2005 NSA controversy



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The NSA warrantless surveillance controversy concerns surveillance of persons within the United States incident to the collection of foreign intelligence by the U.S. National Security Agency (NSA) as part of the war on terror. Under this program, referred to by the Bush administration as the "terrorist surveillance program",¹ the NSA is authorized by executive order to monitor, without warrants, phone calls, e-mails, Internet activity, and text messaging, and other communication involving any party believed by the NSA to be outside the U.S., even if the other end of the communication lies within the U.S. The exact scope of the program is not known, but the NSA is or was provided total, unsupervised access to all fiber-optic communications going between some of the nation's major telecommunication companies' major interconnect locations, including phone conversations, email, web browsing, and corporate private network traffic. Shortly before Congress passed a new law in August of 2007 that legalized warrantless surveillance, the Protect America Act of 2007, critics stated that such "domestic" intercepts required FISC authorization under the Foreign Intelligence Surveillance Act,². The Bush administration maintains that the authorized intercepts are not domestic but rather foreign intelligence integral to the conduct of war and that the warrant requirements of FISA were implicitly superseded by the subsequent passage of the Authorization for Use of Military Force Against Terrorists (AUMF).³ FISA makes it illegal to intentionally engage in electronic surveillance under appearance of an official act or to disclose or use information obtained by electronic surveillance under appearance of an official act knowing that it was not authorized by statute; this is punishable with a fine of up to $10,000 or up to five years in prison, or both. ⁴ In addition, the Wiretap Act prohibits any person from illegally intercepting, disclosing, using or divulging phone calls or electronic communications; this is punishable with a fine or up to five years in prison, or both. ⁵

Attorney General Alberto Gonzales confirmed the existence of the program, first reported in a December 16, 2005 article in The New York Times⁶⁷. The Times had posted the exclusive story on their website the night before, after learning that the Bush administration was considering seeking a Pentagon-Papers-style court injunction to block its publication.⁸ Critics of The Times have openly alleged that executive editor Bill Keller had knowingly withheld the story from publication since before the 2004 Presidential election, and that the story that was ultimately first published by The Times was essentially the same one that reporters James Risen and Eric Lichtblau had first submitted at that time.⁹

Gonzales stated that the program authorizes warrantless intercepts where the government "has a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda." and that one party to the conversation is "outside of the United States".¹⁰ The revelation raised immediate concern among elected officials, civil right activists, legal scholars and the public at large about the legality and constitutionality of the program and the potential for abuse. Since then, the controversy¹¹ has expanded to include the press's role in exposing a classified program, the role and responsibility of Congress in its executive oversight function and the scope and extent of Presidential powers under Article II of the Constitution.

Developments

In mid-August 2007, a three-judge panel of the United States Court of Appeals for the Ninth Circuit heard arguments in two lawsuits challenging the surveillance program. The appeals were the first to reach the court after dozens of civil suits against the government and telecommunications companies over NSA surveillance were consolidated last year before the chief judge of the Ninth Circuit federal trial court, Vaughn R. Walker. One of the cases is a class action against AT&T, focusing on allegations that the company provided the NSA with its customers' phone and Internet communications for a vast data-mining operation. Plaintiffs in the second case are an Islamic charity and two of its lawyers.¹²¹³

On November 16, 2007, the three judges - M. Margaret McKeown, Michael Daly Hawkins, and Harry Pregerson - issued a 27-page ruling¹⁴ that the charity, the Al-Haramain Islamic Foundation, could not introduce a key piece of evidence in its case because it fell under the government's claim of state secrets, although the judges said that "In light of extensive government disclosures, the government is hard-pressed to sustain its claim that the very subject matter of the litigation is a state secret."¹⁵

In an August 14, 2007 question-and-answer session with the El Paso Times newspaper which was published on August 22nd, Director of National Intelligence Mike McConnell confirmed for the first time that the private sector assisted with the warrantless surveillance program. "Now if you play out the suits at the value they're claimed, it would bankrupt these companies," McConnell said, arguing that they deserve immunity for their help.¹⁶ Plaintiffs in the AT&T suit subsequently filed a motion with the court to have McConnell's admission of corporate cooperation with the NSA admitted as evidence in their case.¹⁷

The program may face an additional legal challenge in the appeal of two Albany, New York men convicted of criminal charges in an FBI anti-terror sting operation. Their lawyers contend that they have evidence the men were the subjects of NSA electronic surveillance, which was used to obtain their convictions but not made public at trial or made available in response to discovery requests by defense counsel at that time.¹⁸

In an unusual related legal development, on October 13, 2007, The Washington Post reported that Joseph P. Nacchio, the former CEO of Qwest Communications, is appealing an April 2007 conviction on 19 counts of insider trading by alleging that the government withdrew opportunities for contracts worth hundreds of millions of dollars after Qwest refused to participate in an unidentified National Security Agency program that the company thought might be illegal. According to court documents unsealed in Denver in early October as part of Nacchio's appeal, the NSA approached Qwest about participating in a warrantless surveillance program more than six months before the Sept. 11, 2001 attacks which have been cited by the government as the main impetus for its efforts. Nacchio is using the allegation to try to show why his stock sale should not have been considered improper.¹⁹ According to a lawsuit filed against other telecommunications companies for violating customer privacy, AT&T began preparing facilities for the NSA to monitor "phone call information and Internet traffic" seven months before 9/11.²⁰

