70 Report of the Eminent Jurists Panel on terrorism, counter-terrorism and human rights Many, including the American Bar Association (ABA), disagreed with the US administration’s claim that the President has a constitutional authority to authorise warrantless surveillance; they also testified to the Panel on the serious problems that arose in practice.150 In particular, it was alleged that the monitoring undertaken under the Terrorist Surveillance Program constrained defence lawyers in their communication with clients detained in Guantánamo Bay, and/or the detainees’ family members abroad. Journalists, especially those working on conflict areas or engaged in investigative journalism, also reported that they feared for the confidentiality of their sources with warrantless surveillance.151 The US is not alone in authorising surveillance and intelligence-gathering without judicial authorisation. The Panel was informed of similar legislation having been introduced in Bangladesh,152 Egypt,153 the Russian Federation,154 Sweden155 and Uganda.156 In addition to the critical importance of effective oversight (including judicial oversight) it is vital that there are clear legal thresholds as to when such powers can be used, and a sufficient level of suspicion needs to be present; this has not always been the case. Countries around the world have introduced measures allowing for better sharing of information across domestic agencies, including law enforcement, intelligence and immigration agencies. Such cooperation is vital, but many examples were given to the Panel of violations arising from the lack of clear criteria, or of rules governing access to, and use of, such information. For instance, in the Philippines, a draft counter-terrorism law, discussed during the Hearing, and enacted a few months later, established a National Security Council with responsibility for establishing and maintaining “comprehensive database information systems on terrorism, terrorist targeting and minimisation procedures, Section 702 FISA. 150 Oral testimony by Karen J Mathis, ABA, EJP United States Hearing. In a major move cementing executive powers, the US Government has argued that a combination of congressional authorisation to use force, and the President’s constitutional authority as Commander in Chief, allows him the power to authorise warrantless surveillance. See also oral testimony by Ann Beeson, American Civil Liberties Union (ACLU) at the EJP United States Hearing and the complaint of 17 January 2006 in the case of ACLU v. NSA submitted to the US District Court Eastern District of Michigan Southern Division. 151 Ibid. ACLU testimony. 152 Section 97A of the Telecommunications (Amdt) Act of 2006 in Bangladesh; Section 97B allows information collected under the Act (without judicial supervision) to be admissible under Evidence Act 1872. 153 Constitutional amendments adopted in Egypt on 26 March 2007 (regarding Article 179 of the Constitution) exempt searches, arrests and surveillance in counter-terrorism cases from the requirement of prior judicial authorisation. The modalities are to be regulated in a counter-terrorism law that has not yet been adopted. It was noted that this would effectively sideline existing constitutional protection, and would integrate state of emergency rules and practices into the ordinary legal structure. 154 Federal law on counter-action of terrorism, No. 35-FZ, March 6 2006 allows various controls over communication, without requiring judicial authorisation, as required by the Russian Constitution. 155 A new Signal Intelligence Act in Sweden authorises monitoring of communications without judicial authorisation or notification; there have been reports of governmental amendments being proposed to establish a quasi-judicial control body, and for increased safeguards. 156 Uganda Anti Terrorism Act of 2002, Sections 18-19.