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Spying by National Security Agency

Unlawful. Unconstitutional. Unpatriotic.

President Bush’s authorizing the National Security Agency (NSA) to spy on private individual’s communications and data without a warrant is both unlawful and unconstitutional. Recent news suggests that the NSA may have started spying even before the President authorized it.

Bush has responded by asserting the spying was “consistent with U.S. law and the Constitution.” Further, he stated that the Joint Authorization for Use of Military Force resolution and the constitutional authority as Commander-in-Chief granted him the power to monitor excessive amounts of individuals’ private information. This couldn’t be farther from the truth and here’s why:

The Fourth Amendment establishes individual privacy from government intrusion. This fundamental right cannot be violated unless a court ordered warrant is issued based on probable cause. The US Supreme Court has ruled the Fourth Amendment does cover government eavesdropping and that this type of government monitoring can only be executed under existing statutes.

Three laws currently permit government spying, but only the Foreign Intelligence Surveillance Act (FISA) allows eavesdropping on agents of “foreign powers” in the United States. Before law enforcement agents are allowed to eavesdrop they must first be granted a warrant from the secret FISA court. This secretive court was created to ensure that government has the ability to collect sensitive information while following the Fourth Amendment. Most requests for warrants are granted and in emergency situations spying can begin prior to approval of a warrant so long as the government applies for one within 72 hours.

The NSA’s eavesdropping program is especially objectionable since, post-9/11, Congress has expanded government surveillance powers, including FISA, through the Patriot Act, Homeland Security Act and the Intelligence Authorization Act. These statutes have given unprecedented investigative powers to law enforcement agents and sufficient tools to combat the “war on terrorism.” Many in Congress on both sides of the aisle believe some of the investigative powers within these statutes go too far and violate Constitutional rights of American residents.

The Constitution instructs the President to “take care that the laws be faithfully executed” (Article II, Section 3). The President broke his constitutional obligation to uphold the law. Please join the American Civil Liberties Union in calling on Alberto Gonzales to appoint a special counsel to investigate the NSA’s domestic spying. We must remind the President that war does not suspend the Constitution, Bill of Rights and laws that govern our democracy.

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