On August 17, 2007, the Foreign Intelligence Surveillance Court said it would consider a request filed by the American Civil Liberties Union which asked the intelligence court to make public its recent, classified rulings on the scope of the government’s wiretapping powers. Judge Colleen Kollar-Kotelly, presiding judge of the FISC, signed an order²¹ calling the A.C.L.U.’s motion “an unprecedented request that warrants further briefing.” The FISC ordered the government to respond on the issue by Aug. 31, saying that anything involving classified material could be filed under court seal.²²²³ On the August 31 deadline, the National Security Division of the Justice Department filed a response in opposition to the ACLU's motion with the court.²⁴

In previous developments, the case ACLU v. NSA was dismissed on July 6, 2007 by the United States Court of Appeals for the Sixth Circuit.²⁵ The court did not rule on the spying program's legality. Instead, its 65-page opinion²⁶ declared that the American Civil Liberties Union and the others who brought the case - including academics, lawyers and journalists - did not have the legal standing to sue because they could not demonstrate that they had been direct targets of the clandestine surveillance. Detroit District Court judge Anna Diggs Taylor had originally ruled on August 17, 2006 that the program is illegal under FISA as well as unconstitutional under the First and Fourth Amendments of the United States Constitution.²⁷²⁸²⁹ Judicial Watch, a watchdog group, discovered that at the time of the ruling Taylor "serves as a secretary and trustee for a foundation that donated funds to the ACLU of Michigan, a plaintiff in the case."³⁰ On February 19, 2008, the U.S. Supreme Court, without comment, turned down an appeal from the American Civil Liberties Union, letting stand the earlier decision dismissing the case.³¹

On September 28, 2006 the U.S. House of Representatives passed the Electronic Surveillance Modernization Act (H.R. 5825).³² That bill now has been passed to the U.S. Senate where three competing, mutually-exclusive, bills -- the Terrorist Surveillance Act of 2006 (S.2455) (the DeWine bill), the National Security Surveillance Act of 2006 (S.2455) (the Specter bill), and the Foreign Intelligence Surveillance Improvement and Enhancement Act of 2006 (S.3001) (the Specter-Feinstein bill) -- were themselves referred for debate to the full Senate by the Senate Judiciary Committee on September 13, 2006.³³ Each of these bills would in some form broaden the statutory authorization for electronic surveillance, while still subjecting it to some restrictions. The Specter-Feinstein bill would extend the peacetime period for obtaining retroactive warrants to seven days and implement other changes to facilitate eavesdropping while maintaining FISA court oversight. The DeWine bill, the Specter bill, and the Electronic Surveillance Modernization Act (passed by the House) would all authorize some limited forms or periods of warrantless electronic surveillance subject to additional programmatic oversight by either the FISC (Specter bill) or Congress (DeWine and Wilson bills).

On January 17, 2007, Attorney General Alberto Gonzales informed U.S. Senate leaders by letter [4] that the program would not be reauthorized by the President. "Any electronic surveillance that was occurring as part of the Terrorist Surveillance Program will now be conducted subject to the approval of the Foreign Intelligence Surveillance Court," according to his letter.³⁴

On September 18, 2008, the Electronic Frontier Foundation (EFF), an Internet-privacy advocacy group, filed a new lawsuit against the NSA, President George W. Bush, Vice President Dick Cheney, Cheney's chief of staff David Addington, former Attorney General and White House Counsel Alberto Gonzales and other government agencies and individuals who ordered or participated in the warrantless surveillance. They sued on behalf of AT&T customers to seek redress for what the EFF alleges to be an illegal, unconstitutional, and ongoing dragnet surveillance of their communications and communications records. An earlier, ongoing suit by the EFF may be bogged down by the recent changes to FISA provisions, but these are not expected to impact this new case.³⁵³⁶

Background

FISA

Main article: Foreign Intelligence Surveillance Act

The 1978 Foreign Intelligence Surveillance Act (FISA) regulates U.S. government agencies' carrying out of physical searches, and electronic surveillance, wherein the main purpose is the gathering of foreign intelligence information. "Foreign intelligence information" is defined in 50 U.S.C. § 1801 as information necessary to protect the U.S. or its allies against actual or potential attack from a foreign power, sabotage or international terrorism. FISA defines a "foreign power" as a foreign government or any faction(s) of a foreign government not substantially composed of US persons, or any entity directed or controlled by a foreign government. FISA provides for both criminal and civil liability for intentional electronic surveillance under color of law except as authorized by statute.

