The ongoing controversy over the warrantless surveillance of Americans by the National Security Agency shows no signs of letting up.

Eric Berkowitz provides some background on the legal questions involved. If you have a pulse, you know that soon after the September 11 attacks, President Bush issued an executive order authorizing the National Security Agency to conduct warrantless eavesdropping on the overseas communications of Americans. The exposure of the spying program by the New York Times in December triggered a heated debate over the extent of the president’s (and, by extension, the executive branch’s) power to intrude on our privacy for national security purposes. The president and his attorneys argue that the surveillance is legal and necessary to prevent further terrorist attacks. The only illegality, they say, was the leak to the Times. The critics contend that existing law, especially the 1978 Foreign Intelligence Surveillance Act (FISA), prohibits such activities.

Meanwhile, the eavesdropping goes on unabated.

Today, the Senate Judiciary Committee opens hearings on the spying program. But because the Republican-controlled committee is a not a court, and thus will not actually make a binding decision, the hearings will probably not accomplish more than giving the players a chance to restate their positions.

This briefing paper assumes the reader is familiar with the broad outlines of the issue and will instead focus on the historical and legal context of the problem, starting with a timeline of pertinent events.

I. Timeline.

1791: Fourth Amendment adopted. The amendment guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” A key guarantee of that right is the requirement that a judge approve searches beforehand to determine that there is probable cause to believe a crime has been committed. Without a court-issued warrant or exigent citucmstances, the government is supposed to leave us alone.

1967: Supreme Court Weighs in. In Katz v. United States, the Supreme Court ruled that the Constitution guarantees that “wherever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures. No less than an individual in a business office, in a friend’s apartment, or in a taxicab, a person in a telephone booth may rely upon the protection of the Fourth Amendment.” Still, the court allows for an exception in cases “involving the national security,” noting that President Lyndon Johnson’s administration has claimed a special right in such instances to conduct wiretaps without a warrant. Katz remains the law to this day.

1974: House starts Impeachment Proceedings against Richard Nixon. The house issued articles of impeachment against Nixon, in part, for his role in ordering illegal wiretaps. He resigned before impeachment proceedings got underway.

1978: FISA passed. Soon after Nixon resigned, Sen. Frank Church chaired a committee that investigated CIA, FBI and NSA abuses. The committee learned of hundreds of warrantless wiretaps placed on antiwar and civil-rights leaders, such as Martin Luther King, Jr., as well as electronic surveillance of labor union leaders, student groups, newsmen and others. The outcry from those hearings led to the passage of FISA, Pub. L. 95-511, 92 Stat. 1783.

The stated purpose of FISA was to regulate the government’s collection of foreign intelligence while balancing civil liberties against the “vitally important” government purpose of safeguarding national security. It’s not an even balance. Among other things, FISA significantly weakened the traditional probable cause requirement for certain search warrants. Rather than requiring evidence of probable cause of criminal activity for a warrant to issue, FISA allows surveillance upon a showing of probable cause that the targets is a foreign power or, far more broadly, and “agent” of a foreign power. However, if the target is a “U.S. person,” the act requires that there be probable cause to believe that the target is engaging in a crime.

FISA also created the Foreign Intelligence Surveillance Court (FISC), composed of seven federal judges, to review applications for search warrants. The attorney general must sign all warrant applications. For U.S. persons, the FISC judge must find probable cause that one of four conditions has been met:

1. The target knowingly engages in clandestine intelligence activities on behalf of a foreign power which “may involve” a criminal law violation;
2. The target knowingly engages in other secret intelligence activities on behalf of a foreign power under the direction of an intelligence network and his activities involve or are about to involve criminal violations;
3. The target knowingly engages in sabotage or international terrorism or is preparing for such activities; or
4. The target knowingly aids or abets another who acts in one of the above ways.

Not so tough. Between 2000 and 2004, the FISC has denied just four out of 6,650 warrant requests. All requests in 2004 were granted. The act also permits warrantless surveillance, so long as warrant applications are submitted to the FISC within 72 hours. Unlike most court proceedings, FISC records are sealed and may not be revealed even to people who are being prosecuted based on evidence obtained under FISA warrants. There is no requirement that an intelligence agency certify that the surveillance was conducted according to the warrant.

October, 2001: Patriot Act Amends FISA. In the frenzy after 9/11, congress passed a package of laws commonly known as the USA Patriot Act, which substantially loosened FISA’s requirements for intelligence gathering. FISA originally required investigations to have foreign intelligence collection information as its “primary purpose.” The Patriot Act expanded FISA to include those situations where foreign intelligence gathering is merely “a significant” purpose of the investigation. “Significant” is not defined.

The Patriot Act also removed the FISA requirement that the government prove the surveillance target is “an agent of a foreign power” before getting an order allowing a “pen register/trap and trace” order. (A pen register collects the outgoing phone numbers placed from a specific telephone line, a trap and trace device captures the incoming numbers placed to a specific phone line.) The government can now obtain a pen register/trap and trace order “for any investigation to gather foreign intelligence information,” without any showing that the target is a foreign agent.

