ACLU - According to the NY Times, Bush signed a presidential order in 2002 allowing the National Security Agency to monitor without a warrant the international (and sometimes domestic) telephone calls and e-mail messages of hundreds or thousands of citizens and legal residents inside the United States. The program eventually came to include some purely internal controls - but no requirement that warrants be obtained from the Foreign Intelligence Surveillance Court as the 4th Amendment to the Constitution and the foreign intelligence surveillance laws require.
In other words, no independent review or judicial oversight.
That kind of surveillance is illegal. Period.
The law governing government eavesdropping on American citizens is well-established and crystal clear. President Bush's claim that he is not bound by that law is simply astounding. It is a Presidential power grab that poses a challenge in the deepest sense to the integrity of the American system of government - the separation of powers between the legislative and executive branches, the concept of checks and balances on executive power, the notion that the president is subject to the law like everyone else, and the general respect for the "rule of law" on which our democratic system depends:
- Electronic surveillance by the government is strictly limited by the Constitution and federal Law
- There are only three laws that authorize any exceptions to the ban on electronic eavesdropping by the government. Congress has explicitly stated that these three laws are the exclusive means by which domestic electronic surveillance can be carried out.
- Congress's post-9/11 use-of-force resolution does not legitimize the Bush-NSA spying. That resolution contains no language changing, overriding or repealing any laws passed by Congress. Congress does not repeal legislation through hints and innuendos, and the authorization to Use Military Force does not authorize the president to violate the law against surveillance without a warrant any more than it authorizes him to carry out an armed robbery or seize control of Citibank in order to pay for operations against terrorists.
- The need for quick action does not justify an end-run around the courts The FISA law takes account of the need for emergency surveillance, and the need for quick action cannot be used as a rationale for going outside the law. FISA allows wiretapping without a court order in an emergency; the court must simply be notified within 72 hours. The government is aware of this emergency power and has used it repeatedly
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