Sep 06 2006
Ground Hog Day On NSA
Lawyers and a judge attempting to determine the legality of the NSA Terrorist Surveillance Program, and how it touches people here in the US, were stunned to realize the administration doesn’t see the NSA program a violation of FISA:
In a move that surprised Judge Lynch and lawyers who have been following the debate over the surveillance program, a government lawyer seemed to shift tactics to bring one more legal question within the scope of the privilege.
It has been widely assumed that the government has acknowledged that the surveillance program violates the Foreign Intelligence Surveillance Act, a 1978 law that requires the government to obtain a warrant from a secret court before wiretapping the international communications of Americans for national security purposes.
“We don’t agree,†the lawyer, Anthony J. Coppolino, said, “that the government has specifically conceded that point.†He added that the question could not be answered without endangering national security.
That’s because the NSA’s surveillance has been going on for decades. The NSA, under military orders, monitors our enemies. Iin this time of war on terrorism the NSA monitors terrorists who have been determined to be organizing, planning and supporting attacks on America, her citizens and her allies. The NSA is a military outfit and under the military chain of command. It is not a law enforcement agency and has NO STANDING to request warrants from a federal court.
Conversely, the Judicial branch cannot be directed to confirm or affirm orders given through the military chain of command. Can you see a judge demanding commanders get his or her permission before attacking, killing, destroying, capturing enemy personal or property? What next, Miranda rights before a battle? “You have the right to surrender. If you give up that right to surrender you may be captured, maimed, killed or forced to watch Dan Rather”.
The NSA portion of this issue has always been ‘legal’. What the FIS Court opposed post 9-11, and the NY Times totally misreported, was that after 9-11 the NSA began passing leads it had uncovered regarding terrorist contacts here in the US to the FBI. Prior to 9-11 the tradition and Gorelick wall required any leads the NSA (and presumably all other intel agencies like the CIA) had on people in the US associated with terrorism were simple destroyed. The military may be able to give local law enforcement information on a local robbery suspect, but identifying potential terrorists was a big no-no.
The FBI now investigates these leads and, if there is something dangerous discovered, they go to FISA to gain a warrant to all communications related to that suspect can be monitored. People who say the NSA must go to FISA or that the NSA must need a warrant are just not dealing with reality. Since when can a judge insert itself into the chain of command?
The answer is so simple it amazes me all these talking heads cannot grasp it. If the NSA passes on a lead to the FBI, and the FBI investigates that lead and determines there is a danger – the FIS Court should allow for an emergency 3-6 month warrant. After that time the process begins again. That way the NSA does its normal job – listening in on terrorists – and the FBI and Courts deal with suspects here under FISA. The only gap is people who talk to terrorists will always have those conversations monitored. After all, they are communicating with the enemy. What did they expect?
DGF, good luck with your research. Be aware that there is a lot of conflicting information out there. A health dose of skepticism should accompany your search. Just a suggestion: I’d start on the NSA website. I’m sorry I can’t be more forthcoming with information. I swore an oath, during my final debrief, that I would not disclose any classified information to which I had become privy during my military career. I know many people do not take such an oath seriously — I do.
DGF,
Your arguments are flawed and incorrect becuase you do not understand the difference between a TARGET of surveillance and a CONTACT. When Retired Spook said ‘knowingly monitored’ he was discussing the act of making the US person a TARGET. The TARGET has all communications listened to. CONTACTS are those who come in contact with TARGETS and get monitored incidentally, not ‘knowingly’. This is how it works now in the US when a drug lord under surveillance calls for a Pizza. The Pizza shop conversation is legally monitored.
Also how it works today is when a Drug Lord contacts someone and law enforcement believes this CONTACT is another criminal, they can go to the Courts and request a warrant to make the CONTACT a full blown TARGET.
The NSA situation is similar. They have the authority to listen in on certain TARGETS and anyone who contacts them. So they can monitor a call to someone in the US. They just cannot go and start monitoring the person in the US fully until the warrent is provided by the FIS Court (which is the 72 hour deal).
So thanks for all the info, but you need to begin with a correct premise to make your case and you did not.
Retired Spook —
I must say that in my research I do not recall running into a good bit of conflicting information of import. There is “conflict” galore with respect to the merits of certain legal analyses/arguments, but that’s par for the course, and not tremendously confusing. On the factual side, there’s quite a bit unknown or in question about many technical and operational aspects of the NSA’s operation per the “new regimen”, but so far as I can gather, these uncertainties do not adversely impact on the task that I was invited to engage in.
