administration, and with the support of both Presidents Ford and Carter, a Senate Select Committee, headed by Senator Frank Church (the “Church Committee”), undertook a comprehensive investigation of government wiretapping and other surveillance procedures conducted by the Executive branch without a warrant.

The Church Committee exposed substantial abuses of this purported authority. See S. Rep. No. 94-755 (Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities) 94th Cong., 2nd Sess., Book II at 5-20 (1976). It therefore recommended congressional legislation to provide the government with needed authority to conduct surveillance to protect national security but to protect against the abuses of that authority and the serious infringements of civil liberties disclosed by the investigation. Id. at 296-341. FISA was enacted to carry out these recommendations. Pub. L. 95-511, 92 Stat. 1783 (1978).

The bill, as enacted, had the full support of President Carter and the Executive branch. See S. Rep. No. 95-604 (Judiciary Committee) 95th Cong., 1st Sess., Part 1 at 4 (1977). President Carter’s Attorney General, Griffin Bell, testifying in support of the bill, emphasized:

In my view this bill . . . sacrifices neither our security nor our civil liberties, and assures that the abuses of the past will remain in the past and that the dedicated and patriotic men and women who serve this country in intelligence positions . . . will have the affirmation of Congress that their activities are proper and necessary.
When President Carter signed FISA into law, he said in his signing statement:

The bill requires, for the first time, a prior judicial warrant for all electronic surveillance for foreign intelligence or counterintelligence purposes in the United States in which communications of U.S. persons might be intercepted. It clarifies the Executive’s authority to gather foreign intelligence by electronic surveillance in the United States. It will remove any doubt about the legality of those surveillances which are conducted to protect our country against espionage and international terrorism. It will assure FBI field agents and others involved in intelligence collection that their acts are authorized by statute and, if a U.S. person’s communications are concerned, by a court order. And it will protect the privacy of the American people.

In short, the act helps to solidify the relationship of trust between the American people and their Government. It provides a basis for the trust of the American people in the fact that the activities of their intelligence agencies are both effective and lawful. It provides enough secrecy to ensure that intelligence relating to national security can be securely required, while permitting review by the courts and Congress to safeguard the rights of Americans and others.

FISA applies to “electronic surveillance” which, among other things, would include the electronic acquisition, within the United States, of the content of communications to or from the United States or of communications of a “United States person” located in the United States. A “United States person” includes, among others, U.S. citizens or permanent resident aliens. The Administration has never questioned, and in fact, has conceded, that the NSA surveillance program meets FISA’s definition of “electronic surveillance.”

With certain exceptions, FISA requires that to conduct “electronic surveillance” the government must obtain a court order from a special, secret court created by FISA known as the FISA court. To obtain such an order, a federal officer must certify that “a significant purpose” of the surveillance is to obtain foreign intelligence information and provide a statement describing, among other things, the basis for the belief that the information sought is foreign intelligence information. The court will issue an order authorizing the surveillance upon making a series of findings, including that there is probable cause to believe that a target of the electronic surveillance is a foreign power or agent of a foreign power and that the surveillance is directed at facilities used, or about to be used, by a foreign power or agent of a foreign power. A “foreign power” includes international terrorist groups and an “agent of a foreign power” includes a person other than a United States person engaged in international terrorism.

FISA provides a number of exceptions, two of which are of particular significance. First, it permits electronic surveillance without first obtaining a court order, in situations certified by the Attorney General as an emergency, provided that an order is sought within 72 hours of the authorization of the surveillance by the Attorney General. Id. Second, recognizing the exigencies created by war, the President through the Attorney General, may authorize electronic surveillance without a court order for a period of 15 days after a declaration of war by Congress.

This provision was intended to provide time to enable Congress to amend FISA if it was determined necessary to do so to meet special war-time needs. Notably, Congress rejected a request to make this exception extend for one year after a declaration of war, indicating that 15 days should be sufficient to make any necessary amendments.

Congress made explicit its intention that FISA is the exclusive means by which electronic surveillance for foreign intelligence purposes may be conducted. 18 U.S.C. 2511 provides in part: “[T]he Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in Section 101 of such Act [50 U.S.C. 1801] . . . may be conducted.” FISA also makes it a criminal offense “to engage in electronic surveillance under color of law except as authorized by statute.”

Following the attacks of September 11, 2001, the Administration asked Congress to enact legislation to enhance its ability to protect the nation against such attacks by Al Qaeda and other international terrorists. Congress responded promptly to that request, enacting the USA PATRIOT Act in October and the Intelligence Authorization Act in December.

Those laws amended FISA in a number of respects, including expanding the period for emergency electronic surveillance from 24 hours to 72 hours and reducing the requirement that the government certify that the foreign intelligence gathering was a “primary purpose” of the electronic surveillance to a showing only that it was “a significant purpose.”

In sum, FISA is a comprehensive and exclusive procedure for conducting foreign intelligence electronic surveillance in the United States. It anticipates emergencies and the exigencies of war, and it was specifically amended at the Administration’s request to make it more responsive to the need to combat international terrorism following the attacks of September 11, 2001. Nevertheless, the Administration concedes that NSA conducted electronic surveillance for a period of four years without complying with FISA’s procedures.

The AUMF Does Not Create an Exception to FISA

The argument that Congress implicitly authorized the NSA program when it enacted the Authorization for Use of Military Force (AUMF) against al Qaeda, is unpersuasive. There is nothing in the text or the history of the AUMF to suggest that Congress intended to permit the Executive to engage in any and all warrantless electronic surveillance in the United States without judicial approval or a showing of probable cause as required by FISA.

The argument put forward by the Executive assumes that Congress intended to remove all restraint on electronic surveillance currently mandated by FISA or Title III, at least with regard to the fight against terrorism. The history of FISA demonstrates a congressional commitment to regulate the use of electronic surveillance and to assure that there is a judicial check on Executive power. Nothing in the AUMF suggests that Congress intended to unleash the Executive to act without judicial supervision and contrary to standards set by Congress in conformity with the Constitution.

The Executive’s argument rests on an implicit, unstated inference from the AUMF. Such an inference is directly contrary to the explicit text of FISA. The Supreme Court has stated that specific and carefully drawn statutes prevail over general statutes where there is a conflict.

FISA contains a section entitled “Authorization during time of war,” which provides that “[n]otwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress.” One need not parse the language to determine Congressional intent, because the plain meaning of the language is indisputable: i.e., When Congress declares war, the President may permit the Attorney General to authorize electronic surveillance without a court order under FISA for 15 days. Thus, Congress limited the Executive power to engage in electronic surveillance without judicial supervision to 15 days following a formal declaration of war. It is inconceivable that the AUMF, which is not a formal declaration of war, could be fairly read to give the President more power, basically unlimited, than he would have in a declared war.

The legislative history demonstrates that Congress intended that the Executive seek legislation if it concluded that there was a need for electronic surveillance not authorized by FISA for more than 15 days: “The Conferees intend that this [15-day] period will allow time for consideration of any amendment to this act that may be appropriate during a wartime emergency. . . . The conferees expect that such amendment would be reported with recommendations within 7 days and that each House would vote on the amendment within 7 days thereafter.”

The Executive’s argument distorts FISA and makes meaningless the provision that identifies FISA and specific criminal code provisions as “the exclusive means by which electronic surveillance . . . may be conducted” because the argument assumes that the House version of the bill would have authorized the President to engage in warrantless electronic surveillance for the first year of a war, but the Executive may treat any congressional act as authorizing an exception from Title III and FISA. Were the argument accepted, the Executive could justify repeal or suspension of FISA and Title III restrictions in statutes appropriating money for federal agencies or virtually any other legislation that, in the sole judgment of the Executive, would be rendered more effective by greater electronic surveillance.

The argument that the AUMF implicitly creates an exception to FISA and is therefore consistent & strains credulity. It rests on the notion that Congress, although it never mentioned electronic surveillance or FISA in the AUMF, nevertheless implicitly intended to create an undefined, unrestrained exception to FISA and give the Executive unlimited power to engage in unlimited electronic surveillance with no judicial review.

