RESOLUTION ON THE NATIONAL SECURITY AGENCY’S SECRET ELECTRONIC SURVEILLANCE PROGRAM

WHEREAS, it has been reported in the press that the National Security Agency (“NSA”) has been conducting warrantless electronic surveillance of United States’ citizens since September 2001 pursuant to a secret Presidential directive;

WHEREAS, the Foreign Intelligence Surveillance Act (“FISA”), 50 U.S.C. §§ 1801 et seq., is a comprehensive and detailed statute generally considered the exclusive authority for any surveillance activities for foreign intelligence purposes undertaken by the United States government, 18 U.S.C. § 2511. (See ABA Report and Recommendations, pp. 5-9, February 13, 2006);

WHEREAS, FISA requires that the government seek a warrant from the FISA Court to authorize any such surveillance activities, except if the government believes it must begin surveillance prior to obtaining a warrant, in which case the government must obtain a warrant within 72 hours of the initiation of surveillance, or, after a declaration of war by Congress, within 15 days;

WHEREAS, the President and Attorney General contend that FISA does not apply to the NSA electronic surveillance program because the Authorization of Use of Military Force (“AUMF”), Pub.L. No. 107-40, 115 Stat. 224 § 2(a) (2001) enacted on September 18, 2001 granted the Executive Branch the authority to conduct such warrantless surveillance;

WHEREAS, there have been doubts raised regarding the contention that the AUMF did, in fact, grant such authority. (See ABA Report and Recommendations, pp. 9-16, February 13, 2006);

WHEREAS, there appears to be scholarly disagreement regarding the contention that the President’s “inherent powers” permit the violation of FISA, or, indeed, the Constitutional protection under the 4th and 5th Amendments against unwarranted search and seizure, including electronic surveillance, without due process;

WHEREAS, there are concerns among many members of Congress and the public that the Executive Branch, in conducting such warrantless surveillance, has encroached upon the rights, authority and prerogative of both the Congress and the Courts, placing the long-cherished doctrine of separation of powers in jeopardy;

WHEREAS, it is imperative that it be made clear to the American public whether such a program was in violation of any laws or the Constitution, the nature and extent of the violations, if any, and, if so, who was responsible for the violations of law so that those who authorized such violations of the law can be made accountable to the American public.

NOW, THEREFORE, BE IT RESOLVED that the Philadelphia Bar Association supports a full and formal investigation by Congress regarding the NSA warrantless electronic surveillance program.

AND, BE IT FURTHER RESOLVED, that the Chancellor, or his designee, shall make known the substance of this resolution to the Pennsylvania Congressional delegation.

PHILADELPHIA BAR ASSOCIATION
BOARD OF GOVERNORS
ADOPTED: JUNE 29, 2006

See Chancellor's letters to the Pennsylvania Congressional Delegation