– Regards
AJ –
Retired Spook did not qualify his statement as you have, nor did he make any reference to “Target” or “Contact”. Now it may be that he would agree with your “clarification” or not, I cannot say; but absent hearing a change in or clarification of his opinion from him (or absent a rather more precisely supported and persuasive exposition from you), I see no reason to adopt your view of the matter.
That attitude may be based in part on some prejudice on my part, or perhaps simply because I’m fundamentally a “show-me” kinda guy. That said, I wouldn’t be surprised if in fact that the practice as described (qualified by the “target” / “contact” distinction) was not only the pre-911 NSA practice, but that the NSA’s practice was perfectly legal under applicable law (e.g./i.e. FISA)
So,
A. let’s look at the Question while operating under this assumption that pre 911 NSA would monitor US Persons who were”contacts”, but not monitor US Persons who were “targets” (absent FISA authorization).
B. As we all know, post 911 President Bush changed this regimen. Agreed? [footnote 1] That change must be that *now* the NSA also monitors US Persons who are targets (notwithstanding the fact that there has been no FISA authorization for such monitoring. [footnote 1]
C. (All US Persons are either “targets” or “contacts” (insofar as FISA is interested in US Persons at all)).
D. This is the gist of the Brouhaha: President Bush authorized a regime wherein US Persons, who were targets of NSA monitoring, were being monitored notwithstanding a warrant or other court approval.
E. This is what has been accurately reported.
F. Why do (some) people believe that this “warrantless” and intentional (“targeted”) eavesdropping of US Persons gives rise to a brouhaha?
G. Because of several reasons, no doubt, but the legal objections that I am aware of are that these “warrantless searches/seizures” (1.) Offend the Constitution (4th Amend) and/or (2.) Violate FISA.
H. (FISA (as the general rule) requires prior court authorization before there can be monitoring of “target” US Persons, with respect to transnational communications such as telephone calls).
AJ —
I simply cannot remotely understand how you can be so confused about this matter, give the public record information available, including statements from administration officials such as the AG. The “NSA Question” has simply nothing to do with “the Gorelick wall ”
For what it’s worth, I can’t understand why you’d say that because the NSA is some sort of military organization [footnote 3], that a judge (e.g., the FISA Court) cannot enter (or reject approval of) orders concerning the data collection activities which NSA engages in, where (a) such activities are by the plain language of the statute covered by (regulated by) the statute. Your analogies are wholly unpersuasive (dissimilar factually and legally), and what’s more, we know that on occasion (pre-911) the NSA has sought court approval to specifically target US Persons. (See, remarks of NSA Director, General Michael Hayden [footnote 4]) And we know also that AG Gonzalez has confirmed that the type of surveillance at issue *requires* a court order (or to be otherwise authorized by Congress).[footnote 5]. Finally, what totally astounds me is that after you go on and on about this supposed chain of command dilemma (and thus the supposed absolute preposterousness of any court (much less the FISA) Court being able to regulate the activities of the NSA, as provided by statute [footnote 6]), then you go and say something like this (in your recent post (your first post on this thread to address any points raised in my posts on this thread)):
“The NSA situation is similar. They have the authority to listen in on certain TARGETS and anyone who contacts them. So they can monitor a call to someone in the US. They just cannot go and start monitoring the person in the US fully until the warrent is provided by the FIS Court”
This statement seems to confirm that you understand that they (“the NSA”) cannot legally target a US person, unless given authorization by the FISA Court. This confirmation makes bollocks of your “chain-of-command” argument (either the FISA court can or cannot enter (etc) such orders to the NSA, as you have complained of) , and, so far as I understand it, it likewise makes bollocks of your entire point that the NYT’s misreported the matter and that the talking heads are all fools on this story. I confess, I’m at a total loss how one person could hold such contradictory thoughts in his head at once. I’m at a total loss as to how you can have misread the public record so badly.
But, like I said several posts ago, maybe I’m wrong. Indeed, maybe I’m stupidly wrong about one or more things. Now that you seem to have “entered the fray”, AJ, perhaps you can explain to me where, precisely, I’ve erred in my analysis. I’ve attempted to set forth my thoughts as clearly and in as logically organized a fashion as possible, so perhaps you (or any other reader) can return the favor.
