Considering that lower courts have previously upheld the President: complete malarkey.
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Wiretap program falls in legal gray area
By Cass R. Sunstein
Did the president break the law when he ordered the National Security Agency to eavesdrop on Americans and others receiving phone calls from suspected Al-Qaida terrorists?
In the weeks since the country learned of the classified ``warrantless wiretapping'' program, there has been a storm of protest, much of it focused on that single question. With great confidence, many sophisticated lawyers and other critics say the answer is yes. With equal confidence, the Department of Justice argues that the answer is no.
According to the New York Times, the administration repeated that answer at least 48 times during its recent campaign to defend its decision. Monday, Attorney General Alberto Gonzales is sure to say it one more time during a hearing on the program before the Senate Judiciary Committee.
So what are the American people supposed to think? Are our laws really so malleable that they can be read entirely different ways?
Listen to the political partisans and you're likely to believe that this is one of those black-and-white issues. But the truth is that this case falls in the gray zone. The reason that it's dividing experts is that it's genuinely difficult -- the type of case that would make the Supreme Court think long and hard.
What follows is a kind of primer -- an account of the laws that are involved, and an explanation of how it's plausible the two sides could see them so differently.
Everyone starts with the Foreign Intelligence Surveillance Act, enacted in 1978. Popularly known as FISA, this law imposes serious limits on the government's power to engage in foreign surveillance. FISA generally bans government officials, including the president, from engaging in wiretapping without the permission of a special court, the Foreign Intelligence Surveillance Court.
There is no question that the National Security Agency failed to seek that permission before monitoring communications involving American citizens. At first glance, then, the president's actions are unlawful under FISA. Indeed, the surveillance might even amount to a crime, because violations of FISA are criminal offenses.
Another law
But there is a problem with this argument. It ignores another law: the Authorization for the Use of Military Force, passed by Congress on Sept. 18, 2001. Under that law, known as the A.U.M.F., Congress granted the president exceedingly broad power: to ``use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks'' of Sept. 11.
Historically, the power to use force has included the power to spy on our enemies. In war, surveillance is perfectly commonplace. Can there be any doubt that the president is permitted to try to monitor communications from Osama bin Laden and those who work with him?
Under the 2001 law, the president is permitted to kill members of Al-Qaida. If he can kill them, he has a reasonable argument that he is certainly entitled to monitor their calls to the United States.
The president's critics have two responses to this argument. First, they argue that even though he is authorized to use ``force,'' the president must still comply with FISA, and FISA explicitly requires the president to obtain a warrant if he seeks to spy on people. Indeed, FISA contains a specific provision saying that after a declaration of war, the president may engage in electronic surveillance without a court order, but only for 15 days after the declaration.
Second, the president's critics contend that warrantless spying is unconstitutional under the Fourth Amendment. The amendment bans ``unreasonable searches and seizures'' and ordinarily requires the government to get a warrant if it wants to spy on people. Because the president engaged in surveillance without a warrant, many people are claiming that the president violated the Constitution as well as FISA.
But the president has some answers here as well. True, a warrant is usually required for domestic wiretapping. But the Supreme Court has never said whether the Fourth Amendment requires the president to get a warrant before spying on people in order to obtain foreign intelligence. So far, the most we have are decisions from several lower courts ruling that a warrant is not always required for calls into and out of the United States. Those courts have said that as the chief executive, the president has the ``inherent'' power to engage in foreign surveillance.
Keep in mind that the Fourth Amendment does not ban all searches. It bans only ``unreasonable'' ones. Perhaps it is perfectly ``reasonable'' for the president to monitor international conversations that involve Al-Qaida.
FISA amendments
Even if President Bush has not violated the Constitution, it remains possible that he violated FISA. His critics emphasize that Congress amended FISA in various ways after the attacks of Sept. 11, but it did not change the law to give the president the power to engage in warrantless searches.
Moreover, the critics argue that FISA trumps A.U.M.F. because FISA is the more specific law.
But the Department of Justice has a rejoinder. Since several lower courts have agreed that the president has the inherent power under the Constitution to conduct warrantless surveillance of enemy forces, and since FISA imposes limits on that power, perhaps FISA is unconstitutional if it prevents the president from exercising his constitutional power. At the very least, the Justice Department argues, FISA should not be interpreted as intruding on the president's constitutional authority.
Hence, the Department of Justice argues that the best approach is to see the A.U.M.F. as the governing law and to interpret it as granting the president the power to spy on our enemies as part of the legitimate use of ``force.''
The president's critics are not convinced by this argument. Some of them think that the lower courts have been wrong to say that the president has the constitutional power to engage in warrantless surveillance. Others think that even if the president has this power, FISA is perfectly consistent with it, simply because the Foreign Intelligence Surveillance Court will usually give him a warrant if he asks.
Much unknown
And so the issue is joined. One final wrinkle: We don't yet know much about the nature of the surveillance program. We don't know on whom the NSA chose to spy and why. The president's legal arguments are strongest if the spying has been limited to Al-Qaida and its close associates, as he contends. If the NSA monitored communications that did not involve people connected with the Sept. 11 attacks, those arguments are on weaker ground.
For all the complexity, the larger lesson is simple. Under President Bush, the White House has made some weak and adventurous legal claims. For example, it has argued that the president has the power to torture people and to go to war without congressional permission. The White House's defense of foreign surveillance is stronger and less adventurous. Its arguments are plausible -- whether or not they are ultimately convincing.
This conclusion raises a much broader question. Do we still have a system of checks and balances to control presidential power in the domain of spying and elsewhere? Fortunately, that one is easy to answer. Checks and balances are alive and well. FISA remains an important law. The president's failure to use the law, in extraordinary circumstances, does not render it a dead letter.
The very public outcry over the NSA's actions, alongside widespread congressional concern, attests to the continued vitality of the Constitution's checks. Whatever the final judgment on the NSA program, no president is above the law, and we need to ensure that our institutions help him to stay within it.
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