NSA warrantless surveillance controversy: Encyclopedia II - NSA warrantless surveillance controversy - Legal issues

NSA warrantless surveillance controversy - Legal issues

There are a number of legal issues surrounding the surveillance without warrants controversy. There is the possibility that President Bush, in authorizing such surveillance, is in violation of the Foreign Intelligence Surveillance Act (FISA) and the Constitution. Relatedly, there is the issue of whether FISA, if interpreted to prohibit Bush's actions, would be considered by the Supreme Court an unconstitutional interference in the President's authority.

NSA warrantless surveillance controversy - Legality of warrantless surveillance

Since the full details of the NSA surveillance operation are still somewhat unknown, the ultimate issue legality is largely unknowable. The debate surrounding President Bush’s authorization of warrantless surveillance is principally about the extent of the authority the Executive Branch derives from its constitutional and statutory authority to protect the nation from attack and its relation to restrictions imposed by FISA. The legal community is split, with some lawyers; like Suzanne Spaulding, former general counsel for the Intelligence Committees of the House and Senate arguing that FISA clearly makes the wiretapping illegal^[11]; and others like John Schmidt, former Associate Attorney General arguing either that Congress implicitly authorized an exemption to FISA or that FISA cannot bind the president in a time of war.^[12]

The Foreign Intelligence Surveillance Act defines the Justice Department's authority to conduct physical and electronic surveillance for "foreign intelligence information". FISA provides two mechanisms to perform searches. First, FISA authorizes the Justice Department to obtain warrants from the secret Foreign Intelligence Surveillance Court (FISC) up to 72 hours after the beginning of the eavesdropping. In this case, FISA authorizes a FISC judge to grant an application for the electronic surveillance if "there is probable cause to believe that… the target of the electronic surveillance is a foreign power or an agent of a foreign power." 50 U.S.C. § 1805(a)(3). Second, FISA permits the President to authorize the Justice Department to conduct foreign intelligence surveillance for up to one year without a court order. 50 U.S.C. § 1802(a)(1)^[13]. In this situation, the surveillance must be directed solely at communications used exclusively by foreign powers, not U.S. persons. FISA provides for both criminal and civil liability for intentional electronic surveillance under color of law but not authorized by statute. FISA defines a "foreign power" as a foreign government, any faction(s) or foreign governments not substantially composed of US persons, and any entity directed or controlled by a foreign government. FISA limits its use against US persons who are citizens, foreign resident aliens of US corporations. Finally, FISA applies to surveillence whose significant purpose must be for gathering foreign intelligence information, which is information necessary to protect against actual or potential grave attack, sabotage or international terrorism.

Executive orders by previous administrations including Clinton's and Carter's authorized the attorneys general to exercise authority with respect to both options under FISA.^[14] These legal and constitutional orders were exercises of executive power under Article II consistent with FISA. In Clinton's executive order, he authorizes his attorney general "[pursuant] to section 302(a)(1)" to conduct physical searches without court order "if the Attorney General makes the certifications required by that section".

However, the authorization granted by President Bush to the NSA apparently uses neither FISC approval nor the one-year foreign surveillance authority granted by FISA. Instead, the administration argues that the power is granted by the Constitution and by a statutory exemption. Case law supports the idea that the President has the "inherent authority to conduct warrantless searches to obtain foreign intelligence information." Article II of the Constitution of the United States of America makes the President Commander in Chief with the responsibility to protect the Nation. This authority extends to the "independent authority to repel aggressive acts... without specific congressional authorization" and without court review of the "level of force selected." Campbell v. Clinton, 203 F.3d 19 (D.C. Cir. 2000). Whether such declarations apply to foreign intelligence has been examined by few courts.

In 2002, the United States Foreign Intelligence Surveillance Court of Review (Court of Review) met for the first time and issued an important foreign intelligence opinion, In Re Sealed Case No. 02-001. The Court of Review examined all the significant appellate decisions. They noted all the Federal courts of appeal having looked at the issue had concluded that there was such constitutional power. Furthermore, if there was such power, "FISA could not encroach on the president's constitutional power." However, In Re Sealed Case "[took] for granted" that these cases are correct. Furthermore, professor Orin Kerr argues that the part of In Re Sealed Case that dealt with FISA (rather than the Fourth Amendment) was nonbinding dicta and that the argument does not restrict Congress's power to regulate the executive in general.^[15]

