National Security Agency (NSA) Warrantless Wiretapping

NSA Warrantless Wiretapping Timeline

1791
Fourth Amendment to the Constitution is enacted
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”(1)

1952
November
National Security Agency (NSA) Founded
The newly formed NSA, part of the Defense Department, is charged with acquiring information from overseas sources in order to protect the United States from her enemies. (2)

1968
Congress Limits Wiretapping
The Omnibus Crime Control and Safe Streets Act is passed by Congress, mandating that all wiretapping be performed only after a court order is obtained. However, an exception is created allowing the President to use warrantless wiretapping to respond to national security issues. (3)

1975
Congressional Church Hearings
A Senate committee on intelligence activities, commonly known as the Church Committee, reveals serious federal abuses of surveillance powers, including against civil rights leaders, Vietnam War protesters, union advocates, and other political activists. The Committee’s final report condemns these abuses as excessive, undemocratic, and unconstitutional. The report also suggests that Congress create rules limiting intelligence gathering tactics. (4)(5)

1978
January
President Jimmy Carter Limits Electronic Surveillance of U.S. Citizens
President Jimmy Carter issues Executive Order 12036, which states that “No agency within the Intelligence Community shall engage in any electronic surveillance directed against a United States person abroad or designed to intercept a communication sent from, or intended for receipt within, the United States except as permitted by the procedures established pursuant to section 2-201.” (6)

October
Congress Passes Foreign Intelligence Surveillance Act (FISA)
In response to the Church Committee’s report, Congress passes FISA, which authorizes surveillance of foreign powers or their agents, and creates a judicial system to oversee the program and ensure that it is only used in response to serious national security issues. It is opposed by civil libertarians on the grounds that it violates the Fourth Amendment, amid concerns that warrants may be issued without adequate proof and against American citizens. The law eventually causes the NSA to alter its rules on domestic intelligence gathering and concentrate on foreign spying. (7)(8)

1994
October
CALEA Requires Telecommunications Providers to Give Government Access to Electronic Records
Congress enacts the Communications Assistance for Law Enforcement Act (CALEA), which sets standards for how telecommunications providers will provide wiretapping information to the government. It requires providers to install new wiretapping devices on their phone systems, and ensures that the government will have free access to communications information. (9)

2001
January 20
George W. Bush Inaugurated as the 43rd President of the United States; John Ashcroft becomes Attorney General
George W. Bush officially takes office as President, and names John Ashcroft, a former senator from Missouri, as his new attorney general. Republicans support Ashcroft as a nominee intimately familiar with the workings of the US government and its policies. However, numerous civil liberties groups, including the ACLU, express concern over previous attempts at curtailing First Amendment rights and other freedoms while Senator.

September 11
Terrorist Attacks on the World Trade Center in New York City and the Pentagon in Washington, D.C.
Four airplanes on the East Coast are hijacked mid-flight and aimed at important financial and government buildings. Two crash into the twin towers of the World Trade Center in New York, and one crashes into the Pentagon just outside of Washington, D.C. Another airplane, apparently headed for Washington, D.C., is downed in a field in Pennsylvania.

September 25
John Yoo, Former Administration Official, Claims President Has Widespread Anti-Terrorism Powers
John Yoo, formerly from the Department of Justice’s Office of Legal Counsel, writes a memo claiming that the President has the authority to approve anti-terrorism tactics, including warrantless wiretapping, in times where he or she feels that it is necessary for national security interests. (10)(11)

October 11
Rep. Nancy Pelosi Asks NSA Director If Wiretapping Program Had Presidential Authorization
Representative Nancy Pelosi sends a letter to Michael Hayden, director of the NSA, inquiring as to whether wiretapping programs used by the NSA under FISA have presidential approval and, if so, to what extent. (12)

October 26
Congress Passes the USA PATRIOT Act, Amending FISA
The USA PATRIOT Act is passed by Congress, giving the government more leeway in obtaining wiretapping warrants. Supporters of the law claim that it will allow the government to respond quicker to terrorist threats, but opponents fear that it will be used inappropriately and, ultimately, be ineffective. (13)(14)

2002
Bush Issues Executive Order Allowing Warrantless Wiretapping
President Bush, through a secret executive order, authorizes the NSA, which already has confidential surveillance program in place, to wiretap communications between foreign citizens suspected of having links to terrorist groups and individuals on American soil. This wiretapping is allowed without any warrant. Communications between people located in the US still requires a warrant. (15)(16)(17)

2003
July 17
Bush Administration Discloses Wiretapping Program to Congress
Vice President Dick Cheney and other administration officials give limited information about the warrantless wiretapping program to the heads of the Senate and House intelligence committees. Sen. John Rockefeller sends a letter to Cheney detailing his concerns over the program and questions whether the program is legal. (18)

2005
February 3
John Ashcroft Leaves Post as Attorney General, Replaced by Alberto Gonzales
On November 9, 2004, amid increasing outcry over his controversial policies, John Ashcroft resigns from his position of Attorney General. This resignation becomes effective on February 3, 2005, when the Senate confirms Alberto Gonzales, White House counsel, as the new attorney general. (19)

