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An Examination of the Legality of the NSAs Warrantless Wiretapping Program By Stephen Curtis

Earlier this year it was leaked to the press that the National Security Agency was conducting wiretaps on United States persons without obtaining a warrant. The program was conducted under the name Terrorist Surveillance Program and sanctioned by President Bush himself. After the information was leaked to the press, the President assured the American public that the Terrorist Surveillance Program (also knowing as the Domestic Eavesdropping Program, the Domestics Wiretapping Program and the Warrantless Wiretapping Program) was completely legal and well within his authority as President. Although the Attorney General and certain members of congress were briefed on the program, the revelation of this program took most of congress and the American people by surprise. As soon as the news hit the stands it stirred up nation wide controversy, causing citizens and politicians to suggest things even as extreme as the Presidents impeachment. The controversy of the program centered on its ethical violation of civil liberties and proposed illegality. This controversy recently culminated in a Circuit Court decision which declared the program to be unconstitutional. The volume of opposition to this program is all founded on one assertion, the program is illegal. Despite the volume of popular support for the assertion of illegality, is this assertion accurate? The legality of the NSAs Terrorist Surveillance Program can best be determined by examining the Constitution, Supreme Court decisions and US Code enacted by acts of Congress. When all factors are taken into consideration, there is a

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large amount of evidence to support President Bushs assertion that the Terrorist Surveillance Program is legal. Almost every major news organization and Democrat politician has asserted that the Terrorist Surveillance Program is completely illegal. The case for illegality is primarily based on sections of US Code 50 (also known as the Foreign Intelligence Surveillance Act of 1978) and the 4th Amendment to the Constitution. The current way the program is being conducted allows the president to use NSA intelligence collection assets to monitor American citizens without obtaining a warrant from the Foreign Intelligence Surveillance Court. This allegedly violates the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801-1811, 1821-29, 1841-46, and 1861-62) which outlines the provisions for obtaining a warrant to use foreign intelligence assets (i.e. the NSA) to electronically survey US citizens (50 U.S.C. 1804). Critics also argue that the program violates the illegal search and seizure clause in the fourth amendment to the constitution which very clearly protects the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Many legal experts, such as John W. Whitehead and Steven H. Aden, use these two arguments to support the assertion that the fourth amendment itself does not permit the use of warrantless wiretaps (even) in cases involving domestic threats to national security (1108). If nothing but these facts were taken into consideration, the case for illegality would seem to be undeniable.

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The most compelling and direct source of the Presidents legal authority to conduct the Terrorist Surveillance Program without obtaining a warrant is the US Constitution. The Presidents constitutional authority to gather intelligence comes from the Presidents constitutional power to reserve any judgment on the scope of the Presidents surveillance power with respect to the activities of foreign powers within or without this country. (United States vs. United States District Court, 1972). This cases reference to intelligence collection applies to the Terrorist Surveillance Program because it is limited to the collection of intelligence on foreign powers by only monitoring conversations between US persons and persons outside of the United States (Moschella, 7). There is nothing in the constitution which precludes the President from collecting foreign intelligence by way of domestic sources (i.e. a wiretap on a US Citizen). The presidential authority to collect foreign intelligence domestically was upheld in the case of United States vs. Brown (1973) by the majority opinion which asserted that because of the Presidents constitutional duty to act for the US in the filed of foreign relations, and his inherent power to protect the national security in the context of foreign affairs, the President may constitutionally authorize warrantless wiretaps for the purpose of gathering foreign intelligence. Many critics have put forth the argument that because the 1973 decision was made before the passing of the FISA Act (Foreign Intelligence Surveillance Act of 1978) it is not valid, however this is ignoring the fact that the Supreme Court makes its decision purely based on constitutionality, not on laws passed by congress. Furthermore, despite the fact that the US vs. Brown decision was passed before the FISA Act of 1978, the constitutional power it interprets cannot legally be removed by any act of congress. Several Supreme Court cases have upheld that Congress may not remove

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any power granted to the President by the constitution, including In Re Sealed Case 310. F. 3d (2002) which asserts that the President has inherent constitutional authority to collect foreign intelligence authority Congress may not circumscribe. This case clearly upholds that even if the FISA Act were to make the Presidents actions illegal, this illegality is invalid because it removes a power granted to him by the constitution. The fact that the Supreme Court has upheld the Presidents authority to conduct warrantless domestic collection of foreign intelligence, coupled with the fact that this power cannot be removed by congress, clearly gives the President constitutional authority to conduct the warrantless wiretap program. Constitutionality aside, the Foreign Intelligence Surveillance Act itself has a caveat in it which allows for foreign intelligence collection agencies to conduct domestic collection without obtaining the warrant. US Code 1802 states that the President, 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. Although there was no warrant acquired from the FISA Court to conduct the wiretaps, Attorney Generals approval was sought and given. It is not clear why the press has chosen to completely omit this section in the law during its reporting, but the nomenclature is very clear. If there were any confusion about the wording of that section of the FISA Act, the process of obtaining Attorney General approval for domestic intelligence collection is re-iterated in Executive Order 12333 Section 2.5 (1980) which states that The Attorney General hereby is delegated the power to approve the use for intelligence purposes, within the United States or against a United States person abroad, of any technique for which a warrant would be required if undertaken for law

