U.S. congressional action on domestic wiretapping

Background
On December 19, 2005, Attorney General Alberto Gonzales said the surveillance program authorized warrantless intercepts where the government had "a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda," and that one party to the conversation is "outside of the United States".

The National Security Agency (NSA) electronic surveillance program approved by President Bush was most controversial because it operated without judicial oversight, as was mandated by the Foreign Intelligence Surveillance Act (FISA) in 1978. The program had been implemented in the wake of the September 11, 2001 terrorist attacks, allegedly to target al Qaeda communications involving at least one party in the United States.

On August 17, 2006, U.S. District Judge Anna Diggs Taylor ruled that the program unconstitutional and illegal. Her decision was stayed pending an appeal.

On July 6, 2007, U.S. Circuit Court of Appeals for the Sixth District overturned Judge Taylor's ruling in a 2-1 decision. The Sixth Circuit ruled that the plaintiffs lacked standing to sue and declined to rule on the legality of the program. In October 2007, the ACLU appealed the case to the U.S. Supreme Court, denied the appeal in February 2008.

Congressional Reaction
On December 20, 2005, Sens. Chuck Hagel (R-Neb.), Olympia Snowe (R-Maine), Carl Levin (D-Mich.), Dianne Feinstein (D-Calif.), and Ron Wyden (D-Ore.) called for a joint investigation into whether the government eavesdropped "without appropriate legal authority." White House Press Secretary Scott McCellan responded to the call for hearings, stating "This is still a highly classified program and there are details that it's important not be disclosed."

On January 17, 2007, Attorney General Alberto Gonzales informed U.S. Senate leaders by letter that the program would not be reauthorized by the president. He stated, "Any electronic surveillance that was occurring as part of the Terrorist Surveillance Program will now be conducted subject to the approval of the Foreign Intelligence Surveillance Court."

On June 12, 2007, the Senate Judiciary Committee scheduled a meeting to authorize subpoenas as a part of their investigation of the NSA warrentless surveillance program. Sens. Patrick Leahy (D-Vt.) and Arlen Specter (R-Pa.), unable to get the records of legal opinions and advice from the Bush administration's support for the program, led a call to subpoena Attorney General Alberto Gonzales for the information.

On June 21, 2007, the Senate Judiciary Committee authorized the chairman, Sen. Patrick Leahy (D-Vt.), to issue subpoenas to the Executive Office of the President and the Department of Justice for all documents relating to the authorization of and legal justification for the warrantless wiretapping program. Republican Sens. Orrin Hatch (R-Utah), Chuck Grassley (R-Iowa) and ranking member Arlen Specter (R-Pa.) voted with all the Democrats on the committee in passing the authorization.

Subpoenas issued
On June 27, 2007, the Senate Judiciary Committee's subpoenaed the White House, the Justice Department and Vice President Dick Cheney for records on the administration’s warrantless surveillance program. Specifically, they demanded copies of internal documents about the program's legality and agreements with telecommunications companies that participated in the program.

Sen. Russ Feingold (D-Wis.), a member of the Senate Intelligence panel, said that Democrats on that committee would not allow new surveillance legislation sought by the administration to be considered until lawmakers received sufficient information on past wiretapping operations. He commented, "After a year and a half of stonewalling by the administration, the Judiciary Committee is finally taking appropriate action by issuing subpoenas."

The deadline for subpoena compliance was July 18.

FBI Director Robert Mueller releases notes on hospital visit
On August 16, FBI Director Robert Mueller turned over notes about a March 10, 2004 visit to then Attorney General John Ashcroft's hospital bed by Alberto Gonzales, then White House counsel, and Andy Card, then White House chief of staff. The notes contradicted sworn statements made by Attorney General Alberto Gonzales stating that there were no significant disputes over the legality of the eavesdropping program confirmed by President Bush.

The notes stated that former Justice Department official James Comey had raised questions about the legality of the program, and that the visit to Ashcroft was to overrule Comey's objections. The notes described Ashcroft's state as “feeble, barely articulate, clearly stressed.” The notes also stated that Ashcroft said to White House officials “that he was barred from obtaining the advice he needed on the program by the strict compartmentalization rules of the WH.”

House Judiciary Chairman John Conyers (D-Mich.) commented on the new development, "Director Mueller’s notes and recollections concerning the White House visit to the attorney general’s hospital bed confirm an attempt to goad a sick and heavily medicated Ashcroft to approve the warrantless surveillance program."

Congressional investigation into telecos and wiretapping
In Fall 2007 a congressional investigation into telecommunication participation in government surveillance programs was launched by House Committee on Energy and Commerce members Rep. Edward J. Markey (D-Mass.), Rep. Bart Stupak (D-Mich.), and Chairman John D. Dingell (D-Mich.). The investigation began as Congress was debating a new FISA bill amendment because August's Protect America Act of 2007 was limited to six months. One of the major points of contention between congressional Democrats and the administration in passing new legislation was granting immunity to the telecommunications companies that may have participated in the government surveillance programs. Democrats had previously said that they could not consider immunity before they had even learned to what extent the telecommunications companies participated. Revelations had only been revealed by press reports, advocacy groups' Freedom of Information Act lawsuits, and Justice Department inspector general reports.

