ACLU Demands Disclosure of Legal Documents on NSA Wiretapping, Cautions Senate Committee Against Telecom Inoculation for Domestic Spying

May 16, 2007 12:00 am

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Washington, DC – The American Civil Liberties Union today urged that Congress subpoena all of the Justice Department documents relating to the NSA warrantless wiretapping program and the new FISA court-approved program in light of the testimony yesterday that Deputy Attorney General James Comey made at a hearing before the Senate Judiciary Committee.

The testimony yesterday clearly indicated that not only did the Bush administration reauthorize the NSA program in 2004 without a signature from the Justice Department; it reauthorized the program even after both the Attorney General and Comey, the acting Attorney General determined that the program was illegal.

“The public still knows very little about the evolution of the warrantless surveillance program, what kinds of surveillance the NSA is currently conducting, and what the FISA court has purportedly authorized,” said Caroline Fredrickson, director of the ACLU Washington Legislative Office. “Congress should use its subpoena power to unearth the legal memos discussed in former Deputy U.S. Attorney General James Comey’s testimony and also to compel government officials to testify.”

Don’t Let the Bells off the Hook for Their Role in Illegal Spying

These new Department of Justice revelations come on the eve of a crucial mark up in the Senate Select Committee on Intelligence. The committee will mark up their intelligence reauthorization bill in a closed session tomorrow and telecommunications companies are aggressively seeking retroactive immunity for any involvement in illegal NSA spying activities from Sept. 12, 2001 forward.

“Letting phone companies off the hook sets a dangerous precedent,” Fredrickson said. “With new revelations and questions regarding the legality of the NSA’s program, we can hardly sit by and allow telecom companies to be inoculated for their involvement. There’s absolutely no way they should be handed a get-out-of-jail-free card for willingly violating the privacy of Americans.”

During their involvement in the NSA’s program, the telecom companies provided customer call data on millions of Americans without any suspicion of wrongdoing. Immunizing telecom companies from both criminal prosecution and civil liability would not only set a dangerous precedent, it would send a message to Americans that their privacy may be violated for profit. The ACLU noted that this rush to retroactive immunity for an entire industry, in the absence of a full and thorough airing of the facts, is unprecedented.

DOJ Deemed the NSA Program Illegal

In early 2006, soon after the NSA’s illegal activities became public, the ACLU filed suit on behalf of a coalition of criminal defense attorneys, journalists, and scholars challenging the NSA’s warrantless surveillance of Americans’ calls and emails. The government responded to the suit not by defending the legality of the NSA’s surveillance activities, but by invoking secrecy as the basis for dismissing the suit. The administration argued to the courts that the NSA’s surveillance was so secret that not even a court could determine its legality. In August 2006, a federal court in Michigan agreed with the ACLU that the program was illegal.

While the case was on appeal, the administration announced that it had sought and obtained some kind of belated authorization from the FISA court, but claimed that the president could continue to disregard FISA and engage in warrantless surveillance at any time.

“Mr. Comey’s testimony paints a profoundly disturbing picture of senior government officials willing to act in complete disregard of the Justice Department and in complete disregard of settled law,” said Jameel Jaffer, Director of the ACLU’s National Security Project. “The testimony is particularly chilling because the president and his closest advisors continue to assert the authority to disregard the relevant law — the Foreign Intelligence Surveillance Act — even today.”

FISA generally requires that intelligence surveillance conducted in the U.S. be conducted under the oversight of the Foreign Intelligence Surveillance Court. The NSA program, however, operated without the oversight of the FISA court until very recently. Disturbingly, even now, the President asserts the authority as commander in chief to ignore FISA whenever he sees fit. The ACLU emphasized that, although the program received DOJ approval in 2004, the program continues to violate FISA and the Constitution.

“Revelation after revelation regarding this administration’s domestic spying program has crumbled the already shaky legal ground on which it stood,” Fredrickson said. “We can only imagine how much further into illegal territory the administration waded. Without a doubt and without hesitation, Congress must step up to the plate and categorically demand the legal blueprints to this unconstitutional program.”

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