Why the NSA Surveillance Program is Unlawful

For those readers interested in a serious analysis of the legality of the President's authorization of NSA surveillance on American citizens, I recommend the following, which was written and signed by fourteen constitutional scholars and former government officials (including Richard Epstein and me) in response to a memorandum submitted to Congress by the Department of Justice:

Dear Members of Congress:

We are scholars of constitutional law and former government officials. We write in our individual capacities as citizens concerned by the Bush Administration's National Security Agency domestic spying program, as reported in the New York Times, and in particular to respond to the Justice Department's December 22, 2005 letter to the majority and minority leaders of the House and Senate Intelligence Committees setting forth the administration's defense of the program. Although the program's secrecy prevents us from being privy to all of its details, the Justice Department's defense of what it concedes was secret and warrantless electronic surveillance of persons within the United States fails to identify any plausible legal authority for such surveillance. Accordingly the program appears on its face to violate existing law.

The basic legal question here is not new. In 1978, after an extensive investigation of the privacy violations associated with foreign intelligence surveillance programs, Congress and the President enacted the Foreign Intelligence Surveillance Act (FISA). Pub. L. 95-511, 92 Stat. 1783. FISA comprehensively regulates electronic surveillance within the United States, striking a careful balance between protecting civil liberties and preserving the "vitally important government purpose" of obtaining valuable intelligence in order to safeguard national security. S. Rep. No. 95-604, pt. 1, at 9 (1977).

With minor exceptions, FISA authorizes electronic surveillance only upon certain specified showings, and only if approved by a court. The statute specifically allows for warrantless wartime domestic electronic surveillance--but only for the first fifteen days of a war. 50 U.S.C. § 1811. It makes criminal any electronic surveillance not authorized by statute, id. § 1809; and it expressly establishes FISA and specified provisions of the federal criminal code (which govern wiretaps for criminal investigation) as the "exclusive means by which electronic surveillance ... may be conducted," 18 U.S.C. § 2511(2)(f) (emphasis added).

The Department of Justice concedes that the NSA program was not authorized by any of the above provisions. It maintains, however, that the program did not violate existing law because Congress implicitly authorized the NSA program when it enacted the Authorization for Use of Military Force (AUMF) against al Qaeda, Pub. L. No. 107-40, 115 Stat. 224 (2001). But the AUMF cannot reasonably be construed to implicitly authorize warrantless electronic surveillance in the United States during wartime, where Congress has expressly and specifically addressed that precise question in FISA and limited any such warrantless surveillance to the first fifteen days of war.

The DOJ also invokes the President's inherent constitutional authority as Commander in Chief to collect "signals intelligence" targeted at the enemy, and maintains that construing FISA to prohibit the President's actions would raise constitutional questions. But even conceding that the President in his role as Commander in Chief may generally collect signals intelligence on the enemy abroad, Congress indisputably has authority to regulate electronic surveillance within the United States, as it has done in FISA. Where Congress has so regulated, the President can act in contravention of statute only if his authority is exclusive, and not subject to the check of statutory regulation. The DOJ letter pointedly does not make that extraordinary claim.

Moreover, to construe the AUMF as the DOJ suggests would itself raise serious constitutional questions under the Fourth Amendment. The Supreme Court has never upheld warrantless wiretapping within the United States. Accordingly, the principle that statutes should be construed to avoid serious constitutional questions provides an additional reason for concluding that the AUMF does not authorize the President's actions here.

I. CONGRESS DID NOT IMPLICITLY AUTHORIZE THE NSA DOMESTIC SPYING PROGRAM IN THE AUMF, AND IN FACT EXPRESSLY PROHIBITED IT IN FISA

The DOJ concedes (Letter at 4) that the NSA program involves "electronic surveillance," which is defined in FISA to mean the interception of the contents of telephone, wire, or email communications that occur, at least in part, in the United States. 50 U.S.C. §§ 1801(f)(1)-(2), 1801(n). NSA engages in such surveillance without judicial approval, and apparently without the substantive showings that FISA requires--e.g., that the subject is an "agent of a foreign power." Id. § 1805(a). The DOJ does not argue that FISA itself authorizes such electronic surveillance; and, as the DOJ letter acknowledges, 18 U.S.C. § 1809 makes criminal any electronic surveillance not authorized by statute.

The DOJ nevertheless contends that the surveillance is authorized by the AUMF, signed on September 18, 2001, which empowers the President to use "all necessary and appropriate force against" al Qaeda. According to the DOJ, collecting "signals intelligence" on the enemy, even if it involves tapping U.S. phones without court approval or probable cause, is a "fundamental incident of war" authorized by the AUMF. This argument fails for four reasons.

First, and most importantly, the DOJ's argument rests on an unstated general "implication" from the AUMF that directly contradicts express and specific language in FISA. Specific and "carefully drawn" statutes prevail over general statutes where there is a conflict. Morales v. TWA, Inc., 504 U.S. 374, 384-85 (1992) (quoting International Paper Co. v. Ouelette, 479 U.S. 481, 494 (1987)). In FISA, Congress has directly and specifically spoken on the question of domestic warrantless wiretapping, including during wartime, and it could not have spoken more clearly.

