In a polemic presented as a threat report, the FBI has targeted religious groups and rightwing eccentrics as potential terrorists likely to go postal as the new millennium arrives.

The cover story of the Weekly World News just weeks before the turn of the century carried the huge headline: "Bible Prophecies the Government Doesn't Want You To Know." Then came revelations to rival the apostle John: "Every American will wear the Number 666 -- the mark of the beast" and "The Anti-Christ is alive and living in the U.S." and "The moon will turn to blood on Christmas Day." Oh, yes, and these are just a few of the premillennial prophecies blaring across the front page of the popular supermarket tabloid.

Most important, according to Robert Calke, author of Paradise Waiting -- What You Must Do to Live Forever, "the world is coming to an end and, if the federal government gets its way, nobody will know until it is too late to do anything about it. By suppressing these prophecies, the government of the United States is, in effect, doing the Devil's work. It is more than an outrage, more than criminal -- it is pure evil in action" Calke confided to Weekly World News.

Calke is a sly and subtle fellow, no doubt, for he somehow managed to keep his book a secret from the FBI. How else explain that he did not top the G-men's millennium doomsdayers' list recently released in the Project Megiddo report. And this is serious business. Most of the organizations targeted by the FBI for this list consider the Project Megiddo report a kind of modern-day inquisition, and they are terrified by it. Not to worry. The FBI says the report was generated out of concern for the safety of the American people, and the object was nothing more sinister than "to provide law-enforcement agencies with a clear picture of potential extremism motivated by the next millennium."

The redacted 32-page report recently released to the public names religious organizations, militias and cults and links Americans to these organizations as potential terrorists whom the FBI says are hell-bent on encountering Armageddon -- God's final and conclusive battle against evil on Earth. While the FBI admits that it has "identified very few indications of specific threats to domestic security," the report claims to have divined "indicators of potential violent activity on the part of extremists in this country." Who are these people, and since when does the government have the right to investigate fools, fanatics and religious eccentrics on the basis of their millennial rhetoric alone?

Project Megiddo specifically identifies, but is not limited to, the followers of the Christian Identity movement and Odinism, white-supremacy groups, militias, the Black Hebrew Israelites and apocalyptic cults -- all presented as potential terrorists. Even at the height of the Cold War during the seventies and eighties the FBI was not allowed to pursue openly declared revolutionary Marxists in this way, being required by the courts to show cause by establishing an actual attempt to commit illegal acts.

But this so-called threat report, which official sources tell Insight already is triggering freelance gumshoeism by local and state law-enforcement agencies, provides a much broader description of who may be a suspect terrorist this New Year's Eve. The threat comes from the right wing. In fact, the terms right wing, right-wing religious extremists, rightwing extremists, right-wing terrorist groups, right-wing groups, right-wing movement, radical right and extreme right wing are used dozens of times throughout the report, while the words left or liberal do not appear there even once.

Conservatives and libertarians are noting that not too long ago, like Earl Warren declaring that the right wing had shot John Kennedy in Dallas, Hillary Rodham Clinton was blaming reports of her husband's infidelities on a "vast right-wing conspiracy." Now, with the release of the Project Megiddo report, outraged conservatives on Capitol Hill are warning that what they see as the first lady's "paranoia" may have seeped into other areas of the administration. And civil libertarians on both sides of the aisle say they find it odd that the FBI was unable to develop preliminary data, or come up with "indicators," that liberal or left-wing organizations may harbor similar religious doomsday prophecies. Do Christians on the left not believe in the Second Coming of Christ? After all, the report released on Project Megiddo by the FBI implies that all Christians who believe the end of the world may come at any moment are extremists. But labeling these organizations left or right is only one of the many problems observers have encountered with the report.

Paul Hall, managing editor of the Jubilee, a Christian Patriot publication (www.jubilee-newspaper.com) says the report amounts to "declaring war on Christians." Hall tells Insight in the first interview he has given in five years that Project Megiddo is a poorly written fantasy about a battle some in the federal government would love to engage in. "Unfortunately, their mythical enemy is not interested," he says. The FBI reports, "Christian Identity and Odinism, and other radical domestic extremists are clearly focusing on the millennium as a time of action. Certain individuals from these various perspectives are acquiring weapons, storing food and clothing, surveying potential targets and recruiting new converts." Hall says, "This is nonsense."

