Agency name	National Security Agency
Seal	National Security Agency.svg
Seal width	200px
Formed	November 4, 1952
Preceding1	Armed Forces Security Agency
Jurisdiction	United States
Headquarters	Fort Meade, Maryland
Employees	Classified
Budget	Classified
Chief1 name	General Keith B. Alexander, USA
Chief1 position	Director
Chief2 name	John C. Inglis
Chief2 position	Deputy Director
Parent agency	United States Department of Defense
Website	www.nsa.gov }}

The National Security Agency/Central Security Service (NSA/CSS) is a cryptologic intelligence agency of the United States Department of Defense responsible for the collection and analysis of foreign communications and foreign signals intelligence, as well as protecting U.S. government communications and information systems, which involves cryptanalysis and cryptography.

The NSA is directed by at least a lieutenant general or vice admiral. NSA is a key component of the U.S. Intelligence Community, which is headed by the Director of National Intelligence. The Central Security Service is a co-located agency created to coordinate intelligence activities and co-operation between NSA and other U.S. military cryptanalysis agencies. The Director of the National Security Agency serves as the Commander of the United States Cyber Command and Chief of the Central Security Service.

By law, NSA's intelligence gathering is limited to foreign communications, although domestic incidents such as the NSA warrantless surveillance controversy have occurred.

Organization

The National Security Agency is divided into two major missions: the Signals Intelligence Directorate (SID), which produces foreign signals intelligence information, and the Information Assurance Directorate (IAD), which protects U.S. information systems.

Role

NSA's eavesdropping mission includes radio broadcasting, both from various organizations and individuals, the Internet, telephone calls, and other intercepted forms of communication. Its secure communications mission includes military, diplomatic, and all other sensitive, confidential or secret government communications. It has been described as the world's largest single employer of mathematicians, and the owner of the single largest group of supercomputers, but it has tried to keep a low profile. For many years, its existence was not acknowledged by the U.S. government, earning it the nickname, "No Such Agency" (NSA). Because the agency rarely makes any public remarks, it has been quipped that their motto is "Never Say Anything"..

According to the ''Washington Post'', "[e]very day, collection systems at the National Security Agency intercept and store 1.7 billion e-mails, phone calls and other types of communications. The NSA sorts a fraction of those into 70 separate databases."

Because of its listening task, NSA/CSS has been heavily involved in cryptanalytic research, continuing the work of predecessor agencies which had broken many World War II codes and ciphers (see, for instance, Purple, Venona project, and JN-25).

In 2004, NSA Central Security Service and the National Cyber Security Division of the Department of Homeland Security (DHS) agreed to expand NSA Centers of Academic Excellence in Information Assurance Education Program.

As part of the National Security Presidential Directive 54/Homeland Security Presidential Directive 23 (NSPD 54), signed on January 8, 2008 by President Bush, the NSA became the lead agency to monitor and protect all of the federal government's computer networks from cyber-terrorism. In 2010, Robert Gates called for DHS to have a "cell" that would be able to apply the full surveillance powers of NSA for domestic cyber security.

Facilities

Headquarters for the National Security Agency is at Fort George G. Meade, Maryland, about southwest of Baltimore. The NSA has its own exit off Maryland Route 295 South labeled "NSA Employees Only." The scale of the operations at the NSA is hard to determine from unclassified data; some 18,000 parking spaces are visible in photos of the site. In 2006, the ''Baltimore Sun'' reported that the NSA was at risk of electrical overload because of insufficient internal electrical infrastructure at Fort Meade to support the amount of equipment being installed. This problem was apparently recognized in the 1990s but not made a priority, and "now the agency's ability to keep its operations going is threatened." Its secure government communications work has involved the NSA in numerous technology areas, including the design of specialized communications hardware and software, production of dedicated semiconductors (at the Ft. Meade chip fabrication plant), and advanced cryptography research. The agency contracts with the private sector in the fields of research and equipment.

In addition to its Ft. Meade headquarters, the NSA has facilities at the Texas Cryptology Center in San Antonio, Texas; at Fort Gordon, Georgia, and elsewhere.

On January 6, 2011 a groundbreaking ceremony was held to begin construction on the NSA's first Comprehensive National Cyber-security Initiative (CNCI) Data Center; the "Utah Data Center" for short. The USD $1.5 billion data center is being built at Camp Williams, Utah, located miles south of Salt Lake City. The data center will help support the agency's National Cyber-security Initiative.

National Computer Security Center

The National Computer Security Center, once part of the National Security Agency, was established in 1981 and was responsible for testing and evaluating computer equipment for use in high security and/or confidential applications. NCSC was also responsible for publishing the Orange Book and Trusted Network Interpretation (Red Book) detailing trusted computing and network platform specifications. The two works are more formally known as the Trusted Computing System Evaluation Criteria and Trusted Network Interpretation, part of the Rainbow Series, however, they have largely been replaced by the Common Criteria.

History

The National Security Agency's predecessor was the Armed Forces Security Agency (AFSA), created on May 20, 1949. This organization was originally established within the U.S. Department of Defense under the command of the Joint Chiefs of Staff. The AFSA was to direct the communications and electronic intelligence activities of the U.S. military intelligence units: the Army Security Agency, the Naval Security Group, and the Air Force Security Service. However, that agency had little power and lacked a centralized coordination mechanism. The creation of NSA resulted from a December 10, 1951, memo sent by CIA Director Walter Bedell Smith to James S. Lay, Executive Secretary of the National Security Council. The memo observed that "control over, and coordination of, the collection and processing of Communications Intelligence had proved ineffective" and recommended a survey of communications intelligence activities. The proposal was approved on December 13, 1951, and the study authorized on December 28, 1951. The report was completed by June 13, 1952. Generally known as the "Brownell Committee Report," after committee chairman Herbert Brownell, it surveyed the history of U.S. communications intelligence activities and suggested the need for a much greater degree of coordination and direction at the national level. As the change in the security agency's name indicated, the role of NSA was extended beyond the armed forces.

The creation of NSA was authorized in a letter written by President Harry S. Truman in June 1952. The agency was formally established through a revision of National Security Council Intelligence Directive (NSCID) 9 on October 24, 1952, and officially came into existence on November 4, 1952. President Truman's letter was itself classified and remained unknown to the public for more than a generation. A brief but vague reference to the NSA first appeared in the United States Government Organization Manual from 1957, which described it as "a separately organized agency within the Department of Defense under the direction, authority, and control of the Secretary of Defense [...] for the performance of highly specialized technical functions in support of the intelligence activities of the United States."

;National Cryptologic Memorial

Crews associated with NSA missions have been involved in a number of dangerous and deadly situations. The well known USS Liberty incident in 1967 and USS Pueblo incident in 1968 are a small sample of the losses endured during the Cold War.

The National Security Agency/Central Security Service Cryptologic Memorial honors and remembers the fallen personnel, both military and civilian, of these intelligence missions. It is made of black granite, and has 163 names (as of 2011) carved into it. It is located at NSA headquarters. A tradition of declassifying the stories of the fallen was begun in 2001.

Insignia

The heraldic insignia of NSA consists of a bald eagle facing its right, grasping a key in its talons, representing NSA's clutch on security as well as the mission to protect and gain access to secrets. The eagle is set on a background of blue and its breast features a blue shield supported by 13 bands of red and white. The surrounding white circular border features "National Security Agency" around the top and "United States of America" underneath, with two five-pointed silver stars between the two phrases. The current NSA insignia has been in use since 1965, when then-Director, LTG Marshall S. Carter (USA) ordered the creation of a device to represent the Agency.

Effect on non-governmental cryptography

NSA has been involved in debates about public policy, both indirectly as a behind-the-scenes adviser to other departments, and directly during and after Vice Admiral Bobby Ray Inman's directorship. NSA was a major player in the debates of the 1990s regarding the export of cryptography. Restrictions on export were reduced but not eliminated in 1996.

Data Encryption Standard (DES)

NSA was embroiled in some minor controversy concerning its involvement in the creation of the Data Encryption Standard (DES), a standard and public block cipher algorithm used by the U.S. government and banking community. During the development of DES by IBM in the 1970s, NSA recommended changes to some details of the design. There was suspicion that these changes had weakened the algorithm sufficiently to enable the agency to eavesdrop if required, including speculation that a critical component—the so-called S-boxes—had been altered to insert a "backdoor" and that the reduction in key length might have made it feasible for NSA to discover DES keys using massive computing power. It has since been observed that the S-boxes in DES are particularly resilient against differential cryptanalysis, a technique which was not publicly discovered until the late 1980s, but which was known to the IBM DES team. The United States Senate Select Committee on Intelligence reviewed NSA's involvement, and concluded that while the agency had provided some assistance, it had not tampered with the design. In late 2009 NSA declassified information stating that "NSA worked closely with IBM to strengthen the algorithm against all except brute force attacks and to strengthen substitution tables, called S-boxes. Conversely, NSA tried to convince IBM to reduce the length of the key from 64 to 48 bits. Ultimately they compromised on a 56-bit key."

Clipper chip

Because of concerns that widespread use of strong cryptography would hamper government use of wiretaps, NSA proposed the concept of key escrow in 1993 and introduced the Clipper chip that would offer stronger protection than DES but would allow access to encrypted data by authorized law enforcement officials. The proposal was strongly opposed and key escrow requirements ultimately went nowhere. However, NSA's Fortezza hardware-based encryption cards, created for the Clipper project, are still used within government, and NSA ultimately published the design of the SKIPJACK cipher (but not the key exchange protocol) used on the cards.

Advanced Encryption Standard (AES)

Possibly because of previous controversy, the involvement of NSA in the selection of a successor to DES, the Advanced Encryption Standard (AES), was initially limited to hardware performance testing (see AES competition). NSA has subsequently certified AES for protection of classified information (for at most two levels, e.g. SECRET information in an unclassified environment) when used in NSA-approved systems.

SHA

The widely-used SHA-1 and SHA-2 hash functions were designed by NSA. SHA-1 is a slight modification of the weaker SHA-0 algorithm, also designed by NSA in 1993. This small modification was suggested by NSA two years later, with no justification other than the fact that it provides additional security. An attack for SHA-0 that does not apply to the revised algorithm was indeed found between 1998 and 2005 by academic cryptographers. Because of weaknesses and key length restrictions in SHA-1, NIST deprecates its use for digital signatures, and approves only the newer SHA-2 algorithms for such applications from 2013 on.

A new hash standard, SHA-3, is currently under development. An ongoing competition, closely resembling the successful AES process, will select the function used by the standard and is scheduled to end in 2012.

Dual EC DRBG random number generator

NSA promoted the inclusion of a random number generator called Dual EC DRBG in the U.S. National Institute of Standards and Technology's 2007 guidelines. This led to speculation of a backdoor which would allow NSA access to data encrypted by systems using that random number generator.

Academic research

NSA has invested many millions of dollars in academic research under grant code prefix ''MDA904'', resulting in over 3,000 papers (as of 2007-10-11). NSA/CSS has, at times, attempted to restrict the publication of academic research into cryptography; for example, the Khufu and Khafre block ciphers were voluntarily withheld in response to an NSA request to do so.

NSANet

NSANet is the official National Security Agency intranet. It is a classified internal network, and TS/SCI. In 2004 it was reported to have used over 20 commercial off-the-shelf operating systems. Some universities that do highly-sensitive research are allowed to connect to it. In 1998 it, along with NIPRNET and SIPRNET, had "significant problems with poor search capabilities, unorganized data and old information". In 2001 it was reported on the PR Newswire that NSA bought Auto-Trol's product KONFIG® NM to help "document and manage" NSANet.

Patents

NSA has the ability to file for a patent from the U.S. Patent and Trademark Office under gag order. Unlike normal patents, these are not revealed to the public and do not expire. However, if the Patent Office receives an application for an identical patent from a third party, they will reveal NSA's patent and officially grant it to NSA for the full term on that date.

One of NSA's published patents describes a method of geographically locating an individual computer site in an Internet-like network, based on the latency of multiple network connections.

NSA programs

ECHELON

NSA/CSS, in combination with the equivalent agencies in the United Kingdom ''(Government Communications Headquarters)'', Canada ''(Communications Security Establishment),'' Australia ''(Defence Signals Directorate)'', and New Zealand ''(Government Communications Security Bureau)'', otherwise known as the UKUSA group, is widely reported to be in command of the operation of the so-called ECHELON system. Its capabilities are suspected to include the ability to monitor a large proportion of the world's transmitted civilian telephone, fax and data traffic, according to a December 16, 2005 article in the ''New York Times''.

Technically, almost all modern telephone, internet, fax and satellite communications are exploitable due to recent advances in technology and the 'open air' nature of much of the radio communications around the world. NSA's presumed collection operations have generated much criticism, possibly stemming from the assumption that NSA/CSS represents an infringement of Americans' privacy. However, NSA's United States Signals Intelligence Directive 18 (USSID 18) strictly prohibits the interception or collection of information about "...U.S. persons, entities, corporations or organizations..." without explicit written legal permission from the United States Attorney General when the subject is located abroad, or the Foreign Intelligence Surveillance Court when within U.S. Borders. The U.S. Supreme Court has ruled that intelligence agencies cannot conduct surveillance against American citizens. There are a few extreme circumstances where collecting on a U.S. entity is allowed without a USSID 18 waiver, such as with civilian distress signals, or sudden emergencies such as the September 11, 2001 attacks; however, the USA PATRIOT Act has significantly changed privacy legality.

