Warrantless NSA Wiretap and Illegal Domestic Surveillance - House Judiciary 20 Jan 2006 Briefing Statements, Transcript, EFF and ACLU Complaints and Related Actions Documents

In the briefing held 20 January 2006 by the Democratic members of the House Judiciary Committee, the warrantless wiretapping and data-mining of telecommunications company and internet provider databases by the NSA, and elements of Military Intelligence domestic civil infiltration operations were discussed. A number of participants made statements, and those statements and other documents were made available in pdf format at the above link. Then, on 31 January, the Electronic Frontier Foundation filed a class action suit against AT&T/SBC and others yet unnamed in this matter, and released this complaint in pdf format .

Three days prior to this Briefing, the ACLU filed a complaint against the NSA Central Security Services and Lieutenant General Keith B. Alexander in the US District Court, Eastern Michigan District, Southern District in this matter, releasing their complaint in pdf format.

"...agents of the 902nd Military Intelligence Group from Fort Meade, MD ... infiltrated the Quaker Meeting House, and then filed a report designating us a CREDIBLE THREAT.

The president’s agents DID NOT come to worship alongside us, to help us plan our educational program, or to protect us.

"And it wasn’t just us. Shortly after NBC aired its report, churches and other groups began sharing their experiences of infiltration and intimidation with us.

Saint Maurice’s Catholic Church in Dania, the Unitarian Universalists, the Fort Lauderdale Friends, members of Pax Christi in West Palm Beach, environmental groups, and many others.

"Agents rummaged through trash, attacked and snooped into email, hacked web sites, and listened in on phone conversations ... address books and activist meeting lists have disappeared.”

Richard Hersh
The Truth Project, Inc.

A week before the House Judiciary Democratic Members held this Briefing, on 13 February 2006 the American Bar Association adopted as policy a set of recommendations made by the ABA Task Force on Domestic Surveillance created by ABA President Michael S. Greco January 10 to respond to revelations about NSA domestic surveillance. These were sent with a letter the President, and both are available here in html form.

This came alongside the release of an ABA - sponsored Harris Poll showing 77 percent of Americans expressed "deep reservations" about President Bush's secret surveillance program, and agreeing that the President alone can not lawfully suspend Constitutionally guaranteed freedoms without authorisation from Congress or the Courts.

"Congress must conduct hearings to determine exactly what is being done ...

Then it should determine what needs to be done to insure that, in the future, Presidents obey the law.”

Morton H. Halperin
Director of US Advocacy, Open Society Institute,
Senior Fellow, Center for American Progress

The ABA Task Force Roster includes former FBI Director William S. Sessions; former CIA and NSA General Counsel Elizabeth Rindskopf Parker; former Assistant Secretary of State Harold Hongju Koh; former Assistant CIA General Counsel and Deputy Staff Directory and General Counsel for the Senate Select Committee on Intelligence Suzanne E. Spaulding; former Legal Counsel for the World Bank's International Finance Corporation James R. Silkenat; former Deputy Assistant Attorney General and Associate Independent Counsel for the Iran-Contra Investigation Stephen A. Saltzburg; former Senior Legal Officer for WIPO's (World Intellectual Property Organisation) Arbitration and Mediation Center Deborah Enix-Ross; Mark D. Agrast, Senior Fellow of the Center for American Progress overseeing Constitutional and Rule of Law programs; former Assistant US Attorney Neal R. Sonnet, who served as Chief of the Criminal Division for the Southern District of Florida; and Alan J. Rothstein, General Counsel to the New York City Bar Association. The detailed Roster is available at http://www.abanet.org/op/domsurv.html.

"In each case the president’s answer has been the same ... Courts and Congress have little or no place to question his decisions.

...it is nonetheless a dangerous path for our nation.

Our laws provide ample tools for fighting terrorism without eroding basic liberties.

