Saturday December 17, 2005

Democratic senator says Bush violated law with wiretaps: He is a president, not a king


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From a release issued to RAW STORY by Sen. Russ Feingold (D-WI) in response to President Bush's admission Saturday that the president personally authorized wiretaps of individuals who emailed or phoned other countries.


“Yesterday morning, Republican and Democratic Senators blocked a flawed bill that extended parts of the Patriot Act that are set to expire without fixing the fundamental problems with the law. Nobody wants these parts of the Patriot Act to expire -- we want to fix them before making them permanent, by including important protections for the rights and freedoms of innocent American citizens.

“With a few modest but critical improvements, like making sure that when the government seeks library records it has to show that those records have some connection to a suspected terrorist or spy, we can give the government the powers it needs while also protecting the constitutional rights of law-abiding citizens. The President can sign a bill into law tomorrow to reauthorize the Patriot Act if he will agree to the bill that the Senate unanimously passed in July or he could extend the law for a short period so negotiations can continue.


“The President's shocking admission that he authorized the National Security Agency to spy on American citizens, without going to a court and in violation of the Constitution and laws passed by Congress, further demonstrates the urgent need for these protections. The President believes that he has the power to override the laws that Congress has passed. This is not how our democratic system of government works. The President does not get to pick and choose which laws he wants to follow. He is a president, not a king.

“On behalf of all Americans who believe in our constitutional system of government, I call on this Administration to stop this program immediately and to fully cooperate with congressional inquiries and investigations. We have had enough of an Administration that puts itself above the law and the Constitution.”


Fact Sheet on Domestic Intelligence Wiretaps December 17, 2005

  • The Foreign Intelligence Surveillance Act (FISA) was enacted in 1978 to provide a statutory framework for eavesdropping on individuals within the United States, including U.S. citizens, who are not suspected of having committed a crime but who are likely to be spies or members of terrorist organizations.

  • FISA established a secret court that could issue wiretap orders if the government showed probable cause that the individual to be tapped is an “agent of a foreign power,” meaning he or she is affiliated with a foreign government or terrorist organization. This is an easier standard to meet than the criminal wiretap standard, which requires that there be: (1) probable cause that the individual to be tapped has committed, is committing, or is about to commit a crime, and (2) probable cause that communications concerning that crime will be obtained through the electronic surveillance.

  • In the 27 years since it was established, the FISA court has turned down only a handful of applications for wiretap orders. The number of approved FISA wiretap orders has jumped since September 11, 2001, with 1,754 FISA orders issued last year, up from 934 such orders in 2001.

  • FISA already addresses emergency situations where there is not time to get pre-approval from the court. It includes an emergency exception that permits government agents to install a wiretap and start monitoring phone and email conversations immediately, as long as they then go to the FISA court and get a court order within 72 hours.

  • FISA makes it a crime, punishable by up to five years in prison, to conduct electronic surveillance except as provided for by statute. The only defense is for law government agents engaged in official duties conducting “surveillance authorized by and conducted pursuant to a search warrant or court order.” [50 U.S.C. § 1809]

  • Congress has specifically stated, in statute, that the criminal wiretap statute and FISA “shall be the exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted.” [18 U.S.C. § 2518(f)]

  • The target of a FISA wiretap is never given notice that he or she was subject to surveillance, unless the evidence obtained through the electronic surveillance is ultimately used against the target in a criminal trial.