News Release

I.G. Review of Warrantless Surveillance No Substitute for Congressional Oversight

Washington, DC (November 28, 2006) -- “Officials also say that the N.S.A. ... has conducted much larger data-mining operations on vast volumes of communication within the United States to identify possible terror suspects. To accomplish this, the agency has reached agreements with major American telecommunications companies to gain access to some of the country’s biggest ‘switches’ carrying phone and e-mail traffic into and out of the country.” – The New York Times, Jan. 2, 2006

“The Government appears to argue here that, pursuant to the penumbra of Constitutional language in Article II, and particularly because the President is designated Commander in Chief of the Army and Navy, he has been granted the inherent power to violate not only the laws of the Congress but the First and Fourth Amendments of the Constitution, itself.” – American Civil Liberties Union, et al. v. National Security Agency (2006)

After nearly five years of warrantless eavesdropping on Americans’ international communications, the Justice Department Inspector General's office has announced that it has received the necessary clearances to look into what role federal prosecutors have played in the so-called “terrorist surveillance program.” (Letter from I.G. Glenn Fine to Reps. Sensenbrenner and Conyers) Whatever the administration wished to call it, thousands of innocent Americans and legitimate businesses have had, and continue to have, their telephone calls, e-mails and other electronic communications intercepted and analyzed without judicial oversight as required by federal statutes and the Constitution. A federal judge has already ruled that the program itself is unlawful and unconstitutional.

The Inspector General has stated that his investigation will be limited to the Justice Department's controls, use of information, and compliance with governing legal requirements. Part and parcel of that inquiry is the extent to which the National Security Agency’s warrantless surveillance program is used by federal law enforcement to develop evidence in a criminal investigation, in violation of the federal wiretap act and the Foreign Intelligence Surveillance Act. There is also a need to determine the extent to which the Justice Department and federal law enforcement are participating in efforts to datamine innocent Americans’ electronic communications, without probable cause, in violation of the Fourth Amendment.

The National Association of Criminal Defense Lawyers believes that protecting national security does not require that we relinquish personal privacy and the hard won liberties that are essential to preserving our free and democratic society. Foremost among those liberties is the requirement that searches and seizures by law enforcement be checked by the judicial branch. The Founders knew well the consequent tyranny and abuse when British soldiers had unchecked power to search anyone’s home and seize their private papers, letters and diaries. In the 21st Century, “papers and effects,” as the Framers of the Fourth Amendment called our most personal items, include our telephones and phone conversations, our voicemails, our computers and e-mails, our faxes, our wireless calls and text messages, our Google searches, and myriad other communications yet to be invented.

The Inspector General's investigation does not relieve Congress of its duty to thoroughly examine the legality and operational aspects of the NSA program. NACDL, along with nearly 100 other groups, called this month for a full investigation and public hearings before the Intelligence and Judiciary committees in the next Congress. The Inspector General’s findings would be welcome addition to -- but not a substitute for -- this essential legislative oversight.

Martin S. Pinales
National Association of Criminal Defense Lawyers
Nov. 28, 2006 

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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.