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Civil Liberties Issues

Domestic Surveillance: Warrantless Wiretapping

Tools and Resources
Court Cases and Legislation
Resolutions
Government Documents and Reports
Testimony
Articles
Kate Martin on Wiretapping

See also:

Domestic surveillance and spying on protesters and groups

As early as February 2001, President George W. Bush authorized the National Security Agency to start tapping phone lines and collecting e-mail messages involving communications believed to be between someone in the U.S. and someone outside the U.S. This was a major shift from the requirements of the Fourth Amendment and FISA. The Bush administration claimed this program was not a threat to the civil liberties of Americans. However, evidence that American reporters’ and activists’ phones have been tapped has disproved this claim.

The New York Times first reported on the program in 2005. Congress’s outrage and reported requests for information from the administration, always rebuffed, appeared to have subsided by 2007, when Congress passed the Protect America Act, which legalized the warrantless wiretapping program for six months, followed in 2008 by passage of the FISA Amendments Act. Though he claimed to oppose the warrantless wiretapping program and immunity for telecommunications companies that participated in it, President Obama (then Senator Obama) voted for the FISA Amendments Act.

Tools and Resources

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Court Cases and Legislation

Al-Haramain Islamic Foundation v George W. Bush

Al-Haramain, an Oregon charity sued the government after receiving a top-secret government document indicating the charity and its attorneys had been illegally spied on under the National Security Agency's warrantless wiretapping program. It is the only court case pending that has a government document possibly proving the warrantless wiretapping specifically harmed them.

Al-Haramain Islamic Foundation v George W. Bush was heard by the Ninth Circuit Court of Appeals on August 15, 2007. Oral arguments, along with photographs and testimony, reveal the Bush administration's insistence that even though the document revealing government spying exists and has been seen by many attorneys, the Department of Justice wants to deny that evidence, and alleges that hearing the case poses a threat to national security. In February 2009, the Obama administration took the same position, arguing that the case should be dismissed based on a potential national security threat. The court rejected the administration's request for a stay in the case.

Hepting v. AT&T

The Electronic Frontier Foundation (EFF) filed a class-action lawsuit against AT&T on January 31, 2006, accusing the telecom giant of violating the law and the privacy of its customers by collaborating with the NSA in its massive, illegal program to wiretap and data-mine Americans' communications.

National Security Surveillance Act of 2006

This bill, introduced by Senator Arlen Specter (R-PA) would have (1) made FISA optional and endorse President Bush's assertion that he had unlimited power to wiretap Americans, (2) made it even more difficult for Americans to obtain judicial review of extrajudicial surveillance activities by establishing a set of rules that make it very hard to get a full and fair hearing on the merits, and (3) authorized electronic surveillance in violation of the Fourth Amendment's requirements of probable cause and particularity and its prohibition against general warrants. The bill never made it to a floor vote.

See also a bill introduced by Senator Mike DeWine and three Republican colleagues, the "Terrorist Surveillance Act," which would nullify the requirements of the Foreign Intelligence Surveillance Act and authorize warrantless surveillance for up to 45 days without any judicial authorization.

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Resolutions

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Government Documents and Reports

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Testimony

Senate Judiciary Committee Hearing on Wartime Executive Power, March 31, 2006:

Senate Judiciary Committee Hearing on Wartime Executive Power, February 6, 2006

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Articles

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Kate Martin on Warrantless Wiretapping

Listen to streaming audio from her talk on April 18, 2006:

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