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Privacy advocates fight for ground lost after 9/11

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"You have a system that's badly broken, where the evidence isn't being collected or used effectively," says Michael Greenberger, director of the Center for Health and Homeland Security at the University of Maryland.

Where it stands: The American Civil Liberties Union challenged the constitutionality of NSL gag orders and won. The government is appealing the case. Congress is currently holding hearings on the FBI's mishandling of the NSLs.


What's happened: Shortly after 9/11, President Bush signed an executive order that allowed the National Security Agency (NSA), without getting a warrant, to wiretap the overseas communications of people suspected of having contact with Al Qaeda, even if the call ended in the United States. When the story broke in 2005, critics said it was a violation of the Foreign Intelligence Surveillance Act. Passed in 1978, this act established a special court, known as the FISA court, where intelligence agencies could seek approval for wiretaps in national-security investigations. Mr. Bush says that legislation passed after 9/11 gave him authority to supersede the FISA court.

Last year, as result of a suit by the American Civil Liberties Union, a federal district court ruled that the program was unconstitutional. The ruling has been stayed while the government appeals. Although Bush maintains he has the right to order such warrantless wiretapping, the administration announced in January that it was voluntarily putting the program under the FISA court's jurisdiction.

Who's affected: Thousands of people could be involved, but estimates are hard to make because the program is secret.

For it: The administration says the program gives it the speed and flexibility it needs – not only to track suspected terrorists, but also to help establish behavior patterns that could be used in detecting terrorism.

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