As noted above, Congress has comprehensively regulated all electronic surveillance in the United States, and authorizes such surveillance only pursuant to specific statutes designated as the "exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted." 18 U.S.C. § 2511(2)(f) (emphasis added). Moreover, FISA specifically addresses the question of domestic wiretapping during wartime. In a provision entitled "Authorization during time of war," FISA dictates that "[n]otwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress." 50 U.S.C. § 1811 (emphasis added). Thus, even where Congress has declared war--a more formal step than an authorization such as the AUMF--the law limits warrantless wiretapping to the first fifteen days of the conflict. Congress explained that if the President needed further warrantless surveillance during wartime, the fifteen days would be sufficient for Congress to consider and enact further authorization. Rather than follow this course, the President acted unilaterally and secretly in contravention of FISA's terms. The DOJ letter remarkably does not even mention FISA's fifteen-day war provision, which directly refutes the President's asserted "implied" authority.

In light of the specific and comprehensive regulation of FISA, especially the fifteen-day war provision, there is no basis for finding in the AUMF's general language implicit authority for unchecked warrantless domestic wiretapping. As Justice Frankfurter stated in rejecting a similar argument by President Truman when he sought to defend the seizure of the steel mills during the Korean War on the basis of implied congressional authorization: "It is one thing to draw an intention of Congress from general language and to say that Congress would have explicitly written what is inferred, where Congress has not addressed itself to a specific situation. It is quite impossible, however, when Congress did specifically address itself to a problem, as Congress did to that of seizure, to find secreted in the interstices of legislation the very grant of power which Congress consciously withheld. To find authority so explicitly withheld is ... to disrespect the whole legislative process and the constitutional division of authority between President and Congress." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 609 (1952) (Frankfurter, J., concurring).

Second, the DOJ's argument would require the conclusion that Congress implicitly and sub silentio repealed 18 U.S.C. § 2511(2)(f), the provision that identifies FISA and specific criminal code provisions as "the exclusive means by which electronic surveillance . . . may be conducted." Repeals by implication are strongly disfavored; they can be established only by "overwhelming evidence," J.E.M. Ag. Supply, Inc. v. Pioneer Hi-Bred Int'l, Inc., 534 U.S. 124, 137 (2001), and "'the only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable,'" id. at 141-142 (quoting Morton v. Mancari, 417 U.S. 535, 550 (1974)). The AUMF and § 2511(2)(f) are not irreconcilable, and there is no evidence, let alone overwhelming evidence, that Congress intended to repeal § 2511(2)(f).

Third, Attorney General Alberto Gonzales has admitted that the administration did not seek to amend FISA to authorize the NSA spying program because it was advised that Congress would reject such an amendment. The administration cannot argue on the one hand that Congress authorized the NSA program in the AUMF, and at the same time that it did not ask Congress for such authorization because it feared Congress would say no.

Finally, the DOJ's reliance upon Hamdi v. Rumsfeld, 542 U.S. 507 (2004), to support its reading of the AUMF, see DOJ Letter at 3, is misplaced. A plurality of the Court in Hamdi held that the AUMF authorized military detention of enemy combatants captured on the battlefield abroad as a "fundamental incident of waging war." Id. at 519. The plurality expressly limited this holding to individuals who were "part of or supporting forces hostile to the United States or coalition partners in Afghanistan and who engaged in an armed conflict against the United States there." Id. at 516 (emphasis added). It is one thing, however, to say that foreign battlefield capture of enemy combatants is an incident of waging war that Congress intended to authorize. It is another matter entirely to treat unchecked warrantless domestic spying as included in that authorization, especially where an existing statute specifies that other laws are the "exclusive means" by which electronic surveillance may be conducted and provides that even a declaration of war authorizes such spying only for a fifteen-day emergency period.

II. CONSTRUING FISA TO PROHIBIT WARRANTLESS DOMESTIC WIRETAPPING DOES NOT RAISE ANY SERIOUS CONSTITUTIONAL QUESTION, WHEREAS CONSTRUING THE AUMF TO AUTHORIZE SUCH WIRETAPPING WOULD RAISE SERIOUS QUESTIONS UNDER THE FOURTH AMENDMENT

The DOJ argues that FISA and the AUMF should be construed to permit the NSA program's domestic surveillance because otherwise there might be a "conflict between FISA and the President's Article II authority as Commander-in-Chief." DOJ Letter at 4. The statutory scheme described above is not ambiguous, and therefore the constitutional avoidance doctrine is not even implicated. See United States v. Oakland Cannabis Buyers' Coop., 532 U.S. 483, 494 (2001) (the "canon of constitutional avoidance has no application in the absence of statutory ambiguity"). But were it implicated, it would work against the President, not in his favor. Construing FISA and the AUMF according to their plain meanings raises no serious constitutional questions regarding the President's duties under Article II. Construing the AUMF to permit unchecked warrantless wiretapping without probable cause, however, would raise serious questions under the Fourth Amendment.

A. FISA's Limitations Are Consistent with the President's Article II Role

We do not dispute that, absent congressional action, the President might have inherent constitutional authority to collect "signals intelligence" about the enemy abroad. Nor do we dispute that, had Congress taken no action in this area, the President might well be constitutionally empowered to conduct domestic surveillance directly tied and narrowly confined to that goal--subject, of course, to Fourth Amendment limits. Indeed, in the years before FISA was enacted, the federal law involving wiretapping specifically provided that "[n]othing contained in this chapter or in section 605 of the Communications Act of 1934 shall limit the constitutional power of the President . . . to obtain foreign intelligence information deemed essential to the security of the United States." 18 U.S.C. § 2511(3) (1976).

