NSA Electronic Surveillance Program - Legality of The Program

Legality of The Program

The NSA's electronic surveillance operations are governed primarily by four legal sources: the Fourth Amendment to the U.S. Constitution; the Foreign Intelligence Surveillance Act of 1978 (FISA); Executive Order 12333; and United States Signals Intelligence Directive 18. The primary legal challenge to the program currently in US courts is the suit brought by the Al-Haramain Foundation. All other challenges to the program have been dismissed by U.S. courts.

Critics of the Bush administration have regularly compared the current NSA surveillance program to those of Richard Nixon during the Vietnam War (i.e., Operation Shamrock, Operation Minaret, Church committee). However, these programs occurred prior to the 1978 Foreign Intelligence Surveillance Act (FISA), which was passed into law in response to widespread concern over these abuses of domestic surveillance activities. According to opponents of this program that is exactly what the current program is doing and why FISA was enacted.

The American Civil Liberties Union filed an ultimately unsuccessful lawsuit against the program in 2006 on behalf of journalists, scholars, and lawyers. In the initial trial, U.S. District Judge Anna Diggs Taylor on August 17, 2006, ruled the program was unconstitutional and imposed an injunction against it. The Justice Department filed an appeal within hours of the ruling and requested a stay of the injunction pending appeal. While opposing the stay, the ACLU agreed to delay implementation of the injunction until September 7 to allow time for the judge to hear the appeal. On appeal, the U.S. Court of Appeals for the Sixth Circuit dismissed the case without addressing the merits of the claims, holding 2–1 that the plaintiffs lacked standing to bring the suit.