The Ashford Zone Blog

One of the best pieces in the blogosphere examining the legal landscape of the NSA wiretapping comes from Orin Kerr, law professor at George Washington University, on the right-leaning law blog, The Volokh Conspiracy.

Kerr begins:

Was the secret NSA surveillance program legal? Was it constitutional? Did it violate federal statutory law? It turns out these are hard questions, but I wanted to try my best to answer them. My answer is pretty tentative, but here it goes: Although it hinges somewhat on technical details we don’t know, it seems that the program was probably constitutional but probably violated the federal law known as the Foreign Intelligence Surveillance Act.

Starting with his Fourth Amendment analysis, Kerr argues that the NSA wiretapping program may fall within one of two exceptions to the warrant requirement of the Fourth Amendment.

The first exception, he posits, is the border search exception.  The courts have held that it is permissible (and not unconstitutional) to conduct searches at the border of the United States "or its functional equivalent."   Kerr suggests that Bush supporters might have a winning argument that interception of phone calls coming in to this country fit within the "border search" exception. 

After all, Kerr points out, the Supreme Court has held that "border searches" within this exception do not have to be at the border.  Kerr cites UNITED STATES v. RAMSEY, 431 U.S. 606 (1977), involving warrantless searches of international mail in a New York City post office.  If that does not violate the Vonstitution, then wiretaps shouldn’t either, Kerr suggests.

The problem is that if you actually read the Ramsey case, the Supreme Court was quite clear about why warrantless searches of mail does not violate the Fourth Amendment.  Rehnquist recognized this when he wrote:

That searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border, should, by now, require no extended demonstration.

In other words, the border search exception applies to persons and property crossing our borders, not communications.  While property can enter the country via a package or mail, it cannot via a telephone conversation.  The border search exception, despite what Kerr suggests, simply does not apply.

Kerr also proposes another possible exception to the Fourth Amendment’s requirement of warrants: a "national security exception".  Presumably, the Bush Administration takes the position that the President does have power to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of Government, and in doing so, it may engage in wiretaps without a warrant.  And the NSA surveillance is such a case.

It’s an intriguing argument.  But as Kerr even acknowledges, such a "national security exception" does not actually exist and, unlike the border search exception, no Court has ever acknowledged that the Constitution recognizes that exception.  Would the Bush Administration encourage the judicial system to "legislate from the bench" and create this exception?

Kerr then puts the Constitution aside and addressed whether the NSA wiretaps violate the Foreign Intelligence Surveillance Act of 1978 (or "FISA") at 50 U.S.C. 1809 et seq.

The statute is pretty clear.  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." "Electronic surveillance" is defined in 50 U.S.C. 1801(f) to mean, in relevant part:

(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;
(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States. . . .

A "United States person" is defined in 50 U.S.C. 1801(i) as "a citizen of the United States [or] an alien lawfully admitted for permanent residence." A "wire communication" is defined as a communication that is traveling by a wire.

Kerr concludes that the NSA clearly violated the statute.  In fact, our Attorney General even recognized this. 

But note that the statute carves out several exceptions to the rule above.  Do the NSA wiretaps fit within any of the statutory exceptions?

Let’s take a look at them.  50 U.S.C. 1802(a)(1) provides in relevant part:

Notwithstanding 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 periods of up to one year if the Attorney General certifies in writing under oath that–

(A) the electronic surveillance is solely directed at–
(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801(a)(1), (2), or (3) of this title; or
(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801(a)(1), (2), or (3) of this title; [and]

(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party.

Well, okay.  We have to see what this exception means by "a foreign power, as defined in section 1801(a)(1), (2), or (3)".

So we go there.  Here’s how the statute defines a "foreign power" in 50 U.S.C. 1801:

(1) a foreign government or any component thereof, whether or not recognized by the United States;
(2) a faction of a foreign nation or nations, not substantially composed of United States persons;
(3) an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments;
(4) a group engaged in international terrorism or activities in preparation therefor;
(5) a foreign-based political organization, not substantially composed of United States persons; or
(6) an entity that is directed and controlled by a foreign government or governments.

Okay. So clearly the exception noted above applies to foreign governments ([1] and [2], and/or entities acknowledged by foreign government to be directed or under the control of that foreign governments.