But FISA specifically repealed that provision. FISA § 201(c), 92 Stat. 1797, and replaced it with language dictating that FISA and the criminal code are the "exclusive means" of conducting electronic surveillance. In doing so, Congress did not deny that the President has constitutional power to conduct electronic surveillance for national security purposes; rather, Congress properly concluded that "even if the President has the inherent authority in the absence of legislation to authorize warrantless electronic surveillance for foreign intelligence purposes, Congress has the power to regulate the conduct of such surveillance by legislating a reasonable procedure, which then becomes the exclusive means by which such surveillance may be conducted." H.R. Rep. No. 95-1283, pt. 1, at 24 (1978) (emphasis added). This analysis, Congress noted, was "supported by two successive Attorneys General." Id.

To say that the President has inherent authority does not mean that his authority is exclusive, or that his conduct is not subject to statutory regulations enacted (as FISA was) pursuant to Congress's Article I powers. As Justice Jackson famously explained in his influential opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. at 635 (Jackson, J., concurring), the Constitution "enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress." For example, the President in his role as Commander in Chief directs military operations. But the Framers gave Congress the power to prescribe rules for the regulation of the armed and naval forces, Art. I, § 8, cl. 14, and if a duly enacted statute prohibits the military from engaging in torture or cruel, inhuman, and degrading treatment, the President must follow that dictate. As Justice Jackson wrote, when the President acts in defiance of "the expressed or implied will of Congress," his power is "at its lowest ebb." 343 U.S. at 637. In this setting, Jackson wrote, "Presidential power [is] most vulnerable to attack and in the least favorable of possible constitutional postures." Id. at 640.

Congress plainly has authority to regulate domestic wiretapping by federal agencies under its Article I powers, and the DOJ does not suggest otherwise. Indeed, when FISA was enacted, the Justice Department agreed that Congress had power to regulate such conduct, and could require judicial approval of foreign intelligence surveillance. FISA does not prohibit foreign intelligence surveillance, but merely imposes reasonable regulation to protect legitimate privacy rights. (For example, although FISA generally requires judicial approval for electronic surveillance of persons within the United States, it permits the executive branch to install a wiretap immediately so long as it obtains judicial approval within 72 hours. 50 U.S.C. § 1805(f).)

Just as the President is bound by the statutory prohibition on torture, he is bound by the statutory dictates of FISA. The DOJ once infamously argued that the President as Commander in Chief could ignore even the criminal prohibition on torture, and, more broadly still, that statutes may not "place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response." But the administration withdrew the August 2002 torture memo after it was disclosed, and for good reason the DOJ does not advance these extreme arguments here. Absent a serious question about FISA's constitutionality, there is no reason even to consider construing the AUMF to have implicitly overturned the carefully designed regulatory regime that FISA establishes. See, e.g., Reno v. Flores, 507 U.S. 292, 314 n.9 (1993) (constitutional avoidance canon applicable only if the constitutional question to be avoided is a serious one, "not to eliminate all possible contentions that the statute might be unconstitutional") (emphasis in original; citation omitted).

B. Construing the AUMF to Authorize Warrantless Domestic Wiretapping Would Raise Serious Constitutional Questions

The principle that ambiguous statutes should be construed to avoid serious constitutional questions works against the administration, not in its favor. Interpreting the AUMF and FISA to permit unchecked domestic wiretapping for the duration of the conflict with al Qaeda would certainly raise serious constitutional questions. The Supreme Court has never upheld such a sweeping power to invade the privacy of Americans at home without individualized suspicion or judicial oversight.

The NSA surveillance program permits wiretapping within the United States without either of the safeguards presumptively required by the Fourth Amendment for electronic surveillance--individualized probable cause and a warrant or other order issued by a judge or magistrate. The Court has long held that wiretaps generally require a warrant and probable cause. Katz v. United States, 389 U.S. 347 (1967). And the only time the Court considered the question of national security wiretaps, it held that the Fourth Amendment prohibits domestic security wiretaps without those safeguards. United States v. United States Dist. Court, 407 U.S. 297 (1972). Although the Court in that case left open the question of the Fourth Amendment validity of warrantless wiretaps for foreign intelligence purposes, its precedents raise serious constitutional questions about the kind of open-ended authority the President has asserted with respect to the NSA program. See id. at 316-18 (explaining difficulty of guaranteeing Fourth Amendment freedoms if domestic surveillance can be conducted solely in the discretion of the executive branch).

Indeed, serious Fourth Amendment questions about the validity of warrantless wiretapping led Congress to enact FISA, in order to "provide the secure framework by which the executive branch may conduct legitimate electronic surveillance for foreign intelligence purposes within the context of this nation's commitment to privacy and individual rights." S. Rep. No. 95-604, pt. 1, at 15 (1977) (citing, inter alia, Zweibon v, Mitchell, 516 F.2d 594 (D.C. Cir. 1975), in which "the court of appeals held that a warrant must be obtained before a wiretap is installed on a domestic organization that is neither the agent of, nor acting in collaboration with, a foreign power").