There have been alleged violations of USSID 18 that occurred in violation of NSA's strict charter prohibiting such acts. In addition, ECHELON is considered with indignation by citizens of countries outside the UKUSA alliance, with numerous allegations that the United States government uses it for motives other than its national security, including political and industrial espionage. Examples include the gear-less wind turbine technology designed by the German firm Enercon and the speech technology developed by the Belgian firm Lernout & Hauspie. An article in the ''Baltimore Sun'' reported in 1995 that aerospace company Airbus lost a $6 billion contract with Saudi Arabia in 1994 after NSA reported that Airbus officials had been bribing Saudi officials to secure the contract.

Domestic activity

NSA's mission, as set forth in Executive Order 12333, is to collect information that constitutes "foreign intelligence or counterintelligence" while ''not'' "acquiring information concerning the domestic activities of United States persons". NSA has declared that it relies on the FBI to collect information on foreign intelligence activities within the borders of the USA, while confining its own activities within the USA to the embassies and missions of foreign nations.

NSA's domestic surveillance activities are limited by the requirements imposed by the Fourth Amendment to the U.S. Constitution; however, these protections do not apply to non-U.S. persons located outside of U.S. borders, so the NSA's foreign surveillance efforts are subject to far fewer limitations under U.S. law. The specific requirements for domestic surveillance operations are contained in the Foreign Intelligence Surveillance Act of 1978 (FISA), which does not extend protection to non-U.S. citizens located outside of U.S. territory.

These activities, especially the publicly acknowledged domestic telephone tapping and call database programs, have prompted questions about the extent of the NSA's activities and concerns about threats to privacy and the rule of law.

Wiretapping programs

Domestic wiretapping under Richard Nixon

In the years after President Richard Nixon resigned, there were several investigations of suspected misuse of Central Intelligence Agency (CIA) and NSA facilities. Senator Frank Church headed a Senate investigating committee (the Church Committee) which uncovered previously unknown activity, such as a CIA plot (ordered by President John F. Kennedy) to assassinate Fidel Castro. The investigation also uncovered NSA's wiretaps on targeted American citizens. After the Church Committee hearings, the Foreign Intelligence Surveillance Act of 1978 became law, limiting circumstances under which domestic surveillance was allowed.

IT projects: ThinThread, Trailblazer, Turbulence

NSA created new IT systems to deal with the flood of information from new technologies like the internet and cellphones.

ThinThread contained advanced data mining capabilities. It also had a 'privacy mechanism'; surveillance was stored encrypted; decryption required a warrant. The research done under this program may have contributed to the technology used in later systems. Thinthread was cancelled when Michael Hayden chose Trailblazer, which did not include Thinthread's privacy system.

Trailblazer Project ramped up circa 2000. SAIC, Boeing, CSC, IBM, and Litton worked on it. Some NSA whistleblowers complained internally about major problems surrounding Trailblazer. This led to investigations by Congress and the NSA and DoD Inspectors General. The project was cancelled circa 2003-4; it was late, overbudget, and didn't do what it was supposed to do. The Baltimore Sun ran articles about this in 2006-07. The government then raided the whistleblower's houses. One of them, Thomas Drake, was charged with in 2010, part of Obama's unusual use of espionage law against leakers and whistleblowers.

Turbulence started circa 2005. It was developed in small, inexpensive 'test' pieces rather than one grand plan like Trailblazer. It also included offensive cyber-warfare capabilities, like injecting malware into remote computers. Congress criticized Turbulence in 2007 for having similar bureaucratic problems as Trailblazer.

Warrantless wiretaps under George W. Bush

On December 16, 2005, the ''New York Times'' reported that, under White House pressure and with an executive order from President George W. Bush, the National Security Agency, in an attempt to thwart terrorism, had been tapping the telephones of select individuals in the U.S. calling persons outside the country, without obtaining warrants from the United States Foreign Intelligence Surveillance Court, a secret court created for that purpose under the Foreign Intelligence Surveillance Act (FISA).

One such surveillance program, authorized by the U.S. Signals Intelligence Directive 18 of President George Bush, was the Highlander Project undertaken for the National Security Agency by the U. S. Army 513th Military Intelligence Brigade. NSA relayed telephone (including cell phone) conversations obtained from both ground, airborne, and satellite monitoring stations to various U.S. Army Signal Intelligence Officers, including the 201st Military Intelligence Battalion. Conversations of citizens of the U.S. were intercepted, along with those of other nations.

Proponents of the surveillance program claim that the President has executive authority to order such action, arguing that laws such as FISA are overridden by the President's Constitutional powers. In addition, some argued that FISA was implicitly overridden by a subsequent statute, the Authorization for Use of Military Force, although the Supreme Court's ruling in Hamdan v. Rumsfeld deprecates this view. In the August 2006 case ''ACLU v. NSA'', U.S. District Court Judge Anna Diggs Taylor concluded that NSA's warrantless surveillance program was both illegal and unconstitutional. On July 6, 2007 the 6th Circuit Court of Appeals overturned Judge Taylor's ruling, reversing her findings.

AT&T; Internet monitoring

In May 2006, Mark Klein, a former AT&T; employee, alleged that his company had cooperated with NSA in installing hardware to monitor network communications including traffic between American citizens.

Wiretapping under Barack Obama

''The New York Times'' reported in 2009 that the NSA is intercepting communications of American citizens including a Congressman, although the Justice Department believed that the NSA had corrected its errors. United States Attorney General Eric Holder resumed the wiretapping according to his understanding of the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008 which Congress passed in July 2008 but without explaining what had occurred.

Transaction data mining

NSA is reported to use its computing capability to analyze "transactional" data that it regularly acquires from other government agencies, which gather it under their own jurisdictional authorities. As part of this effort, NSA now monitors huge volumes of records of domestic emails and Internet searches as well as bank transfers, credit-card transactions and travel and telephone records, according to current and former intelligence officials interviewed by the Wall Street Journal.

Criticisms

The NSA received criticism early on in 1960 after two agents had defected to the Soviet Union. Investigations by the House Un-American Activities Committee and a special subcommittee of the House Armed Services Committee revealed severe cases of ignorance in personnel security regulations, prompting the former personnel director and the director of security to step down and leading to the adoption of stricter security practices. Nonetheless, security breaches reoccurred only a year later when in an issue of Izvestia of July 23, 1963, a former NSA employee published several cryptologic secrets. The very same day, an NSA clerk-messenger committed suicide as ongoing investigations disclosed that he had sold secret information to the Soviets on a regular basis. The reluctance of Congressional houses to look into these affairs had prompted a journalist to write "If a similar series of tragic blunders occurred in any ordinary agency of Government an aroused public would insist that those responsible be officially censured, demoted, or fired." David Kahn criticized the NSA's tactics of concealing its doings as smug and the Congress' blind faith in the agency's right-doing as shortsighted, and pointed out the necessity of surveillance by the Congress to prevent abuse of power.

The number of exemptions from legal requirements has also been criticized. When in 1964 the Congress was hearing a bill giving the director of the NSA the power to fire at will any employee, the Washington Post wrote: "This is the very definition of arbitrariness. It means that an employee could be discharged and disgraced on the basis of anonymous allegations without the slightest opportunity to defend himself." Yet, the bill was accepted with overwhelming majority.

On January 17, 2006, the Center for Constitutional Rights filed a lawsuit, CCR v. Bush, against the Bush Presidency. The lawsuit challenged the National Security Agency's (NSA's) surveillance of people within the U.S., including the interception of CCR emails without securing a warrant first.

In fiction

Since the existence of the NSA has become more widely known in the past few decades, and particularly since the 1990s, the agency has regularly been portrayed in spy fiction. Many such portrayals grossly exaggerate the organization's involvement in the more sensational activities of intelligence agencies. The agency now plays a role in numerous books, films, television shows, and video games.

Staff

Directors

November 1952–November 1956 LTG Ralph J. Canine, USA

November 1956–November 1960 Lt Gen John A. Samford, USAF

November 1960–January 1962 VADM Laurence H. Frost, USN

January 1962–June 1965 Lt Gen Gordon A. Blake, USAF

June 1965–August 1969 Lt Gen Marshall S. Carter, USA

August 1969–August 1972 VADM Noel A. M. Gaylor, USN

August 1972–August 1973 Lt Gen Samuel C. Phillips, USAF

August 1973–July 1977 Lt Gen Lew Allen, Jr., USAF

July 1977–April 1981 VADM Bobby Ray Inman, USN

April 1981–May 1985 Lt Gen Lincoln D. Faurer, USAF

May 1985–August 1988 Lt Gen William E. Odom, USA

August 1988–May 1992 VADM William O. Studeman, USN

May 1992–February 1996 VADM John M. McConnell, USN

February 1996–March 1999 Lt Gen Kenneth A. Minihan, USAF

March 1999–April 2005 Lt Gen Michael V. Hayden, USAF

April 2005–present GEN Keith B. Alexander, USA

Notable cryptanalysts

Lambros D. Callimahos

Agnes Meyer Driscoll

William F. Friedman

Solomon Kullback

Robert Morris

Frank Rowlett

Abraham Sinkov

Louis W. Tordella

Herbert Yardley

NSA encryption systems

NSA is responsible for the encryption-related components in these systems:

EKMS Electronic Key Management System

FNBDT Future Narrow Band Digital Terminal

Fortezza encryption based on portable crypto token in PC Card format

KL-7 ADONIS off-line rotor encryption machine (post-WW II-1980s)

KW-26 ROMULUS electronic in-line teletypewriter encryptor (1960s–1980s)

KW-37 JASON fleet broadcast encryptor (1960s–1990s)

KY-57 VINSON tactical radio voice encryptor

KG-84 Dedicated Data Encryption/Decryption

SINCGARS tactical radio with cryptographically controlled frequency hopping

STE secure terminal equipment

STU-III secure telephone unit, currently being phased out by the STE

TACLANE product line by General Dynamics C4 Systems

NSA has specified Suite A and Suite B cryptographic algorithm suites to be used in U.S. government systems; the Suite B algorithms are a subset of those previously specified by NIST and are expected to serve for most information protection purposes, while the Suite A algorithms are secret and are intended for especially high levels of protection.

Some past NSA SIGINT activities

Gulf of Tonkin Incident

Korean Air Lines Flight 007

Operation Ivy Bells

USS ''Liberty'' incident

USS ''Pueblo'' (AGER-2)

VENONA project

See also

James Bamford

Biometric Consortium

Bureau of Intelligence and Research

Central Intelligence Agency

Central Security Service

Counterintelligence Field Activity

Cryptographic Quarterly

Defense Intelligence Agency

Defence Signals Directorate

Diplomatic Security Service

Espionage

Federal Bureau of Investigation

Federal law enforcement in the United States

Government Communications Headquarters

Martin and Mitchell Defection

Narus (company)

National Geospatial-Intelligence Agency

National Reconnaissance Office

National Security Whistleblowers Coalition

Non-commissioned officer

NSA Hall of Honor

Ronald Pelton

Project SHAMROCK

Security-Enhanced Linux

Signals intelligence

Skipjack (cipher)

TEMPEST

Thomas Andrews Drake (whistleblower)

Type 1 product

UKUSA

United States Department of Homeland Security

U.S. Air Force Office of Special Investigations

John Anthony Walker

NSA computers

IBM 7950 Harvest

FROSTBURG

References

Further reading

James Bamford, ''Body of Secrets: Anatomy of the Ultra-Secret National Security Agency'', Doubleday, 2001, ISBN 0-385-49907-8.

James Bamford, ''The Puzzle Palace'', Penguin Books, ISBN 0-14-006748-5.

Levy, Steven, ''Crypto: How the Code Rebels Beat the Government—Saving Privacy in the Digital Age''– discussion of the development of non-government cryptography, including many accounts of tussles with the NSA.

Radden Keefe, Patrick, ''Chatter: Dispatches from the Secret World of Global Eavesdropping'', Random House, ISBN 1-4000-6034-6.

Liston, Robert A., ''The Pueblo Surrender: a Covert Action by the National Security Agency'', ISBN 0-87131-554-8.

Kahn, David, ''The Codebreakers'', 1181 pp., ISBN 0-684-83130-9. Look for the 1967 rather than the 1996 edition.

Tully, Andrew, ''The Super Spies: More Secret, More Powerful than the CIA'', 1969, LC 71080912.

Bamford, James, New York Times, December 25, 2005; The Agency That Could Be Big Brother.

Sam Adams, ''War of Numbers: An Intelligence Memoir'' Steerforth; New Ed edition (June 1, 1998)

John Prados, ''The Soviet estimate: U.S. intelligence analysis & Russian military strength'', hardcover, 367 pages, ISBN 0-385-27211-1, Dial Press (1982).

