Feb. 16, 2006 – Privacy watchdog groups may soon get some answers from the federal government about the controversial National Security Agencyâ€™s warrantless domestic surveillance program undertaken after the September 11 terror attacks. Responding to several consolidated lawsuits in federal court last week, the Department of Justice indicated that it could begin releasing documents relating to the presidential order in early March.
In a joint action last week, the nonprofit National Security Archives and the American Civil Liberties Union filed a lawsuit alleging that the Justice Department violated the Freedom of Information Act by not providing them with documents about the program requested in separate Freedom of Information Act (FOIA) filings last year. The plaintiffs subsequently requested that their suit be consolidated with two nearly identical ones filed recently by the Electronic Privacy Information Clearinghouse (EPIC). District Court Judge Henry H. Kennedy Jr. granted the request.
All three groups are seeking records relating to a secret presidential order authorizing the NSA to eavesdrop on domestic electronic communications, including telephone conversations and e-mail exchanges, without first seeking a warrant, including the Justice Departmentâ€™s legal rationale in permitting the program. The orderâ€™s existence was first revealed by the New York Times last December. The White House has acknowledged the program, but defends its legality.
Under the 30-year-old Federal Intelligence Surveillance Act (FISA), law enforcement and intelligence agencies can secretly monitor communications â€“ either inside the US or between "US persons" and overseas contacts â€“ only with written, case-by-case permission from a FISA court. The secretive FISA court has denied only a handful of warrant requests since it first began hearing cases in 1979, and agencies are permitted to initiate surveillance up to three days before filing a warrant application.
Administration officials contend that bypassing the FISA Court is necessary to the success of the ongoing "war on terror," and have claimed that Congress granted it authority to do so in empowering the president to take military action against Al-Qaeda and its affiliates. Many members of Congress and legal scholars have publicly disagreed with that assertion.
To date, the Justice Department has said little about its role, though Attorney General Alberto Gonzales has publicly defended the program. Yesterday, Representative Maurice Hinchley (D-New York) said the Department was undertaking an investigation of its participation in the program.
The NSA has not commented on the controversy. So far, it has released just two documents to EPIC. In an internal NSA memo relayed by the privacy rights group, Agency director Lieutenant General Keith B. Alexander ordered NSA employees not to speak about the program.