Balkinization: Analysis of the Legality of the Secret NSA Warrantless Electronic Surveillance Program

Analysis of the Legality of the Secret NSA Warrantless Electronic Surveillance Program

Marty Lederman

This letter was sent today to congressional leaders from 14 law professors and former federal government officials. In it, we critique the Department of Justice's legal argument in support of the lawfulness of the secret NSA surveillance program. [UPDATE: The letter can also be viewed on the New York Review of Books website.] Here's the Introduction:

We are scholars of constitutional law and former government officials. We write in our individual capacities as citizens concerned by the Bush Administration’s National Security Agency domestic spying program, as reported in the New York Times, and in particular to respond to the Justice Department’s December 22, 2005 letter to the majority and minority leaders of the House and Senate Intelligence Committees setting forth the administration’s defense of the program. Although the program’s secrecy prevents us from being privy to all of its details, 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.

The basic legal question here is not new. In 1978, after an extensive investigation of the privacy violations associated with foreign intelligence surveillance programs, Congress and the President enacted the Foreign Intelligence Surveillance Act (FISA). Pub. L. 95-511, 92 Stat. 1783. FISA comprehensively regulates electronic surveillance within the United States, striking a careful balance between protecting civil liberties and preserving the “vitally important government purpose” of obtaining valuable intelligence in order to safeguard national security. S. Rep. No. 95-604, pt. 1, at 9 (1977).

With minor exceptions, FISA authorizes electronic surveillance only upon certain specified showings, and only if approved by a court. The statute specifically allows for warrantless wartime domestic electronic surveillance—but only for the first fifteen days of a war. 50 U.S.C. § 1811. It makes criminal any electronic surveillance not authorized by statute, id. § 1809; and it expressly establishes FISA and specified provisions of the federal criminal code (which govern wiretaps for criminal investigation) as the “exclusive means by which electronic surveillance … may be conducted,” 18 U.S.C. § 2511(2)(f) (emphasis added). [Footnote: More detail about the operation of FISA can be found in Congressional Research Service, “Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information” (Jan. 5, 2006). This letter was drafted prior to release of the CRS Report, which corroborates the conclusions drawn here.]

The Department of Justice concedes that the NSA program was not authorized by any of the above provisions. It maintains, however, that the program did not violate existing law because Congress implicitly authorized the NSA program when it enacted the Authorization for Use of Military Force (AUMF) against al Qaeda, Pub. L. No. 107-40, 115 Stat. 224 (2001). But the AUMF cannot reasonably be construed to implicitly authorize warrantless electronic surveillance in the United States during wartime, where Congress has expressly and specifically addressed that precise question in FISA and limited any such warrantless surveillance to the first fifteen days of war.

The DOJ also invokes the President’s inherent constitutional authority as Commander in Chief to collect “signals intelligence” targeted at the enemy, and maintains that construing FISA to prohibit the President’s actions would raise constitutional questions. But even conceding that the President in his role as Commander in Chief may generally collect signals intelligence on the enemy abroad, Congress indisputably has authority to regulate electronic surveillance within the United States, as it has done in FISA. Where Congress has so regulated, the President can act in contravention of statute only if his authority is exclusive, and not subject to the check of statutory regulation. The DOJ letter pointedly does not make that extraordinary claim.

Moreover, to construe the AUMF as the DOJ suggests would itself raise serious constitutional questions under the Fourth Amendment. The Supreme Court has never upheld warrantless wiretapping within the United States. Accordingly, the principle that statutes should be construed to avoid serious constitutional questions provides an additional reason for concluding that the AUMF does not authorize the President’s actions here.

The letter is signed by:

Curtis A. Bradley
Richard and Marcy Horvitz Professor of Law, Duke University
Former Counselor on International Law in the State Department Legal Adviser's Office, 2004

David Cole
Professor of Law, Georgetown University Law Center

Walter Dellinger
Douglas Blount Maggs Professor of Law, Duke University
Former Assistant Attorney General, Office of Legal Counsel,1993-1996
Former Acting Solicitor General of the United States, 1996-97

Ronald Dworkin
Frank Henry Sommer Professor, New York University Law School

Richard Epstein
James Parker Hall Distinguished Service Professor, University of Chicago Law School
Peter and Kirsten Bedford Senior Fellow, Hoover Institution

Harold Hongju Koh
Dean and Gerard C. and Bernice Latrobe Smith Professor of International Law, Yale Law School
Former Assistant Secretary of State for Democracy, Human Rights and Labor 1998-2001
Former Attorney-Adviser, Office of Legal Counsel, DOJ, 1983-85

Philip B. Heymann
James Barr Ames Professor, Harvard Law School
Former Deputy Attorney General, 1993-94

Martin S. Lederman
Visiting Professor, Georgetown University Law Center
Former Attorney Advisor, Department of Justice Office of Legal Counsel, 1994-2002

