Around this time every month I pay my phone and internet providers for their services. In the wake of recent criticisms of the National Security Agency’s (NSA) warrantless surveillance program, though, I’m beginning to wonder exactly what services my bill covers. For instance, is my provider one of the telecommunications companies that has violated the Foreign Intelligence Surveillance Act (FISA) and other privacy laws by handing over customer phone records to the NSA? If so, what is the monthly surcharge for violating the civil liberties of Americans? Is there a tax that subsidizes the destruction of constitutional checks and balances? 

Although some information has been pieced together since The New York Times disclosed the existence of the NSA program in December 2005, the specifics of the surveillance program remain largely shrouded in mystery. We do know, however, that the NSA’s domestic surveillance operation was designed to circumvent FISA’s requirement that the administration seek a warrant from the FISA court before intercepting any American’s phone calls or emails. In fact, the May 2007 testimony of former Deputy Attorney General James Comey revealed that in March 2004, the administration authorized the spying program over the objections of senior-level Justice officials, including Attorney General John Ashcroft and Acting Attorney General Comey, that it was “without any legal basis.” After many high-level Justice Department officials including the director of the FBI reportedly threatened to resign, the administration eventually agreed to implement changes demanded by the Justice Department. We do not know the nature or extent of the changes, but the fact that the President initially reauthorized a program that his own Justice Department told him was illegal is deeply disturbing. 

The legal challenges to the NSA wiretapping program included a lawsuit filed by the ACLU on behalf of itself and a group of journalists, lawyers and academics who regularly communicate with international contacts and who fear those communications have been monitored through the NSA program. In August 2006, a judge of the U.S. District Court for the Eastern District of Michigan declared the warrantless wiretapping program unconstitutional and illegal. However, on July 6, 2007, the U.S. Court of Appeals for the Sixth Circuit vacated that decision, finding that the plaintiffs lacked “standing” to bring the lawsuit because they could not demonstrate they had actually been harmed by the NSA program. In other words, the program is so secret that none of the plaintiffs could prove they had actually been wiretapped.

Given the secretive nature and intent of the surveillance program, it will be difficult for any individual plaintiffs to show a tangible injury caused by the government’s wiretapping. The Sixth Circuit’s opinion demonstrates that it is unlikely that anyone will be able to obtain judicial review of the NSA program. With our federal courts seemingly out of the picture, the onus is on Congress to provide much needed oversight and uphold our constitutional system of checks and balances that is threatened by the NSA surveillance program.

In January 2007, the administration announced that it had adopted a new approach to the NSA surveillance program, and that a judge of the FISA Court had issued orders authorizing the Executive branch to conduct such surveillance. Yet the administration has never publicly revealed any information about the new approach, making it difficult to evaluate. 

Moreover, if, as the administration claims, they have now developed a strategy enabling the NSA to conduct the domestic surveillance program in compliance with FISA, why did the administration seek to amend FISA to permit additional surveillance without court review? Specifically, in April 2007, the administration introduced proposed amendments to FISA, claiming that the amendments would “modernize” the 1978 statute. However, FISA has been repeatedly amended since 1978, including in the 2001 USA Patriot Act, and few of the proposed changes have anything to do with modernization. Rather, the proposed amendments would change FISA’s definition of “electronic surveillance” to allow the warrantless interception of the content of all international phone calls and emails of Americans. This clearly violates the original intent and purpose of FISA and the administration has not explained why this radical redefinition is necessary. Another White House proposal asks for retroactive immunity for the telecommunication companies that violated FISA. Retroactive immunity for an entire industry in the absence of a full disclosure of the facts is wholly unprecedented. 

Last month, the Constitution Project’s bipartisan Liberty and Security Committee renewed its objections to the NSA surveillance, and called for a thorough, meaningful investigation. In their statement, our committee members commend Congress for initiating an investigation, but assert that it is essential that Congress not amend FISA until 1) the President has affirmed that FISA’s procedures are the exclusive means for foreign intelligence surveillance of American residents; 2) Congress has obtained a full understanding of how the NSA program has operated to date; 3) the administration has clearly explained the proposed changes to FISA; and 4) Congress has assessed what the real needs of modernization may be. 

Congress has an obligation to the American people to put an end to the NSA’s unlawful surveillance program and to uncover exactly what damage this program has caused to the individual liberties central to the American way of life.   Sadly, just last weekend, Congress abdicated that responsibility in its rush to adjourn for its August recess. It passed amendments to FISA that, as the ElectronicPrivacyInformationCenter described it, “will permit warrantless surveillance of American citizens when one party to the conversation may be outside of the United States. It is the most dramatic change in the 30 year history of the FISA and will leave millions of Americans subject to electronic surveillance, without court review, regardless of whether they are suspected of any wrongdoing.” For more information, go to www.epic.org 

Congress failed to preserve the critical check provided by FISA. Fortunately, the amendments sunset after 180 days. When it returns from its August recess, Congress will have another opportunity to fulfill its obligation, to fully examine the impact of these amendments, and to make needed changes. For a start, Congress must insist that the White House provide it with the details of the NSA’s surveillance activities. But for now, I’ll keep wondering every time I pay my phone bill.