Fact
Sheet - Warrantless Domestic Wiretaps
January 11, 2006
Senator Feingold and members of Congress
from both parties have expressed deep concern about the President
authorizing the National Security Agency (NSA) to wiretap
American citizens on American soil without a warrant. The
Foreign Intelligence Surveillance Act (FISA) makes it a crime
to wiretap Americans in the United States without a warrant
or a court order.
The government should wiretap suspected terrorists to protect
our national security, but, in order to protect innocent people,
a court should make sure that there is evidence indicating
that the people being wiretapped might be terrorists. Below
are facts about FISA, and about the Administration’s arguments
in defense of the NSA’s wiretapping program:
On the Foreign Intelligence
Surveillance Act
It Is Illegal to
Wiretap Without a Warrant or Court Order: The law is clear
that the criminal wiretap statute and FISA “shall be the exclusive
means by which electronic surveillance . . . and the interception
of domestic wire, oral, and electronic communications may
be conducted.”
FISA Has an Emergency Exception: The Administration
has indicated that it ignored FISA because it takes too long
to get a warrant under that law. In fact, in an emergency
where the Attorney General believes that surveillance must
begin before a court order can be obtained, FISA permits the
wiretap to be turned on immediately as long as the government
goes to the court within 72 hours. Prior to 2001, the emergency
wiretap period was only 24 hours. The Administration requested
and received the increase to 72 hours in intelligence authorization
legislation that passed in late 2001.
FISA Provides for Wartime Situations:
FISA also permits the Attorney General to authorize
warrantless electronic surveillance in the United States during
the 15 days following a declaration of war, to allow time
to consider any amendments to FISA necessitated by a wartime
emergency.
The Administration Has Used FISA Thousands of Times
Since 9/11: Administration officials have criticized
FISA, but they have obtained thousands of warrants approved
by the FISA court since 9/11, and have almost never had a
warrant request rejected by that court.
On the Administration’s
Arguments Defending the Wiretapping Program
Military Force Resolution Did Not
Authorize Wiretapping: The President has argued that
Congress gave him authority to wiretap Americans on U.S. soil
without a warrant when it passed the Authorization for Use
of Military Force after September 11, 2001. There is no language
in the resolution and no evidence to suggest that it was intended
to give the President blanket authority to order these warrantless
wiretaps.
In fact, Congress passed the Patriot Act just six weeks after
September 11 to expand the government’s powers to conduct
surveillance of suspected terrorists and spies. Yet the Administration
did not ask for, nor did the Patriot Act include, any change
to FISA’s requirement of judicial approval for wiretaps
of Americans in the United States.
Prohibition on Wiretapping Limits Executive Power:
The President’s assertion of inherent executive power
is also wrong. The President has extensive authority when
it comes to national security and foreign affairs, but given
the clear prohibition in FISA, that authority does not include
the power to wiretap American citizens on American soil without
a warrant.
Executive Branch Review of Wiretapping Is Not Enough:
The President has argued that periodic executive branch review
provides an adequate check on the program. But Congress when
it passed FISA explicitly rejected the idea that the executive
branch should be fully entrusted to conduct national security
wiretaps on its own – a power that the executive had
abused in the past. In addition, news reports indicate that
NSA employees decide whose communications to tap. Low-level
executive branch employees are no substitute for FISA Court
judges.
Congress Did Not Approve This Program: While
a handful of congressional leaders were informed about this
program, some have said they were not given complete details
and they were all prohibited from discussing what they were
told with anyone, including other members of Congress. The
fact that they were informed under these extraordinary circumstances
does not constitute congressional oversight, nor does congressional
inaction constitute approval of the program when only a handful
of members, at most, even knew about it.
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