WARRANTLESS GOVERNMENT SURVEILLANCE
The Justice Movement supports the prohibition of warrantless electronic surveillance of citizens, aliens with permanent residence, or U.S. associations or corporations, and full legal accountability for all who authorize or engage in such surveillance.
The Record of Republicans and Democrats
During a time, decades ago, when Congress was not simply a battleground between people who put partisanship over principle, and when there were true statesmen and stateswomen in both of the major parties, congressional committees held hearings and investigated major crimes against our Constitution by U.S. intelligence agencies. After disclosures of blatantly unconstitutional misconduct, particularly by the FBI, Congress passed the Foreign Intelligence Surveillance Act (“FISA”) in 1978.
That legislation made it a federal felony for anyone to engage in electronic surveillance of any “United States person” without a warrant, unless the surveillance was directed solely at communications or property controlled exclusively by a foreign power and there was no substantial likelihood that the government would acquire the contents of any communication to which a “United States person” was a party.
The National Security Agency (“NSA”) conscientiously abided by those legal limitations before September 11, 2001, but blatantly violated them thereafter at the behest of President George W. Bush.[31] No one has been held legally accountable for those violations of federal criminal law and the Fourth Amendment to the United States Constitution.
In recent years, in a “kill-the-messenger” strategy, Republican and Democratic administrations have vigorously persecuted whistleblowers who brought the truth to light about the illegal surveillance and other illegal governmental misconduct. (During the Obama administration there were four times as many prosecutions against whistleblowers under the Espionage Act as there were under every prior administration combined.)
Not only did many members of both major parties stand behind President Bush’s illegal order and the warrantless surveillance of communications by the NSA, but nearly all Republicans and Democrats in Congress were content with President Obama saying, essentially, that the rule of law would not be applied to those who ordered or engaged in prior illegal surveillance and that he would not seek to hold anyone to account for prior instances of illegal surveillance or torture (another federal felony and prohibited by international law).[32]
That legislation made it a federal felony for anyone to engage in electronic surveillance of any “United States person” without a warrant, unless the surveillance was directed solely at communications or property controlled exclusively by a foreign power and there was no substantial likelihood that the government would acquire the contents of any communication to which a “United States person” was a party.
The National Security Agency (“NSA”) conscientiously abided by those legal limitations before September 11, 2001, but blatantly violated them thereafter at the behest of President George W. Bush.[31] No one has been held legally accountable for those violations of federal criminal law and the Fourth Amendment to the United States Constitution.
In recent years, in a “kill-the-messenger” strategy, Republican and Democratic administrations have vigorously persecuted whistleblowers who brought the truth to light about the illegal surveillance and other illegal governmental misconduct. (During the Obama administration there were four times as many prosecutions against whistleblowers under the Espionage Act as there were under every prior administration combined.)
Not only did many members of both major parties stand behind President Bush’s illegal order and the warrantless surveillance of communications by the NSA, but nearly all Republicans and Democrats in Congress were content with President Obama saying, essentially, that the rule of law would not be applied to those who ordered or engaged in prior illegal surveillance and that he would not seek to hold anyone to account for prior instances of illegal surveillance or torture (another federal felony and prohibited by international law).[32]
Majority Opposition to Warrantless Surveillance
The majority of people in the U.S., including Republicans and Democrats, oppose the government engaging in warrantless surveillance of communications by people in the U.S.
Republicans are even more opposed than Democrats to the government monitoring domestic phone calls (74% vs 62%), internet searches (59% vs 46%), text messages (70% vs 59%), or emails sent within the United States (67% vs 60%).[33]
- 62% oppose, with only 17% favoring, the warrantless reading of emails sent in the U.S.
- 63% oppose, with only 16% favoring, the warrantless governmental monitoring of text messages and messaging apps.
- 66% oppose, with only 14% favoring, the warrantless listening to telephone calls made in the United States.
