Debate: Warrantless wiretapping in the United States

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Was the United States NSA's warrantless wiretapping program justified?

Background and context

The NSA Warrantless wiretapping controversy exposes some of the most heated and long-standing debates in US national and foreign affairs, ranging from civil rights to the seperation of powers.

Brief history and summary of the program: Although the starting-point of the program is unknown, it probably began before after 9/11, with the Bush administration directed the National Security Agency to begin secretly surveilling conversations between US citizens and suspected foreign terrorists. The existence of the program was revealed in December, 2005. On August 17, 2006, U.S. District Court Judge Anna Diggs Taylor ruled in ACLU v. NSA that the NSA wiretapping program violates the Foreign Intelligence Surveillance Act (FISA) enacted by Congress as well as the First Amendment and Fourth Amendments of the United States Constitution. The Bush administration appealed this ruling, and the miriad of debates surrounding the program continue to present.

Legislative propsals amidst the debates:

• Arlene Specter proposed a bill in June, 2006: It would work through the Senate Judiciary Committee to put the NSA program under the FISA court, and to grant retroactive amnesty for warrantless surveillance conducted under presidential authority.[1]
• Legislation sponsored by Senator Mike DeWine (R-OH) is also being considered by the Senate Judiciary Committee that would provide a less contested legal foundation for the surveillance program.
• Senator Charles Schumer (D-NY) has also been proposed a bill.

How these debates could affect the program and related legislation: If the courts maintain that the program is not only illegal but unconstitutional as well, then Congress would unliklely be able to authorize the Dewine or Schumer proposals. However, if the program is determined illegal, but constitutional - as many maintain - then it is possible that Congress could authorize one of these proposals. This makes debating the constitutionality and the legality of the program seperately very important in determining the likely course of any Congressional action.[2]

Some parameters for judging the legality of the NSA program: According to a January, 2006 Congressional Research Service Study, "Attorney General Alberto Gonzales laid out some of [the NSA program's] parameters, telling reporters that it involves 'intercepts of contents of communications where one...party to the communication is outside the United States' and the government 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.' The aim of the program, according to Principal Deputy 3 Director for National Intelligence General Michael Hayden, is not 'to collect reams of intelligence, but to detect and warn and prevent [terrorist] attacks.'"

Other Background Resources: Wikipedia - Warrantless Surveillance Controversy

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FISA: Was the NSA program consistent with the Foreign Intelligence Surveillance Act (FISA)?

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Yes

• FISA authorized the president to conduct wartime electronic surveillance without warrants. The U.S. Department of Justice has argued in its 1/19/06 article "Legal Authorities Supporting the Activities of the National Security Agency Described by the President" that, "The President’s exercise of his constitutional authority to conduct warrantless wartime electronic surveillance of the enemy, as confirmed and supplemented by statute in the AUMF (Authorization for Use of Military Force), is fully consistent with the requirements of the Foreign Intelligence Surveillance Act (“FISA”)... The United States makes full use of the authorities available under FISA to gather foreign intelligence information, including authorities to intercept communications, conduct physical searches, and install and use pen registers and trap and trace devices. While FISA establishes certain procedures that must be followed for these authorities to be used..., FISA also expressly contemplates that a later legislative enactment could authorize electronic surveillance outside the procedures set forth in FISA itself. The AUMF constitutes precisely such an enactment. To the extent there is any ambiguity on this point, the canon of constitutional avoidance requires that such ambiguity be resolved in favor of the President’s authority to conduct the communications intelligence activities he has described. Finally, if FISA could not be read to allow the President to authorize the NSA activities during the current congressionally authorized armed conflict with al Qaeda, FISA would be unconstitutional as applied in this narrow context."

• FISA made room for the 2001 Authorization of the Use of Military Force to authorize warrantless wiretapping: Justice Department Report in Support of the Program 1/27/06 - "Myth: The NSA program violates the Foreign Intelligence Surveillance Act (FISA). Reality: The NSA activities described by the President are consistent with FISA. FISA expressly envisions a need for the President to conduct electronic surveillance outside of its provisions when a later statute authorizes that surveillance. The AUMF is such a statute [Sept 13, 2001 Congressional Authorization for the Use of Military Force]." (see arguments that support the claim that "the AUMF is such a statute" in the next section).