FISA provides two documents for the authorization of surveillance. First, FISA allows the Justice Department to obtain warrants from the Foreign Intelligence Surveillance Court (FISC) before or up to 72 hours after the beginning of the surveillance. FISA authorizes a FISC judge to issue a warrant for the electronic cameras 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 or his delegate to authorize warrantless surveillance for the collection of foreign intelligence if "there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party". 50 U.S.C. §1802(a)(1).³⁷

NSA surveillance program

Main article: NSA electronic surveillance program

Soon after the September 11, 2001 attacks U.S. President George W. Bush issued an executive order that authorized the National Security Agency (NSA) to conduct surveillance of certain telephone calls without obtaining a warrant from the FISC as stipulated by FISA (see 50 U.S.C. § 1802 50 U.S.C. § 1809 ). The complete details of the executive order are not known, but according to statements by the administration,³⁸ the authorization covers telephone calls originating overseas from or to a person suspected of having links to terrorist organizations such as al-Qaeda or its affiliates even when the other party to the call is within the US. The legality of surveillance involving US persons and extent of this authorization is at the core of this controversy which has steadily grown to include:

• Constitutional issues concerning the separation of powers and the Fourth Amendment immunities.
• The effectiveness³⁹ and scope⁴⁰ of the program.
• The legality of the leaking and publication of classified information and the implications for U.S. national security arising from the disclosure.
• Adequacy of FISA as a tool for fighting terrorism

Authorization for Use of Military Force (AUMF) Resolution

Main article: Authorization for Use of Military Force Against Terrorists

About a week after the 9/11 attacks, Congress passed the Authorization for Use of Military Force Against Terrorists (AUMF) which authorized the President 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 administration has argued³ that the language used in the AUMF implicitly authorized the President to exercise those powers "incident to the waging of war", including the collection of enemy intelligence, FISA provisions notwithstanding.

Senator Patrick Leahy (D-VT), the ranking Democrat on the Senate Judiciary Committee along with lone co-sponsor Senator Ted Kennedy (D-MA) introduced S. Res. 350, a resolution "expressing the sense of the Senate that Senate Joint Resolution 23 (107th Congress), as adopted by the Senate on September 14, 2001, and subsequently enacted as the Authorization for Use of Military Force does not authorize warrantless domestic surveillance of United States citizens."⁴¹⁴² This non-binding resolution died in the Senate without being brought up for debate or being voted upon. ⁴³

Legal issues

The NSA surveillance controversy involves legal issues that fall into two broad disciplines: statutory interpretation and Constitutional law. Statutory interpretation is the process of interpreting and applying legislation to the facts of a given case. Constitutional law is the body of law that governs the interpretation of the United States Constitution and covers areas of law such as the relationship between the federal government and state governments, the rights of individuals, and other fundamental aspects of the application of government authority in the United States.⁴⁴

Statutory interpretation issues

A court of law faced with determining the legality of the NSA program would have to first grapple with the statutory interpretation of FISA itself⁴⁵ Since FISA has the potential to raise certain Constitutional conflicts relating to the powers assigned to Congress and the Executive in Articles I and II respectively, the canon of constitutional avoidance requires a court to first determine if the FISA statutes can be "fairly read" to avoid Constitutional conflict.⁴⁶ Assuming such an interpretation can be found, the question then turns to whether or not the NSA wiretap authorizations were violative of the statute as so read. Without knowing how a court would resolve the first issue and the classified specifics of the program itself, it is not possible to predict the outcome.

FISA exclusivity provision

18 U.S.C. § 2511(2)(f) provides in relevant part that "the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in 50 U.S.C. § 1801(f)... and the intercept of domestic [communications] may be conducted." The interpretation of this clause is central to the controversy because both sides agree that the NSA program operates outside of the procedural framework provided by FISA. The interpretive conflict arises because other provisions of FISA, including the criminal sanctions subpart 50 U.S.C. § 1809 include an "unless authorized by statute" provision, raising the issue of statutory ambiguity. The administration's position is that the AUMF is an authorizing statute which satisfies the FISA criteria. Critics contend that by the canon of Ejusdem generis (the doctrine that if ambiguity exists, generic legislative language must yield to specific provisions), the specific provisions of the FISA restrictions supersede the general authority granted by the AUMF. In their letter to the Senate Judiciary Committee⁴⁷ a group of law professors and former government officials addressed this issue directly:

the DOJ’s argument rests on an unstated general “implication” from the AUMF that directly contradicts express and specific language in FISA. Specific and “carefully drawn” statutes prevail over general statutes where there is a conflict. Morales v. TWA, Inc., 504 U.S. 374, 384-85 (1992) (quoting International Paper Co. v. Ouelette, 479 U.S. 481, 494 (1987)). In FISA, Congress has directly and specifically spoken on the question of domestic warrantless wiretapping, including during wartime, and it could not have spoken more clearly.

The U.S. Supreme Court faced a similar issue in Hamdi v. Rumsfeld where the government claimed that the AUMF authorized the President to detain U.S. citizens designated as an enemy combatant despite its lack of specific language to that intent and notwithstanding the provisions of 18 U.S.C. § 4001(a) which requires that the United States government cannot detain an American citizen except by an act of Congress. In that case, the Court ruled:

[B]ecause we conclude that the Government’s second assertion ["that §4001(a) is satisfied, because Hamdi is being detained “pursuant to an Act of Congress”–the AUMF"] is correct, we do not address the first. In other words, for the reasons that follow, we conclude that the AUMF is explicit congressional authorization for the detention of individuals .. and that the AUMF satisfied §4001(a)’s requirement that a detention be “pursuant to an Act of Congress”

In Hamdan v. Rumsfeld however, the court rejected the government's argument that the AUMF implicitly authorized the President to establish military commissions in violation of the UCMJ. The opinion of the Court held:

