NSA warrantless surveillance (2001–2007)

United States President George W. Bush issued an executive order authorizing the National Security Agency as of 2002 to conduct warrantless domestic phone-taps of persons believed to be linked to al-Qaeda or its affiliates. The NSA subsequently performed wiretaps on international communications that included a U.S. participant. The authorization was kept secret until December 2005, when it was reported in the The New York Times, engendering serious controversy over both the legality of the blended international/domestic wiretaps and the revelation of this highly-classified program, especially in a time of war.

The New York Times report

On December 16, 2005, The New York Times printed a story claiming that, under White House pressure and with an executive order from President George W. Bush, the National Security Agency had been conducting warrantless phone-taps on people in the U.S. calling people outside of the country, in an attempt to combat terrorism. ^[1] According to the Times:

The White House asked The New York Times not to publish this article, arguing that it could jeopardize continuing investigations and alert would-be terrorists that they might be under scrutiny. After meeting with senior administration officials to hear their concerns, the newspaper delayed publication for a year to conduct additional reporting. Some information that administration officials argued could be useful to terrorists has been omitted.

While the President's actions are controversial from a legal standpoint, it may also be possible that the NY Times' choice to publish the report violated U.S. laws protecting highly-classified information. Punishment for such an offense can include the death penalty, if it occurs during wartime, a provision that may be applicable due the legal status of the hostilities with al-Qaida. Prosecution of this illegal act has so far only been obliquely referred to as a "process" at the U.S. Department of Justice. In the past, prosecution for publication of highly classified information has been muted, in large part due to the inherent risks of exposing even more classified information during the process of adjudication. However, except for enemy efforts, and the publication of the Pentagon Papers, such acts during wartime have been a relatively rare circumstance, and so any eventual prosecution of the NY Times will be closely watched for its both its results and precedent-setting nature.

Congressional opposition to reported events

News of tapping sparked an outcry from many groups, including members of Congress, who feel such actions are a violation of constitutional rights. Senator Arlen Specter (R-PA), the chairman of the Senate Judiciary Committee, said that "there is no doubt this is inappropriate" and "clearly and categorically wrong" and that he would hold hearings into the matter early in 2006. His call for investigations was echoed by Congressman Rob Simmons (R-CT), the chairman of the House Homeland Security Intelligence Subcommittee. "Was the eavesdropping narrowly designed to go after possible terrorist threats in the United States or was it much, much more?" he asked in a statement.

Senator Russ Feingold (D-WI) called the president's remarks "breathtaking in how extreme they were" in a telephone interview with the Associated Press. He added, "If that's true, he doesn't need the Patriot Act because he can just make it up as he goes along. I tell you, he's President George Bush, not King George Bush. This is not the system of government we have and that we fought for." Feingold was just as harsh in an interview with CNN. "We have a president, not a king," he said. ^[2] Senator Patrick Leahy (D-VT), the ranking Democrat on the Judiciary Committee, added later, "The Bush administration seems to believe it is above the law."

On December 19, 2005, a bipartisan group of Senators, including Dianne Feinstein, Carl Levin, Chuck Hagel, Ron Wyden and Olympia Snowe, sent a letter to the Judiciary and Intelligence Committees calling for an investigation into the alleged domestic surveillance.^[3]

Administration's response to NYT report

White House press secretary Scott McClellan refused to comment on the story on December 16, claiming "there’s a reason why we don’t get into discussing ongoing intelligence activities, because it could compromise our efforts to prevent attacks from happening." ^[4] The next morning, December 17, the President gave an 8-minute live TV address instead of his normal weekly radio address and confirmed that he had authorized the warrantless searches and phone taps.^[5] Visibly angry, he defended his actions as "crucial to our national security" and that the American people expected him to "do everything in my power, under our laws and Constitution, to protect them and their civil liberties" as long as there was a "continuing threat" from al-Qaeda. The President also had harsh words for those who broke the story, saying they acted illegally. "The unauthorized disclosure of this effort damages our national security and puts our citizens at risk," he said. ^[6]