• PATRIOT Act Amendments to FISA lowered boundaries to warrantless wiretapping: **Grayson A. Hoffman claims in "Litigating Terrorism: The New FISA Regime, the Wall, and the Fourth Amendment", American Criminal Law Review article (2003), that PATRIOT act amendments to FISA set new standard that required that foreign intelligence gathering be "a significant purpose" of the surveillance, as opposed to "the purpose." This helped offer greater flexibility and justification to the NSA's wiretapping domestically, and of US citizens, as long as the "significant purpose" of that is to collect foreign intelligence.[3] **The Department of Justice insisted that the FISA amendments were intended to break down the "wall," thereby permitting federal prosecutors to use FISA surveillance to gather evidence for criminal prosecutions aimed at protecting national security.

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No

• FISA makes illegal all warrantless wiretapping without a court order under the Foreign Intelligence Surveillance Act (FISA) Law

Article 50 United States Code, section 1809:

• • "(a)Prohibited activities - a person is guilty of an offense if he intentionally
    • (1) engages in electronic surveillance under color of law except as authorized by statute; or
    • (2) discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by statute.
  • (b) Defense: It is a defense to a prosecution under subsection (a) of this section that the defendant was a law enforcement or investigative officer engaged in the course of his official duties and the electronic surveillance was authorized by and conducted pursuant to a search warrant or court order of a court of competent authorization is outlawed by the text of FISA."

• The breadth of the NSA program was too wide, extending beyond the boundaries of "just cause": **"Surveillance Net Yields Few Suspects", The Washington Post 2/5/06 - "fewer than 10 U.S. citizens or residents a year, according to an authoritative account, have aroused enough suspicion during warrantless eavesdropping to justify interception of their (purely) domestic calls, as well. That step still requires [under FISA] a warrant from a federal judge, for which the government must supply evidence of probable cause...The minimum legal definition of probable cause, said a government official who has studied the program closely, is that evidence used to support eavesdropping ought to turn out to be 'right for one out of every two guys at least.' Those who devised the surveillance plan, the official said, 'knew they could never meet that standard -- that's why they didn't go through [the FISA court].'"
  • According to USA Today - Several sources allege that thousands, possibly millions of innocent civilians have been subject to surveillance. In addition J. Scott Marcus, internet pioneer and former FCC advisor, concluded that the "spy rooms" used by AT&T, are "in far more locations than would be required to intercept the majority of international traffic", and that the surveillance methods used are insufficient to adequately determine what originates from outside the US.[4] This all suggests that a substantial proportion of the surveillance cases were not based on a "reasonable" degree of certainty of an international communication, which was a requirement under FISA for such surveillance.

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Patriot Act?: Is the NSA program legal under the Patriot Act?

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Yes

• The NSA program was legal under Title II of the USA PATRIOT Act entitled Enhanced Surveillance Procedures.
  • The administration argued as early as 2004: According to Tech Law Journal's article "Bush Proposes to Extend and Expand PATRIOT Act" - In particular, the title allows government agencies to gather "foreign intelligence information" from both U.S. and non-U.S. citizens, which is defined in section 203. The sections of Title II amend the Foreign Intelligence Surveillance Act of 1978 and its provisions in 18 U.S.C., dealing with "Crimes and Criminal Procedure". It also amends the Electronic Communications Privacy Act of 1986. Generally, the Title expands federal agencies' powers in intercepting, sharing, and using private telecommunications, especially electronic communications. It also updates the rules that govern computer crime investigations. Finally, it sets out procedures and limitations for individuals who feel their rights have been violated to seek redress, including against the United States government.
  • According to Wikipedia's NSA Surveillance article, some argue that section 218 changed FISA to the "[significant] purpose of the surveillance is to obtain foreign intelligence information" (change in []). The change in definition was meant to remove a legal "wall" between criminal investigations and surveillance for the purposes of gathering foreign intelligence, which hampered investigations when criminal and foreign surveillance overlapped.