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enforcement purposes. This Executive Order was passed 26 years ago and was not challenged until the recent actions of the Bush Administration. In addition to the President seeking approval of the wiretaps before conducting them, he also sought the legal counsel of the Attorney General before the start of the program in order to ensure its legality. The fact that President Bush followed outlined provisions from US Code and Executive Order to conduct warrantless wiretaps, in addition to the fact that legal counsel was sought in advance, denotes a clear intent to conduct the program legally by the President himself. Even if the program were proven to be illegal, the Presidents actions could never be because he was operating within established procedure and precedence. The third argument that can be made for legality stems from Congresss Authorization for the use of Military Force against Al-Qaeda. The Authorization for Use of Military Force Against Terrorists (AUMF) passed by Congress Section 2(a) authorizes the President to "use all necessary... force against those nations, organizations or persons he determines planned, authorized, committed or aided the [9/11] terrorist attacks." This authorization, much like ones in the past, puts the President in similar executive position as previous Presidents during time of war. The Attorney General (in a letter to congress, 28 February 2006) asserts that this AUMF, authorizes the President to use all necessary force against Al-Qaeda includes the conducting of foreign surveillance. Furthermore, domestic surveillance can be triggered if an executivebranch official has reasonable grounds to believe that a communication involves a person affiliated with al-Qaeda or part of an organization or group that is supportive of alQaeda. (28 February, 2006). This assertion was reiterated in a Department of Justice memorandum which explains that the President was purposefully given broad authority

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to combat Al-Qaeda because of the nature and uniqueness of the threat (2). That authority can be used to prevent further catastrophic attack expressly conferred on the President by the Constitution and confirmed and supplemented by Congress in the AUMFhas legal authority to authorize the NSA to conduct the signals intelligence activities he has described. Those activities are authorized by the Constitution and by statute, and they violate neither FISA nor the Fourth Amendment. (3). The President was given broad authority to combat Al-Qaedas domestic threat, and part of that domestic threat includes Al-Qaedas domestic conduct. The only way to wage war against an enemy which operates on American soil is to use the tools of war on America soil. One of the most vital tools of waging war is intelligence surveillance. Contemporary issues notwithstanding, history has provided precedence for conducting programs such as the Terrorist Surveillance Program. The war against AlQaeda is the first congressionally sanctioned war since World War II in which the United States is combating an enemy that has the capability of directly attacking the United States of America. The act of warrantless wiretapping itself has been engaged in by three previous US Presidents. Woodrow Wilson conducted wiretaps on all incoming wires from outside of the country during World War I under the guise of special War Powers. Franklin Roosevelt authorized a similar warrantless program during World War II, even after the Supreme Court had established the need to obtain a warrant for such actions in 1924. The War Powers President Bush is afforded to fight Al Qaeda should at least be considered partially as strong as those of Wilson and Franklin. This is not only because of the AUMFs language, but also because Al Qaeda is the only foreign power to threaten US soil since World War II. More recently, President Richard Nixon conducted

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warrantless wiretaps outside of the declaration of war during the 1970s, citing his intelligence collection authority and nothing else as justification (Halperin, 2). These actions are consistent with the historical trend of Presidents taking on special powers, sometimes at the expense of civil liberties or outside of the scope of presidential authority, to combat temporary and unique threats. From Abraham Lincolns declaration of martial law to Roosevelts seizure of the steel industry (Fisher, 106), Presidents have exercised special powers specifically tailored to unique threats. These threats are not limited to security threats, and the expansion of power in the time of crisis is not limited to powers of war or violation of civil liberties. One especially compelling example of this was the expansion of the scope of Presidential power during the administrations of Roosevelt, Truman, Eisenhower and Johnson to force state and local authorities to enforce anti-discrimination laws (Fisher, 107). Although this is often argued as being well outside of the scope of Presidential power, it was necessary to combat the uniqueness of the problem at hand. President Bushs Terrorist Surveillance Program is more regulated, smaller in scale and more within the scope of Presidential powers than the majority of War Powers exercised by his predecessors. Presidents have used War Powers and Special Powers to do things such as falsely imprison citizens, take power away from States, violate privacy and seize private companies for government use. It is clear that, from a historical standpoint, President Bushs program falls well within the traditional scope of appropriate presidential power during times of national crisis. Furthermore, it pales in comparison to the actions taken by his predecessors in similarly grievous times of crisis.

