Fact Sheet from Senator Russ Feingold On the Administration's Wiretapping Program 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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