Neither of these congressional Acts, [AUMF or ATC] however, expands the President’s authority to convene military commissions. First, while we assume that the AUMF activated the President’s war powers, see Hamdi v. Rumsfeld, 542 U. S. 507 (2004) (plurality opinion), and that those powers include the authority to convene military commissions in appropriate circumstances, see id., at 518; Quirin, 317 U. S., at 28–29; see also Yamashita, 327 U. S., at 11, there is nothing in the text or legislative history of the AUMF even hinting that Congress intended to expand or alter the authorization set forth in Article 21 of the UCMJ. Cf. Yerger, 8 Wall., at 105 (“Repeals by implication are not favored”)

Determining when explicit congressional authorization is and is not required appears by this decision to require a court to first determine whether an implicit authorization would amount to a "repeal by implication" of the governing Act.

The exclusivity clause also raises a separation of powers issue. (See Constitutional law issues below)

Domestic versus foreign intelligence

The arguments against the legality of the NSA fall into two broad categories, those who argue that FISA raises no Constitutional issues and therefore the NSA program is illegal on its face⁴⁸⁴⁹ and those who argue that FISA (perhaps purposefully) raises a Constitutional conflict which should be resolved in Congress' favor.⁵⁰

Common to both of these views is the argument that the participation of "US persons" as defined in FISA 50 U.S.C. § 1801 renders the objectional intercepts "domestic" in nature.⁵¹ Those advocating the "no constitutional issue" position, argue that Congress has the authority it needs to legislate in this area under Article I and the Fourth Amendment⁵² while those who see a constitutional conflict⁵⁰ acknowledge that the existing delineation between Congressional and Executive authority in this area is not clear⁵³ but that Congress, in including the exclusivity clause in FISA, meant to carve out a legitimate role for itself in this arena.

The administration holds that an exception to the normal warrant requirements exists when the purpose of the surveillance is to prevent attack from a foreign threat. Such an exception has been upheld at the Circuit Court level when the target was a foreign agent residing abroad⁵⁴⁵⁵ a foreign agent residing in the US^56575859and a US citizen abroad.⁶⁰ The warrantless exception was struck down when both the target and the threat was deemed domestic.⁶¹ The legality of targeting US persons acting as agents of a foreign power and residing in this country has not been addressed by the US Supreme Court, but has occurred at least once, in the case of Aldrich Ames.⁶²

Administration's statutory position

The Administration's position with regard to statutory interpretation, as outlined in the DOJ whitepaper, is to avoid what it has termed the "difficult Constitutional questions" by

1. interpreting the FISA "except as authorized by statute" clause to mean that Congress allowed for future legislative statute(s) to provide exceptions to the FISA warrant requirements,⁶³
2. that the AUMF was such a statute, and
3. as such, implicitly provided executive authority to authorize warrantless interception of enemy communication.

This argument, as outlined in the DOJ whitepaper, is based on the language of the AUMF, specifically, the acknowledgment of the President's Constitutional authority contained in the preamble; "Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States", and the language in the resolution itself;

"[Be it resolved] [t]hat 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 administration also adds that the program is legal under Title II of the USA PATRIOT Act entitled Enhanced Surveillance Procedures,^{citation needed} although it is not relying upon the domestic law enforcement provisions of the PATRIOT Act for authorization of any of the NSA program activities.^{citation needed} The President had said prior to this, that Americans' civil liberties were being protected and that purely domestic wiretapping was being conducted pursuant to warrants under applicable law, including the Patriot Act.[5]

These arguments must be compared to the language of the FISA itself, which states:

Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress.⁶⁴

Because the law specifically limits the President's authority to bypass the FISA court in time of war to the first 15 days of the war, the administration's argument rests on the assumption that the AUMF give the President more power than would a standard declaration of war.

Duty to notify Congress

Under the National Security Act of 1947, §501-503, codified as 50 USC §413-§413b,⁶⁵ the President is required to keep Congressional intelligence committees "fully and currently" informed of U.S. intelligence activities, "consistent with ... protection from unauthorized disclosure of classified information relating to sensitive intelligence sources and methods or other exceptionally sensitive matters." For covert actions, from which intelligence gathering activities are specifically excluded in §413b(e)(1), the President is specifically permitted to limit reporting to the so-called Gang of Eight.⁶⁶

The administration contends that with regard to the NSA surveillance program, the administration fulfilled its notification obligations by briefing key members of Congress (thirteen individuals in this case between the 107th and 109th Congressional sessions) have been briefed on the NSA program more than a dozen times^{citation needed} but they were forbidden from sharing information about the program with other members or staff.^{citation needed}

On January 18, 2006, the Congressional Research Service released a report, "Statutory Procedures Under Which Congress Is To Be Informed of U.S. Intelligence Activities, Including Covert Actions".⁶⁷⁶⁸ That report found that "[b]ased upon publicly reported descriptions of the program, the NSA surveillance program would appear to fall more closely under the definition of an intelligence collection program, rather than qualify as a covert action program as defined by statute", and, therefore, concluded there was no specific statutory basis for limiting briefings on the terrorist surveillance program to the Gang of Eight⁶⁹ However, the report goes on to note in its concluding paragraph⁷⁰that limited disclosure is also permitted under the statute "in order to protect intelligence sources and methods".