Clearly, those definitions do not fit al Qaeda, where as (4) and (5) definitely do.  Unfortunately, (4) and (5) are not mentioned in the exception.

Now, if we return to the FISA statute, let’s note that it forbids "electronic surveillance under color of law except as authorized by statute".  Is there another statute which would allow the NSA wiretapping?

Attorney General Alberto Gonzales says "yes".  In the wake of 9/11, Congress passed the Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224, ("AUMF")which states:

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 key phrase is "all necessary and appropriate force".  Is the use of wiretaps a "necessary and appropriate force"?  Is it "force" at all?

There is little guidance on this.  In HAMDI et al. v. RUMSFELD, SECRETARY OF DEFENSE, et al., the Supreme Court concluded that detention of a detainee counted as a "necessary and appropriate force" under that AUMF.  Justice O’Connor wrote:

Because detention to prevent a combatant’s return to the battlefield is a fundamental incident of waging war, in permitting the use of "necessary and appropriate force," Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here.

Now, I think that wiretapping the enemy is probably a "fundamental incident of waging war".  But what we’re doing here is conducting surveillance on U.S. citizens.  Kerr agrees, and gives three sound reasons:

First, O’Connor’s opinion says the following about detention for interrogation: "Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized." It seems to me that surveillance and wiretapping is pretty similar to interrogation: the point of both is getting information about your enemy.

Second, it doesn’t seem like wiretapping counts as a "use of force." If you read the text of the AUMF, it doesn’t seem to me that it authorizes wiretapping.

Finally, note that Congress passed the Patriot Act about a month after passing the AUMF; if Congress had intended the AUMF to give the president wide authority to conduct domestic surveillance against Al Qaeda, I don’t think they would have spent so much time amending FISA for terrorism investigations.

So at bottom, I think the AUMF probably didn’t authorize this, although the Hamdi case gives some colorable (if ultimately unpersuasive) arguments that it might.

The final argument advanced in favor of the wiretaps (advanced by Attorney General Alberto Gonzalez) is that the President is authorized to do this under his "inherent authority" under Article II of the Constitution.  This is what the Bush Administration argued before in a supplemental brief to the FISA Court of Review:

In considering the constitutionality of the amended FISA, it is important to understand that FISA is not required by the Constitution. Rather, the Constitution vests in the President inherent authority to conduct warrantless intelligence surveillance (electronic or otherwise) of foreign powers or their agents, and Congress cannot by statute extinguish that constitutional authority. Both before and after the enactment of FISA, courts have recognized the President’s inherent authority to conduct foreign intelligence surveillance. See, e.g., Butenko, 494 F.2d at 608 (grounding exception to warrant requirement in the President’s Commander-in-chief and foreign-affairs powers; noting that the country’s self-defense needs weigh on the side of reasonableness); Truong, 629 F.2d at 914 (citing the President’s foreign affairs power as justifying an exception to the warrant requirement); cf. United States v. United States District Court (Keith), 407 U.S. 297, 308 (1972)(reserving the question whether the President’s foreign-affairs powers justify exception from warrant requirement).

Kerr looks at the three cases cited in that paragraph, and notes that the brief gets them backwards:

In all three of those cases — Butenko, Truong, and Keith – the Courts were talking about whether the President’s interest in conducting foreign intelligence monitoring creates an exception to the Warrant Requirement of the Fourth Amendment. In other words, the issue in those case was whether the Constitution bars warrantless surveillance absent Congressional action, not whether Congressional prohibitons in this area cannot bind the Executive branch.

This is a key point.  What we have here are three operators: Congress, the President, and the Constitution.  The Congress and the President act as checks and balances of each other, but the Constitution is the Supreme Law.  If the Constitution bars an activity, then neither Congress or the President can permit that activity.

There’s another strangeness to the "inherent authority" argument.  If, as the Bush Administration argues, the President has inherent authority within the Constitution to do anything to conduct this war on terrorism, then why did he scold Congress this morning for failing to extend the Patriot Act?  After all, under the argument he advances, Bush supposedly doesn’t need the Patriot Act!!

Finally, here’s final note to ponder: if the President’s arguments here are wrong, then (as Gonzalez has conceded) the President has violated FISA, which is a criminal act.  So even if you don’t follow the legal mumbo-jumbo, just understand here that the political stakes are very very high.