The NSA's Warrantless Domestic Surveillance

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In 2002 the President issued an Executive Order authorizing the National Security Agency (NSA) to wiretap phone and email communications involving United States persons within the U.S., without obtaining a warrant or court order pursuant to the Foreign Intelligence Surveillance Act of 1978 (FISA), which prohibits unauthorized electronic surveillance.

EFF believes the program violates the Fourth Amendment, FISA, the Wiretap Act, and most likely the Electronic Communications Privacy Act. Moreover, it is neither authorized nor justified by the Constitutional power of the executive. EFF is investigating the legal and factual bases for litigation to stop this illegal program, and urges its members to contact their Congressional representatives to get to the bottom of the program and ask their telecommunications providers about any collaboration.

The Revelations About the Program

The illegal NSA domestic surveillance was first revealed by the New York Times on December 16, 2005, followed by further revelations in the NY Times, Washington Post and Los Angeles Times, showing that the NSA has gained access to major telecommunications switches inside the US, giving it essentially unchecked access not only to international communications but to purely domestic emails and phone calls. A new book by New York Times reporter James Risen, State of War: The Secret History of the CIA and the Bush Administration, along with reporting in the LA Times and ABC News further revealed that the NSA has been using that access--as well as access to telecommunications companies' databases--to data-mine Internet logs and phone logs for suspicious patterns, presumably to find new targets for the wiretapping program.

The administration has admitted to the existence of the classified program, and contends it is limited to situations in which "one party to the communication is outside the United States" and it has "a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda." Ordinarily before electronic surveillance can be conducted where a party is a U.S. person located within the United States, FISA requires the intelligence agency to obtain a court order from the super-secret Foreign Intelligence Surveillance Court (FISC) upon a showing of probable cause to believe the target is an agent of a foreign power.

Under the program, however, not only is the legal standard lowered from "probable cause" to "reasonable basis," the determination of whether there was or was not such a reasonable basis was left to NSA agents and their shift-supervisors, eliminating even the limited check of the FISC from the process (the FISC has approved all but five of the 19,000 requests placed before it).

An Overview of the Legality of the Program

On December 22, 2005, the DOJ published a letter attempting to provide a legal justification for the program. While conceding that FISA is implicated by the program, the administration put forth two main arguments: (1) the 2001 joint resolution authorizing the use of military force (AUMF) in response to the attacks of September 11; and (2) inherent presidential powers under Article II of the U.S. Constitution.

The AUMF Did Not Authorize the Program

The Administration argues that FISA only bars electronic surveillance under color of law except as authorized by statute, and the AUMF is such a statute, relying upon Hamdi v. Rumsfeld, a 2004 Supreme Court decision that allowed the administration to detain U.S. citizens as "enemy combatants" under the AUMF.

The administration's expansive view of the AUMF is not supported by the text of the statute, which says nothing of the kind, nor the stated understanding of the legislators who authorized it. The Hamdi case is not nearly as supportive as the government contends, and warrantless surveillance of US persons is much further removed from military force than detention of enemy combatants.

EFF is not alone in rejecting the government's AUMF argument. The non-partisan Congressional Research Service's analysis concluded that "it appears unlikely that a court would hold that Congress has expressly or impliedly authorized the NSA electronic surveillance operations" through the AUMF, and a group of 14 highly respected constitutional scholars and former government lawyers found "no basis for finding in the AUMF's general language implicit authority for unchecked warrantless domestic wiretapping." In short, this dog won't hunt.

Inherent Executive Power Does Not Authorize the Program

The administration also argues that the program is authorized by the President's Article II role as Commander in Chief, relying upon the notion that the Commander in Chief can conduct a war, including authorizing domestic surveillance, as he sees fit. The legal argument relies upon In re Sealed Case, the first and only decision by the Foreign Intelligence Surveillance Court of Review, and a number of pre-FISA decisions.

These cases don't provide much support, since they addressed the Executive's inherent authority in the absence of congressional action in an area where both have constitutional authority. The President's Article II power is not exclusive; rather his conduct remains subject to regulating statutes enacted pursuant to Congress's Article I authority, such as FISA, which reflects a clear Congressional intent to exclusively regulate and limit the power of the Executive.

As Supreme Court Justice Jackson noted in his often-cited concurring opinion on executive power in the 1952 case Youngstown Sheet and Tube Co. v. Sawyer:

When a President takes measures incompatible with the express or implied will of Congress, his power is at the lowest ebb, for then he can rely only upon his own constitutional power minus any constitutional power of Congress over the matter.
Since Congress has authority to regulate the collection of foreign intelligence, and has enacted FISA to do so, the executive power is at its lowest ebb, and cannot justify the NSA domestic warrantless surveillance program.

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