ABA Raises Fresh Concerns to Senate Regarding Domestic Surveillance

WASHINGTON, D.C., May 9, 2006 — American Bar Association President Michael S. Greco today called on the Senate Judiciary Committee to carry out “a thorough inquiry into the nature and extent of the warrantless domestic surveillance conducted by the administration,” and called any legislative action “premature” until such an inquiry has taken place.

In a letter to the Senate Judiciary Committee, Greco emphasized the association’s deep concern about possible constitutional violations contained in various legislative proposals, and the danger of proceeding before those and other key questions about the nature and scope of the surveillance program are finally answered by the administration.

“Like all our fellow citizens, the members of the American Bar Association want the government to have the powers it needs to effectively combat terrorists,” Greco wrote. “However, we are deeply concerned about the electronic surveillance of Americans without the express authorization of the Congress and the independent oversight of the courts.”

Greco urged the committee to gather more information about the scope of the surveillance program before moving forward on any legislation.

“Congress can responsibly legislate only once it knows what surveillance programs are in place, why they are necessary and why the current statute is insufficient to accommodate them,” Greco wrote.

The ABA’s policy on domestic surveillance was crafted by the ABA Task Force on Domestic Surveillance in the Fight Against Terror, a bipartisan panel that included a former director of the Federal Bureau of Investigation, a former general counsel of the National Security Agency and the Central Intelligence Agency, the National Institute of Military Justice general counsel, and other national security law experts.  The unanimous report and unanimous expert recommendations of the task force were resoundingly approved by the American Bar Association’s 550-member House of Delegates in February 2006.

Greco also raised concerns with two specific legislative proposals related to domestic surveillance, S.2453 and S.2455, as introduced.

Regarding S.2453, Greco took issue with the bill’s move to authorize the Foreign Intelligence Surveillance Act  program through what the ABA views as “in effect, a program-wide general warrant” that the court would be authorized to extend indefinitely, calling it a “profound departure from the case-by-case review contemplated by FISA.” Greco added that the bill’s current form could wind up targeting “innocent individuals who have been in inadvertent contact with persons who are legitimate targets of surveillance.”

Greco wrote that S.2455’s current wording “raises serious concerns about its constitutionality.”  The bill’s structure for authorizing warrantless surveillance is viewed by the association as potentially authorizing “indefinite surveillance under a lower probable cause” standard that fails “to contemplate any meaningful role for the judicial branch in the process if the FISA evidentiary threshold is not met.”

The ABA is calling on Congress to exercise its authority under the separation of powers doctrine to conduct the investigation, in order to create a process that includes express authorization from Congress and independent oversight by the courts.  “We urge you to act in a manner that reinforces public respect for our system of checks and balances and ensures that our national security is protected in a manner that is consistent with our constitutional guarantees.”

A full copy of the letter is available at: http://www.abanet.org/poladv/letters/109th/natlsec/DomSurv5906.pdf

With more than 400,000 members, the American Bar Association is the largest voluntary professional membership organization in the world.  As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law in a democratic society.