Presidential Wiretapping – Not Such an Easy Legal Question

by Julian Ku

My travelling during the past two weeks has prevented me from blogging. Luckily, our intrepid guest bloggers Duncan and Seth have filled in wonderfully, along with our Opinio Juris regulars.

Although I have enjoyed reading posts from both Duncan and Seth (and I hate to start a fight on Christmas Eve), I have to disagree with some of Seth’s analysis of the presidential wiretapping flap. In blogosphere time, I realize I am very, very late to the fray, but better late than never. To sum up my views briefly (because this is a long post): I think the legality of the presidential wiretapping program is a much harder question than Seth and other critics have suggested. It is almost certainly constitutional. The only question is whether it violates a federal statute.

(1) The President has inherent constitutional power to conduct “foreign signals intelligence” or foreign wiretapping.
Although there is no specific text in the Constitution authorizing presidential spying, and (as far as I know) there is no specific congressional statute, there is little doubt that the President’s broad foreign affairs powers permit him to engage in purely foreign intelligence gathering. In other words, even without congressional authorization, the President has the constitutional authority to authorize agencies like the CIA or the National Security Agency to monitor foreign telephone calls and other electronic communications.

(2) The Fourth Amendment almost certainly does not constrain Presidential wiretapping abroad and even wiretapping of cross-border wiretapping
The Fourth Amendment is the main constitutional protection against unreasonable governmental searches and seizures. The Fourth Amendment has not been applied strictly to border searches, even of U.S. citizens, so it seems unlikely that it would apply to cross-border wiretapping, even if one party is a U.S. citizen. The Supreme Court has also held that the Fourth Amendment does not apply completely to U.S. actions overseas, even if the evidence seized in violation of the Fourth Amendment is used in U.S. court.

(3) The Foreign Surveillance Intelligence Act is the only legal limitation on the President’s cross-border wiretapping program
There is only one serious criticism of the legality of the wiretapping program: that it violates the Foreign Surveillance Intelligence Act, a federal statute. Those critics have a very strong argument, as Seth and others have explained. The FSIA is a fairly comprehensive act and the Administration has already admitted that its program does not comply with the FSIA. The Administration’s defense is based on two arguments: (1) Congress has authorized the wiretapping program in its authorization of the use of military force; (2) The President has a fundamental Commander in Chief power to engage in cross-border signals intelligence.

Unlike Seth and other critics, I think these arguments are both relatively persuasive, although I admit that this is a close question and a court could easily find the President in the wrong here. But they could also go the other way. Here’s why:

(4) The Authorization for the Use of Military Force (AUMF) has been interpreted broadly by the Supreme Court and it is also phrased very broadly.

The Supreme Court’s decision in Hamdi v. Rumsfeld upheld the indefinite detention of a U.S. citizen on the basis of the September 11 AUMF. It relied on the AUMF’s broad language authorizing the President to take necessary and appropriate force against those responsible for the September 11 attacks, Al Qaeda, and their allies. This force included detention without probable cause or any rights other than a limited due process right to challenge their designation. The theory was that the AUMF authorized the President to exercise all fundamental powers incident to warfare in carrying out the resolution, and this included detention as an enemy combatant.

In my mind, it is hardly implausible that a President authorized to detain enemy combatants is also authorized to engage in cross border signals intelligence, which implicates far less serious individual liberty interests than detaining someone as an enemy combatant. Moreover, this power is far more likely to fall within the core of the President’s power as Commander in Chief.

Some have pointed to to 50 U.S.C. s 1811 , which limits Presidential surveillance of “foreign intelligence information” to a mere 15 days after a declaration of war. If the statute gives the President 15 days after a declaration of war, one might argue, than how could the AUMF give broader authorization??

(5) The AUMF might actually give broader powers to the President than a Declaration of War

As a structural matter, the AUMF is indistinguishable from a war declaration, with both requiring the assent of both houses of Congress. Moreover, as a textual matter, the AUMF does give the President more explicit authority (e.g. “necessary and proper”) than a typical declaration of war. So it does strike me that there is a plausible argument that the AUMF granted the President more authority than a typical declaration of war would have. In other words, the President gets what Justice O’Connor called the “fundamental incidents” of war but also gets the broad authority to combat those allied with the Sept 11 attacks.

o o o

Is there any limit to what I think the current AUMF authorizes? I think if the facts reveal the program was not really seeking to wiretap suspected terrorists linked to Sept. 11 or AlQaeda, then the program is more likely in violation of the statute. If, for instance, the President was wiretapping his political enemies, than that is a plain violation and probably an impeachable offense. But there is nothing like that even alleged so far.

The functional problem, though, is how to interpret and cabin the AUMF to keep it from being a blank check to the President. I agree this is a problem, although not an insurmountable one. Congress can obviously amend the AUMF or even withdraw it. It can amend the FISA to plainly prohibit the President’s activities here. I just don’t think Congress has spoken plainly here (whatever Tom Daschle says, btw, because after the fact statements by legislators are almost always irrelevant to interpreting a statute). The AUMF, as it is currently drafted and as it is currently interpreted, can and probably does provide legal authority for the president’s wiretapping program.

2 Responses

  1. A couple observations:

    1) As far as inherent executive power goes, this strikes me as quite similar to the Steel Seizure Case in terms of what the president is claiming. Unless you read FISA not to bar the spying in question, I’d say it’s a fairly express Congressional statement on the issue. That ought to put the spying in Jackson’s category 3 in terms of the degree of inherent power (i.e., at its weakest).

    2) While I’d want to root through some legislative history (if there is any), it still strikes me as a little implausible that the AUMF should be read to contain some sort of inherent override of the FISA statute. Maybe I’ve been spending too much time with principles of treaty interpretation, but it makes more sense to me to require that an explicit prohibition by congress only be undone by an equally explicit statute. It borders on ridiculous, in my opinion, to view the AUMF as the Congress saying “look, do whatever it takes, even if you have to break some federal laws.”

    3) Do you ever wonder why the administration didn’t just use the FISA court? I think that may be the most interesting aspect of the whole thing. I don’t buy the exigency arguments, since FISA gives you 72 hours after the search to get approval, and the FISA court rarely denies requests. So I have to wonder what it was they were doing that they didn’t want to have to use the FISA court. Anyway, curious.

  2. There are concerns that purely domestic communications were tapped. The White House has admitted the possibility.

    As for allegations there are concerns that the US may have been engaged in “data mining” that included searching out key words in emails and conversations, possibly domestic and possibly of millions of people.,0,1480152,full.story?coll=la-home-headlines

    This would explain a reluctance to use the existing system since it would not provide warrants for mass domestic searches of this type.

    It would also explain the president’s claim that the revelations did endanger national security since if practiced domestically (it’s being suspected of being practiced internationally for well over a decade) it does include techniques that informed terrorists who believed we followed our laws (however they are a paranoid lot) might not have adjusted their communications for.

    The existing system did have a theoretically efficient method for tapping individuals which an officer could implement immediately with 72 hours to get a warrant.

    So new new information on basic process (spot suspect, start spying) would cahnge if this was done without warrant. However if mass scanning was done the situation does change.

    If in fact the case this may have led to the archiving of billions, perhaps trillions of phone calls, emails and other electronic communications since they might be useful data bases to be “mined” as new information is uncovered.

    I would suspect that if such archives exist and include data from adult web sites (with theoretically traceble ISP numbers) that the president will be in very deep trouble.

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