Debate: Warrantless wiretapping in the United States

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

Background and Context of Debate:

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

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

Yes

Claim that FISA allows for subsequent Congressional authorizations of presidential power to conduct warrantless wartime electronic surveillance. 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."

Claim that FISA allowed for exceptions to its constraints on surveillance in the event of Congressional status such as the 2001 Authorization of the Use of Military Force: 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).

Claim that PATRIOT Act Amendments to FISA lowered certain standards regarding the purpose of 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.

No

Argument that any wiretapping is illegal 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."

Contention that the breadth of the NSA program was "unreasonable" and that there was, in many cases, little "probable cause" for surveillance, a requirement under FISA: "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.

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

Yes

The administration argued as early as 2004 that the program is legal under Title II of the USA PATRIOT Act entitled Enhanced Surveillance Procedures. 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.

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]

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

Yes

Argument that while the AUMF didn't specifically authorize wiretapping, that 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."

Contention that the AUMF gave the President the authority to bi-pass certain FISA restrictions, and that FISA was intended to allow for such excepting statutes: 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."

No

Contention that wiretapping doesn't qualify as a "use of force" that was 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."

• Claim that it is a stretch to interpret the 2004 Hamdi ruling as supporting 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."

Argument that FISA has a clearly established role in War Time, undermining the claim that the AUMF would implicitly overrule FISA: 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."

Claim that 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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