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December 19, 2005

Beyond His Power: Bush's Authorization of Warrantless NSA Surveillance

posted by Daniel J. Solove

NSA2a.jpgIn this post, I aim to explore more in depth whether Bush had the legal power to authorize warrantless NSA surveillance. As I was putting the finishing touches on this post, I noticed that Orin Kerr beat me to the punch, and I find that we've identified the same issues and are in substantial agreement. His post is a lot longer and more detailed than mine (which is quite long itself), so read mine for a broader overview and Orin's for the treatise-length account.

1. Fourth Amendment

The Fourth Amendment standards are somewhat vague. The Supreme Court declared in United States v. United States District Court, 407 U.S. 297 (1972) (often called the Keith case) that the Fourth Amendment required a warrant for the government to engage in electronic surveillance for domestic criminal investigations. However, the Court noted:

. . . [D]omestic security surveillance may involve different policy and practical considerations from the surveillance of “ordinary crime.” The gathering of security intelligence is often long range and involves the interrelation of various sources and types of information. . . . Often, too, the emphasis of domestic intelligence gathering is on the prevention of unlawful activity or the enhancement of the Government’s preparedness for some possible future crisis or emergency. Thus, the focus of domestic surveillance may be less precise than that directed against more conventional types of crime. . . . .

Different standards [for gathering domestic security intelligence] may be compatible with the Fourth Amendment if they are reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens. For the warrant application may vary according to the governmental interest to be enforced and the nature of citizen rights deserving protection.

The Court explicitly left open the question about whether the Fourth Amendment would require a warrant for surveillance of agents of foreign powers: “[T]his case involves only the domestic aspects of national security. We have not addressed and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents but that surveillance without a warrant might be constitutional in cases where the target was an agent of a foreign power.”

2. Foreign Intelligence Surveillance Act (FISA)

Partly in response to the Keith case, Congress passed FISA in 1978 to address these open questions. I analyzed whether FISA would authorize Bush's surveillance here. My conclusion was that Bush's surveillance was in violation of FISA. FISA requires the government to first obtain a court order from the Foreign Intelligence Surveillance Court before engaging in the surveillance. Bush didn't do this.

FISA authorizes surveillance in limited contexts without court orders, 50 U.S.C. § 1802(a), but such surveillance cannot involve U.S. persons, and Bush's surveillance did. FISA also authorizes the installation of pen registers and trap and trace devices within 15 days after Congress declares war. 50 U.S.C. § 1844. But Bush's surveillance apparently went beyond pen registers and trap and trace devices.

Finally, FISA authorizes electronic surveillance more generally "for a period not to exceed fifteen calendar days following a declaration of war by the Congress." 50 U.S.C. § 1811. The Administration faces several hurdles in using § 1811. First, it is debatable whether the Authorization to Use Military Force constitutes a declaration of war. For some thoughtful analysis about this, see Seth Weinberger's post. Second, it depends upon when the surveillance took place. If it was beyond the 15 day period, then the provision no longer applies. Anyway, President Bush has declared that he will continue the surveillance program "for so long as the nation faces the continuing threat of an enemy that wants to kill American citizens."

3. Congress's September 2001 Authorization to Use Military Force (AUMF)

According to today's AP article: "The president said the authority to bypass the court derived from the Constitution and Congress' vote authorizing the use of military force after the 2001 terror attacks." Essentially, Bush's argument is that he had the power to ignore a law of Congress based on Congress' Authorization of the Use of Military Force (AUMF).

As Professor Seth Weinberger observes:

Today, we learn from the New York Times that President Bush secretly authorized the NSA to spy on Americans without a warrant, using the September 2001 resolution that authorized the president to use "all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided" the 9/11 attacks. However, this is not a declaration of war. And, in particular, it lacks the crucial language that modern delcarations of war have contained, which states that "all of the resources of the country are hereby pledged by the Congress of the United States." This language is present in the declarations for WWI and II. It is a recognition by Congress that total war is in fact total, and may require the president to act domestically in a legislative manner.

Absent such language in a formal declaration of war, I highly doubt that the president's authorization of domestic spying is legal.

Professor Peter Swire (law, Ohio St.) argues:

[T]he Administration seems to say that the general Congressional resolution amended [FISA], without anyone realizing it. That approach is contrary to the usual reading of statutes, where there is no “repeal by implication” – you have to say you are repealing a specific statute for the repeal to be effective.
Marty Lederman argues:
That the AUMF impliedly repealed the well-wrought scheme in FISA, with its prohibition on warrantless eavesdropping on U.S. persons (a repeal that only the Executive knew about: neither the public, nor even the Congress that enacted the AUMF, was aware that it had performed such radical surgery on the U.S. Code.

It is hard to imagine that authorizing military force authorizes the President to disregard a litany of laws at the President's whim. If so, the Congress must be extremely careful in authorizing military force in the future, because such authorization would turn over to the President the right to contravene an unspecified number of laws.

4. Article II of the U.S. Constitution

Article II of the U.S. Constitution delineates the power of the Executive, and Bush's argument appears to be that he has the power, as Commander-in-Chief, to ignore any law he deems a hindrance to his exercise of that power.

