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2006 Legislative Priorities
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| Background | Status | ABA Policy | Key Points | Links |
In December 2005, the New York Times reported that the President had secretly authorized the National Security Agency (NSA) 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. President Bush then acknowledged that he authorized the NSA, without a warrant, to monitor phone calls and e-mails involving one party in the United States and one abroad, provided that federal agents suspect one party of terrorist ties. The President has stated that he has reauthorized the program “more than 30 times since 9/11” and that it is carefully reviewed approximately every 45 days.
In response, ABA President Mike Greco appointed the Task Force on Domestic Surveillance in the Fight Against Terrorism to explore the very difficult constitutional questions raised by unsupervised domestic surveillance. The Task Force’s bipartisan panel of distinguished lawyers included a former Director of the Federal Bureau of Investigation, a former General Counsel of the National Security Agency and the Central Intelligence Agency, the National Institute of Military Justice General Counsel, and others with deep knowledge of national security law. The ABA’s position on these issues is based upon the unanimous expert recommendations of the Task Force that were adopted by a nearly unanimous voice vote of the ABA’s 550-member House of Delegates, its policy-making body.
Following the public disclosure of NSA electronic surveillance, the Senate Judiciary Committee held a series of public oversight hearings entitled “Wartime Executive Powers and the National Security Agency’s Surveillance Authority.” Attorney General Alberto Gonzales testified about his knowledge of the program at the February 6, 2006 hearing. The Attorney General declined to give significant operational details about the program, citing its classified nature. The Committee also heard the views of legal and constitutional experts on the surveillance program at the February 28, 2006 hearing and from former judges from the Foreign Intelligence Surveillance Court on March 28, 2006.
This past July, the Committee further explored the complexities of this issue when the Attorney General returned to testify in a Department of Justice Oversight hearing. The Committee also held a hearing on July 26th entitled “FISA for the 21 st Century” where a number of administration officials and legal experts testified on legislation pending before the Committee regarding electronic surveillance.
A number of legislative proposals have been introduced to address future electronic surveillance by the NSA. On March 16 th, Senate Judiciary Chairman Arlen Specter (R-PA) introduced S. 2453, the National Security Surveillance Act of 2006 , which would require the executive branch to submit electronic surveillance programs to the Foreign Intelligence Surveillance Court for authorization and regular reviews of the program's constitutionality. In July, Chairman Specter announced that he had negotiated an updated version of this legislation with the White House.
An alternative plan for the authorization of future electronic surveillance, S. 2455, was introduced by Senators Mike DeWine (R-OH), Lindsey Graham (R-SC), Olympia Snowe (R-ME) and Chuck Hagel (R-NE). This proposal, the Terrorist Surveillance Act of 2006, would allow the government to conduct warrantless surveillance for up to 45 days, with any additional surveillance being subject to Congressional approval or to approval through the Foreign Intelligence Surveillance Act (FISA) process.
Additionally, Chairman Arlen Specter and Senator Dianne Feinstein (D-CA) introduced S. 3001, the Foreign Intelligence Surveillance Improvement and Enhancement Act of 2006 in May. This legislation would reiterate that FISA is the exclusive means for conducting electronic surveillance for foreign intelligence purposes and modernize the current FISA process.
All of these bills have all been referred to the Senate Committee on the Judiciary for consideration. The ABA continues to urge the Committee to delay consideration of any legislation in this area until Congress has carried out a thorough inquiry into the nature and extent of the warrantless domestic electronic surveillance conducted by the Bush Administration. In the event that the Committee plans to take immediate legislative action, the ABA supports the narrowly-tailored legislation offered by Senators Specter and Feinstein. In anticipation of imminent action on these bills, ABA President Karen Mathis recently wrote the Committee to outline our concerns about the amended version of the Chairman's legislation, S. 2453.
