ACLU Condemns White House Deal On NSA

Posted on March 9, 2006

Today the New York Times has the headline, ” G.O.P. Plan Would Allow Spying Without Warrants.”

The plan by Senate Republicans to step up oversight of the National Security Agency’s domestic surveillance program would also give legislative sanction for the first time to long-term eavesdropping on Americans without a court warrant, legal experts said on Wednesday.

Civil liberties advocates called the proposed oversight inadequate and the licensing of eavesdropping without warrants unnecessary and unwise. But the Republican senators who drafted the proposal said it represented a hard-wrung compromise with the White House, which strongly opposed any Congressional interference in the eavesdropping program.

Indeed, in a press release today, the ACLU have this to say…

The American Civil Liberties Union today condemned an agreement announced by Republicans on the Senate Select Committee on Intelligence to support legislation to ratify the Bush administration’s warrantless National Security Agency program to spy on Americans, saying it would effect a whitewash of the program before getting the full facts about it. The specific details of this partisan deal, which was apparently struck between Vice President Dick Cheney and Committee Chairman Pat Roberts (R-KS) joined by Senators Chuck Hagel (R-NE), Olympia J. Snowe (R-ME), Mike DeWine (R-OH) and Lindsey Graham (R-SC), remain unclear.

Apparant from the headline at the NY Times, and the words of the ACLU, they plan to continue with their misguided direction on this important National Security issue. They want to send out their chilling message that the government is spying on ordinary, innocent citizens. Of course their main focus is that the new plan, which the ACLU label “a secret White House deal that would legitimize and condone illegal activities, is that it would not require FISA warrants.

AJ Strata lets us know why bypassing FISA may not be such a bad thing.

Then recently the FISC chief justices admitted in interviews they out of hand rejected all NSA leads as evidence of a risk to American lives and cause for a warrant making the person in the US a target of anti-terrorism surveillance. The NSA was not a sanctioned source of evidence in the minds of the High Priests of the Gorelick Wall. So they demanded the FBI develop independent evidence for submission for a surveillance warrant. Which made the 72 hours emergency provision in the FISA regulations a joke, and meant a high risk target would go unmonitored until evidence could be obtained separate from the NSA lead.

The big bad secret was not the NSA bypassing FISA, but the NSA trying to use FISA and the FISC judges making ridiculous guidelines that began the process of rebuilding their precious Gorelick Wall. But the Congress, as they learned what the truth of the story was, finally put an end to the obstructionist FISC.

The new deal would eliminate this problem.

The Republican proposal would give Congressional approval to the eavesdropping program much as it was secretly authorized by Mr. Bush after the 2001 terrorist attacks, with limited notification to a handful of Congressional leaders. The N.S.A. would be permitted to intercept the international phone calls and e-mail messages of people in the United States if there was “probable cause to believe that one party to the communication is a member, affiliate, or working in support of a terrorist group or organization,” according to a written summary of the proposal issued by its Republican sponsors. The finding of probable cause would not be reviewed by any court.

But after 45 days, the attorney general would be required to drop the eavesdropping on that target, seek a warrant from the Foreign Intelligence Surveillance Court or explain under oath to two new Congressional oversight subcommittees why he could not seek a warrant.

The administration would be required to provide “full access” to information about the eavesdropping, including “operational details,” to the new Senate and House subcommittees, the summary said. Each subcommittee would consist of four Republicans and three Democrats from the Intelligence Committees.

In other words, an NSA lead would be sufficient probable cause that would not require FISA’s approval which they had already shown they would not give anyway. The plan gives oversight to the program, and allows 45 days to gather evidence at which point a warrant for further investigation would be required. Of course this is not acceptable to the ACLU.

The following can be attributed to Caroline Fredrickson, Director of the ACLU Washington Legislative Office.

“The Senate Intelligence Committee has failed to exercise its responsibility to conduct a full and impartial inquiry into the illegal activities of the executive branch. The White House has continued to stonewall Congress, with the acquiescence of many members of the president’s party. The deal that has been announced would whitewash this illegal program. It would reward the president’s authorization of illegal warrantless spying by changing the law to permit wiretapping of Americans without any evidence that they are conspiring with al Qaeda and without requiring each wiretap to be promptly reviewed by the court. When the law has been broken, Congress should investigate, not provide an ex post facto escape hatch for illegal acts.

As I said yesterday, this controversy is far from over. The victory in our legislative branch is only temporary, as the ACLU continue the fight in the Courts.

In another press release today, they are asking a Court to block the program.

Saying that the Bush administration’s warrantless wiretapping of Americans is flatly illegal and unconstitutional, the American Civil Liberties Union today asked a federal court in Detroit to block the program immediately.

And their lawsuit still looms.

In legal papers filed today before Judge Anna Diggs Taylor in Detroit, the ACLU pointed further to the “concrete harm” of the illegal spying program to its clients, saying it disrupts their ability to “talk with sources, locate witnesses, conduct scholarship and engage in advocacy.”

“To avoid the giant ear of the NSA, journalists and lawyers now have to make expensive trips overseas to speak with their sources and clients,” said ACLU Associate Legal Director and lead counsel Ann Beeson. “We are asking the court to halt the illegal spying program now to prevent even more harm to the free speech and privacy rights of Americans.”

The need for legal action is even more acute, Beeson noted, after members of Congress announced support yesterday for what amounts to a whitewash of the spying program.