Republicans are even more opposed than Democrats to the government monitoring domestic phone calls (74% vs 62%), internet searches (59% vs 46%), text messages (70% vs 59%), or emails sent within the United States (67% vs 60%).[33]
[31] Before September 11, 2001, the NSA abided by the clear prohibitions under FISA. That all changed after President Bush issued an order to the NSA to engage in surveillance that was wholly illegal under FISA. Wayne Murphy (“Murphy”), former Operations Director of the NSA, stated in a deposition taken by Rocky Anderson, now Executive Director of the Justice Movement, as follows:
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Q: [F]rom the enactment of the FISA in 1978 . . . until September 11, 2001, did the NSA actually obtain access to the metadata or communications to and from the United States without a warrant or a court order?
A: . . . . [N]o. Q: And did the NSA obtain access to metadata of communications to and from the United States, without a warrant or court order, after October 4, 2001? A: [T]here were three baskets of information that the President’s authority, which was implemented on October 4th, 2001, allowed us access to, and that included both telephony and internet metadata as well as content from telephony and e-mail. Q: Without a court order? A: Under the President’s authority, yes, that’s correct. * * * Q: Was the NSA required, according to your understanding, to obtain a court order or warrant, prior to September 11, 2001, if the NSA was going to intercept or obtain any communication or metadata relating to a communications involving a United States citizen? A: . . . [Y]es. Q: [I]f the NSA had desired to collect metadata on telephone calls placed by Qwest telephone customers in your view, did it have the legal authority to do that without obtaining a court order or a warrant? * * * A: . . . [U]nder the terms of The Program we were authorized to acquire all metadata from telecommunications service providers. * * * Q: And by bulk metadata that would include metadata on communications between people with respect to whom the NSA had no particularized suspicion of any wrongdoing? A: . . . [Y]es. Q: After the President’s Surveillance Program was in place, beginning October 4th 2001, did you believe that the NSA was authorized, legally, without a court order to obtain telephony metadata if it was going through a telecommunications company in the United States? . . . In bulk? A: Yes. Q: And did you believe, before October 4, 2001, that the NSA was legally authorized to do that without a court order? * * * A: No. Q: And did the NSA collect bulk metadata on telephone calls through any telecommunications company in the United States after October 4th, 2001? * * * A: My answer to that is yes. * * * A: [T]here were three baskets of information that the President’s authority, which was implemented on October 4th, 2001, allowed us access to, and that included both telephony and internet metadata as well as content from telephony and e-mail. Q: Without a court order? A: Under the President’s authority, yes, that’s correct. |
That radical change in policies and practices by the NSA following September 11, 2001, is summarized by a former NSA official and whistleblower, Thomas Drake, in an affidavit filed in the lawsuit referenced above, as follows:
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Prior to September 11, 2001, the NSA managed the task of gathering foreign intelligence while instilling a respect for the Fourth Amendment to the United States Constitution and the Foreign Intelligence Surveillance Act (“FISA”) among its employees. It was a prime directive. Everything changed after the attacks on September 11. The NSA’s new approach was that the President had the authority to override FISA and the Fourth Amendment to the United States Constitution and that the NSA worked under the authority of the President. The now commonly understood charge with respect to intercepting intelligence was “just get it,” regardless of the law.
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Plaintiffs’ Motion to Dismiss Without Prejudice and Supporting Memorandum, Valdez, et al. v. National Security Agency, et al., Case No.: 2:15-cv-00584-RJS, United States District Court for the District of Utah, available at https://rockyanderson.org/wp-content/uploads/2022/02/dkt-63-pltfs-motion-to-dismiss.pdf.
[32] “Obama on Investigating Bush Crimes: ‘Need to Look Forward’,” (Video) https://www.youtube.com/watch?v=0K27oIJlAlA.
[33] “Opposition to U.S. Government Surveillance Grows” AP-NORC Center for Public Affairs Research (September 7, 2021), available at https://apnorc.org /projects/opposition-to-u-s-government-surveillance-grows/.
[33] “Opposition to U.S. Government Surveillance Grows” AP-NORC Center for Public Affairs Research (September 7, 2021), available at https://apnorc.org /projects/opposition-to-u-s-government-surveillance-grows/.
