BOX 9.3

National Security Agency Domestic Surveillance and Data Mining of Calling Records

In 2002, the president authorized the National Security Agency (NSA) to begin conducting surveillance of electronic communications in the United States without a court-approved warrant. Since the public became aware of this program late in 2005,1 many questions have been raised about both its legality and its constitutionality.

According to what has been revealed publicly in news reports, the classified NSA program has focused on intercepting, without a warrant, phone calls and e-mails of U.S. persons that are believed to be linked, directly or indirectly, to the al-Qaeda terrorist organization. It is further said to be limited to only domestic-to-international communication; warrants are obtained when both parties in the communication are within U.S. borders. Although official sources have not provided an authoritative description of the activities and scope of this program, the administration has defended it—and its ability to monitor possible terrorist group activity—as both legal and within the authority granted to the president under the Authorization for Use of Military Force (AUMF) against al-Qaeda,2 passed by Congress on September 14, 2001. The AUMF authorized the president to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” Additionally, the administration contends that the president’s inherent constitutional authority as commander in chief authorizes the president to take whatever action is necessary to combat terrorism.3

Critics, however, debate the legality and constitutionality of the program that was authorized outside the Foreign Intelligence Surveillance Act (FISA) of 1978, which provides explicit legal guidance on how domestic surveillance can be conducted.4 Recently amended in 2001 by the USA PATRIOT Act, FISA was passed to balance the need

  

1James Risen and Eric Lichtblau, “Bush Lets U.S. Spy on Callers Without Courts,” New York Times, December 16, 2005, available at http://www.nytimes.com/2005/12/16/politics/16program.html?ex=1292389200&en=e32072d786623ac1&ei=5090&partner=rssuserland&emc=rss. Additionally, the New York Times did not release the story for over a year at the request of the administration for national security concerns.

  

2P.L. 107-40, 115 Stat. 224 (2001); for the legislative history, see Congressional Research Service, “Authorization for Use of Military Force in Response to the 9/11 Attacks (P.L. 107-40): Legislative History,” January 4, 2006, available at http://www.fas.org/sgp/crs/natsec/RS22357.pdf.

  

3The Department of Justice response to the House and Senate Intelligence Committees defending the program is available at http://www.fas.org/irp/agency/doj/fisa/doj122205.pdf. See also a white paper released by the Department of Justice, “Legal Authorities Supporting the Activities of the National Security Agency Described by the President,” January 19, 2006, available at http://files.findlaw.com/news.findlaw.com/hdocs/docs/nsa/dojnsa11906wp.pdf.

  

4Among the sources of criticism of the program are American Bar Association, “Task Force on Domestic Surveillance in the Fight Against Terrorism,” February 15, 2006, available at http://www.abanews.org/docs/domsurvrecommendationfinal.pdf. Also see “A Response to the Department of Justice on Warrantless Surveillance,” by a group of 14 constitutional scholars and former government officials, January 9, 2006, available at http://www.fas.org/irp/agency/doj/fisa/doj-response.pdf.



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