As Marty Lederman describes Bush's argument:

The AG claims that the President has the constitutional power, under the Commander-in-Chief Clause, to ignore FISA's prohibition in this context. "There were many lawyers within the administration who advised the president that he had an inherent authority as commander-in-chief under the constitution to engage in this kind of signals intelligence," said Gonzales, speaking on CNN.

I'm not an Article II expert, but this argument strikes me as quite dubious. If this is true, then what becomes of FISA? Or other laws that regulate the power of the Executive? Orin Kerr writes that he was "unable to find any caselaw in support of [Bush's Article II] argument."

UPDATE: Marty Lederman offers more thoughts here.

Related Posts:
1. Solove, President Bush, the National Security Agency, and Surveillance
2. Solove, Did President Bush Have the Legal Authority Under FISA to Authorize NSA Surveillance?
3. Solove, A Secret Department of Defense Database of Protesters
4. Solove, How Much Government Secrecy Is Really Necessary?

Posted by Daniel J. Solove at December 19, 2005 05:40 PM

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Bush a criminal for spying? Hmmm. Many Americans are very upset with the revelation that our President has sanctioned wiretaps on our own citizens. I hear countless arguments that Bush has broken the law and should go to jail.
What President Bush is actually guilty of is most likely using bad judgment to make a decision on a snap issue. If this was a crime he may be a repeat offender. However, as of right now President Bush is only guilty of not following proper procedures in regards to having an individual spied upon, he is not legally breaking any regulations or laws established denying his privilege to authorize spying, he basically is just not following the proper rules.
President Bush does have the ability to authorize the use of surveillance on individuals inside the domestic United States when it is shown that this person may be a threat to American citizens.
The problem Bush is currently dealing with is that he has been neglecting the FISA court and ordering the wiretaps directly, citing National Security concerns.
Civil Rights advocates are afraid this power could be manipulated as a way to stop free speech, or opposing viewpoints.
Bush said the program, which allows him flexibility to protect America, was narrowly constructed and has been used with strict adherence to U.S. law and the United States Constitution.
The President may be wrong, he may have really underestimated the reaction to his perceived cavalier attitude, but going to jail, I just don’t think that will happen in this case no matter how much his detractors desire it.
Raymond B

Posted by: Raymond B at December 19, 2005 06:30 PM

How can one reconcile claims that this program is extraconstitutional vis-a-vis the Fourth Amendment when FDR was able to operate the "Office of Censorship" from 1941 to 1945 opening, reading, and even censoring all private international postal mail, telegrams, and telephone communications of American citizens? I can't see how FDR's program would be within the scope of the Fourth Amendment and Bush's outside of it.

Posted by: John Jay at December 19, 2005 07:14 PM

Bush acted to protect...the government is tracking phone numbers and email address obtained from terrorists, so odds are the calls/emails did not involve US Persons and if the govt stopped monitoring under this program once they realized it was a US Person.. still legal.

Bush acted to protect this nation.. His calculation was that atleast 35 senators will support this limited monitoring of international communication.

This a 'border search' - which is allowed under the 4th.

Posted by: Marvin at December 19, 2005 07:28 PM

So, if you are correct on all points ,would there still be an issue of qualified immunity on the civil side?

Posted by: rich at December 19, 2005 08:55 PM

An issue that is not directly addressed either above or by Prof. Kerr is the separation of powers--an issue that was squarely before the scotus in Hamdi.
The constitutional question posed by the Executive's wiretapping of U.S. citizens is not whether it has the power to wiretap citizens' communications at all--it surely does under appropriate circumstances--but whether that power must be constrained by judicial oversight (either through a FISA court or some other neutral magistrate). In other words, the question is akin to the judicial review question in Hamdi (may courts review the enemy combatant designation?), not the does-the-power-exist question at issue in Padilla (does the president have the power to seize US citizens as ECs within the US?).
The answer from both the Keith case and the Hamdi plurality is that such a unilateral power over U.S. citizens--exempt from judicial oversight--does not exist. As the Hamdi plurality stated, "Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake." So said the plurality in rejecting the government's claim, based on Article II, that courts have no real role to play in reviewing the executive's enemy combatant determination. The Court said basically the same thing in the Keith case: "The Fourth Amendment contemplates a prior judicial judgment, not the risk that executive discretion may be reasonably exercised. This judicial role accords with our basic constitutional doctrine that individual freedoms will best be preserved through a separation of powers and division of functions among the different branches and levels of Government." Accordingly, the separation of powers strongly suggests that the executive's power to wiretap U.S. citizens' communications must be subject to judicial oversight--and unilateral wiretapping of such communications without a warrant would be unconstitutional.

Posted by: Geremy at December 20, 2005 10:24 AM

In considering the Article II question, I would think great weight would be given to the view of the Foreign Intelligence Court of Review, which stated (albeit in dicta) that:

"The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power."

In re Sealed Case, 310 F.3d 717, 742 (FICR 2002). Perhaps the argument is not as dubious as you suggest?

Posted by: anonymouslawyer at December 20, 2005 06:33 PM

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