The Honorable Arlen Specter, Chairman
Senate Judiciary Committee
United States Senate
Washington, DC 20530

Dear Chairman Specter:

On behalf of the American Civil Liberties Union, and its hundreds of thousands of activists, members and fifty-three affiliates nationwide, we write to renew our strong opposition to S.2453, the “National Security Surveillance Act of 2006.”  We ask that our letter be submitted for the record. 

While we appreciate your desire to do something in response to the fact that the administration has willfully and unrepentantly violated the plain directions of Congress regarding electronic surveillance, this bill would allow the administration to take the nation farther down the wrong path, away from restoring the rule of law and meaningful checks and balances.  It would in fact be a betrayal of your legacy as Chairman and the responsibilities of this Committee to move forward on a bill that eviscerates the Fourth Amendment.

Before addressing this legislation, it is important to put the Committee’s agenda this week in context, given last year’s extensive debate about how the Patriot Act “modernized” the Foreign Intelligence Surveillance Act (FISA) and our strong concerns about how that law eroded civil liberties.  The Committee needs to conduct a thorough investigation in light of the serious concerns about the version of the bill the Vice President helped write.       

We have three overarching concerns about S. 2453, which includes pages of brand-new amendments to FISA that have not been fully vetted by the Committee and are not be ripe for a vote.  We believe these changes would result in legalizing a range of unauthorized surveillance programs without Congress being fully informed about what it is approving or the true rationales for such changes.  First, the bill allows warrantless surveillance of all international calls and e-mails of American residents or businesses, without any evidence of any conspiracy with al Qaeda.  Second, the bill makes FISA optional while embedding into law the president’s claim that he has inherent power to wiretap Americans without a court order.  Far from changing nothing, the administration would use these changes to claim the president is empowered to act at maximum unchecked authority.  Third, we are very concerned about the bill’s attempt to prevent randomly assigned judges from considering Americans’ constitutional claims about the program. 

The Patriot Act Lesson.  The Judiciary Committee has attempted to frame the debate this week as the need for the “Modernization of FISA.”  Yet, every member of this Committee knows well that “modernization” is precisely the rationale for the sweeping amendments to FISA made by the “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001” (the USA Patriot Act).  As former Bush official John Yoo stated, “the primary provision in the Patriot Act makes amendments to the Foreign Intelligence Surveillance Act, which is the secret court you hear about that issues secret wiretaps and so on.  What the Patriot Act did is that it modernized that statute. . . .  We go to the federal courts for warrants and to get the kind of wiretaps to fight terrorism.”  CNN, Apr. 27, 2005.  President Bush made similar statements about the law that April: 

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. It's important for our fellow citizens to understand, when you think PATRIOT Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.

Eight months after these assurances that Americans’ civil liberties were being protected it came to light that, in fact, the Bush Administration--on the advice of Mr. Yoo and other political appointees—had been monitoring Americans’ phone conversations for the past nearly five years without any such check.

A Full Judiciary Committee Investigation Is Warranted.  Rather than address the administration’s failure to abide by what it then publicly acknowledged the Constitution “guarantees,” the Chairman’s bill would use these revelations as a springboard to more warrantless surveillance of Americans in the guise of “modernizing” the law.  The law already allows the court to order wiretaps of the cell phones or other phones of Americans conspiring with al Qaeda.  The wiretap can start immediately in case of an emergency with judicial review sought afterward.  But the President has failed to comply with these exclusive, mandatory procedures.  Between the Patriot Act and the Intelligence Authorization Acts, FISA has been changed many times.  http://www.fas.org/sgp/crs/intel/m071906.pdf.  Despite these changes, the president has not faithfully executed these exclusive procedures.

In fact, now we are hearing the claim that FISA does not permit the wiretapping of cell phones.  This assertion is refuted by numerous sources, including the testimony of the Attorney General of the United States:

Section 206 of the USA PATRIOT Act … provided terrorism investigators with an authority that investigators have long possessed in traditional criminal investigations. Before the passage of the Act . . . each time an international terrorist or spy switched communications providers, for example, by changing cell phones or Internet accounts, investigators had to return to court to obtain a new surveillance order, often leaving investigators unable to monitor key conversations. 

