Originally Published: 5/10/2006
By The Issue Wonk
The revelation that President George W. Bush has been using the National Security Agency (NSA) to eavesdrop on citizens shook the country.1 For those who remember the Watergate scandal of the 1970s, the revelation was shocking. One of the Articles of Impeachment drawn against President Richard M. Nixon was for illegal wiretapping. Nixon’s defense? “When the President does it, that means that it is not illegal.”2 Nixon’s abuse of presidential power led Congress to pass the Foreign Intelligence Surveillance Act (FISA), which attempted to balance the need for national security with protection of American civil liberties. They also created the Senate Select Committee on Intelligence, which was designed to ensure that a president’s abuse of power did not happen again. It appears that both have failed.
Review of FISA
In the aftermath of the attacks of September 11, 2001, lawmakers began proposing changes to various laws that would make it easier for the government to detect and fight terrorism. The USA Patriot Act was hastily passed, making changes to various statutes, including FISA. Statutes regarding pen registers and trap and trace devices are especially important to understand. The law was changed so that these devices could be used if the government certifies that the information is “relevant” to an ongoing investigation against international terrorism. The showing of probable cause, as stated in the Fourth Amendment to the Constitution, or even “reasonable suspicion” was no longer necessary. However, wiretaps on citizens or permanent residents still needed to be approved by the Foreign Intelligence Surveillance Court (FISC), [see FISA] but it was not necessary to obtain approval until 72 hours after the wiretap was in place. [50 U.S.C. §1805(f)]
At the time of these changes there was, of course, much interaction between lawmakers and the White House. In particular, lawmakers wanted to know what changes to existing law Bush’s administration officials believed they needed. However, administration lawyers testified in a Senate committee meeting that no change was needed. James A. Baker of the Justice Department, who headed the office that sought search warrants from the FISA court, said, “The administration at this time is not prepared to support [any changes].”3 Baker told Congress it was not clear “whether a ‘reasonable suspicion’ standard for electronic surveillance would . . . pass constitutional muster.” He said the existing standard was not a problem. “We have been aggressive in seeking FISA warrants, and thanks to Congress’ passage of the [Patriot Act] we have been able to use our expanded FISA tools more effectively to combat terrorist activities. It may not be the case that the probable cause standard has caused any difficulties in our ability to seek the FISA warrants we require.” According to David Savage,3 when the issue come up again in 2002, a Justice Department spokesperson confirmed that the administration had opposed changing the law in part because it did not want to publicly debate the issue. And Alberto Gonzales, the Attorney General, when asked why the administration didn’t seek to amend FISA to permit this kind of surveillance, said that he had consulted with several members of Congress but that they told him it would be “difficult, if not impossible,” to obtain permission.4
The president’s warrantless surveillance began shortly after the attacks of September 11, 2001.5 “After 9/11, Mr. Bush authorized the NSA to eavesdrop on the conversations and e-mail of Americans and others in the U.S. without obtaining a warrant or allowing Congress or the courts to review the operation.” Then, in December, 2005, a New York Times article disclosed the existence of the highly classified domestic eavesdropping program.1
The President’s Justifications
The president’s administration has offered up many justifications for warrantless surveillance on American citizens and legal residents. The issues are complex. Following are the most pertinent and hotly debated.
The President as Commander in Chief cannot be regulated by Congress. This is the administration’s primary defense, as set forth in a document written by Attorney General Alberto Gonzales, dated January 19, 2006.6 The argument is that the President’s constitutional authority as Commander in Chief (Article Two, Section 2 of the U.S. Constitution) permits him to do whatever he sees fit, and that Congress cannot limit his choice of how to “engage the enemy.” (See Unitary Executive Theory.) A report by the Congressional Research Service (CRS) dated January 5, 2005,7 pp. 3 & 4, states:
Foreign intelligence collection is not among Congress’s power enumerated in Article I of the Constitution, nor is it expressly mentioned in Article II as a responsibility of the President. Yet it is difficult to imagine that the Framers intended to reserve foreign intelligence collection to the states or to deny the authority to the federal government altogether. It is more likely that the power to collect intelligence resides somewhere within the domain of foreign affairs and war powers, both of which areas are inhabited to some degree by the President together with the Congress.
But it must be remembered that the problem with NSA’s secret surveillance program is that it is directed to Americans and/or legal residents, making it a domestic issue. Robert Reinstein, dean of the law school at Temple University, said he considered the eavesdropping program “a pretty straightforward case where the president is acting illegally,” and that there appeared to be a broad consensus among legal scholars and national security experts that the administration’s legal arguments were weak. “When Congress speaks on questions that are domestic in nature, I really can’t think of a situation where the president has successfully asserted a constitutional power to supersede that.” 8
Congress approved the NSA spying program when it authorized military force against al Qaeda. Shortly after the attacks of September 11, 2001, Congress passed Joint Resolution 23. It says, in part:
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 nationals, organizations or persons.
The authorization says nothing about wiretapping Americans. The CRS report7 found no indication that Congress intended to authorize warrantless wiretaps when it gave Bush the authority to use military force. CRS states, at page 43:
To the extent that the Administration seems to base its interpretation of the AUMF and FISA on the assumption that a reading contrary to the one they rely upon would be an unconstitutional violation of separation-of-powers principles, it appears to regard the matter as deserving the highest level of deference under Youngstown’s9 first category simply by virtue of the assumption that it would survive scrutiny under the third category. To conclude that Congress’s enactments are unconstitutional and therefore could not reflect Congress’s intent seems to beg the question. [Emphasis added.]
