Top Ten Myths About the Illegal NSA Spying on Americans
SOURCE: American Civil Liberties Union (ACLU)

MYTH: This is merely a “terrorist surveillance program.”
REALITY: When there is evidence a person may be a terrorist, both the criminal code and intelligence laws already authorize eavesdropping. This illegal program, however, allows electronic monitoring without any showing to a court that the person being spied upon in this country is a suspected terrorist. Plus, there already is a legitimate “terrorist surveillance program”—it’s called the “Foreign Intelligence Surveillance Act” (FISA). This federal law requires judicial approval of all electronic surveillance in this country in investigations to prevent “international terrorism” or “sabotage.” It unequivocally requires court approval of such surveillance, whether by the NSA or FBI. And it applies to any telephone or email to or from any American person in this country. FISA protects the constitutional rights of Americans, but if a person in the US were suspected of assisting al Qaeda then that would be the basis for getting a court order authorizing a wiretap under FISA, not for ignoring the law.

Without judicial oversight, there is no way to ensure that each person whose emails or phone calls are monitored by the NSA actually is a suspected terrorist. And, investigative reports that FBI intelligence agents have been flooded with worthless tips from the NSA about innocent schoolteachers and law abiding Americans cast serious doubt on this claim. And, as the New York Times noted: "The volume of information harvested from telecommunication data and voice networks, without court-approved warrants, is much larger than the White House has acknowledged...”[1]


MYTH: The program is legal.

REALITY: The program violates the Fourth Amendment and FISA and will chill free speech. The Fourth Amendment protects the right of the people of the United States to be free from unreasonable searches and seizures and requires court approval except in an emergency. As a bipartisan group of legal experts—including Judge William Sessions, the former Director of the FBI under President Ronald Reagan—concluded after analyzing all the constitutional and statutory assertions of the administration: “the Justice Department’s defense of what it concedes was secret and warrantless electronic surveillance of persons within the United States fails to identify any plausible legal authority for such surveillance.”[2]

The Supreme Court has long held that the conversations of Americans cannot be seized under the Fourth Amendment without court oversight.[3] In a case involving warrantless wiretapping by President Nixon in the name of national security, the Supreme Court stressed that “Fourth Amendment freedoms cannot properly be guaranteed if domestic surveillance may be conducted solely within the discretion of the Executive Branch.”[4] In that case, the Keith case, the Court reaffirmed that “prior judicial approval is required for the type of domestic surveillance involved in this case and that such approval may be made in accordance with such reasonable standards as Congress may prescribe.”[5]

Taking up the Court’s invitation, the Church Committee conducted extensive hearings and found that in the absence of any judicial check, the executive branch had spied on government employees, journalists, anti-war activists and others for political purposes. So, Congress passed FISA to provide the “exclusive” authority for the wiretapping of US persons in investigations to protect national security.[6] As the Senate Report noted, FISA “was designed . . . to curb the practice by which the Executive Branch may conduct warrantless electronic surveillance on its own unilateral determination that national security justifies it.”[7] By failing to follow the exclusive provisions governing wiretaps of Americans, the program violates both the Fourth Amendment and the letter and spirit of the federal law passed to protect and vindicate those rights.


MYTH: The Authorization for the Use of Military Force (AUMF) allows this.

REALITY: The resolution about using force in Afghanistan does not mention wiretaps and does not apply domestically, but FISA does--it requires a court order. When Congress passed FISA it not only provided that it authorizes the exclusive means to conduct foreign intelligence surveillance in the US but Congress also made it a federal crime for agents to wiretap without a court order unless authorized by statute. The administration now claims that the AUMF provides statutory authority to monitor Americans’ telephone calls and emails.

But the AUMF says absolutely nothing about electronic surveillance, and the Senate majority leader at the time, Tom Daschle, has noted that the drafters of the AUMF specifically considered and rejected language giving the president additional domestic powers.[8] Other Senators, from both sides of the aisle have concurred with Senator Daschle. As noted above, legal experts from across the spectrum have also written Congress to note that the AUMF does not authorize the NSA spying program.

In any event, Congress provided specific rules for wiretaps during war. FISA allows a limited 15-day exception to the requirement of court oversight of wiretaps in the US immediately following a declaration of war, but no more than that. In passing FISA, Congress sought to create a comprehensive statute to govern all possible justifications for wiretapping on these shores.


MYTH: The president has authority as commander in chief of the military to approve this program to spy on Americans without any court oversight.

REALITY: The Supreme Court recently found the administration’s claim of unlimited commander in chief powers during war to be an unacceptable effort to “condense power into a single branch of government,” contrary to the Constitution’s checks and balances.[9] As Justice Sandra Day O’Connor declared in this case focused on combatants captured on the battlefield, it is “clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.”[10]

The President’s power to act in the area of electronic spying is at its lowest ebb--not its zenith, as claimed by Attorney General Gonzales—because Congress has created comprehensive rules governing electronic surveillance in the US in times of war and to protect against international terrorism. When President Truman tried to seize the steel mills to support the war in Korea, the Supreme Court rebuked him, stating that: “It is one thing to draw an intention of Congress from general language and to say that Congress would have explicitly written what is inferred, where Congress has not addressed itself to a specific situation. It is quite impossible, however, when Congress did specifically address itself to a problem, as Congress did to that of seizure, to find secreted in the interstices of legislation the very grant of power which Congress consciously withheld. To find authority so explicitly withheld is . . . to disrespect the whole legislative process and the constitutional division of authority between President and Congress.”[11]

And, the legislative history of FISA refutes the claims of the White House: “[E]ven if the President has the inherent authority in the absence of legislation to authorize warrantless electronic surveillance for foreign intelligence purposes, Congress has the power to regulate the conduct of such surveillance by legislating a reasonable procedure, which then becomes the exclusive means by which such surveillance may be conducted.”[12] As legal experts have established: “Congress did not implicitly authorize the NSA domestic spying program in the AUMF, and in fact expressly prohibited in FISA.”[13]

In the current crisis, not only did Congress specifically provide rules governing electronic surveillance on these shores to protect national security, it also reinforced those very rules after passing the AUMF. Within 40 days of the vote on the AUMF, Congress enacted 25 changes to FISA at the request of President Bush in the USA Patriot Act (Title II, including Section 215 relating to getting court approval for business or library records as well as Section 206 regarding getting court approval for multiple-point wiretaps), but none of these amendments struck the requirement that the president get judicial approval to conduct electronic surveillance of people in the U.S. Congress has made other changes to FISA in the past four years.[14] This legislative history only serves to reinforce the continuing legal obligation of the administration to follow FISA regardless of the authority to use military force in Afghanistan.
http://baltimorechronicle.com/2006/020906ACLU.shtml