2002: Bush signed an executive order authorizing the NSA to intercept phone calls, faxes and Internet communications going to and from the United States without going through the FISA process. According to the ACLU, the interceptions have been “vast” and have included “wholesale datamining of domestic and international communications,” including purely domestic communications. On February 5, 2006, new reports said the surveillance has targeted about 5,000 people, and has covered hundreds of thousands of separate communications. That same day, a government official told Fox News that the “terrorist surveillance program” is targeted only to people suspected of ties to al Qaeda. A New York Times editorial reported on January 29 that the surveillance program’s biggest catch to date is a “crackpot who wanted to destroy the Brooklyn Bridge with a blowtorch.”

2002: Congress considers amending FISA to lower standards for issuing surveillance warrants. The administration opposed the legislation, saying no change was needed. At that at the time, the NSA was already using the lowered standard with regard to their wiretaps.

January, 2006: The ACLU and the Center for Constitutional Rights file lawsuits challenging the program.

February, 2006: Senate Judiciary Committee hearing begins.

II. Issues.

1. Whether congress authorized the warrantless surveillance when it issued its Authorization for the Use of Military Force (“AUMF”) on September 18, 2001. The AUMF is brief:

The President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

The administration claims this resolution implicitly allows the president to authorize the wiretapping, since the NSA program is an essential part of its effort to prevent future attacks. Dick Cheney has said the program has already “saved thousands of lives.”

This argument fails. It depends on a purportedly implied grant of wiretapping power which contradicts the specific restrictions on executive wiretapping authority set out in FISA. A critical aspect of FISA is congress’s statement that it is the “exclusive means by which electronic surveillance . . . may be conducted.” 18 USC 2511(2)(f). Specific and “carefully drawn” statutes prevail over general statutes where there is a conflict. Morales v. TWA, Inc., 504 U.S. 374, 384-85 (1992) (quoting International Paper Co. v. Ouelette, 479 U.S. 481, 494 (1987)).

2. Whether the president has the inherent wartime authority to order warrantless wiretaps. The Justice Department said that the president has “inherent authority” as commander-in-chief to do what is necessary to protect us during wartime, and to any measure to restrict that authority tampers with the constitutional balance of powers. This is another loser. During the Korean War, President Truman used the same argument when he tried to assume control of steel mills to prevent a strike. The Supreme Court rejected Truman’s argument that his exercise of power was required to prosecute the war effort. In a famous concurring opinion, Justice Jackson said that when the president acts in defiance of “the expressed or implied will of congress” his power is at its “lowest ebb.”

The Justice Department recently argued that the president also has the inherent power during wartime to ignore specific statutory prohibitions on torture. That position was later withdrawn.

3. Whether there is a presidential tradition of wiretapping that should be honored here. The president often invokes the actions of Presidents Wilson, Roosevelt and others to argue, in effect, “I can do it too!” The answer is he cannot. After the passage of FISA, with its specific proscriptions against warrantless wiretapping, this argument has been eliminated.

4. Whether FISA processes are too cumbersome. The Justice Department argued that “FISA could not have provided the speed and agility required” for an early warning detection system against terrorism. The senate hearings will flesh this out, but given Justice’s ability to obtain warrants after the fact, and its 99.9 percent win rate in the FISA court, the argument will probably not resonate.

As with most national security issues since 9/11, it is politics, not the fine points of legal precedent, that will determine what powers the executive branch can assume. If the president can continue to convince the country that the spying is focused on al Qaeda and is saving lives, few senators will be ready to do more than complain. The lawsuits will proceed to a judgment of some kind, but the ultimate decision will have to come from our newly reconstituted Supreme Court.

Partial List of Sources:

NPR Timeline
Electronic Privacy Information Center website,
“Bush Lets U.S. Spy on Callers Without Courts,” NYT, 12/16/05
USDOJ Letter to Senate Intelligence Committee, 12/22/07
“Bush’s Counsel Under Close Scrutiny,” Boston Globe, 12/27/05
“Words, Deeds on Spying Differed,” The Nation, 1/26/06
Article Re Cong. Research Service Report, Elaine Cassel, Findlaw, 1/12/06
“Spies, Lies and Wiretaps,” NYT, 1/29/06
“Hagel Urges Bush to Explain Wiretapping,” AP, 1/29/06
USDOJ Extended Legal Brief Re Wiretapping, 1/29/06, http://news.findlaw.com/hdocs/docs/nsa/dojnsa11906wp.pdf
“Letter to Congress,” NY Review of Books, 2/9/06
“Papers: Ford White House Weighed Wiretaps,” AP, 2/4/06
“Eavesdropping Targets on al Qaeda: US Official,” Reuters 2/5/06
“Deliberation Nation,” New York Times Magazine, 2/5/06
ACLU lawsuit