Sunday, April 09, 2006

Milton's Presentation: Legal/Policy Analysis of the NSA Domestic Spying Program

Was the secret NSA surveillance program legal? My research has led to the conclusion that there is a good argument supporting the constitutionality of the program, but it most likely violated the Foreign Intelligence Surveillance Act (FISA). The difficulty surrounding this issue is due to the details of how the surveillance was done being classified.

Here is what we know - On December 16, 2005 the New York Times reported that months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying.

Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible ''dirty numbers'' linked to Al Qaeda.

The previously undisclosed decision to permit some eavesdropping inside the country without court approval was a major shift in American intelligence-gathering practices, particularly for the National Security Agency, whose mission is to spy on communications abroad. As a result, some officials familiar with the continuing operation have questioned whether the surveillance has stretched, if not crossed, constitutional limits on legal searches.

President Bush's rationale for eavesdropping on Americans without warrants rests on questionable legal ground, and Congress does not appear to have given him the authority to order the surveillance. The analysis, by the Congressional Research Service, a nonpartisan research arm of Congress, was the first official assessment of a question that has gripped Washington for three weeks: Did Mr. Bush act within the law when he ordered the National Security Agency, the country's most secretive spy agency, to eavesdrop on some Americans?

The report, requested by several members of Congress, reached no bottom-line conclusions on the legality of the program, in part because it said so many details remained classified. But it raised numerous doubts about the power to bypass Congress in ordering such operations, saying the legal rationale ''does not seem to be as well grounded'' as the administration's lawyers have argued.

The Legal Arguments. A full legal analysis of this issue encompasses the law under FISA, the Authorization to Use Military Force, and the inherent authority under the 4th Amendment.

Foreign Intelligence Surveillance Act. Congress enacted FISA in response to the Keith case. Specifically, 50 U.S.C. 1809 prohibits "electronic surveillance" except as authorized by statutory law: "A person is guilty of an offense if he intentionally . . . engages in electronic surveillance under color of law except as authorized by statute."

So what statutory authorization is there? Congress made clear back in 1978 that there are two, and only two, statutes that authorize wiretaps within the United States. One is “Title III,” which gives the rules for wiretaps for law enforcement. The other is the Foreign Intelligence Surveillance Act, which gives the rules for wiretaps for foreign intelligence purposes.
Since 1978, 18 U.S.C. Sec. 2511(2)(f) has said that Title III and FISA “shall be the exclusive means by which electronic surveillance ... and the interception of domestic wire and oral communications may be conducted.”

So that is why the NSA wiretaps appear illegal. Government officials can only wiretap “as authorized by statute” and the only statutes that count are Title III and FISA. The NSA wiretaps did not use the judicial procedures of either Title III or FISA. (Swireblog)

Authorization to Use Military Force (AUMF). The authorization states in relevant part:

AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.(a) IN GENERAL.--That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

The Administration's claim is that the AUMF counts as a "statute" that authorizes the surveillance: 50 U.S.C. 1809 states that "A person is guilty of an offense if he intentionally . . . engages in electronic surveillance under color of law except as authorized by statute," so if the AUMF authorized the electronic surveillance, then the NSA program didn't violate FISA.The Supreme Court considered the legal effect of the AUMF in Hamdi v. Rumsfeld, which I plan to discuss because it is too lengthy to post here. Does the AUMF authorize the surveillance? The answer is not entire clear.


The Fourth Amendment. There are two arguments under the 4th Amendment - the border search exception and a national security exception.

The border search exception permits searches at the border of the United States "or its functional equivalent." United States v. Montoya De Hernandez, 473 U.S. 531, 538 (1985). The idea here is that the United States as a sovereign has a right to inspect stuff entering or exiting the country as a way of protecting its sovereign interests, and that the Fourth Amendment permits such searches. Courts have applied the border search exception in cases of PCs and computer hard drives; if you bring a computer into or out of the United States, the government can search your computer for contraband or other prohibited items at the airport or wherever you are entering or leaving the country. See, e.g., United States v. Ickes, 393 F.3d 501 (4th Cir. 2005) (Wilkinson, J.). (The Volokh Conspiracy)

The second argument is question of whether there is a national security exception to the Fourth Amendment that permits the government to conduct searches and surveillance for foreign intelligence surveillance. The Supreme Court left this question open in the so-called "Keith" case, United States v. United States District Court, in 1972. Justice Powell's opinion in the Keith case concluded that there was no national security exception to the Fourth Amendment for evidence collection involving domestic organizations, but expressly held open the possibility that such an exception existed for foreign intelligence collection. (The Volokh Conspiracy)

My conclusion and proposal: The NSA wiretapping is illegal under law but may be constitutional. If it is indeed constitutional, I believe that the president would have the authority to enact this program even if it is illegal under the law. I would propose keeping the program intact but allow for oversight by both the FISA court and the House and Senate Intelligence Committees. Since the program is done in secret, any objections would be ruled on by the FISA court only after an objection is made in either the House or Senate.

Issue I would like discussed:
1. I would like to know your views on the legal arguments presented. Are they persuasive? If not, what should be the proper response considering that the nation is at war?

2. What kind of oversight should this program have? Should it be evaluated only by the FISA court? Should the full Intelligence Committees in Congress by briefed? Should only the “gang of eight” by notified?

2 Comments:

Blogger duffee said...

It seems to me that the breadth of the president's legal authority depends on what is defined as "use of force" or an "act of war." Modern conflict involves a lot more than just fighting, and there are a number of operations--including intelligence operations--that are "part and parcel" of the act of conducting warfare. The argument that wiretapping would constitute use of force is maybe a stretch, but certainly Congress intended to authorize more than just actual battlefield operations.

1:55 PM  
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