Domestic Surveillance Without A Warrant

The New York Times reports that since 2002 the U.S. Government has been spying on the phone conversations and emails of Americans without a court warrant. Internal domestic phone calls are not subject to such monitoring, but calls from the US to other countries and incoming intenational calls are subject to electronic surveillance with a court order.

While many details about the program remain secret, officials familiar with it say the N.S.A. eavesdrops without warrants on up to 500 people in the United States at any given time. The list changes as some names are added and others dropped, so the number monitored in this country may have reached into the thousands since the program began, several officials said. Overseas, about 5,000 to 7,000 people suspected of terrorist ties are monitored at one time, according to those officials.

Now you may have thought that the Foreign Intelligence Surveillance Act (FISA) prevents secret spying on Americans:

One provision says it is a crime for anyone to “intentionally engage in electronic surveillance” except as authorized by law or a court order. However, “the president, through the attorney general, may authorize electronic surveillance … to acquire foreign intelligence information” if officials obtain a warrant from a special court that operates inside the Justice Department.

But no. Attorney General Alberto Gonzales says “that the president has the inherent authority, under the Constitution’s commander in chief, to engage in this kind of conduct.” But this Gonzales says is a “secondary argument” because Congress authorized the President to use “all necessary and appropriate force” in legislation passed after Sept. 11 thereby bypassing provisions in FISA. Moreover, the “new threat” requires a rapid response something that FISA, even with its retroactive provisions, cannot provide. When asked why not fix FISA instead of opting for a “backdoor” approach, Gonzales answered:

This is not a backdoor approach. We believe Congress has authorized this kind of surveillance. We have had discussions with Congress in the past — certain members of Congress — as to whether or not FISA could be amended to allow us to adequately deal with this kind of threat, and we were advised that that would be difficult, if not impossible.

So, Congress authorized something that they would not have, if they were asked? Wow.

But don’t worry! Just have a look at how Mr. Bush answered a question that raised concernes about the unchecked power of the President. Bush’s answer is that there are plenty of checks like the fact he’s “sworn to uphold the law” and that he’s “talking to Congress all the time” so everything is OK. Right?


  1. I have converted all of the House Judiciary Democrat’s January 20 Briefing documents, including statements and transcripts, originally released in pdf format, to html, and place these files here:

    Also, I have converted, or reprinted, some documents of related actions. The Electronic Frontier Foundation’s Complaint against AT&T, and the American Civil Liberties Union’s Complaint against the NSA are there in html format, complete with internal navigation links.

    Also papers from the Congressional Research Service relating to this are there, and the ability to directly search Findlaw for Supreme Court cases was recently added, as well as local Google search of the site,,, and . There are also several papers from such sources as Morton Halperin (Open Society Institute, Center for American Progress), Kate Martin and Brittany Benowitz (Center for National Security Studies), Laurence Tribe (Harvard Law), Michael S. Greco (American Bar Association), and a couple of FOIA requests from the ACLU, as well as an html version of the ACLU 2003 Issues Briefing “The Matrix Reloaded: Data Mining Moves To The States.”

    The whole site uses local links, and the set is available for download to use on Your own intranet or pc here:

    This will fit on a single floppy disk as of now, March 16, 2003. But when I add one more thing it might be too big. I may just add another zip file for sneakernet convenience.

    There is also an article I have written which includes 3 MSNBC new reports, an OMBWatch report, and Shane Harris’s February 23 National Journal article “TIA Lives.” The article is called “Big Brother Is Watching You,” and is here:

    I hope these documents, in html form, prove more accessable and useable to those who need them: Citizens, scholars, historians, and litigants.

    16 March, 2006
    Old Lyme, CT

  2. A simpler link to



Post a comment.