Relying on In re Sealed Case No. 02-001, the DOJ argues that the NSA program falls within an exception to the warrant and probable cause requirement for reasonable searches that serve "special needs" above and beyond ordinary law enforcement. But the existence of "special needs" has never been found to permit warrantless wiretapping. "Special needs" generally excuse the warrant and individualized suspicion requirements only where those requirements are impracticable and the intrusion on privacy is minimal. See, e.g., Griffin v. Wisconsin, 483 U.S. 868, 873 (1987). Wiretapping is not a minimal intrusion on privacy, and the experience of FISA shows that foreign intelligence surveillance can be carried out through warrants based on individualized suspicion..

The court in Sealed Case upheld FISA itself, which requires warrants issued by Article III federal judges upon an individualized showing of probable cause that the subject is an "agent of a foreign power." The NSA domestic spying program, by contrast, includes none of these safeguards. It does not require individualized judicial approval, and it does not require a showing that the target is an "agent of a foreign power." According to Attorney General Gonzales, the NSA may wiretap any person in the United States who so much as receives a communication from anyone abroad, if the administration deems either of the parties to be affiliated with al Qaeda, a member of an organization affiliated with al Qaeda, "working in support of al Qaeda," or "part of" an organization or group "that is supportive of al Qaeda." Under this reasoning, a U.S. citizen living here who received a phone call from another U.S. citizen who attends a mosque that the administration believes is "supportive" of al Qaeda could be wiretapped without a warrant. The absence of meaningful safeguards on the NSA program at a minimum raises serious questions about the validity of the program under the Fourth Amendment, and therefore supports an interpretation of the AUMF that does not undercut FISA's regulation of such conduct.

In conclusion, the DOJ letter fails to offer a plausible legal defense of the NSA domestic spying program. If the Administration felt that FISA was insufficient, the proper course was to seek legislative amendment, as it did with other aspects of FISA in the Patriot Act, and as Congress expressly contemplated when it enacted the wartime wiretap provision in FISA. One of the crucial features of a constitutional democracy is that it is always open to the President--or anyone else--to seek to change the law. But it is also beyond dispute that, in such a democracy, the President cannot simply violate criminal laws behind closed doors because he deems them obsolete or impracticable.

We hope you find these views helpful to your consideration of the legality of the NSA domestic spying program.

Sincerely,

Curtis A. Bradley
Richard and Marcy Horvitz Professor of Law, Duke University*
Former Counselor on International Law in the State Department Legal Adviser's Office, 2004

David Cole
Professor of Law, Georgetown University Law Center

Walter Dellinger
Douglas Blount Maggs Professor of Law, Duke University
Former Assistant Attorney General, Office of Legal Counsel,1993-1996
Former Acting Solicitor General of the United States, 1996-97

Ronald Dworkin
Frank Henry Sommer Professor, New York University Law School

Richard Epstein
James Parker Hall Distinguished Service Professor, University of Chicago Law School
Peter and Kirsten Bedford Senior Fellow, Hoover Institution

Harold Hongju Koh
Dean and Gerard C. and Bernice Latrobe Smith Professor of International Law, Yale Law School
Former Assistant Secretary of State for Democracy, Human Rights and Labor 1998-2001
Former Attorney-Adviser, Office of Legal Counsel, DOJ, 1983-85

Philip B. Heymann
James Barr Ames Professor, Harvard Law School
Former Deputy Attorney General, 1993-94

Martin S. Lederman
Visiting Professor, Georgetown University Law Center
Former Attorney Advisor, Department of Justice Office of Legal Counsel, 1994-2002

Beth Nolan
Former Counsel to the President, 1999-2001; Deputy Assistant Attorney General, Office of Legal Counsel, 1996-1999; Associate Counsel to the President, 1993-1995; Attorney Advisor, Office of Legal Counsel, 1981-1985

William S. Sessions
Former Director, FBI
Former Chief United States District Judge, Western District of Texas

Geoffrey R. Stone
Harry Kalven, Jr. Distinguished Service Professor of Law, University of Chicago
Former Dean of the University of Chicago Law School and Provost of the University of Chicago

Kathleen M. Sullivan
Stanley Morrison Professor, Stanford Law School
Former Dean, Stanford Law School

Laurence H. Tribe
Carl M. Loeb University Professor and Professor of Constitutional Law
Harvard Law School

William W. Van Alstyne
Lee Professor, William and Mary Law School
Former Attorney, Department of Justice, 1958

* Affiliations are noted for identification purposes only.

Comments

[Andrew Hyman]

That's an interesting letter, but perhaps it misses a key point. Congress was obviously concerned that the 2001 AUMF would pre-empt the War Powers Resolution, and therefore the last sentence of the AUMF is a savings clause to protect the War Powers Resolution. But there is no savings clause in the AUMF that protects FISA.

Suppose the President can prove that his surveillance program is a fundamental incident of war, and that the Fourth Amendment was not violated, and that not having the surveillance program would have prevented the United States from taking necessary and appropriate action against Al Qaeda. If the President can prove these three things, wouldn't the President be proving that the surveillance program was authorized by the 2001 AUMF? To me, the answer seems obvious: yes.

