NEW YORK - December 19 - The National Lawyers Guild (NLG) announced today that it condemns the domestic electronic surveillance program revealed recently by President Bush as a violation of the Fourth Amendment. The NLG President Michael Avery declared, "The Fourth Amendment requires a warrant from a court before the government can engage in electronic surveillance of private conversations, whether by telephone or otherwise. For the president to authorize electronic surveillance without a court order is an outrageous violation of a clear constitutional provision."
The Guild noted that a similar assertion of power based on supposed national security arguments had been made by President Richard Nixon in the early 1970s. In a 1972 decision (United States v. United States District Court), the United States Supreme Court held that the President had no inherent power to conduct electronic surveillance of domestic groups without a court order, even where it believed they posed a threat to national security. That case was argued in the Supreme Court by the late Professor Arthur Kinoy, one of the founders of the National Lawyers Guild. In the 1972 case the Supreme Court did not reach the issue of whether the president could conduct electronic surveillance of foreign agents in the United States without a warrant. In 1978, however, Congress passed the Foreign Intelligence Surveillance Act, which created a secret court composed of federal judges to which the government could apply to get warrants to conduct electronic surveillance. The Act applies when foreign governments or foreign agents are believed to threaten the national security of the United States.
The Lawyers Guild explained that the 1978 Act creating the Foreign Intelligence Surveillance Court specifically created only one exception for the president to conduct electronic surveillance without a warrant. For that exception to apply, the Attorney General must certify under oath that the communications to be monitored will be exclusively between foreign powers and that there is no substantial likelihood that a United States person will be overheard.
Guild President Michael Avery explained, "By enacting the Foreign Intelligence Surveillance Act Congress made it clear that the president has no implied power to conduct electronic surveillance without a warrant. President Bush's actions directly violate both the explicit language of the Fourth Amendment itself and the will of Congress. The president's increasingly shrill rhetoric about the war on terror provides no basis to cast aside the United States Constitution."
The National Lawyers Guild called upon Congress to insist that the president obey the Constitution. The Executive Director of the Guild, Heidi Boghosian, noted, "The illegal surveillance conducted under President Bush’s order is yet another reason for the Congress to reject the extension of the USA PATRIOT Act. This Administration cannot be trusted to respect the Constitution and the Congress must play its role in the checks and balances that are necessary to preserve our democracy."
Founded in 1937 as the first racially integrated national bar association, the National Lawyers Guild is the oldest and largest public interest/human rights bar organization in the United States, with more than 200 chapters. The Guild has a long history of representing individuals who the government has deemed a threat to national security. Guild members defended FBI-targeted individuals and helped expose illegal FBI and CIA surveillance, infiltration and disruption tactics (COINTELPRO) that the U.S. Senate "Church Commission" hearings detailed in 1975-76 and which led to enactment of the Freedom of Information Act and other specific limitations on federal investigative power.