Even assuming the President has no authority under Article II of the Consitution, the President's decision may nevertheless be protectible under FISA. Following the 9/11 attacks, Congress passed the Authorization for the Use of Military Force (AUMF). Section 2(a) of the AUMF authorized the President to "use all necessary... force against those nations, organizations or persons he determines planned, authorized, committed or aided the [9/11] terrorist attacks." Under FISA, this provides for two basic legal arguments. First, FISA allows for both physical searches and electronic surveillance without a court order for fifteen days after a declaration of war by Congress. 50 U.S.C. §1811. Several cases, including Hamdi v. Rumsfeld and Rumsfeld v. Padilla, have construed the AUMF as a declaration of war-at least, insofar as it authorizes war against Al Qaeda and its agents—although the language it uses also has notable differences with prior declarations of war. In this case, §1811 may permit some level of surveillance. The meaning of §1811 is somewhat ambiguous as to scope of authority permitted under this section. One argument is that it permits the President to authorize, for a period of fifteen days following the declaration, indefinite surveillance of Al Qaeda and its agents, but the repeated reauthorization of the surveillance by the President suggests this argument is not being used by the White House. Another interpretation is that it permits short term surveillance of fifteen days authorized at any point after the declaration of war.

The AUMF may also relieve the administration of any criminal or civil liability under 50 U.S.C. §§ 1809 and 1810. These two provisions, and their corresponding provisions for physical searches, provide that intentional surveillance without authority is a felony "except as authorized by statute." The argument, in this case, is that "all necessary force" includes "foreign surveillance." In Hamdi and Padilla, the Supreme Court found that the detention of both American and Foreign citizens were "clearly and unmistakably" a "fundamental incident of waging war". Intelligence gathering, some argue, would fall under this same rubric of incidents of war. As such, if the AUMF is understood as a "statutory" authority under FISA, neither the criminal nor civil penalities would apply, at the very least, to those individuals targeted by the AUMF. However, former Senate majority leader Tom Daschle, who negotiated the language of the AUMF, explained that "the president has exercised authority that I do not believe is granted to him in the Constitution, and that I know is not granted to him in the law that I helped negotiate." [16]

Finally, there may be significant legal problems should information gathered under President Bush's authorization be used in criminal trials. Ordinarily, the Fourth Amendment protects the "right of the people to be secure... against unreasonable searches and seizures". It continues that "no Warrants shall issue, but upon probable cause". A number of cases have found that authorization for surveillance under FISA did not violate the Fourth Amendment. The Fourth Amendment is couched in reasonableness. Courts have long recognized exceptions from the warrant requirement for "special needs" outside "the normal need for law enforcement."

In In Re Sealed Case, the court recognized foreign intelligence surveillance is different from surveillance used for criminal prosecution. In addition, courts have rejected arguments under the Due process or the Equal protection clauses. This is not clearly the case for authorization given to the NSA by the President. Other cases have allowed the use at criminal trial of evidence obtained incident to authorized FISA.

Courts have only addressed this issue with respect to authorized surveillance of foreign powers, their agents and those communications incident to such surveillance. The courts have never specifically addressed whether it is reasonable to use evidence gained from broad warrantless surveillance, which may more broadly cover the communications of US persons. The National Security Act of 1947 requires Presidential findings for covert acts. SEC. 503. [50 U.S.C. 413b] (a) (5) of that act states: "A finding may not authorize any action that would violate the Constitution or any statute of the United States."

Orin S. Kerr, a professor of law at George Washington University Law School and scholar of the legal framework of electronic surveillance has opined that the question of whether the wiretapping violated the Fourth Amendment and the criminal provisions of FISA is a complex issue, but that after his first analysis he concluded that the wiretapping probably did not infringe on Fourth Amendment constitutional rights, but, in his opinion, probably did violate the FISA statute.

President Bush has maintained he acted within "legal authority derived from the constitution" and that Congress "granted [him] additional authority to use military force against al Qaeda". ^[17] However, while the President may argue that the necessary statutory authority to override FISA's warrant provisions is provided by the authorization to use "all necessary force" in the employment of military resources to protect the security of the United States, and that the use of wiretapping is a qualifying use of force (under the terms of the authorization for the use of military force against al-Qaida as found in Senate Joint Resolution 23, 2001), Kerr believes that this justification is ultimately unpersuasive, as is the argument that the President's power as the Commander-in-Chief (as derived from Article Two of the United States Constitution) provides him with the necessary constitutional authority to circumvent FISA during a time of war. ^[18] Kerr cautiously estimates that about eight of the nine Supreme Court justices would agree with him that Article Two cannot trump statutes like FISA.^[19] Bush's efforts to find justification for the wiretap program within the authorization to use "all necessary force" was further undermined when former Senator Tom Daschle said in a Washington Post op-ed that Congress turned down a specific Bush request for the power to pursue terrorist activity in the United States immediately after the September 11 attacks in the United States.^[20].