Beth Nolan
Former Counsel to the President, 1999-2001; Deputy Assistant Attorney General, Office of Legal Counsel, 1996-1999; Associate Counsel to the President, 1993-1995; Attorney Advisor, Office of Legal Counsel, 1981-1985

William S. Sessions
Former Director, FBI
Former Chief United States District Judge, Western District of Texas

Geoffrey R. Stone
Harry Kalven, Jr. Distinguished Service Professor of Law, University of Chicago
Former Dean of the University of Chicago Law School and Provost of the University of Chicago

Kathleen M. Sullivan
Stanley Morrison Professor, Stanford Law School
Former Dean, Stanford Law School

Laurence H. Tribe
Carl M. Loeb University Professor and Professor of Constitutional Law
Harvard Law School

William W. Van Alstyne
Lee Professor, William and Mary Law School
Former Attorney, Department of Justice, 1958

(Affiliations are noted for identification purposes only.)

Posted 6:30 PM by Marty Lederman [link]

Comments:

Bravo! There are a lot of other names that ought to be subscribed to this letter.

# posted by

Anonymous : 7:37 PM

With all due respect, a Congressional Act cannot diminish or mofify the
President's wartime powers. The Steel Seizure case established the precedent that these wartime powers are subject to review by the Courts and I suppose that this is where this present case should go. Nonetheless, I hope that they will not rule that if a terrorist makes it to the top of the Sears Tower he can use his cell phone to guide in a suicide plane and the government is not allowed to listen in, in accordance with the liberals' interpretation of FISA.

Considering that everyone who cared to know knew that the
NSA was created to monitor and has been monitoring telecommunications for all its existence, it strikes me as Bush Derangement Syndrome (a dissociative state brought about by hatred for Bush '43) to have it become an issue now. After we have been attacked on our own soil and are in danger of another attack.

# posted by

nk : 8:47 PM

No, you don't understand, nk. Bush Derangement Syndrome refers in the first instance to Bush's derangement. Bushistas afflicted with BDS in its terminal stages are sometimes driven to arguing the fallacy of the false dilemma: you must either support Bush's illegal surveillance program, or you are an Al Qaeda sympathizer. This is the sign that they are out of legal and logical arguments and are resorting to claims of lèse-majesté.

# posted by

Rider : 10:05 PM

Rider,

My point was that it was not "Bush's illegal surveillance program". If my poor memory serves, it was also JFK's, LBJ's, Nixon's, Carter's, Reagan's, Bush 41's and Clinton's. I have always known that my overseas calls were monitored. I am a lawyer and I see no Fourth Amendment violation. The Fourth Amendment stops at the border. I am also an amateur radio enthusiast and I think that radio waves become part of the public domain the minute they are broadcast. The same way as sunshine. My comment that hatred of President Bush colors every criticism of his actions is reinforced by your comment. Do you want to show at least a little bit of loyalty? Do you want to say, "Yes, he's a @##$ but he's a @##$ who is trying to preserve America?" Or do you want to say, "Osama, we are sinners, please come and kill us and interced with Allah for our souls"?
You ridiculous, suicidal twit! It's my fault for trying to talk reasonably to unreasonable people.

# posted by

nk : 10:59 PM

I apologize for and wish to retract the "You ridiculous twit" in my previous comment. It reflects my feelings but not my socialization. I do not ordinarily talk like that.

# posted by

nk : 11:19 PM

What I want is for him to use the legal means which he said were so vital yet ignores when it suits him, i.e., FISA-Patriot Act (The Patriot Act is not stand-alone). You have nicely re-stated your false dilemma for us. Now you are telling us we must choose between Bush and Osama. Reprehensible.

# posted by

John in Houston : 11:30 PM

It would be most interesting if Walter Dellinger could explain his views of Bush's actions in light of his OLC memo on a President's prerogative to ignore congressional constraints.

# posted by

Stuart Buck : 12:20 AM

Stuart,

It appears not to be the policy of this blog to acknowledge that any presidents before President Bush have asserted claims that were actually routine for Clinton and his predecessors.

So much the more so when a hero like Walter Dellinger penned them. I myself resisted the claims of Dellinger and resist the claims of Bush. But having read the Federalist papers, I also expect and respect them as the sort of claims that naturally emerge from an executive.

But it's so much nicer to imagine that these questions have only arisen with W, with Cheney (did you know he used to work for Halliburton??, and that he read to his kids from Clausewitz and Schmitt??).

I will be shocked if Balkinzation repudiates Dellinger's views of the Executive's authority to sua sponte assert its authority even over likely non-justiciable claims. But I would welcome it. More accurately, I would be shocked if Balkinization would acknowledge that much of what they have called lawless and shocking is boilerplate executive stuff, and that there is little reason to imagine Sam Alito would support it as Justice Alito. That would spoil the fun of partisanship with the cold boredom of facts.