Walter Laqueur, ''A World of secrets''

Sherman Kent, ''Strategic Intelligence for American Public Policy''

Matthew Aid, The Secret Sentry: The Untold History of the National Security Agency, 432 pages, ISBN 978-1596915152, Bloomsbury Press (June 9, 2009)

Richard J. Aldrich, GCHQ: The Uncensored Story of Britain's Most Secret Intelligence Agency, HarperCollins, 2010. ISBN 9780007278473.

External links

NSA official site

Records of the National Security Agency/Central Security Service

History of NSA

The NSA charter

Inside The NSA - The Spy Factory Documentary via Educated Earth.

"The Origins of the National Security Agency, 1940-1952"—newly declassified book-length report provided by ''The Memory Hole''.

The National Security Archive at George Washington University

First person account of NSA interview and clearance January 2004

James Bamford "Big Brother Is Listening". ''The Atlantic'', April 2006

James Bamford Inside the National Security Agency (Lecture) ACLU, KUOW-FM, PRX, NPR, February 24, 2007 (53: minutes)

GCHQ: Britain's Most Secret Intelligence Agency

Category:Computer security organizations Category:Government agencies established in 1949 Category:Mass surveillance Category:Signals intelligence agencies Category:Supercomputer sites Category:United States Department of Defense agencies Category:United States government secrecy

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The NSA warrantless surveillance controversy (AKA "Warrantless Wiretapping") concerns surveillance of persons within the United States during 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", part of the broader President's Surveillance Program, the NSA is authorized by executive order to monitor, without search warrants, phone calls, Internet activity (Web, e-mail, etc.), 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. Critics, however, claimed that it was in an effort to attempt to silence critics of the Bush Administration and their handling of several hot button issues during its tenure.

Overview

All wiretapping of American citizens by the National Security Agency requires a warrant from a three-judge court set up under the Foreign Intelligence Surveillance Act. After the 9/11 attacks, Congress passed the Patriot Act, which granted the President broad powers to fight a war against terrorism. The George W. Bush administration used these powers to bypass the FISA court and directed the NSA to spy directly on al Qaeda in a new NSA electronic surveillance program. Reports at the time indicate that an "apparently accidental" "glitch" resulted in the interception of communications that were purely domestic in nature. This action was challenged by a number of groups, including Congress, as unconstitutional.

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. . Critics said that such "domestic" intercepts required FISC authorization under the Foreign Intelligence Surveillance Act. 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). 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. 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.

Attorney General Alberto Gonzales confirmed the existence of the program, first reported in a December 16, 2005, article in ''The New York Times''. 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. Critics of ''The Times'' have alleged that executive editor Bill Keller had withheld the story from publication since before the 2004 Presidential election, and that the story that was ultimately published by ''The Times'' was essentially the same as reporters James Risen and Eric Lichtblau had submitted in 2004. In a December 2008 interview with ''Newsweek'', former Justice Department employee Thomas Tamm revealed himself to be the initial whistle-blower to ''The Times''. The FBI began investigating leaks about the program in 2005, with 25 agents and 5 prosecutors on the case.

Gonzales said 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". 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 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 lawsuit 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.

On November 16, 2007, the three judges — M. Margaret McKeown, Michael Daly Hawkins, and Harry Pregerson — issued a 27-page ruling 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."

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 helped the warrantless surveillance program. McConnell argued that the companies deserved immunity for their help: "Now if you play out the suits at the value they're claimed, it would bankrupt these companies". Plaintiffs in the AT&T; suit subsequently filed a motion with the court to have McConnell's acknowledgement admitted as evidence in their case.

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 say 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.

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. 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.

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 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. 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.

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. The court did not rule on the spying program's legality. Instead, its 65-page opinion 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. 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." 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.

On September 28, 2006 the U.S. House of Representatives passed the Electronic Surveillance Modernization Act (H.R. 5825). 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. 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 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.

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.

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. 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.

On March 31, 2010, Judge Vaughn R. Walker, chief judge of the Federal District Court in San Francisco, ruled that the National Security Agency’s program of surveillance without warrants was illegal when it intercepted phone calls of Al Haramain. Declaring that the plaintiffs had been “subjected to unlawful surveillance,” the judge said the government was liable to pay them damages.

Trailblazer and Whistleblowing prosecution

The Trailblazer Project, an NSA IT project that began in 2000, has also been linked to warrantless surveillance. It was chosen over ThinThread, which had included some privacy protections. Three ex-NSA staffers, Binney, Wiebe, and Loomis, all of whom had quit NSA over concerns about the legality of the agencies activities, teamed with Diane Roark, a staffer on the House Intelligence Committee, to ask the Inspector General to investigate. A major source for the IG report was Thomas Andrews Drake, an ex-Air Force senior NSA official with an expertise in computers. Siobhan Gorman of the Baltimore Sun published a series of articles about Trailblazer in 2006-2007.

The FBI agents investigating the 2005 New York Times story eventually made their way to the Baltimore Sun story, and then to Binney, Wiebe, Loomis, Roark, and Drake. In 2007 armed FBI agents raided the houses of Roark, Binney, and Wiebe. Binney claimed they pointed guns at his head. Wiebe said it reminded him of the Soviet Union. None were charged with crimes except for Drake. In 2010 he was indicted under the Espionage Act of 1917, as part of Obama's unprecedented crackdown on whistleblowers and leakers. The charges against him were dropped in 2011 and he plead to a single misdemeanor.

Background

FISA

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 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).

NSA 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 ). The complete details of the executive order are not known, but according to statements by the administration, 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 and scope 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

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 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." This non-binding resolution died in the Senate without being brought up for debate or being voted upon.

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.

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 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. 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.

FISA exclusivity provision

(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 ... 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 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 a group of law professors and former government officials addressed this issue directly:

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 which requires that the United States government cannot detain an American citizen except by an act of Congress. In that case, the Court ruled:

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:

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 and those who argue that FISA (perhaps purposefully) raises a Constitutional conflict, one which they believe should be resolved in Congress' favor.

Common to both of these views is the argument that the participation of "US persons" as defined in FISA renders the objectional intercepts "domestic" in nature. 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 while those who see a constitutional conflict acknowledge that the existing delineation between Congressional and Executive authority in this area is not clear 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 a foreign agent residing in the US and a US citizen abroad. The warrantless exception was struck down when both the target and the threat was deemed domestic. The legality of targeting US persons acting as agents of a foreign power and residing in this country has not been addressed by the US Supreme Court, but has occurred at least once, in the case of Aldrich Ames.

Administration's statutory position

The Administration's position with regard to statutory interpretation, as outlined in the DOJ whitepaper, is to avoid what it has termed the "difficult Constitutional questions" by interpreting the FISA "except as authorized by statute" clause to mean that Congress allowed for future legislative statute(s) to provide exceptions to the FISA warrant requirements,

that the AUMF was such a statute, and

as such, implicitly provided executive authority to authorize warrantless interception of enemy communication.

This argument, as outlined in the DOJ whitepaper, is based on the language of the AUMF, specifically, the acknowledgment of the President's Constitutional authority contained in the preamble; "Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States", and the language in the resolution itself;

The administration also adds that the program is legal under Title II of the USA PATRIOT Act entitled ''Enhanced Surveillance Procedures'', although it is not relying upon the domestic law enforcement provisions of the PATRIOT Act for authorization of any of the NSA program activities. The President had said prior to this, that Americans' civil liberties were being protected and that purely domestic wiretapping was being conducted pursuant to warrants under applicable law, including the Patriot Act.Remarks by the President in a Conversation on the USA Patriot Act

These arguments must be compared to the language of the FISA itself, which states:

Because the law only authorizes the President to bypass the FISA court during the first 15 days of a war declared by Congress (see "Declaration of war"), the administration's argument rests on the assumption that the AUMF gave the President more power than was understood as absolutely implicit in any Congressional "declaration of war" at the time of the statute's enactment. However, as a "declaration of war by the Congress" encompasses all military actions so declared, no matter how small, brief or otherwise constrained by Congress, the above citation could be seen as setting not a default or typical level of Presidential wartime authority, but instead a presumptive minimum, which might more often than not be extended (explicitly or implicitly) by Congress's war declaration.

Duty to notify Congress

According to Peter J. Wallison, former White House Counsel to President Ronald Reagan: "It is true, of course, that a president's failure to report to Congress when he is required to do so by law is a serious matter, but in reality the reporting requirement was a technicality that a President could not be expected to know about." In regard to this program, a Gang of Eight (eight key members of Congress, thirteen in this case between the 107th and 109th Congressional Sessions) have been kept informed to some degree:

Speaker of the House: (Dennis Hastert (R-IL))

House Minority Leader: (Dick Gephardt (D-MO); Nancy Pelosi (D-CA))

Chair and Ranking Member of House Permanent Select Committee on Intelligence: (Porter Goss (R-FL); Peter Hoekstra (R-MI); Jane Harman (D-CA))

Senate Majority Leader: (Trent Lott (R-MS); Bill Frist (R-TN))

Senate Minority Leader: (Tom Daschle (D-SD); Harry Reid (D-NV))

Chair and Vice Chair of Senate Select Committee on Intelligence: (Pat Roberts (R-KS); Bob Graham (D-FL); Jay Rockefeller (D-WV))

Under the National Security Act of 1947, §501-503, codified as 50 USC §413-§413b, the President is required to keep Congressional intelligence committees "fully and currently" informed of U.S. intelligence activities, "consistent with ... protection from unauthorized disclosure of classified information relating to sensitive intelligence sources and methods or other exceptionally sensitive matters." For covert actions, from which intelligence gathering activities are specifically excluded in §413b(e)(1), the President is specifically permitted to limit reporting to the so-called Gang of Eight.

The administration contends that with regard to the NSA surveillance program, the administration fulfilled its notification obligations by briefing key members of Congress (thirteen individuals in this case between the 107th and 109th Congressional sessions) have been briefed on the NSA program more than a dozen times but they were forbidden from sharing information about the program with other members or staff.

On January 18, 2006, the Congressional Research Service released a report, ''"Statutory Procedures Under Which Congress Is To Be Informed of U.S. Intelligence Activities, Including Covert Actions"''. That report found that ''"[b]ased upon publicly reported descriptions of the program, the NSA surveillance program would appear to fall more closely under the definition of an intelligence collection program, rather than qualify as a covert action program as defined by statute"'', and, therefore, concluded there was no specific statutory basis for limiting briefings on the terrorist surveillance program to the Gang of Eight However, the report goes on to note in its concluding paragraph that limited disclosure is also permitted under the statute "in order to protect intelligence sources and methods".

Thus, although the specific statutory "Gang of Eight" notification procedure for covert action would not seem to apply to the NSA program, it is not clear if a limited notification procedure intended to protect sources and methods is expressly prohibited. Additionally, should the sources and methods exception apply it will require a factual determination as to whether it should apply to disclosure of the program itself or only to specific sensitive aspects.

Constitutional law issues

The constitutional debate surrounding executive authorization of warrantless surveillance is principally about separation of powers ("checks and balances"). If, as discussed above, no "fair reading" of FISA can be found in satisfaction of the canon of avoidance, these issues will have to be decided at the appellate level, by United States courts of appeals. It should be noted that in such a separation of powers dispute, the burden of proof is placed upon the Congress to establish its supremacy in the matter: the Executive branch enjoys the presumption of authority until an Appellate Court rules against it.

Article I and II

Article I vests Congress with the sole authority "To make Rules for the Government and Regulation of the land and naval Forces" and "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.". The U.S. Supreme Court has used "the necessary and proper" clause of Article I to affirm broad Congressional authority to legislate as it sees fit in the domestic arena but has limited its application in the arena of foreign affairs. In the landmark Curtiss-Wright decision, Justice Sutherland writes in his opinion of the Court:

Article II vests the President with power as "Commander in Chief of the Army and Navy of the United States," and requires that he "shall take Care that the Laws be faithfully executed".

The U.S. Supreme Court has historically used Article II to justify wide deference to the President in the arena of foreign affairs. Two historical and recent Supreme Court cases define the secret wiretapping by the NSA. Quoting again from the Curtiss-Wright decision:

The extent of the President's power as Commander-in-Chief has never been fully defined, but two U.S. Supreme Court cases are considered seminal in this area. -Youngstown Sheet and Tube Co. v. Sawyer and Curtiss-Wright.

In addition, two relatively new cases, Hamdi v. Rumsfeld and Hamdan v. Rumsfeld, have clarified, and in the case of ''Hamdan'' limited, the scope of executive power to detain and try suspected terrorists as enemy combatants.

In Hamdan, the Court's opinion in footnote 23, rejected the notion that Congress is impotent to regulate the exercise of executive war powers:

Whether "proper exercise" of Congressional war powers includes authority to regulate the gathering of foreign intelligence, which in other rulings has been recognized as "fundamentally incident to the waging of war", is a historical point of contention between the Executive and Legislative branches.

