Crib Sheet: Wiretapping Without a Warrant

Clearing up the administration’s faulty intelligence surrounding the NSA’s Domestic Surveillance Program.

By Sam Berger, Center for American Progress
Wednesday February 22, 2006

President Bush has made several different arguments for the legality of the National Security Agency’s (NSA) warrantless wiretapping program, which violates the Foreign Intelligence Surveillance Act’s (FISA) requirement that wiretapping of US persons be approved by a court, even where national security is involved. Ironically, all of the President’s arguments rest on poor legal reasoning and bad intelligence – confused facts and a willful ignorance of congressional history and US law.

This NSA program is a violation of an existing statute passed in response to abuses of Americans’ rights revealed by the Church Committee, in particular President Nixon’s illegal wiretapping of Americans, and it is an overstepping of Presidential authority that erodes the rule of law for no appreciable gain. Rather than work through the proper legislative and judicial channels to address his issues with current surveillance law, President Bush has chosen to bypass trained judges and elected members of Congress to spy on Americans without appropriate oversight.

Faulty Intelligence: Congress granted the President this authority by passing the Authorization to Use Military Force

In a recent report, the Department of Justice (DoJ) argued that Congress granted the President the authority to order warrantless domestic wiretapping when it passed the Authorization to Use Military Force (AUMF) after 9/11, which authorized the President to “use all necessary and appropriate force” against the perpetrators of the attacks. President Bush restated this point in his 2006 State of the Union address, saying the program was “based on authority given to me by…statute.” The DoJ report argued that warrantless wiretapping constitutes necessary and appropriate force, thereby preempting the existing FISA statute.

The DoJ’s position has been challenged by noted legal scholars, in a report by the non-partisan Congressional Research Service (CRS), and in a memo by the former General Counsel of the Central Intelligence Agency. Congress has clearly stated that FISA and the criminal wiretap statute Title III “the exclusive means” to conduct legal wiretaps. Congress even explicitly stated how FISA should be used during war. It gives the President fifteen days from the day war is declared to conduct warrantless wiretapping. Thereafter, the President must seek warrants. The specific language in FISA trumps the implied meaning that Administration officials have teased out of the AUMF.

The claim that the AUMF authorizes domestic wiretapping is not only poor legal reasoning, but also disregards the opinions of those within the Executive branch and in Congress when the authorization was passed. Alberto Gonzales, who was then White House Counsel, said the administration did not ask for Congress to amend FISA because they “were advised [by Members] that…was not something we were likely to get.” It seems strange that the White House, as well as members of Congress, would be worried about asking for a power that the President had already been given in the AUMF. Perhaps the explanation lies in the fact that both Republicans and Democrats have agreed that their vote for the AUMF did not authorize warrantless wiretapping. As Republican Senator Sam Brownback said when asked if the AUMF allowed for warrantless domestic wiretapping, “it didn’t in my vote.” This sentiment was supported by Republicans Chuck Hagel, Arlen Specter and Lindsey Graham, all of whom questioned the NSA program. Center for American Progress Distinguished Senior Fellow Tom Daschle was the Senate Majority Leader then, and was heavily involved in the negotiations over the AUMF. Daschle wrote, “I can state categorically that [during the negotiations with the White House] the subject of warrantless wiretaps of American citizens never came up…I am also confident that the 98 senators who voted in favor of authorization of force against al Qaeda did not believe that they were also voting for warrantless domestic surveillance.” Graham also commented on the practical danger of Bush’s actions, saying, “it would be harder for the next president to get a force resolution if we take this too far.”

Faulty Intelligence: The President can authorize this program because of inherent Executive authority

President Bush also argues that the Executive’s inherent constitutional authority as Commander-in-Chief allows him to order warrantless domestic wiretaps. In his State of the Union address, President Bush said that the NSA domestic spying program is “based on authority given to me by the Constitution” to protect America from attacks. He has used similar claims to argue for the right to order the torture of prisoners, to imprison Americans without a trial, and to create secret prisons outside the reach of laws and treaties. The most disturbing aspect of this reasoning is that it is unclear where the President’s powers end. As John Yoo, the author of the White House legal memos that served as the basis for these claims of expanded Executive authority, said when asked if the President could legally order that an individual be tortured by crushing the testicles of his child, “I think it depends on why the President thinks he needs to do that.” Most recently, a DoJ official told the Senate Intelligence Committee that the President could order the murder of a suspected member of Al-Qaeda on US soil. No members of the White House have acknowledged the limits of presidential authority, perhaps because it is not clear they believe there are any.