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No

• Some sources claim, according to Wikipedia, that in order for Title II to be used in defense of the program, the program would have needed to have applied the domestic law enforcement provisions of the PATRIOT Act for authorization of any of the NSA program activities. In order for the program's compliance to be established with the Patriot Act, all wiretapping orders granted under section 215 would have to be disclosed to the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate. Every six months, the Attorney General would also have to provide a report to the Committees on the Judiciary of the House of Representatives and the Senate, which details the total number of applications made for orders approving requests for the production of tangible things and the total number of such orders either granted, modified, or denied. This process was never followed by the Bush administration, which undermines its claim that the NSA program is protected by the PATRIOT Act.[5]

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AUMF?: Did the Authorization for the Use of Military Force (AUMF) override FISA?

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Yes

• The use of 'all necessary and appropriate force in the AUMF validates the warrantless wiretapping program: While the AUMF didn't specifically authorize wiretapping, the authorization of the use of 'all necessary and appropriate force' could be reasonably interpreted is implicitly calling for all measures designed to prevent another terrorist attack against the United States (drawing the connection to the 2004 Hamdi ruling.
  • Attorney General on Justice Sandra Day O'Connor's 2004 Hamdi Ruling - "Even though the authorization to use force did not mention the word, ‘detention,’ [O'Connor] felt that detention of enemy soldiers captured on the battlefield was a fundamental incident of waging war, and therefore, had been authorized by Congress when they used the words, ‘authorize the President to use all necessary and appropriate force.’ For the same reason, we believe signals intelligence is even more a fundamental incident of war, and we believe has been authorized by the Congress. And even though signals intelligence is not mentioned in the authorization to use force, we believe that the Court would apply the same reasoning to recognize the authorization by Congress to engage in CRS-3 resolution does not expressly specify what it authorizes as 'necessary and appropriate force,' the Administration discerns the intent of Congress to provide the statutory authority necessary take virtually any action reasonably calculated to prevent a terrorist attack, including by overriding at least some statutory prohibitions that contain exceptions for conduct that is 'otherwise authorized by statute.' Specifically, the Administration asserts that a part of the Foreign Intelligence Surveillance Act (FISA) that punishes those who conduct 'electronic surveillance under color of law except as authorized by statute' does not bar the NSA surveillance at issue because the AUMF is just such a statute."
  • The Bush Administration had asserted, according to NPR, "that communications intelligence is an essential part of waging war that 'must be included in any natural reading' of the authorization. Engaging in warrantless surveillance is a common and critical practice for wartime presidents, the Justice Department says, citing George Washington's interception of British mail as an example."

• The AUMF gave the President the authority to bi-pass certain FISA restrictions: **Justice Department Report in Support of the Program 1/27/06 - "FISA expressly envisions a need for the President to conduct electronic surveillance outside of its provisions when a later statute authorizes that surveillance. The AUMF is such a statute [Sept 13, 2001 Congressional Authorization for the Use of Military Force]...The AUMF authorized the President to use 'all necessary and appropriate military force against those nations, organizations, or persons he determines planned, authorized, committed, or aided in the terrorist attacks that occurred on September 11, 2001.'...In its Hamdi decision, the Supreme Court ruled that the AUMF also authorizes the 'fundamental incident[s] of waging war.' The history of warfare makes clear that electronic surveillance of the enemy is a fundamental incident to the use of military force."

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No

• Wiretapping doesn't qualify as a "use of force" authorized by the AUMF: A January, 2006 Congressional Research Service Study, according to NPR, "Acknowledges that surveillance is an important facet of warfare. But the CRS analysis says that 'it is not clear that the collection of intelligence constitutes a use of force' authorized under the resolution passed by Congress."
• The 2004 Hamdi ruling does not support the case that the AUMF gave the President the right to engage in the NSA wiretapping program: A January 2006 Congressional Research Service Study, according to NPR, "Argues that the Hamdi ruling merely confirmed the authority to capture enemy combatants on a foreign battlefield. Suggests it's a huge stretch to say that the force authorization also covers domestic surveillance as an essential aspect of waging war."

• FISA has a clear War Time role and thus can't be overridden by the AUMF: Specter 3/16/06 Statement on Introduced Bills and Joint Resolutions in opposition to the NSA program - "In 1975, then-Attorney General Edward Levi, a strong defender of executive authority, testified that in times of conflict, the President needs the power to conduct long-range electronic surveillance and that a foreign intelligence surveillance court should be empowered to issue special warrants in these circumstances. This Act clarifies and definitively establishes that the Foreign Intelligence Surveillance Court has the authority to review electronic surveillance programs and pass upon their constitutionality."