The President's anger at the revelation of the warrantless wiretap policy and his defense of it as "crucial" to national security differ markedly from reassurances he had given the nation, in defense of the USA PATRIOT Act, that Americans' civil liberties are being protected. For instance in a speech in Buffalo, NY on April 20, 2004, Mr. Bush said:

Secondly, there are such things as roving wiretaps. Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so. It's important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution. ^[7]

Other reactions

On December 20, 2005, Judge James Robertson, one of the 11 members of the Foreign Intelligence Surveillance Court, sent Chief Justice John Roberts a resignation letter from the FISC. The letter gave no reason. (see)

Legal issues

The related news event surrounding this matter -- i.e., the release of highly classified information -- may have been illegal, in fact to the point that the death penalty for treason may apply. However, the controversial wiretaps -- the like of which also occurred during the Carter and Clinton administrations, but which extended "surveillance techniques, such as infrared sensors to observe people inside their homes, without a court order" -- may also arguably constitute a violation of the Fourth Amendment to the United States Constitution which makes search and seizure without a warrant illegal, and may also be a criminal violation of the wiretapping provisions of the Foreign Intelligence Surveillance Act or Title III of the Omnibus Crime Control Act.

The Foreign Intelligence Surveillance Act (Title 50, Section 1801 (et seq.)) establishes a procedure for the officials of the executive branch of the U.S. Government to obtain the necessary judicial warrants to intercept international telephone calls. These are necessary after the Supreme Court ruled that President Richard Nixon and Attorney-General John N. Mitchell did not possess the inherent authority to invade people's reasonable expectation of a private telephone conversation, under the Fourth Amendment to the United States Constitution. See United States v. United States District Court for the Eastern District of Michigan, 407 U.S.C. § 297 (1972).

It is a criminal violation of FISA for an executive branch official to engage in wiretapping "under color of law" (that is, through official action) except as provided by statute. 50 U.S.C. § 1809(a)(1). The penalty for such warrantless wiretapping in violation of FISA is up to five years in prison.

FISA authorizes the interception of technical communications (but not telephone communications or e-mail messages) without a warrant, and no warrant is required if no U.S. person (defined as a citizen or permanent resident of the United States) is the recipient or sender of the message. ^[8]

FISA also affords the authority to the President of the United States to order electronic surveillance of human communications for up to fifteen days without a court order, after a declaration of war by Congress. However, since Congress did not formally declare war on al-Qaida, and the wiretapping was of a duration longer than the prescribed period, and intercepted the communications of U.S. persons, these provisions were inapplicable, and a warrant from the Foreign Intelligence Surveillance Court was ostensibly required.

In previous legal briefs filed in the case of José Padilla, the "dirty bomber" suspect held in military detention for three years, the Government argued that the Authorization for the Use of Military Force (AUMF) enacted by Congress following the September 11 attacks on the World Trade Center was legally equivalent to a declaration of war.

Additionally, FISA specifically empowers the Attorney General or his designee to start wiretapping on an emergency basis even without a warrant, so long as a retroactive application is made for one "as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance." ^[9]

Orin S. Kerr, a professor of law at George Washington University Law School and scholar of the legal framework of electronic surveillance has opined that the question of whether the wiretapping violated the Fourth Amendment and the criminal provisions of FISA is a complex issue, but that after his first analysis he concluded that the wiretapping probably did not infringe on Fourth Amendment constitutional rights, but, in his opinion, probably did violate the FISA statute.

President Bush has maintained he acted within "legal authority derived from the constitution" and that Congress "granted [him] additional authority to use military force against al Qaeda". ^[10] However, while the President may argue that the necessary statutory authority to override FISA's warrant provisions is provided by the authorization to use "all necessary force" in the employment of military resources to protect the security of the United States, and that the use of wiretapping is a qualifying use of force (under the terms of the authorization for the use of military force against al-Qaida as found in Senate Joint Resolution 23, 2001), Kerr believes that this justification is ultimately unpersuasive, as is the argument that the President's power as the Commander-in-Chief (as derived from Article Two of the United States Constitution) provides him with the necessary constitutional authority to circumvent FISA during a time of war. ^[11]