The congressional investigators subsequently received letters from Verizon, AT&T, and Qwest Communications International. None of the carriers gave details on any classified government program, but Verizon detailed its experiences more than the others.

The 13 page Verizon letter stated that from January 2005 to September 2007 Verizon provided data to federal authorities on an emergency basis 720 times. The records given included Internet protocol addresses as well as phone data. In this same period, Verizon turned over information 94,000 times to federal authorities with a subpoena or court order. The information was used for a range of criminal investigations from kidnapping and child-predator cases to counter-terrorism. The FBI, using administrative subpoenas, also known as national security letters, sought information not only identifying a person making a call, but all the people that customer called, as well as the people those people called. However, Verizon said it does not keep data on this “two-generation community of interest” for customers. The request highlights the government’s broad reach in its quest for data.

The letter explains that requests went further than previously known. Verizon said it had received FBI administrative subpoenas requesting data that would “identify a calling circle” for subscribers’ telephone numbers, including people contacted by the subscriber. Verizon said, however it does not keep such information. On occasion, the letter revealed, Verizon received requests without correct authorizations. For instance, it said it once received a request for stored voice mail without a warrant. The company said it does not respond until proper authorization is received, Verizon said.

The administration’s support of immunity came as the companies faced numerous lawsuits from individuals and organizations such as the Electronic Frontiers Foundation(EFF), a San Francisco privacy group, and the ACLU for allegedly violating Americans' privacy by aiding the NSA’s warrantless surveillance program. The Electronic Frontiers Foundation obtained records through a FOIA lawsuit showing that the FBI sought data from telecom companies about the calling habits of suspects and their associates. Qwest and AT&T did not answer the congressmen’s question as to whether they had received such requests for information. The government had argued in such cases that to continue the case would divulge “state secrets,” jeopardizing national security.

Verizon and AT&T suggested in their letters that they already had legal immunity under existing laws, but AT&T said that when the lawsuits involved allegations of highly classified activity, the company could not prove its immunity claims. EFF’s Kurt Opsahl, a senior staff attorney, said “It’s rare in these situations when there’s agreement between the plaintiff and the defendants – that there are plenty of protections for telecommunications providers in the existing laws.”

The Senate Intelligence Committee was additionally considering drafting a bill the week of October 15, 2007 that included relief for the carriers. The administration sought blanket immunity which would extend to anyone sued for assisting the government, not just telecom carriers in the surveillance programs.

External resources
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External articles

 * Arlene Getz, "Where’s the Outrage?" Newsweek, December 21, 2005: "Bush’s defense of his phone-spying program has disturbing echoes of arguments once used by South Africa's apartheid regime. Why Americans should examine the parallels."
 * Russ Baker, "NSA Spooking You? Facts First, Please," The Huffington Post (Common Dreams), December 23, 2005.
 * Eric Lichtblau, "Officials Want to Expand Review of Domestic Spying," New York Times, December 25, 2005.
 * Judd Legum, "Lugar Supports Investigation Of Bush’s Spying Program," Think Progress, January 1, 2006.
 * Jonathan Weisman, "GOP Leaders Back Bush on Wiretapping, Tribunals," Washington Post, September 14, 2006.
 * Faiz Shakir, "Breaking: Senate Judiciary Committee Issues Subpoenas For NSA Domestic Spying Documents," Think Progress, June 21, 2007.
 * Aman Ali, "Bush calls on Congress to adopt FISA reformsm," The Hill, July 28, 2007.
 * Spencer Ackerman, "Today's Must Read," TPM Muckraker, August 3, 2007.
 * Spencer Ackerman, "What's in the FISA Bill?," TPM Muckraker, August 3, 2007.
 * Spencer Ackerman, "FISA: What Isn't Electronic Surveillance?," TPM Muckraker, August 6, 2007.
 * Robert McElroy, "U.S & the World," TheWeekInCongress, August 3, 2007.
 * Ellen Nakashima and Joby Warrick, "House Approves Wiretap Measure," Washington Post, August 4, 2007.
 * Spencer Ackerman, "FISA: Communication Breakdown," TPM Muckraker, August 7, 2007. This link includes information on foreign surveillance and data monitoring.
 * Spencer Ackerman, "Probable Cause Out the Window in FISA Fix?," TPM Muckraker, August 3, 2007. This link provides information about the negotiations of warrant requirements.
 * Eric Lichtblau, James Risen, and Mark Mazzetti, "Reported Drop in Surveillance Spurred a Law," New York Times, August 10, 2007.
 * Joby Warrick and Walter Pincus, "How the Fight for Vast New Spying Powers Was Won," Washington Post, August 12, 2007.
 * James Risen, "Bush Signs Law to Widen Reach for Wiretapping," New York Times, August 6, 2007. This link includes information on foreign and domestic wiretapping.
 * Ronald B. Standler, "George Bush's Illegal Terrorist Surveillance Program" Quotations, Links, and Resources (on Dr. Ronald B. Standler's website,  Sep 4, 2007. (Pdf)