Is the President breaking the law?
Published January 25, 2006

Since revelations in December that the National Security Agency is conducting warrantless wiretaps and electronic surveillance, at the direction of the President, involving the communications of American citizens thought to be connected to al-Qaeda and terrorist networks, there has been a lot of confusion about just what the law is regarding this sort of situation. I did a little research on the issue; this is what I found out.

In 1978, Congress passed the Foreign Intelligence Surveillance Act (FISA) in response to inappropriate intelligence gathering activities carried out by government agencies including the NSA (Statement by NSA Director Lt. Gen. Hayden, April 2000). Previous to this point, Congress had passed Title III of the Omnibus Crime Control and Safe Streets Act of 1968, to regulate electronic surveillance related to criminal investigations. At that time, Congress specifically did not limit the power of the President and the Executive Branch to carry out foreign intelligence surveillance as they saw fit.

An analysis released January 5, 2006, by the Congressional Research Service (the nonpartisan public policy research arm of the U.S. Congress), looks back at the case law and statutes governing electronic surveillance; I’d be hard-pressed to summarize all the details of this 44 page document (which you can read at www.fas.org). The President is arguing that Congress implied the authorization to bypass FISA regulations by passing its Authorization for the Use of Military Force (AUMF) after the attacks on September 11, 2001. President Bush also claims that his position as Commander in Chief gives him an inherent, constitutional authority to implement this sort of surveillance program.

The Congressional Research Service analysis finds otherwise, however. First, Congress structured FISA to be an exclusive provision—that is, Congress intended for this statute to apply in all cases such as this one. There is little or no indication that Congress intended the President to be able to circumvent FISA or Title III. This conclusion is reinforced by the language of the act itself, which even includes provisions for declarations of war (indicating that the act is intended to remain in force even during wartime); Congress has also shown itself willing to modify the act to accommodate changing circumstances, as it did under the USA Patriot Act. Again, if Congress had meant for FISA not to apply under certain circumstances, this would not be the case.

President Bush argues that any attempt to modify FISA to accommodate the new program he envisioned after September 11 would have necessitated public debate, exposing a crucial intelligence shortfall to America’s enemies. Again, the Research Service does not agree, since certain sessions of Congress can conduct business under a cloak of secrecy.

Attorney General Alberto Gonzales’ defended his boss at a White House press conference in defense of the Bush Administration in December of 2005, after the NSA story hit the papers: “The operators out at NSA tell me that we don't have the speed and the agility that we need, in all circumstances, to deal with this new kind of enemy. You have to remember that FISA was passed by the Congress in 1978. There have been tremendous advances in technology ... since then.”

Yet NSA Director Hayden, in his 2000 statement to Congress, endorsed FISA and other oversight bodies as ensuring that the NSA operates “within its legal authority.” He also specifically noted that FISA provides a “privacy framework [that] is technology neutral and does not require amendment to accommodate new communications technologies (emphasis mine).”

The Congressional Research Service concludes that, while more information needs to be made available for a solid judgment to be drawn, “the Administration’s legal justification, as presented in the summary analysis from the Office of Legislative Affairs, does not seem to be as well-grounded as the tenor of that letter suggests.”

Even more disturbing is the President’s assertion that the AUMF allows him to “conduct anywhere in the world, including within the United States, any activity that can be characterized as a fundamental incident of waging war” (Congressional Research Service analysis). For now, this argument is being used to justify an invasion of privacy, but Administration officials have hinted that this authority could encompass far more than electronic surveillance. Indefinite detention without appeal or legal recourse has already occurred. A “fundamental incident” of war is violent force. Could this justification allow the Administration to target and kill American citizens without due process of law? That may sound like an extreme conclusion, but the President’s position would not rule out such an action.

All well and good, some might say, if the target is a terrorist. Unfortunately, the President is asking for the unilateral, unreviewable, entirely secret authority to prosecute an unending, undeclared war on American soil. How can we trust him—or any man or woman—to never make a mistake?

This is not a partisan issue, but one of basic rights that we often take for granted as Americans. I find issue with many of this Administration’s decisions, but I would not want this level of executive power in any person’s hands, be they Democrat or Republican. In the words of the old saying, absolute power corrupts absolutely. The more power we give to any one person—or small group of persons—in our government, the closer we come to subverting the careful system of checks and balances that are the core of our democracy.