• The "sense of the Senate" is that the AUMF does not override FISA: Senator Patrick Leahy (D-VT), the ranking Democrat on the Senate Judiciary Committee along with lone co-sponsor Senator Ted Kennedy (D-MA) introduced S. Resolution 350 in January 20, 2006, "expressing the sense of the Senate that Senate Joint Resolution 23 (107th Congress), as adopted by the Senate on September 14, 2001, and subsequently enacted as the Authorization for Use of Military Force does not authorize warrantless domestic surveillance of United States citizens."

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Civil liberties: Does the NSA program comply with civil liberties under the constitution?

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Yes

• The program is narrowly focused on international phone calls:
• Justice Department Defense 1/27/06 - "The NSA program is narrowly focused, aimed only at international calls and targeted at al Qaeda and related groups. Safeguards are in place to protect the civil liberties of ordinary Americans"...
  • ..."The program only applies to communications where one party is located outside of the United States.
  • The NSA terrorist surveillance program described by the President is only focused on members of Al Qaeda and affiliated groups. Communications are only intercepted if there is a reasonable basis to believe 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.
  • The program is designed to target a key tactic of al Qaeda: infiltrating foreign agents into the United States and controlling their movements through electronic communications, just as it did leading up to the September 11 attacks.
  • The NSA activities are reviewed and reauthorized approximately every 45 days. In addition, the General Counsel and Inspector General of the NSA monitor the program to ensure that it is operating properly and that civil liberties are protected, and the intelligence agents involved receive extensive training."

• Justice Department - "Myth: The NSA activities violate the Fourth Amendment. Reality: The NSA program is consistent with the Constitution’s protections of civil liberties, including the protections of the Fourth Amendment...

• The Supreme Court has long held that the Fourth Amendment allows warrantless searches where 'special needs, beyond the normal need for law enforcement' exist. Foreign intelligence collection, especially in a time of war when catastrophic attacks have already been launched inside the United States, falls within the special needs context.
  • As the Foreign Intelligence Surveillance Court of Review has observed, the nature of the 'emergency' posed by al Qaeda 'takes the matter out of the realm of ordinary crime control.'

• The program easily meets the Court’s reasonableness test for whether a warrant is required. The NSA activities described by the President are narrow in scope and aim, and the government has an overwhelming interest in detecting and preventing further catastrophic attacks on American soil."
  • The judge asserts that the Fourth Amendment, in all cases, “requires prior warrants for any reasonable search, based upon prior-existing probable cause.” Yet, there are many situations where our courts have found that a prior warrant is not required, so long as a search is “reasonable.” The Keith case, 1972 electronic-surveillance decision, makes clear that, though the 4th requires a warrant for purely domestic security cases, it does not always require a prior warrant for government searches. Rather, the need for warrants depends on a "reasonable" balancing of the government’s needs, such as protecting us from attack and other constitutional interests.[6]
  • In a post-FISA case, judge Falvey ruled that: “When, therefore, the President has, as his primary purpose, the accumulation of foreign intelligence information, his exercise of Article II power to conduct foreign affairs is not constitutionally hamstrung by the need to obtain prior judicial approval before engaging in wiretapping.”

• Judge Taylor misused the precedent of the "Youngstown Sheet and Tube Case" (seizure of U.S. steel mills in the face of a union strike) and overlooked many of its and subsequent rulings
  • National Review article titled "Amateur Hour? A judge’s first-year failing-grade opinion" written by Brian Cunningham 8/27/06 Cunningham makes the following claims:
  • The Youngstown case disavowed the application of the opinion beyond that case’s primarily domestic context, making its application to the NSA program suspect because of the programs foreign intelligence related dealings.
  • That other US courts long after Youngstown emphasized their limitations to primarily domestic cases and that other legal authorities more appropriately govern primarily foreign-affairs/foreign-intelligence-collection cases, such as the TSP.
  • A number of Supreme Court and other decisions, most famously including Curtiss-Wright Export, which has been cited many times since Youngstown, made clear the president’s constitutional primacy in foreign-affairs/foreign-intelligence collection, upon which neither Congress nor the courts may intrude.

