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What is the Legality of the NSA Domestic Surveillance Program?

Authors: Lee Casey, partner at the law firm, Baker & Hostetler, LLP Carl Tobias, professor of law at the University of Richmond John R. Schmidt, partner at the Chicago-based law firm Mayer, Brown, Rowe & Maw Michael J. Williams, attorney with the Georgia-based law firm Fincher & Hecht, LLC Dakota S. Rudesill, defense consultant, former professional staff member on national security for the U.S. Senate, and J.D. candidate at Yale Law School
Interviewer(s): Lionel Beehner
January 4, 2006

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Should the domestic spying of U.S. "persons" be permitted? If it is "critical to saving lives," then yes, argues President Bush. He further says that shortly after the September 11, 2001, attacks Congress gave him and the National Security Agency (NSA) widespread powers—among them the right to intercept international phone calls or emails with suspected terrorists—to execute the war on terror by passing a joint resolution called the Authorization for Use of Military Force (AUMF).

But some civil libertarians and lawmakers say the NSA's decision to wiretap without warrants raises a number of legal predicaments, including whether such domestic surveillance programs violate the U.S. Constitution's separation of powers, its Fourth Amendment protections from illegal search and seizure, as well as a 1978 statute by Congress establishing the Foreign Intelligence Surveillance Act (FISA), which created a secret court with authority to grant eavesdropping warrants. The president says his secret domestic surveillance program is not aimed at gathering evidence for criminal trials per se, but at preventing future 9/11-style attacks and is therefore "vital and necessary" to national security.

Cfr.org asked five lawyers and legal scholars whether the president's wiretappings are legal, from a constitutional or statutory standpoint.

Lee Casey, partner at the law firm, Baker & Hostetler, LLP

Yes, because FISA does not cover all the potential situations where intelligence must be gathered in the current conflict. In particular, that statute applies only in four situations: Where a U.S. person is the target of, rather than incidental to, the surveillance; where the acquisition of the intelligence will be accomplished by devices in the U.S.; where the sender and all recipients of the communication are present in the U.S.; where surveillance devices are used within the U.S. to collect communications other than wire or radio communications. FISA simply does not apply to the most important category—surveillance of a non-U.S. person overseas.

In addition, there are procedures that must be followed under FISA that, while streamlined, still take time. In a war where seconds and minutes matter, even hours may be too long. Finally, the FISA court is not a rubber stamp. There may well be instances in which the president believes surveillance justified, but where the court refuses to issue a warrant. To the extent the foreign surveillance is otherwise within his constitutional power, it is up to the president to make the final decision here. Just as the president cannot intrude upon the constitutional authority of Congress or the courts, neither Congress nor the courts can intrude upon his constitutional authority.

In some sense, the outrageous thing is the outrage being ginned up by the media over this monitoring program, which frankly seems run of the mill. U.S. spies gather intelligence on a lot of countries overseas and on a lot of individuals, mostly government officials, but also individuals who may pose a threat or can provide useful intelligence. All this is perfectly legal. Simply because an American interposes himself into that situation doesn't mean the U.S. government must shut down its intelligence-gathering and get a warrant.

Carl Tobias, professor of law at the University of Richmond

I think there are more persuasive arguments that the president should not have had taken these actions. The administration claims that AUMF is a very broad grant; if this is true, then authority to use domestic surveillance, which is the argument the attorney general is using, is that there's a factual case that it can't move quickly enough under the 1978 FISA statute. The argument on the other side is that under this statute, there is a secret court that Congress specifically established for these kinds of issues and the court has been favorably disposed to all administrations when requests are made for warrants. Only a tiny percentage has been rejected. So the argument does, then, go back to Congress and seeks an amendment on procedures in FISA.

It raises a question of checks and balances. When Congress passes a
Statute that specifically deals with an issue and then the president ignores that statute, then that's a problem in terms of separation of powers. It's not as if he's operating in a vacuum. Congress was very clear about procedures to use for domestic surveillance, so it seems the president ought to follow it, or at least have that procedure modified if it's inadequate. Apparently, six weeks later, Congress included in the Patriot Act provisions that provide exceptions to FISA; that cuts against the argument that Congress meant to authorize it.

The other big issue is that lawyers for those being prosecuted will argue that if any information used in the prosecution was secured in this manner, [does] that play back to Fourth Amendment issues? If this is illegally obtained evidence, what does that mean for prosecuting, or indicting them? Some lawyers are saying if the information used to convict was secured illegally, they intend to raise that issue and argue it has to be thrown out.

