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The NSA warrantless surveillance controversy is a dispute questioning the power of the president to authorize the NSA to conduct electronic surveillance secretly and without court authorization. The controversy extends to the question of the power of the press to expose the existence of this program. BACKGROUND Soon after the September 11, 2001 Attacks , U.S. President George W. Bush issued a secret Executive Order that authorized the National Security Agency (NSA) to conduct warrantless electronic surveillance of persons who might be linked to Al-Qaeda or its affiliates. (The complete details of this authorization are still not fully known.) The NSA maintained electronic surveillance on international communications, including some that involved U.S. citizens and other people located within the United States. The presidential authorization is Classified and select members of the Congressional Intelligence committees and leadership were briefed. Its existence was concealed from public knowledge until December 2005, when the '' New York Times '', after learning about the program more than a year earlier, first reported on it.1 Public knowledge of this program promptly led to a major national controversy over such issues as:
1978 Foreign Intelligence Surveillance Act (FISA) The 1978 Foreign Intelligence Surveillance Act (FISA) bars electronic surveillance of persons within the U.S. without the approval of the United States Foreign Intelligence Surveillance Court . The Bush Administration maintains that such surveillance was implicitly authorized by the congressional Authorization For Use Of Military Force Of 2001 . "Our position is that the authorization to use force, which was passed by the Congress in the days following September 11th, constitutes that other authorization, that other statute by Congress, to engage in this kind of signals intelligence," Attorney General Alberto Gonzales said on December 19 , 2005 .4 Moreover, legal authorities have argued on behalf of the White House that FISA does not apply during wartime on the grounds that Congress does not have authority to interfere in the "means and methods of engaging the enemy."5 NEWS REPORTING The New York Times broke the story of NSA warrantless surveillance in December 2005 and followed up with several more revelations about the program in January 2006. The Washington Post and USA Today added program details in February 2006. December 16, 2005 On December 16 , 2005 , ''The New York Times'' printed a story asserting that following 9/11 "President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying" as part of the War On Terror . 6 Under a presidential order signed in 2002, the intelligence agency monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible "dirty numbers" linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications. According to the Times: The White House asked January 1, 2006 On January 1 , 2006 , ''The New York Times'' printed a story revealing that aspects of the program were suspended for weeks in 2004. The Times story said the U.S. Attorney General's office, then headed by John Ashcroft , balked in 2004 when asked to give approval of the program, and that then Deputy Attorney General James B. Comey "played a part in overseeing the reforms that were put in place in 2004." According to the Times, however, the oversight by the NSA shift supervisor continued to be unfettered by any pre-approval requirement. The story also said that there had been resistance at the NSA to the warrantless surveillance program. 7 ''The Times'' had withheld the article from publication for over a year. Both editor in chief Bill Keller and publisher Arthur Sulzberger Jr. were summoned by the President and White House officials in order to persuade the paper not to publish the story. The Times ran the story shortly before they would have been scooped by publication of their own reporter's book. The Times ombudsman speculates that the reason the backstory isn't being revealed is to protect sources. 8 Russ Tice claims he was a source for the story.9 January 10, 2006 On January 10 , ABCNews ran a story that, according to NSA whistleblower Russell Tice , the number of Americans affected by the range of NSA surveillance programs could be in the millions if the full extent of secret NSA programs is considered. He described a system that can: :...track and sort through every domestic and international phone call as they are switched through centers, such as one in New York, and to search for key words or phrases that a terrorist might use. "If you picked the word 'jihad' out of a conversation," Tice said, "the technology exists that you focus in on that conversation, and you pull it out of the system for processing." According to Tice, intelligence analysts use the information to develop graphs that resemble spiderwebs linking one suspect's phone number to hundreds or even thousands more. "That would mean for most Americans that if they conducted, or you know, placed an overseas communication, more than likely they were sucked into that vacuum," Tice said. 10 January 17, 2006 On January 17 the ''New York Times'' reported, " than a dozen current and former law enforcement and counterterrorism officials," some of whom knew of the domestic spying program, "said the torrent of tips [from NSA wiretapping led them to few potential terrorists inside the country they did not know of from other sources and diverted agents from counterterrorism work they viewed as more productive."11 February 5, 2006 On .12 However, this opinion expressed by an unnamed government official is not consistent with the law. In fact, there is no general probabilistic test (i.e., "right 1 out of X times") of "probable cause" for electronic surveillance or otherwise, nor for determining reasonableness more generally under the Fourth Amendment , and the courts have consistently made clear that the very concept of "probable cause" and "reasonableness" implies a continuum of probability along which increasing intrusion may be justified by reference to the totality of the circumstances. Determining probable cause or reasonableness requires evaluating not just the predicate for action, but also the availability of alternatives, balancing the consequences to the individual of the intrusion and the particular governmental need, and the procedures for mitigating or correcting errors. Additionally, since the issue with FISA is "electronic surveillance" not "eavesdropping" (which is not a recognized legal concept in this context) it is not clear that this official is qualified to offer a legal opinion in any case despite having "studied the program". (Further, what is the journalistic rationale for using an anonymous source to put forward a legal opinion ?) Indeed, it may turn out that the reason "they didn't go through" the FISA court is because FISA does not provide adequate procedures for authorizing technical collection methods such as those used in the NSA program and required by today's communications technologies (see, for example, ''Whispering Wires and Warrantless Wiretaps'' 13). Nevertheless, the Bush administration refuses to say -- in public or in closed session of Congress -- how many Americans in the past four years have had their conversations recorded or e-mails read by intelligence analysts without court authorization. '' The Washington Post '' interviewed intelligence officials and claimed that, "two knowledgeable sources placed that number people who may have had their communications intercepted in the thousands; one of them, more specific, said about 5,000."14 On February 5 , USA Today ran a story that, according to seven telecommunications executives, NSA had secured the cooperation of the main telecommunications companies in charge of international phone-calls, including AT&T , MCI and Sprint , in its efforts to eavesdrop without warrants on international calls 15. (The EFF filed a class action lawsuit against AT&T in January 2006 in connection with this - see #Electronic Frontier Foundation below for details) ADMINISTRATION RESPONSE TO PRESS STORIES White House press secretary Scott McClellan refused to comment on the story on December 16 , exclaiming "there’s a reason why we don’t get into discussing ongoing intelligence activities, because it could compromise our efforts to prevent attacks from happening." 16 17 The next morning, the President gave a live eight-minute television address instead of his normal weekly radio address, during which he addressed the wiretap story directly and confirmed that he had in fact authorized domestic warrantless monitoring of calls originating or terminating overseas. 18 He forcefully defended his actions as "crucial to our national security" and said that the American people expected him to "do everything in my power, under our laws and Constitution, to protect them and their civil liberties" as long as there was a "continuing threat" from al-Qaeda. The President also had harsh words for those who broke the story, saying they acted illegally. "The unauthorized disclosure of this effort damages our national security and puts our citizens at risk," he said. 19
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