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No

• The NSA program's failure to procure judicial orders violated the fourth (right to privacy) and first amendments (freedom of speech): On August 17th, U.S. District Court Judge Anna Diggs Taylor ruled, "the President of the United States, a creature of the same Constitution which gave us these Amendments, has indisputably violated the Fourth in failing to procure judicial orders as required by FISA, and accordingly has violated the First Amendment Rights of these plaintiffs as well."
  • According to CNN.com 8/17/06, the plaintiffs maintained that the NSA's surveillance impeded "the ability of the plaintiffs to talk with sources, locate witnesses, conduct scholarship and engage in advocacy" and that this was a violation of their right to privacy.

• The NSA program's abuses of civil liberties extend well beyond the "special needs" category of the law: The Bush Administration made the legal claim to "special needs" to justify the NSA program: **"NSA Eavesdropping and the Fourth Amendment", Jurist Law Journal 3/8/06, Williams Banks of Syracuse University College of Law - The author maintained that the Bush administration argues that the NSA program may be fitted within a line of Fourth Amendment cases excepting from the warrant and probable cause requirements situations where the government has “special needs” that are above and beyond ordinary law enforcement. While the “special needs” category has sustained drunk-driving checkpoints and drug testing in schools, programs that are relatively non-intrusive and standardized, “special needs” has never been extended to both highly intrusive and discretionary warrantless wiretapping. As the FISA Court of Review recognized in upholding FISA, the FISA system for obtaining judicial approval based on individualized suspicion is both workable and lawful.

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Separation of powers: Is the program consistent with the constitution's "separation of powers"?

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Yes

• The NSA program is consistent with the President's "inherent powers": Justice Department Report in Support of the Program 1/27/06 - "The NSA activities come from the very center of the Commander-in-Chief power, and it would raise serious constitutional issues if FISA were read to allow Congress to interfere with the President’s well-recognized, inherent constitutional authority. FISA can and should be read to avoid this."

• The Unitary Executive Theory gives the President unfettered authority over the NSA program:

This theory posits that the power of Congress to divest the President of control of the executive branch is limited. It argues that the President possesses all executive powers and is rightful, therefore, to control subordinate officers and agencies of the executive branch. This implies that the power of Congress to remove executive agencies or officers from Presidential control is limited. It argues that independent agencies and counsels are, therefore, unconstitutional to the extent that they exercise discretionary executive power, not controlled by the President. The implications for the judicial branch are that no part of the executive branch can sue another part because "the executive cannot sue himself." It continues that if the federal courts were to adjudicate disputes between executive agencies, it would violate the doctrine of separation of powers. See Dr. Christopher Kelly's article "Rethinking Presidential Power—The Unitary Executive and the George W. Bush Presidency" from 4/10/05 for greater background.

White House Counsel Alberto Gonzales argued in a speech in 2002 before the American Bar Association, "The President, as head of the executive branch and the Commander-in-Chief of our armed forces and the only political leader directly accountable to all Americans, has the unique personal responsibility to ensure the safety and security of our citizens. The Framer in the Federalist Papers spoke explicitly about the need for a unitary executive presidency precisely to allow for bigger effectiveness and accountability in the conduct of our foreign and military affairs."

• The President's Article II powers provide an exception to the warrant requirement that is unassailable by Congress: NPR's NSA Wiretapping: the Legal Debate, on President Bush's justifications - "[Article II:] Designates president as commander-in-chief and gives him authority over foreign affairs. [President Bush] Says Article II gives the president 'all necessary authority' to protect the nation from further attacks. Argues that the president's power to conduct secret surveillance for the conduct of foreign affairs has long been recognized."
  • New York US District Court in US v. Usama Bin Laden (2000) ruled - "Circuit courts applying Keith to the foreign intelligence context have affirmed the existence of a foreign intelligence exception to the warrant requirement for searches conducted within the United States which target foreign powers or their agents. See United States v. Clay, 430 F.2d 165, 171 (5th Cir.1970); United States v. Brown, 484 F.2d 418, 426 (5th Cir.1973); United States v. Butenko, 494 F.2d 593, 605 (3d Cir.1974); United States v. Buck, 548 F.2d 871, 875 (9th Cir.1977); United States v. Truong Dinh Hung, 629 F.2d 908, 913 (4th Cir.1980)" Examination of the cases cited show the basis for this exception is the argument that the inherent power granted the executive under Article II of the Constitution. Congress may not by mere statute, abridge this power and therefore may not override the exemption to the warrantless search requirement affirmed by both the Court and exectutive precedent. In the same ruling, the Court found al-Qaeda to be a "foreign power" and thus it an its "agents" may be surveilled within the US without warrant."