In an area as heavily regulated and as important to basic notions of privacy as electronic surveillance, it is inconceivable that Congress would have ceded greater unfettered power and discretion to the Executive in dealing with al Qaeda than it would in a declared war.

Moreover, the Attorney General has essentially conceded that no reasonable person would conclude that Congress intended to cede such power to the Executive: “We have had discussions with Congress in the past—certain members of Congress—as to whether or not FISA could be amended to allow us to adequately deal with this kind of threat, and we were advised that that would be difficult, if not impossible.” See Press Briefing by Attorney General Alberto Gonzales and General Michael Hayden, Principal Deputy Director for National Intelligence (Dec. 19, 2005), available at http://www.whitehouse.gov/news/releases/2005/12/20051219-1.html. In light of this concession, the claim that Congress granted the Executive this authority under the AUMF is not credible.

The administration has argued that its position is supported by the Supreme Court’s opinion in Hamdi v. Rumsfeld, but this is also unpersuasive. A plurality of the Court in Hamdi held that the AUMF authorized military detention of enemy combatants captured on the battlefield abroad as a “fundamental incident of waging war.” When Congress authorizes the use of force, it clearly contemplates that the enemy will be killed or captured. There can be little doubt that those who are captured on the battle field may be held while the battle is fought. Typically, those captured are deemed prisoners of war. But, in Hamdi, the question was whether a captured individual could be held as an enemy combatant. The plurality expressly limited its affirmative answer to individuals who were “part of or supporting forces hostile to the United States or coalition partners in Afghanistan and who engaged in an armed conflict against the United States there.”

It is not a fair reading of the Hamdi case to suggest that AUMF repeals all limitations on Executive power previously contained in any federal statute as long as the Executive in its sole discretion deems additional power useful in the general fight against terror.

The Hamdi plurality agreed “that indefinite detention for the purpose of interrogation,” even of conceded enemy combatants, “is not authorized” by the AUMF. Id. If Congress did not provide the Executive with the right to detain enemy combatants for intelligence purposes, it is inconceivable that Congress intended to permit the indefinite eavesdropping and invasion of privacy of American citizens who are neither enemy combatants nor suspected of criminal activity.

The Government’s Interpretation of the AUMF Is Not Required to Avoid a Constitutional Question

The Administration mistakenly argues that its construction of the AUMF is required to avoid a serious constitutional question. First, the canon of avoidance only comes into play if there is an ambiguity in a statute.

But neither FISA nor the AUMF are ambiguous on the question of electronic surveillance. FISA explicitly makes its procedures the exclusive means for conducting electronic surveillance. Meanwhile, the AUMF contains no reference to electronic surveillance, and as indicated above, nothing in the history or circumstances suggests that the AUMF was intended to authorize electronic surveillance.

In any event, the constitutional question must be serious and substantial. The Administration claims that unless its construction of the AUMF is accepted, a serious constitutional question would be raised as to whether FISA unconstitutionally encroaches on inherent powers of the President as Commander-in-Chief. That question is neither serious nor substantial. Even assuming that, after FISA, the President retains inherent authority to conduct electronic surveillance without a warrant to acquire foreign intelligence – a question that has never been decided – that does not mean that Congress lacks authority to regulate the exercise of that authority to prevent its abuse and unnecessary intrusions on civil liberties.

It should be noted that both President Ford and President Carter supported legislation to regulate the conduct of foreign intelligence surveillance, and as noted, FISA was enacted with the full support of President Carter. As the Senate report accompanying the bill that became FISA noted:

The basis for this legislation is the understanding – concurred in by the Attorney General – that even if the President has an “inherent” constitutional power to authorize warrantless surveillance for foreign intelligence purposes, Congress has the power to regulate the exercise of this authority by legislating a reasonable warrant procedure governing foreign intelligence surveillance.

The analysis is plainly correct. Whatever inherent authority the President may have to conduct foreign intelligence surveillance, Congress also has the authority under Article I to regulate the exercise of that authority.