– Regards
[footnote 1]
See, e.g., basically all numbered references in my my second to last post (I think; anyway, it starts with “A. With respect to the “factual question ”). See particularly (perhaps) the AG’s statements/testimony.
[footnote 3].
I’d previously conceded that the NSA is some kind of military organization, but I don’t think that’s right, on reflection. I think NSA is simply “an agency” (and not, e.g., in the chain of command of DoD), but whether it is or isn’t as a matter of fact is immaterial re: the issue at hand.
[footnote 4].
See, e.g., remarks of Hayden, in my 2d to last post, at point numbered 4 (in part “..that since 1978 ‘’there have been no more than a very few instances of NSA seeking [court] authorization to target a US person in the United States. ”)
[footnote 5].
See, e.g., remarks of the AG, in my 2d to last post, at point numbered 5. (Here, in part:)
“…Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides — requires a court order before engaging in this kind of surveillance that I’ve just discussed and the President announced on Saturday, unless there is somehow — there is — unless otherwise authorized by statute or by Congress. That’s what the law requires…”
[footnote 6]
Parenthetically, have you ever seen anyone else argue or even suggest this “chain of command” argument? Anyone? Please share. This blog is the only place I’ve seen it (and I’m wholly unsuprised).
DGF,
The fact you don’t know something doesn’t make it untrue. What I described for warranted searches is completely accurate. Maybe if you that and pondered the matter instead of having to be hand held (show me) to every little detail you would finally understand. Do you think police get warrants for every person who may call a criminal under surveillance or do they just get the warrant for the criminal? Is the criminal the named TARGET of the warrant or all the CONTACTS he makes while under surveillance also named in the warrant?
It doesn’t take a lot of effort to figure that part out. I f you can grasp that much then the next step is trivial. Warrants are not the only way to legally search and monitor. Once any legal authority is given to search or monitor a TARGET, then the CONTACTS fall into that legal authority. Another example for those who need to be led every step of the way. When a car is pulled over the prime TARGET is the driver. Other occupants are considered incidental relations (in the parallel of a surveillance example, the CONTACT) to the driver. Interestingly, the same probable cause (without a warrant) that may allow a search of the driver can allow a search of the passengers.
This is not that hard. Maybe you should be less of a “show me” kind of person. Then you won’t have to trust the people ”showing you” to be honest with you.
AJ –
Thank you for your comments. So far as I can tell, however, they do not address the issues I originally commented on (and which I have reprised in several posts). I will confess I understand why you just wrote on the topic you did, as you did. E.g., I cannot make out which numbered point(s) or lettered paragraph(s) your remarks are supposedly relevant to, and hence which are the portion(s) and/or steps in my analysis are (suppposedly) faulty.
With respect to the issues I originally commented on (and which I have reprised in several posts):
1. you have not shown why my analysis is incorrect, in concluding that you representation that the NYT and Talking Heads are such fools on the NSA Question.
2. you have not shown why my analysis is incorrect in concluding that your “chain of command” point is bollocks.
3. you have not shown why or how I was wrong to conclude that your assertion that “The NSA portion of this issue has always been ‘legal’.” is bollocks.
Whoops –
“I will confess I understand why you just wrote on the topic you did, as you did.” should read —
“I will confess I do not understand why you just wrote on the topic you did, as you did.”
Second Whoops (apologies)
“. you have not shown why my analysis is incorrect, in concluding that you representation that the NYT and Talking Heads are such fools on the NSA Question.”
should read —
“. you have not shown why my analysis is incorrect, in concluding that you representation that the NYT and Talking Heads are such fools on the NSA Question is bollocks.”
and (for that matter), a “that” missing, prior to “are (suppposedly) faulty.”
(and probably more. No more posting, clearly, until I’ve had more coffee. Again apologies.)
Regards
Additional Whoops –
I am chagrined to acknowledge yet a further correction; please insert in the relevant post above the words “the absence of”, as indicated below.
D. This is the gist of the Brouhaha: President Bush authorized a regime wherein US Persons, who were targets of NSA monitoring, were being monitored notwithstanding THE ABSENCE OF a warrant or other court approval.
Further apologies yet.