No one, not even a wartime president, is above the law”

Michael S. Greco
President, American Bar Association

On December 20, four days after the initial NY Times story, Kate Martin and Brittany Benowitz of the Center for National Security Studies published an analysis of just how the Bush - ordered sweeping warrantless NSA data - mining and wiretapping operation violated the law. "When Congress authorized secret wiretaps for national security purposes in 1978," wrote Martin and Benowitz, "it intended to prevent any future President from carrying out warrantless eavesdropping on Americans." In it's formulation of the Foreign Intelligence Surveillance Act (FISA) statute, they wrote, Congress "made its intention clear in five different sections."

On January 6, Morton H. Halperin, the Director of US Advocacy for the George Soros - sponsored Open Society Institute, and Senior Fellow at the Center for American Progress, wrote a more detailed legal analysis of the administration's justifications for the warrantless wholesale domestic surveillance program.

"...as a citizen, I have heard today that the President has obviously broken the law, ... he has admitted that he's broken the law, and if you read the oath of office, he's not upheld the Constitution of the United States.

I think it's time for us to act.”

Richard Hersh
The Truth Project, Inc.

Where the Martin and Benowitz memorandum concentrated on the ways the President had broken the FISA law, and the provisions of Federal Law permitting the President to institute domestic wiretaps for national security reasons which FISA replaced (Pub. L. No. 90-351, 82 Stat. 212 (codified as amended at 18 U.S.C. §§ 2510-2520 (1968))). and restricted it's discussion of specific litigation to the Keith case (United States v. United States District Court [Keith], 407 U.S. 297, 303 (1972)¹); the Halperin paper went further into case law in it's analysis of the administration claimed pretense of legality.

¹ http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=407&invol=297

"Without commenting in any way on press reports, let me assure you that AT&T abides by all applicable laws, regulations and statutes in its operations and, in particular, with respect to requests for assistance from governmental authorities.”

Wayne Watts
Senior Vice President and General Counsel,
AT&T

After effectively demolishing Bush administration arguments as to the legality of warrantless NSA domestic wiretaps and data - mining, Halperin concludes, "Congress must conduct hearings to determine exactly what is being done in the new NSA program and why the administration concluded that it could not use FISA. Then it should determine what needs to be done to insure that, in the future, Presidents obey the law.."

"I thought Congress passed safeguards against indiscriminate domestic spying after the gross violations of citizens' rights during the Civil Rights Movement and Vietnam peace activism.

But here we are again.”

Richard Hersh
The Truth Project, Inc.

On February 24, eighteen Members of Congress, unsatisfied with Attorney General Gonzales' evasive and unresponsive testimony to date, wrote another letter to President Bush and once again requested that the Justice Department follow the law and it's own rules, and appoint a Special Counsel to investigate warrantless NSA surveillance of US Persons. In this letter they wrote,

...Unfortunately, Mr. Gonzales' recent testimony before the Senate Judiciary Committee did little to answer our questions or dispel our concerns. Rather, the Attorney General's opaque testimony simply left us with even more questions about this program. Mr. Gonzales repeatedly refused to discuss what he called the "operational details" of this program, refusing to inform the Committee of such “operational details" as whether the Department discloses to the FISA court its use of information garnered from this program in obtaining warrants from the court - in other words, whether the Department was pursuing prosecutions based on evidence gathered in possible violation of FISA and the 4th Amendment. Press reports indicate that, in fact, evidence gathered under this program may have been used improperly to obtain warrants from the FISA court.12 Mr. Gonzales refused to provide “operational details " such as whether the Administration has conducted warrantless physical searches of Americans in reliance on the authority it claims under the AUMF. Mr. Gonzales gave no explanation for the president's decision to limit this program (assuming it is in fact so limited) to international calls, vaguely citing the “circumstances" in which the Administration found itself as the basis for this decision. He also failed to confirm that he was “fully, totally informed" about the program, and could not provide assurances that Americans unconnected to Al Qaeda were not being spied upon. He failed to provide assurances that purely domestic calls were never captured by this program. He refused to commit to the program's review by the FISA court. He declined to answer when asked what other activities you have authorized relying upon the power as Commander-in-Chief used to authorize this surveillance program. The Attorney General offered contradictory testimony on whether surveillance conducted under this program would meet the 4th Amendment’s probable cause standard. The Attorney General's testimony raised serious questions that previous Congressional testimony by Department officials about the Administration’s surveillance programs was misleading. Far from providing additional information to Congress, the Attorney General's testimony simply created more serious questions about the legality and constitutionality of the activities you authorized.