As noted in ''"Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information"'', published by The Congressional Research Service:

The same report makes clear the Congressional view that intelligence gathered within the U.S. and where "one party is a U.S. person" qualifes as domestic in nature and as such completely within their purview to regulate, and further that Congress may "tailor the President’s use of an inherent constitutional power":

Fourth Amendment issues

The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against "unreasonable" searches and seizures by agents of the government, and, for "reasonable" searches or seizures by such agents, requires an order from a court known as a warrant. It is solely a right of the individual that neither the Executive nor Legislative branch can lawfully abrogate, not even if acting in concert: no statute can make an unreasonable search reasonable, nor a reasonable search unreasonable.

The term "unreasonable" is deliberately imprecise but connotes the sense that there is a rational basis for the search and that it is not an excessive imposition upon the individual given the motivation for and circumstances of the search, and is in accordance with customary societal norms. It is conceived that a judge will be sufficiently distanced from the authorities seeking a warrant that he can render an impartial decision unaffected by any prejudices or improper motivations they (or the legislators who enacted a law they are seeking to enforce) may harbor.

An individual who believes that his Fourth Amendment rights have been violated by an unreasonable search or seizure may file a civil suit for monetary compensation and to seek a court-ordered end to a pattern or practice of such unlawful activities by government authorities. Such civil rights violations are sometimes punishable by state or federal law. Evidence obtained in an unlawful search or seizure is generally inadmissible in a criminal trial.

The law countenances searches without warrant as "reasonable" in numerous circumstances, among them (see below): the persons, property, and papers of individuals crossing the border of the United States and those of paroled felons; in prisons, public schools and government offices; and of international mail. Although these are undertaken as a result of statute or Executive order, they should not be seen as deriving their legitimacy from these, rather, the Fourth Amendment explicitly allows reasonable searches, and the government has instituted some of these as public policy.

The Supreme Court held in ''Katz v. United States'' (1967), that the monitoring and recording of private conversations within the United States constitutes a "search" for Fourth Amendment purposes, and therefore the government must generally obtain a warrant before undertaking such domestic wiretapping.

The protection of "private conversations" has been held to apply only to conversations where the participants have not merely a desire but a reasonable expectation that the conversation is indeed private to themselves and that no party whatsoever is listening in. In the absence of such a reasonable expectation, the Fourth Amendment does not apply, and surveillance without warrant does not violate it. Privacy is clearly not a reasonable expectation in communications to persons in the many countries whose governments openly intercept electronic communications, and is of dubious reasonability in countries against which the United States is waging war.

The law also recognizes a distinction between domestic surveillance taking place within U.S. borders and foreign surveillance of non-U.S. persons either in the U.S. or abroad. In ''United States v. Verdugo-Urquidez'', the Supreme Court reaffirmed the principle that the Constitution does not extend protection to non-U.S. persons located outside of the United States, so no warrant would be required to engage in even physical searches of non-U.S. citizens abroad.

The U.S. Supreme Court has never ruled on the constitutionality of warrantless searches targeting foreign powers or their agents within the US. There have been, however, a number of Circuit Court rulings upholding the constitutionality of such warrantless searches. In USA v. Osama bin Laden, the Second Circuit noted that "no court, prior to FISA, that was faced with the choice, imposed a warrant requirement for foreign intelligence searches undertaken within the United States." Assistant Attorney General William Moschella in his written response to questions from the House Judiciary Committee explained that in the administration's view, this unanimity of pre-FISA Circuit Court decisions vindicates their argument that warrantless foreign-intelligence surveillance authority existed prior to FISA and since, as these ruling indicate, that authority derives from the Executive's inherent Article II powers, they may not be encroached by statute. In 2002, the United States Foreign Intelligence Surveillance Court of Review (Court of Review) met for the first time and issued an opinion (''In Re Sealed Case No. 02-001'') which seems to echo that view. They too noted all the Federal courts of appeal having looked at the issue had concluded that there was constitutional power for the president to conduct warrantless foreign intelligence surveillance. Furthermore, based on these rulings it "took for granted such power exits" and ruled that under this presumption, "FISA could not encroach on the president's constitutional power." Professor Orin Kerr argues in rebuttal that the part of ''In Re Sealed Case'' that dealt with FISA (rather than the Fourth Amendment) was nonbinding obiter dicta and that the argument does not restrict Congress's power to regulate the executive in general.

Harold Koh, dean of Yale Law School, Suzanne Spaulding, former general counsel for the Intelligence Committees of the House and Senate, and former Counsel to the President John Dean, contend that FISA clearly makes the wiretapping illegal and subject to the criminal penalties of FISA, (in seeming disagreement with the FISA Court of Review finding above) and that the president's own admissions already constitute sufficient evidence of a violation of the Fourth Amendment, without requiring further factual evidence. Professor John C. Eastman, in his analysis, prepared at the behest of the House Judiciary Committee, comparing the CRS and DOJ reports, concluded instead that under the Constitution and ratified by both historical and Supreme Court precedent, "the President clearly has the authority to conduct surveillance of enemy communications in time of war and of the communications to and from those he reasonably believes are affiliated with our enemies. Moreover, it should go without saying that such activities are a fundamental incident of war."

Border search exception

Orin S. Kerr, associate professor of law at The George Washington University Law School and a leading scholar in the subjects of computer crime law and internet surveillance, points to an analogy between the NSA intercepts and searches allowed by the Fourth Amendment under the border search exception.

Criminal prosecution under the NSA program

Evidence gathered without warrant may raise significant Fourth Amendment issues which could preclude its use in a criminal trial. As a general rule of law, evidence obtained improperly without lawful authority, may not be used in a criminal prosecution. The U.S. Supreme Court has never addressed the constitutionality of warrantless searches (which has been broadly defined by the court to include surveillance) targeting foreign powers or their agents, the admissibility of such evidence in a criminal trial nor whether it is permissible to obtain or use evidence gathered without warrant against US persons acting as agents of a foreign power.

Presidential findings

The National Security Act of 1947 requires Presidential findings for covert acts. SEC. 503. [50 U.S.C. 413b] (a) (5) of that act states: "A finding may not authorize any action that would violate the Constitution or any statute of the United States."

District Court findings

On August 17, 2006, Judge Anna Diggs Taylor of the United States District Court for the Eastern District of Michigan ruled in ''ACLU v. NSA'' that the Terrorist Surveillance Program was unconstitutional under the Fourth and First Amendments and enjoined the NSA from using the program to conduct electronic surveillance "in contravention of [FISA or Title III]". In her ruling, she wrote:

Even some legal experts who agreed with the outcome have criticized the reasoning set forth in the opinion Others have argued that the perceived flaws in the opinion in fact reflect the Department of Justice's refusal to argue the legal merits of the program (they chose to focus solely on arguments about standing and state secrets grounds).

On October 4, 2006, a panel of the United States Court of Appeals for the Sixth Circuit unanimously ruled that the government can continue the program while it appeals the lower court decision.

On July 6, 2007 the Sixth Circuit dismissed the case, finding that the plaintiffs had no standing.

The Court found that:

Corporate confidentiality analysis

Corporate secrecy is also an issue. Wired reported: In a letter to the EFF, AT&T; objected to the filing of the documents in any manner, saying that they contain sensitive trade secrets and could be "used to 'hack' into the AT&T; network, compromising its integrity." However, Chief Judge Vaughn Walker stated, during the September 12, 2008 hearing in the class-action lawsuit filed by the EFF, that the Klein evidence could be presented in court, effectively ruling that AT&T;'s trade secret and security claims were unfounded.

Third-party legal analytical arguments

Arguing that the program is legal or probably legal based upon War Powers Resolution

The majority of legal arguments supporting the NSA warrantless surveillance program have been based on the War Powers Resolution. There have not been any other noteworthy types of supporting legal arguments. The War Powers Resolution has been questioned as unconstitutional since its creation, and its adaptation to the NSA warrantless surveillance program has been questionable. John C. Eastman, Chapman Law professor and Director of the Claremont Institute Center for Constitutional Jurisprudence, wrote in a letter to House Judiciary Committee Chairman James Sensenbrenner on January 27, 2006, that the Congressional Research Service's assessment was institutionally biased against the President, ignored key constitutional text and Supreme Court precedent, and that the case made by the Department of Justice in support of the President's authority to conduct surveillance of enemy communications in time of war was compelling.

Robert Turner, Associate Director of the Center for National Security Law at the University of Virginia, testified before Congress on March 31, 2006, that "I believe the President has this authority by virtue of his “executive Power” vested in him by Article II, Section 1, of the Constitution. And if he needed any additional authority, the AUMF statute—enacted with but a single dissenting vote in the entire Congress—clearly empowers him to exercise the intelligence-gathering component of his Commander in Chief power as well."

Michael Stokes Paulsen, Professor at the University of St. Thomas, in a debate with Professors Heidi Kitrosser and Dale Carpenter of University of Minnesota Law School entitled ''Presidential Powers in Time of War''

Letter from Senator Pat Roberts to Senator Arlen Specter Senator defending NSA program legality, February 3, 2006

War Powers Resolution used against US citizens in an undeclared war and without Authorization for Use of Military Force is unconstitutional

Some people assert that the Patriot Act is not unconstitutional as pertaining to its implications on US citizens. Their arguments are based on the assertion that government has unlimited powers to protect against enemies during wartime. There have been no Declarations of war by the US that could include a direct declaration of war against US citizens. Under the War Powers Resolution the only option otherwise was to enact an authorization of the use of military force (which has been seen as unconstitutional since its creation. Under the War Powers Resolution Authorization for Use of Military Force Against Terrorists (AUMF) was enacted. The AUMF has been used as a basis for justifying the Patriot Act and related laws. The AUMF strictly states in Section 2: ''(a) IN GENERAL- That the President is authorized 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.'' This declaration of war only goes so far though. Since it clearly identifies the enemy "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" & it states a war-time goal of " in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." Therefore these "nations, organizations or persons" would have had to have been identified as having "planned, authorized, committed, or aided the (9/11) terrorist attacks... or harbored such organizations or persons." Since the language in the declaration of war clearly states that the declared enemy had to have been involved with a specific aspect of causing (planned, authorized, committed, aided, or harbored) 9/11,the enforcement of such policies is legally limited to those parties as well. The application of wartime powers worldwide (and within USA) assumed under these pretenses can be seen as an implicit interpretation of the law, although it explicitly states that the enemies must have been involved with 9/11.

Since no US citizens have been identified as being involved in the 9/11 attacks, and since AUMF strictly states that war-time enemies are those who were involved in 9/11, extending these war-time powers to US citizens can be seen as unconstitutional or an undeclared war.

While the Patriot Act does not explicitly state that its powers are based on the AUMF, the opinions that its resulting actions are constitutional are. Without a wartime declaration or Authorization for Use of Military Force against a particular group, the US government would not have the ability to adopt limitless constitution-breaking powers, as such is strictly forbidden in the constitution. The Tenth Amendment explicitly states that powers not granted to the federal government nor prohibited to the states by the Constitution of the United States are reserved to the states or the people." The Ninth Amendment states that "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."

The Ninth Amendment bars denial of unenumerated rights if the denial is based on the ''enumeration of certain rights'' in the Constitution, but does not bar denial of unenumerated rights if the denial is based on the ''enumeration of certain powers'' in the Constitution. Hence since the war-time powers have not been legally enacted against US citizens the enumeration of certain powers does not override the enumeration of certain rights. Without the backing of a declaration of war stating the US citizens as an enemy, the powers that have been enacted against US citizens under the Patriot Act are unconstitutional (as they violate 1st, 4th and other amendments).

Arguing that the program is illegal or probably illegal

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 and those who argue that FISA (perhaps purposefully) raises a Constitutional conflict which should be resolved in Congress' favor.

On February 13, 2006, the American Bar Association (ABA) denounced the warrantless domestic surveillance program, accusing the President of exceeding his powers under the Constitution. The ABA also formulated a policy opposing any future government use of electronic surveillance in the United States for foreign intelligence purposes without obtaining warrants from a special secret court as required by the 1978 Foreign Intelligence Surveillance Act.

