by Carey Lening, Kirsten Koepsel and Ron
Years after the Terrorist
Surveillance Program and other warrantless surveillance became known publicly,
litigation continues and key issues remain unresolved. Practitioners whose
clients have been subjects of the government's secret surveillance will here
find discussion of one of those issues: Does the Foreign Intelligence
Surveillance Act apply to the National Security Agency, which carried out such
authors write: Although the scope
of the National Security Agency's (NSA) monitoring of communications may never
be fully known, numerous questions have arisen about the government's use of
warrantless intercepts. One important question comes to mind: Is the NSA
governed by the procedural rules of the Foreign Intelligence Surveillance Act
of 1978 (FISA)?
Since 2005, when the Terrorist Surveillance Program (TSP) first made headlines,the
federal government has claimed that warrantless wiretaps conducted by the NSA
as part of the program are necessary tools against the war on terror and are
therefore constitutionally justified. The federal government also challenged
critics' cries of extralegal overextension, by citing judicial and
congressional support, specifically Congress's passage of the Authorization for
Use of Military Force (AUMF).
Critics responded that these domestic intercepts at the very least require
Foreign Intelligence Surveillance Court (FISC) authorization. The federal
government replied that the AUMF supersedes FISA's requirement that the government
obtain court approval for an intercept. Regardless what may ultimately be
decided by the courts and Congress, one thing is certain: The situation
presents a thorny but legally interesting question to practitioners who
represent subjects of the government's secret surveillance. [footnotes omitted]
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Carey Lening is
an intellectual property, privacy and technology attorney in Washington, DC.
Kirsten Koepsel is
an intellectual property attorney and works as a Director, Legal Affairs &
Tax, Aerospace Industries Association in Arlington, VA.
Ron Weikers is Managing Partner
of Weikers & Co. | Software-Law.com in Manchester, NH, and Adjunct
Professor of Law at Franklin Pierce Law Center in Concord, NH. Any views
expressed herein are solely the authors', and do not reflect the views of their
The NSA warrantless surveillance controversy 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, e-mails, Internet activity, 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.