The most compelling and direct source of the President’s legal authority to conduct the Terrorist Surveillance Program without obtaining a warrant is the US Constitution. The President’s constitutional authority to gather intelligence comes from the President’s constitutional power to reserve any “judgment on the scope of the President’s surveillance power with respect to the activities of foreign powers within or without this country.†(United States vs. United States District Court, 1972). This case’s reference to intelligence collection applies to the Terrorist Surveillance Program because it is limited to the collection of intelligence on foreign powers by only monitoring conversations between US persons and persons outside of the United States (Moschella, 7). There is nothing in the constitution which precludes the President from collecting foreign intelligence by way of domestic sources (i.e. a wiretap on a US Citizen). The presidential authority to collect foreign intelligence domestically was upheld in the case of United States vs. Brown (1973) by the majority opinion which asserted that “because of the President’s constitutional duty to act for the US in the filed of foreign relations, and his inherent power to protect the national security in the context of foreign affairs, the President may constitutionally authorize warrantless wiretaps for the purpose of gathering foreign intelligence.†Many critics have put forth the argument that because the 1973 decision was made before the passing of the FISA Act (Foreign Intelligence Surveillance Act of 1978) it is not valid, however this is ignoring the fact that the Supreme Court makes it’s decision purely based on constitutionality, not on laws passed by congress. Furthermore, despite the fact that the US vs. Brown decision was passed before the FISA Act of 1978, the constitutional power it interprets cannot legally be removed by any act of congress. Several Supreme Court cases have upheld that Congress may not remove any power granted to the President by the constitution, including In Re Sealed Case 310. F. 3d (2002) which asserts that “the President has inherent constitutional authority to collect foreign intelligence – authority Congress may not circumscribeâ€. This case clearly upholds that even if the FISA Act were to make the President’s actions illegal, this illegality is invalid because it removes a power granted to him by the constitution. The fact that the Supreme Court has upheld the President’s authority to conduct warrantless domestic collection of foreign intelligence, coupled with the fact that this power cannot be removed by congress, clearly gives the President constitutional authority to conduct the warrantless wiretap program.
Constitutionality aside, the Foreign Intelligence Surveillance Act itself has a caveat in it which allows for foreign intelligence collection agencies to conduct domestic collection without obtaining the warrant. US Code § 1802 states that “the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one yearâ€. Although there was no warrant acquired from the FISA Court to conduct the wiretaps, Attorney General’s approval was sought and given. It is not clear why the press has chosen to completely omit this section in the law during it’s reporting, but the nomenclature is very clear. If there were any confusion about the wording of that section of the FISA Act, the process of obtaining Attorney General approval for domestic intelligence collection is re-iterated in Executive Order 12333 Section 2.5 (1980) which states that “The Attorney General hereby is delegated the power to approve the use for intelligence purposes, within the United States or against a United States person abroad, of any technique for which a warrant would be required if undertaken for law enforcement purposesâ€. This Executive Order was passed 26 years ago and was not challenged until the recent actions of the Bush Administration. In addition to the President seeking approval of the wiretaps before conducting them, he also sought the legal counsel of the Attorney General before the start of the program in order to ensure it’s legality. The fact that President Bush followed outlined provisions from US Code and Executive Order to conduct warrantless wiretaps, in addition to the fact that legal counsel was sought in advance, denotes a clear intent to conduct the program legally by the President himself. Even if the program were proven to be illegal, the President’s actions could never be because he was operating within established procedure and precedence.
The third argument that can be made for legality stems from Congress’s “Authorization for the use of Military Force†against Al-Qaeda. The “Authorization for Use of Military Force Against Terrorists†(AUMF) passed by Congress Section 2(a) authorizes the President to “use all necessary… force against those nations, organizations or persons he determines planned, authorized, committed or aided the [9/11] terrorist attacks.†This authorization, much like ones in the past, puts the President in similar executive position as previous Presidents during time of war. The Attorney General (in a letter to congress, 28 February 2006) asserts that this AUMF, authorizes the President to use “all necessary force†against Al-Qaeda includes the conducting of “foreign surveillanceâ€. Furthermore, domestic surveillance can be triggered if an executive-branch official has reasonable grounds to believe that a communication involves a person “affiliated with al-Qaeda or part of an organization or group that is supportive of al-Qaeda.†(28 February, 2006). This assertion was reiterated in a Department of Justice memorandum which explains that the President was purposefully given broad authority to combat Al-Qaeda because of the nature and uniqueness of the threat (2). That authority can be used “to prevent further catastrophic attack expressly conferred on the President by the Constitution and confirmed and supplemented by Congress in the AUMF—has legal authority to authorize the NSA to conduct the signals intelligence activities he has described. Those activities are authorized by the Constitution and by statute, and they violate neither FISA nor the Fourth Amendment.†(3). The President was given broad authority to combat Al-Qaeda’s domestic threat, and part of that domestic threat includes Al-Qaeda’s domestic conduct. The only way to wage war against an enemy which operates on American soil is to use the tools of war on America soil. One of the most vital tools of waging war is intelligence surveillance.