"The definition of Identity as they provide it is completely wrong," Hall insists. "If violence is what they say Identity is about, then we're not Identity. There are people who make themselves out to be Identity members, but they're not what we stand for. Our emphasis isn't on violence, but the premise of Project Megiddo is that Christian Identity believes that there will be an Armageddon battle and that if it doesn't happen that we'll somehow make it happen. We have been tagged as a hate group and apparently what makes us evil is that we teach that the Jewish people are not God's chosen people. There are many who may not like what we teach, but it is our First Amendment right."

The Rev. Oliver Thomas, special counsel to the liberal National Council of Churches, a 53 million member organization representing 35 mainline denominations, tells Insight, "We're pleased that the FBI is trying to anticipate problems before they occur, but they should proceed with caution. The right of the people to practice their religion without government intervention is one of the most basic. If they're going to look at this, they should be very concerned about the civil liberties of the people involved. Having seen the mistakes made by the FBI at Waco -- not listening to the religious experts -- it would be advisable to do so as it could provide them valuable assistance. Given the FBI's very broad definition of a cult, Jesus and his 12 disciples could meet their guidelines."

Thomas warns, "The problem is that today's mainstream religions are yesterday's cults, and most religions have some belief of how things are going to end by God's intervention. In fact, most Christians believe that God will return, and many Christians tie this to the millennium. Simply believing that the end of the world will come at the millennium shouldn't qualify you for investigation. After all, there have been several well-known religious men throughout time, such as the apostle Paul, Hal Lindsay, Martin Luther and Billy Graham, who believed Christ would return in their lifetime" Thomas continues with indignation, "I would be shocked to learn that we were being investigated and I'd be equally alarmed to learn that any other religious organization was being investigated without proof of criminal tendencies or criminal activity."

Hall explains that there were two important points that the FBI apparently had overlooked. "First," he says, "the scripture is clear that we won't know the time or date of the Second Coming of Christ. Second, we couldn't force the battle of Armageddon even if we wanted to. God has the timetable and none of us believe that we can cause this to happen. Furthermore, contrary to what they say, we're not motivated by race. They say we want to kill all nonwhites and that the Jews are the spawn of evil. This isn't true. We don't blame the Jews for the problems of our nation -- the decline of morality, low educational standards, racial tensions and crime. We blame ourselves. But this is what you'll get from Project Megiddo."

"The FBI knows," Hall concludes, "that we're not interested in starting a war, but they are trying to pick a fight because we won't pick one with them. The best way to eliminate what we stand for is to start some kind of violence and blame it on us. This is nonsense. According to the Project Megiddo report, anyone who goes to church, carries a Bible, believes in the end of the world or is in a militia or is rightwing somehow is the enemy of the government."

Many other religious denominations believe in the Second Coming of Christ but were not attacked in Project Megiddo. They nonetheless are concerned about what they see as violations of the First Amendment.

The American Civil Liberties Union, or ACLU, is not famous for rushing to the assistance of right-wing zealots, but it too is concerned that the report may be part of something more sinister. Gregory Nojeim, legal counsel for the ACLU, says, "The report itself is of much less concern to us than what the FBI and local law-enforcement agencies are doing with respect to the year 2000 independent of the report. We're particularly concerned because the FBI has issued to its field offices reinterpretation of the Attorney General's Guidelines that govern its terrorism investigations. We believe these guidelines already were overly broad and now their reinterpretation is secret. Our issue is whether the FBI is investigating these groups based on their First Amendment activity. We're still trying to determine whether we're going to take any action."

Others have been so outraged by the FBI report that they've requested congressional hearings. Thirty-two conservative organizations throughout the country formally have called on House Speaker Dennis Hastert of Illinois to "obtain a copy of the classified version of the report and pursue hearings." In this request the 32 signatory organizations raise these five questions:

1. To what extent is the FBI anticipating or expecting terrorist or other acts of violence to occur at the turn of the millennium?

2. Given that terrorist acts have been committed by the political left (for example, the Unabomber), what criteria do the FBI use to suggest that the religious right should be considered a threat to America's safety?

3. Given the definitions and implications made in the public version of the Project Megiddo report, what within the FBI distinguishes the religious right in the United States from the "extremists" currently being monitored by the Bureau?

4. Given that the public version of the report excludes all but two of the names of organizations on the right which are being targeted by the FBI, what other organizations are listed in the "classified" version of the Project Megiddo report and for what reason are they being considered threats to public safety?

