Monday, January 09, 2006

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.)


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

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.


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.

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.

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.

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.

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?

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

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."

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.

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