Contemporary issues notwithstanding, history has provided precedence for conducting programs such as the Terrorist Surveillance Program. The war against Al-Qaeda is the first congressionally sanctioned war since World War II in which the United States is combating an enemy that has the capability of directly attacking the United States of America. The act of warrantless wiretapping itself has been engaged in by three previous US Presidents. Woodrow Wilson conducted wiretaps on all incoming wires from outside of the country during World War I under the guise of special “War Powersâ€. Franklin Roosevelt authorized a similar warrantless program during World War II, even after the Supreme Court had established the need to obtain a warrant for such actions in 1924. The “War Powers†President Bush is afforded to fight Al Qaeda should at least be considered partially as strong as those of Wilson and Franklin. This is not only because of the AUMF’s language, but also because Al Qaeda is the only foreign power to threaten US soil since World War II. More recently, President Richard Nixon conducted warrantless wiretaps outside of the declaration of war during the 1970s, citing his intelligence collection authority and nothing else as justification (Halperin, 2). These actions are consistent with the historical trend of Presidents taking on special powers, sometimes at the expense of civil liberties or outside of the scope of presidential authority, to combat temporary and unique threats. From Abraham Lincoln’s declaration of martial law to Roosevelt’s seizure of the steel industry (Fisher, 106), Presidents have exercised special powers specifically tailored to unique threats. These threats are not limited to security threats, and the expansion of power in the time of crisis is not limited to powers of war or violation of civil liberties. One especially compelling example of this was the expansion of the scope of Presidential power during the administrations of Roosevelt, Truman, Eisenhower and Johnson to force state and local authorities to enforce anti-discrimination laws (Fisher, 107). Although this is often argued as being well outside of the scope of Presidential power, it was necessary to combat the uniqueness of the problem at hand. President Bush’s Terrorist Surveillance Program is more regulated, smaller in scale and more within the scope of Presidential powers than the majority of “War Powers†exercised by his predecessors. Presidents have used “War Powers†and “Special Powers†to do things such as falsely imprison citizens, take power away from States, violate privacy and seize private companies for government use. It is clear that, from a historical standpoint, President Bush’s program falls well within the traditional scope of appropriate presidential power during times of national crisis. Furthermore, it pales in comparison to the actions taken by his predecessors in similarly grievous times of crisis.
Despite the evidence presented, the question of the programs legality is as of yet undetermined. Circuit Court Judge Taylor recently ruled the program was illegal in the case of ACLU vs NSA on the 4th of September, 2006. This decision, although suspended and not yet an established precedence, could be taken to show that there are still many questions remaining about the legality of the program. This is called into questions by many critics of the decision that have argued Judge Taylor failed to address the specific statues authorizing the President’s actions as well as established judicial precedence. The largest problem with the decision stems from it’s blatant failure to address the President’s constitutional intelligence gathering authority (Taylor, 2-3). The judge’s argument focuses on the ideological aspects of the fourth amendment, but fails to address the issue of powers afforded to the President specifically by the constitution. The decision will not be final until it is upheld or overturned by the Supreme Court in appeal, so for now the question of the constitutionality of the Terrorist Surveillance Program is still up for debate.
In the end, the question of the Terrorist Surveillance Program’s legality is one that includes many long standing legal debates. These debates include how to interpret the Constitution, presidential power in times of war and subtleties in the nature of the balance of power between the three branches of government. The nature of presidential power during times of crisis is one of those often debated issue. There, however, may never be a definitive interpretation of the constitution which determines what the scope of the President’s special powers is during times of crisis. Despite the gray areas in issues such as War Powers and Authorization for use of Military force, the constitution and US Code are very clear. The President has the established constitutional authority to conduct this program. Not only that, the President clearly followed established statutes in the way he chose to conduct the program. Many quickly dispel the arguments of constitutional presidential power and presidential “War Powers†in a time of war by saying the nature of our nation’s understanding of the Constitution has changed. In response to those that would argue the nature of presidential power has changed over time, Attorney General Alberto Gonzales points out that even as recently as the Clinton administration this type of conduct was acceptable for a President, “During the Clinton Administration, Deputy Attorney General Jamie Gorelick testified before Congress in 1994 that the President has inherent authority under the Constitution to conduct foreign intelligence searches of the private homes of U.S. citizens in the United States without a warrant, and that such warrantless searches are permissible under the Fourth Amendment†(2). President Bush conducted the terrorist program within the scope of his power as determined by the constitution, congressional acts, judicial rulings and historical precedence. Therefore, until the Supreme Court weighs in on the issue, the Terrorist Surveillance Program will have to remain innocent until proven guilty.