Thus, although the specific statutory "Gang of Eight" notification procedure for covert action would not seem to apply to the NSA program, it is not clear if a limited notification procedure intended to protect sources and methods is expressly prohibited. Additionally, should the sources and methods exception apply it will require a factual determination as to whether it should apply to disclosure of the program itself or only to specific sensitive aspects.

Constitutional law issues

The constitutional debate surrounding executive authorization of warrantless surveillance is principally about separation of powers ("checks and balances"). If, as discussed above, no "fair reading" of FISA can be found in satisfaction of the canon of avoidance, these issues will have to be decided at the appellate level, by United States courts of appeals.

Article I and II

Article I vests Congress with the sole authority "To make Rules for the Government and Regulation of the land and naval Forces" and "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.". The U.S. Supreme Court has used "the necessary and proper" clause of Article I to affirm broad Congressional authority to legislate as it sees fit in the domestic arena^{citation needed} but has limited its application in the arena of foreign affairs. In the landmark Curtiss-Wright decision, Justice Sutherland writes in his opinion of the Court:

The ["powers of the federal government in respect of foreign or external affairs and those in respect of domestic or internal affairs"] are different, both in respect of their origin and their nature. The broad statement that the federal government can exercise no powers except those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect of our internal affairs.

Article II vests the President with power as "Commander in Chief of the Army and Navy of the United States," and requires that he "shall take Care that the Laws be faithfully executed". The U.S. Supreme Court has historically used Article II to justify wide deference to the President in the arena of foreign affairs, but is it 100% relevant? Two historical and recent Supreme Court cases define the secret wiretapping by the NSA.--James1126 (talk) 14:28, 11 October 2008 (UTC) Quoting again from the Curtiss-Wright decision:

It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations-a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution.

The extent of the President's power as Commander-in-Chief has never been fully defined, but two U.S. Supreme Court cases are considered seminal in this area. --James1126 (talk) 14:28, 11 October 2008 (UTC)These two Supreme Court cases show that President Bush has not done any illegal actions. ⁷¹⁷² -Youngstown Sheet and Tube Co. v. Sawyer and Curtiss-Wright. In addition, two relatively new cases, Hamdi v. Rumsfeld and Hamdan v. Rumsfeld, have clarified, and in the case of Hamdan limited, the scope of executive power to detain and try suspected terrorists as enemy combatants. In Hamdan, the Court's opinion in footnote 23, rejected the notion that Congress is impotent to regulate the exercise of executive war powers:

Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 637 (1952) (Jackson, J., concurring). The Government does not argue otherwise.

Whether "proper exercise" of Congressional war powers includes authority to regulate the gathering of foreign intelligence, which in other rulings^{citation needed} has been recognized as "fundamentally incident to the waging of war", is a historical point of contention between the Executive and Legislative branches.⁷³³As noted in "Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information", published by The Congressional Research Service:

A review of the history of intelligence collection and its regulation by Congress suggests that the two political branches have never quite achieved a meeting of the minds regarding their respective powers. Presidents have long contended that the ability to conduct surveillance for intelligence purposes is a purely executive function, and have tended to make broad assertions of authority while resisting efforts on the part of Congress or the courts to impose restrictions. Congress has asserted itself with respect to domestic surveillance, but has largely left matters involving overseas surveillance to executive self-regulation, subject to congressional oversight and willingness to provide funds.

The same report makes clear the Congressional view that intelligence gathered within the U.S. and where "one party is a U.S. person" qualifes as domestic in nature and as such completely within their purview to regulate, and further that Congress may "tailor the President’s use of an inherent constitutional power":

The passage of FISA and the inclusion of such exclusivity language reflects Congress’s view of its authority to cabin the President’s use of any inherent constitutional authority with respect to warrantless electronic surveillance to gather foreign intelligence. The Senate Judiciary Committee articulated its view with respect to congressional power to tailor the President’s use of an inherent constitutional power:

The basis for this legislation [FISA] is the understanding — concurred in by the Attorney General — that even if the President has an “inherent” constitutional power to authorize warrantless surveillance for foreign intelligence purposes, Congress has the power to regulate the exercise of this authority by legislating a reasonable warrant procedure governing foreign intelligence surveillance

Fourth Amendment issues

The Supreme Court held in Katz v. United States (1967), that the monitoring and recording of private conversations within the United States constitutes a "search" for Fourth Amendment purposes, and therefore the government must generally obtain a warrant before undertaking such domestic wiretapping. (The law in fact countenances searches without warrant in numerous circumstances, among them (see below): the persons, property, and papers of individuals crossing the border of the United States and those of paroled felons; in prisons, public schools and government offices; and of international mail.) The protection of "private conversations" has been held to apply only to conversations where the participants have not merely a desire but a reasonable expectation that the conversation is indeed private to themselves and that no party whatsoever is listening in. In the absence of such a reasonable expectation, the Fourth Amendment does not apply, and surveilance without warrant does not violate it. Privacy is clearly not a reasonable expectation in communications to persons in the many countries whose governments openly intercept electronic communications, and is of dubious reasonability in countries against which the United States is waging war.