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No

• Congress has Article I Section 8 Constitutional authority over national security: Arlene Specter argues in a March 16 2006 Statement on Introduced Bills and Joint Resolutions that Congress has constitutional authorities over the NSA program - "The Constitution provides Congress with broad powers of oversight over national security and foreign policy, under article I, section 8 of the Constitution of the United States, which confers on Congress numerous powers, including the powers--

1. To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water
2. To raise and support Armies;
3. To provide and maintain a Navy;
4. To make Rules for the Government and Regulation of the land and naval Forces;
5. To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; and
6. To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States."

FISA is a demonstration of Congressional authority in regulating Presidential powers on surveillance issues A January 2006 Congressional Research Service Study, according to NPR, "Says FISA reflects Congress' view that it has the authority to regulate the president's use of any inherent constitutional authority to conduct warrantless surveillance. Suggests Congress did not intend for FISA's warrant exceptions to be expansive."

• Broad presidential powers are limited by the 1978 FISA bill: A January 2006 Congressional Research Service Study, according to NPR, "Says broad claim of presidential power contradicts the will of Congress when it passed the Foreign Intelligence Surveillance Act of 1978. That law intended for the government to seek warrants from a special FISA court before conducting such surveillance."

• Congressional involvement and "checks and balances" is a national security imperative: Specter 3/16/06 Statement on Introduced Bills and Joint Resolutions - "It is in our Nation's best interest for Congress to use its oversight power to establish a system to ensure that electronic surveillance programs do not infringe on the constitutional rights of Americans, while at the same time making sure that the President has all the powers and means necessary to detect and track our enemies. While Attorney General Alberto Gonzales explained that the executive branch reviews the electronic surveillance program of the National Security Agency every 45 days to ensure that the program is not overly broad, it is the belief of Congress that approval and supervision of electronic surveillance programs should be conducted outside of the executive branch, by the Article III court established under section 103 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803). It is also the belief of Congress that it is appropriate for an Article III court to pass upon the constitutionality of electronic surveillance programs that may implicate the rights of Americans."

• A "state of war" is not "blank check" for the executive; it includes checks and balances: **In Hamdi v. Rumsfeld Decision 2004, Justice Sandra Day O'Connor explained in her plurality opinion for the Supreme Court in Hamdi v. Rumsfeld - "We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens. Youngstown Sheet & Tube, 343 U.S., at 587, 72 S.Ct. 863. Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake."

• Executive power and authority, even in matters of national security, is weakened by disagreement or non-participation with Congress or the Courts: A Congressional Research Service January 2006 study, in supporting the argument that Congress has some authority over the NSA wiretapping program, cited Justice Jackson's opinion on the Steal Seizure case during the Korean War - 1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate...A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it. 2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law. 3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive Presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system."

• No court precedent supports President Bush's theory that FISA impedes on the executive's "inherent powers". **According to Wikipedia, this point was raised against the NSA program by a group of fourteen constitutional law scholars, including the dean of Yale Law School and the former deans of Stanford Law School and the University of Chicago Law School - "The argument that conduct undertaken by the Commander in Chief that has some relevance to 'engaging the enemy' is immune from congressional regulation finds no support in, and is directly contradicted by, both case law and historical precedent. Every time the Supreme Court has confronted a statute limiting the Commander-in-Chief’s authority, it has upheld the statute. No precedent holds that the President, when acting as Commander in Chief, is free to disregard an Act of Congress, much less a criminal statute enacted by Congress, that was designed specifically to restrain the President as such."

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Security benefits: Has the NSA program improved national security?