April 6, 2005 Hearing before the House Judiciary Committee (emphasis added).  Therefore, the sudden claim this month that FISA must be modernized to facilitate wiretapping of cell phones should be viewed with great skepticism, to say the least.

The standards in U.S. foreign intelligence surveillance laws should not be amended without a clear and unequivocal commitment by the President to follow--to the letter--the bills passed by Congress and signed into the law.  The first order of business must be to restore the rule of law.   

Warrantless Wiretaps of Americans’ International Calls and Emails.  It has often been said that the devil is in the details and in this case it is in the definitions.  One of the most significant changes in the law wrought by this bill is that it would redefine “electronic surveillance” so that it does not include “electronic surveillance” of Americans’ international calls and e-mails.  This across-the-board change would allow the monitoring of any and all phone calls made to or from an American in the U.S. to friends, family members or businesses abroad.  The same exemption for warrantless surveillance would apply to e-mail communications-- if any person in the electronic communication were abroad, the contents of the e-mail would have no privacy protections against US government monitoring.  This change is made worse by the provision stating that Americans’ communications are only protected if the NSA “reasonably believes” all the senders and recipients are in the US; if NSA does not so believe, it need not seek a warrant.

Allowing warrantless monitoring of international calls and emails would turn back the clock to when the NSA, through Operation Shamrock, was obtaining the records of every single international telegraph sent by Americans and businesses in the U.S.  The Church-Pike Committee conducted extensive investigations into that secret operation’s massive invasion of Americans’ privacy and, quite properly, sought to end such unwarranted intrusions in the name of national security.  That Committee was not afraid to hold hearings and conduct investigations into the shocking revelations that the NSA was monitoring international telegrams, the precursor to e-mail, when a whistleblower revealed it.  See “National Security Agency Reported Eavesdropping on Most Private Cables,” New York Times, Aug. 1, 1975.  The extensive facts uncovered by that non-partisan effort is described in more detail in the letter of the civil liberties coalition on June 7, 2006, which we ask be included in the record.  Suffice it to say, representatives of this Judiciary Committee learned that millions of Americans’ telegrams had been monitored by the NSA, with over a 100,000 analyzed each month. 

Given the recalcitrance of the administration and this Committee’s failure to hold a hearing with the telecommunication companies or former Bush officials, it would be difficult to believe this Committee has the answers to questions that should be answered before FISA is amended in such a drastic way.  Yet, this Committee is rushing to consider legislation that would undo the lengthy deliberations of Congress to prevent such warrantless surveillance from ever happening again.  We think it fair to question the wisdom of altering the protections for Americans at this juncture and in the face of such intransigence by the administration.      

Making Genuine Warrants Optional.  Our long-standing concerns about the bill’s so-called “program warrant” proposal are detailed in our letters of May 16, 2006, and April 6, 2006, and we would ask that they be included in the record (they are appended to this letter).  The bill would bypass Congress in favor of court approval for electronic surveillance of untold numbers of Americans.  The process is a sham—it basically directs the court to allow wiretaps without any showing of individualized wrongdoing or any showing that the persons whose conversations are eavesdropped upon are agents of a foreign government or terrorist organization.  The decision to execute the surveillance is made in secret and without any adversarial process.  The Fourth Amendment requires particularity but the bill would allow the court to approve surveillance without ever knowing the names and number of Americans being monitored.

The bill also takes an unwarranted dragnet approach that would sweep up the communications of innocent Americans, such as reporters, lawyers, and hotel clerks just doing their jobs.  The bill steers the court to allow surveillance of Americans without the government ever identifying to the court who is being targeted or how many are subject to the secret surveillance by the NSA. 

