NSA Domestic Surveillance- An Update

In the latest development related to the National Security Agency’s warrantless domestic surveillance program (previously discussed here), the U.S. Department of Justice has issued a white paper on supposed legal authorities to conduct these activities. The white paper comes just two weeks after a Congressional Research Service (CRS) report concluded that the legal authorities under which the Administration claimed to operate –an expanded interpretation of the Authorization for the Use of Military Force (AUMF) and independent Commander-in-Chief authority –was not as well grounded as the President claims.^[1] Within the realm of national security law, a fundamental and basic framework universally applied for determining the scope of Presidential authority is one provided by Justice Jackson in a 1952 concurring opinion, the Steel Seizure case.^[2] According the tripartite framework, the President’s power is at its zenith when acting in congruence with Congressional will, at its lowest ebb when acting in contravention of Congressional will, and indeterminate when acting in the “twilight zone” absent a clear Congressional will. In the instant case, the President contends that his actions fall under the rubric of Jackson’s category 1, using the post-9/11 AUMF as express will relative to the conduct of the Global War on Terrorism. According to this reading, the President has the power to ignore the 1978 Foreign Intelligence Surveillance Act (FISA) because the 2001 AUMF was the latest in time, implying Presidential authority to use whatever means may be necessary to win the war –including domestic espionage activities. As can be expected, this interpretation is dangerous. Were a court to find that the 2001 AUMF overrides the 1978 FISA, its ramifications could have a profound impact on Executive Authority. In essence, the President would be bequeathed nearly unmitigated authority to override previous Congressional acts by reading into the AUMF tacit authorization. He would, in essence, be permitted to make nearly any antiterrorism action fall under Jackson’s category 1 by unilateral reinterpretation of the AUMF at whim or will.

Few in Congress, however, appear to agree with the President that the AUMF was measured to override previous laws, including FISA. Moreover, a court would be unlikely to hold that Congress would so recklessly defer its critical national security oversight authority to the President without doing so on an clearly stated and express basis. And thus, it is, the President’s actions seem to rest not in Jackson’s first, but his third category.

The subsequent question arises as to the extent to which the President can override FISA in his Commander-in-Chief capacity. As discussed previously, such inherent authority is unlikely when directed against Americans within the territorial confines of the nation.

In addition to Congressional hearings and two civil suits filed today, one on behalf of the ACLU and a large number of highly visible pundits and members of the media^[3] and the other on behalf of the Center for Constitutional Rights,^[4] there is a second interesting venue by which the NSA’s activities may be challenged. A number of federal criminal defense attorneys across the country are promising to claim that some classified information relevant to their cases may have been obtained unlawfully under the NSA program.^[5] In so doing, defense counsel may be able either to gain access to some details of the program using the Classified Information Procedures Act (CIPA), the legal instrument by which defendants are able to gain access to classified information for their defense. Once information is obtained, the defense may be able to argue that such information was unlawfully obtained, thereby both providing federal district court precedent against the NSA program and in turn seeking to exclude all such discovery. On the other hand, the government may refuse to disclose details about how it was obtained, using the among others section 1016 (Information Sharing) of the Intelligence Reform and Terrorism Prevention Act (IRTPA) of 2004, Executive Order 13,388, and a December 2005 memorandum from the President, to claim NSA state secrets authority to protect “sources and methods” critical to the national security. In such an event however, a judge may exclude such discovery and, if appropriate, dismiss the case altogether for failure by the government to sufficiently produce the requisite details necessary for a fair trial.

[1] Elizabeth Bazan and Jennifer Elsea, “Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information,” Congressional Research Service, January 5, 2006. Found here.
[2] Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1952), available here.
[3] American Civil Liberties Union, et al. v. National Security Agency, et al, found here.
[4] Center for Constitutional Rights, et al. v. George W. Bush, et al, found here.
[5] Eric Lichtblau and James Risen, “Terrorism defendants to challenge wiretaps,” New York Times, as published in the Houston Chronicle, December 28, 2005, found here.