James S. Robbins, a contributing editor to National Review has provided a different legal analysis of FISA. In an editorial dated December 19, 2005, he wrote "I...have no doubt that these and similar actions can be legal, even when conducted without warrants." In his editorial, he points out that an American citizen, when engaged in "sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power," or even "those who aid and abet or knowingly conspire with those engaged in such behavior," becomes an "'Agent of a foreign power' as defined under subsection (b)(2)(C)." Robbins argues that such a citizen has given up their right to remain outside of warrentless surveillance operations. Robbins notes that according to section 1802, the President of the United States "'through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year.'" ^[12]

Notification of Congressional leaders

According to the Washington Post, four members of Congress were briefed on the surveillance. The Post interviewed former Democratic Senator Bob Graham, who stated that he "[had] no discussion about expanding [NSA eavesdropping] to include conversations of U.S. citizens or conversations that originated or ended in the United States... I came out of the room with the full sense that we were dealing with a change in technology but not policy." The Post further reported "he believed eavesdropping would continue to be limited to 'calls that initiated outside the United States, had a destination outside the United States but that transferred through a U.S.-based communications system.'" ^[13] Californian Democrat Nancy Pelosi also admitted to being briefed about the warrantless surveillance. Pelosi has stated that:

I was advised of President Bush's decision to provide authority to the National Security Agency to conduct unspecified activities shortly after he made it and have been provided with updates on several occasions.

The Bush Administration considered these briefings to be notification, not a request for approval. As is my practice whenever I am notified about such intelligence activities, I expressed my strong concerns during these briefings. ^[14]

There is currently no public record of what Pelosi said or did not say about the program at the time she was originally briefed.

Democrat Senator John D. Rockefeller IV also stated that he was briefed, and that he wrote to Vice President Dick Cheney expressing concern about the surveillance. However, Kansas Republican Senator Pat Roberts disputed this, saying that he did not recall Rockefeller expressing concerns during briefings, amd also disputed whether he was effectively gagged from telling other senators about the surveillance. Roberts stated that "a United States Senator has significant tools with which to wield power and influence over the executive branch. Feigning helplessness is not one of those tools." ^[15]

Notification of Congress in-and-of-itself cannot resolve the legality or illegality of the controversy. While the legal issues are substantive, the President's actions seem all but certainly headed for a legal resolution at some point in the future.

Notes

^ James Risen & Eric Lichtblau (December 16, 2005), Bush Lets U.S. Spy on Callers Without Courts, New York Times
^ "Executive decision to spy" (December 18, 2005), Newsday
^ Bipartisan letter to the Judiciary and Intelligence Committees
^ Transcript of Press Briefing by Scott McClellan, December 16, 2005, White House Office of the Press Secretary. Video of Press Briefing by Scott McClellan, C-SPAN.
^ President Bush's Radio Address, December 17, 2005.
^ "US eavesdropping program 'saves lives': Bush" (December 18, 2005), Sydney Morning Herald
^ Whitehouse, President Bush: Information Sharing, Patriot Act Vital to Homeland Security, Remarks by the President in a Conversation on the USA Patriot Act, Kleinshans Music Hall, Buffalo, New York
^ 50 U.S.C. § 1802
^ ibid.
^ Transcript of Bush Press Conference (December 19)
^ Orin S. Kerr (December 19, 2005) Legal Analysis of the NSA Domestic Surveillance Program, blog entry in The Volokh Conspiracy.
^ Barton Gellman & Dafna Linzer (December 18, 2005), "Pushing the Limits Of Wartime Powers", Washington Post, page A1.
^ Pelosi Statement on President Bush's Authorization of National Security Agency's Activities (December 17, 2005), Newswire.
^ Charles Hurt ( December 21, 2005), "Roberts 'puzzled' by Rockefeller's concerns", Washington Times
^ ACLU, "ACLU Shocked at Bush Use of National Security Agency for Domestic Spying, Says Move Violates Constitutional Limits and Federal Laws" (December 15, 2005), Press release (accessed December 15, 2005)

External links

Government's Brief in the Padilla case