[Dan McGuire]

A strong piece. However, the discussion of Hamdi is quite weak and begs the question. This is shown by the need to characterize the program as "unchecked warrantless domestic spying." Describe it as "limited spying intended to capture conversations between al Qaeda operatives overseas and individuals located inside the US" and the program sounds a lot more like a fundamental incedent to waging war. The shot at the end about the President thinking the current law is "obsolete or impracticable" also is a cheap shot. You sound more like Chuck Schumer than someone who wants a serious discussion of the issue. Perhaps the President actually thought the program was permissible. Anyone who cannot even allow for that possibility, as your "obsolete or impracticable" comment seems to indicate, is looking at the matter through patisan glasses. Otherwise it is an excellent analysis, in my opinion. Thanks for posting it.

[RandallS]

Dear Prof. Stone Et. Al.
Thanks for the courage. Suggested Action/Follow up for your consideration.
Congress: Create independent agency similar n legal construct NASA/Federal Reserve Board: PURPOSE: Use computers/software to continuously digitally audit the nature, methods and scope of EXECUTIVE BRANCH DIGITAL SURVEILLANCE activity for comport with the Constitution and derivative Acts of Congress.

Congress presently in a passive dependent/information disadvantaged position relative to Executive Branch. Cong. must rely on goodwill of executive branch or whistleblowers to learn about the actual level of executive digital surveillance in order for Congress to perform its Constitutionally mandatory oversight function. As presently configured under NSA, eight intelligence over-sight Committee members, intelligent though they may be & even if they were allowed to bring a pen and paper, can hardly be expected to properly audit diffuse, encrypted digital activity of executive branch super-computers operating continuously at teraflop speeds.

Digital audit trail programs that report summary data about digital activity outside defined parameters can accomplish this purpose. See my further comment your blog at
http://uchicagolaw.typepad.com/faculty/2006/01/bushs_spy_progr_1.html#comment-12636479
Thanks Again RDS

[Kimball Corson]

About time.

More highly regarded people need to follow this lead and speak up directly and now as you do.

The faith-based inroads on our liberties at hand could be a greater threat than the terrorism they purport to curb. Too many such compromises, too much empire building and much resource misdirection now march forward under the banner of our need to fight terrorism. It is opportunism on a grand scale.

So much for Bush's swearing to uphold the Constitution. Equally troubling is the secrecy with which the program was concealed. An implication of this is that more sensible heads in the Administration knew better and understood the constitutional breach.

Bush now secretly and unconstitutionally wire taps and Cheney wants to continue the use of torture where he believes it is desirable.

Where did we get these guy? How did the system let them through? Is the system broken? Should not Bush and Cheney be impeached? Clinton's sexual peccadillo wanes in comparative significance.

It is a good time to be abroad and many who are say so.

[ekf]

With respect to the following:

"Under this reasoning, a U.S. citizen living here who received a phone call from another U.S. citizen who attends a mosque that the administration believes is "supportive" of al Qaeda could be wiretapped without a warrant."

Given that the wiretaps are begun and continued in secret and no check of any kind is made on the NSA (save the regular blessing of the President), this regime requires no showing of good faith with respect to the determination if a person is "supportive" of Al Queda (whatever that means). What if a person is against the war in Iraq (or associated with an organization that opposes the war in Iraq)? Critics of the anti-war individuals and organizations often assert that such opposition to the war helps Al Queda -- so can such individuals and organizations be wiretapped without any judicial oversight? Who makes such a determination, and to whom are they accountable?

Given the already-existing evidence that the FBI has been engaging in domestic surveillance of organizations as preposterous as the Quakers because of their anti-war stance, there is no reason to believe that an unfettered NSA would hold itself back to a very narrow definition of those individuals or organizations, say, actively plotting with Al Queda or providing financial or logistical support to Al Queda. While I appreciate this much more methodical approach to the question of legality, it seems also rather clear that as a practical matter this domestic surveillance regime is a foot in the door to the worst excesses of the Nixonian "enemies list" era.

As to this set of assertions:

"Suppose the President can prove that his surveillance program is a fundamental incident of war, and that the Fourth Amendment was not violated, and that not having the surveillance program would have prevented the United States from taking necessary and appropriate action against Al Qaeda. If the President can prove these three things, wouldn't the President be proving that the surveillance program was authorized by the 2001 AUMF? To me, the answer seems obvious: yes."

How could President Bush prove any of these things in a way to make the program authorized? As to the first point, if FISA contemplates warrantless searches for the first fifteen days after a declaration of war, the specific statute has already noted that electronic surveillance may be an incident to war -- FISA simply regulates it, does so specifically (so trumping the AUMF) and notes that it is the exclusive regulatory method under which this incident to war is to be conducted. As to the second point, if warrants are not obtained (even in FISA's very permissive world) and there are not "special needs" (as determined by case law, which does not permit this regime as set forth above), the Fourth Amendment is violated. As to the third point, the only way in which I can imagine this situation is where the FISA judges themselves are suspected operatives of Al Queda (although even then I suspect they could rustle up a regular federal judge to grant a real warrant if there were probable cause as to those individuals). Anything outside of that very narrow hypothetical puts the NSA in the position of saying they can't justify, even after the fact, their warrants -- and if they can't justify their warrants then they can't really be targeting people useful enough to thwart Al Queda. So, maybe you're right that if President Bush could prove all of those three items he might be justified under the AUMF, but maybe if I were seven feet tall, male and Chinese I'd be Yao Ming. Maybe in both cases means it's really, really unlikely.