Works Cited
“ACLU vs. NSA judgment.†Wikisource, The Free Library. 3 Sep 2006, 14:19 UTC. 4 Sep 2006, 09:35
Halperin, Morton H. “A Legal Analysis of the NSA Warrantless Surveillance Program†(17 Jan, 2006) Washington D.C.
United States Congress. “Authorization for Use of Military Force†Public law 107-40. (18 Sep 2001) Washington D.C.
Fisher, Louis. Constitutional Conflicts Between Congress and the President University of Kansas Press (1991) Lawrence, Kansas
President Regan, Ronald W. “Executive Order 12333–United States intelligence activities†(December 4th, 1981) Washington D.C.
Whitehead, John W. “Forfeiting ‘ENDURING FREEDOM’ for ‘HOMELAND SECURITY’: A constitutional analysis of the USA Patriot Act†American University Law Review 51 (2002): 1081-1153
U.S. Supreme Court. In Re Sealed Case, 310 F. 3d 717, 792 (2002) Washington D.C.
Department of Justice “Legal Authorities Supporting the Activities of the National Security Agency Described by the Presidentâ€. (19 Jan, 2006) Wasghinton D.C.
Moschella, William E. “Letter in Response to Questions From Chairman Sensenbrenner.†US Department of Justice (March 24, 2006) Washington D.C.
Gonzales, Alberto R. “Prepared Statement of Hon. Alberto R. Gonzales, Attorney General of the United States†US Department of Justice. (February 6, 2006) Washington D.C.
Gonzales, Alberto R. Testimony before the Senate Judiciary Committee. CongressDaily (28 Feb, 2006) Washington, D.C.
Kozak, David C. and Ciboski, Kenneth N. The American Presidency Nelson Hall Inc. (1985) Chicago, Illinois
5th Circuit Court of Appeals. United States Vs. Brown, 484 F. 2d 418 (1973) New Orleans, Louisiana
U.S. Supreme Court. United States Vs. United States District Court (â€Keithâ€), 407 U.S. 197, 308 (1972) Washington D.C.
U.S. Congress. “U.S. CODE TITLE 50 CHAPTER 36—FOREIGN INTELLIGENCE SURVEILLANCE†(1978) Washington D.C.
The most compelling and direct source of the President’s legal authority to conduct the Terrorist Surveillance Program without obtaining a warrant is the US Constitution. The President’s constitutional authority to gather intelligence comes from the President’s constitutional power to reserve any “judgment on the scope of the President’s surveillance power with respect to the activities of foreign powers within or without this country.†(United States vs. United States District Court, 1972). This case’s reference to intelligence collection applies to the Terrorist Surveillance Program because it is limited to the collection of intelligence on foreign powers by only monitoring conversations between US persons and persons outside of the United States (Moschella, 7). There is nothing in the constitution which precludes the President from collecting foreign intelligence by way of domestic sources (i.e. a wiretap on a US Citizen). The presidential authority to collect foreign intelligence domestically was upheld in the case of United States vs. Brown (1973) by the majority opinion which asserted that “because of the President’s constitutional duty to act for the US in the filed of foreign relations, and his inherent power to protect the national security in the context of foreign affairs, the President may constitutionally authorize warrantless wiretaps for the purpose of gathering foreign intelligence.†Many critics have put forth the argument that because the 1973 decision was made before the passing of the FISA Act (Foreign Intelligence Surveillance Act of 1978) it is not valid, however this is ignoring the fact that the Supreme Court makes it’s decision purely based on constitutionality, not on laws passed by congress. Furthermore, despite the fact that the US vs. Brown decision was passed before the FISA Act of 1978, the constitutional power it interprets cannot legally be removed by any act of congress. Several Supreme Court cases have upheld that Congress may not remove any power granted to the President by the constitution, including In Re Sealed Case 310. F. 3d (2002) which asserts that “the President has inherent constitutional authority to collect foreign intelligence – authority Congress may not circumscribeâ€. This case clearly upholds that even if the FISA Act were to make the President’s actions illegal, this illegality is invalid because it removes a power granted to him by the constitution. The fact that the Supreme Court has upheld the President’s authority to conduct warrantless domestic collection of foreign intelligence, coupled with the fact that this power cannot be removed by congress, clearly gives the President constitutional authority to conduct the warrantless wiretap program.
