NSA Domestic Spying Program

Regardless where you stand on warrantless electronic eavesdropping by Government intelligence agencies, such wiretapping of citizens is illegal. Necessary or not, it's unconstitutional.

The current legal argument put forth by the White House and AG Gonzales for warrantless domestic wiretaps and dispensing with FISA/FISC has been 1) his authority as commander in chief (The Imperial Presidency) and 2) that Congress implicitly gave him that power when it authorized the use of force (AUMF) against those who attacked the United States on 9/11; a statement without any legal or principled authority.

The argument that the President has plenary powers as the President was an oft cited claim under Nixon. A claim that has been rejected in a variety of different ways in different cases.

Article II of the US Constitution states in relevant part: Section 1. The executive power shall be vested in a President of the United States of America. Section 2. The President shall be commander in chief of the Army and Navy of the United States. (It is also where the power to impeach the president lies.)

An Imperial Presidency argument will not fly legally under either Youngstown (Truman’s seizure of steel mills) or Hamdi (unanimous requirement of due process for enemy combatants.)

At issue here is the Separation of Powers: Presidential Authority vs Congressional Law. Youngstown Co. v. Sawyer, 343 US 937 (1952), the controlling case in this issue, requires the President to act within Congressional and Constitutional parameters.

Later, in a case closer to the issue at hand, the Court in US v. US District Court (Keith) 407 U.S. 297 (1972), unanimously held that the President could not circumvent the 4th Amendment's warrant clause in domestic national security surveillance.

Still, more recently the Court has held that, "We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens. Youngstown Sheet & Tube, 343 U.S., at 587. Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake. (Hamdi v. Rumsfeld, 542 U.S. 507 (2004)

Under current US Constitutional law, the President does not have the inherent power to violate the Bill of Rights.

The second justification is the one being sold by AG Alberto Gonzales; that the AUMF gave the President implicit powers to ignore FISA.

There are two problems with this justification. First, FISA does not do away with the 4th Amendment but rather incorporates it into it's language.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.


FISA set up a special court (FISC) to review warrants for national security purposes. This method has worked well for close to thirty years.

Despite the claims made by this Administration, Congress can not simply overwrite the 4th Amendment either by statute or by resolution. (And please don't cite United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980), a pre-FISA ruling rejected in FISC 02-001.)

But Congress did no such thing. The Administration claims that the language in the AUMF allows the President to do anything and everything necessary, including ignoring the Constitution: "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."

This reminds me of the scene in the Untouchables where Ness (Cosner) can't arrest Frank Nitti for carrying a gun in court because Nitti has a note from the Chicago mayor: Please afford all due consideration for Mr. Nitti.

The law clearly states that the criminal wiretap statute and FISA are “the exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted.” If these authorities are exclusive, there is no other legal authority that can authorize warrantless surveillance.

Courts generally will not view such a clear statutory statement as having been overruled by a later congressional action unless there is an equally clear indication that Congress intended to do that.

This justification is a fiction.

The second problem is that the Administration just invented it. Last spring, Gonzales didn't use that justification:

“Can the CIA spy on the American—” Sen. Barbara A. Mikulski (D-Md.) tried again.

“No,” answered Attorney General Gonzales, only to be amended later by FBI Director Robert S. Mueller III. “Surveillance of American citizens for national security matters is in the hands, generally, of the FBI,” Mueller told Mikulski and members of the Senate Select Committee on Intelligence. “The investigation or development of intelligence overseas is in the hands of the CIA and NSA [National Security Agency]. And generally, I would say generally, they are not allowed to spy or to gather information on American citizens. But there are limited exceptions to that.” Washington Post April 28, 2005



The White House knew FISA didn't authorize warrantless wiretapping otherwise why would Gonzales admit that the White House had considered asking Congress to pass new legislation that would explicitly permit those activities and that the Administration had abandoned the idea of new legislation because getting a bill through (a Republican) Congress “would be difficult if not impossible.”

"He claims he can ignore the law because Congress granted permission when it authorized him to use force against Al Qaeda. But we know that can’t be true. Atty. Gen. Alberto Gonzales says the administration didn't ask for a revision of the law to give the president explicit power to order such wiretaps because Congress—a Republican Congress, mind you—wouldn't have agreed. So the administration decided: Who needs Congress?" Chicago Tribune

This justification has been recently undermined further with the news of the proposed legislation a few years ago by Sen. Mike DeWine to ease FISA requirements and its subsequent rejection by this Administration.

“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 FISA warrants we require.”
James A. Baker, the Justice Department’s counsel for intelligence policy, July 2002.

Without justifying “exigent circumstances” or it’s progeny on each case of wire-tapping of an American citizen, then it’s a violation of the 4th Amendment. The term now being employed, “hot pursuit”, is a literal term and not a metaphor.

Bush and his administration has always known that they needed to get a warrant.

“Now, by the way, any time you hear the United States government talking about wiretap, it requires—a wiretap requires a court order. Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so. It’s important for our fellow citizens to understand, when you think ‘Patriot Act,’ constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.” George W. Bush, April 20th, 2004

Don't let then tell you otherwise.

The Fourth Amendment was placed in our Constitution to protect the innocent, not the guilty. That's why it so simple to get a warrant; all the request has to be is reasonable and supported by probable cause.

The argument that spying shouldn't matter to those who have nothing to hide ignores the past.

Pick your point in history: Christ's crucifixion, The Spanish Inquisition, The Salem Witch Trials, Robespierre and the Reign of Terror, McCarthy's Red Scare & HUAC, Nixon's Enemies List. During these periods (and others) all "innocents" had something to fear.