[Yao Ming]

I'm seven and a half feet tall.

[Lind]

Professor,

I thought your article didn't seem to directly address the question at issue, and I would like to better understand the position you are taking, and why you believe the law is being violated.

As I am not a lawyer, I would ask you to define the limits of implicitly authorized Constitutional presidential power to collect signals intelligence, as distinct from powers granted by statute.

It seems to me that the physical location of the surveillance, in addition to the citizenship or U.S. legal status of the subject(s) being surveilled is something that has to weigh into the argument. First, we can agree (I hope) that the executive has a right and duty to collect intelligence and conduct surveillance on foreign soil, that is outside the physical borders of the United States, where the parties involved are foreign. We can probably also agree that an American citizen physically located outside the borders of the U.S. caught in such a snare is legally subject to the surveillance. Arguing otherwise puts an impossible test before the government (to wit, make absolutely certain no American will be caught, in advance). We can agree that surveillance of people by the executive branch whose communication occurs entirely within the borders of the U.S. is in all likelihood subject to the provisions of the 4th amend., and the statutory authority granted to Congress.

So, the part of the problem at issue would concern exactly the type of surveillance the government says is occurring in this instance: interception of international communications from an international location, where one party is outside the U.S. and the other, potentially an American citizen or another person protected by the Constitution and law, is physically located within the boundaries of the U.S.

Have I got it right?

If I do and the surveillance is indeed physically occurring outside of the U.S., then why is there a legal problem? It would seem clear the President has the right at the present time, again if I understand the issue properly.

After all, if ALL phone conversations were routinely routed through overseas connections, or satellite connections (that is, outside the borders of the country) wouldn't the executive branch have the right to intercept ALL of those calls, regardless of who made them, citizen or not, so long as the intercept physically occurred through the international link of the calls? Haven't all Presidents since Truman argued this and followed this rule? Didn't Jamie Gorelick argue this way?

Do we need to amend the Constitution to prevent the executive from unreasonable international searches, in your view? Statute doesn't seem to have the power.

Thanks.

[Bob Hoffman]

Sir-
The recent letter ' Why the NSA Surveillance Program is Unlawful ' is remarkably short sighted but more importantly illustrates a remarkable lack of the understanding the office of the president. The Constitution endorses the office of president with extra legal powers such as commanding the military, making treatises and veto power. I’m afraid this group sees only the ‘rule of law’ as the only legitimate standard in emergency, thankfully, the Constitution thinks otherwise.

Sincerely,
Bob Hoffman

[ekf]

Sorry, Yao Ming -- didn't mean to give your height short shrift!

With respect to this comment:

"The Constitution endorses the office of president with extra legal powers such as commanding the military, making treatises and veto power. I’m afraid this group sees only the ‘rule of law’ as the only legitimate standard in emergency, thankfully, the Constitution thinks otherwise."

Because such powers are conferred by the Constitution, they are not "extra legal" -- they are part of the "rule of law" under which the Executive can act. I suspect you're asserting that such enumerated Executive powers have priority over Legislative powers, but to assert that point ignores the enumerated Legislative powers to regulate the military.

In other words, whereas Article II, Section 2 of the Constitution gives the President the title of "Commander in Chief of the Army and Navy of the United States," Article I, Section 8 of the Constitution explicitly gives Congress the power "To make Rules for the Government and Regulation of the land and naval Forces;" among several other powers associated with the use of warmaking assets of the United States.

Contrary to your assertion, the Constitution does not "think otherwise" with respect to the powers of the President and instead balances the Commander in Chief powers against the military regulation powers of the Congress. As applied in this case, the President has the power to engage in foreign surveillance (within the confines of the Fourth Amendment), but the Constitution endows the Congress with the power to make FISA and limit how the President can conduct such surveillance. Therefore, both the President's authorization of the warrantless wiretaps outside the boundaries of FISA and the NSA's execution of such warrantless wiretaps exceeded the President's authority under the Constitution and violated the law.

[Bob Hoffmann]

EKF-
I've made no such assertion regarding the Executive having priority over the legislature only that in fact it has this function. What I am suggesting is that in times of emergency there is bound to be an instance requiring an exception from a rule . The Executive branch was devised with this in mind; for those events or situations that can arise that we cannot anticipate through our laws.
Also, one should reflect on what it means to execute the ' office ' of the presidency.

[ekf]

Bob,

I'm not sure I disagree with your suggestion "that in times of emergency there is bound to be an instance requiring an exception from a rule." I would, however, disagree with any conclusion based on that suggestion to the effect that the President was granted the power to except from rules simply because we are "at war" and would instead suggest that an "emergency" would require circumstances far more dire than simply not feeling like doing the FISA court warrant application after wiretapping a suspect has already begun. The President has taken multi-week vacations during the time that he has consistently aided and abetted the felonious violation of FISA; if he's got time to "clear brush" in Crawford, he has time to insist the NSA apply for after-the-fact warrants on the wiretaps.

