NSA Spying, FISA, and Presidential Authority

Unless you've been living in a cave for the past week, you have undoubtedly heard at least four different justifications for president Bush's eavesdropping on American citizens without warrants via the NSA, and four different explanations of why such an action is not only illegal but unconstitutional. The debate has been lively, yet most readers will be presented with numerous conflicting interpretations of the relevant legal nuances, as well as more than a fair share of outright distortions and lies. In order to come to an informed conclusion about the legality of Bush's NSA policy, Americans should seek a basic understanding of the relevant laws and principles despite the sometimes treacherous terrain of bland legalisms and infuriating nuance.

The debate has largely revolved around three basic areas: 1) the Fourth Amendment, 2) the Foreign Intelligence Surveillance Act (FISA), and its relationship to the Authorization to Use Military Force (AUMF) passed by Congress after 9/11 and 3) the inherent powers of the president under Article II of the Constitution. The debate is further confused by the interplay between these three areas, such as the balance between Article II presidential powers and the Fourth Amendment. To offer a brief outline of the arguments being made:

The Fourth Amendment of the Constitution protects United States citizens from "unreasonable search and seizure" -- a protection put into effect by requiring the executive branch to secure a warrant from a judge before -- as relevant to this case -- wiretapping the phone lines of an American citizen. Of course the issue isn't as clear-cut as that, since the President is widely held to reserve the power to order wiretaps without a warrant. From the Volokh Conspiracy:

Wiretapping to protect the security of the Nation has been authorized by successive Presidents. The present Administration would apparently save national security cases from restrictions against wiretapping. We should not require the warrant procedure and the magistrate's judgment if the President of the United States or his chief legal officer, the Attorney General, has considered the requirements of national security and authorized electronic surveillance as reasonable.

While this is not a completely foolproof legal principle (the Supreme Court has not ruled precisely on it), it is generally accepted as valid, and would probably hold up in court. Given this much, it seems that the President was acting within his rightful authority in ordering these warrantless wiretaps, except for the complication offered by FISA.

The Foreign Intelligence Surveillance Act, passed in 1978, established a secret court (the Foreign Intelligence Surveillance Court or FISC) through which the executive branch could secure warrants for wiretaps and other sorts of search. The relevant statute, 50 USC 1809, states that "A person is guilty of an offense if he intentionally . . . engages in electronic surveillance under color of law except as authorized by statute." This means that if the executive wiretaps anyone without a warrant secured from the FISC or justification according to another law, they are guilty of an offense. There are exceptions to this law dealing with 'foreign agents' (spies for other countries), however investigation of terrorist suspects is not one of those exceptions.

The relationship between FISA and the Authorization to Use Military Force (AUMF) is that President Bush is claiming that implicit in the AUMF is the right to wiretap terrorist suspects without a warrant. The language of the AUMF statue is as follows:

AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.
(a) IN GENERAL.--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 nations, organizations or persons.

The question is if the authorization to "use all necessary and appropriate force against those nations, organizations, or persons he determines..." includes an authorization to do what President Bush did, that is wiretap American citizens without warrants. Bush claims that such surveillance is "necessary and appropriate" to the execution of the law, and that it fulfills the requirement in FISA "...except as authorized by statute." That is to say, Bush claims that the AUMF is the statute which authorizes this action, so what he did is completely in keeping with FISA.

There are still others who claim that the President has authority through Article II of the Constitution to order wiretaps without warrants, and who claim that FISA is an unconstitutional infringement on his presidential authority in that respect. If such a claim is made, it is then necessary to determine what the balance is between this presidential power and the protection against "unreasonable search and seizure" -- specifically the requirement for warrants established by the Fourth Amendment.

None of this gets us any closer to an answer as to whether or not Bush has violated federal law or the Constitution, however it does present how complicated the issue has become. From what I have read, it seems unlikely that the AUMF is adequate to get around FISA, as Bush is attempting to do. It is very clear, also, that the intent of the Fourth Amendment has been violated, if not the exact letter of the law.

The bottom line is that the President ordered his subordinates to violate FISA by wiretapping without a warrant, and in doing so he also violated the intent of the Fourth Amendment protection against unreasonable search and seizure. Many people disagree with this "bottom line" because they have differing views of the extent of presidential authority, however it is seeming more and more likely that the case will be determined by whether the court finds that the AUMF provided sufficient authorization to bypass the normal requirements of FISA. In this sort of case, the court is unlikely to argue from first principles that the President violated the Fourth Amendment, since doing so would be to clearly delineate a serious limitation on presidential power. For some reason the Supreme Court is not very fond of making definitive statements on the limitations of the president. I would love it if they did just that, but not everyone is as libertarian as I am. In the politicized environment of our country, whether Bush walks away scot-free or not will probably depend as much on people's outrage over this as on any legal quibbling, so the best we can do is keep the pressure on.

For much more in-depth analysis of all these issues from someone with formal legal education, check out the excellent (and long) legal analysis at Volokh.com (link here). For more background on Bush's stance on presidential authority, you can read the famous paper by John Yoo claiming "plenary" executive power for the president (link here). There are even more links to the relevant statutes and case law on Volokh.com included in the analysis.