Re.      Opposition to the Substitute Version of S. 2453, the “National Security Surveillance Act of 2006”

Dear Senator:

On behalf of the American Civil Liberties Union, and its hundreds of thousands of activists, members and fifty-three affiliates nationwide, we write to express our strongest possible opposition to the substitute version of S.2453, the “National Security Surveillance Act of 2006.”  This bill by Senate Judiciary Committee Chairman Arlen Specter (R-PA) constitutes a capitulation to the Bush administration’s claims of inherent, unlimited power to wiretap Americans, search our homes, and monitor our calls and associations, without meaningful or individualized evidence that an American whose privacy is invaded is doing anything wrong.

Rather than place meaningful checks on presidential power to invade the privacy of ordinary Americans, this bill would use the disclosure of the president’s illegal activities as a springboard to give President Bush even greater power.  It also would retroactively legalize the actions of the White House and others, without Congress ever conducting a serious bipartisan investigation into how many Americans’ rights have already been violated through warrantless spying by the National Security Agency (NSA).

In the wake of revelations that the NSA has also amassed communication records of more than 100 million Americans, Congress should initiate a thorough investigation into these illegal activities, not give President Bush’s expansive view of his power to unilaterally spy on Americans an ex post facto blessing.  See www.usatoday.com/news/washington/2006-05-10-nsa_x.htm.  We believe that this second program violates not just the Foreign Intelligence Surveillance Act (FISA), 50 USC §§ 1841-46, but also the Stored Communications Act, 47 USC § 222, and the Electronic Communications Privacy Act, 18 U.S.C. §§ 2702, 2707.  Now is not the time for to pass a bill this like this.   

For the following primary reasons, the ACLU urges all Senators to vote against the substitute for S. 2453 and speak out against it:

Congress Should Not Pardon the President for Violating Criminal Laws against Government Wiretapping without a Court Order. 

The bill would amend section 109 of FISA, 50 USC § 1809, which imposes a criminal penalty of up to five years in jail and a $10,000 fine for wiretapping Americans without a court order.  It would accomplish this by allowing wiretapping at the direction of the president outside of FISA, accepting the theory that the president has inherent constitutional authority to wiretap without judicial oversight.  It would also amend the criminal code, 18 USC §§ 2711(2)(e) and (f), to make it legal to wiretap outside of FISA at the direction of the president.  In so doing, Senator Specter’s bill would expressly create a retroactive exception to criminal liability when warrantless wiretapping is done at the president’s discretion, acquiescing to the president’s claim of inherent constitutional power, unless and until a court intervenes.  Little could be more damaging to the rule of law than effectively pardoning President Bush and his aides, and in the process returning our nation to the dark days before Watergate when President Nixon spied at will on journalists, government employees, and ordinary Americans.

Congress Should Not Eliminate the Requirement that FISA Be the Exclusive Authority and Procedure for Wiretapping Americans in the Name of National Security. 

Senator Specter’s bill would also eliminate the provision in federal criminal law that provides that FISA is the “exclusive” procedure and authority for wiretapping Americans to gather foreign intelligence.  By deleting that critically important part of 18 U.S.C. § 2511(2)(f), this bill would reward the president’s refusal to follow FISA by exempting him from following these procedures.  The effect of this would be to allow any president to make up his own “rules” for wiretapping Americans and secretly implement those rules unless and until a court finds such rules unconstitutional.  This would make tangible President Nixon’s claim that “when the president does it that means that it is not illegal.”  (President Richard M. Nixon interview with David Frost, May 19, 1977, republished in The New York Times, May 20, 1977, p. A16.)  By adding back into the federal statute language embracing the idea of inherent presidential power to wiretap, this bill would resurrect the very provision in the criminal code that President Nixon relied upon in his warrantless wiretaps of countless Americans based on their political views. 

The legislative history of FISA provides an important rebuttal to the claims of this White House regarding inherent authority to ignore federal law: “[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.”  H.R. Rep. No. 95-1283, pt. 1, at 24 (1978).  By eliminating the exclusivity of these procedures, Congress will be destroying one of the pillars of FISA that has helped to protect civil liberties from unilateral spying by the executive branch.  To paraphrase the Supreme Court, our Fourth Amendment freedoms cannot properly be guaranteed if electronic surveillance may be conducted solely within the discretion of the president.  See United States v. United States District Court, 407 U.S. 297 (1972).  Senator Specter’s bill would undo the Senate’s very intent in passing FISA, which “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.”  S. Rep. No. 95-604(I), at 7, 1978 U.S.C.C.A.N. 3904, 3908.  By eliminating the requirement that the president follow FISA and get a court order to search based on evidence an American is conspiring with a foreign agent, this bill places our rights at the secret will of the president.  Indeed, the addition of the inherent authority language to federal statutes makes it even less likely FISA as amended will be followed.   