Here, through FISA, Congress has exercised its Article I powers to regulate electronic surveillance for foreign intelligence purposes in great detail and made it the exclusive means for conducting such surveillance. The NSA domestic surveillance program is in direct conflict with this detailed statutory scheme. Under the criteria set forth in Justice Jackson’s famous concurring opinion in Youngstown Sheet and Tube Co. v. Sawyer, in these circumstances the President’s inherent power is at its “lowest ebb.” To sustain the President’s power here a court would have to find that such power was “beyond control by Congress.” In other words, the President's authority must be not just inherent but exclusive.

Such a conclusion would be at odds with the principles of separation of powers and our cherished system of checks and balances and faces a particularly high hurdle where, as here, individual liberties are at stake. As Justice O’Connor observed: it was “the central judgment of the Framers of the Constitution that, within our political scheme, the separation of governmental powers into three coordinate Branches is essential to the preservation of liberty”.

The government argues that prior presidents have exercised their inherent authority to conduct electronic surveillance without a warrant for foreign intelligence purposes and that courts have consistently upheld the exercise of that power.

But FISA was enacted precisely because, prior to FISA, prior presidents had repeatedly abused that power. “[The Church Committee] has concluded that every President since Franklin D. Roosevelt asserted the authority to authorize warrantless electronic surveillance and exercised that authority. While the number of illegal or improper national security taps and bugs conducted during the Nixon administration may have exceeded those in previous administrations, the surveillances were regrettably by no means atypical . . . [and were] ‘often conducted by illegal or improper means’ . .”.

In enacting FISA, Congress was concerned not only with violations of the Fourth Amendment, but the chilling effect that abuses of electronic surveillance had on free speech and association. As the Senate Report accompanying FISA explained:

Also formidable – although incalculable – is the “chilling effect” which warrantless electronic surveillance may have on the constitutional rights of those who were not targets of the surveillance, but who perceived themselves, whether reasonably or unreasonably, as potential targets. . . . The exercise of political freedom depends in large measure on citizens’ understanding that they will be able to be publicly active and dissent from official policy, within lawful limits, without having to sacrifice the expectation of privacy that they rightfully hold. Arbitrary or uncontrolled use of warrantless electronic surveillance can violate that understanding and impair that public confidence so necessary to an uninhibited political life.

Moreover, the cases upholding the President’s inherent authority all preceded the enactment of FISA. No court has ever held that Congress was without power to regulate electronic surveillance for foreign intelligence purposes to protect against the abuse of such surveillance. The government incorrectly relies on a statement in In re Sealed Case, 310 F.3d 717 (FISA Court of Review 2002), that: “We take for granted that the President does have [inherent authority to conduct warrantless searches to obtain foreign intelligence] and, assuming that is so, FISA could not encroach on the President’s constitutional power.” But this statement is dictum, made without any analysis, in a case which raised no issue about the President’s inherent authority or the constitutional power of Congress to regulate the President’s exercise of that authority under FISA.

To the contrary, the issue in Sealed Case was whether FISA’s criteria for the issuance of court orders authorizing electronic surveillance satisfied the requirements of the Fourth Amendment. The Court of Review held that they did. Moreover, the cases cited by the Court of Review for the proposition that the President had inherent authority to conduct warrantless surveillance all addressed surveillance predating the enactment of FISA and hence, have no bearing on whether any inherent authority the President had survives FISA, i.e., whether the President has not just inherent but exclusive authority to order warrantless surveillance of Americans.

Finally, if there is any serious constitutional question, it is raised by the government’s construction of the AUMF. It would give the President unfettered discretion, subject neither to regulation by Congress nor scrutiny by a court, to conduct warrantless electronic surveillance of Americans, based on the President’s (or his designees’) unilateral determination that there is reason to believe that one of the parties to the communication is a member of Al Qaeda or of groups affiliated with or supporting Al Qaeda.

