In 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 [link no longer available] 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.
Originally Posted at Concurring Opinions
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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.