Background

• As a part of the war on terror, the Bush administration authorized the National Security Agency to develop a "terrorist surveillance program" that would monitor phone calls and other communication originating from parties outside the U.S. with known or suspected links to terrorist organizations.
• The program was first reported in a December 2005 The New York Times article and immediately raised concerns about the program's legality, constitutionality, the potential for abuse, and the extent of Presidential powers under Article II of the Constitution. Former Attorney General Alberto Gonzolas confirmed the existence of the program. He stated that the program authorizes warrantless intercepts where the government "has a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda." and that one party to the conversation is "outside of the United States".
• The controversy ballooned into one that questions the role of the press in exposing a classified program.
• The Washington Post reported on October 13th 2007 that the Bush Administration's alleged NSA program approached telecommunications companies about using warrantless wiretaps on their costumers up to 6 months before the September 11th attacks. (Source: The Washington Post)

Debate

• The Bush administration holds that the authorized intercepts are not domestic but rather "foreign intelligence" integral to preventing terrorism and conducting the war on terror.

• Before the 2007 Act, critics maintained that "domestic" intercepts require authorization by Foreign Intelligence Surveillance Court under the Foreign Intelligence Surveillance Act of 1978. Many contend that these practices violate constitutional rights.

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Recent Developments

• Dozens of civil suits against the government and telecommunications companies over the surveillance program were consolidated in August 2007 when a U.S. Appeals Court heard a case challenging the surveillance program.
• Congress passed the Protect America Act of 2007 in August, carving out a broad exemption from a 1978 law that requires the government to obtain a judge's permission to monitor calls and e-mails on US soil. It also retroactively legalized the N.S.A. surveillance. The bill was largely drafted by the White House and received no committee hearing.
• In September 2006 the House passed the Electronic Surveillance Modernization Act. It is battling with three other bills (the Terrorist Surveillance Act, National Security Surveillance Act, Foreign Intelligence Surveillance Improvement and Enhancement Act). Each of these bills would expand the statutory authorization for electronic surveillance while still imposing some restrictions.
• On 9 July 2008, the US Senate gave final approval to broaden the government’s spy powers and provide legal immunity for the phone companies that took part President Bush's wiretapping program that had been disclosed two years earlier (Source: NY Times).

Additional Information