January 9, 2006 | By Kurt Opsahl

NSA Electronic Surveillance: Law Profs Weigh In

On December 22, the DOJ published a letter attempting to provide a legal justification of the NSA's warrantless electronic surveillance of persons within the United States. While the wiretaps would violate the Foreign Intelligence Surveillance Act on its face, the government argues that that the Authorization to Use Military Force (AUMF) implicitly authorized the secret NSA wiretaps, and, even if it did not, it is authorized by the President's Article II role as Commander in Chief.

Last week, the Congressional Research Service, a nonpartisan research arm of the Library of Congress, released a memorandum concluding that "it appears unlikely that a court would hold that Congress has expressly or impliedly authorized the NSA electronic surveillance operations." Moreover, the CRS opined that the DOJ's analysis "does not seem to be as well-grounded as the tenor of that letter suggests."

Today, a group of fourteen law professors and former government officials, including the Deans or former Deans of Yale, Stanford, and University of Chicago Law Schools, a former Director of the FBI, a former Deputy Attorney General, and a former Acting Solicitor General, released a letter that concludes the "DOJ letter fails to offer a plausible legal defense of the NSA domestic spying program." It also notes "serious questions about the validity of the program under the Fourth Amendment."

The CRS memo and the law professor letter serve to highlight the plain truth that the domestic surveillance program is neither lawful nor constitutional. As the great Justice Louis D. Brandeis recognized, the Constitution has "conferred, as against the government, the right to be let alone - the most comprehensive of the rights and the right most valued by civilized men." Warrantless domestic surveillance violates this sacred right, and endangers the foundations of freedom upon which the United States of America was built.

As Samuel Adams once said, "The liberties of our country, the freedom of our civil Constitution, are worth defending at all hazards; and it is our duty to defend them against all attacks." Visit our Action Center and tell your Senators and Representative to support hearings to get to the bottom of the NSA program.

Deeplinks Topics

Stay in Touch

NSA Spying

EFF is leading the fight against the NSA's illegal mass surveillance program. Learn more about what the program is, how it works, and what you can do.

Follow EFF

Hundreds attend EFA launch events in 9 cities across the U.S. this month: https://www.eff.org/deeplinks...

Apr 30 @ 7:12pm

Voicemail-to-text services have been around since at least 2001. Why was a patent for them issued in 2006? https://www.eff.org/deeplinks...

Apr 30 @ 9:12am

Learn about Rule 41, the scary new route the government could use to hack your computer: https://www.eff.org/deeplinks...

Apr 30 @ 8:48am
JavaScript license information