At every juncture, our efforts to seek investigations to answer questions such as these have been stymied, generally based on the feeblest of excuses. More than a month ago, several members of Congress wrote to the Inspector Generals of the Department of Defense and the Department of Justice asking them to begin investigating these reports.13 The Department of Justice's Inspector General, Mr. Glenn Fine, responded that he lacked jurisdiction to begin an investigation because the matter involved the Attorney General's provision of “legal advice."14 The same members wrote back to Mr. Fine, explaining that the official actions for which they sought investigation appeared to go far beyond the mere provision of legal advice, and that he lacked any basis to conclude otherwise in the absence of an investigation. Yet, despite that response, Mr. Fine has steadfastly refused to investigate. The office within the Department of Justice to which he referred our request for investigation failed to respond to our request. Although recent press reports indicate that this office has begun a review, the Department has also made clear that this review will not examine the lawfulness of any Justice Department officials' actions under this program. 15

December 18, 2005,
To the Senate & House Intelligence Committees:

"Dear Chairman Roberts,

Under the provisions of the Intelligence Community Whistleblower Protection Act (ICWPA), I intend to report to Congress probable unlawful and unconstitutional acts conducted while I was an intelligence officer with the National Security Agency (NSA) and with the Defense Intelligence Agency ( DIA). These acts involve the Director of the National Security Agency, the Deputies Chief of Staff for Air and Space Operations, and the U.S. Secretary of Defense.

These probable unlawful and unconstitutional acts were conducted via very highly sensitive intelligence programs and operations known as Special Access Programs (SAP)s. I was a technical intelligence specialist dealing almost exclusively with SAP programs and operations at both NSA and DIA.

Due to the highly sensitive nature of these programs and operations, I will require assurances from your committee that the staffers and/or congressional members to participate retain the proper security clearances, and also have the appropriate SAP cleared facilities available for these discussions.

Please inform me when you require my appearance on Capitol Hill to conduct these discussions in relation to this ICWPA report.

Very Respectfully,

Russell D. Tice”

Russell D. Tice
Former Intelligence Officer
NSA

ON THE SENATE SIDE - ACTIONS AND EVASIONS

(Check Wikipedia for a more comprehensive report)

It seems that without a majority working bipartisan coalition in either house any effort for a full investigation of warrantless NSA surveillance is likely doomed until after the November 2006 elections, when Democrats have an increasingly good chance to regain majorities.

From Senate Intelligence Committee Co-Chairman John D. Rockefeller, IV's January 25 press statement (http://rockefeller.senate.gov/news/2006/pr012506.html)

"On December 19, 2006, a bipartisan group of Senate Intelligence Committee members, Chuck Hagel (R-NE), Olympia Snowe (R-ME), Carl Levin (D-MI), Dianne Feinstein (D-CA) and Ron Wyden (D-OR) urged Chairman Roberts and Senate Judiciary Committee Chairman, Arlen Specter (R-PA), to immediately and jointly review allegations and concerns related to the NSA program. Separately, on the same day, another member of the committee, Senator Barbara Mikulski (D-MD), also wrote to Chairman Roberts urging hearings on the program ."

"Senator John D. (Jay) Rockefeller IV (D-WV), the Vice Chairman of the Senate Intelligence Committee, personally wrote to Chairman Roberts on January 10, 2006, calling for aggressive oversight of the program. In addition to examining the legal justification for and operational details of the program, Rockefeller urged the committee to hold hearings and examine the following: What are the legal justifications for the program; what electronic communications were intercepted; how is the information collected being minimized and used; and how is the information retained. (January 10 letter attached)"

Then on January 24, 2006,