The law also recognizes a distinction between domestic surveillance taking place within U.S. borders and foreign surveillance of non-U.S. persons either in the U.S. or abroad.⁷⁴ In United States v. Verdugo-Urquidez, the Supreme Court reaffirmed the principle that the Constitution does not extend protection to non-U.S. persons located outside of the United States, so no warrant would be required to engage in even physical searches of non-U.S. citizens abroad.

The U.S. Supreme Court has never ruled on the constitutionality of warrantless searches targeting foreign powers or their agents within the US. There have been, however, a number of Circuit Court rulings⁷⁵ upholding the constitutionality of such warrantless searches. In USA v. Osama bin Laden, the Second Circuit noted that "no court, prior to FISA, that was faced with the choice, imposed a warrant requirement for foreign intelligence searches undertaken within the United States." Assistant Attorney General William Moschella in his written response to questions from the House Judiciary Committee explained that in the administration's view, this unanimity of pre-FISA Circuit Court decisions vindicates their argument that warrantless foreign-intelligence surveillance authority existed prior to FISA and since, as these ruling indicate, that authority derives from the Executive's inherent Article II powers, they may not be encroached by statute.⁷⁶ In 2002, the United States Foreign Intelligence Surveillance Court of Review (Court of Review) met for the first time and issued an opinion (In Re Sealed Case No. 02-001) which seems to echo that view. They too noted all the Federal courts of appeal having looked at the issue had concluded that there was constitutional power for the president to conduct warrantless foreign intelligence surveillance. Furthermore, based on these rulings it "took for granted such power exits" and ruled that under this presumption, "FISA could not encroach on the president's constitutional power." Professor Orin Kerr argues in rebuttal that the part of In Re Sealed Case that dealt with FISA (rather than the Fourth Amendment) was nonbinding obiter dicta and that the argument does not restrict Congress's power to regulate the executive in general.⁷⁷

Harold Koh, dean of Yale Law School, Suzanne Spaulding, former general counsel for the Intelligence Committees of the House and Senate, and former Counsel to the President John Dean, contend that FISA clearly makes the wiretapping illegal,⁴⁹ and that the president's own admissions already constitute sufficient evidence of a violation of the Fourth Amendment (and the criminal penalties of FISA), without requiring further factual evidence. Professor John Eastman, in his analysis, prepared at the behest of the House Judiciary Committee, comparing the CRS and DOJ reports, concluded instead that under the Constitution and ratified by both historical and Supreme Court precedent, "the President clearly has the authority to conduct surveillance of enemy communications in time of war and of the communications to and from those he reasonably believes are affiliated with our enemies. Moreover, it should go without saying that such activities are a fundamental incident of war."⁷⁸

Border search exception

Orin S. Kerr, associate professor of law at The George Washington University Law School⁷⁹ and a leading scholar in the subjects of computer crime law and internet surveillance,⁸⁰ points to an analogy between the NSA intercepts and searches allowed by the Fourth Amendment under the border search exception.

The border search exception permits searches at the border of the United States "or its functional equivalent." (United States v. Montoya De Hernandez, 473 U.S. 531, 538 (1985)). The idea here is that the United States as a sovereign nation has a right to inspect stuff entering or exiting the country as a way of protecting its sovereign interests, and that the Fourth Amendment permits such searches. Courts have applied the border search exception in cases of PCs and computer hard drives; if you bring a computer into or out of the United States, the government can search your computer for contraband or other prohibited items at the airport or wherever you are entering or leaving the country. See, e.g., United States v. Ickes, 393 F.3d 501 (4th Cir. 2005) (Wilkinson, J.)...At the same time, I don't know of a rationale in the case law for treating data differently than physical storage devices. The case law on the border search exception is phrased in pretty broad language, so it seems at least plausible that a border search exception could apply to monitoring at an ISP or telephone provider as the "functional equivalent of the border," much like airports are the functional equivalent of the border in the case of international airline travel...the most persuasive case on point: United States v. Ramsey, [held] that the border search exception applies to all international postal mail, permitting all international postal mail to be searched.

Criminal prosecution under the NSA program

Evidence gathered without warrant may raise significant Fourth Amendment issues which could preclude its use in a criminal trial. As a general rule of law, evidence obtained improperly without lawful authority, may not be used in a criminal prosecution.^{citation needed} The U.S. Supreme Court has never addressed the constitutionality of warrantless searches (which has been broadly defined by SCOTUS to include surveillance) targeting foreign powers or their agents, the admissibility of such evidence in a criminal trial nor whether it is permissible to obtain or use evidence gathered without warrant against US persons acting as agents of a foreign power.^{citation needed}

Presidential findings

The National Security Act of 1947⁸¹ 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."

District Court findings

On August 17, 2006, Judge Anna Diggs Taylor of the United States District Court for the Eastern District of Michigan ruled in ACLU v. NSA that the Terrorist Surveillance Program was unconstitutional under the Fourth and First Amendments and enjoined the NSA from using the program to conduct electronic surveillance "in contravention of [FISA or Title III]".²⁸ In her ruling,⁸² she wrote:

Even some legal experts who agreed with the outcome have criticized the reasoning set forth in the opinion⁸³ Others have argued that the perceived flaws in the opinion in fact reflect the Department of Justice's refusal to argue the legal merits of the program (they chose to focus solely on arguments about standing and state secrets grounds).⁸⁴

On October 4, 2006, a panel of the United States Court of Appeals for the Sixth Circuit unanimously ruled⁸⁵ that the government can continue the program while it appeals the lower court decision.⁸⁶

On July 6, 2007 the Sixth Circuit dismissed the case, finding that the plaintiffs had no standing.