Perhaps the most troubling thing about this part of the bill is that it makes FISA optional while endorsing the President’s unitary executive authority claim. The bill would change federal criminal law to allow the president to conduct warrantless spying on Americans’ communications, embedding in a federal statute language allowing presidents to wiretap without any judicial check under FISA or the criminal code.  It also requires FISA to be interpreted so as not to limit the president’s claimed unilateral power to search Americans without any check.  This is designed to insulate the president from accountability as well as rebuke by the Supreme Court.  And then, to add insult to injury, the bill increases the penalties for unauthorized disclosure of information relating to the program and implicitly applies them to whistleblowers.  Under the bill, the criminal penalties-- previously focused on government officials who wiretap Americans without court orders-- would be greatly increased (from $10K to $100K and 5 to 15 years). 

The bill is also extremely troubling because it would allow warrantless physical searches of Americans’ homes or businesses indefinitely, as well as warrantless wiretaps, whenever the U.S. is in a military conflict.  It would do this by repealing the provision that requires the President to follow FISA even if Congress declares war, except the first 15 days after the declaration of war.  By both eliminating the provision allowing for warrantless searches in the first 15 days after a declaration of war, and imbedding in the statute the President’s assertion that he has the constitutional authority to engage in wiretapping without judicial review, bill will likely be interpreted by the administration to mean that whenever the US is in a military conflict the President can authorize secret searches of Americans without judicial review.  In repealing this limitation for secret physical searches (FISA sneak and peek/black bag jobs), the bill would destroy one of the pillars of FISA and allow the president to engage in unchecked surveillance of Americans. 

The bill basically requires blind trust that the President and future presidents will never misuse such a grant of power to secretly wiretap or search whomever they want without check.  The bill also takes Congress out of the equation by triggering presidential surveillance authority without a declaration of war or even an authorization for the use of military force under the War Powers Act.  The Constitution, however, does not give Congress the power to suspend the 4th Amendment or to delegate to the President such a “right.”  Congress has no business waiving Americans’ individual rights, let alone waiving them in advance.  The bill is not saved by the provision that the President report some limited information to Congress.

The Bill Also Thwarts Independent Judicial Review of Illegal Spying.   The bill is also severely flawed because it would prevent independent courts and randomly selected judges from across the country from hearing Americans’ claims that their rights have been violated by warrantless surveillance.  The bill works a great injustice in the way it tips the scales of justice.  It would require the transfer to the secret FISA Court of Review (FISCR) of all federal or state cases involving “the legality of classified communications intelligence activity”--an undefined term that could be argued to reach FOIA cases (such as the torture FOIA documents that were stamped classified) or national security whistleblower cases.  The FISCR could dismiss the lawsuits “for any reason under law.”  These provisions overreach.  Americans are entitled to have their constitutional claims heard by a fairly chosen Article III court, not a pre-selected chamber. 

Other Serious Civil Liberties Concerns.  In addition to these overarching concerns, we have concerns about the substantial changes to the definitions of FISA.  The bill includes substantial revisions of 50 USC § 1802, allowing the government to sweep up Americans’ conversations through a dragnet as long as the net is directed at the communications of foreign countries.  In cities like Washington, DC, New York, Miami, Chicago, or San Francisco, for example, where local trunk lines include calls from foreign embassies, Americans’ conversations could also be accessed.  Current law requires no warrant if the target is a foreign embassy here and there is no substantial likelihood of intercepting Americans’ conversations.  The bill would inexplicably delete that important protection while also changing the law to allow more Americans conversations to be retained, even though “unintentionally acquired.”  The bill would also expand warrantless access by allowing the Attorney General to obtain “stored communications” from telephone companies, landlords and others without a court order and pay them for the secret cooperation.  It is unclear how far into Americans’ homes or businesses the Attorney General could reach with these changes.