John Schmidt, an associate attorney general during the Clinton Administration (1994-1997), believes the President's authorization of the NSA electronic surveillance of communications is consistent with court decisions and with the positions of the Justice Department under prior presidents. He argues that the passage of FISA did not alter any constitutional authority given to the president to conduct and authorize warrantless searches and surveillance for the purposes of foreign intelligence gathering. Schmidt cites the recent Foreign Intelligence Surveillance Court of Review opinion, In Re Sealed Case No. 02-001, for the proposition that "[a]ll the ... courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence ... We take for granted that the president does have that authority."^[21] There is significant controversy over whether Schmidt's interpretation is correct, given that the quoted language in In Re Sealed Case No. 02-001 concerned a line of constitutional inquiry that predated the enactment of FISA, in particular United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980).

John Yoo, law professor and former deputy director of the Justice Department's Office of Legal Counsel, wrote on September 25, 2001, that "[in] the exercise of his plenary power to use military force, the President's decisions are for him alone and are unreviewable."^[22] The memo examined closely the Executive branch's authority to deploy troops and respond to emergencies. If the NSA's foreign intelligence gathering is akin troop deployment or other war making activities, Yoo's memo would suggest that President Bush's authorization is both legal and constitutional.

The Congressional Research Service, a nonpartisan research arm of the Library of Congress, wrote a detailed memo in January 2006 regarding the NSA electronic surveillance of communications, concluding that "it appears unlikely that a court would hold that Congress has expressly or impliedly authorized the NSA electronic surveillance operations" and that the Administrations reliance on executive power was not "well-grounded." [23]

NSA warrantless surveillance controversy - Leaking of classified information

Disclosure of classified information is governed by federal statute, 18 USCS §798 (2005). This statute says that "whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person", including by publication, "classified information" relating to "the communication intelligence activities of the United States or any foreign government", shall be fined or imprisoned for up to ten years. This statute is not limited in application to only federal government employees. However, the Code of Federal Regulations suggests the statute may apply primarily to the "[c]ommunication of classified information by Government officer or employee". 50 USCS §783 (2005).

There is a statutory procedure for a "whistleblower" in the intelligence community to report concerns with the propriety of a secret program, The Intelligence Community Whistleblower Protection Act of 1998, Pub. L. 105-272, Title VII, 112 Stat. 2413 (1998). Essentially the Act provides for disclosure to the agency Inspector General, and if the result of that is unsatisfactory, appeal to the Congressional Intelligence Committees. A former official of the NSA, Russ Tice, has asked to testify under the terms of the Intelligence Community Whistleblower Protection Act, in order to provide information to these committees about "highly classified Special Access Programs, or SAPs, that were improperly carried out by both the NSA and the Defense Intelligence Agency. [24]

Executive Order 13292, which sets up the U.S. security classification system, provides: "Sec. 1.7... (a) In no case shall information be classified in order to: (1) conceal violations of law..." Given doubts about the legality of the overall program, the classification of its existence may not have been valid under E.O. 13292.

NSA warrantless surveillance controversy - Publication of classified information

It is unlikely that the New York Times could be held liable for publishing its article under established Supreme Court precedent. In Bartnicki v. Vopper, 532 U.S. 514, the Supreme Court held that the First Amendment precluded liability for publication of illegally obtained communications involving a public controversy.

Nor could the government have prevented the publication of the classified information by obtaining an injunction. In the Pentagon Papers case, (New York Times Co. v. U.S. (403 US 713)), the Supreme Court held in a 6-3 decision that injunctions against the New York Times publication of classified information (United States-Vietnam Relations, 1945-1967: A Study Prepared by The Department of Defense, a 47 volume, 7,000-page, top-secret United States Department of Defense history of the United States' political and military involvement in the Vietnam War from 1945 to 1971) were unconstitutional prior restraints and that the government had not met the heavy burden of proof required for prior restraint.

Adapted from the Wikipedia article "Legal issues", under the G.N U Free Docmentation License. Please also see http://en.wikipedia.org/wiki