ABA Renews Call for Full Senate Investigation of Government Surveillance, Before Moving Legislation

WASHINGTON, D.C., May 23, 2006 – American Bar Association President Michael S. Greco today raised new questions about the constitutionality of current electronic surveillance programs, and pressed the Senate Judiciary Committee to delay considering proposed legislation  on those issues until it has completed a full investigation.

“There are so many unanswered questions remaining that it would be difficult if not impossible to craft appropriate legislation,” Greco wrote in a letter to Sens. Arlen Specter and Patrick Leahy. “The recent revelations of a massive NSA database of call‑detail information for millions of Americans is the most recent example of how much the Congress does not know about the monitoring of innocent Americans for anti-terrorism purposes.”

Greco emphasized that, “The members of the ABA want to ensure that our government has the anti-terrorism intelligence-gathering powers that it needs. If the Congress conducts a thorough inquiry and makes an informed determination that the rules set forth in laws like the Foreign Intelligence Surveillance Act need to be revised to enhance our enforcement abilities, then it should promptly do so in a manner that comports with constitutional requirements.”

He added that, “The Bush Administration has claimed that the current FISA structure lacks sufficient flexibility to deal with today’s foreign intelligence effort. …However, the Congress, in fulfilling its constitutional responsibility to oversee the actions of the Executive Branch, should not act on legislation until it is in a position to determine whether legislation is necessary and appropriate.”

Greco raised several specific concerns with evolving legislative language and its potential to violate the Fourth Amendment and other sections of the Constitution.  He addressed earlier versions of the bills in a May 9 letter, but today responded to new issues in substitute legislative proposals.

“The ABA remains concerned about the May 11th substitute version of S. 2453, the National Security Surveillance Act. The substitute abandons the concept that the Administration seek a mandatory review of the legality of its electronic surveillance activities from the Foreign Intelligence Surveillance Court and instead shifts that burden to individual plaintiffs,” Greco explained.  “The critical role established by Congress in FISA for judicial review of wiretaps is dramatically undermined by relying upon a private party being able to establish standing in a matter involving secret surveillance and to overcome the potential obstacles to having the case heard by the Court. “

Greco also said he was “troubled” by the mandatory transfer to the Foreign Intelligence Court of Review all such cases questioning the legality of electronic surveillance programs, noting that the legal questions involved would be addressed only in secret proceedings and could undermine public confidence.

Greco also expressed deep concerns about a provision stating that “nothing in this Act shall be construed to limit the constitutional authority of the President” to conduct foreign intelligence surveillance, saying this would upset this balance among the three branches of government, essentially giving the President the freedom to ignore the existing FISA structure..  “Additionally, …by making these provisions retroactive to the enactment of FISA, Congress would be effectively ratifying the Administration’s surveillance program,  Greco wrote.  “Collectively, these changes would largely eliminate the checks on Executive power currently provided by FISA.”

A full copy of the letter is available at: http://www.abanet.org/poladv/letters/109th/natlsec/DomSurvLtr52306.pdf

The ABA’s policy on domestic surveillance, adopted in February 2006, was crafted by an 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. That policy is available at http://www.abanet.org/leadership/2006/midyear/daily_journal/a302.doc.

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.