These claims of inherent Executive authority ignore our constitutional and legal history. Our founders created three co-equal branches of government to serve as checks on each other. While the President has broad powers to protect the country from external threats, these powers are constrained by Congress and the Constitution. As Justice Jackson wrote in a concurring opinion to the Supreme Court decision in Youngstown Sheet and Tube Co. v Sawyer, which prevented President Truman from taking over steel mills during the Korean War, when the President violates a Congressional action his power is at its “lowest ebb”. The Supreme Court re-affirmed its position that presidential power is not unlimited even in war time in Hamdi v. Rumsfeld, when Sandra Day O’Connor wrote that a “state of war is not a blank check for the President.” Previous modern presidents have understood the limits to their power. While presidents have engaged in warrantless wiretapping, they did so before FISA; since the inception of the law, there is no evidence that any previous president violated it.

All the branches of government have a role in protecting us, in times of war and peace. Attorney General Gonzales was correct that “[we should] leave the decisions about particular intercepts to the judgment of professional intelligence officers”; and we should leave the decisions about the legality of those intercepts to professional judges. The executive branch should focus on its role of pursuing and capturing terrorists, and allow the judicial branch to fulfill its role of ensuring government actions do not violate our laws or the Constitution.

Faulty Intelligence: We need the NSA program to monitor terrorists

President Bush has argued that the warrantless NSA wiretapping is vital to protect us from terrorism, claiming the program would have allowed the government to prevent the attacks of 9/11 because two of the hijackers made calls from within the US to operatives overseas. While the secrecy surrounding the details of the NSA program make it difficult to judge exactly how necessary the program is, this particular claim is contrary to the findings of the 9/11 Commission, which determined that the primary cause of the attacks was not a lack of intelligence, but bureaucratic roadblocks and lack of communication between intelligence and law enforcement agencies. In fact, federal agencies had information on the two hijackers as early as January 2000, but failed to capitalize on the information, rendering the warrantless wiretapping question moot in this case. According to a New York Times story, the only real result of the NSA program has been the passing along of thousands of dead-end leads to the FBI, prompting FBI agents to joke that “a new bunch of [NSA] tips meant more ‘calls to Pizza Hut’.”

The President has attempted to argue this debate is about terrorist surveillance, saying “If there are people inside our country who are talking with al-Qaeda, we want to know about it.” We all agree, which is why FISA was designed to allow us to do just that. Moreover, FISA provides flexibility, allowing warrantless wiretapping for 72 hours before the Attorney General must submit a warrant application to the secret FISA court. The Bush Administration has argued that even this application process is too time-consuming, but as Senators Reid, Durbin, Kennedy and Feingold commented in their letter to President Bush “your administration’s bureaucratic and paperwork delays are not an excuse for violating the law.”

Faulty Intelligence: This program is necessary because FISA is out of date

The White House has claimed that FISA is no longer applicable in a post 9/11 world. In a recent speech at the National Press Club, former Director of National Security Michael Hayden argued that, “I don’t think anyone can make the claim that the FISA statute is optimized to deal with or prevent a 9/11.” Such a claim was made, however…in a 2002 statement from James Baker, the head of the DoJ office that prepares FISA warrants. Baker told the Congress that the changes to FISA made in the USA Patriot Act “have allowed us to make full and effective use of FISA’s pre-existing emergency provisions to ensure that the government acts swiftly to respond to terrorist threats.”

Regardless of the effectiveness of FISA, President Bush has provided no explanation why he chose to violate US law instead of asking that Congress amend FISA, something the White House continually refused to do, before finally stating that it is now "open to ideas regarding legislation.". This action remains hollow, however, because the White House will not provide the operational details of the NSA program to Congress. Unless it does so, how can Congress make an informed decision about what changes are necessary to FISA?

Faulty Intelligence: Congress was briefed about this program

There is no doubt that President Bush acted improperly in bypassing Congress. While Bush claimed in his State of the Union that “Appropriate Members of Congress have been kept informed” this is simply not the case. A CRS report on the President’s limited briefing of a few members of Congress found that it was “inconsistent with the law” and made effective oversight a practical impossibility.

Rather than present his concerns over existing intelligence laws to the Congress and allow for open debate, President Bush chose to subvert the rules of our democracy and proceed in secrecy without judicial oversight of any kind. For someone entrusted with defending our Constitution, that is a serious offense indeed.