Congress Should Not Approve Wiretapping of Americans Without Probable Cause Nor Allow Program Warrants Based on the Exercise of  First Amendment Rights.   

This bill would allow a hand-picked group of appellate judges to approve a program of surveillance as long as some of the communications intercepted involve agents of a foreign power.  Under the bill, the president would not have to provide any evidence or probable cause that an American is conspiring with al Qaeda.  The program would be authorized if it wereas designed to sweep in communications of a foreign power, which basically would allow a dragnet over our communication system.

The program would also be authorized if it could intercept communications of any person the government believes is in contact with, or has associated with, a foreign power.  Thus, any legislator, journalist, attorney, scholar, doctor, or bus driver who has had any contact with someone the government suspects of international terrorism--even innocent contact based on exercising one’s freedoms as an American--could have every telephone call monitored for an unlimited period.  This provision, Section 704 of the bill, offends both the protections of the Fourth Amendment and the First Amendment.  This guilt-by- association standard, without any evidence whatsoever of wrongdoing, will easily entangle many innocent Americans and chill the exercise of their rights.

FISA currently requires an order based on “probable cause,” defined to require evidence an American is conspiring with a suspected terrorist.  The idea that there must be some facts that would lead a reasonable person to believe an American is conspiring with al Qaeda before electronic surveillance can begin has been part of foreign intelligence law for more than a quarter century.  The bill, however, would no longer require any probable cause of wrongdoing or conspiracy before Americans’ conversations could be wiretapped, if the administration claimed it could not identify all potential targets of a terrorism investigation, an exceedingly broad standard.  Indeed, even though the bill does not repeal all of the rules in FISA for individualized court orders, it is difficult to imagine the administration ever seeking a warrant based on individualized evidence of wrongdoing by an American when it can simply get an order to allow a program of surveillance without showing probable cause an American is aiding the enemy.  We are concerned that the so-called program “warrant” provision would swallow whatever remains of FISA’s provisions regarding court approval for electronic surveillance of specific individuals in terrorism investigations.    

This part of the bill is perhaps not surprising because the administration has claimed that it need not comply with the probable cause requirements of the Fourth Amendment.  To support this argument, it has cited cases allowing drug testing of high school students without warrants under a reasonableness test based in part on the determination schools act in the place of parents vis-à-vis children with diminished privacy rights.  Such cases are irrelevant because the Bush administration does not stand in the shoes of the parent to the American people, who have a substantial right to privacy in their intimate communications under long-standing legal precedents, and who should not be treated as children or suspects in their own country.     

Congress Should Not Strip Federal Courts of Jurisdiction over Americans’ Claims that the President’s Wiretapping Violates Fourth Amendment and Statutory Rights

Senator Specter’s bill would mandate that all pending cases challenging the President’s illegal wiretapping program be transferred to the Foreign Intelligence Surveillance Court of Review (FISCR).  This court consists of three judges hand-picked by the Chief Justice of the United States.  In 2002, the last time the FISCR heard a case involving FISA, Chief Justice Rehnquist, who was elevated by President Reagan, chose three Reagan appointees to review cases from the FISC.  That panel included Judge Silberman, a former official who served in the Nixon and Ford administrations and fought against the creation of FISA along side the vice president.  Congress should not give its imprimatur to an attempt to game the system by supplanting randomly selected federal judges from across the country who have been assigned to hear people’s constitutional claims.  Such forum shopping will cast doubt on the legitimacy of any decisions reached.    

Additionally, litigation in the FISCR is more likely to be secret and non-adversarial than litigation in our public court system.  And, given the lack of democratic check on those chosen, the FISCR is likely to be the most pro-administration panel conceivable, as past experience demonstrates.  Giving the FISCR exclusive authority to decide serious constitutional questions arising from federal surveillance would be a serious mistake and may well be unconstitutional.  Congress should not be creating a “super circuit” for all cases involving national security surveillance issues that have major civil liberties implications.  More study is needed before taking such a path.  The development of federal case law benefits from the consideration of judges from a variety of perspectives across the country, which also helps the Supreme Court better assess emerging legal issues.  Congress should not use the occasion of the president’s breach of federal laws to aggregate power in the body subject to the least check by the people’s representatives.    

Congress Should Not Create an Exception for Warrantless and Secret Physical Searches of Americans’ Homes in Wartime. 

