ACLU Says Exclusivity Is Already in FISA

May 21, 2008
5:09 PM

Liz Rose or Matthew Allee, (202) 675-2312

ACLU Says Exclusivity Is Already in FISA
Domestic Surveillance and No Telecom Immunity Are Key
WASHINGTON, DC - May 21 - Congress is currently considering legislation to expand the president's wiretapping authorities under FISA, and part of that debate centers on the governments warrantless wiretapping activities since 9/11. Today Senators Dianne Feinstein (D-CA) and Sheldon Whitehouse (D-RI) released a letter they received from the Principal Deputy Assistant Attorney General explaining the administration’s stance on whether FISA is the exclusive means for wiretapping on U.S. soil. The Justice Department's letter to Senators Feinstein and Whitehouse argues that the Authorization of Use of Military Force "confirmed and supplemented" the president's Article II authority to wiretap outside the confines of FISA. While the DoJ says it is now operating within the law, it claims the right to revert to warrantless wiretapping even in the absence of new legislation or authorization to do so. The ACLU has long argued that FISA prohibited warrantless wiretapping, that the AUMF did not authorize new domestic wiretapping authorities, and that the president does not have an Article II trump card to ignore duly enacted statutes either way.

Caroline Fredrickson, director of the ACLU Washington Legislative Office, said, "For thirty years FISA has operated as the exclusive authority for intelligence wiretapping on U.S. soil, and it seems only the Justice Department disagrees. While reiterating the exclusivity of FISA is an admirable goal in the current legislative drafting, Congress has to ensure there is enough left of FISA at the end of the day to make it relevant. If Congress passes a bill to allow mass, untargeted surveillance on U.S. soil, exclusivity will be of little comfort as the president will have little reason to step outside the statute."

Following news reports that the Bush administration authorized the National Security Agency (NSA) to spy on Americans without a warrant in violation of FISA, the ACLU filed a Freedom of Information Act (FOIA) request in December 2005 for documents pertaining to the NSA warrantless spying program. In February 2006, the ACLU filed a lawsuit to enforce the FOIA request and is currently fighting for the release of Office of Legal Counsel (OLC) memos that justified authorizing the NSA to engage in warrantless wiretapping in violation of FISA. The government continues to resist disclosure of important documents like the OLC memos, asserting that the memos are entirely classified and that release of even purely legal analysis would harm national security.

“Today's disclosure makes clear that at least some portion of the OLC memos relating to the government's illegal spying program can be released without harming national security, but the government continues to fight the release of the documents except when it suits the government’s purposes,” said Nasrina Bargzie, attorney with the ACLU National Security Project. “The Justice Department’s memos obviously contain important legal analysis the government used to justify its blatantly illegal surveillance program - legal analysis the public has a great interest in seeing. It’s time for the government to come clean about its illegal spying program and produce the relevant records.”

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