With respect to your comment that "[t]he Executive branch was devised with this in mind; for those events or situations that can arise that we cannot anticipate through our laws," I'm not sure I agree with your history, but I'll happily grant that the Executive can exercise powers granted it during unanticipated events (for example, the President certainly could have exercised additional power during Hurricane Katrina). That point has little to do with the NSA and the President violating FISA, however, as the conduct of electronic surveillance without a warrant was most certainly an event anticipated through our laws, hence the enacting (and amending) of FISA. That we have better snooping technology, that terrorists can better use technology to communicate and that we are more focused on catching terrorists subsequent to 9/11 are also anticipated events and are part of why FISA was amended subsequent to 9/11.

The unlawful actions of President Bush and the NSA were not those of a Jack-Bauer-of-"24"-type character dealing with an unforeseen circumstance where the rules have to be thrown out the window because the clock is ticking. Instead, those actions were methodical, studied violations of laws they knew existed and had been set up to make their jobs very, very easy. They had time to badger the Department of Justice about their not complying with FISA, and they had time to bully members of Congress about their not complying with FISA, but they didn't have time to comply with FISA? Come on. We're not talking about emergency exceptions to a rule -- we're talking about the Executive remaking a rule because it doesn't want to comply with it. In my consideration of executing the "office" of the Presidency, I do not consider violating a known law for years a necessary part of the package. He could have sought a change in the law, or he could have complied with it; instead he broke it and did so routinely.

[Bob]

Hi-
This action and the like may be illegal but it is not unconstitutional; or , since the Constitution is a law it is not illegal under the Constitution.
You're not suggesting that the President go to Congress to change a law in order to obtain better information on our enemies!? The branches are separate but equal and the president executes the laws of the land but is still given the authority by the Constitution to act against said laws (by the way, FISA is a bad law ) if the necessity arises. Obviously your undestanding of ' emergency' differs from the President.

[Kimball Corson]

Presidents who worry about their legacies or provide faith-based leadership want greater executive branch powers than those who simply want to do their duty and run the country well. The former and the powers they seek are to be watched carefully because they are potentially dangerous to all of us.

[KIETh nissen]

The government is getting a lot of criticism on this but, unless I have missed something, no elected politicians are insisting that this data-mining cease. I give some significance to this. Namely that this transgression may help our defense against a terrorist attack and may delay or prevent an attack.

That's an important thing for government to do isn't it? tell me some other things that are more important.

[Lind]

No leaders are arguing for an end to this effort mainly because many of them, especially including leading Democrats, are on record as thinking this is a legal search activity and required for national security. See Jamie Gorelick, as an example, argung on behalf of the Clinton/Gore administration ( http://thinkprogress.org/gorelick-testimony/ ).

This is a deeply cynical letter.

[Lind]

Why do you advocate protecting the communications of terrorists and ignore the rights of average Americans, people not suspected of any crime at all? That's another side to this argument I don't get.

If you were truly worried about the gov't listening in on private citizens, wouldn't you want to publicize and regulate in SOME way the 59 year old five nation alliance currently running the latest Echelon system:

http://www.law.duke.edu/journals/dlj/articles/dlj50p1467.htm

After all, while the current Bush administration NSA program intercepts only international communications between terrorists (some of whom MAY be protected parties under U.S. law), the Echelon system indiscriminatly intercepts ALL worldwide communications, including all domestic communications between Americans (including baby monitors).

[Frederick Hamilton]

I have enjoyed the discussions on both sides of the al Qaeda "wiretapping" issue. The issue is not so certain on either side of the argument. Therefore, the final arbiter of the issue will not be legal "scholars", but the U.S. Supreme Court. They will get to give the thumbs up or down on this issue. Unless congress strips them of jurisdiction. Quite unlikely. It might be helpful to discern how the Supremes will vote on the issue by visiting ground zero in NYC. That large hole in the ground has a way of focusing one's mind on the merits and legality of listening in on al Qaeda or not. Methinks the Supremes will come down on the side of the President. Any takers on a good sized wager?

[Jake Hildner]

Mr. Hamilton and Friends,

The issue does not appear uncertain to me. Nobody in this discussion or elsewhere has given a credible response to the arguments made by Geoff Stone, et al. FISA is clear, and the administration clearly violated it, a felony. This was done knowingly and deliberately. The only two defenses I have heard to the charge of deliberate lawbreaking are frivolous -- that Congress implicitly authorized what it explicitly prohibited (and would not have explicitly authorized if asked), and that the president's power in foreign affairs is essentially limitless -- subject to neither congressional restriction nor judicial review. Do you really agree with either of these defenses? If not, it is hard to escape the conclusion that the president held himself above the law and abused his power in the conduct of his administration. (And this is without even considering the probability that the wiretapping violated the 4th Amendment.)

So what about pragmatic concerns? If the illegal wiretapping was reasonably seen as necessary to ensure national security, then shouldn't we cut the president some slack? Isn't this just a question of balancing civil liberties against safety? (This is often how the issue is presented in the media and seems to be the way you approach it.) I don't think that's right. The question is who gets to decide how to strike that balance. Isn't it proper for Congress to have a role? Once again, Congress clearly spoke with FISA.

