Eric the Red

We are all now aware of the controversy over the alleged legality of domestic wiretapping. Some in the blogosphere argue that these taps are completely legal on constitutional grounds. I’m going to draw out the details of something I started here [OneFineJay]. I feel that an existing legal analysis falls a bit short, in that it does not show the constitutional crisis that is brewing over this issue. It also does not draw any Constitutionally-centered conclusions regarding Congressional oversight and seperation of powers.

President Bush authorized the National Security Agency (NSA) to intercept communications to and from people within the United States without a court order starting in 2002. Bypassing a special secret court (known as a FISA court) was necessary because the court moves too slowly for its needs. Break-neck speed was neccessary because the need for covert domestic intelligence was extremely immediate.

The President alleges that his behaviour is legal for several reasons:

• Executive power as commander in chief of the armed forces
• The Use of Force Authorization passed immediately after Sept. 11, 2001

I’m sure others will argue that either the Patriot Act or the Foreign Intelligence Surveillance Act (FISA), or a combination of these, allow for the legality of President Bushs order. I will address this possibility as well.

The idea that the President may legally authorize domestic surveillance of US Citizens or permanent residentsfails under any level of scrutiny.

Wiretapping has been a hot-button issue since the invention of the telephone. In the 1920s, the FBI used wiretaps and bugs (“wire-tapping” or “tapping”) to collect evidence against bootleggers. The first challenge to Federal wiretapping power was launched in Olmstead. It was argued that bugging violated the Fourth Amendment’s ban on unreasonable search and seizure. The Supreme Court upheld the conviction of Olmstead, ruling that wiretapping was legal provided a break-in was not required to plant the tap. By 1934, taps were generally believed to be illegal in the eyes of Congress and the Courts.

Franklin D. Roosevelt (FDR) began using covert wiretapping to detect and root out Axis-friendly spies starting in the early 1940s. When Harry Truman succeeded FDR in 1945, America’s enemies list changed to accomadate the Cold War and the Red Scare. Then-Attorney General Tom Clark expanded FDR’s national security order to permit the surveillance of “domestic subversives.” Both Truman and Clark believed wiretapping was permissible whenever matters of “domestic security” were at stake. This allowed taps to be placed on individuals simply because they held radical views. Taps were used with ever-increasing zeal, placing individuals such as Martin Luther King under surveillance.

In 1967, the Warren Court overruled Olmstead in Katz, finding that all wiretaps were in violation of the Constitutional ban on “unreasonable search and seizure”. Congress immediately overrode the court with the Omnibus Crime Control and Safe Streets Act (1968), which allowed any wiretapping as long as a court order was in hand. The Omnibus Act was ambiguous by not explaining the power of the president to order wiretapping in the name of national security. If interpretated broadly, this meant that the President could order surveillance if national security was an issue. Under a conservative construction, the President was required to obtain a warrant under all circumstances.

The Nixon administration interpretated the Act broadly, freeing the Justice Department was to tap any political dissenters without a warrant. Since many Americans organized to oppose various government policies by 1969, the Nixon Administrations interpretation essentially sanctioned the surveillance of millions of people who demonstrated against the Vietnam War, championed black radicalism or engaged in campus protests. In 1972, the Supreme Court ruled in Kieth that the Nixon interpretation was invalid. Even if the government claimed national security was at stake, the government was required to seek a warrant before using a tap.

Many events contributed to cynicism about government wire tapping. In 1974, the Justice Department released a report detailing FBI efforts against left-wing U.S. citizens, called Counterintelligence Program, (COINTELPRO). That same year, NewYork Times reporter Seymour Hersh exposed a CIA campaign against the anti-war movement in direct violation of its charter. In 1975, a number of Congressional investigation unearthed a range of government operations using surveillance for political and personal reasons. These events demonstrated that existing government surveillance powers did more harm than good.

The Foreign Intelligence Surveillance Act (FISA) passed in 1978. while there are virtually no limits governing collecting international intelligence, EPIC offers this interpretation of domestic surveillance:

“[If] the target is a “U.S. person,” there must be probable cause to believe that the U.S. person’s activities may involve espionage or other similar conduct in violation of the criminal statutes of the United States. Nor may a U.S. person be determined to be an agent of a foreign power “solely upon the basis of activities protected by the first amendment to the Constitution of the United States.”