The Court found that:⁸⁷

See ACLU v. NSA for details.

Corporate confidentiality analysis

Corporate secrecy is also an issue. Wired reported: In a letter to the EFF, AT&T objected to the filing of the documents in any manner, saying that they contain sensitive trade secrets and could be "could be used to 'hack' into the AT&T network, compromising its integrity."⁸⁸ However, Chief Judge Vaughn Walker stated, during the September 12, 2008 hearing in the class-action lawsuit filed by the EFF, that the Klein evidence could be presented in court, effectively ruling that AT&T's trade secret and security claims were unfounded.

Third-party legal analysis

Arguing that the program is legal or probably legal

• John Eastman, Chapman Law professor and Director of the Claremont Institute Center for Constitutional Jurisprudence, wrote in a letter to House Judiciary Committee Chairman James Sensenbrenner on January 27, 2006, that the Congressional Research Service's assessment was institutionally biased against the President, ignored key constitutional text and Supreme Court precedent, and that the case made by the Department of Justice in support of the President's authority to conduct surveillance of enemy communications in time of war was compelling.⁷⁸

• Robert Turner, Associate Director of the Center for National Security Law at the University of Virginia, testified before Congress on March 31, 2006, that "I believe the President has this authority by virtue of his “executive Power” vested in him by Article II, Section 1, of the Constitution. And if he needed any additional authority, the AUMF statute—enacted with but a single dissenting vote in the entire Congress—clearly empowers him to exercise the intelligence-gathering component of his Commander in Chief power as well."[6]

• Michael Stokes Paulsen, Associate Dean, University of Minnesota Law School, in a debate with Professors Heidi Cross and Dale Carpenter entitled Presidential Powers in Time of War

• Letter from Senator Pat Roberts to Senator Arlen Specter Senator defending NSA program legality, February 3, 2006

Arguing that the program is illegal or probably illegal

The arguments against the legality of the NSA fall into two broad categories, those who argue that FISA raises no Constitutional issues and therefore the NSA program is illegal on its face⁴⁹ and those who argue that FISA (perhaps purposefully) raises a Constitutional conflict which should be resolved in Congress' favor.⁵⁰

• On February 13, 2006, the American Bar Association (ABA) denounced the warrantless domestic surveillance program, accusing the President of exceeding his powers under the Constitution. The ABA also formulated a policy opposing any future government use of electronic surveillance in the United States for foreign intelligence purposes without obtaining warrants from a special secret court as required by the 1978 Foreign Intelligence Surveillance Act.[7]

• According to a report in The Boston Globe on February 2, 2006 three law professors, David D. Cole (Georgetown University), Richard Epstein (University of Chicago), and Philip Heymann (Harvard), said that what Bush is doing is unprecedented. Bush's claim that other presidents asserted that wartime powers supersede an act of Congress, "is either intentionally misleading or downright false," Cole said. He said Bush is misstating the In Re Sealed Case No. 02-001 ruling which supported Congressional regulation of surveillance. Epstein believes the United States Supreme Court would reject the Administration's argument and said, "I find every bit of this legal argument disingenuous...The president's position is essentially that (Congress) is not doing the right thing, so I'm going to act on my own." Professor Heymann, a former deputy US attorney general said, "The bottom line is, I know of no electronic surveillance for intelligence purposes since the Foreign Intelligence Surveillance Act was passed that was not done under the . . . statute."⁸⁹

• Cole, Epstein, Heynmann and eleven other prominent legal scholars (Beth Nolan, Curtis Bradley, Geoffrey Stone, Harold Hongju Koh, Kathleen Sullivan, Laurence Tribe, Martin Lederman, Ronald Dworkin, Walter Dellinger, William S. Sessions and William Van Alstyne) wrote a letter to Congress that appeared in the New York Review of Books on February 9, 2006.[8] They wrote that "the Justice Department's defense of what it concedes was secret and warrantless electronic surveillance of persons within the United States fails to identify any plausible legal authority for such surveillance. Accordingly the program appears on its face to violate existing law." They summarized:

• Professor Peter Swire, the C. William O’Neill Professor of Law at the Ohio State University Moritz College of Law and Visiting Senior Fellow at the Center for American Progress, wrote a detailed "Legal FAQs on NSA Wiretaps" concluding that "[b]ased on the facts available to date, the wiretap program appears to be clearly illegal."⁹⁰ Prof. Swire has previously written a very detailed history and analysis of the Foreign Intelligence Surveillance Act, published in Volume 72 of the George Washington Law Review, at 1306 (2004) and previously chaired a White House Working Group, including the intelligence agencies, on how to update electronic surveillance law for the Internet Age.