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Yes

Gen. Michael V. Hayden, the country's second-ranking intelligence official and the director of the N.S.A said, "I can say unequivocally that we have gotten information through this program that would not otherwise have been available."

• National security intelligence collection generally reveals very few leads for the amount of information process: According to a 1/17/06 NYTimes article, while the N.S.A. routinely collects massive amounts of data across the globe that may produce very small amounts of useful information. Conversely, the F.B.I. retains a traditions of a law enforcement agency more focused on solving crimes through the more immediate collection of useful information (even while it's charged with fighting terrorism within the US). This may be one reason, according to the article, why some FBI agents have expressed frustration with the NSA program. The article also points out that FBI Agents don't know of arrests or intelligence activities overseas that have resulted from the domestic spying program. In addition, according to the article, the program has been a closely guarded secret, which led to the concealment, even from key investigators (including in the F.B.I.), of its role in specific cases.

• Evidence that the program has aided in a number of domestic security achievements: The program might have helped uncover people with ties to Al Qaeda in Albany; Portland, Ore.; and Minneapolis. Some of the activities involved recruitment, training or fund-raising. **NYtimes article 1/17/06 - "Different officials agree that N.S.A.'s domestic operations played a role was the arrest in Albany of an imam and another man who were taken into custody in August 2004 as part of an F.B.I. counterterrorism sting investigation. The men, Yassin Aref, 35, and Mohammed Hossain, 49, are awaiting trial on charges that they attempted to engineer the sale of missile launchers to an F.B.I. undercover informant. In addition, government officials said the N.S.A. eavesdropping program might have assisted in the investigations of people with suspected Qaeda ties in Portland and Minneapolis. In the Minneapolis case, charges of supporting terrorism were filed in 2004 against Mohammed Abdullah Warsame, a Canadian citizen. Six people in the Portland case were convicted of crimes that included money laundering and conspiracy to wage war against the United States."
  • The Bush administration asserts that the program was the key to uncovering a plot to detonate fertilizer bombs in London in 2004.[7]
  • The Bush administration also asserted that it was key in uncovering an aborted scheme plotted by Iyman Faris to topple the Brooklyn Bridge with a blow torch. He was an Ohio truck driver and friend of Khalid Shaik Mohammed (who is believed to be the mastermind of the Sept. 11th attacks). The Bush administration argued that the NSA program revealed this relationship as well as Iyman Faris' plot in a phone conversation. [8]

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No

• F.B.I. agents complain of dead-ends from NSA program intel: According to a NYtimes article 1/7/06 After 9/11, the NSA began flooding the FBI with thousands telephone numbers, e-mail addresses and names in search of terrorists. It took hundreds of FBI agents to sort through this information. But virtually all of them, current and former officials say, led to dead ends. FBI officials regularly complained to the NSA that it was swamping its agents, without any leads or national security benefits that would help justify the commitment of resources.[9]

NYtimes article 1/7/06 - "More than a dozen current and former law enforcement and counterterrorism officials, including some in the small circle who knew of the secret eavesdropping program and how it played out at the F.B.I., said the massive number of tips led them to few potential terrorists inside the country they did not know of from other sources and diverted agents from counterterrorism work they viewed as more productive."[10]

• Other means have uncovered the same evidence revealed by the NSA program: **According to a number of F.B.I. official interviewed by the NYTImes 1/7/06, in both cases cited by the Bush administration, the FBI had initially determined the plots through prisoner interrogations and other means not under the NSA program.[11]

"Some officials with direct knowledge of the Faris case dispute that the N.S.A. information played a significant role."

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FISA: Is FISA inadequate for the current national security needs?

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Yes

Specter 16 March, 2006 Statement on Introduced Bills: "I do not agree with those who contend that the current FISA law is just fine. When the FISA bill was enacted in 1978, we faced a very different enemy. That enemy did not attack on our soil; that enemy was organized into nation states that we could negotiate with; that enemy did not use terrorist tactics on our civilian population. And in 1978, we were grappling with very different technologies. We were worried about telephone and telegraphs, not e-mail, cell phones, handheld computers, and Internet chat rooms. Accordingly, the Congress passed a law in 1978 that required case-by-case warrants; warrants that identified individual persons and places; warrants a lot like those a prosecutor would seek in a routine criminal investigation. These case- by-case warrants, however, simply may not be sufficient today, when we are in a time of war and we need to track an amorphous enemy that moves quickly and is often able to evade detection." He explained that the traditional warrant procedure works only when surveillance "involves a particular target location or individual at a specific time." While this procedure was fine for routine, criminal investigations, the Nation needed a different solution for enemies that require "virtually continuous surveillance, which by its nature does not have specifically predetermined targets."

