Prominent U.S. Law Scholars Reject Legality of NSA Spying

A group of prominent law scholars and attorneys has issued a letter rejecting the U.S. government’s legal justification for the NSA spying program (the legality of which Professor Weinberger and I debated here and here). This is not your typical letter by the liberal law professoriate (although the usual suspects like Harold Koh, Laurence Tribe and Kathleen Sullivan appear). The list of those signing also includes Richard Epstein, the famously libertarian U. Chicago law scholar and Curtis Bradley, a leading centrist Duke U. international law professor.

The letter critiques the Department of Justice’s legal justifications for the NSA wiretapping program, in particular, the U.S. government’s reliance on the Sept. 11 Resolution authorizing military force, to circumvent or avoid the restrictions created by the Foreign Intelligence Surveillance Act (FISA). Of course it is well-crafted, reasonable, and persuasive. It takes a couple of unnecessary shots at John Yoo, I think, but it is still very sensible in focusing on the statutory rather than constitutional arguments. But while I am halfway persuaded, I do wonder if the law prof letter relies too heavily on a FISA provisions limiting wiretaps to 15 days after the declaration of war.

Here is the key graf:

[E]ven where Congress has declared war—a more formal step than an authorization such as the AUMF—the law limits warrantless wiretapping to the first fifteen days of the conflict. Congress explained that if the President needed further warrantless surveillance during wartime, the fifteen days would be sufficient for Congress to consider and enact further authorization. [footnote omitted] Rather than follow this course, the President acted unilaterally and secretly in contravention of FISA’s terms. The DOJ letter remarkably does not even mention FISA’s fifteen-day war provision, which directly refutes the President’s asserted “implied” authority.

As I’ve argued earlier, it is not entirely obvious to me that an authorization for the use of military force (the “AUMF”) must be understood as transferring less authority to the executive branch than a declaration of war. The AUMF could easily be read (certainly this AUMF) to authorize very broad activities by the executive branch in that in some cases exceed the powers it could exercise in a declared war against another government. The nature of the conflict with Al Qaeda (relying heavily on intelligence to identify the location of the enemy, which does not operate consistently in another state) seems to call for just such a reading.

If I’m right (a very big “if” given the intellectual firepower on the other side of this question), then the “declaration of war” provision of FISA is not quite the silver bullet the law profs suggest it is. Of course, they still have a very strong case, but I’m not sure it’s a winner.