Did Bush Have the Legal Authority Under FISA to Authorize NSA Surveillance?
posted by Daniel Solove
Yesterday, I blogged about a startling story in the NY Times about President Bush’s authorizing the NSA to conduct domestic surveillance without a warrant or even a court order. According to the NY Times story, the “legal opinions that support the N.S.A. operation remain classified.”
Today in the NY Times is a follow-up story about the legal basis for the President’s actions. According to the story:
[S]ome legal experts outside the administration, including some who served previously in the intelligence agencies, said the administration had pushed the presidential-powers argument beyond what was legally justified or prudent. They say the N.S.A. domestic eavesdropping illustrates the flaws in Mr. Bush’s assertion of his powers.
“Obviously we have to do things differently because of the terrorist threat,” said Elizabeth Rindskopf Parker, former general counsel of both N.S.A. and the Central Intelligence Agency, who served under both Republican and Democratic administrations. “But to do it without the participation of the Congress and the courts is unwise in the extreme.” . . .
William C. Banks, a widely respected authority on national security law at Syracuse University, said the N.S.A. revelation came as a shock, even given the administration’s past assertions of presidential powers.
“I was frankly astonished by the story,” he said. “My head is spinning.”
Professor Banks said the president’s power as commander in chief “is really limited to situations involving military force – anything needed to repel an attack. I don’t think the commander in chief power allows” the warrantless eavesdropping, he said. . . .
In engaging in the surveillance, the President may have ignored the legal procedures set forth in the Foreign Intelligence Surveillance Act (FISA) of 1978.
The FISA allows the government to engage in electronic surveillance if it obtains a court order from the Foreign Intelligence Surveillance Court (FISC), which meets in secret. The government must demonstrate probable cause that the monitored party is a “foreign power” or an “agent of a foreign power.” 50 U.S.C. § 1801. If the monitored party is a U.S. citizen, however, the goverment must establish probable cause that the party’s activities “may” or “are about to” involve a criminal violation. Id.
FISA even provides procedures for surveillance without court orders. Such surveillance, however, must be “solely directed” at gathering intelligence from “foreign powers” and there must be “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). The surveillance authorized by the President, however, involved U.S. citizens, thus making § 1802 unavailable.
FISA also has § 1844, which provides that “the President, through the Attorney general, may authorize the use of a pen register or trap and trace device without a court order under this subchapter to acquire foreign intelligence for a period not to exceed 15 days following a declaration of war by Congress.” 50 U.S.C. § 1844. I don’t know many details about the timing of the surveillance, but regardless of timing, the surveillance appears to have far exceeded the limited authorization in § 1844. The NY Times article suggests that the NSA may have engaged in wiretaps or other forms of electronic eavesdropping extending far beyond pen registers or trap and trace devices, which merely provide information about the phone numbers dialed.
Finally, FISA authorizes electronic surveillance more generally “for a period not to exceed fifteen calendar days following a declaration of war by the Congress.” 50 U.S.C. § 1811. The Administration faces several hurdles in using § 1811. First, it is debatable whether the Authorization to Use Military Force constitutes a declaration of war. For some thoughtful analysis about this, see Seth Weinberger’s post. Second, it depends upon when the surveillance took place. If it was beyond the 15 day period, then the provision no longer applies. Anyway, President Bush has declared that he will continue the surveillance program “for so long as the nation faces the continuing threat of an enemy that wants to kill American citizens.”
Thus, it appears that the President brushed FISA aside. On what basis can the President ignore a statute specifically regulating executive power? I’m not an expert on the intricacies of the executive’s military powers, so perhaps there’s a justification. Thus far, however, the Bush Administration’s “creative” interpretations of its legal authority to engage in surveillance, to detain enemy combatants, and to engage in torture seem to be just as “creative” as Bill Clinton’s interpretation of what “sex” is.
Apparently, the President does have a legal rationale for his actions, but according to the NY Times article, it is classified. I believe that the President must give a full accounting of how he could believe in good faith this surveillance was within his powers under the law. And please, no more “creativity.”
Related Posts:
1. Solove, President Bush, the National Security Agency, and Surveillance
December 17, 2005 at 2:00 am
Posted in: Constitutional Law, Criminal Procedure, Privacy, Privacy (National Security)
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Responses (17)
The Exercise of Vital Powers - December 17, 2005 at 6:08 am
NSA snooping story
I think the NYT story on the President authorizing the NSA to listen to phone-calls originating in the US to foreign numbers may finally be the scandal the Democrats have been looking for.