John R. Schmidt, partner at the Chicago-based law firm Mayer, Brown, Rowe & Maw

Based on what we now know, I think the president acted lawfully. The weight of judicial authority supports the president's inherent constitutional authority to carry out surveillance without judicial approval in order to obtain intelligence on foreign threats to the United States. The Supreme Court expressly declined to reach that issue back in 1972, but we have had four Court of Appeals decisions that have explicitly upheld that inherent presidential power. Most recently, the FISA Court of Review, consisting of three court of appeals judges, reviewed those cases in support of the president's authority and said it agreed. If the president has that inherent constitutional authority, it is hard to think of a more compelling case for its exercise than the aftermath of 9/11, when we had not just a threat but had seen an actual attack on the U.S. by an identifiable group, al-Qaeda. We knew they were planning future attacks; and surveillance offered a way, perhaps the only one, to find out where and when those future attacks might take place.

The Court of Review also said explicitly, and I think correctly, that FISA could not encroach on the president's inherent constitutional authority. But we avoid any conflict between that statute and the Constitution if we conclude, as I think is correct, that the post-9/11 congressional authorization to the president to "use all necessary and appropriate force" against al-Qaeda carried with it the authority to carry out necessary intelligence activities for that purpose. The authorization to use military force naturally carries with it the authority to carry out the necessary related intelligence activity. The only reason that conclusion seems surprising now is because in this case the enemy forces were here in the U.S. and therefore some intelligence activity might take place here and involve U.S. citizens. But that is the fact of the al-Qaeda threat, and I think Congress gave the president the authority to respond to that threat.

Michael J. Williams, attorney with the Georgia-based law firm Fincher & Hecht, LLC

There is disagreement over whether the president, as commander in chief, has plenary power under the Constitution to authorize these kinds of wire taps separate and apart from any authority Congress may have provided him under FISA. Some say the argument that the president has plenary power to conduct the surveillance [has been] faulty since after 9/11, [when] the administration sought changes to FISA under the Patriot Act to make certain anti-terrorist surveillance activities easier. In other words, if FISA did not apply, why seek the amendments?

In any event, one might view FISA as a sort of compromise between the president and Congress on this question. Under FISA, in response to concerns about the monitoring of U.S. citizens, Congress authorized wiretaps to be conducted without a court order if the attorney general certifies, among other things, that the surveillance is directed at "foreign powers" and that it is unlikely parties to the communication will not include a "U.S. person."

In theory, the administration is concerned about having the ability to monitor communications of U.S. persons if they are part of terrorist organizations. Part of the problem is that FISA authority regarding these wiretaps extends to communications among "foreign powers" but as currently drafted, does not cover communications within terrorist organizations. For instance, the government might be able to monitor communications involving foreign governments under the FISA conditions without a court order, but does not allow monitoring of communications of terrorist organizations.

The administration has said that not only does it have plenary authority under the Constitution but also because of the [post-9/11] joint resolution authorizing the president to go after al-Qaeda. Arguably, this has the legal effect of a congressional declaration of war. If we're at war, under FISA, Section 1811, the president may authorize electronic surveillance without a court order, but only for fifteen days. This is in addition to the 72-hour emergency surveillance provisions that presumably are applicable to peace-time conditions. I think there is enough legal wiggle room on a number of fronts for the president to argue there's no clear-cut case he broke the law or engaged in an impeachable offense.

Dakota S. Rudesill, defense consultant, former professional staff member on national security for the U.S. Senate, and J.D. candidate at Yale Law School

As a legal question, we are going to hear three interrelated debates. The first is about the Fourth Amendment. How do the Fourth Amendment's basic guarantee of freedom from unreasonable searches and seizures and its warrant requirement constrain congressional legislation and executive activity in the war on terrorism? The other debates are about inherent constitutional executive and congressional war powers, and how, in light of those constitutional powers, we should read together two statutes. Those statutes are the FISA law that governs electronic surveillance specifically, and the Authorization for the Use of Military Force that authorizes military operations post-9/11 generally.

The Bush administration has advanced a sweeping reading of presidential war power, saying that AUMF has put the president's constitutional power as commander-in-chief of the armed forces at its maximum, and that includes broad authority for warrantless surveillance of communications with some foreign terrorist link. On the other hand, we can expect to hear from many on Capitol Hill a different line of argument, that the Congress can restrict executive power under the legislative branch's constitutional authority "for the government and regulation" of the armed forces, that Congress intended to regulate NSA and all wiretaps under the FISA statute, and that Congress did not intend to create a way around FISA in the post-9/11 AUMF. Therefore, the argument will run, the administration should have either gotten FISA warrants or worked with Congress to amend FISA. This is a profoundly important debate, and everyone interested in national security and foreign policy should pay close attention.

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