Balkinization: Scholars' Reply to DOJ "White Paper" on NSA, FISA, the AUMF and Article II

Scholars' Reply to DOJ "White Paper" on NSA, FISA, the AUMF and Article II

Marty Lederman

I'm honored to be part of a diverse group of 14 constitutional scholars and former government officials who have joined together to question the legality of the NSA domestic eavesdropping program. I've previously posted about our original letter to Congress, which can be found here. The Department of Justice thereafter made public an unsigned "White Paper" attempting to provide a legal justification for the NSA program and addressing several of the arguments we had made.

Today, we sent to Congress this letter in which we respond to the DOJ White Paper. Here's the Summary:

The administration has continued to refuse to disclose the details of the program, and therefore this letter, like our initial letter, is confined to responding to the DOJ’s arguments. The DOJ Memo, while much more detailed than its initial letter, continues to advance the same flawed arguments, and only confirms that the NSA program lacks any plausible legal justification.

In our initial letter, we concluded that the Authorization to Use Military Force against al Qaeda (AUMF) could not reasonably be understood to authorize unlimited warrantless electronic surveillance of persons within the United States, because Congress had clearly denied precisely such authority in the Foreign Intelligence Surveillance Act (FISA), and had specifically addressed the question of electronic surveillance during wartime. We also found unpersuasive the DOJ’s contentions that the AUMF and FISA should be construed to authorize such surveillance in order to avoid constitutional concerns. FISA is not ambiguous on this subject, and therefore the constitutional avoidance doctrine does not apply. And even if it did apply, the constitutional avoidance doctrine would confirm FISA’s plain meaning, because the Fourth Amendment concerns raised by permitting warrantless domestic wiretapping are far more serious than any purported concerns raised by subjecting domestic wiretapping to the reasonable regulations established by FISA. The Supreme Court has never upheld warrantless domestic wiretapping, and has never held that a President acting as Commander in Chief can violate a criminal statute limiting his conduct.

As explained below, these conclusions are only confirmed by the more extended explication provided in the DOJ Memo. To find the NSA domestic surveillance program statutorily authorized on the ground advocated by the DOJ would require a radical rewriting of clear and specific legislation to the contrary. And to find warrantless wiretapping constitutionally permissible in the face of that contrary legislation would require even more radical revisions of established separation-of-powers doctrine.

Posted 5:08 PM by Marty Lederman [link]

Comments:

In this letter, you agree that FISA does not apply to communications intercepted outside the US, except for "communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person". However, there is no evidence that any part of the NSA activity falls in this category. Under law the NSA must acquire all intelligence outside the US (although there may have been some involvement of US communications routing centers to make sure the call was routed out of the US by some preferred path where it would be easier to intercept, say by satellite). The program as described appears to be the tracking of phone numbers calling phone numbers. When the computers pointed to an interesting pattern, the phone number in question was turned over to the FBI and only then did someone check to see who it belonged to.

It would of course be trivial for anyone to use Google and look up the person associated with a phone number. However, if the NSA was careful not to perform this trivial step, then not only wasn't the US person the target, he or she also wasn't a "particular, known" person.

This is not to say that I, or anyone outside the NSA, know for sure that the NSA didn't violate FISA, but it seems rather thin to assert that nobody there was smart enough to do the few trivial things needed to avoid triggering the law.

# posted by

Howard Gilbert : 7:49 PM

Howard: You can keep saying this as often as you wish, but that won't make it so. The Administration has had *every* incentive to say that the NSA program involves little, or no, "electronic surveillance" as defined in FISA. But it hasn't done so, instead adopting two untenable legal arguments for intercepting "electronic surveillance" outside the "exclusive means" the law prescribes for doing so. If you were correct, a very simple argument would have ended the debate ("Don't worry -- none of this is covered by FISA."). And the pitched battle amond lawyers at DOJ suggests that there is some "there" there, too.

