Washington, DC (December 21, 2005) -- Contrary to the White House’s assertions, neither Congress nor the Supreme Court has ever explicitly given the Executive Branch a green light to conduct domestic electronic eavesdropping without a warrant in “national security” matters.
The 2001 authorization to use force against the perpetrators of September 11 did not give the President any express or implied power to order the National Security Agency, a Defense Department signal intelligence agency, to eavesdrop on citizens and intercept their private telephone conversations and e-mail. Domestic clandestine surveillance is not a role for the military in a free society. It is contrary to established law, the Constitution, and our way of life.
As Justice William O. Douglas explained in Katz v. United States, the Fourth Amendment requires that electronic surveillance orders be issued by a neutral factfinder. Under the separation of powers doctrine created by the Constitution, the Executive Branch is not neutral and disinterested; that is the role of the courts. The protections of the Fourth Amendment against unreasonable searches and seizures cannot be assured when the president and the attorney general assume both the role of investigator-and-prosecutor and disinterested magistrate.
That is why Congress passed the Foreign Intelligence Surveillance Act. FISA creates a system of oversight that prohibits even the president from acting without judicial approval. Ours is a system of checks and balances and in enacting FISA, Congress recognized the potential for abuses when the president acts on his own. FISA also allows for swift action – active wiretapping up to 72 hours – prior to a warrant application in the event of a genuine emergency. The tools are in place to protect our nation if there is a real and immediate threat and wiretapping is thought to be essential to combat that threat.
This is not a wholesale endorsement of the FISA procedures, which are secret and non-adversarial, and which we do not believe always meet constitutional standards. For example, NACDL opposed, and still opposes, the Patriot Act’s elimination of the requirement that the primary purpose of a FISA application be intelligence gathering, rather than criminal investigation. But for all its shortcomings, FISA represents the minimum threshold Congress has established for foreign intelligence gathering in the United States. In contrast, the eavesdropping operations at issue here are hidden from any scrutiny whatsoever.
Justice Louis Brandeis foresaw the potential erosion of our civil liberties in another government eavesdropping case almost 80 years ago. “Experience should teach us to be most on our guard to protect liberty when the government''s purposes are beneficent…. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” Our government, Brandeis said, teaches by example. “If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.”
Congress and the courts now must exert their own independent roles to assure that no other executive agencies are being misused in contravention of U.S. laws and are otherwise impinging on the civil liberties of American citizens.
Barbara E. Bergman
National Association of Criminal Defense Lawyers
Barbara Bergman is a professor of law at the University of New Mexico in Albuquerque. She is currently on a one-year visitorship at The Columbus School of Law, Catholic University of America, in Washington, D.C.
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The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal legal system.