According to a report in The Boston Globe on February 2, 2006 three law professors, David D. Cole (Georgetown University), Richard Epstein (University of Chicago), and Philip Heymann (Harvard), said that what Bush is doing is unprecedented. Bush's claim that other presidents asserted that wartime powers supersede an act of Congress, "is either intentionally misleading or downright false," Cole said. He said Bush is misstating the In Re Sealed Case No. 02-001 ruling which supported Congressional regulation of surveillance. Epstein believes the United States Supreme Court would reject the Administration's argument and said, "I find every bit of this legal argument disingenuous...The president's position is essentially that (Congress) is not doing the right thing, so I'm going to act on my own." Professor Heymann, a former deputy US attorney general said, "The bottom line is, I know of no electronic surveillance for intelligence purposes since the Foreign Intelligence Surveillance Act was passed that was not done under the . . . statute." Cole, Epstein, Heynmann and eleven other prominent legal scholars (Beth Nolan, Curtis Bradley, Geoffrey Stone, Harold Hongju Koh, Kathleen Sullivan, Laurence Tribe, Martin Lederman, Ronald Dworkin, Walter Dellinger, William S. Sessions and William Van Alstyne) wrote a letter to Congress that appeared in the New York Review of Books on February 9, 2006. They wrote that "the Justice Department's defense of what it concedes was secret and warrantless electronic surveillance of persons within the United States fails to identify any plausible legal authority for such surveillance. Accordingly the program appears on its face to violate existing law." They summarized: Professor Peter Swire, the C. William O’Neill Professor of Law at the Ohio State University Moritz College of Law and Visiting Senior Fellow at the Center for American Progress, wrote a detailed "Legal FAQs on NSA Wiretaps" concluding that "[b]ased on the facts available to date, the wiretap program appears to be clearly illegal." Prof. Swire has previously written a very detailed history and analysis of the Foreign Intelligence Surveillance Act, published in Volume 72 of the George Washington Law Review, at 1306 (2004) and previously chaired a White House Working Group, including the intelligence agencies, on how to update electronic surveillance law for the Internet Age. Robert Reinstein, dean of the law school at Temple University, has asserted that the warrantless domestic spying program is

*Mr. Reinstein asserted that the broad consensus among legal scholars and national security experts is similar to his own analysis, and he predicted that the courts will rule that the program is unconstitutional. New York Times

Edward Lazarus, author, law professor and former U.S. Supreme Court clerk and federal prosecutor, has argued in articles such as "Warrantless Wiretapping: Why It Seriously Imperils the Separation of Powers, And Continues the Executive's Sapping of Power From Congress and the Courts", that "Unilateral executive power is tyranny, plain and simple". Orin S. Kerr, a professor at The George Washington University Law School, prominent blogger and scholar of the legal framework of electronic surveillance has opined that the issues are complex, but that after his first analysis he concluded that the wiretapping probably does not infringe on Fourth Amendment constitutional rights, though it probably does violate FISA. President Bush has maintained he acted within "legal authority derived from the constitution" and that Congress "granted [him] additional authority to use military force against al Qaeda". However, while the President may argue that the necessary statutory authority to override FISA's warrant provisions is provided by the authorization to use "all necessary force" in the employment of military resources to protect the security of the United States, and that the use of wiretapping is a qualifying use of force (under the terms of the authorization for the use of military force against al-Qaida as found in Senate Joint Resolution 23, 2001), Kerr believes that this justification is ultimately unpersuasive, as is the argument that the President's power as the Commander-in-Chief (as derived from Article Two of the United States Constitution) provides him with the necessary constitutional authority to circumvent FISA during a time of war. Kerr cautiously estimates that about eight of the nine Supreme Court justices would agree with him that Article Two cannot trump statutes like FISA. Robert M. Bloom, Professor of Law at Boston College, says this in a paper entitled "''The Constitutional Infirmity of Warrantless NSA Surveillance: The Abuse of Presidential Power and the Injury to the Fourth Amendment,''" published on February 19, 2007, which he co-authored with William J. Dunn, a former Defense Department intelligence analyst, also of BC Law School: Glenn Greenwald, constitutional lawyer, author and prominent blogger (Greenwald's legal blog) arguing that the NSA program is illegal summarized:

*After the Supreme Court's judgment in Hamdan v. Rumsfeld, Greenwald wrote: "The administration’s theories to justify the President’s lawbreaking have always been frivolous. But for those pretending not to recognize that fact, the Supreme Court has so ruled."

Jordan Paust, Mike and Teresa Baker College Professor of Law at the University of Houston Law Center, rejected the administration's legal arguments for the NSA program writing:

William C. Banks, Professor of Law and Director of the Institute for National Security and Counterterrorism at Syracuse University argued that the NSA program is unconstitutional, writing that "in the unlikely event that legal authority for the NSA program can be found, this domestic spying violates the Fourth Amendment."

John Dean, Author and former White House Counsel to President Richard Nixon testified before Congress on March 31, 2006, on the issue of censuring George Bush for authorizing the NSA wiretap program, saying "I hope... you will not place the president above the law by inaction. As I was gathering my thoughts yesterday to respond to the hasty invitation, it occurred to me that had the Senate or House, or both, censured or somehow warned Richard Nixon, the tragedy of Watergate might have been prevented. Hopefully the Senate will not sit by while even more serious abuses unfold before it."

Technical and operational details

Because of its highly classified status, little is publicly known about the actual implementation of the NSA domestic electronic surveillance program. Mark Klein, a retired AT&T; communications technician, submitted an affidavit including limited technical details known to him personally in support of a class-action lawsuit filed by the Electronic Frontier Foundation in federal district court in San Francisco in January 2006 on behalf of AT&T; customers who alleged that they had been damaged by the telecommunications corporation's cooperation with the NSA. The lawsuit is called Hepting v. AT&T;.

A January 16, 2004 statement by Mr. Klein includes additional technical details regarding the secret 2003 construction of an NSA-operated monitoring facility in Room 641A of 611 Folsom Street in San Francisco, the site of a large SBC phone building, three floors of which are occupied by AT&T.;

According to Klein's affidavit, the NSA-equipped room uses equipment built by Narus Corporation to intercept and analyze communications traffic, as well as perform data-mining functions.

In an article appearing in the January/February 2008 issue of the Institute of Electrical and Electronics Engineers journal of Security and Privacy, noted technology experts from academia and the computing industry analyzed potential security risks posed by the NSA program, based on information contained in Klein's affidavits as well as those of expert witness J. Scott Marcus, a designer of large-scale IP-based data networks, former CTO at GTE Internetworking and at Genuity, and former senior advisor for Internet Technology at the US Federal Communications Commission. They concluded that the likely architecture of the system created serious security risks, including the danger that such a surveillance system could be exploited by unauthorized users, criminally misused by trusted insiders, or abused by government agents.

Related issues

Warrantless wiretaps and the history of FISA

The administration has compared the NSA warrantless surveillance program with historical wartime warrantless searches in the United States, going back to George Washington.

Critics have pointed out that Washington's surveillance occurred before the existence of the U.S. Constitution, and the other historical precedents cited by the administration were before the passage of FISA, and therefore did not directly contravene federal law. Abuses of electronic surveillance by the federal government such as Project SHAMROCK led to reform legislation in the 1970s. Advancing technology began to present questions not directly addressed by the legislation as early as 1985.

Executive orders by previous administrations including Clinton's and Carter's authorized the attorneys general to exercise authority with respect to both options under FISA. In Clinton's executive order, he authorized his attorney general "[pursuant] to section 302(a)(1)" to conduct physical searches without court order "if the Attorney General makes the certifications required by that section".

Sufficiency of FISA in the war on terror

On December 19, 2005, U.S. Dept. of Justice Assistant Attorney General for Legislative Affairs, William Moschella, wrote a letter to the Chairs and Ranking Members of the U.S. Senate and House of Representatives, defending the NSA program:

U.S. District Judge Dee Benson of Utah, also of the FISC, stated that he was unclear on why the FISC's emergency authority would not meet the administration's stated "need to move quickly." He and fellow judges on the court attended a briefing in January, called by presiding Judge Colleen Kollar-Kotelly. Reportedly, the court was also concerned about "whether the administration had misled their court about its sources of information on possible terrorism suspects . . . [as this] could taint the integrity of the court's work."

In part to address this problem, several commentators have raised the issue of whether, regardless how one feels about the authorization issue, FISA needs to be amended to address specific foreign intelligence needs, current technology developments, and advanced technical methods of intelligence gathering, in particular to provide for programmatic approvals of general or automated surveillance of foreign terrorist communications, the results of which could then legally be used as predicate for FISA warrants. In a recent essay, Judge Richard A. Posner opined that FISA “retains value as a framework for monitoring the communications of known terrorists, but it is hopeless as a framework for detecting terrorists. [FISA] requires that surveillance be conducted pursuant to warrants based on probable cause to believe that the target of surveillance is a terrorist, when the desperate need is to find out who is a terrorist.” For other examples, see ''Fixing Surveillance''; ''Why We Listen'', ''The Eavesdropping Debate We Should be Having''; ''A New Surveillance Act''; and ''A historical solution to the Bush spying issue'' (the latter setting out a historical perspective on the need for programmatic approval in foreign intelligence surveillance generally). And see ''Whispering Wires and Warrantless Wiretaps'' (discussing how FISA is inadequate to address certain technology developments).

During the investigational phase of the 9/11 Commission, a letter written by Special Agent Coleen Rowley, in her capacity as legal council to the FBI's Minneapolis Field Office, to FBI Director Robert Mueller came to the attention of the committee. In that letter and in subsequent testimony before the commission and the Senate Judiciary Committee, SA Rowley recounted among other things, the manner in which FISA procedural hurdles had hampered the FBI's investigation of Zacarias Moussaoui (the so called "20th hijacker") prior to the 9/11 attacks. Among the factors she cited were the complexity of the application and the detailed information required and confusion by field operatives about the standard of probable cause required by the FISC and the strength of the required link to a foreign power. At his appearance before the Senate Judiciary Committee in June, 2002, Director Mueller in response to questions about the Rowley allegations testified that unlike normal criminal procedures, FISA warrant applications are "complex and detailed", requiring the intervention of FBI Headquarters (FBIHQ) personnel trained in a specialized procedure (the "Woods" procedure) to ensure accuracy.

FISA exclusivity controversy

On January 19, 2006 the Department of Justice published a memorandum that stated in part:

The following day, 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." This non-binding resolution died in the Senate without being brought up for debate or being voted upon, so cannot be considered the "sense of the Senate."

On February 2, 2006 the same 14 constitutional scholars and former government officials responded:

On June 29, 2006, in a detainee case Hamdan v. Rumsfeld, the Supreme Court rejected an analogous AUMF argument. Writing for the majority, Justice Stevens, while ruling that "the AUMF activated the President’s war powers, and that those powers include the authority to convene military commissions in appropriate circumstances" (citations omitted), held there was nothing in the AUMF language "even hinting that Congress intended to expand or alter the authorization set forth in Article 21 of the Uniform Code of Military Justice. The distinction drawn by J. Stevens in Hamdan between that case and Hamdi, where the AUMF language ''was'' found to override the explicit language regarding detention in 18 U.S.C. § 4001(a) is that the instant case would require a "Repeal by implication" of the UCMJ. How this distinction would be drawn in future cases involving the NSA program is unclear.

Separation of powers and Unitary Executive theory

The administration argues that the power to conduct the warrantless surveillance within U.S. borders was granted by the Constitution and by a statutory exemption, as is advocated by the Unitary Executive theory using the interpretation of John Yoo et al.. He argues that the President had the "inherent authority to conduct warrantless searches to obtain foreign intelligence information."

The United States Court of Appeals for the District of Columbia Circuit has ruled that the President's authority as commander-in-chief extends to the "independent authority to repel aggressive acts...without specific congressional authorization" and without court review of the "level of force selected." Whether such declarations applying to foreign intelligence are in compliance with FISA has been examined by few courts since the passage of the act in 1978.

It is also uncertain whether the allegation that surveillance involves foreign parties suffices to extend law governing the president's military and foreign affairs powers to cover domestic activities. The Supreme Court voiced this concern in ''Hamdi v. Rumsfeld'', ruling that ''"a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens."''

The Congressional Research Service, a nonpartisan research arm of the Library of Congress, released a detailed report on NSA electronic surveillance, "Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information," on January 5, 2006, which concluded:

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Classified information

Leaking of classified information

There is no single law that criminalizes the leaking of all classified information. There are certain statutes that prohibit certain types of classified information being leaked under certain circumstances. One such law is ; it was tacked on to the Espionage Act of 1917 during the Second Red Scare in 1950. It is the 'SIGINT' statute, meaning signals intelligence. This statute says that

This statute is not limited in application to only federal government employees. However, the Code of Federal Regulations suggests the statute may apply primarily to the "[c]ommunication of classified information by Government officer or employee". 50 USCS §783 (2005).

There is a statutory procedure for a "whistleblower" in the intelligence community to report concerns with the propriety of a secret program, The ''Intelligence Community Whistleblower Protection Act'' of 1998, Pub. L. 105-272, Title VII, 112 Stat. 2413 (1998). Essentially the Act provides for disclosure to the agency Inspector General, and if the result of that is unsatisfactory, appeal to the Congressional Intelligence Committees. A former official of the NSA, Russ Tice, has asked to testify under the terms of the Intelligence Community Whistleblower Protection Act, in order to provide information to these committees about "highly classified Special Access Programs, or SAPs, that were improperly carried out by both the NSA and the Defense Intelligence Agency." (Washington Times)

''Executive Order 13292'', which sets up the U.S. security classification system, provides (Sec 1.7) that "[i]n no case shall information be classified in order to conceal violations of law".

Given doubts about the legality of the overall program, the classification of its existence may not have been valid under E.O. 13292.

Publication of classified information

It is unlikely that the New York Times could be held liable for publishing its article under established Supreme Court precedent. In ''Bartnicki v. Vopper,'' 532 U.S. 514, the Supreme Court held that the First Amendment precluded liability for a media defendant for publication of illegally obtained communications that the media defendant itself did nothing illegal to obtain if the topic involves a public controversy. The high court in ''Bartnicki'' accepted due to the suit's procedural position, that interception of information which was ultimately broadcast by the defendant radio station was initially illegal (in violation of ECPA), but nonetheless gave the radio station a pass because it did nothing itself illegal to obtain the information.