For a FISA warrant to be granted against a U.S. citizen, (1) of the following (4) conditions must be met:

• The target knowingly engages in clandestine intelligence activities on behalf of a foreign power which “may involve” a criminal law violation
• The target knowingly engages in other secret intelligence activities on behalf of a foreign power under the direction of an intelligence network and his activities involve or are about to involve criminal violations
• The target knowingly engages in sabotage or international terrorism or is preparing for such activities.
• The target knowingly aids or abets another who acts in one of the above ways

The constraints set by FISA and the Patriot Act are at odds with Executive powers enumerated by Article II (see Legality below).

In 2002, the department of Justice filed a memoranda to House Speaker Dennis Hastert arguing against the passage of the Otter Amendment. While this memo makes many points regarding delay-notice warrants, it makes at least one point that is at odds with any claims the a Patriot Act defense:

[A member of Congress] complained that section 213 [of the Patriot Act] “allows the CIA and the NSA to operate domestically.” There is no basis in fact or in the law for this claim. Nothing in the USA PATRIOT Act in general, or section 213 in particular, grants the CIA or the NSA the authority to undertake domestic operations. [p. 7]

The Justice Department firmly establishes that the Patriot Act grants no authority for domestic surveillance by the NSA or the CIA.

The second point on the legality of a unilateral surveillance order comes from FISA itself. FISA requires a warrant for any matter of domestic intelligence (50 U.S.C. 1801(f)):

(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. . . .

The key word here is “acquisition” (as in interception, collection, etc), not “use” (as in “use at trial”). In other words, the government is barred from gathering, intercepting or otherwise collecting intelligence domestically unless a warrant is issued. FISA was constructed to counter the highly questionable, over-reaching abuses from the 1960s through the 1970s. When framed within the historical context, it is impossible to conceive FISA as having any purpose other than to restrain Presidential surveillance power domestically.

When taken in consideration with Constitutionally enumerated “War Powers”, FISA must pass judicial challenge and be found to be unconstitutional. If FISA fails judicial review, the President and Executive branch essentially have unrestrained surveillance powers under any and all circumstances. If FISA passes judicial review, the President acted illegally by authorizing the NSA to conduct surveillance without a FISA warrant.

Constitutionally speaking, war may only exist by the will of Congress (Article I s8). If the president has the reserved right to conduct surveillance as an instrument of war, Congress has the reserved right to restrain surveillance. FISA accomplishes this task.

The War Powers Act requires that any expansion or contunuation of a state of conflict must be authorized explicitly by Congress. The Authorization of Military Force is directly constrained by the “war powers” criteria (“Nothing in this resolution supercedes any requirement of the War Powers Resolution“).

The Authorization for Military Force grants the president the power 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.”

SUBJECT TO:

(1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.

(2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supercedes any requirement of the War Powers Resolution.

The War Powers Act requires the President to provide regular situational reports to both Houses of Congress. Congress must authorize a continuance of Presidential participation after each report. The “Use of Force Authorization” does not eliminate this requirement. There is much dispute that this wiretap program was carried out following any “advise and consent“. A briefing does not constitute the explicit Congressional approval mandated by the “war powers” criteria (sec. 5).

The Presidents inability to conduct domestic surveillance under the law stands to cripple intelligence gathering abilities more than those who leaked the existance of these programs. The damage was done when the President chose to igrnore the law in the name of a further establishing a self-aggrandizing police state, and he must accept responsibility for the public backlash that this event is certain to create. In order to prevent a constitutional crisis that erodes the rights of the people, Congress must act to restrain the President through any means available. Abuse is already rampant within the Patriot Act as it presently stands. There was no means to ensure any ethical standard of accountability in the system that existed prior to these revelations as far as FISA is concerned, and there is even less of a sense of ethics present there today.

Update: The student cited in my “Dangerous Minds” post retracted his story. However, there is also debate over wether the government used illegally collected evidence to obtain various warrants. Does the end justify the means?