In December 2005, the New York Times reported that the President had secretly authorized the National Security Agency (NSA) to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying. President Bush then acknowledged that he authorized the NSA, without a warrant, to monitor phone calls and e-mails involving one party in the United States and one abroad, provided that federal agents suspect one party of terrorist ties.

In response, ABA President Mike Greco appointed the Task Force on Domestic Surveillance in the Fight Against Terrorism in 2006 to explore the very difficult constitutional questions raised by unsupervised domestic surveillance. The Task Force's bipartisan panel of distinguished lawyers included a former Director of the Federal Bureau of Investigation, a former General Counsel of the National Security Agency and the Central Intelligence Agency, the National Institute of Military Justice General Counsel, and others with deep knowledge of national security law. The ABA's position (PDF) on these issues is based upon the unanimous expert recommendations of the Task Force that were adopted by a nearly unanimous voice vote of the ABA's 550-member House of Delegates, its policy-making body.

In August 2007, Congress passed temporary legislation amending the Foreign Intelligence Surveillance Act (FISA) to broaden the scope of foreign intelligence-gathering activities permissible without a FISA warrant. The ABA expressed deep concerns that this law, the Protect America Act (PAA), permited broad warrantless surveillance without adequate safeguards from potential abuse such as judicial review and meaningful congressional oversight.

This new law included a six-month sunset provision and expired in February 2008. Since adopting the PAA, Congress has explored the impact of the PAA and has been evaluating whether it is necessary to permanently amend FISA to strengthen our intelligence-gathering capabilities.

The ABA urged Congress to ensure that any proposed changes to FISA are necessary and consistent with the system of checks and balances required by the U.S. Constitution. Furthermore, the ABA supports inclusion of legislative language ensuring that FISA is the exclusive means for conducting electronic surveillance for foreign intelligence purposes.

Facing the August expiration of wiretap orders of foreign terrorist suspects authorized under the PAA, Congressional leaders announced on June 18 an agreement on revised legislation to amend FISA. H.R. 6304, the FISA Amendments Act of 2008, requires prior FISA court review of targeting and minimization procedures, except in exigent circumstances, for warrantless surveillance targeting foreign suspects. In addition, the bill requires specific Congressional authorization to take exception to FISA’s exclusivity requirements, a warrant for surveillance targeting Americans abroad, an inspector general audit of the legality of post-9/11 surveillance activities and a 2012 sunset. The legislation also gives authority to the U.S. district courts to review whether the telephone companies received assurances that the wiretapping program was legal in determining if they are entitled to retroactive immunity. The bill passed the House in a 293-129 vote on June 20, and the Senate gave final approval with a vote of 69 to 28 on July 9. The president signed the bill into law (P.L. 110-261) on July 10, 2008.

Over the past few years, a number of lawsuits have been filed in the federal courts challenging the legality of the surveillance activities of the NSA. A pivotal legal question in a number of these cases is the potential applicability of the state secrets privilege. The ABA recently adopted policy expressing support for procedures and standards designed to ensure that whenever possible, federal civil cases are not dismissed based solely on the state secrets privilege and making recommendations to Congress to enact legislation to accomplish that objective. In February 2008, ABA President-Elect H. Thomas Wells, Jr. testified before Congress on this issue.

• The ABA wants the government to have the powers it needs effectively to combat terrorists, but we are deeply concerned about the electronic surveillance of Americans without the express authorization of the Congress and the independent oversight of the courts.
• Congress should conduct a thorough inquiry into the nature and extent of the warrantless domestic electronic surveillance conducted by the Bush Administration. Congress can responsibly legislate only once it knows what surveillance programs are in place, why they are necessary, and why the current statute is insufficient to accommodate them.
• The ABA believes that it is essential that the Judicial Branch provide an independent review of the electronic surveillance of American citizens to ensure that the proper balance exists between national security needs and Fourth Amendment privacy concerns.

The ABA adopted a policy that calls upon the President to abide by the limitations which the Constitution imposes on a president under our system of checks and balances. In its policy, the ABA urges Congress affirm that the Authorization for Use of Military Force of September 18, 2001 (P.L. No. 107-40), did not provide a statutory exception to the requirements of FISA. The ABA also opposes any future electronic surveillance inside the U.S. by any U.S. government agency for foreign intelligence purposes that does not comply with the provisions of FISA. The policy urges the President to seek appropriate amendments or new legislation if he believes that FISA is inadequate to safeguard national security. The policy adopted by the ABA urges the Congress to thoroughly review and make recommendations concerning the intelligence oversight process and to conduct a comprehensive investigation to determine: (a) the nature and extent of electronic surveillance of U.S. persons outside of the FISA process; (b) what basis was advanced for the legality of such surveillance; (c) whether the Congress was properly informed of and consulted as to the surveillance; (d) the nature of the information obtained as a result of the surveillance and whether it was retained or shared with other agencies; and (e) whether this information was used in legal proceedings against any U.S. citizen.