On April 12, 2000, Gen. Hayden, then Director of the NSA, gave
testimony to the House Permanent Select Committee on Intelligence. In his statement, Gen. Hayden laid out the context in which NSA electronic surveillance may be
legally carried out. In his introduction, Gen. Hayden stated:
More on the flip...
The National Security Agency (NSA) performs electronic surveillance to collect foreign intelligence information for the military and policymakers. As the Director of Central Intelligence noted, NSA provides valuable intelligence to U.S. Government consumers on a wide range of issues of concern to all Americans, such as international terrorism, narcotics trafficking, and proliferation of weapons of mass destruction. NSA's electronic surveillance activities are subject to strict regulation by statute[The Foreign Information Surveillance Act 50 U.S.C. § 1800, et seq.]and Executive Order[Exec. Order No. 12333, 3 C.F.R. 200 (1982), reprinted in 50 U.S.C. § 401 note]due to the potential intrusiveness and the implications for the privacy of U.S. persons of these activities. NSA's electronic surveillance activities are also subject to oversight from multiple bodies within all three branches of the Government. These safeguards have ensured that NSA is operating within its legal authority.
Clearly, what is described above is not what the NSA is currently doing.
I highly recommend you view his Power Point presentation that accompanied his testimony here.
This past Monday, Gen. Hayden in his speech to the National Press Club stated:
Now, beyond the authorities that I exercised under the standing executive order, as the war on terror has moved forward, we have aggressively used FISA warrants. The act and the court have provided us with important tools, and we make full use of them. Published numbers show us using the court at record rates, and the results have been outstanding. But the revolution in telecommunications technology has extended the actual impact of the FISA regime far beyond what Congress could ever have anticipated in 1978. And I don't think that anyone can make the claim that the FISA statute is optimized to deal with or prevent a 9/11 or to deal with a lethal enemy who likely already had combatants inside the United States.
As we know now, thanks to Glenn Greenwald, The administration believed the Patriot Act addressed their concerns allowing domestic surveillance to comply with FISA.
The claim that Title III of the Wiretap Act and FISA are the exclusive means by which anyone acting under color of law may conduct domestic electronic surveillance is not a legal fiction. The statute in question-(18 U.S.C. §2511(2)(f))-states the following:
(f) Nothing contained in this chapter or chapter 121 or 206 of this title, or section 705 of the Communications Act of 1934, shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, and procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978, shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted.
The wholesale circumvention of the procedures and special court established by the Foreign Information Surveillance Act should be a big red flag that the NSA program is not what the Administration claims.
Additionally, Gen. Hayden in April of 2000 emphasized the the checks each branch of the government plays in regulating domestic surveillance:
The result today at NSA is an intelligence gathering system that operates within detailed, constitutionally-based, substantive, and procedural limits under the watchful eyes of Congress, numerous institutions within the Executive Branch, and --through the FISA--the judiciary. The privacy framework is technology neutral and does not require amendment to accommodate new communications technologies.
The NSA system described by the administration is one that is reviewed only in the Executive Branch. Congress and the FISA Court have now been bypassed because, to quote Gen. Hayden:
In the instances where this program applies, FISA does not give us the operational effect that the authorities that the president has given us give us. Look. I can't -- and I understand it's going to be an incomplete answer, and I can't give you all the fine print as to why, but let me just kind of reverse the answer just a bit. If FISA worked just as well, why wouldn't I use FISA? To save typing? No. There is an operational impact here, and I have two paths in front of me, both of them lawful, one FISA, one the presidential -- the president's authorization. And we go down this path because our operational judgment is it is much more effective. So we do it for that reason...
Given the clear language of the statutes in question and the legislative history of FISA, presidential authorization is not legally sufficient to carry out domestic surveillance. Gen. Hayden does NOT have two paths, only one: presidential and the FISA Court.
On July 16, 2001, the GAO sent Senator Fred Thompson a report he had requested as the Ranking Minority Member of the Senate Committee on Governmental Affairs. The report [pdf], FBI Intelligence Investigations: Coordination Within Justice on Counterintelligence Criminal Matters is Limited (July 2001) (GAO-01-780), observed the following regarding the enactment of the Foreign Information Surveillance Act:
FISA was designed to strike a balance between the government's need for intelligence information to protect the national security and the protection of individual privacy rights...The Senate committee report provided that the basis for this legislation was the understanding that even if the President had an "inherent" constitutional power to authorize warrantless surveillance for foreign intelligence purposes, the Congress had the power to regulate the exercise of this authority by legislating a reasonable warrant procedure governing foreign intelligence surveillance. pg 6.