While the Supreme Court has never addressed the question of whether such warrantless electronic surveillance would meet the requirements of the Fourth Amendment, and a conclusive assessment of that question would require a careful analysis of the facts, which the secrecy surrounding this program precludes. The government maintains that such surveillance fits within a “special needs” exception to the Fourth Amendment’s requirement of a warrant or other court order authorizing a search and that given the post 9/11 circumstances its electronic surveillance without a court order was not an “unreasonable search” within the meaning of the Fourth Amendment. But the “special needs” exception is a narrow doctrine. The doctrine has usually been invoked to protect law enforcement officers from concealed weapons, prevent the destruction of physical evidence like illegal drugs, or permit testing for drugs or alcohol to regulate the safety of schools, workplaces or transportation. None of these cases involved government acquisition of the content of private communications, where the intrusion into privacy has a chilling effect on freedom of speech and association. It was for that very reason that the Supreme Court rejected government claims that it had a special need for warrantless electronic surveillance of communications for domestic security purposes. As the Court explained:

National security cases . . . often reflect a convergence of First and Fourth Amendment values not present in cases of ‘ordinary’ crime . . . . ‘Historically, the struggle for freedom of speech and press in England was bound up with the issue of the scope of the search and seizure power.’ History abundantly documents the tendency of Government – however benevolent and benign its motives – to view with suspicion those who most fervently dispute its policies. Fourth Amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs.

These considerations also apply to electronic surveillance of persons in the United States for foreign intelligence purposes.

Thus, even if there were a "special needs" exception for warrantless surveillance of Americans, it is likely that a court would construe it extremely narrowly, subject to the Fourth amendment, and available only in extraordinary circumstances unforeseen by Congress and in which there is no time to seek amendment to the law. It is highly unlikely that a court would uphold the exercise of such authority for four years, let alone indefinitely. The government has not shown that resort to FISA’s procedures is impractical, nor has it provided any explanation as to why in the more than four years since 9/11 it has not asked Congress for any amendments to FISA – beyond those sought and obtained under the USA PATRIOT Act – to address any alleged inadequacy of FISA.

The government’s argument that the President and the NSA have limited the program to circumstances where they have “reason to believe” that at least one party to the communication is a member of Al Qaeda or organizations affiliated with or supporting Al Qaeda does not provide reasonable protections against unjustified invasions of the privacy of innocent persons or a safeguard against abuse from a long-term program. The “very heart” of the Fourth Amendment requirement is that the judgment of whether the evidence justifies invasion of a citizen’s privacy be made by a “neutral and detached magistrate.” As the Court there explained:

The Fourth Amendment does not contemplate the executive officers of Government as neutral and disinterested magistrates. Their duty and responsibility are to enforce the laws, to investigate and to prosecute. . . . But those charged with this investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks. The historical judgment, which the Fourth Amendment accepts, is that unreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy and protected speech. . . . The Fourth Amendment contemplates a prior judicial judgment . . . , not the risk that executive discretion may be reasonably exercised. This judicial role accords with our basic constitutional doctrine that individual freedoms will best be preserved through a separation of powers and division of functions among the different branches and levels of Government.

Thus, warrantless electronic surveillance in the United States for foreign intelligence purposes would raise very serious and substantial Fourth Amendment questions.

The Need for Additional Congressional Investigation and Oversight

There are important questions about the nature, scope, and operation of the NSA domestic surveillance program that remain unanswered and which have not been examined by the Congress. For example, it has been reported that serious dissension existed within the administration over the expansive authority granted to the NSA, that then-Deputy Attorney General James Comey, acting in the absence of Attorney General John Ashcroft who was in the hospital with a serious pancreatic condition, once refused to reauthorize the NSA program, causing a high level delegation of White House Counsel Gonzales and chief of staff Andy Card to visit Ashcroft in the hospital to appeal Comey’s decision

The questions about the scope of the NSA’s electronic surveillance are highlighted by conflicting statements made by government officials. While the Administration now argues that only calls by suspected terrorists emanating from outside the United States have been monitored, the San Francisco Chronicle reported on December 22, 2005 that:

White House Press Secretary Scott McClellan said National Security Agency surveillance ordered by the president after the Sept. 11 attacks four years ago might have inadvertently picked up innocent conversations conducted entirely within the United States by Americans or foreigners.

That would violate what McClellan called Bush's requirement that one party to the communication had to be outside the United States and raised the possibility that NSA surveillance of terror suspects had morphed into surreptitious monitoring of some communications strictly within the United States without court approval.

