NSA warrantless surveillance (2001–2007)

NSA warrantless surveillance — also commonly referred to as "warrantless-wiretapping" or "-wiretaps" — was the surveillance of persons within the United States, including U.S. citizens, during the collection of notionally foreign intelligence by the National Security Agency (NSA) as part of the Terrorist Surveillance Program. In late 2001, the NSA was authorized to monitor, without obtaining a FISA warrant, phone calls, Internet activities, text messages and other forms of communication involving any party believed by the NSA to be outside the U.S., even if the other end of the communication lay within the U.S. Critics claimed that the program was an effort to silence critics of the Bush administration and its handling of several controversial issues. Under public pressure, the Administration allegedly ended the program in January 2007 and resumed seeking warrants from the Foreign Intelligence Surveillance Court (FISC). In 2008, Congress passed the FISA Amendments Act of 2008, which relaxed some of the original FISC requirements. During the Obama administration, the U.S. Department of Justice (DOJ) continued to defend the warrantless surveillance program in court, arguing that a ruling on the merits would reveal state secrets. In April 2009, officials at the DOJ acknowledged that the NSA had engaged in "overcollection" of domestic communications in excess of the FISC's authority, but claimed that the acts were unintentional and proceeded to continue overcollection of communications.

History A week after the 9/11 attacks, Congress passed the Authorization for Use of Military Force Against Terrorists (AUMF), which inaugurated the "war on terror". It later featured heavily in arguments over the NSA program. Soon after the 9/11 attacks, President Bush established the President's Surveillance Program. As part of the program, the Terrorist Surveillance Program was established pursuant to an executive order that authorized the NSA to surveil certain telephone calls without obtaining a warrant (see 50 U.S.C. § 1802 50 U.S.C. § 1809). The complete details of the executive order are not public, but according to administration statements, the authorization covers communication originating overseas from or to a person suspected of having links to terrorist organizations or their affiliates even when the other party to the call is within the US. In October 2001, Congress passed the Patriot Act, which granted the administration broad powers to fight terrorism. The Bush administration used these powers to bypass the FISC and directed the NSA to spy directly on al-Qaeda via a new NSA electronic surveillance program. Reports at the time indicate that "apparently accidental ... technical glitches at the National Security Agency" resulted in the interception of communications that were between two U.S. parties. This act was challenged by multiple groups, including Congress, as unconstitutional. The precise scope of the program remains secret, but the NSA was provided total, unsupervised access to all fiber-optic communications between the nation's largest telecommunication companies' major interconnected locations, encompassing phone conversations, email, Internet activity, text messages and corporate private network traffic. FISA makes it illegal to intentionally engage in electronic surveillance as an official act or to disclose or use information obtained by such surveillance under as an official act, knowing that it was not authorized by statute; this is punishable with a fine of up to $10,000, up to five years in prison or both. The Wiretap Act prohibits any person from illegally intercepting, disclosing, using or divulging phone calls or electronic communications; this is punishable with a fine, up to five years in prison, or both. After an article about the program, (which had been code-named Stellar Wind), was published in The New York Times on December 16, 2005, Attorney General Alberto Gonzales confirmed its existence. The Times had published the story after learning that the Bush administration was considering seeking a court injunction to block publication. Bill Keller, the newspaper's executive editor, had withheld the story from publication since before the 2004 Presidential Election. The published story was essentially the same that reporters James Risen and Eric Lichtblau had submitted in 2004. The delay drew criticism, claiming that an earlier publication could have changed the election's outcome. In a December 2008 interview, former Justice Department employee Thomas Tamm claimed to be the initial whistle-blower. The FBI began investigating leaks about the program in 2005, assigning 25 agents and five prosecutors. Attorney and author Glenn Greenwald argued:

Congress passed a law in 1978 making it a criminal offense to eavesdrop on Americans without judicial oversight. Nobody of any significance ever claimed that that law was unconstitutional. The Administration not only never claimed it was unconstitutional, but Bush expressly asked for changes to the law in the aftermath of 9/11, thereafter praised the law, and misled Congress and the American people into believing that they were complying with the law. In reality, the Administration was secretly breaking the law, and then pleaded with The New York Times not to reveal this. Once caught, the Administration claimed it has the right to break the law and will continue to do so. Gonzales said the program authorized warrantless intercepts where the government had "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 was "outside of the United States". The revelation raised immediate concern among elected officials, civil rights activists, legal scholars and the public at large about the legality and constitutionality of the program and its potential for abuse. The controversy expanded to include the press's role in exposing a classified program, Congress's role and responsibility of executive oversight and the scope and extent of presidential powers. CRS released a report on the NSA program, "Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information", on January 5, 2006 that concluded:

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