Nor could the government have prevented the publication of the classified information by obtaining an injunction. In the Pentagon Papers case, (''New York Times Co. v. U.S.'' (403 US 713)), the Supreme Court held in a 6-3 decision that injunctions against the New York Times publication of classified information (''United States-Vietnam Relations, 1945-1967: A Study Prepared by The Department of Defense'', a 47 volume, 7,000-page, top-secret United States Department of Defense history of the United States' political and military involvement in the Vietnam War from 1945 to 1971) were unconstitutional prior restraints and that the government had not met the heavy burden of proof required for prior restraint.

The ''1917 Espionage Act'', aside from the SIGINT statute discussed above, only criminalizes 'national defense' information, not 'classified' information. Although the Justice Department as a matter of law sees no exemption for the press, as a matter of fact it has refrained from prosecuting:

On the other hand, Sean McGahan of Northeastern University, told the Washington Post,

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Responses and analyses

Administration response to press stories

On December 17, 2005, President George W. Bush addressed the growing controversy in his weekly radio broadcast. He stated that he was using his authority as President, as Commander in Chief of the US military, and such authority as the United States Congress had given him, to intercept international communications of "people with known links to al Qaeda and related terrorist organizations". He added that before intercepting any communications, "the government must have information that establishes a clear link to these terrorist networks." He speculated that had the right communications been intercepted, perhaps the 9/11 attacks could have been prevented. He said the NSA program was re-authorized every 45 days, having at that time been reauthorized "more than 30 times"; it was reviewed by the Justice Department and NSA lawyers "including NSA's general counsel and inspector general", and Congress leaders had been briefed "more than a dozen times". President's December 17, 2005 Radio Address

In a speech in Buffalo, New York on April 20, 2004, he had said that:

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And again, during a speech at Kansas State University on January 23, 2006, President Bush mentioned the program, and added that it was "what I would call a terrorist surveillance program", intended to "best... use information to protect the American people", and that:

During a speech in New York on January 19, 2006 Vice President Dick Cheney commented on the controversy, stating that a "vital requirement in the war on terror is that we use whatever means are appropriate to try to find out the intentions of the enemy," that complacency towards further attack was dangerous, and that the lack of another major attack since 2001 was due to "round the clock efforts" and "decisive policies", and "more than luck." He stated that:

In a press conference on December 19 held by both Attorney General Alberto Gonzales and General Michael Hayden, the Principal Deputy Director for National Intelligence, General Hayden claimed, "This program has been successful in detecting and preventing attacks inside the United States." He stated that even an emergency authorization under FISA required marshaling arguments and "looping paperwork around". Hayden also implied that decisions on whom to intercept under the wiretapping program were being made on the spot by a shift supervisor and another person, but refused to discuss details of the specific requirements for speed.

Beginning in mid-January 2006 there was an increase in public discussion on the legality of the terrorist surveillance program by the Administration.

The United States Department of Justice sent a 42 page white paper to Congress on January 19, 2006 stating the grounds upon which it was felt the NSA program was entirely legal, which restates and elaborates on reasoning Attorney General Alberto Gonzales used at the December press conference when the legality of the program was questioned. Gonzales spoke further at Georgetown University January 24, claiming that Congress had given the President the authority to order the surveillance without going through the courts, and that normal procedures to order surveillance were too slow and cumbersome.

General Hayden stressed the NSA respect for the Fourth Amendment, stating at the National Press Club on January 23, 2006 that, "Had this program been in effect prior to 9/11, it is my professional judgment that we would have detected some of the 9/11 al Qaeda operatives in the United States, and we would have identified them as such."

Some sources state that despite the NSA program, "[t]he agency ... still seeks warrants to monitor entirely domestic communications." An article from February 5, 2006 in the Washington Post reported that the program had netted few suspects.

In a speech on January 25, 2006, Bush said, "I have the authority, both from the Constitution and the Congress, to undertake this vital program," telling the House Republican Caucus at their February 10 conference in Maryland that "I wake up every morning thinking about a future attack, and therefore, a lot of my thinking, and a lot of the decisions I make are based upon the attack that hurt us."

President Bush reacted to a May 10 domestic call records article in ''USA Today'' by restating his position, that it is "not mining or trolling through the personal lives of millions of innocent Americans."

Congressional response

Three days after news broke about the warrantless wiretapping program, a bipartisan group of Senators—Democrats Dianne Feinstein of California, Carl Levin of Michigan, Ron Wyden of Oregon and Republicans Chuck Hagel of Nebraska and Olympia Snowe of Maine, sent a letter dated December 19, 2005 to Judiciary and Intelligence Committees chairmen and ranking members requesting the two committees to "seek to answer the factual and legal questions" about the program.

On January 20, 2006, in response to the administration's asserted legal justification of the NSA program being based in part on the AUMF, Senators Leahy (D-VT) and Kennedy (D-MA) introduced Resolution 350 to the Judiciary Committee that purported to express a "sense of the Senate" that the AUMF "does not authorize warrantless domestic surveillance of United States citizens". Resolution 350 was never reported out of committee and has no effect.

In introducing their resolution to committee, they quoted Justice O'Connor's opinion that even war "is not a blank check for the President when it comes to the rights of the Nation's citizens."

Additionally, they asserted their opinion that the US DOJ legal justification for the NSA program was a "manipulation of the law" similar to other "overreaching" and "twisted interpretations" in recent times. Leahy and Kennedy also asserted that Attorney General Gonzales "admitted" at a press conference on December 19, 2005, that the Administration did not seek to amend FISA to authorize the NSA spying program because it was advised that "it was not something we could likely get." (However, as noted below under "Proposed Amendments to FISA", Gonzales has made clear that what he actually said was that such an amendment was "not something [they] could likely get" without disclosing the nature of the program and operational limitations and that it was believed that such disclosure would be damaging to national security.)

Leahy and Kennedy also asserted that in their view the procedures being followed in the NSA program, specifically, the ongoing 45 day reapproval by the Attorney General, the White House Counsel and the Inspector General of the National Security Agency, was "not good enough" because each of these is an executive branch appointees who in turn report directly to the Executive. Finally, they concluded that Congressional and Judicial oversight were fundamental and should not be unilaterally discarded. Resolution 350 has not been reported out of committee.

Senate Judiciary Committee Chairman Arlen Specter, in a three-page letter dated June 7, 2006 to Vice President Dick Cheney, to prompt the Administration to provide: input on his proposed legislation, briefings to his committee about the program, and more cooperation with Congressional oversight. Specter also wrote about the Vice President lobbying the other Republican members of the Judiciary Committee about compelling telephone companies to testify about classified information.

In February 2008, the Bush Administration backed a new version of the Foreign Intelligence Surveillance Act (FISA) that would grant telecom companies retroactive immunity from lawsuits stemming from the alleged surveillance. On March 13, 2008 the U.S. House of Representatives held a secret session to discuss classified information relating to the new FISA. On March 14, the House passed a bill that would not grant the immunity sought by the Bush administration.

Legal developments

Congressionally proposed FISA amendments

The Administration has contended that amendment was unnecessary because they believe that the President had inherent authority to approve the NSA program, and that the process of amending FISA might require disclosure of classified information that could harm national security. In response, Senator Leahy said, "If you do not even attempt to persuade Congress to amend the law, you must abide by the law as written." President Bush claims that he can ignore the law because he claims that the Constitution gives him "inherent authority" to do so.

However, Attorney General Alberto Gonzales has stated that the Bush administration chose not to ask Congress for an amendment to FISA to authorize such wiretaps explicitly because it would have been difficult to get such an amendment without compromising classified information relating to operational details. "This is not a backdoor approach. We believe Congress has authorized this kind of surveillance. We have had discussions with Congress in the past -- certain members of Congress -- as to whether or not FISA could be amended to allow us to adequately deal with this kind of threat, and we were advised that that would be difficult, if not impossible." Some politicians and commentators have used this statement -- “would be difficult, if not impossible” -- to argue that the Administration declined to seek a specific amendment to FISA because the administration believed Congress would have rejected it. However, later in the same briefing Gonzales clarified his earlier remark to say that the administration had been advised that amendment was something they were not likely to get "without jeopardizing the existence of the program." At another briefing, two days later, Gonzales made this point again:

Finally, in his written ''Responses to Questions from Senator Specter'' in which Specter specifically asked why the administration had not sought to amend FISA to accommodate the NSA program, Gonzales wrote:

Nevertheless, competing legislative proposals to authorize the NSA program subject to Congressional or FISA court oversight have been proposed and have been the subject of Congressional hearings throughout the summer.

On March 16, 2006, Senators Mike DeWine (R-OH), Lindsey Graham (R-SC), Chuck Hagel (R-NE), and Olympia Snowe (R-ME) introduced the Terrorist Surveillance Act of 2006 (S.2455), under which the President would be given certain additional limited statutory authority to conduct electronic surveillance of suspected terrorists in the United States subject to enhanced Congressional oversight. Also on March 16, 2006, Senator Arlen Specter (R-PA) introduced The National Security Surveillance Act of 2006 (S.2453), which would amend FISA to grant retroactive amnesty for warrantless surveillance conducted under presidential authority and provide FISA court (FISC) jurisdiction to review, authorize, and oversight "electronic surveillance programs." On May 24, 2006, Senator Specter and Senator Dianne Feinstein (D-CA) introduced the Foreign Intelligence Surveillance Improvement and Enhancement Act of 2006 (S.3001) asserting FISA as the exclusive means to conduct foreign intelligence surveillance.

On September 13, 2006, the Senate Judiciary Committee voted to approve all three mutually exclusive bills, thus, leaving it to the full Senate to resolve.

On July 18, 2006, U.S. Representative Heather Wilson (R-NM) introduced the Electronic Surveillance Modernization Act (H.R. 5825). Wilson's bill would give the President the authority to authorize electronic surveillance of international phone calls and e-mail linked specifically to identified terrorist groups immediately following or in anticipation of an armed or terrorist attack on the United States. Surveillance beyond the initial authorized period would require a FISA warrant or a presidential certification to Congress. On September 28, 2006 the House of Representatives passed Wilson's bill and it was referred to the Senate.

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 (already 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).

FISA court order

On January 18, 2007, Attorney General Alberto Gonzales told the Senate Judiciary Committee "Court orders issued last week by a Judge of the Foreign Intelligence Surveillance Court will enable the government to conduct electronic surveillance – very specifically, surveillance into or out of the United States where there is probable cause to believe that one of the communicants is a member or agent of al Qaeda or an associated terrorist organization – subject to the approval of the FISA Court. We believe that the court’s orders will allow the necessary speed and agility the government needs to protect our Nation from the terrorist threat." The ruling by the FISA Court was the result of a two-year effort between the White House and the court to find a way to obtain court approval that also would "allow the necessary speed and agility" to find terrorists, Gonzales said in a letter to the top committee members. The "innovative" court order on Jan. 10 will do that, Gonzales wrote. Senior Justice department officials would not say whether the orders provided individual warrants for each wiretap or whether the court had given blanket legal approval for the entire NSA program. The American Civil Liberties Union said in a statement that "without more information about what the secret FISA court has authorized, there is no way to determine whether the NSA's current activities are lawful." Chip Pitts of Stanford Law School argues that substantial legal questions remain regarding the core NSA program as well as the related data mining program (and the use of National Security Letters), despite the government's apparently bringing the NSA program within the purview of the FISA law.

FISCR Ruling of August 2008

In August 2008, the United States Foreign Intelligence Surveillance Court of Review (FISCR) affirmed the constitutionality of the Protect America Act of 2007 in a heavily redacted opinion released on January 15, 2009, which is only the second such public ruling since the enactment of the FISA Act.

