Thursday, February 02, 2006

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.


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.

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,


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