Domestic Surveillance Investigation—Canceled

The NSA, it seems, cannot be investigated. Approximately 13 days ago, the Department of Justice dropped its investigation into the conduct of “department lawyers who approved the National Security Agency’s domestic surveillance program” because investigators “were denied security clearances.”^[1] Today, it has been announced that the FCC “will not pursue complaints about [the NSA’s] access to millions of telephone records because it cannot obtain classified material.”^[2]

In a letter to Representative Edward Markey (D-Mass.), FCC Chairman Kevin Martin said that the “classified nature of the NSA’s activities makes us unable to investigate the alleged violations.”^[3] In response, Rep. Markey stated that “We can’t have a situation where the FCC, charged with enforcing the law, won’t even begin an investigation of apparent violations of the law because it predicts the administration will roadblock any investigations citing national security.”^[4] Because a probe of the NSA would yield access to “highly sensitive classified information,” Chairman Martin said, an investigation cannot be conducted by the FCC because the “commission has no power to order the production of classified information.”^[5] Furthermore, he says that the National Security Act of 1959 prevents the disclosure of the NSA’s activities.^[6]

On May 16, a separate FCC Commissioner, Michael J. Copps, said that the FCC “should open an investigation” into the alleged NSA activities.^[7]

Under 47 U.S.C. § 154(i), the FCC is granted with the power to “perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with this Act, as may be necessary in the execution of its functions.” While that provision sounds quite expansive, the FCC has found its powers hampered by courts in the past, such as when a regulation requiring video descriptions was ruled an overstepping of its power,^[8] or, more recently, the FCC’s attempt to require broadband providers give access to law enforcement authorities.

Under 50 U.S.C. §§ 435 et seq., however, both the DOJ and the FCC could receive security clearance if the President so desired.

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[1] Scott Shane, With Access Denied, Justice Department Drops Investigation, NY Times, May 11, 2006.
[2] Jeremy Pelofsky, FCC Won’t Probe NSA Call Program, Reuters, May 23, 2006.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] FCC Official Calls for Probe of Phone Companies Helping NSA, USA Today, May 16, 2006.
[8] See MPAA v. FCC, 309 F. 3d 796 (D.C. Cir. 2002).