See also

Communications Assistance For Law Enforcement Act

Congressional response to the NSA warrantless surveillance program

Criticisms of the War on Terrorism

Data mining

Deep packet inspection

ECHELON

Foreign Intelligence Surveillance Act

General Michael Hayden

Hepting v. AT&T;

Information Awareness Office

Mark Riebling

Mass Surveillance

NSA call database

Reichstag Fire Decree

Room 641A

Secure Communication

Terrorist surveillance program - details of the program itself

The First Circle, Alexander Solzhenytsin

References

External links

Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information, Congressional Research Service, January 5, 2006 (HTML)

U.S. Department of Justice White Paper on NSA Legal Authorities, ''Legal Authorities Supporting the Activities of the National Security Agency Described by the President'',January 19, 2006

Department of Justice Letter to the Senate Select Intelligence Committee 22 December (PDF) via Federation of American Scientists

Justice Dept Supplemental Brief to the U.S. Foreign Intelligence Court of Review

The Foreign Intelligence Surveillance Act: An Overview of the Statutory Framework and Recent Judicial Decisions - Congressional Research Service - April 2005 via Federation of American Scientists

Statutory Procedures Under Which Congress Is To Be Informed of U.S. Intelligence Activities, Including Covert Actions, Congressional Research Service , January 18, 2006 (HTML)

FindLaw News Document Archive for National Security Agency (NSA)

Cornell Law: US CODE Title 50, Chapter 36—Foreign Intelligence Surveillance

FAS FISA Resource Page

FISA and Immunity

Presidential Powers in Time of War, a written exchange between professors at the Univ. of Minnesota School of Law

Large Cruxlux debate on legality of wiretapping program

Surveillance law resources, JURIST

ACLU Complaint (Initial Filing) against the NSA Central Security Serice and Lieutenant General Keith B. Alexander (HTML)

House Judiciary 20 January 2006 Briefing Statements, Transcript, EFF and ACLU Complaints and Related Action Documents in HTML

Response by the American Bar Association:

* Letter to George W. Bush (pdf) from ABA President Michael S. Greco, dated 13 February 2006

* Resolution (26-page pdf) from the ABA denouncing the warrantless wiretaps

David Alan Jordan, Decrypting the Fourth Amendment: Warrantless NSA Surveillance and the Enhanced Expectation of Privacy Provided by Encrypted Voice over Internet Protocol - Boston College Law Review, Vol. 47, 2006

Commentary Magazine March, 2006 Has the ''New York Times'' Violated the Espionage Act?

Of Bugs, the President, and the NSA– Douglas C. McNabb and Matthew R. McNabb, The Champion.

EFF Class Action Complaint (Initial Filing) against AT&T; (HTML)

Not Authorized By Law: Domestic Spying and Congressional Consent, JURIST

''Washington Monthly'' blog post on an opposed conservative reaction

An Open Letter to George Bush partly on this issue

T.J. Rodgers. U.S. gets closer to Orwell's Big Brother, ''San Jose Mercury News'', December 29, 2005.

FindLaw News Document Archive for National Security Agency (NSA)

The New York Review of Books: ON NSA SPYING: A LETTER TO CONGRESS(Volume 53, Number 2 · February 9, 2006)

ALEXANDER COCKBURN and JEFFREY ST. CLAIR, Time-Delayed Journalism: the NYT and the NSA's Illegal Spying Operation December 17, 2005

Gabriel Sherman, Why Times Ran Wiretap Story, Defying Bush The New York Observer, December 26, 2005

Morrison, Trevor W., "Constitutional Avoidance in the Executive Branch" . Columbia Law Review, Vol. 106, October 2006

JENNIFER VAN BERGEN, The Unitary Executive: Is The Doctrine Behind the Bush Presidency Consistent with a Democratic State? Findlaw (Monday, 9 January 2006)

Swire, Peter P., "The System of Foreign Intelligence Surveillance Law" - George Washington Law Review, Vol. 72, 2004

C-SPAN videos (require RealPlayer)

Whistleblower says NSA violations bigger United Press International, February 14, 2006

Letter from Senator Pat Roberts to Senator Arlen Specter Senator defends NSA program legality, February 3, 2006 via Federation of American Scientists

Presidential Secrecy and the NSA Spying Controversy, JURIST

NSA Eavesdropping and the Fourth Amendment, JURIST

Washington Post's overview: NSA: Spying at Home

ACLU v. NSA ruling, which held that the NSA warrantless surveillance program is illegal and unconstitutional and must be halted immediately.

"NSA warrantless wiretapping is illegal" argument diagram at HonestArgument.com

"So Judge, How Do I Get That FISA Warrant?": The Policy and Procedure for Conducting Electronic Surveillance, The Army Lawyer, October 1997

Technician Mark Klein discussing Room 641A on "Countdown", November 7, 2007

Amicus Filed in NSA Wiretapping Case

Swedish FRA granted the right to intercept all traffic at exchange points that exchange traffic that crosses Swedish borders

Category:Counter-terrorism policy of the United States Category:Emergency laws Category:Espionage Category:George W. Bush administration controversies Category:National Security Agency Category:Privacy of telecommunications Category:United States national security policy Category:Surveillance scandals Category:Mass surveillance

name	Darcy Burner
state	Washington
nominee	U.S. House of Representatives from Washington's, 8th District
election date	November 4, 2008
incumbent	Dave Reichert
opponent	Dave Reichert
birth date	November 12, 1970
residence	Carnation, Washington
alma mater	Harvard
party	Democratic Party
spouse	Mike Burner
children	1
website	http://www.darcyburner.com/ }}

Darcy Gibbons Burner (born November 12, 1970) is a Democrat from Carnation, Washington. She was a candidate for in 2006 and 2008, but narrowly lost to Congressman, and former King County Sheriff, Dave Reichert in both elections. She worked for twelve years in high technology including five years at Microsoft as a Lead Program Manager, working on .NET. Burner left Microsoft to attend law school at the University of Washington in 2004. She left her law studies in 2005 to enter her first political race against Reichert.

She is currently the president of ProgressiveCongress.org and the Progressive Congress Action Fund, 501(c) organizations founded by leaders from the Congressional Progressive Caucus and the progressive community.

Early life, education, and family

Burner was adopted at birth in Alaska and grew up in a Republican household in Nebraska farm country. Her father, Ralph Gibbons, spent 20 years in the Air Force, settling after his military retirement with his wife and five kids in Fremont, Nebraska. Burner was the Civil Air Patrol National Cadet of the Year in 1989.

In high school, Burner was a National Merit Scholar. She worked multiple jobs, both part time and full time, to earn her way through Harvard, graduating in 1996 with a B.A. in computer science with a special field of economics. She also briefly attended law school at the University of Washington in 2004. Her jobs included working for Lotus Development, Asymetrix, and, starting in 2000, as a lead product manager for Microsoft .NET.

Burner married in 1993. She and her husband Michael have a son, Henry, born in 2003. On July 1, 2008, Burner's home on Ames Lake, near Carnation, Washington, was completely destroyed by a fire that investigators believe was caused by a faulty lamp in her son's bedroom.

2006 Congressional election

Darcy Burner had been a volunteer in the unsuccessful 2004 campaign of Dave Ross for , an open seat, and was a local Democratic activist. In 2006 she became a first-time candidate running for the same seat against freshman Republican U.S. Representative Dave Reichert.

The 8th Congressional has never been won by a Democratic candidate. In 2004, however, Democratic Presidential candidate John Kerry won the district with 51% of the vote. She was a top-tier candidate of the Democratic online fundraising website ActBlue, and both national parties spent heavily on the race.

In August 2006, CQPolitics wrote: "though Reichert appears to maintain at least a slight edge in the fall contest, CQPolitics.com has changed its rating on the race to its more competitive Leans Republican category from Republican Favored." On October 11, they changed their rating to "No Clear Favorite" Multiple polls showed Burner in a virtual tie with Reichert with just weeks left before the election, and in late October the two major Seattle newspapers split in their endorsements: The ''Seattle Post-Intelligencer'' endorsed Burner while the ''Seattle Times'', which had endorsed Democrat Dave Ross in 2004, endorsed Reichert.

It took a week before enough votes had been counted to make the result clear, partly due to the flooding on Election Day that had isolated several communities in the district, and the uneven demographics of the district. Burner conceded at a press conference on November 14, 2006. Dave Reichert's final margin of victory was 7,341, just over 2.9% of the votes.

2008 election

Darcy Burner ran for the 8th district seat again in the 2008 election.

Burner outspent Dave Reichert in her campaign. She raised $3.2 million through the third quarter of 2008 and had $770,988 cash on hand at the end of September. At the same point, Reichert had raised $2.3 million and had $1.2 million cash on hand.

During the election cycle she responded to criticisms from the 2006 election that she offered "a muddled message without offering a real solution". Burner said she wanted to focus on getting the U.S. out of Iraq, and made the "Responsible Plan to End the War in Iraq" the cornerstone of her campaign. (Burner had ties to the military. Both her father and brother were veterans, and her husband was a "cold war interrogator.") Another primary focus was making health care more affordable.

Though EMILY's List endorsed Burner's campaign in November, 2007, she was briefly challenged in the 2008 Democratic primary by State Senator Rodney Tom. On the morning of September 5, 2007, Tom stepped out of the race, citing Burner's effective mobilization of the 'netroots' to raise money. Tom immediately endorsed Burner, and encouraged his donors to do the same.

She conceded November 7, 2008 after The Associated Press determined that Reichert's lead for the 8th District seat was insurmountable.

Views

Burner describes herself as a "practical progressive". Her positions on various issues include:

Reproductive rights: Pro-choice, increased access to family planning services.

Education: Supports better pay for teachers, smaller class sizes, expanded access to early childhood education and more support for college or vocational training.

Energy and Environment: Supports an energy policy that minimizes U.S. reliance on foreign and domestic oil and helps address global climate change concerns. Supports investment in energy-efficient technologies that will help create jobs in Washington State.

Foreign policy: Opposed to further overextending the U.S. military. Supports the goals of peace, prosperity, stability, and security in the Middle East, including Israel and Palestine. "Supports United Nations efforts to provide essential family planning and healthcare services to poor nations." Iraq: On March 17, 2008, Burner unveiled "A Responsible Plan to End the War in Iraq". It was endorsed by eight other Democratic challengers for Congress, as well as Major General Paul Eaton, former Security Transition Commanding General in Iraq; Dr. Lawrence Korb, former Assistant Secretary of Defense in the Reagan Administration; Capt. Larry Seaquist, former commander of the U.S.S. Iowa and former Acting Deputy Assistant Secretary of Defense for Policy Planning; and Brigadier General John Johns, specialist in counterinsurgency and nation-building. Within a week, the plan received the endorsement of an additional 24 Democratic challengers. As of May 2008 it has over 50 endorsements and been cited on the House floor.

Health care: Supports stem cell research.

Military benefits: Supports extending military health coverage to families of Reservists and National Guardsmen.

Labor: Supports a strong labor movement that can counter-balance corporate power.

Ethics: Supports ethics reform to stop the revolving door between lobbyists and Congress.

References

External links

Darcy Burner for Congress

Campaign contributions from OpenSecrets.org

Profile from Sourcewatch

A Responsible Plan to End the War in Iraq

Progressive Congress Action Fund official site

Category:American political candidates Category:Microsoft employees Category:Harvard University alumni Category:1970 births Category:Living people Category:Women in Washington (state) politics Category:Washington (state) Democrats Category:People from Fremont, Nebraska Category:Candidates in United States elections, 2008

name	Anna Eshoo
image name	Eshoo.jpg
birth date	December 13, 1942
birth place	New Britain, Connecticut
state	California
district	14th
term start	January 3, 1993
preceded	Tom Campbell
succeeded	Incumbent
party	Democratic
religion	Chaldean Catholic
spouse	George Eshoo (divorced)
children	Karen EshooPaul Eshoo
alma mater	Cañada College
occupation	communications executive, political assistant
residence	Atherton, California }}

Anna Georges Eshoo (born December 13, 1942) is the U.S. Representative for , serving since 1993. She is a member of the Democratic Party. The district, which includes part of Silicon Valley, includes the cities of Redwood City, Sunnyvale, Mountain View and Palo Alto. She is the only Member of Congress of Assyrian descent.

Family background

Anna Eshoo was born in New Britain, Connecticut, of Assyrian and Armenian heritage. Her father, Fred Georges, was a jeweler and watchmaker. She is a Chaldean Catholic and is the oldest of three children. She has a brother, Frederick Kenneth Georges, and a sister, Veronica May Georges. Her sister is married to Lawrence Patrick Purcell and they have two children, Celine and Alexander Purcell.

She was married to attorney George Eshoo and is now divorced, with two children, Karen and Paul. She now resides in Atherton, California.

Education

Associate of Arts degree, English, Cañada College, 1975

Honorary doctorate, Humane Letters, Menlo College

Fellow, Coro Foundation

Professional career

Aluminum Company of America (ALCOA), 1963–66

Arcata National Corporation, 1966–70

Political career

Chair, San Mateo Democratic Party, 1978–82

Member, Democratic National Committee, 1981–92

Chief-of-Staff to Speaker ''pro tempore'' Leo McCarthy of the California State Assembly, 1981–82

Member, San Mateo County Board of Supervisors, 1982–92

President, San Mateo County Board of Supervisors, 1986

Representative, U.S. House of Representatives, 1993–present

an at-large Democratic Whip, U.S. House of Representatives, 2003–present

U.S. House of Representatives

In 1988, in the middle of Eshoo's second term on the San Mateo Board of Supervisors, Anna Eshoo ran for Congress in what was then the 12th District, but lost narrowly to Stanford law professor Tom Campbell. However, when Campbell made an unsuccessful run for the Senate in 1992, Eshoo ran for his vacated Congressional seat, which had been renumbered the 14th as a result of redistricting. She won by 17 points, becoming the first Democrat to represent the district since its creation in 1953 (it was the 11th District from 1953 to 1983 and the 12th from 1983 to 1993). She has been reelected nine times, never facing serious opposition. Most recently, she defeated Dave Chapman on November 2, 2010, garnering nearly 70 percent of the vote.