…
PoliZoo - December 17, 2005 at 9:05 am
It’s still going
President Bush’s signing of a secret order in 2002, which allowed the National Security Agency to spy on some US citizens is still making waves. The NYTimes breaking of the story appears to have played a role in the Senate’s…
Beltway Blogroll - December 17, 2005 at 9:50 am
BillBlast: Feingold’s Filibuster
The Senate voted 52-47 today not to limit debate on the USA PATRIOT Act, and Sen. Russ Feingold, the mastermind behind the opposition, quickly claimed victory in a post at TPMCafe. Feingold, D-Wis., has been guest blogging at the site…
gr - December 17, 2005 at 12:38 pm
According to the Washington Post, the admnistration’s assurances of legality where part of the reason why the NYT delayed publication of the story for over a year. Too bad they didn’t seek a second opinion from someone familiar with at least the FISA statutes. Sure there are arguments that someone like John Yoo could make that the president has powers to ignore the law. But these issues are not resolved.
Marc Rotenberg - December 17, 2005 at 1:28 pm
The President’s radio address this morning was very revealing. He said that he is relying on his Constitutional powers (Article 2) and the Joint Resolution passed by Congress after 9/11 that led to the war in Iraq. No wonder Congress is upset. The debate over the future of the Patriot Act is premised on the belief that the Executive branch will follow the law. Otherwise, what is the point of legislating? Also interesting was the Washington Post report this morning that Judge Lamberth and Judge Kollar-Kotelly, the past and current chief judges on the Foreign Intelligence Surveillance Court, were aware of the program and had misgivings. Finally, the President’s claim that to reveal the existence of this program is an aid to the enemy or may hinder investigations is disingenous. Numerous procedures have been established to enable judicial oversight and public reporting while safeguarding the integrity of investigations. In the Freedom of Information Act world, there are the (b)(1) (national security), (b)(3) (special statues), and (b)(7) (law enforcement) exemptions. And in the foreign intelligence world, there is the Foreign Intelligence Surveillance Act and the Foreign Intelligence Surveillance Court. But it now appears that the President substituted his own judgement for the acts of Congress.
Stop the Bleating! - December 17, 2005 at 1:48 pm
I Always Feel Like Somebody’s [Listening to] Me …
Here’s a round-up of blogspheric reaction to the news that President Bush ordered the NSA to spy on people within the United States (allegedly, only if they were communicating with people overseas): Hugh Hewitt: This is the big story of
Concurring Opinions - December 17, 2005 at 2:10 pm
How Much Government Secrecy Is Really Necessary?
Responding to reports that revealed that the President authorized the NSA to conduct warrantless surveillance within the US, President Bush said: “The existence of this secret program was revealed in media reports after being improperly provided to ne…
Concurring Opinions - December 17, 2005 at 2:12 pm
How Much Government Secrecy Is Really Necessary?
Responding to reports that revealed that the President authorized the NSA to conduct warrantless surveillance within the US, President Bush said: “The existence of this secret program was revealed in media reports after being improperly provided to ne…
PM - December 19, 2005 at 7:46 pm
Actually, FISA specifically identifies members of a terrorist group as a “foreign power” and exempts them from the definition of United States person. I don’t see how FISA was broken as long as the surveillance was against members of a terrorist group.
Concurring Opinions - December 19, 2005 at 9:12 pm
NSA Surveillance: Blog Post Roundup
There is a lot of great analysis and opinion in the blogosphere regarding Bush’s authorization of warrantless NSA surveillance. Here are some useful links: News Articles James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts (N.Y….
Schneier on Security - December 20, 2005 at 2:04 pm
NSA and Bush’s Illegal Eavesdropping
When President Bush directed the National Security Agency to secretly eavesdrop on American citizens, he transferred an authority previously under the purview of the Justice Department to the Defense Department and bypassed the very laws put in place t…
protein wisdom - December 22, 2005 at 1:48 am
More NSA analysis. Because really, who can't get enough of this stuff?
Cass Sunstein, on Bush's NSA program:The discussion of wiretapping by the President, without court approval, raises a number of important and interesting legal issues. According to CNN, Attorney General Gonzales recently said, "There were …
logicnazi - December 22, 2005 at 6:22 am
The problem is this clause in the minimization procedures:
This is explicitly referenced in the relevant places authorizing surveilance. In other words the ‘and’ used in the above article is very operative. The foreign agent exception only applies *if* the foreign agent is not a United States person otherwise you still need a warrant.
Besides, it is far from clear there is good reason to believe only agents of Al Qaeda were surveiled. The arguments the administration have been making suggest they have been using the program to monitor communication of people whose phone numbers happened to be in a terrorist’s phone even though they might just be a friend.
wardmd - December 22, 2005 at 1:40 pm
Right.
Just brush aside Executive Order 12139 (Carter, 1979), Executive Order 12333 (Reagan, 1981), Executive Order 13010 (Clinton, 1996) – ALL of which are based on 50 USC 1802(a).
If you’re going to assert that 50 USC 1844 is no longer in effect (based on declaration of war), then the War Powers Act kicks in, now doesn’t it?