Constitutionality aside, the Foreign Intelligence Surveillance Act itself has a caveat in it which allows for foreign intelligence collection agencies to conduct domestic collection without obtaining the warrant. US Code § 1802 states that “the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one yearâ€. Although there was no warrant acquired from the FISA Court to conduct the wiretaps, Attorney General’s approval was sought and given. It is not clear why the press has chosen to completely omit this section in the law during it’s reporting, but the nomenclature is very clear. If there were any confusion about the wording of that section of the FISA Act, the process of obtaining Attorney General approval for domestic intelligence collection is re-iterated in Executive Order 12333 Section 2.5 (1980) which states that “The Attorney General hereby is delegated the power to approve the use for intelligence purposes, within the United States or against a United States person abroad, of any technique for which a warrant would be required if undertaken for law enforcement purposesâ€. This Executive Order was passed 26 years ago and was not challenged until the recent actions of the Bush Administration. In addition to the President seeking approval of the wiretaps before conducting them, he also sought the legal counsel of the Attorney General before the start of the program in order to ensure it’s legality. The fact that President Bush followed outlined provisions from US Code and Executive Order to conduct warrantless wiretaps, in addition to the fact that legal counsel was sought in advance, denotes a clear intent to conduct the program legally by the President himself. Even if the program were proven to be illegal, the President’s actions could never be because he was operating within established procedure and precedence.
The third argument that can be made for legality stems from Congress’s “Authorization for the use of Military Force†against Al-Qaeda. The “Authorization for Use of Military Force Against Terrorists†(AUMF) passed by Congress Section 2(a) authorizes the President to “use all necessary… force against those nations, organizations or persons he determines planned, authorized, committed or aided the [9/11] terrorist attacks.†This authorization, much like ones in the past, puts the President in similar executive position as previous Presidents during time of war. The Attorney General (in a letter to congress, 28 February 2006) asserts that this AUMF, authorizes the President to use “all necessary force†against Al-Qaeda includes the conducting of “foreign surveillanceâ€. Furthermore, domestic surveillance can be triggered if an executive-branch official has reasonable grounds to believe that a communication involves a person “affiliated with al-Qaeda or part of an organization or group that is supportive of al-Qaeda.†(28 February, 2006). This assertion was reiterated in a Department of Justice memorandum which explains that the President was purposefully given broad authority to combat Al-Qaeda because of the nature and uniqueness of the threat (2). That authority can be used “to prevent further catastrophic attack expressly conferred on the President by the Constitution and confirmed and supplemented by Congress in the AUMF—has legal authority to authorize the NSA to conduct the signals intelligence activities he has described. Those activities are authorized by the Constitution and by statute, and they violate neither FISA nor the Fourth Amendment.†(3). The President was given broad authority to combat Al-Qaeda’s domestic threat, and part of that domestic threat includes Al-Qaeda’s domestic conduct. The only way to wage war against an enemy which operates on American soil is to use the tools of war on America soil. One of the most vital tools of waging war is intelligence surveillance.
