News Release

When the Government Becomes a Lawbreaker (cont'd):

Congressional Research Service Reports Support NACDL’s Suit to Stop Illegal Government Eavesdropping  

Washington, DC (February 3, 2006) – The National Association of Criminal Defense Lawyers welcomes the Senate Judiciary Committee’s opportunity to thoroughly question Attorney General Alberto Gonzales on the administration’s legal reasoning which purports to authorize warrantless domestic electronic eavesdropping. As plaintiffs in the lawsuit filed against the National Security Agency Jan. 17, we also encourage the committee to demand that the Justice Department turn over any legal memoranda purporting to justify the NSA program, using its subpoena power if necessary.

Legal analyses by the nonpartisan Congressional Research Service published Jan. 6 and Jan. 18 support the lawsuit filed last month by the American Civil Liberties Union, the National Association of Criminal Defense Lawyers, the Council on American Islamic Relations, and named individual plaintiffs in federal court in Detroit. The Jan. 6 report analyzes the President’s authorities and responsibilities under the Foreign Intelligence Surveillance Act (FISA). The Jan. 18 report strongly suggests the White House violated the National Security Act of 1947, as amended, by not keeping the House and Senate Intelligence Committees “fully and currently informed” as required by that law. Links to both reports are reproduced below.

Our lawsuit, which seeks declaratory and injunctive relief to force the NSA to cease and desist warrantless interception of American’s electronic and telephone conversations. Such surveillance seriously compromises the First Amendment’s guarantees of freedom of speech, of the press, and of association, the Fourth Amendment’s prohibition on warrantless searches and seizures, and the attorney-client privilege.

The effect of this unlawful program is chilling – it chills journalists’ relationships with sources both domestic and foreign, and it chills the attorney-client relationship. Many of NACDL’s clients and witnesses are in foreign countries. The NSA’s illegal interception program now forces our members to travel overseas to have even a simple, but sensitive, conversation.

We hope that most Americans will realize that indiscriminate government eavesdropping is an extremely serious problem of Constitutional proportions. The ability to intrude on our most private communications and political and religious associations is the power to embarrass, disgrace or ruin an individual. As a Jan. 17 New York Times article pointed out, the web of interceptions entangled many thousands of innocent communications – far more than the FBI could efficiently handle. If the President had complied with the probable cause requirement of the Fourth Amendment and the federal wiretap laws, the agency would not have violated the privacy of so many innocent Americans or created the massive backlog of interceptions it is now saddled with.

The NACDL also demands that all unlawful interceptions and copies be permanently destroyed without delay.

Since there is considerable doubt now that the President and Attorney General even attempted to comply with the National Security Act or the Foreign Intelligence Surveillance Act, Congress and the courts must exert their own independent roles to assure that no other executive agencies are being misused in contravention of U.S. laws and are otherwise impinging on the civil liberties of American citizens. 

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National Security Act Report (1/18/06):

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Featured Products  

Presidential Authority to Conduct Warrantless Electronic Surveillance (1/05/06):  


American Civil Liberties Union  

American Civil Liberties Union of Michigan 

Council on American-Islamic Relations  

Rabiah Ahmed

Arsalan T. Iftikhar

National Association of Criminal Defense Lawyers

Joshua Dratel, Attorney at Law (Read client statement)

Nancy Hollander, Attorney at Law (Read client statement)


James Bamford, journalist/author

Larry Diamond, Hoover Institution, Stanford University

Christopher Hitchens, journalist/author

Tara McKelvey, journalist/author

Barnett Rubin, New York University Center on International Cooperation


NACDL Communications Department

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal legal system.