Senator Specter’s bill would also eliminate the restrictions of FISA on executive branch actions during wartime, including restrictions on secret searches of American homes and businesses as well as the requirement of court orders for wiretapping and pen registers.  See 50 USC §§ 1811, 1829, 1844.  FISA currently exempts the President from following the legal requirement that he get a “sneak and peek warrant” to secretly search an American’s home for 15 days following a declaration of war (that is, he has a two-week exemption from getting a court order if Congress declares war, but after that period he must go to the FISA court).  The chairman’s bill in section 9 would delete this provision and, in so doing, would eliminate the effort of Congress to ensure that presidents comply with FISA even in war.   

What that means is that if America were to go to war against Iran or any other country, under these changes to FISA, President Bush would argue that he has been given power to secretly search the homes and businesses of any and all Americans under the guise of national security without any judicial check whatsoever.  Repealing FISA’s wartime protection against warrantless searches of homes as well as communications would be a catastrophic loss of Americans’ civil liberties. 

One might argue that the effect of eliminating this provision would somehow be to require the president to follow FISA’s procedures even for the 15 days after war is declared and thereafter, but such an interpretation would not be followed by this president.  This is because the bill not only eliminates the express requirement that the president follow FISA during war, it also eliminates the requirement that FISA be the exclusive procedure for national security surveillance.  In passing FISA, Congress intended to clear the field of any claims that there were loopholes to these exclusive procedures during wartime.  Eliminating this provision creates a black hole for our rights and rewards the administration’s disrespect for federal laws placing checks on NSA spying on Americans.  

We have additional concerns about S. 2453, including serious concerns about the revised findings of fact and changes to FISA’s definitions that we would be happy to discuss.  It is our understanding that time is of the essence to make public our strenuous objections to this legislation because it may be considered by the Senate Judiciary Committee on Thursday, May 18, 2006.   

It is unclear why it is urgent to pass this bill now when the chairman has promised to hold a hearing on President Bush’s claims of inherent authority to violate other federal laws as reported in the Boston Globe.  The timing of a mark-up on this substitute bill is also particularly ill advised in light of the promise by the chairman to hold a hearing with representatives of the telecommunications industry regarding the administration’s monitoring of Americans’ phone calls.  The bill would exclude any information identifying whom Americans call, domestically and internationally, and how long they talk to their family, friends or business associates from the program “warrants” provisions.  See Sections 3 (Section 701(10)) and 4 (Section 702(c)(1)).  Given the intent of the legislation overall to eliminate statutory restrictions on the president regarding civil liberties protections, it is unclear whether these sections would have the effect of making Title III of FISA regarding pen registers a dead letter in practice without repealing it or whether it would ensure that at least data, if not content, is subject to individualized orders by the FISC.  Rather than embrace this bill, the Senate should reject any legislation that would ratify the NSA’s program of call monitoring, for content or data, in the wake of revelations that President Bush has created the largest federal database in U.S. history, perhaps the most extensive violation of federal laws ever.  Embracing the administration’s inherent constitutional authority argument, as this bill does, will make it even harder to get to the bottom of these new revelations.     

Rather than provide such an out-and-out whitewash of the illegal NSA programs, we urge Senator Specter and all senators to instead support his proposal to use the power of the purse to get answers from the administration.  Congress deserves honest answers, which the chairman has acknowledged the Senate has not received, and so do the American people.  

We sincerely hope the Senate Judiciary Committee will insist on getting facts from the administration before altering FISA, which was intended to help protect the American people by ensuring that no president, no matter which party, could spy on American residents without strong checks.  We believe that federal agents should focus the nation’s precious anti-terrorism resources on foreign powers and terrorist agents and not on innocent Americans.

Finally, in light of the pattern of abuse of power by the administration--including the revision of legal prohibitions on torture and cruel treatment of prisoners, as well as revelations about secret CIA prisons and the rendition of people to foreign countries with documented histories of using torture, without any due process of law—now is not the time to entrench by statute the administration’s claim of inherent constitutional power to do as it pleases, including violate federal laws unless and until a court denies the president such power.  The administration has claimed that it is bound only by the laws that do not restrict its claimed penumbra of power, whereas Congress and the courts have long taken the view that the president, like all Americans, is bound by the law until a court relieves him of that legal obligation.  The administration has turned that standard presumption of constitutionality of the laws passed by Congress on its head, and Congress should not ratify that position as this bill does, ceding power to both the president and the courts. 

For the sake of the liberty and privacy of all Americans, we ask you to vote against this legislation.  Thank you for considering our views.

Sincerely,

Caroline Fredrickson,
Director, Washington Legislative Office

Lisa Graves,
Senior Counsel for Legislative Strategy