What is it? Most likely, NSA comes to suspect that someone here in the states has had conversations with someone suspicious overseas, and taps the phone or email of (i.e., "targets") the person here in the States, at least as to some of that person's international calls. Ordinarily, under FISA that would require a showing of probable cause that the targeted party in the States is an agent of a foreign power. But NSA can't make that showing -- indeed, in many cases, perhaps there's no evidence at all that the targeted person is an AOFP. So all NSA requires is (i) reasonable suspicion (ii) that *either* party to the conversation -- the domestic party *or* the overseas party -- (iii) is "affiliated with" Al Qaeda (a very capacious category) *or* is a member of an organization "affiliated with Al Qaeda." Such a showing would fall well short of what 1805 of FISA requires for a judicial order.

Thus, persons *here in the States* -- presumably including some who are not in any way connected with terrorism or in league with Al Qaeda; indeed, some who are not within even the terms of the AUMF itself -- are targeted for interception despite the fact that NSA cannot and does not make the showing that FISA requires for such targeted interceptions.

That's been our assumption, anyway -- and the Administration has done absolutely *nothing* that I know of to disabuse us, or the public, of that assumption.

# posted by

Marty Lederman : 8:43 PM

Thank you for posting this.

I wanted to draw your attention to what I believe is a misstatement of the law (p. 8 final paragraph):

Second, even when the target of the surveillance is a U.S. person, or the information is acquired here, FISA does not require that the wiretap be turned off, but merely that it be approved by a judge, based on a showing of probable cause that the target is a member of a terrorist organization or a "lone wolf" terrorist.

The "lone wolf" provision provided for in the Intelligence Reform and Terrorism Prevention Act of 2004 amends 50 U.S.C. 1801(b)(1) and thus is only applicable to "any person other than a United States person."
It is provisions of 1801(b)(2) that are applicable to "any person."

My understanding of the issue may well be incorrect, but this is how I see it. Thank you for devoting your time and effort to this issue of such monumental importance.

# posted by

Brian : 9:43 PM

great job guys.

here's to the OLC-in-exile.

# posted by

Katherine : 10:19 PM

Hi Marty,

Truly excellent work, but I'm greatly puzzled by something.

Your argument that the AUMF cannot be read to repeal a specific criminal statute seems absolutely clear to me. What I don't get is this: given the strength of that argument, how could you fail to mention 18 USC 2441 (war crimes)where you discuss Hamdi and Rasul?

It seems to me that the exact same arguments apply there in spades.

And please don't think I'm tossing a tomato - I don't mean it that way at all, but this is something that has puzzled me all along IRT the detainee cases and related issues.

Indeed, it was the failure of the attorneys in those cases to point out the war crimes statute that prompted me to undertake the preposterously unlikely chore of attempting to file an amicus brief in the S. Ct. as a pro se layman in order to put that issue front and center (see CBG Hamdi Brief).

Even now it isn't mentioned nearly enough in the detainee briefs IMO, though it is mentioned some... (There are several amici in Hamdan who bring it in to good effect.) But it seems to me that it should be hammered at in EVERY brief: it's the decisive law in those cases IMO.

Anyway, I'd be real interested in your thoughts on that, privately if that would be better.

Keep up the great work,

Charly

# posted by

Charles Gittings : 11:04 PM

Marty: I certainly have tried to imagine what "there" might be there, but nothing makes sense. If you think that someone is Al Qaeda, you don't stop with intercepting his international calls. You have agents follow him day and night until you can get a FISA warrent and then tap his local calls as well. If you really wanted to tap just his overseas calls, and FISA got in the way, then all the fiber optic routes switch on the tip of England, so you can get MI 6 to track the calls for you. In the end, I think your key phrase is "a very simple argument would have ended the debate". Maybe they don't want to end the debate. It is one thing to be "weak on crime" and let all the criminals loose on technicalities. It is even better if the other party is "weak on terrorism", perferring to let Al Qaeda kill Americans rather than taking necessary action. Or at least that is how the attack ads will play it up to the November elections. So they dangle the possibility that someone did something illegal out as bait, to see how many Democrats fall into the trap. The fact that there is a massive loophole and the law doesn't cover the activity is something you keep in reserve until you really need it.