In Congress, Rep. Peter Hoekstra, R-Mich., chairman of the House Intelligence Committee, told a news conference that White House officials had acknowledged during briefings for congressional leaders that U.S.-to-U.S. communications might be inadvertently intercepted during NSA's worldwide quest for al Qaeda-related conversations between terror suspects in the United States and overseas.

Moreover, public statements made well after the NSA program was underway raise issues that should be examined by Congress. When James A. Baker, the Justice Department's counsel for intelligence policy, testified before the Senate Select Committee on Intelligence on July 31, 2002, he stated that the Administration did not support a proposal by Senator Mike DeWine (R-OH) to lower the legal standard for electronic surveillance “because the proposed change raises both significant legal and practical issues,” might not “pass constitutional muster," and “could potentially put at risk ongoing investigations and prosecutions.” He added:

We have been aggressive in seeking FISA warrants and, thanks to Congress's passage of the USA PATRIOT Act, we have been able to use our expanded FISA tools more effectively to combat terrorist activities. It may not be the case that the probable cause standard has caused any difficulties in our ability to seek the FISA warrants we require, and we will need to engage in a significant review to determine the effect a change in the standard would have on our ongoing operations. If the current standard has not posed an obstacle, then there may be little to gain from the lower standard and, as I previously stated, perhaps much to lose.

Interestingly, these paragraphs no longer appear in the official version of Baker’s testimony. Senator Russell Feingold recently accused Attorney General Gonzales of “misleading the Senate” during his confirmation hearings in his answer to a question about whether the president could authorize warrantless wiretapping of U.S. citizens. As the Washington Post reported:

Gonzales said that it was impossible to answer such a hypothetical question but that it was "not the policy or the agenda of this president" to authorize actions that conflict with existing law. He added that he would hope to alert Congress if the president ever chose to authorize warrantless surveillance, according to a transcript of the hearing.

Even the President has come under attack for potentially misleading statements. In a speech in Buffalo, NY, on April 20, 2004 – more than two years after the NSA program had been authorized – President Bush stated: Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so.

Thus, the Task Force Recommendations also urge the Congress to conduct a thorough, comprehensive investigation to determine: (a) the nature and extent of electronic surveillance of U.S. persons conducted by any U.S. government agency for foreign intelligence purposes that does not comply with FISA; (b) what basis or bases were advanced (at the time it was initiated and subsequently) for the legality of such surveillance; (c) whether the Congress was properly informed of and consulted as to the surveillance; and (d) the nature of the information obtained as a result of the surveillance and whether it was retained or shared with other agencies.

We also believe that these hearings should be open and conducted in a fashion that will provide a clear and credible account to the people of the United States, except to the extent the Congress determines that any portions of such proceedings must be closed to prevent the disclosure of classified or other protected information.

Finally, the Congressional Research Service report of January 18, 2006, “Statutory Procedures Under Which Congress Is To Be Informed of U.S. Intelligence Activities, Including Covert Actions,”16 makes it clear that Congress needs to thoroughly review and make recommendations concerning the intelligence oversight process, to ensure that the House and Senate are fully and currently informed of all intelligence operations as required by the National Security Act of 1947.

Conclusion

The American Bar Association has stood shoulder to shoulder with the president in the fight against terrorism. Every member of the Task Force – indeed, every member of this great Association – wants the president to use all appropriate tools to defeat these enemies of democracy. However, as President Greco said in creating the Task Force, “We must continually and vigilantly protect our Constitution and defend the rule of law.” And, as Supreme Court Justice Murphy warned in a case arising during World War II:

"[W]e must be on constant guard against an excessive use of any power, military or otherwise, that results in the needless destruction of our rights and liberties. There must be a careful balancing of interests. And we must ever keep in mind that “The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.”

We simply cannot allow our constitutional freedoms to become a victim of the fight against terrorism. The proposed Recommendations should be adopted by the ABA House of Delegates in order to strike a proper balance between individual liberty and Executive power.

Respectfully submitted,

NEAL R. SONNETT, Chair ABA Task Force on Domestic Surveillance in the Fight Against Terrorism

February 2006

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