5. Was the Project Megiddo report authored, in whole or in part, by outside left-wing advocacy groups such as the Southern Poverty Law Center and the Anti-Defamation League?

While much of the Project Megiddo report targets the religious right, the FBI also has identified members of various militias as potential millennial threats. The FBI's definition says a militia is a domestic organization with two or more members; the organization must possess and use firearms; and the organization must conduct or encourage paramilitary training. According to the report, "Most militias engage in a variety of antigovernment rhetoric which can range from the protesting of government policies to the advocating of violence and/or the overthrow of the federal government." This could, of course, include the Pilgrims who arrived on the Mayflower, every one of the Founding Fathers and virtually all of those on America's pioneer wagon trains moving West. The report clearly states, however, that "the FBI only focuses on radical elements of the militia movement capable and willing to commit violence against government, law-enforcement, civilian, military and international targets."

Randy Trochmann, cofounder of the Militia of Montana, tells Insight that "the FBI's Project Megiddo is making militias sound like white-supremacy racists. It's absolutely ridiculous to even ask the question if we're going to cause trouble at the millennium. Our members are going to stay home because they're afraid that they'll be blamed for any trouble that might happen."

Trochmann laughed at the FBI's description of the militias "acquiring weapons, storing food and clothing, surveying targets.... "He says, "If anyone is going to cause trouble during the millennium, it's the government, not us. We don't think it's Armageddon or the apocalypse. We see the year 2000 like everyone else. There may be some outages that could last for a while, and we believe in preparedness because it makes good sense. I don't think they have a right to investigate any religion or militia unless they have information that there has been a direct threat. The word militia has come to denote paramilitary, but we don't go out in the woods and shoot guns. Some do, but we don't. The majority of the militia is not violence-oriented. It's an organization like any other -- a cross section of society. We have our share of nuts, crooks, racists and others just like you'd find in any law-enforcement agency."

"The bottom line" Trochmann concludes, "is that this report smells of the Anti-Defamation League and the Southern Poverty Law Center. It smells like the FBI might be up for more funding." Trochmann is suggesting that the FBI, rather than speaking directly to the organizations attacked in the report, instead relied on information gathered by the amateur Sherlocks of what historically are left-wing organizations.

What most are furious about, though, is the fact that the FBI has targeted organizations without so much as showing intent to commit violence. They say the Project Megiddo report is filled with assumptions, predictions and qualifiers that would have embarrassed the editor of The Nation in the era of its neo-Stalinist polemics, including "extremists may engage," "extremists may initiate," "could choose to engage" and "may increase the odds." It says without a blush that "while making specific predictions is extremely difficult, acts of violence in commemoration of the millennium are just as likely to occur as not."

Such loose talk and purple rhetoric in an alleged threat assessment by the FBI directed at religious groups is shocking to Jan LeRue, senior legal adviser at the Family Research Council. LeRue thinks the FBI not only has gone way beyond the call of duty but well beyond constitutional authority. "The FBI is treading dangerously close to trampling on the constitutional rights of some Americans. The problem is that they are looking into peoples' beliefs with no account of actual criminal action. Putting law-abiding people of faith under suspicion without criminal conduct is wrong."

John Whitehead of the Rutherford Institute wrote in his Nov. 7, 1999, syndicated column that the Project Megiddo report amounts to "religious profiling -- targeting potentially dangerous persons based on their religious beliefs. The truth is that if Jesus Christ were alive today, He would in all likelihood be a target of Project Megiddo."

The FBI has refused comment.

COPYRIGHT 1999 News World Communications, Inc.
COPYRIGHT 2008 Gale, Cengage Learning

NSA warrant-less surveillance controversy concerns surveillance of persons within the United States incident to the collection of foreign intelligence by the U.S. National Security Agency (NSA) as part of the war on terror. Under this program, referred to by the Bush administration as the "terrorist surveillance program",[1] part of the broader President's Surveillance Program, the NSA is authorized by executive order to monitor phone calls, e-mails, Internet activity, text messaging, and other communication involving any party believed by the NSA to be outside the U.S., even if the other end of the communication lies within the U.S., without warrants.