In 2003, Eshoo was elected by her Democratic colleagues in the 108th Congress as an At-Large Democratic Whip, and she has served in that position to the present. She is currently the only Assyrian American member of Congress and one of two Armenian American members of Congress. The other Armenian-American in Congress is Jackie Speier, who represents the rest of San Mateo County.

On January 30, 2008, Rep. Eshoo formally endorsed Illinois Senator Barack Obama for President.

Issues and legislation

Anna Eshoo's complete voting record can be viewed at Vote Smart

Energy

In 2005, Eshoo worked with Nancy Pelosi to develop the Democratic Innovation Agenda, which calls for America to achieve independence from Middle East oil over the next ten years. She has led efforts to raise fuel standards for automakers, and pursued reliance on alternative energy sources both in California and nationally. Legislation includes:

''H.R. 6, Creating Long-Term Energy Alternatives for the Nation (CLEAN) Energy Act'', co-sponsor - Repeals $14 billion in subsidies to the gas and oil industries, and commits that money to renewable resources.

''H.R. 1506, Fuel Economy Reform Act'', co-sponsor - Raises fuel economy standards, with a target goal of 35 miles per gallon by 2018.

''H.R. 1590, Safe Climate Act'', co-sponsor - An emissions reduction bill which includes a provision calling for 20% of all electricity generated in the United States to come from renewable resources by 2008.

''H.R. 550, Securing America's Energy Independence Act'', co-sponsor - Extends tax credits for homeowners and business using solar energy.

''S. 2598, Strategic Petroleum Reserve Fill Suspension and Consumer Protection Act'' - Temporarily suspends filling of the Strategic Petroleum Reserve, in order to lower the cost of petroleum to consumers.

''H.R. 6074, Gas Price Relief for Consumers Act'' - Authorizes lawsuits against oil cartel members for price fixing.

''H.R. 1742, A bill to establish a program to deploy and integrate plug-in electric drive vehicles in multiple regions'', which was ultimately incorporated into the body of ''H.R. 2454, the American Clean Energy and Security Act'', which was the primary energy bill for 2009.

Click here to download a copy of Eshoo's floor statement on ''H.R. 3321, the New Direction for Energy Independence Act''.

Human rights

Anna Eshoo is a strong supporter of the gay rights movement. In 1992 when a gay bashing mailer was directed at Supervisor Tom Nolan (the first openly gay supervisor in San Mateo and her opponent for her congressional seat) Anna Eshoo stood fast in defending him, his record and years of service. She opposed the Marriage Protection Amendment and the Marriage Protection Act. Her website says the bill is "discriminatory, singling out for the first time a minority to prevent their interests from being considered by the highest courts in the land."

As one of just two Assyrian members of Congress, Eshoo has worked hard to protect indigenous Assyrian Christians in Iraq from continuing religious persecution and political exclusion. She authored an amendment to H.R. 2601, the Foreign Relations Authorization Act, requesting that "special attention should be paid to the welfare of Chaldo-Assyrians and other indigenous Christians in Iraq."

Rep. Eshoo has been a strong supporter of the Congressional resolution recognizing the Armenian Genocide. She also supports closer ties between Armenia and the U.S.

Rep. Eshoo has fought strongly against certain provisions of the Patriot Act, particularly Section 215 (Access to Business Records), which gives federal investigators the right to obtain any tangible business record without obtaining a subpoena.

Rep. Eshoo also introduced "Kevin's Law," which would have given the U.S. Department of Agriculture the power to close down plants that produce contaminated meat.

As an Assyrian and Armenian American, Rep. Eshoo is co-chair and co-founder of the Religious Minorities in the Middle East Caucus. She also serves on the Board of Advisors of THE INSTITUTE on Religion and Public Policy, a Nobel Peace Prize-nominated freedom of religion organization.

Immigration

Rep. Eshoo has worked to create a legal "pathway to citizenship" for foreign workers of all kinds, from doctors and computer programmers to migrant farm workers. She has voted to increase the annual cap on H-1B visas to allow more temporary foreign professionals to work in the United States (especially those with Master's Degrees or higher).

In her state of California, where as much as 90% of the agricultural workforce is composed of illegal immigrants, Rep. Eshoo cosponsored H.R. 371, the Agricultural Jobs Act, which would confer blue card status on illegal immigrants who had worked an agricultural job in the United States for 150 days or more. This bill never became law.

Other legislation includes:

H.R. 1275, American Dream Act, cosponsor - Allows states to provide tuition to students that are illegal immigrants, providing they meet certain criteria.

H.R. 1379, Citizen Promotion Act, cosponsor - Assists lawfully admitted aliens in becoming permanent citizens of the United States.

H.R. 2221, Uniting American Families Act, cosponsor - Amends the Immigration and Nationality Act to include "or permanent partner" where spouse occurs.

Technology

In November 2005, Rep. Eshoo led the House Democratic Caucus in introducing the "Innovation Agenda." Representative Eshoo developed this comprehensive policy in conjunction with House Democratic Leader Nancy Pelosi and others after extensive consultation with Silicon Valley and tech leaders around the country, venture capitalists, and scholars.

She authored a bill authorizing electronic signatures and introduced controversial legislation to help alleviate the proliferation of unsolicited email, known as spam. The U.S. House of Representatives passed The CAN-SPAM Act of 2003 (S. 877), which authorizes a “Do Not Spam” list, regulates commercial email, and imposes fines on spammers. Eshoo authored the Consumer Internet Privacy Enhancement Act of 2001 (H.R. 237), created a program to provide discounts to schools and libraries for Internet access, and authored the Computer Donation Incentive Act.

Rep. Eshoo introduced HR 2428, the Broadband Conduit Deployment Act of 2009. The bill would require new federal road projects to include plastic conduits buried along the side of the roadway, and enough of them to "accommodate multiple broadband providers." “According to industry experts, more than half of the cost of new broadband deployment is attributable to the expense of tearing up and repaving roads,” said Rep. Eshoo. “By putting the broadband conduit in place while the ground beneath the roadways is exposed, we will enable any authorized communications provider to come in later and install fiber-optic cable at far less cost.” The bill is supported by Google.

Together with Rep. Edward Markey Eshoo introduced the Internet Freedom Preservation Act of 2009, which would make Net Neutrality the law.

Rep. Eshoo currently serves as co-chair of the Congressional Internet Caucus, a bipartisan group of over 150 members of the House and Senate working to educate their colleagues about the promise and potential of the Internet.

Youth

Eshoo created student advisory boards in 1993 consisting of youth from her congressional district, who advise her on policies and make recommendations, and are located in Palo Alto, San Mateo and Santa Cruz. The students attend biweekly meetings and choose one topic to focus on each year. Past topics have included health care, the crisis in Darfur, medicine, voter reform, foreign affairs, and the media. Eshoo also hosts a congressional arts competition, which students can apply to win.

Committee assignments

Committee on Energy and Commerce

*Subcommittee on Communications and Technology (Ranking Member)

Caucuses

Congressional E-911 Caucus, Co-Chair

Cancer Care Working Group, Co-Chair

House 21st Century Health Care Caucus, Vice Chair

House Information Technology Working Group, Co-Chair

Congressional Internet Caucus, Founding Member & Co-Chair

House Medical Technology Caucus, Co-Chair

Bipartisan Congressional Task Force on Alzheimer's Disease

California Democratic Congressional Delegation

Armenian Caucus

Coalition for Autism Research and Education (CARE)

Congressional Asian Pacific American Caucus

Congressional Biomedical Research Caucus

Congressional Caucus for Women's Issues

Congressional Caucus on Armenian Issues

Congressional Coalition on Adoption

Congressional Diabetes Caucus

Congressional Food Safety Caucus

Congressional Kidney Caucus

Congressional Organic Caucus

Congressional Prevention Coalition

Congressional Shipbuilding Caucus

Congressional Taiwan Caucus

Congressional Wildlife Refuge Caucus

House Biotechnology Caucus

House Cancer Caucus

House National Marine Sanctuary Caucus

House Oceans Caucus

House Recycling Caucus

Long-Term Care Caucus

United States-Philippines Friendship Caucus

Electoral history

Organizations

Chair, San Mateo County General Hospital Board of Directors, 1984–1992

Member, American Association of University Women

Former Chair, Bay Area Air Quality Management District

Former Member, Bay Conservation and Development Commission

Democratic Activists for Women Now

Junior League of Palo Alto

League of Conservation Voters

Member, League of Women Voters

Co Founder, San Mateo Women's Hall of Fame.

Awards and honors

1989 Legislator of the Year Award from the California's Governor's Committee on the Employing of the Disabled

1991 Margaret Sanger Community Service Award from San Mateo County Planned Parenthood

1990 Friend of BAYMEC Award

1989 Public Official of the Year by the State Commission on Aging

1987 Humanitarian of the Year by Easter Seal

First woman to join her local chapter of Kiwanis International.

References

External links

U.S. Congresswoman Anna G. Eshoo ''official U.S. House site''

Anna Eshoo for U.S. Congress ''official campaign site''

League of Women Voters of California — Anna G. Eshoo November 7, 2006, Election

Introduction of the Computer Donation Incentive Act Congresswoman Anna G. Eshoo, April 29, 1997

Lawmakers push for electronic signature use ''GCN'', February 23, 1998

Eshoo Urges Support of Religious Diversity ''Assyrian American Association of S. California'', July 20, 2005

Legislating Values ''Philosophy Talk'' on San Francisco's KALW (91.7 FM), January 31, 2006, interview

Anna Eshoo's personal Myspace

Category:1942 births Category:Living people Category:California Democrats Category:Members of the United States House of Representatives from California Category:American people of Armenian descent Category:American people of Assyrian descent Category:American Eastern Catholics Category:Chaldean Catholics Category:People from Connecticut Category:Female members of the United States House of Representatives Category:Women in California politics

ar:آنا إيشو it:Anna Eshoo la:Anna Eshoo fi:Anna Eshoo sv:Anna Eshoo

Jeffrey Rosen is an American academic and commentator on legal affairs. Legal historian David Garrow has called him "the nation's most widely read and influential legal commentator."

Biography

Rosen is the son of Sidney and Estelle Rosen, both of whom are psychiatrists. He has been married to Christine Rosen (formerly Stolba), a historian, since 2003. He graduated ''summa cum laude'' from Harvard University and was a Marshall scholar at Oxford University, from which he received a second bachelor's degree. He also has a law degree from Yale Law School.

He is a professor of law at George Washington University Law School in Washington, D.C. and has been the commentator on legal affairs for ''The New Republic'' since 1992. Rosen is a Nonresident Senior Fellow at the Brookings Institution, where he speaks and writes about Technology and the Future of Democracy. He often appears as a guest on National Public Radio, and is a frequent contributor to The New York Times Magazine.

Journalism

Rosen has written frequently about the United States Supreme Court. He has interviewed Chief Justice John Roberts, Justice John Paul Stevens, and Justice Stephen Breyer. Justice Ruth Bader Ginsburg credited his early support for her Supreme Court candidacy as a factor in her nomination. More recently, an essay posted on ''The New Republic'' website about Sonia Sotomayor, the then-potential nominee for the Supreme Court, provoked controversy for using anonymous sources. Other media outlets, however, including the New York Times, had relied upon similar sources. Rosen has known Justice Elena Kagan for many years and is the brother-in-law of Neal Katyal, the acting Solicitor General. In an opinion piece published after Kagan's nomination hearings and before the Senate's vote on her confirmation, Rosen encouraged Kagan to look to former Justice Louis Brandeis as a model "to develop a positive vision of progressive jurisprudence in an age of economic crisis, financial power and technological change."

Rosen's articles assessing the Supreme Court have been ideologically unpredictable. He strongly denounced Bush v. Gore, but supported the nomination of Chief Justice Roberts, while opposing that of Justice Alito. He supported Sotomayor's confirmation, and has written stories for the New York Times Magazine about the Court's pro-business and anti-regulatory agenda.

Rosen also writes frequently about the effects of technology on privacy and liberty, including articles about the Fourth Amendment implications of pre-flight screening by the TSA, free speech on the Internet, privacy in the Internet Age, surveillance cameras in Britain, data mining in Silicon Valley, technology and the Constitution, the effect of neuroscience on the law, DNA databases and genetic surveillance, and Google and the future of free speech.

Bibliography

''The Supreme Court: The Personalities and Rivalries that Defined America'', New York: Times Books, 2007. ISBN 0805081828.

''The Most Democratic Branch: How the Courts Serve America'', New York: Oxford University Press, 2006. ISBN 0195174437.

''The Naked Crowd: Reclaiming Security and Freedom in an Anxious Age'', New York: Random House, 2004. ISBN 0375508007.

''The Unwanted Gaze: The Destruction of Privacy in America'', New York: Random House, 2000. ISBN 0679445463.

Notes

References

Category:Year of birth missing (living people) Category:Living people Category:American legal scholars Category:American legal writers Category:American Jews Category:Marshall Scholars Category:George Washington University Law School faculty Category:Harvard University alumni Category:Yale Law School alumni Category:Place of birth missing (living people)