# posted by

T. More : 2:50 AM

Thank you, Professor Lederman, and thanks to your courageous colleagues.

What does it say about the Bushophiles that the most trenchant response of which they are capable (at least on short notice) is the playground taunt, "So's your old m[e]n!"?

# posted by

John in Nashville : 4:26 AM

In response to Stuart Buck: The issue is *not* whether Presidents must execute every statute, even where they are unconstitutional. The Dellinger Memo is absolutely correct on that score. (Disclosure: I was at OLC at the time it was written.) As the Dellinger Memo explains, figuring out *when* the Preisdent should refuse to execute is a very difficult and solemn matter. I recommend, in this regard, the essays by my former OLC colleagues Dawn Johnsen and Devid Barron a few years back in Law & Contemporary Problems on this vexing problem.

But on those rare occasions where the Preisdent declines to execute a statute, it should be (i) where the constitutional objection is well-taken, and (ii) done publicly, so that it's subject to the checks and balances of the legislature, judiciary, and public. Neither of those conditions applies here. The Administration did not publicly declare that it was ignoring FISA -- to the contrary it doesn't even concede that it is doing so now. And most importantly, FISA is *not* unconstitutional -- indeed, DOJ does not even proffer any argument that it is. Our principal complaint, in other words, is on the *merits* of the Administration's legal analysis, not on the (implied) assertion of a right to refuse to enforce unconstitutional statutes.

# posted by

Marty Lederman : 5:34 AM

Marty,

Your response is well taken if the Administration indeed now denies any claim that its actions are justified under an "inherent powers" claim. But certain aspects of it are less so: First, the legitimacy of a Presidential action construing a statute as unconstitional in the Dellinger memo specifically does not turn on the ability of the courts to intervene, as the memo contemplates refusal to enforce even non-justiciable claims, no?

Second, it would seem very strange if the Constitutional legitimacy of an action in this regard turned on its public nature, given that actions in the national defense often need to be secret, and given that such actions go to the heart of any understanding of executive power. So while public policy would demand that any such refusal to enforce be public where feasible, I don't see where logically or in the Dellinger memo that is essential to the claim, nor does it make policy sense.

What this memo also stands for is the proposition that a president is not being criminal or lawless if he takes an action in good faith on the presumption that it is authorized by the Constituion. That is, it presumes the President is not being "lawless" even when refusing to obey the law, even a law he signed.

It cannot be, in a world where one approves of that, that the President is being "lawless" in a relevant sense only if he is correct on the merits. That is to say, if we acknowledge a Presidential authority to ignore a statute of his own accord even for non-justiciable claims, then the game is up. We don't strengthen that by saying "but only when you are correct as to the Constitution." That's what makes the Dellinger argument, as to non-justiciable claims, particularly dangerous.

For John in Houston, if you've been a regular reader of this blog, the approach has been "sky is falling under imperial president." It is true that I am a Bush supporter--won't deny that. But I am not a supporter of most of his legal claims in this area. At the same time, I don't think a sober debate of them can be conducted where the discussion does not acknowledge that, though the president may be wrong here, he is not being "imperial" in a sense not already authorized by administration after administration, and indeed by the Dellinger memo.

That's not saying Bush is fine because others did it before, but it is saying that his errors here, while important, are not entirely his own, and do not mark him out as significantly more imperious than his predecessors.

# posted by

T. More : 8:57 AM

Marty -- I appreciate that your objection is to the merits of Bush's objection in this particular case, not to the general notion that Presidents may (or on some occasions, must, as Dawn Johnsen argued) exert their own view of constitutional authority.

But it doesn't seem quite right to say that "(ii) done publicly, so that it's subject to the checks and balances of the legislature, judiciary, and public." What is this suppose to mean, when the whole point is whether the President can ever effectively contradict the "legislature," and to do so in cases that may be non-justiciable?

# posted by

Stuart Buck : 9:04 AM

Roosevelt and Lend-Lease would be a useful place for Marty's discussion of the publicity requirement to begin.

# posted by

Thomas : 1:00 PM

nk said: "I hope that they will not rule that if a terrorist makes it to the top of the Sears Tower he can use his cell phone to guide in a suicide plane and the government is not allowed to listen in, in accordance with the liberals' interpretation of FISA."

nk, do you know, or are you just ignoring the fact that FISA allows 7 day retroactive warrants. So the goon with the cell phone on the Sears Tower can be listened to, no prob.

So this is the "liberals' interpretation of FISA". The conservatives' interpretation is that "you're with us, or you're a terrorist".

This black and white view of the world is quite damaging to you and to the rest of us.

# posted by

reality777 : 1:55 PM

Extremely impressive work, balanced, careful and well reasoned. I see the hand of Marty Lederman behind this.