Contemporary issues notwithstanding, history has provided precedence for conducting programs such as the Terrorist Surveillance Program. The war against Al-Qaeda is the first congressionally sanctioned war since World War II in which the United States is combating an enemy that has the capability of directly attacking the United States of America. The act of warrantless wiretapping itself has been engaged in by three previous US Presidents. Woodrow Wilson conducted wiretaps on all incoming wires from outside of the country during World War I under the guise of special “War Powersâ€. Franklin Roosevelt authorized a similar warrantless program during World War II, even after the Supreme Court had established the need to obtain a warrant for such actions in 1924. The “War Powers†President Bush is afforded to fight Al Qaeda should at least be considered partially as strong as those of Wilson and Franklin. This is not only because of the AUMF’s language, but also because Al Qaeda is the only foreign power to threaten US soil since World War II. More recently, President Richard Nixon conducted warrantless wiretaps outside of the declaration of war during the 1970s, citing his intelligence collection authority and nothing else as justification (Halperin, 2). These actions are consistent with the historical trend of Presidents taking on special powers, sometimes at the expense of civil liberties or outside of the scope of presidential authority, to combat temporary and unique threats. From Abraham Lincoln’s declaration of martial law to Roosevelt’s seizure of the steel industry (Fisher, 106), Presidents have exercised special powers specifically tailored to unique threats. These threats are not limited to security threats, and the expansion of power in the time of crisis is not limited to powers of war or violation of civil liberties. One especially compelling example of this was the expansion of the scope of Presidential power during the administrations of Roosevelt, Truman, Eisenhower and Johnson to force state and local authorities to enforce anti-discrimination laws (Fisher, 107). Although this is often argued as being well outside of the scope of Presidential power, it was necessary to combat the uniqueness of the problem at hand. President Bush’s Terrorist Surveillance Program is more regulated, smaller in scale and more within the scope of Presidential powers than the majority of “War Powers†exercised by his predecessors. Presidents have used “War Powers†and “Special Powers†to do things such as falsely imprison citizens, take power away from States, violate privacy and seize private companies for government use. It is clear that, from a historical standpoint, President Bush’s program falls well within the traditional scope of appropriate presidential power during times of national crisis. Furthermore, it pales in comparison to the actions taken by his predecessors in similarly grievous times of crisis.
Despite the evidence presented, the question of the programs legality is as of yet undetermined. Circuit Court Judge Taylor recently ruled the program was illegal in the case of ACLU vs NSA on the 4th of September, 2006. This decision, although suspended and not yet an established precedence, could be taken to show that there are still many questions remaining about the legality of the program. This is called into questions by many critics of the decision that have argued Judge Taylor failed to address the specific statues authorizing the President’s actions as well as established judicial precedence. The largest problem with the decision stems from it’s blatant failure to address the President’s constitutional intelligence gathering authority (Taylor, 2-3). The judge’s argument focuses on the ideological aspects of the fourth amendment, but fails to address the issue of powers afforded to the President specifically by the constitution. The decision will not be final until it is upheld or overturned by the Supreme Court in appeal, so for now the question of the constitutionality of the Terrorist Surveillance Program is still up for debate.
In the end, the question of the Terrorist Surveillance Program’s legality is one that includes many long standing legal debates. These debates include how to interpret the Constitution, presidential power in times of war and subtleties in the nature of the balance of power between the three branches of government. The nature of presidential power during times of crisis is one of those often debated issue. There, however, may never be a definitive interpretation of the constitution which determines what the scope of the President’s special powers is during times of crisis. Despite the gray areas in issues such as War Powers and Authorization for use of Military force, the constitution and US Code are very clear. The President has the established constitutional authority to conduct this program. Not only that, the President clearly followed established statutes in the way he chose to conduct the program. Many quickly dispel the arguments of constitutional presidential power and presidential “War Powers†in a time of war by saying the nature of our nation’s understanding of the Constitution has changed. In response to those that would argue the nature of presidential power has changed over time, Attorney General Alberto Gonzales points out that even as recently as the Clinton administration this type of conduct was acceptable for a President, “During the Clinton Administration, Deputy Attorney General Jamie Gorelick testified before Congress in 1994 that the President has inherent authority under the Constitution to conduct foreign intelligence searches of the private homes of U.S. citizens in the United States without a warrant, and that such warrantless searches are permissible under the Fourth Amendment†(2). President Bush conducted the terrorist program within the scope of his power as determined by the constitution, congressional acts, judicial rulings and historical precedence. Therefore, until the Supreme Court weighs in on the issue, the Terrorist Surveillance Program will have to remain innocent until proven guilty.
For the full story go to http://blog.leihai.com/
Works Cited
“ACLU vs. NSA judgment.†Wikisource, The Free Library. 3 Sep 2006, 14:19 UTC. 4 Sep 2006, 09:35
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Fisher, Louis. Constitutional Conflicts Between Congress and the President University of Kansas Press (1991) Lawrence, Kansas
President Regan, Ronald W. “Executive Order 12333–United States intelligence activities†(December 4th, 1981) Washington D.C.
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