Additionally, it appears that the bill contemplates that any datamining by the NSA into Americans’ phone records or other data would be allowed to continue without any judicial check at all.  It is clear that the bill allows by its terms the “electronic tracking” of Americans and would exclude “dialing, routing, addressing or signaling” information from the types of information subject to a so-called “program warrant.”  This means that government tracking of such information would not be subject even to the limited judicial examination provided in the bill.  Under current law, the government is required to obtain a pen register or trap and trace court order under FISA to obtain such information.  However, the administration has certainly indicated that it does not feel obligated to follow FISA’s requirements for getting a judicial order for the contents of Americans’ communications through wiretaps, and we believe that the same reasoning the Administration uses to support its position on warrantless wiretapping is likely being used to support the notion that pen register and trap and trace surveillance – can be conducted without court orders.  In other words, by excluding this information from the coverage of the bill, the bill leaves dialing, routing, addressing and signaling information subject to the Administration’s expansive interpretation of the President’s purported authority to engage in electronic surveillance, without even the minimal procedures in the program warrants provision of the bill.

Signals and dialing data are “content” under FISA because they reveal the identity of parties to a communication and the existence of that communication.  This is sensitive, consequential information that the bill excludes from its definition of “substance.” The government should not be able to obtain sensitive information about whom an individual calls or e-mails, or what Internet websites he or she visits, or secretly pinpoint his or her location via electronic signals emitted by a cellular phone, without judicial check. Unlike the approach in this bill, courts have found that GPS signaling information is protected by the Fourth Amendment, and that a court order is required to track that information.  Such information should not be beyond judicial oversight by creatively altering definitions.

We also believe the bill should not move forward on the heels of Attorney General Alberto Gonzales’s revelation that the President is blocking a Department of Justice investigation regarding the illegal NSA spying program.  Rather than fire the investigators—as President Nixon did during the Saturday Night Massacre—President Bush denied them clearance to investigate.  These are simply different routes to the same result:  White House interference with a legitimate investigation by the Justice Department.  The Committee should be investigating that obstruction and politicization.

The bill also fails to take into account recent judicial decisions recognizing limits on presidential power.  A federal court in an NSA case recently reiterated that the Constitution protects the privacy of Americans’ phone conversations.  See Hepting v. AT&T Corp., No. C-06-672 VRW (D. Calif. July 20, 2006).  As the court noted, the NSA’s dragnet-style programs monitoring Americans’ telephone calls “violate the constitutional rights clearly established in Keith.” Hepting at 68 (citing United States v. United States District Court, 407 U.S. 297 (1972)).  And S.2453 ignores the crux of the Hamdan decision. 

Congress should not approve the transfer of power this bill represents when the administration has shown that it is unwilling to operate within the laws as written and that it is willing to break the law whenever it finds the rules inconvenient.  In front of the Senate Judiciary Committee last week, Attorney General Gonzales offered a novel legal argument: that no act by the President is illegal until the Supreme Court says it is. Department of Justice Oversight Before the Senate Judiciary Committee, 109th Cong. (July 18, 2006).  This presumptuous claim of legality in the face of the plain language of statutes and decades of precedent is troubling in and of itself.  If Congress now rewards the President with broad latitude to spy on Americans without a warrant, our liberties may never recover. 

Americans’ privacy rights and Fourth Amendment protections are too valuable and too vulnerable for Congress to grant such expanded powers to the Executive Branch.  Some might argue that the bill is no blank check but basically it is a check written to the administration in the amount it wants, diminishing privacy rights and the checks and balances that protect them.  We ask that you reconsider this bill and return to the bill you co-sponsored with Senator Feinstein, S. 3001, the Foreign Intelligence Surveillance Improvement and Enhancement Act of 2006.  It would reinforce the rule of law while streamlining procedures, but without unwarranted expansions of unchecked power.  Your instinct in trying to address the administration’s assertions is a good one, but short-circuiting any Senate investigation and the retrospective ratification of illegal acts by the administration is unacceptable from a civil liberties standpoint.        

Accordingly, we urge the Committee to investigate thoroughly the ongoing illegal surveillance programs currently being conducted by the National Security Agency at the direction of the President, and we hope the Committee will reaffirm its vital role as a check on the executive.  Thank you for considering our views.   

Sincerely,

Caroline Fredrickson
Director, Washington Legislative Office

Lisa Graves
Senior Counsel for Legislative Strategy

cc:  Members of the Senate Judiciary Committee