Now, I'm willing to entertain arguments that an action was technically illegal but nonetheless necessary under the circumstances. But if that's the administration's position, it had better be ready to support it with a slam-dunk case that the action really was necessary. The administration has fallen far short of that standard. Not only were the warrantless wiretaps of dubious utility, it is not clear to me why the government couldn't have gotten warrants for any legit wiretaps. (See the 72-hour ex post period.) Keep that last point in mind when the administration claims that the "program" thwarted terrorist attacks (itself a disputed and dubious claim). The question is whether that same intelligence could have been obtained legally, a question the administration has not answered. Moreover, why not make the case to a (Republican) congress that the program is necessary in advance?

I live and work in Manhattan and have visited Ground Zero on several occasions. It focuses my attention, as you say, on the need to protect against attacks at home and fight terrorism abroad. My own view is that this administration has failed to do that competently. In any event, I do not believe that in so doing it is subject to no law. (The Supreme Court agrees with me, Alito says that he does, and my hope is that it will continue to do so.) To say otherwise would be shocking and contrary to the fundamental principles of this country or, indeed, of any society of laws, principles which a few of us continue to hold dear.

[Frederick Hamilton]

Mr. Hildner,

The beauty of constitutional law resides in the constitution itself. The Fourth Amendment quite clearly forbids "unreasonable" searches and seizures. The reliance on the FISA law as an argument that President Bush violated the law will prove to be a moot point. As articulated by General Hayden yesterday at the National Press Club, the intercepts were very tightly structured to attempt to capture "internatinal" calls of al Qaeda operatives. If General Hayden and Attorney General Gonzales are telling the truth about these searches of enemy al Qaeda operatives it will be unthinkable for the Supremes to rule against previous precedent that President Bush is being "unreasonable" in seeking to listen in on the enemy we are at war with. Your point, is President Bush violating the FISA law? No he is not. He is not even operating within the confines of the FISA law. I welcome the review of what President Bush via NSA is doing by the Senate Judiciary Committe.

I welcome it for two reasons. 1 Because the committee is so divided and contentious it should allow the public to hear all sides of this issue. FISA, Commander in Chief, War Powers, the current War against the terrorists law, Fourth Amendment "unreasonableness" point, et al. 2 It will again be a forum to remind Americans just what it is we are up against with global Islamic terrorists hell bent on attacking western democracies and killing innocents. The nature of the enemy, the difficulties in gaining good intelligence on these "foreign" agents of death, their stated agenda and ultimate objectives of their terrorist barbaric inhuman approach should be discussed much more frequently and hopefully the hearings will be a good forum to do this.

I hold very dear indeed my freedom and liberty as an American. I think I am appropriately distrustful of government intruding on my freedom and privacy. I also expect my government to do all it can to protect me and my family from the likes of al Qaeda. My daughter lives in NYC. Her fiance was working at WTC building 7 at the time of the "attack". He survived. Many of his friends did not.

Could 9/11 have been prevented if NSA had overheard the al Qaeda "international" calls from all over America just prior to the attack?

I don't think this issue will hinge on FISA. It clearly will hinge on the Fourth Amendment and the power of a Commander in Chief (or his appointee) listening to al Zarqawi trying to talk to someone in the United States. Not domestic spying at all. Nobody would countenance that. This is analagous to breaking the German code in WWII and listening in on their conversations. Is it not?

This is a good debate and worth having. Thanks.

[Frederick Hamilton]

Attorney General Gonzales today gave a detailed analysis of the legality of President Bush listenng in on al Qaeda conversations (the enemy in this legislatively approved war). He addressed FISA very succintly and in my mind correctly. It is becoming very clear to me that no constitutionally appropriate authority (Congress or the SCOTUS) will deny or rule the president out of bounds constitutionally regarding warrantless searches of the enemy (assuming General Hayden, Attorney General Gonzales and President Bush are telling the truth). All the opinions of so called legal experts aside, whoever is President in a time of a legally approved war must have and indeed does have the authority to listen in on the enemy without a federal judge's, or federal court's approval. Enough said. Or in tennis. Game, set, match. Once again, would you legal experts please opine on which constitutionally appropriate body is going to say (read vote) President Bush is engaged in illegal, criminal activity. Please no fair griping that "we experts who really know the true law" aren't allowed to make the final call. How sweet it is.

[artemous]

It seems to me that the AUMF was an excersize in futility since the second amendment clearly provides for protection of US citizens within the borders of the United States. This should have been abundantly clear after one of the september 11th 2001 flights was taken down by pro-active citizens. The second amendment is further strengthened by application of the fourth and nineth amendments in this respect. The mere authorization for use of military force does not constitute a declaration of war, but congressional authorization to conduct military operations with regards to a loosely defined organization and does not trigger executive war powers.

[artemous]

Furthermore, had there been an actual declaration of war, which would have triggered executive war powers, there would be prisoners of war with protections under the Geneva Convention instead of enemy combatants. There is a provision with which the executive branch can suspend the Bill of Rights... its called martial law and was at no time invoked during this military action.

[precious curry]

Jesus is Real!

[Marty]

As for me, I still believe in the power of a security camera, but only if they are installed with full knowledge of persons they are supposed to be used.

[Max]

I second Marty on this.
And we can't debate about whether surveillance equipment should exist or not. It does exist.

What we can debate is what is proper use and what is not. And surveillance cameras installed with full knowledge of the people in the area is fine if you ask me.