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Model Resolution Relating to Warrantless Surveillance of Americans by the National Security Agency

Note: This draft resolution is similar to a resolution introduced in the Vermont State Legislature on February 8, 2006.

Whereas, the safety and security of the American people ultimately depends upon the maintenance of a vigorous democracy under law, in which the branches of government work effectively and cooperatively together;

Whereas, the Fourth Amendment of the United States Constitution states: “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”;

Whereas, the Foreign Intelligence Surveillance Act of 1978, 95-511, 92 Stat.
1783 (FISA) comprehensively regulates electronic surveillance within the United States, with the goal of striking a proper constitutional balance between protection of civil liberties and safeguarding national security;

Whereas, FISA was created in response to what the 1976 Senate Select Committee on Intelligence Activities called “The crescendo of improper intelligence activity in the latter part of the 1960s and the early 1970s.” The Committee’s quote continues, “In times of crisis, the Government will exercise its power to conduct domestic intelligence activities to the fullest extent. The distinction between legal dissent and criminal conduct is easily forgotten. Our job is to recommend means to help ensure that the distinction will always be observed.” Under those conditions, FISA was crafted to prevent spying on domestic political groups;

Whereas, FISA provides a legal mechanism for the United States Government to engage in surveillance of a foreign power or an agent of a foreign power where it is likely that the surveillance will acquire the contents of a communication to which a United States person is a party; expressly establishes FISA and specified provisions of the federal criminal code as the “exclusive means by which electronic surveillance … may be conducted,” 18 U.S.C. § 2511(2)(f); and makes criminal any electronic surveillance not authorized by statute;

Whereas, FISA provides specific exceptions that allow the President to authorize warrantless electronic surveillance for foreign intelligence purposes (1) in emergency situations, provided an application for judicial approval from a FISA court is made within 72 hours; and (2) within 15 calendar days following a declaration of war by Congress;

Whereas, President Bush has directed the National Security Agency (NSA) to conduct secret and warrantless electronic surveillance of persons within the United States without any plausible legal authority for such surveillance, and the NSA has in fact conducted such surveillance, in contravention of FISA and the Fourth Amendment to the United States Constitution; and

Whereas, these actions diminish the rule of law without enhancing national security;

NOW, THEREFORE, it is

Resolved, that the General Assembly strongly supports the vigorous pursuit and prosecution of persons and organizations that plan terrorist acts anywhere in the world; and it is further

Resolved, that the General Assembly expresses deep concern over President Bush’s order to the National Security Agency to intercept telephone and email exchanges between the United States and overseas without court authorization, as required under FISA, and requests the President forthwith to direct the NSA to observe FISA’s requirements; and it is further

Resolved, that the General Assembly urges the United States Congress to reaffirm that it did not authorize warrantless domestic surveillance of United States citizens in authorizing military action in Afghanistan (Senate Joint Resolution 23, 107th Congress, September 14, 2001); and it is further

Resolved, that the General Assembly urges all state and local government agencies in Vermont, and each person and business entity that receives a request to cooperate in the electronic surveillance of a person within the United States to obtain an assurance from the state or federal government agency making the request that it is lawful under FISA or applicable provisions of the federal criminal code; and it is further

Resolved, that the General Assembly requests the Attorney General of Vermont to assist, and if needed, intervene on behalf of, any person in Vermont who is asked to cooperate in the electronic surveillance of a person within the United States without receiving an assurance that the request is lawful under FISA or applicable provisions of the federal criminal code law; and it is further

Resolved, that the Legislative Council submit a copy of this Resolution to the President of the United States, to the Vermont Congressional Delegation, to the Vermont Attorney General, to the President Pro Tem of the United States Senate, to the Speaker of the United States House of Representatives, to the Attorney General of the United States, and to the chairs of the House and Senate Committees on the Judiciary and the House and Senate Select Committees on Intelligence.

Other Resources

Domestic Surveillance: National Security Agency Warrantless Wiretapping
Bush Administration Mythmaking: Defenses of National Security Agency Warrantless Wiretaps