December 6
Bush Tries to Dissuade the New York Times from Publishing Warrantless Wiretapping Story
President Bush invites the publisher of the New York Times, Arthur Sulzberger, Jr., to the Oval Office, and tries to convince the paper not to run a story about the NSA warrantless wiretapping program which began in early 2002 and is still secret. (20)

December 16
New York Times Discloses Warrantless Wiretapping Program
The New York Times publishes a front-page article revealing details about the NSA’s warrantless wiretapping program, despite President Bush’s requests that it not be revealed to the public. It is later disclosed that the newspaper had known about the program for over a year. (21)(22)

December 17
Bush Supports Wiretapping Program in Press Conference
President Bush speaks on national television in defense of the USA PATRIOT Act, which is up for renewal, and claims that the New York Times printed the NSA wiretapping story illegally. He states that he authorized the NSA program shortly after 9/11, in accordance with his powers as President. In addition, he says that the program is overseen by various government agencies and is in compliance with the Constitution. Furthermore, he asserts that the program is vital to national security, and points to communications between the US-based September 11 hijackers and Al Qaeda members overseas as evidence that the program is essential to the security of the United States. (23)

December 22
Department of Justice Defends NSA Program
The Department of Justice writes to the Congressional intelligence committees, saying that the NSA warrantless wiretapping program is legal. It also states that President Bush determined after September 11 that there was a need for quicker detection of terrorist threats, and that FISA was not fast enough. (24)

December 24
The New York Times Reveals NSA Wiretapping Methods
The New York Times publishes an article detailing the various methods, including data mining, used by the NSA to perform wiretapping, which had yet to be acknowledged by the Bush administration. It tells how the NSA approached telecommunications companies and asked them to keep records of international telephone and Internet communication patterns that were deemed suspicious. All of the wiretapping is done without requesting a warrant from the Foreign Intelligence Surveillance Court. (25)

2006
January 31
Electronic Frontier Foundation (EFF) Sues AT&T for Providing Customer Information to the NSA
The Electronic Frontier Foundation, a digital civil liberties advocacy group, files a lawsuit against AT&T, alleging that the company’s cooperation with the NSA in data mining customers’ telephone and Internet records breaches the privacy of their customers and is therefore illegal. On May 15, the government files a secret brief, to which only AT&T and the EFF were allowed very limited access, asking the court to dismiss the lawsuit, claiming that continuing the case would reveal state secrets. (26)

March 9
President Bush Re-signs the USA Patriot Act
After the original USA PATRIOT Act’s original term runs out, Congress reauthorizes the act and makes most of its provisions permanent. President Bush signs the new version of the act, but also issues a signing statement, which exempts him from reporting when government agencies use some of the powers described in the law. (27)(28)

May 11
USA Today Reveals Telephone Companies Have Provided Phone Records to the NSA since 2001
A USA Today article describes how the nation’s largest telecommunications companies, since shortly after the September 11th attacks, have been secretly providing their customers’ domestic calling records to the NSA, which is using them to investigate Americans’ calling patterns. This marks the first time that purely domestic calls are revealed as being subject to NSA wiretapping. AT&T, Verizon, and BellSouth are implicated in the program, but Qwest states that it has refused to give any information to the government. (29)

May 27
Michael Hayden Confirmed as Head of the CIA
Major General Michael Hayden, Director of the NSA from 1999 to 2005, is confirmed as the new head of the CIA, a civilian agency, despite concerns over his military status and ties to the NSA’s potentially illegal wiretapping program. (30)

July 17
Attorney General Alberto Gonzales Reveals Administration Blocking Oversight of NSA Program
Attorney General Alberto Gonzales states that President Bush has barred Department of Justice lawyers from gaining security clearances and access to necessary documents and interviews when attempting to investigate the NSA wiretapping program. (31)

August 17
US District Court Judge Finds NSA Program to be Unconstitutional
In the case ACLU v. NSA, Federal District Court Judge Anna Diggs Taylor finds that the President does not have the power to authorize the NSA warrantless wiretapping program under either the Iraq War resolution or the Constitution, and thus deeming the program unconstitutional. The program continues unabated as the government appeals her ruling. (32)(33)(34)

September 28
House Passes Bill Authorizing Warrantless Wiretapping
The House of Representatives passes a bill, introduced by Republican Rep. Heather Wilson, authorizing the Bush administration to conduct warrantless wiretapping on the condition that it occurs after the House and Senate intelligence committees have been notified and the people being investigated have been named. The bill still allowed for the circumventing of FISA. Democrats accuse the administration of attempting to justify their past actions violating citizens’ civil liberties. The bill never passes the Senate. (35)

November 7
Midterm Elections
The entire House of Representatives and one-third of the Senate face election, amidst growing concerns over the Iraq war and other scandals. The Democrats gain control of both legislative chambers and promise sweeping reforms and oversight of all government activities. (36)(37)(38)