Domestic Spying Program-Warrants Now Required

The Bush administration will now have a secret but independent panel of federal judges oversee the government's controversial domestic spying program. ^[1] Officials say the Foreign Intelligence Surveillance Court has already approved at least one warrant to conduct monitoring of a person suspected to having ties to al-Qaida. ^[2] The Foreign Intelligence Surveillance Court was created by section 103(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(a)). Senate Democrats pressed Attorney General Alberto Gonzales on Thursday to explain why it took the Bush administration five years to give the national security court control over government eavesdropping on suspected terrorists.


In a letter to senators on Wednesday, Gonzales said that "any electronic surveillance that was occurring as part of the Terrorist Surveillance Program will now be conducted subject to the approval of the Foreign Intelligence Surveillance Court." ^[3] Until now, the National Security Agency's domestic surveillance program, launched in the months after the Sept. 11 terrorist attacks, has monitored overseas phone calls and other electronic communications involving Americans without court warrants. ^[4] Gonzales said the new program complies with the Foreign Intelligence Surveillance Act, or FISA, the 1978 law that created the court and gave it a lower threshold for approving wiretaps and other surveillance in national security investigations. ^[5]

After it was revealed in 2005, the administration defended the program as essential to national security. ^[6]

After the revelation in the press, along with a sharp increase in subpoenas for reporters' notes and telephone records, there are have been threats of prosecution under the Espionage Act of 1917 for reporting classified information. ^[7] We have previously written about criminal prosecutions of journalists here. The Espionage Act^[8] makes it a crime for a person to receive or obtain or agree or attempt to receive or obtain from any person, or from any source, any document (among many other items) of anything connected with the national defense.^[9] The person must receive the information “for the purpose of obtaining information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation.” ^[10] The receiver must also know or have reason to believe that the information “has been or will be obtained, taken, made, or disposed of by any person” contrary to law.”^[11]

From the start, Bush maintained the warrantless program's existence was "fully consistent with my constitutional responsibilities and authorities," and said he would continue to reauthorize it "for as long as our nation faces a continuing threat from al-Qaida and related groups." ^[12] Circumventing the court, he said, "enables us to move faster and quicker." ^[13]
But last August, a federal judge in Detroit declared the spying program unconstitutional and is currently being appealed. ^[14] That appeal, which was scheduled to be heard on Jan. 31, will now likely be rendered moot, if the government drops its case. ^[15]


[1] Lara Jakes Jordan, Bush Agrees to Court Oversight of Domestic Spying, Associated Press, January 22, 2007
[2] Id.
[3] Id.
[4] Greg Gordon, Senators Seek Domestic Spying Data, Myrtle Beach Sun, January 19, 2007.
[5] Id.
[6] Jordan, supra, note 1.
[7] Nat Hentoff, The Enemy Within, The Village Voice, January 21, 2007.
[8] Recodified in 1948 as 18 U.S.C. § 793.
[9] Id. § 793(c).
[10] Id. (incorporating by reference 18 U.S.C. § 793(a)).
[11] Id. § 793(c).
[12] Jordan, supra note 1.
[13] Id.
[14] Id.
[15] Id.