December 21, 2005

posted by Daniel J. Solove

Don't get me wrong, this is a disturbing revelation. Not as disturbing as holding people without Habeas Corpus, but disturbing none the less.

Here is my question: Where exactly did the interception take place? Was it a CALEA style tap of the domestic phone system? Was it signal interception done outside our borders? Does the President have legal authority to conduct warrantless signal interception and wiretaps outside the sovereign jurisdiction of the US? If I pick up my phone and call a satellite phone in Tora-Bora - and the US Military intercepts the conversation using radio receivers in Afghanistan, is it inadmissible because I was located in the US?

It seems to be the issue of where the surveillance took place is important to the issue of whether or not this surveillance was legal or not.

Moving beyond the legal aspects of this, it seems clear that if our representatives in Congress are really opposed to this - they will draft statute to limit the ability of the Executive Branch to conduct surveillance on US persons or, at the very least, dictate limits on what can be done with surveillance that is collected on US persons in the process of foreign surveillance.

Chris -- You write: "[Congress] will draft statute to limit the ability of the Executive Branch to conduct surveillance on US persons or, at the very least, dictate limits on what can be done with surveillance that is collected on US persons in the process of foreign surveillance."

Congress already did. It's called FISA. See my earlier post, Did President Bush Have the Legal Authority Under FISA to Authorize NSA Surveillance?

It seems to me that that in order to take on the Administration’s claims, folks keep citing to the wrong quote from Justice Jackson’s concurrence in Youngstown. The Administration is arguing that congress impliedly authorized his actions via the UOFA under an exception in FISA. Thus, the relevant passage from Justice Jackson is:

“When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” 343 U.S. 579 at 636.

It seems necessary to take on that argument (which may actually be an argument that congress better be much more clear in what authority it grants to a sitting president) rather than simply accusing the Administration, of having “completely forgotten (or tried to obliterate, through silence) Youngstown.”

You don't have to like the legal argument - but that's the argument and it appears to be a reasonable interpretation.

Moreover, I have yet to see anyone take on the most specific piece of evidence that expressly authorized the President’s action: FISA cannot trump the Executive’s primary constitutional authority and responsibility to ensure our national security. Every court that has looked at the issue has said so, including the FISA court:

“The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power.”

In re Sealed Case, 310 F.3d 717, 742 (Foreign Int. Surv. Ct. Rev. 2002) (per curiam)

MJ--
I'm a bit confused on one of your points. Everything I have seen as a justification on this point tends towards the argument that FISA can be trumped, not that the force authorization somehow falls within a FISA exception. Those seem to me to be quite different arguments, if only because the FISA exception argument would not require an assertion of maximal Article II power.

As to your second point, it seems clear that we need to have some kind of discussion about exactly what the limits of executive power might be. But a an actual rebuttal to that point, I'd suggest a point made elsewhere (can't remember where at the moment), that even we assume a maximal scope of Presidential authority, that authority cannot trump the Fourth Amendment. In other words, even assuming that the administration could "ignore" FISA it lacks the power to conduct warrantless monitoring of US nationals in this country on a regular (permanent) basis because that Amendment is a limit on all Article II powers.

On the first point, the argument is that Congress' UAMF gave the President statutory authority in its language -

"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"

- to qualify as an exception under FISA's Section 1809’s “except as authorized by statute” language when listening in on suspected al Queda agents/supporters. Surely if the President can order a bomb dropped on foreign agents or their supporters, he can listen to their cell phones and search their email. So this argument is that the President's actions fall under a FISA exception - not that his action trumps FISA.

On the second point, the Supreme Court has never said that the Fourth Amendment blocks surveillance of communications with foreign entities - it went out of its way not to say that in the Keith case. My initial take (whatever that's worth) is that since there are already so many exceptions to the Fourth Amendment's warrant requirement that don't involve national security - and the hallmark of Fourth Amendment jurisprudence is "reasonableness" - this would likely be accepted by the courts as an exception to the Fourth Amendment - especially when Congress has arguably authorized the conduct by the President. I mean, can you even think of a more compelling reason than National Security to authorize a warrantless search. All evidence by the lower courts that have even touched on this issue points this way.

It seems to me that there is even a stronger argument that the President's inherent power - when augmented by congressional authority is at an all-time high.

My overall point is that anyone who is saying that the Administration is clearly wrong in its interpretation is engaged in wishful thinking. They may ultimately be proven wrong, but it's a close call and they have marshaled good legal arguments.

I welcome a discussion for our country about where the line on the President's power should be drawn. But for anyone to pretend that they know where the line currently is between Congress' statutory authority and the President's authority in carrying out his foreign affairs responsibilities when attempting to counter foreign threats to national security, is absurd.

Re AUMF:

The AUMF only authorizes the President to use force against those who he believes "planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons."

Is the Administration claiming that the wiretapes are limited to those persons?

OK ... that would be wiretaps, not wiretapes.

From the AG's White House Briefing on 12/20/05:

"Another very important point to remember is that we have to have 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. We view these authorities as authorities to confront the enemy in which the United States is at war with -- and that is al Qaeda and those who are supporting or affiliated with al Qaeda... What we're trying to do is learn of communications, back and forth, from within the United States to overseas with members of al Qaeda."

So the WH is clearly saying they are only targeting al Qaeda and its affiliates. However, because the legal standard is whether they have a "reasonable basis" to believe a person is al Qaeda or an affiliate - not irrefutable proof - I'm sure some non-al Qaeda, non-affiliates have been snared in the net. Just like arresting someone based on probable cause doesn't ensure that no innocent person will never be arrested.

Lets break it down shall we,the President no matter who it may be should not have these reaching powers,not in a country as great as America. It might be a useful tool to be used on terrorism,but lets not get carried away here,this kind of power could be used for just about anything,example; bloggers for instance state what's on our minds,we do'nt always agree with each other but we are all blogger's and believe in LIBERTY,otherwise we would'nt be posting comments. Whether you're a Democrat,Independent,or Republican you should be up and fightin mad over this. If this stands what will be next my friends?
I would urge everyone party affilliation does not matter,write or e-mail your senator or congress-person and express your beliefs on this issue.

Daniel, My apologies. The this I was refering to was not domestic surveillance of foreign powers, but foreign conducted surveillance that happens to capture conversations of a US person. Something that doesn't seem to be covered under any descriptions of FISA I've seen.

That said, I have yet to have time to read the law, so it may be in there.

Withinreason,

You understand that when you say no President should have these powers 1) You would have to amend the Constitution to change that 2) Every President who has had the opportunity to consider this issue has argued that they have expansive powers related to National Security issues under Article II - so this isn't a recent phenomenon. 3) Absent a Constitutional Amendment, why do you beleive that Congress, as a co-equal branch, has the authority to abrogate a specific grant of constitutional authority to the President by simply passing a statute?

Becuase that's the issue with FISA - can Congress restrict the President's authority to take the measures he deems necessary to ensure national security?

As I just pointed out over at Balkinization, Congress does have one absolute check on the President's authority, although it is quite extreme - the power of the purse. They can simply refuse to fund activities they view as illegal by eliminating or sharply reducing the NSA's budget. I don't think it would be necessarily a good idea. But a draft budget with a severely reduced appropriation might get the President's attention and cause him to reconsider his views about the duly enacted laws of this country.

re: power of the purse; congressional checks on presidential authority --

congress may also impeach the president for high crimes and misdemeanors. but that's unlikely in this congress, just as defunding a national security program is unlikely.