# posted by

Howard Gilbert : 11:58 PM

Howard,

The 12/27 NYT story reported that the NSA program did, in fact, acquire the intercepts in the United States:

"The volume of information harvested from telecommunication data and voice networks, without court-approved warrants, is much larger than the White House has acknowledged, the officials said. It was collected by tapping directly into some of the American telecommunication system's main arteries, they said.

"...Several officials said that after President Bush's order authorizing the N.S.A. program, senior government officials arranged with officials of some of the nation's largest telecommunications companies to gain access to switches that act as gateways at the borders between the United States' communications networks and international networks. The identities of the corporations involved could not be determined.

"The switches are some of the main arteries for moving voice and some Internet traffic into and out of the United States, and, with the globalization of the telecommunications industry in recent years, many international-to-international calls are also routed through such American switches."

# posted by

JaO : 9:47 AM

Howard,

Other possible scenarios include cases where someone's U.S. phone number is found on a bad guy's cellphone captured abroad, or simply harvested from traffic. Subsequent intercepts targeting that phone number would fall under FISA, even if the intercept occurred outside the United States.

# posted by

JaO : 10:21 AM

Yes, the NYT does claim something about switches, but reporters get this sort of thing wrong all the time. It is not just a violation of FISA to acquire the conversation in the US. It is a violation of the law governing the NSA, which prohibts this organization from obtaining data in the US under any circumstance. This is the exclusive domain of the FBI. This will be covered by the answer to the last question posed by the Judiciary committee to the AG:

"(15) When foreign calls (whether between the caller and the recipient both being on foreign soil or one of the callers or recipients being on foreign soil and the other in the U.S.) were routed through switches which were physically located on U.S. soil, would that constitute a violation of law or regulation restricting NSA from conducting surveillance inside the United States, absent a claim of unconstitutionality on encroaching on Executive powers under Article II?"

I suspect when the question is answered we will learn the NYT got the details wrong. The NSA is smart enough to wait until the signal gets at least 12 miles off shore before intercepting the converstation and sending it back.

# posted by

Howard Gilbert : 10:53 AM

Howard: "It is a violation of the law governing the NSA, which prohibts this organization from obtaining data in the US under any circumstance."

Could you point us to a statutory citation on that point?

# posted by

JaO : 1:16 PM

I cannot find a citation. The directive creating NSA is classified. Whatever is available is redacted. The best I can provide is the Judiciary Committee question which indicates such law exists. There is clear text on the CIA(foreign)-FBI(domestic)split but the NSA rules are fuzzy.

By controlling the routing of messages at the switches you can direct them to a convenient point outside the US where you can then collect the data without triggering FISA. Actually collecting the data at the switch does nothing other than trigger avoidable legal problems.

# posted by

Howard Gilbert : 9:05 PM

Again, Howard, you're dealing with Occam's Razor: if the point of surveillance was 'RAF' Menwith Hill in England, and the point of interception were outside the US, then there would simply be no story. Risen would not have reported it. It would be dog-bites-man.

In short, you're not simply clutching at straws: you're clutching at empty air and claiming that there are straws there.

So they dangle the possibility that someone did something illegal out as bait, to see how many Democrats fall into the trap.

Ah, rope-a-dope. No. This time you're playing the dope, because the reporting of this story makes it clear that Risen's sources regarded the procedure as both non-standard and of questionable legality.

(We can get into William Gibson territory and debate exactly where an international call takes place -- one of his definitions for 'cyberspace' -- but all evidence points to it being a side-issue.)

# posted by

snooponyoo : 5:28 AM