• Robert Reinstein, dean of the law school at Temple University, has asserted that the warrantless domestic spying program is

Mr. Reinstein asserted that the broad consensus among legal scholars and national security experts is similar to his own analysis, and he predicted that the courts will rule that the program is unconstitutional. New York Times

• Edward Lazarus, author, law professor and former U.S. Supreme Court clerk and federal prosecutor, has argued in articles such as "Warrantless Wiretapping: Why It Seriously Imperils the Separation of Powers, And Continues the Executive's Sapping of Power From Congress and the Courts", that "Unilateral executive power is tyranny, plain and simple".⁹¹

• Orin S. Kerr, a professor at The George Washington University Law School, prominent blogger and scholar of the legal framework of electronic surveillance has opined that the issues are complex, but that after his first analysis he concluded that the wiretapping probably does not infringe on Fourth Amendment constitutional rights, though it probably does violate FISA. 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".⁹² 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.⁹³ Kerr cautiously estimates that about eight of the nine Supreme Court justices would agree with him that Article Two cannot trump statutes like FISA.⁹⁴

• Robert M. Bloom, Professor of Law at Boston College, says this in a paper entitled "The Constitutional Infirmity of Warrantless NSA Surveillance: The Abuse of Presidential Power and the Injury to the Fourth Amendment," published on February 19, 2007, which he co-authored with William J. Dunn, a former Defense Department intelligence analyst, also of BC Law School:[9]

• Glenn Greenwald, constitutional lawyer, author and prominent blogger (Greenwald's legal blog) arguing that the NSA program is illegal summarized:[10]

After the Supreme Court's judgment in Hamdan v. Rumsfeld, Greenwald wrote: "The administration’s theories to justify the President’s lawbreaking have always been frivolous. But for those pretending not to recognize that fact, the Supreme Court has so ruled."[11]

• Jordan Paust, Mike and Teresa Baker College Professor of Law at the University of Houston Law Center, rejected the administration's legal arguments for the NSA program writing:[12]

• William C. Banks, Professor of Law and Director of the Institute for National Security and Counterterrorism at Syracuse University argued that the NSA program is unconstitutional, writing that "in the unlikely event that legal authority for the NSA program can be found, this domestic spying violates the Fourth Amendment."[13]

• John Dean, Author and former White House Counsel to President Richard Nixon testified before Congress on March 31, 2006, on the issue of censuring George Bush for authorizing the NSA wiretap program, saying "I hope... you will not place the president above the law by inaction. As I was gathering my thoughts yesterday to respond to the hasty invitation, it occurred to me that had the Senate or House, or both, censured or somehow warned Richard Nixon, the tragedy of Watergate might have been prevented. Hopefully the Senate will not sit by while even more serious abuses unfold before it."[14]

Technical and operational details

Because of its highly classified status, little is publicly known about the actual implementation of the NSA domestic electronic surveillance program. Mark Klein, a retired AT&T communications technician, submitted an affidavit including limited technical details known to him personally in support of a class-action lawsuit filed by the Electronic Frontier Foundation in federal district court in San Francisco in January 2006 on behalf of AT&T customers who alleged that they had been damaged by the telecommunications corporation's cooperation with the NSA. ^{95 96}

A January 16, 2004 statement by Mr. Klein includes additional technical details regarding the secret 2003 construction of an NSA-operated monitoring facility in Room 641A of 611 Folsom Street in San Francisco, the site of a large SBC phone building, three floors of which are occupied by AT&T. ^{97 98}

According to Klein's affidavit, the NSA-equipped room uses equipment built by Narus Corporation to intercept and analyze communications traffic, as well as perform data-mining functions.[15]

In an article appearing in the January/February 2008 issue of the Institute of Electrical and Electronics Engineers journal of Security and Privacy, noted technology experts from academia and the computing industry analyzed potential security risks posed by the NSA program, based on information contained in Klein's affidavits as well as those of expert witness J. Scott Marcus, a designer of large-scale IP-based data networks, former CTO at GTE Internetworking and at Genuity, and former senior advisor for Internet Technology at the US Federal Communications Commission.⁹⁹ They concluded that the likely architecture of the system created serious security risks, including the danger that such a surveillance system could be exploited by unauthorized users, criminally misused by trusted insiders, or abused by government agents. ¹⁰⁰

Related issues

Warrantless wiretaps and the history of FISA

Main article: Warrantless searches in the United States

The administration has compared the NSA warrantless surveillance program with historical wartime warrantless searches in the United States, going back to George Washington.³⁸

Critics have pointed out that Washington's surveillance occurred before the existence of the U.S. Constitution, and the other historical precedents cited by the administration were before the passage of FISA, and therefore did not directly contravene federal law.⁵⁰ Abuses of electronic surveillance by the federal government such as Project SHAMROCK led to reform legislation in the 1970s.¹⁰¹ Advancing technology began to present questions not directly addressed by the legislation as early as 1985.¹⁰²

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.¹⁰³¹⁰⁴ In Clinton's executive order, he authorized 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".

Sufficiency of FISA in the war on terror

On December 19, 2005, U.S. Dept. of Justice Assistant Attorney General for Legislative Affairs, William Moschella, wrote a letter to the Chairs and Ranking Members of the U.S. Senate and House of Representatives, defending the NSA program:

As explained above, the President