The exact scope of the program is not known, but the NSA is or was provided total, unsupervised access to all fiber-optic communications going between some of the nation's major telecommunication companies' major interconnect locations, including phone conversations, email, web browsing, and corporate private network traffic. [3]. Critics stated that such "domestic" intercepts required FISC authorization under the Foreign Intelligence Surveillance Act.[2] The Bush administration maintained that the authorized intercepts are not domestic but rather foreign intelligence integral to the conduct of war and that the warrant requirements of FISA were implicitly superseded by the subsequent passage of the Authorization for Use of Military Force Against Terrorists (AUMF).[3] FISA makes it illegal to intentionally engage in electronic surveillance under appearance of an official act or to disclose or use information obtained by electronic surveillance under appearance of an official act knowing that it was not authorized by statute; this is punishable with a fine of up to $10,000 or up to five years in prison, or both.[4] In addition, the Wiretap Act prohibits any person from illegally intercepting, disclosing, using or divulging phone calls or electronic communications; this is punishable with a fine or up to five years in prison, or both.[5]

Attorney General Alberto Gonzales confirmed the existence of the program, first reported in a December 16, 2005 article in The New York Times.[6][7] The Times had posted the exclusive story on their website the night before, after learning that the Bush administration was considering seeking a Pentagon-Papers-style court injunction to block its publication.[8] Critics of The Times have openly alleged that executive editor Bill Keller had knowingly withheld the story from publication since before the 2004 Presidential election, and that the story that was ultimately first published by The Times was essentially the same one that reporters James Risen and Eric Lichtblau had first submitted at that time.[9] In a December 2008 interview with Newsweek, former Justice Department employee Thomas Tamm revealed himself to be the initial whistle-blower to The Times.[10]

Gonzales stated that the program authorizes warrantless intercepts where the government "has 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 is "outside of the United States".[11] The revelation raised immediate concern among elected officials, civil right activists, legal scholars and the public at large about the legality and constitutionality of the program and the potential for abuse. Since then, the controversy[12] has expanded to include the press's role in exposing a classified program, the role and responsibility of Congress in its executive oversight function and the scope and extent of Presidential powers under Article II of the Constitution.

Developments

In mid-August 2007, a three-judge panel of the United States Court of Appeals for the Ninth Circuit heard arguments in two lawsuits challenging the surveillance program. The appeals were the first to reach the court after dozens of civil suits against the government and telecommunications companies over NSA surveillance were consolidated last year before the chief judge of the United States District Court for the Northern District of California, Vaughn R. Walker. One of the cases is a class action against AT&T, focusing on allegations that the company provided the NSA with its customers' phone and Internet communications for a vast data-mining operation. Plaintiffs in the second case are the al-Haramain Foundation Islamic charity and two of its lawyers.[13][14]

On November 16, 2007, the three judges - M. Margaret McKeown, Michael Daly Hawkins, and Harry Pregerson - issued a 27-page ruling[15] that the charity, the Al-Haramain Islamic Foundation, could not introduce a key piece of evidence in its case because it fell under the government's claim of state secrets, although the judges said that "In light of extensive government disclosures, the government is hard-pressed to sustain its claim that the very subject matter of the litigation is a state secret."[16]

In an August 14, 2007 question-and-answer session with the El Paso Times newspaper which was published on August 22, Director of National Intelligence Mike McConnell confirmed for the first time that the private sector assisted with the warrantless surveillance program. "Now if you play out the suits at the value they're claimed, it would bankrupt these companies," McConnell said, arguing that they deserve immunity for their help.[17] Plaintiffs in the AT&T suit subsequently filed a motion with the court to have McConnell's admission of corporate cooperation with the NSA admitted as evidence in their case.[18]

The program may face an additional legal challenge in the appeal of two Albany, New York men convicted of criminal charges in an FBI anti-terror sting operation. Their lawyers contend that they have evidence the men were the subjects of NSA electronic surveillance, which was used to obtain their convictions but not made public at trial or made available in response to discovery requests by defense counsel at that time.[19]

In an unusual related legal development, on October 13, 2007, The Washington Post reported that Joseph P. Nacchio, the former CEO of Qwest Communications, is appealing an April 2007 conviction on 19 counts of insider trading by alleging that the government withdrew opportunities for contracts worth hundreds of millions of dollars after Qwest refused to participate in an unidentified National Security Agency program that the company thought might be illegal. According to court documents unsealed in Denver in early October as part of Nacchio's appeal, the NSA approached Qwest about participating in a warrantless surveillance program more than six months before the Sept. 11, 2001 attacks which have been cited by the government as the main impetus for its efforts. Nacchio is using the allegation to try to show why his stock sale should not have been considered improper.[20] According to a lawsuit filed against other telecommunications companies for violating customer privacy, AT&T began preparing facilities for the NSA to monitor "phone call information and Internet traffic" seven months before 9/11.[21]