The Senate Intelligence Committee has also been active on these issues. After months of delay, on May 17th, the Administration decided to brief the full House and Senate Intelligence Committees about its classified NSA surveillance activities. The Senate Intelligence Committee has expressed its intent to take up any legislation on electronic surveillance that is reported out by the Senate Judiciary Committee.
In the U.S. House of Representatives, Representatives Jane Harman (D-CA) and John Conyers (D-MI) introduced H.R. 5371, the “Lawful Intelligence and Surveillance of Terrorists in an Emergency by NSA Act” on May 11, 2006. The LISTEN Act reinforces that FISA and Title III of the criminal code are the exclusive means for authorizing electronic surveillance and strengthens Congressional oversight of intelligence activities. The legislation also expressly states that the Authorization for Use of Military Force of September 18, 2001 (P.L. 107-40) did not provide a statutory exception to the FISA requirements. The ABA endorsed this legislation in a June 19th letter from ABA President Mike Greco to Represenatives Harman and Conyers.
The House of Representatives also considered an amendment to the FY 2007 Defense Appropriations bill on June 20, 2006 that would prohibit funding for NSA surveillance activities. The amendment, offered by Representatives Adam Schiff (D-CA), Jeff Flake (R-AZ), Jay Inslee (D-WA), Bob Inglis (R-SC), and Chris Van Hollen (D-MD) was defeated in a 207 to 219 vote.
On July 19, 2006 former ABA President Michael Greco testified about the ABA’s views on electronic surveillance legislation before the House Permanent Select Committee on Intelligence at a hearing on the “Modernization of the Foreign Intelligence Surveillance Act.” He emphasized the need for Congress to be fully informed before acting on surveillance issues, and of the critical separation of powers issues raised by Congress not getting information from the administration. “The American Bar Association urges that, before altering our intelligence laws, Congress insist that the nature and extent of the administration’s warrantless domestic electronic surveillance be explained,” Greco testified. He added that the ABA believes that the Foreign Intelligence Surveillance Act should continue to be the exclusive framework under which intelligence surveillance is conducted within the United States for foreign intelligence purposes, and that any legislation attempting to alter FISA must preserve the constitutional balance among the three branches of government.The ABA adopted a policy thatcalls upon the President to abide by the limitations which the Constitution imposes on a president under our system of checks and balances. In its policy, the ABA urges Congress affirm that the Authorization for Use of Military Force of September 18, 2001 (P.L. No. 107-40), did not provide a statutory exception to the requirements of FISA.
The ABA also opposes any future electronic surveillance inside the U.S. by any U.S. government agency for foreign intelligence purposes that does not comply with the provisions of FISA. The policy urges the President to seek appropriate amendments or new legislation if he believes that FISA is inadequate to safeguard national security.
The policy adopted by the ABA urges the Congress to thoroughly review and make recommendations concerning the intelligence oversight process and to conduct a comprehensive investigation to determine: (a) the nature and extent of electronic surveillance of U.S. persons outside of the FISA process; (b) what basis was advanced for the legality of such surveillance; (c) whether the Congress was properly informed of and consulted as to the surveillance; (d) the nature of the information obtained as a result of the surveillance and whether it was retained or shared with other agencies; and (e) whether this information was used in legal proceedings against any U.S. citizen.
- The ABA wants the government to have the powers it needs effectively to combat terrorists, but we are deeply concerned about the electronic surveillance of Americans without the express authorization of the Congress and the independent oversight of the courts.
- Congress should conduct a thorough inquiry into the nature and extent of the warrantless domestic electronic surveillance conducted by the Bush Administration. Congress can responsibly legislate only once it knows what surveillance programs are in place, why they are necessary, and why the current statute is insufficient to accommodate them.
- The ABA believes that it is essential that the Judicial Branch provide an independent review of the electronic surveillance of American citizens to ensure that the proper balance exists between national security needs and Fourth Amendment privacy concerns.
Staff Contact: Kerry Lawrence, Legislative Counsel
Last Updated: September 13, 2006