The NSA and the Law

THE NSA AND THE LAW….What’s the technical legal status of the NSA bugging program exposed by the New York Times last week? As near as I can tell, here’s the nickel version of the legal issues involved:

Q: Is the NSA program a violation of the Fourth Amendment?

A: That’s unclear. The Supreme Court has previously ruled that warrants are required in cases involving purely domestic surveillance, but has punted on the question of whether the same rules apply to domestic surveillance for the purpose of gathering foreign intelligence. A couple of cases during the 60s and 70s suggest that warrantless wiretaps are constitutional if their “primary purpose” is collection of foreign intelligence, but there have been no definitive rulings on this.

Q: Did the NSA program violate the FISA act?

A: Yes. FISA, which was specifically enacted in 1978 to clear up some of the questions left unresolved by the Supreme Court, allows warrantless surveillance of conversations between “foreign powers” (and their agents) only if “there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party.” We don’t know all the details of how the NSA bugging plan operated, but it seems pretty clear that tapping conversations of “United States persons” was not only a substantial likelihood, but practically the whole point of the program.

Q: Does the president’s inherent power as commander-in-chief during wartime override the provisions of FISA?

A: No. The president has made the rather remarkable claim that the Authorization to Use Military Force (passed shortly after 9/11 and aimed at al-Qaeda) allows him to override FISA and authorize domestic surveillance on his own authority. But just as its name implies, a fair reading of the AUMF suggests that it was meant to apply only to military force. In fact, the Supreme Court only barely agreed that it extended even to the detention of enemy combatants, a fairly standard wartime power. Legalizing domestic surveillance of U.S. persons simply wasn’t the intent of Congress when it passed the AUMF, and this is precisely why they spent so much time amending FISA to apply to terrorism investigations after passing the AUMF. After all, why bother codifying all this if the AUMF already gave the president plenary powers in this area?

Likewise, the proposition that Congress has no power to interfere in any way with the president’s Article II commander-in-chief power is ludicrous. There’s no case law to back this up and no reason to believe this except for the president’s own apparent belief in his unlimited authority during wartime.

In other words, the president’s program is almost certainly illegal unless you accept his unprecedented notion that we are currently in a state of war so grave that he has virtually unlimited power to override federal law whenever he considers it necessary. Even more importantly, by keeping his program secret, he has set himself up as the sole arbiter of whether his actions are legal or not. Neither Congress nor the courts are allowed any oversight, a position that is both breathtaking and dangerous.

Note that this post is based primarily on three sources:

  • A 2004 overview by the nonpartisan Congressional Research Service about the statutory framework of the FISA act.

  • A detailed post by Orin Kerr at the Volokh Conspiracy analyzing the legal status of the NSA program.

  • A couple of posts (here and here) by Marty Lederman focusing primarily on the issue of the president’s inherent powers.

Read all three if you want more detail on the legal issues surrounding all this.