On August 17, 2007, the Foreign Intelligence Surveillance Court said it would consider a request filed by the American Civil Liberties Union which asked the intelligence court to make public its recent, classified rulings on the scope of the government’s wiretapping powers. Judge Colleen Kollar-Kotelly, presiding judge of the FISC, signed an order[22] calling the A.C.L.U.’s motion “an unprecedented request that warrants further briefing.” The FISC ordered the government to respond on the issue by Aug. 31, saying that anything involving classified material could be filed under court seal.[23][24] On the August 31 deadline, the National Security Division of the Justice Department filed a response in opposition to the ACLU's motion with the court.[25]

In previous developments, the case ACLU v. NSA was dismissed on July 6, 2007 by the United States Court of Appeals for the Sixth Circuit.[26] The court did not rule on the spying program's legality. Instead, its 65-page opinion[27] declared that the American Civil Liberties Union and the others who brought the case - including academics, lawyers and journalists - did not have the legal standing to sue because they could not demonstrate that they had been direct targets of the clandestine surveillance. Detroit District Court judge Anna Diggs Taylor had originally ruled on August 17, 2006 that the program is illegal under FISA as well as unconstitutional under the First and Fourth Amendments of the United States Constitution.[28][29][30] Judicial Watch, a watchdog group, discovered that at the time of the ruling Taylor "serves as a secretary and trustee for a foundation that donated funds to the ACLU of Michigan, a plaintiff in the case."[31] On February 19, 2008, the U.S. Supreme Court, without comment, turned down an appeal from the American Civil Liberties Union, letting stand the earlier decision dismissing the case.[32]

On September 28, 2006 the U.S. House of Representatives passed the Electronic Surveillance Modernization Act (H.R. 5825).[33] That bill now has been passed to the U.S. Senate where three competing, mutually-exclusive, bills—the Terrorist Surveillance Act of 2006 (S.2455) (the DeWine bill), the National Security Surveillance Act of 2006 (S.2455) (the Specter bill), and the Foreign Intelligence Surveillance Improvement and Enhancement Act of 2006 (S.3001) (the Specter-Feinstein bill) -- were themselves referred for debate to the full Senate by the Senate Judiciary Committee on September 13, 2006.[34] Each of these bills would in some form broaden the statutory authorization for electronic surveillance, while still subjecting it to some restrictions. The Specter-Feinstein bill would extend the peacetime period for obtaining retroactive warrants to seven days and implement other changes to facilitate eavesdropping while maintaining FISA court oversight. The DeWine bill, the Specter bill, and the Electronic Surveillance Modernization Act (passed by the House) would all authorize some limited forms or periods of warrantless electronic surveillance subject to additional programmatic oversight by either the FISC (Specter bill) or Congress (DeWine and Wilson bills).

On January 17, 2007, Attorney General Alberto Gonzales informed U.S. Senate leaders by letter [4] that the program would not be reauthorized by the President. "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," according to his letter.[35]

On September 18, 2008, the Electronic Frontier Foundation (EFF), an Internet-privacy advocacy group, filed a new lawsuit against the NSA, President George W. Bush, Vice President Dick Cheney, Cheney's chief of staff David Addington, former Attorney General and White House Counsel Alberto Gonzales and other government agencies and individuals who ordered or participated in the warrantless surveillance. They sued on behalf of AT&T customers to seek redress for what the EFF alleges to be an illegal, unconstitutional, and ongoing dragnet surveillance of their communications and communications records. An earlier, ongoing suit by the EFF may be bogged down by the recent changes to FISA provisions, but these are not expected to impact this new case.[36][37]

On January 23, 2009, the administration of President Barack Obama adopted the same position as his predecessor when it urged U.S. District Judge Vaughn Walker to set aside a ruling in Al-Haramain Islamic Foundation et al. v. Obama, et al.[38] The Obama administration also sided with the former administration in its legal defense of July, 2008 legislation that immunized the nation's telecommunications companies from lawsuits accusing them of complicity in the eavesdropping program, according to testimony by Attorney General Eric Holder.[39]