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Despite the evidence presented, the question of the programs legality is as of yet undetermined. Circuit Court Judge Taylor recently ruled the program was illegal in the case of ACLU vs NSA on the 4th of September, 2006. This decision, although suspended and not yet an established precedence, could be taken to show that there are still many questions remaining about the legality of the program. This is called into questions by many critics of the decision that have argued Judge Taylor failed to address the specific statues authorizing the Presidents actions as well as established judicial precedence. The largest problem with the decision stems from its blatant failure to address the Presidents constitutional intelligence gathering authority (Taylor, 2-3). The judges argument focuses on the ideological aspects of the fourth amendment, but fails to address the issue of powers afforded to the President specifically by the constitution. The decision will not be final until it is upheld or overturned by the Supreme Court in appeal, so for now the question of the constitutionality of the Terrorist Surveillance Program is still up for debate. In the end, the question of the Terrorist Surveillance Programs legality is one that includes many long standing legal debates. These debates include how to interpret the Constitution, presidential power in times of war and subtleties in the nature of the balance of power between the three branches of government. The nature of presidential power during times of crisis is one of those often debated issue. There, however, may never be a definitive interpretation of the constitution which determines what the scope of the Presidents special powers is during times of crisis. Despite the gray areas in issues such as War Powers and Authorization for use of Military force, the constitution and US Code are very clear. The President has the established constitutional authority to conduct this

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program. Not only that, the President clearly followed established statutes in the way he chose to conduct the program. Many quickly dispel the arguments of constitutional presidential power and presidential War Powers in a time of war by saying the nature of our nations understanding of the Constitution has changed. In response to those that would argue the nature of presidential power has changed over time, Attorney General Alberto Gonzales points out that even as recently as the Clinton administration this type of conduct was acceptable for a President, During the Clinton Administration, Deputy Attorney General Jamie Gorelick testified before Congress in 1994 that the President has inherent authority under the Constitution to conduct foreign intelligence searches of the private homes of U.S. citizens in the United States without a warrant, and that such warrantless searches are permissible under the Fourth Amendment (2). President Bush conducted the terrorist program within the scope of his power as determined by the constitution, congressional acts, judicial rulings and historical precedence. Therefore, until the Supreme Court weighs in on the issue, the Terrorist Surveillance Program will have to remain innocent until proven guilty.

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Works Cited

"ACLU vs. NSA judgment." Wikisource, The Free Library. 3 Sep 2006, 14:19 UTC. 4 Sep 2006, 09:35

Halperin, Morton H. A Legal Analysis of the NSA Warrantless Surveillance Program (17 Jan, 2006) Washington D.C.

United States Congress. Authorization for Use of Military Force Public law 107-40. (18 Sep 2001) Washington D.C.

Fisher, Louis. Constitutional Conflicts Between Congress and the President University of Kansas Press (1991) Lawrence, Kansas

President Regan, Ronald W. Executive Order 12333--United States intelligence activities (December 4th, 1981) Washington D.C.

Whitehead, John W. "Forfeiting 'ENDURING FREEDOM' for 'HOMELAND SECURITY': A constitutional analysis of the USA Patriot Act" American University Law Review 51 (2002): 1081-1153

U.S. Supreme Court. In Re Sealed Case, 310 F. 3d 717, 792 (2002) Washington D.C.

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Department of Justice "Legal Authorities Supporting the Activities of the National Security Agency Described by the President". (19 Jan, 2006) Wasghinton D.C.

Moschella, William E. "Letter in Response to Questions From Chairman Sensenbrenner." US Department of Justice (March 24, 2006) Washington D.C.

Gonzales, Alberto R. "Prepared Statement of Hon. Alberto R. Gonzales, Attorney General of the United States" US Department of Justice. (February 6, 2006) Washington D.C.

Gonzales, Alberto R. Testimony before the Senate Judiciary Committee. CongressDaily (28 Feb, 2006) Washington, D.C.

Kozak, David C. and Ciboski, Kenneth N. The American Presidency Nelson Hall Inc. (1985) Chicago, Illinois

5th Circuit Court of Appeals. United States Vs. Brown, 484 F. 2d 418 (1973) New Orleans, Louisiana

U.S. Supreme Court. United States Vs. United States District Court ("Keith"), 407 U.S. 197, 308 (1972) Washington D.C.

U.S. Congress. U.S. CODE TITLE 50 CHAPTER 36FOREIGN INTELLIGENCE SURVEILLANCE (1978) Washington D.C.