I don’t recall any clamor over President Clinton’s breaking and entering into U.S. Citizen Aldrich Ames’s house using 50 USC 1822…
Why can’t you just be honest, and state the obvious: You’re opposed to President Bush’s use of 50 USC 1802(a) BECAUSE he’s George W. Bush (and, worse, a Republican)…
John - December 25, 2005 at 12:11 pm
To all of you Bush bashing liberals who say the president went neyond his authority to ordering this supposed illegal wiretapping, read on. Then maybe you dumbass libs will finally shut up.
Claims by a top Senate Democrat that the Clinton administration’s warrantless surveillance of suspected spies and terrorists was different from what the Bush administration has employed are being contradicted by a former Justice Department official who served under President Bill Clinton.
John Schmidt, who served as associate attorney general between 1994 and 1997, argues that both Congress and the Supreme Court have recognized presidents’ “inherent authority” to bypass warrants in ordering the eavesdropping of U.S. citizens suspected of conspiring with foreign governments or terrorists to injure or kill Americans.
On Wednesday, Sen. Patrick Leahy (D-Vt.), the ranking Democrat on the Senate Judiciary Committee, chided reporters for suggesting that Clinton ordered the same kinds of surveillance of U.S. citizens as Bush. Leahy claimed in a press conference that Clinton acted under an “entirely different power.
“If you go back to Clinton and (President Jimmy) Carter, those are searches under a FISA (Foreign Intelligence Surveillance Act) provision into embassies, foreign embassies, things of that nature,” Leahy argued. “It’s an entirely different situation.”
But in at least one well-documented case, Clinton authorized domestic electronic surveillance of a U.S. citizen without a warrant. FBI agents were allowed to break into the home of 31-year CIA veteran Aldrich Ames in 1993 to install eavesdropping devices.
An FBI summary of the case described it this way: “FBI Special Agents and Investigative Specialists conducted intensive physical and electronic surveillance of Ames during a ten-month investigation. Searches of Ames’s residence revealed documents and other information linking Ames to the Russian foreign intelligence service.”
“In the early morning hours of an autumn morning in 1993, an unmarked government sedan rolled slowly down an empty tree-lined street in Arlington. The FBI agents inside parked just up from a handsome two-story home. The agents knew the place well. Three months earlier, an FBI team had gone inside to bug the place. That operation had been a quick in and out. This time the agents planned to stay for a while. The owners were out of town on vacation. The house was vacant,” the pair wrote. “With several hours to go before dawn, the FBI team slipped inside. They had with them the necessary equipment, but they did not have a warrant.”
Though Ames’s attorney initially planned to challenge the admissibility of the evidence collected through the warrantless searches and surveillance, Ames decided to plead guilty to espionage charges instead. He is serving life in prison without possibility of parole.
So give us a break. Please keep your hypocrisy and partisan bullshit to yourselves. We have had enough of it. Furthermore, what the very hypocritical and partisan hack Patrick Leahy fails to mention is the true difference between what Clinton and Bush did is Mr. Clinton actually did do a wiretapping with a warrant on and American citizen whereas Mr. Bush did not.
Miquel - February 18, 2006 at 1:24 am
One of the new urban political myths:Presidents Clinton and Carter also authorized warrantless searches of U.S. citizens under FISA.
as the ThinkProgress weblog noted on December 20, executive orders on the topic by Clinton and Carter were merely explaining the rules established by FISA, which do not allow for warrantless searches on “United States persons.”
What Clinton actually signed:
Section 1. Pursuant to section 302(a)(1) [50 U.S.C. 1822(a)] of the [Foreign Intelligence Surveillance] Act, the Attorney General is authorized to approve physical searches, without a court order, to acquire foreign intelligence information for periods of up to one year, if the Attorney General makes the certifications required by that section.
That section requires the Attorney General to certify is the search will not involve “the premises, information, material, or property of a United States person.” That means U.S. citizens or anyone inside of the United States.
The entire controversy about Bush’s program is that, for the first time ever, allows warrantless surveillance of U.S. citizens and other people inside of the United States. Clinton’s 1995 executive order did not authorize that.
What Carter’s executive order actually says:
1-101. Pursuant to Section 102(a)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1802(a)), the Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order, but only if the Attorney General makes the certifications required by that Section.
What the Attorney General has to certify under that section is that the surveillance will not contain “the contents of any communication to which a United States person is a party.” So again, no U.S. persons are involved.
By all means spy on foreign persons, but when it comes to domestic spying, all Americans, including the president must abide by the rule of law. One of the very definitions of a police state is for the executive to have unfettered powers. Hardly what our founders had in mind, nor those citizens concerned about the balance of powers among the three branches of government.
Robert V. - February 18, 2006 at 5:20 pm
It’s entirely a slick, evasive maneuver to throw Clinton’s abuses of presidential authority in the faces of those pointing out the illegality of Bush’s violation of FISA. Pointing out that one president’s utter contempt for the law (the aforementioned spying upon the former CIA official, Waco, and the selling of secret military missile technology to totalitarian China) to justify another’s consummate disregard for the rule of law is one of the lamest excuses available.
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