The Obfuscation Report

WASHINGTON - As the Senate Judiciary Committee met today to hold its third hearing into the warrantless surveillance of Americans by the National Security Agency (NSA) authorized by President Bush, the American Civil Liberties Union urged lawmakers to hold a fair and comprehensive investigation of the facts about the program before considering any legislation regarding the illegal operation.

"Congress needs to fully investigate this violation of the rule of law and the administration must stop stonewalling the efforts of lawmakers," said Caroline Fredrickson, Director of the ACLU Washington Legislative Office. "When the president authorized the NSA program, he violated the law. The American people and their elected representatives deserve to know the truth. Illegal activity needs to be investigated - not approved and legitimized."

The Senate Judiciary Committee met today to hear from members of the Foreign Intelligence Surveillance Court (FISC) and others familiar with the Foreign Intelligence Surveillance Act (FISA). The ACLU noted that FISA was passed by Congress in response to revelations that former President Nixon and others were using "national security" claims to spy on political enemies and ordinary Americans who disagreed with the government about political issues. Under federal law, FISA is the "exclusive means" under which Americans can have their communications monitored for intelligence purposes.

Members of the FISC are those federal judges authorized to issue FISA orders, and they are available to the government at any time-their hearing facility is even located in the Justice Department. For example, in 2004, FISC judges approved 1,758 secret surveillance warrants, without denying a single one. The ACLU noted that the law even permits federal law enforcement to initiate an emergency intelligence investigation and retroactively seek an order up to 72 hours after the fact, making these provisions sufficiently agile to deal with exigencies.

One of the witnesses expected to testify, David Kris, is a former Associate Deputy Attorney General at the Department of Justice, where he handled national security issues. In an internal e-mail exchange that was released through a Freedom of Information Act request, he stated, "Claims that FISA simply requires too much paperwork or the bothersome marshaling of arguments seem relatively weak justifications for resorting to 'constitutional powers' in violation of the statute." He added that he did "not think Congress can be said to have authorized the NSA surveillance" via the authorization for military force in Afghanistan.

"Many legal and security experts have rejected the administration's claims that the warrantless NSA eavesdropping program was both legal and necessary," said Lisa Graves, ACLU Senior Counsel for Legislative Strategy. "Enough time has been spent on legal theories-what Congress and the American people are entitled to is the facts about how many Americans' emails or phone calls have been monitored through this program. Congress must reject attempts to legitimize this illegal program, and instead insist that the truth be brought to light."

For more on the ACLU's concerns with the warrantless NSA eavesdropping program, go to: www.aclu.org/nsaspying