Frameshop: President Bush’s NSA Domestic Wiretapping Program

The Administration and Congressional Republicans are thwarting legitimate Congressional inquiry into the President’s domestic NSA program. This abuse of power should be a major issue in the 2006 season. I don’t hear candidates talking about often enough. This is potentially THE issue of 2006. When I do hear them talking about it, I very seldom recognize a genuine understanding of the issue and the values at stake. Toward improving the tone of the debate, I wrote a little memo combining accurate statements on the legal issues and an appropriate framing of the issue. I’m very interested in feedback.

Summary:
The Administration’s legal justifications for the program are implausible. The complete lack of information forthcoming about the actual conduct of investigations, the identity of citizens affected by the surveillance, or scope of the program makes impossible any responsible conclusion about the legality or illegality of the program. The Congress must fully investigate the program before legislating or making any other recommendation or finding about the program. Such a constitutionally responsible investigation is being blocked by the Administration and by the Republican Party in Congress.

Talking Points:
•    “Congress has a duty to investigate violations of American citizens’ 4th Amendment Rights. But this Administration and the Republican Party in Congress are blocking the constitutional process for partisan advantage.”

•     “This Administration claims the power to violate the 4th Amend and insists that no one – not the Congress, not the Courts, not the people – can stop them.”

•    “Republicans in Congress won’t stand up to this Administration even to protect the Constitutional rights of American citizens.”

•    “The Administration created a constitutional crisis by claiming the right to ignore the law and the doing everything they could to keep it quiet.”

•    “A responsible determination of the legal issues isn’t possible until we have the facts, and the Republicans in Congress and this Administration are blocking any inquiry into the facts.”

•    “This Administration is throwing legal sand in the faces of the American people and Congress rather than explain how this program works and why it’s needed.”

•    Stopping terrorists is everyone’s interest, but it doesn’t override our Constitution and the rule of law.”

The solution to the Constitutional crisis the President has created by ignoring the law lies in:

1. Congress using its full subpoena power to investigate thoroughly the factual issues to determine,
2. the Administration’s genuine need to use the methods selected to obtain the information instead of using FISA to obtain the information (especially given 72 hour retroactivity),
3. the intelligence value of the information actually obtained versus the intrusion imposed upon the public.

Issue One: Is the Foreign Intelligence Surveillance Act of 1978 (FISA)
the sole constitutional means for conducting domestic electronic surveillance?

Congress intended FISA to be the exclusive means by which electronic
surveillance may be conducted in the United States. Despite any
inherent power of the President to authorize surveillance of purely
foreign communications, FISA is the exclusive means for authorizing
electronic surveillance originating or terminating in the United
States. The Administration’s legal claim of untrammeled constitutional
authority to wiretap necessarily questions the constitutionality of
FISA. FISA has been tested for Constitutionality repeatedly, and
amended in 2001 at the specific request of this Administration. It is
disingenuous of this Administration to rely on FISA, use FISA, amend
FISA, and only imply FISA is unconstitutional when they are caught
breaking FISA.

Issue Two: Does the 2001 Authorization to Use Military Force (AUMF)
implicitly authorize the President to conduct warrantless electronic
surveillance in the United States?

The exclusivity of FISA as the sole means by which electronic
surveillance may be conducted inside the United States can only be
overridden only by an explicit grant of authority under another
statute. The AUMF contains no such explicit provision.

The Administration claims that conducting signals intelligence upon an
enemy, even if within the United States, is a customary and historical
supplement to the use of force. The Administration draws examples from
military history prior to passage of FISA; such comparisons are thus
irrelevant.

The PATRIOT Act was under consideration by Congress at the time AUMF
was passed, and it contained provisions that explicitly amended FISA.
FISA itself contains a provision providing a fifteen-day exception to
certain requirements following declaration of war. Given these facts,
reading AUMF as an implicit and permanent revision of FISA’s
requirements strains credulity.

Issue Three: Did the actions the Administration took to inform Congress conform to the law?

The National Security Act specifically requires that the Director
of National Intelligence and the heads of intelligence agencies "keep
the Intelligence Committees fully and currently informed of all
intelligence activities" and "furnish [them] any information or
material concerning intelligence activities, other than covert actions"
that is within their control.

The National Security Act was violated by the Administration when,
instead of informing the full intelligence committees, they instead
only informed the so-called “Gang of Eight.” The "Gang of Eight" rule
that allows the President to limit notification of "covert actions" to
eight senior members of Congress specifically excludes
intelligence-gathering activities from the definition of "covert
action." Thus, despite the Administration’s claim that it has "briefed"
Congress, its limited briefings to the Gang of Eight were not an
adequate substitute for the statutorily mandated congressional
oversight.

Issue Four: If AUMF or FISA do not authorize the NSA domestic surveillance, is the program unconstitutional?

This President claims broad Constitutional authority stemming from his
powers as Commander and Chief to conduct the NSA domestic surveillance.
He is claiming that the Constitution grants him authority to ignore the
Constitution (the 4th Amendment) and valid Acts of Congress (FISA).

The main Constitutional issue is what degree of power the President
retains to order domestic electronic surveillance without probable
cause showing the subject is an agent of a foreign power or terrorist
organization (i.e. without a warrant from the FISA court) despite
Congressional intent and effort to restrict such power? Presidential
powers are not fixed, but fluctuate depending upon their conjunction or
disjunction from Congress. The President’s power, set obstinately
against the expressed will of Congress, is certainly at it’s lowest ebb.

We know very few facts about the program by which to judge its legality
or constitutionality. Congressional investigation is really the best
and primary means for determining if the program is legal, although the
issue might also be tested in the courts if parties are able to obtain
standing to challenge the program. It is best for national security and
informed policy-making if Congress accepts its responsibility and fully
investigates the program. The Republican Party seems determined to
prevent Congress from accepting its proper constitutional role in this
crisis.