FISA blocked terrorist intelligence findings pre 9/11: For days before September 11, 2001, the Federal Bureau of Investigation suspected that confessed terrorist Zacarias Moussaoui was planning to hijack a commercial plane. The Federal Bureau of Investigation, however, could not meet the requirements to obtain a traditional criminal warrant or an order under the Foreign Intelligence Surveillance Act of 1978 to search his laptop computer (Report of the 9/11 Commission 273-76).[12]

Revealing sources and methods: U.S. Dept. of Justice Assistant Attorney General for Legislative Affairs, William Moschella, wrote n the December 19, 2005, "that the President might have sought specifically to create such an early warning system would have been public and would have tipped off our enemies concerning our intelligence limitations and capabilities."[13]

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No

FISA was amended within the context of the emerging threat of terrorism:FISA has been amended over time by Congress and since the September 11, 2001, attacks on the United States, negating a Bush administration argument that it was made in a time without terrorism, and is insufficient to meet the demands of a counter-terrorism war.[14]

• As the FISA Court of Review recognized in upholding FISA, the FISA system for obtaining judicial approval based on individualized suspicion is both workable and lawful (more on workability of it below).[15]

FISA authorizes the Justice Department to obtain warrants from the secret Foreign Intelligence Surveillance Court (FISC) up to 72 hours after the beginning of the eavesdropping. This ensures that the immediate demands of any terrorist related intelligence collection cases are met. If the warrant is then provided, FISA provides a full 45 day period for the surveillance, with indefinite possibility for renewing the warrant.[16]

Specter - "Prosecutors have significant flexibility in investigating domestic conspiracy cases. Courts have held that flexible warrants comply with the 4th amendment to the Constitution of the United States when they relate to complex, far-reaching, and multifaceted criminal enterprises like drug conspiracies and money laundering rings. The courts recognize that applications for search warrants must be judged in a common sense and realistic fashion, and the courts permit broad warrant language where, due to the nature and circumstances of the investigation and the criminal organization, more precise descriptions are not feasible. Federal agents investigating international terrorism by foreign enemies are entitled to tools at least as broad as those used by law enforcement officers investigating domestic crimes by United States citizens. The Supreme Court, in the `Keith Case', United States v. United States District Court for the Eastern District of Michigan, 407 U.S. 297 (1972), recognized that the standards and procedures used to fight ordinary crime may not be applicable to cases involving national security. The Court recognized that national `security surveillance may involve different policy and practical considerations from the surveillance of ordinary crime' and that courts should be more flexible in issuing warrants in national security cases. United States v. United States District Court for the Eastern District of Michigan, 407 U.S. 297, 322 (1972)."

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Where does the public stand?

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Yes

44 percent of Americans believe the program was "right." - A CNN poll conducted by Opinion Research Corp. on May 16-17. The poll's margin of error was plus or minus 4.5 percent.

A May, 2006 USA Today poll found 43% of Americans approve of the NSA program.

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No

50 percent of the respondents believe the program was "wrong." - A CNN poll conducted by Opinion Research Corp. on May 16-17. The poll's margin of error was plus or minus 4.5 percent.

A May, 2006 USA Today poll found 51% of Americans disapprove of the NSA program. [17]

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Where do the key players and organizations stand?

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Yes

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No

The American Bar Association, the Congressional Research Service, former Congressional representative of New York Elizabeth Holtzman, former White House Counsel John Dean, and lawyer/author Jennifer van Bergen.[18]

President Bush's former Assistant Deputy Attorney General for national security issues, David Kris, and five former FISC judges, one of whom resigned in protest, have also expressed doubts about the legality of a program bypassing FISA.[19]

See also

• Debate: Should "lawful intercept" wiretapping laws extend to VoIP internet calls?

External links and resources: