If You're Going to Read Only One Thing About the NSA Spying Program

Marty Lederman

The objectives of the surveillance program, as described in news reports, seem laudable. The government should be running to ground the contacts listed in a suspected terrorist's cell phone, for example. What is troubling is that this domestic spying is being done in apparent contravention of FISA, for reasons that still are not clear. . . .

Perhaps the administration did not believe that these wiretaps would meet the FISA standard, which requires the government to have probable cause to believe that the target of the surveillance is an agent of a foreign power, which includes terrorists and spies. . . .

[I]f administration officials believed they faced a scenario in which the FISA standard could not be met, they could have sought to amend the statute, as they have done several times since the law's enactment in 1978. Several such amendments, for example, were contained in the 2001 Patriot Act.

The administration reportedly did not think it could get an amendment without exposing details of the program. But this is not the first time the intelligence community has needed a change in the law to allow it to undertake sensitive intelligence activities that could not be disclosed. In the past, Congress and the administration have worked together to find a way to accomplish what was needed. It was never previously considered an option to simply decide that finding a legislative solution was too hard and that the executive branch could just ignore the law rather than fix it.

Moreover, the administration has yet to make the case for keeping this significant policy change secret for four years. It's hard to imagine that the terrorists do not already assume that we try to listen to their cell phone conversations (after all, it is well known that FISA allows such wiretaps) or that we have technology to help us search through reams of signals. (Check out the Wikipedia definition of Echelon on the Internet.) So what do the terrorists learn from a general public discussion about the legal authority being relied upon to target their conversations? Presumably very little. What does the American public lose by not having the public discussion? We lose the opportunity to hold our elected leaders accountable for what they do on our behalf.

Attorney General Alberto Gonzales claims that the NSA program did not violate the law because FISA only requires a warrant "unless otherwise authorized by statute" and that the congressional resolution authorizing the use of force after the attacks of Sept. 11, 2001, somehow authorized this circumvention of FISA's rules. FISA does provide for criminal penalties if surveillance is conducted under color of law "except as authorized by statute." This is a reference to either FISA or the criminal wiretap statute. A resolution, such as the Use of Force resolution, does not provide statutory authority. Moreover, FISA specifically provides for warrantless surveillance for up to 15 days after a declaration of war. Why would Congress include that provision if a mere Use of Force resolution could render FISA inapplicable?

The law clearly states that the criminal wiretap statute and FISA are "the exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted." If these authorities are exclusive, there is no other legal authority that can authorize warrantless surveillance.

Courts generally will not view such a clear statutory statement as having been overruled by a later congressional action unless there is an equally clear indication that Congress intended to do that.

The administration's ultimate argument is that "the president has the inherent authority under the Constitution, as Commander-in-Chief, to engage in this kind of activity." This is the same argument outlined in the infamous torture memo, which concluded that the president can effectively ignore any statute that appears to infringe on this broad authority. That memo was withdrawn after it became public and was roundly criticized. The legal reasoning behind the arguments, however, has never been repudiated and appears to have resurfaced here.

We cannot know for certain how the Supreme Court would rule on the legitimacy of the spying program. However, the court rejected President Harry Truman's similar claim of broad presidential power in seizing control of the nation's steel mills to avert a strike during the Korean War. The court, in a 6-to-3 ruling , stated that the president's inherent authority is at its weakest in areas where Congress has already legislated. It ruled that to find inherent presidential authority when Congress has explicitly withheld that authority -- as it has in FISA -- "is not merely to disregard in a particular instance the clear will of Congress. It is to disrespect the whole legislative process and the constitutional division of authority between president and Congress."

The administration may be counting on fear of another terrorist attack in asserting this unprecedented authority. But if President Bush can simply ignore laws that he thinks are unconstitutional, without getting a court ruling or having genuine consultations with Congress, then why bother to work so hard at getting the Patriot Act provisions right, or the McCain torture amendment, or any other laws related to terrorism? And where does it stop? Justice Sandra Day O'Connor rejected the administration's claim of unchecked power in the 2004 Hamdi case, in which the government argued that the courts could not review the legality of enemy combatant detentions. She wrote, "We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the Nation's citizens. . . . Whatever power the United States Constitution envisions for the Executive in its exchanges with . . . enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake."