On December 16th, 2005, the New York Times reported that the Bush administration had authorized the National Security Agency to conduct warrantless wiretapping on individuals living in the U.S. In existence since 2002, the program had previously been unknown to the American public, and only eight members of Congress and the presiding judge of the Foreign Intelligence Surveillance Court (FISC) had been briefed on it. Under the program, the NSA, which is the nation’s largest and most secretive agency, and the mission of which is to spy on communications abroad, can intercept phone calls and emails between citizens and non-citizens and others outside the U.S. without first receiving a court approval.
Much of the controversy surrounding the discovery of President Bush’s failure to abide by legal standards (under the Foreign Intelligence Surveillance Act or FISA) that grants law enforcement officials permission to conduct surveillance of foreign powers or agents of foreign powers using a lower standard of scrutiny than is used by the criminal justice system. Furthermore, FISA specifically allows the President to legally authorize electronic surveillance without a court order for up to fifteen days after a declaration of war. In addition, FISA grants the NSA authority to utilize a wiretap without a court so long as a FISC judge is notified within seventy-two hours—even if those seventy-two hours are after the fact. Furthermore, the FISC has almost never turned down a request for a wiretapping warrant, having approved 99.9 percent of the government’s requests since the court’s creation.
Following the revelation of the NSA warrant-less wiretapping program, the Senate Judiciary Committee held hearings to discuss the scope of the program and the Executive branch’s ability to conduct domestic surveillance. However, even after the hearings, many important questions remain unanswered. How many Americans have actually had their calls and emails intercepted? How many of our tax dollars are being spent on the program? Has the program led to any arrests?
On August 17th, 2006 a federal judge in Detroit ruled that the NSA’s warrantless wiretapping program is unconstitutional, stating that this type of surveillance “violates privacy and free speech rights and the constitutional separation of powers among the three branches of government” in addition to violating FISA. Congress spent a significant amount of time during the fall of 2006 drafting new legislation aimed at expanding FISA to establish new legal standards for warrantless wiretapping but did not come to an agreement on final legislation. On October 4th, 2006, a three-judge panel of the U.S. Court of Appeals for the 6th Circuit issued a ruling that throughout the duration of the appeals process, the Bush administration can continue its program of warrantless wiretapping.