Background
 FISA
Main article: Foreign Intelligence Surveillance Act

The 1978 Foreign Intelligence Surveillance Act (FISA) regulates U.S. government agencies' carrying out of physical searches, and electronic surveillance, wherein the main purpose is the gathering of foreign intelligence information. "Foreign intelligence information" is defined in 50 U.S.C. § 1801 as information necessary to protect the U.S. or its allies against actual or potential attack from a foreign power, sabotage or international terrorism. FISA defines a "foreign power" as a foreign government or any faction(s) of a foreign government not substantially composed of US persons, or any entity directed or controlled by a foreign government. FISA provides for both criminal and civil liability for intentional electronic surveillance under color of law except as authorized by statute.

FISA provides two documents for the authorization of surveillance. First, FISA allows the Justice Department to obtain warrants from the Foreign Intelligence Surveillance Court (FISC) before or up to 72 hours after the beginning of the surveillance. FISA authorizes a FISC judge to issue a warrant for the electronic cameras if "there is probable cause to believe that… the target of the electronic surveillance is a foreign power or an agent of a foreign power." 50 U.S.C. §1805(a)(3). Second, FISA permits the President or his delegate to authorize warrantless surveillance for the collection of foreign intelligence if "there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party". 50 U.S.C. §1802(a)(1).[40]

NSA surveillance program
Main article: NSA electronic surveillance program

Soon after the September 11, 2001 attacks U.S. President George W. Bush issued an executive order that authorized the National Security Agency (NSA) to conduct surveillance of certain telephone calls without obtaining a warrant from the FISC as stipulated by FISA (see 50 U.S.C. § 1802 50 U.S.C. § 1809 ). The complete details of the executive order are not known, but according to statements by the administration,[41] the authorization covers telephone calls originating overseas from or to a person suspected of having links to terrorist organizations such as al-Qaeda or its affiliates even when the other party to the call is within the US. The legality of surveillance involving US persons and extent of this authorization is at the core of this controversy which has steadily grown to include:

• Constitutional issues concerning the separation of powers and the Fourth Amendment immunities.
• The effectiveness[42] and scope[43] of the program.
• The legality of the leaking and publication of classified information and the implications for U.S. national security arising from the disclosure.
• Adequacy of FISA as a tool for fighting terrorism

Authorization for Use of Military Force (AUMF) Resolution
Main article: Authorization for Use of Military Force Against Terrorists

About a week after the 9/11 attacks, Congress passed the Authorization for Use of Military Force Against Terrorists (AUMF) which authorized the President to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

The administration has argued[3] that the language used in the AUMF implicitly authorized the President to exercise those powers "incident to the waging of war", including the collection of enemy intelligence, FISA provisions notwithstanding.

On January 20, 2006, Senator Patrick Leahy (D-VT), the ranking Democrat on the Senate Judiciary Committee along with lone co-sponsor Senator Ted Kennedy (D-MA) introduced S. Res. 350, a resolution "expressing the sense of the Senate that Senate Joint Resolution 23 (107th Congress), as adopted by the Senate on September 14, 2001, and subsequently enacted as the Authorization for Use of Military Force does not authorize warrantless domestic surveillance of United States citizens."[44][45] This non-binding resolution died in the Senate without being brought up for debate or being voted upon.[46]

Legal issues

The NSA surveillance controversy involves legal issues that fall into two broad disciplines: statutory interpretation and Constitutional law. Statutory interpretation is the process of interpreting and applying legislation to the facts of a given case. Constitutional law is the body of law that governs the interpretation of the United States Constitution and covers areas of law such as the relationship between the federal government and state governments, the rights of individuals, and other fundamental aspects of the application of government authority in the United States.[47]

Statutory interpretation issues

A court of law faced with determining the legality of the NSA program would have to first grapple with the statutory interpretation of FISA itself[48] Since FISA has the potential to raise certain Constitutional conflicts relating to the powers assigned to Congress and the Executive in Articles I and II respectively, the canon of constitutional avoidance requires a court to first determine if the FISA statutes can be "fairly read" to avoid Constitutional conflict.[49] Assuming such an interpretation can be found, the question then turns to whether or not the NSA wiretap authorizations were violative of the statute as so read. Without knowing how a court would resolve the first issue and the classified specifics of the program itself, it is not possible to predict the outcome.