Bush informed Congress about the NSA program. “If I wanted to break the law, why was I briefing Congress?” The administration claims that it informed isolated members of Congress twelve (12) times but there is no evidence that he told those members that he believed his actions were authorized by the AUMF resolution or that he was asserting executive power to violate criminal law. In addition, the briefings were classified and members were prohibited from repeating to other members anything that was said there. So the answer to Bush’s question is that he may have “informed Congress” precisely to provide cover in case his secret lawbreaking ever became public, but he did so in a manner that insured Congress could not take action against him. A report by the Congressional Research Service (CRS) dated January 18, 2006,10 says that, under the National Security Act of 1947, §§ 501-503 [50 U.S.C. 413-413(b)], “the President is to ensure that the congressional intelligence committees are kept ‘fully and currently informed’ of U.S. intelligence activities, including any ‘significant anticipated intelligence activity.’ It goes on to say:
According to legislative history, the term “fully and currently informed,” is intended to mean that complete and timely notice of actions and policies is provided, and that the committees will be informed of intelligence activities in such detail as the committees may require.
The CRS appears to find that the President did not adhere to the law:
If the NSA surveillance program were to [be] considered an intelligence collection program, limiting congressional notification of the NSA program to the Gang of Eight,11 which some Members who were briefed about the program contend, [it] would appear to be inconsistent with the law, which requires that the “congressional intelligence committees be kept fully and currently informed of all intelligence activities,” other than those involved covert actions.
The courts have upheld inherent presidential power to conduct warrantless wiretapping for foreign intelligence purposes. Bush’s defenders claim that every court that has addressed the subject has said the president has inherent authority to conduct warrantless wiretapping for foreign intelligence-gathering purposes. However, those courts were addressing presidential authority before Congress regulated such activity by enacting FISA in 1978. For example, the Administration has relied heavily on Youngstown9, a 1952 case. The CRS report7 states at page 44:
From the foregoing analysis, it appears unlikely that a court would hold that Congress has expressly or impliedly authorized the NSA electronic surveillance operations here under discussion, and it would likewise appear that, to the extent that those surveillances fall without the definition of “electronic surveillance” within the meaning of FISA or any activity regulated under Title III, Congress intended to cover the entire field with these statutes.
The fact that presidents may have “inherent” authority to take action in the absence of contrary Congressional intent does not mean they have un-checkable authority to do so once Congress has prohibited the conduct. That argument would mean FISA is unconstitutional, and no court has so ruled.
Following existing law would require the National Security Agency to turn off a wiretap of an al Qaeda member calling in to the United States. FISA restrictions apply only to American citizens and legal residents or when a wiretap is physically located within the United States. If the NSA is listening in on al-Qaeda phone conversations anywhere other than the United States, nothing in FISA requires them to stop listening. However, if a wiretap triggers the FISA law, the tap does not have to be turned off. They have 72 hours to get an order from FISC.
While President Bush’s justification for warrantless surveillance on American citizens and legal residents are varied and complex, a full assessment is impossible since details of the program remain secret to this day. A full scale investigation is necessary in order to ascertain if the actions are illegal and if they demonstrate a presidential abuse of power and if, therefore, they are impeachable. To date, neither the Senate nor the House has endeavored to conduct such an investigation.
1 Risen, James and Lichtblau, Eric. “Bush Lets U.S. Spy on Callers Without Courts,” New York Times, December 16, 2005
2 See “Nixon’s Interview on Presidential Power: Excerpt from an Interview with David Frost, May 19, 1977. (Landmarkcases.org)
3 Savage, David G., “Words, Deeds on Spying Differed.” Los Angeles Times, January 26, 2006.
4 White House Press Brief by Attorney General Alberto Gonzales and General Michael Hayden, Principal Deputy Director for National Intelligence, December 19, 2005.
5 Moschella, William E., Assistant Attorney General. Letter to Senator Pat Roberts, Chair, Senate Select Committee on Intelligence; Senator John D. Rockefeller, Vice Chair, Senate Select Committee on Intelligence; Representative Peter Hoekstra, Chair, Permanent Select Committee on Intelligence; and Representative Jane Harman, Ranking Minority Member, Permanent Select Committee on Intelligence, December 22, 2005.
6 Albert R. Gonzales, U.S. Department of Justice. Legal Authorities Supporting the Activities of the National Security Agency Described by the President, January 19, 2006.
7 Congressional Research Service, Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information, January 5, 2006.
8 Lichtblau, Eric and Risen, James. “Legal Rationale by Justice Dept. on Spying Effort,” New York Times, January 20, 2006.
9 Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952)
10 Congressional Research Service, Statutory Procedures Under Which Congress Is To Be Informed of U.S. Intelligence Activities, Including Covert Actions, January 18, 2006.
11 The Gang of Eight is a common term for the eight leaders of Congress, which includes the leaders from each party in the Senate and the House of Representatives and the chair and ranking members of the intelligence committees in each of the houses.
© The Issue Wonk, 2006