# posted by

Scott Horton : 9:40 AM

There is a world of difference between continuously carrying out activity in contravention of an act of Congress for four years, and various claims to presidential authority, and occasional assertions of the same. As to Lend Lease, please consult the following:

http://www.history.navy.mil/faqs/faq59-23.htm

Roosevelt may have negotiated the destroyer deal with Britain without adequate authority, but he obtained authority very promptly thereafter. (Given the state of the destroyers, which ended up being of little practical use to the Royal Navy, there's even a colorable argument that the Neutrality Act hadn't been violated, although that's really beside the point).

# posted by

Nat DeWitt : 1:33 PM

At the risk of sounding either like a pedant or an idiot, I have to ask this one question: Why do the folks who harp on the 'Article II powers of the Executive as Commander in Chief' seem to be forgetting the following powers *strictly enumerated for Congress in Article I* (note: some powers unrelated to military action and international law have been removed from the list so as not to be all spammy and whatnot):

To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

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.

Considering that the pro-Executive camp is harping on the fact that these powers stem from Bush's role as a wartime commander-in-chief of our armed forces, with the power to execute law and policy governing those armed forces, but Congress is charged with writing those laws which govern the armed forces, how is the NSA, a sub-division of the Department of the Defense (and thus, even if not counted under the 'armies and navies' at least counted under the heading of 'any department or officer' of the Government of the United States) not counted as being subject to the authority of Congress' lawmaking powers? For that matter, how is the President's power to execute laws not government by Congress' ability to write the laws regarding the conduct of American military power?

In short, I'm confused here. And I'm admitting I'm confused. This is no rhetorical trick. This is desperation of a man who thinks it's pretty clear-cut, especially if one considers oneself a strict constructionalist, and is wondering what he is clearly missing that it is not clear cut to an administration that calls itself conservative. So, someone help me out here.

# posted by

BDP : 10:06 AM

I wonder who Tom Smith is referring to here:

"It would be interesting to know who actually wrote the letter. When I was in practice, we needed a letter from a famous constitutional scholar that an egregious piece of special interest legislation our firm was lobbying for was in fact constitutional. So we drafted the letter, paid ten large to a scholar who is also one of the signatories of the NSA letter, and voila, had ourselves a weighty opinion. To be fair, the signatory's contract provided that he/she had to be paid whatever his/her opinion turned out to be, so you can imagine our relief when he/she turned out to agree with our client's position. He/she did have some suggestions for improving the punctuation in our letter, and those were much appreciated. And in fact, the law was subsequently challenged, and its constitutionality was upheld, if memory serves. It was a very bad, but constitutional piece of legislation, as so often they are."

# posted by

Stuart Buck : 7:41 PM

To say that the NSA is not an "army" in the historically strict sense shows a failure to keep pace with evolving fourth-generation warfare (4GW).

Has anyone pondered the figures lately on the sheer amount of traffic they're trying to monitor? It's staggering to say the least. I'm guessing we simply may not have enough human resources to handle the problem in a preferred leisurely "let's do lunch after we 'stagger' over to FISA court" manner; and that this is a case of the law not keeping pace with technology / 4GW development. 4GW blurs the distinction between war and peace, combatant and noncombatant, etc. We need to proceed apace, not "a-clumber", and accept the notion of "flexible democracy" wherein civil liberties get ratcheted up and down until the bad guys are flambeéd out of existence.

# posted by

Jonathan : 11:00 PM

How much do we need to "temporarily ratchet down" certain civil liberties during the war on terror? That's the president's call by way of his faithful execution of his Constitutional duties. The burden of proof is on others [courts, Congress, angry mobs of Democrats, etc.) to show he overstepped reasonable bounds.

As the president pointed out, FISA is almost thirty years old. In that period of time, the law moves like molasses, while information technology moves at a dizzying pace. Truly dizzying.

I welcome a challenge to presidential moves on this chessboard, but so far I haven't seen anything which causes any hackles to raise. On the contrary, I'm much more comfortable with Bush's confident negotiation of an admittedly grey fog than I am with someone like Al Gore -- who prefers a blanket ban on such crime preventing activities, rather than working to counter the enemies' use of what is essentially OUR technology.

Main point: burden of proof is on the president's detractors to do more than just carp in an effort to pigeonhole him to the letter of a 30-year old law, when things are moving at "Internet speed" and our enemied have demonstrated a propensity for using our hard-won technologies against us.

# posted by

Jonathan : 5:30 AM

It comes down to a matter of trust. With so many irons in the fire, this administration has shown me that they cannot be trusted. You can argue all you want about any specific issue that many of us have with this administration but when you look at the big picture, their intent is obvious. Take advantage of their positions to solidify their power base and increase their wealth. This is not the America I grew up to believe in.

# posted by

FaulknA : 4:53 PM

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# posted by

Michael : 8:05 AM