18 U.S.C. § 2511(2)(f) provides in relevant part that "the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in 50 U.S.C. § 1801(f)... and the intercept of domestic [communications] may be conducted." The interpretation of this clause is central to the controversy because both sides agree that the NSA program operates outside of the procedural framework provided by FISA. The interpretive conflict arises because other provisions of FISA, including the criminal sanctions subpart 50 U.S.C. § 1809 include an "unless authorized by statute" provision, raising the issue of statutory ambiguity. The administration's position is that the AUMF is an authorizing statute which satisfies the FISA criteria. Critics contend that by the canon of Ejusdem generis (the doctrine that if ambiguity exists, generic legislative language must yield to specific provisions), the specific provisions of the FISA restrictions supersede the general authority granted by the AUMF. In their letter to the Senate Judiciary Committee[50] a group of law professors and former government officials addressed this issue directly:

the DOJ’s argument rests on an unstated general “implication” from the AUMF that directly contradicts express and specific language in FISA. Specific and “carefully drawn” statutes prevail over general statutes where there is a conflict. Morales v. TWA, Inc., 504 U.S. 374, 384-85 (1992) (quoting International Paper Co. v. Ouelette, 479 U.S. 481, 494 (1987)). In FISA, Congress has directly and specifically spoken on the question of domestic warrantless wiretapping, including during wartime, and it could not have spoken more clearly.

The U.S. Supreme Court faced a similar issue in Hamdi v. Rumsfeld where the government claimed that the AUMF authorized the President to detain U.S. citizens designated as an enemy combatant despite its lack of specific language to that intent and notwithstanding the provisions of 18 U.S.C. § 4001(a) which requires that the United States government cannot detain an American citizen except by an act of Congress. In that case, the Court ruled:

[B]ecause we conclude that the Government’s second assertion ["that §4001(a) is satisfied, because Hamdi is being detained “pursuant to an Act of Congress”–the AUMF"] is correct, we do not address the first. In other words, for the reasons that follow, we conclude that the AUMF is explicit congressional authorization for the detention of individuals .. and that the AUMF satisfied §4001(a)’s requirement that a detention be “pursuant to an Act of Congress”

In Hamdan v. Rumsfeld however, the court rejected the government's argument that the AUMF implicitly authorized the President to establish military commissions in violation of the UCMJ. The opinion of the Court held:

Neither of these congressional Acts, [AUMF or ATC] however, expands the President’s authority to convene military commissions. First, while we assume that the AUMF activated the President’s war powers, see Hamdi v. Rumsfeld, 542 U. S. 507 (2004) (plurality opinion), and that those powers include the authority to convene military commissions in appropriate circumstances, see id., at 518; Quirin, 317 U. S., at 28–29; see also Yamashita, 327 U. S., at 11, there is nothing in the text or legislative history of the AUMF even hinting that Congress intended to expand or alter the authorization set forth in Article 21 of the UCMJ. Cf. Yerger, 8 Wall., at 105 (“Repeals by implication are not favored”)

Determining when explicit congressional authorization is and is not required appears by this decision to require a court to first determine whether an implicit authorization would amount to a "repeal by implication" of the governing Act.

The exclusivity clause also raises a separation of powers issue. (See Constitutional law issues below)

Domestic versus foreign intelligence

The arguments against the legality of the NSA fall into two broad categories, those who argue that FISA raises no Constitutional issues and therefore the NSA program is illegal on its face[51][52] and those who argue that FISA (perhaps purposefully) raises a Constitutional conflict, one which they believe should be resolved in Congress' favor.[53]

Common to both of these views is the argument that the participation of "US persons" as defined in FISA 50 U.S.C. § 1801 renders the objectional intercepts "domestic" in nature.[54] Those advocating the "no constitutional issue" position, argue that Congress has the authority it needs to legislate in this area under Article I and the Fourth Amendment[55] while those who see a constitutional conflict[53] acknowledge that the existing delineation between Congressional and Executive authority in this area is not clear[56] but that Congress, in including the exclusivity clause in FISA, meant to carve out a legitimate role for itself in this arena.

The administration holds that an exception to the normal warrant requirements exists when the purpose of the surveillance is to prevent attack from a foreign threat. Such an exception has been upheld at the Circuit Court level when the target was a foreign agent residing abroad[57][58] a foreign agent residing in the US[59]