Which Is It, Mr. President?

Marty Lederman

In his press conference this morning, the President focused on two things: (i) defending the legality of his Executive Orders authorizing eavesdropping of conversations involving U.S. persons (including citizens); and (ii) scolding Senators for refusing to reenact the PATRIOT Act.

What virtually no one is pointing out is the incongruity of these two arguments -- that if the President is correct about the legality of his wiretapping protocol, then there is little need to reenact the PATRIOT Act.

The principal problem with the wiretapping program is that the NSA is intercepting communications involving "U.S. persons" -- citizens and lawful permanent resident aliens -- without any judicial warrant or any approval from the FISA court. That is expressly prohibited by FISA (50 USC 1802(a)(1)(B)). (Thanks to Dan Solove for being the first to blog about this clearly.) FISA actually authorizes some forms of surveillance without FISA court approval order for up to one year, but such surveillance is subject to specific statutory limits, the most of important of which is that 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." And, just to make clear that this is, in fact a prohbition, FISA further specifically makes it a crime to "engage in electronic surveillance under color of law except as authorized by statute." (Why didn't the NSA simply get approval from the FISA Court -- which would have made these interceptions entirely legal? I think Ken Bass is almost certainly correct that it's because this is the rare case in which the FISA court would have actually denied approval, because NSA appears to have been engaged in a fishing expedition of phone numbers and e-mail addresses that it had discovered in connection with al Qaeda operatives. [UPDATE: William Kristol and Gary Schmitt agree that FISA would not have authorized the warrants here -- but they argue that's why the President had constitutional grounds to ignore the statute.])

In his comments this morning, the Attorney General conceded that the NSA program would violate FISA ("Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides -- requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday, unless there is somehow -- there is -- unless otherwise authorized by statute or by Congress. That's what the law requires.") -- or would do so, anyway, except for two things:

1. The AG claims that the September 18, 2001 Authorization for Use of Military Force, enacted by Congress to authorize "necessary and proper force" against Al Qaeda and others responsible for 9/11, actually superseded, or impliedly repealed, the FISA prohibition on warrantless wiretapping of U.S. persons.

2. The AG claims that the President has the constitutional power, under the Commander-in-Chief Clause, to ignore FISA's prohibition in this context. "There were many lawyers within the administration who advised the president that he had an inherent authority as commander-in-chief under the constitution to engage in this kind of signals intelligence," said Gonzales, speaking on CNN.

Both of the Administration's arguments here are quite radical: (i) That the AUMF impliedly repealed the well-wrought scheme in FISA, with its prohibition on warrantless eavesdropping on U.S. persons (a repeal that only the Executive knew about: neither the public, nor even the Congress that enacted the AUMF, was aware that it had performed such radical surgery on the U.S. Code); and (ii) even if the AUMF did not repeal/amend FISA, there's a Commander-in-Chief override.

I actually think the former argument is more preposterous than the latter, although I'm sure others will disagree. [See post above, in which I conclude that the Administration's contempt for the legislature here is remarkable. I should add, as well, that FISA actually has an express provision to deal with emergencies in times of war, 50 USC 1811, which provides: "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." On the Adminisrtation's view, this 15-day limit, too, must have been impliedly repealed when Congress authorized the conflict in Afghanistan.]

In any event, if the Administration is correct about the legality of its wiretaps, then the President's impassioned scolding of the Congress this morning for failing to reenact the PATRIOT Act is entirely misguided: After all, the President already has the authority under Article II of the Constitution to do most of what the PATRIOT Act authorizes -- indeed, to override statutory provisions that would prohibit such Executive acts -- and, as if that weren't enough, Congress has already (in the AUMF) authorized the President not only to do whatever it takes to defeat Al Qaeda, but also to ignore any preexisitng legal restrictions.

Of course, this means that the PATRIOT Act itself was largely superfluous in the first instance . . . . (But that's how radical the Administration's justification of its NSA program appears to be.)

[NOTE: I realize that the PATRIOT Act also includes criminal prohibitions on private conduct that the President could not create out of thin air. But when he scolded Congress this morning for not extending the Act, presumably he was not thinking about the criminal provisions, but instead about the provisions that authorize Executive actions, such as searches and electronic interceptions.]

[UPDATE: Must-read posts from Juliette Kayyem, Orin Kerr, and Dan Solove. And on the utter inadequacy of the supposed "consultation" with congressional leadership, see this remarkable letter from Senator Rockefeller to the Vice President from 2003.]

[ADDITIONAL NOTE: There are two additional arguments floating around about why the NSA surveillance is unlawful: That it violates the Fourth Amendment; and that Al Qaeda is not the sort of foreign entity whose communications can be intercepted without court approval under FISA. I don't know much about the Fourth Amendment question -- read Orin Kerr over at the Volokh Conspiracy for more details -- but my understanding is that there are at least reasonable arguments that this program does not violate the Fourth Amendment, and, more to the point, I think the Administration's argument in this respect is that NSA is not violating the Fourth Amendment -- and not that the President has the constitutional authority to ignore the Bill of Rights. As for the other FISA argument, it seems to me to be a close, hard question that turns on whether Al Qaeda is "a faction of a foreign nation or nations, not substantially composed of United States persons," under 50 USC 1801(a)(2). Orin has more to say on that, as well.

The important point, however, is that, as the AG conceded this morning, the NSA's conduct -- if it is not authorized by the AUMF or Article II of the Constitution -- would be criminal under FISA because it intercepts the contents of communications to which United States persons are a party.]
Posted 12:38 PM by Marty Lederman [link]