BOTTOM-LINE: BUSH AUTHORIZATION OF NSA INTERCEPTS IS LEGAL AND CONSTITUTIONAL

(1) JOHN SCHMIDT (John Schmidt served under President Clinton from 1994 to 1997 as the associate attorney general of the United States):

President Bush's post- Sept. 11, 2001, authorization to the National Security Agency to carry out electronic surveillance into private phone calls and e-mails is consistent with court decisions and with the positions of the Justice Department under prior presidents.

The president authorized the NSA program in response to the 9/11 terrorist attacks on America. An identifiable group, Al Qaeda, was responsible and believed to be planning future attacks in the United States. Electronic surveillance of communications to or from those who might plausibly be members of or in contact with Al Qaeda was probably the only means of obtaining information about what its members were planning next. [...]

In the Supreme Court's 1972 Keith decision holding that the president does not have inherent authority to order wiretapping without warrants to combat domestic threats, the court said explicitly that it was not questioning the president's authority to take such action in response to threats from abroad.

Four federal courts of appeal subsequently faced the issue squarely and held that the president has inherent authority to authorize wiretapping for foreign intelligence purposes without judicial warrant.

In the most recent judicial statement on the issue, the Foreign Intelligence Surveillance Court of Review, composed of three federal appellate court judges, said in 2002 that "All the ... courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence ... We take for granted that the president does have that authority."

The passage of the Foreign Intelligence Surveillance Act in 1978 did not alter the constitutional situation. [...] But as the 2002 Court of Review noted, if the president has inherent authority to conduct warrantless searches, "FISA could not encroach on the president's constitutional power."

Every president since FISA's passage has asserted that he retained inherent power to go beyond the act's terms. Under President Clinton, deputy Atty. Gen. Jamie Gorelick testified that "the Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes."

FISA contains a provision making it illegal to "engage in electronic surveillance under color of law except as authorized by statute." The term "electronic surveillance" is defined to exclude interception outside the U.S., as done by the NSA, unless there is interception of a communication "sent by or intended to be received by a particular, known United States person" (a U.S. citizen or permanent resident) and the communication is intercepted by "intentionally targeting that United States person." [...]

The administration has offered the further defense that FISA's reference to surveillance "authorized by statute" is satisfied by congressional passage of the post-Sept. 11 resolution giving the president authority to "use all necessary and appropriate force" to prevent those responsible for Sept. 11 from carrying out further attacks.

The administration argues that obtaining intelligence is a necessary and expected component of any military or other use of force to prevent enemy action. But even if the NSA activity is "electronic surveillance" and the Sept. 11 resolution is not "statutory authorization" within the meaning of FISA, the act still cannot, in the words of the 2002 Court of Review decision, "encroach upon the president's constitutional power."

(2) THE FISA COURT ITSELF HAS PREVIOUSLY RULED THAT THE PRESIDENT HAS THE RIGHT TO DO WHAT BUSH DID: November 2002 decision of the United States Foreign Intelligence Surveillance Court of Review, in Sealed Case No. 02-001:

"The Truong court [United States v. Truong Dinh Hung, 4th Cir. 1980], as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. *** We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power."

(3) AL QAEDA AND ITS AFFILIATES HAVE BEEN DEEMED AN ENEMY FOREIGN POWER WHICH WE ARE AT WAR WITH, BOTH BY CONGRESS (IN THE AUMF) AND BY THE FEDERAL COURTS:

(3a) Cass Sunstein, liberal law professor at University of Chicago Law School:

The discussion of wiretapping by the President, without court approval, raises a number of important and interesting legal issues. According to CNN, Attorney General Gonzales recently said, "There were many people, many lawyers within the administration who advised the president that he had an inherent authority as commander in chief under the Constitution to engage in" this kind of "signal intelligence of our enemy." The Attorney General added, "We also believe that the authorization to use force, which was passed by the Congress in the days following the attacks of September 11, constituted additional authorization for the president to engage in this kind of signal intelligence."

I want to suggest here that this last statement is more plausible than it might seem at first glance. If the statement is indeed correct, some legal questions certainly remain, but at least we will have made progress.

The authorization for the use of military force (AUMF) says, "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." This authorization clearly supported the war in Afghanistan.

It also clearly justifies the use of force against Al Qaeda.

In the Hamdi case, the Supreme Court added that the AUMF authorizes the detention of enemy combatants -- notwithstanding 18 USC 4001(a), which requires an Act of Congress to support executive detention. In the Court's view, the AUMF stands as the relevant Act of Congress, authorizing detention.

It is therefore reasonable to say that the AUMF, by authorizing the use of "all necessary and appropriate force," also authorizes surveillance of those associated with Al Qaeda or any other organizations that "planned, authorized, committed, or aided the terrorist attacks" of September 11. The reason is that surveillance, including wiretapping, is reasonably believed to be an incident of the use of force. It standardly occurs during war.

If the President's wiretapping has been limited to those reasonably believed to be associated with Al Qaeda and its affiliates -- as indeed he has said -- then the Attorney General's argument is entirely plausible. (The AUMF would not permit wiretapping of those without any connection to nations, organizations, and persons associated with the September 11 attacks.)

(3b) According to this US Federal District Court decision (in a 1997 case, which was never appealed or ruled on by the SCOTUS, and is essentially operative today). Here's a direct quote from the court's decision:

"AL QAEDA IS PROPERLY A FOREIGN POWER AS DEFINED BY US CODE 1801 (a)-(b)". [See page 6, paragraph 4 - (or section C#1).]"

(4) Both Carter and Clinton exercised the same authority against US CITIZENS:

(4a) Bill Clinton issued Executive Order 12949 in early 1995 authorizing “the Attorney General … to approve applications … to obtain orders for physical searches for the purpose of collecting foreign intelligence information.”

(4b) In 1979, Jimmy Carter issued Executive Order 12139 which gave the Attorney General authorization “to approve electronic surveillance to acquire foreign intelligence information without a court order.”

Clinton authorized the PHYSICAL search and seizure of the property of a US CITIZEN (who was an agent of a foreign power). This was certainly MORE invasive than NSA intercepts which Bush ordered.

(5) SCOTUS held - in the 1972 KEITH decision (or see another link HERE) - that the president does not have inherent authority to order wiretapping without warrants to combat domestic threats, but the court said explicitly that it was not questioning the president’s authority to take such action in response to threats from abroad. (This point reiterates a point from Schmidt, above - offered again here - as #5 - with direct hyperlinks to the decision. HINT: SEE section IV of the decision.)

CONCLUSION: US PERSONS, AND EVEN USA CITIZENS, WHO ARE FOREIGN AGENTS OF A FOREIGN POWER WE ARE AT WAR WITH CAN BE LEGALLY AND CONSTITUTIONALLY SEARCHED AND SURVEILLED WITHOUT A COURT ORDER IF THE SEARCH AND SURVEILLANCE IS ORDERED BY THE POTUS.

I repeat: This is a simple, SLAM DUNK case (I have cited: the SCOTUS; the FISA Court; the federal district court; a Clinton USA associate AG; a liberal law school professor from a major law school; and two Democrat presidents). The executive order Bush signed authorizing the NSA intercepts - even if they involved US persons - was legal and constitutional because it was intended to gather intelligence about the enemy, a foreign power and its agents, during war-time. All presidents have that authority.