Over at Volokh, Orin Kerr has an excellent (and long and detailed) post about the debate over the legality of the NSA intercepts between a foreign site and a site within the U.S. He concludes that, while the law is unsettled and there is a lot we don't know about what the NSA was doing, the intercepts probably weren't a violation of the Constitution, but probably were a violation of FISA. Me, I think it depends on precisely what the government was doing whether there was a FISA violation.
First off, 50 U.S.C. 1809 makes it illegal to engage in "electronic surveillance" except as allowed by statute:
(a) Prohibited activities
A person is guilty of an offense if he intentionally—
(1) engages in electronic surveillance under color of law except as authorized by statute; or
(2) discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by statute.
In other words, under the portions of the statute quoted (which I think are all that are potentially relevant, trust me or see for yourself), there are one of three things that you have to be doing for this law to apply. (1) is if you intercept a communication by targeting a person who is legally in the U.S. (2) is if you intercept a communication of a person legally in the U.S. from within the U.S.. And (3) is if you intercept a communication (from where-ever) with both the sender and recipient being legally in the U.S.(f) “Electronic surveillance” means—
(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person . . . ;
(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States . . . ;
(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or . . .
Now, as I stated earlier, there is a lot that we don't know about this program. But I would suppose that the most likely situation where this comes up is like the pre-911 incident related in the LA Times, where NSA is targeting a suspected Al Qaeda site overseas, and intercepts a communication from that site to someone in the U.S. As I read the statute, assuming that the intercept is done off-shore (which I would figure it would have to be), there isn't any "electronic surveillance" taking place, and so FISA just doesn't apply.
Now, if the target of the intercept shifts to someone legally in the U.S. (who isn't an agent of a foreign power), then FISA is implicated. However, I don't know if we are doing that without getting warrants. And even if we are, the President might still be legally able to conduct that surveillance without a warrant, given his inherent constitutional powers and the authority granted him by the Authorization for Use of Military Force. For that, you have to find someone who is (1) smarter than I am, or (2) has more free time (or some combination of the above, back to you, Professor Kerr).
One more point, to answer the many people who are asking why the NSA just doesn't remove all doubt over the legality of the intercepts by obtaining a warrant. As someone who has gotten a lot of wiretap orders (not for foreign intercepts, the old fashioned kind), let me say that the process is time consuming, very intensive and very laborious. Anyone who has not had to do this would simply not believe the amount of paperwork you have to generate. If warrants for intercepts between the U.S. and a foreign site were routinely required, someone sitting on a dirty phone in Yemen would, if that phone called a number in the U.S., have to think long and hard about what (legal and other) resources were available before making the decision to listen in.
At any rate, this is complicated stuff, the stakes are high, and there is a whole bunch we don't know. So those folks that assume that the President has just blithely gone ahead and violated the law probably haven't thought about it enough.
It's illegal for the president to order someone killed isn't it? But when we are at war, he can order someone killed as part of the war effort. What I don't understand is why keeping prisoners and tapping phones are supposedly more out of bounds than having someone killed.
Is there actually some legal reason for this? Are there special laws that say "this activity is not allowed even under the authority of war powers" or do people just think that that eavesdropping is naturally more serious than having someone killed so it has to be treated with special delicacy?
Posted by: Doc Rampage | December 21, 2005 at 02:50 PM
There are all sorts of distinctions, Doc. Certainly under the use of force authorization the President had the right to have Bagdad bombed, which was certain to kill some people. But he can't--for example--order you killed without breaking a lot of laws.
But I agree with your main point. We are at war with real bad guys, and this carping about how we are "maybe" violating the rights of terrorists who are dedicated to killing us by listening to their phone conversations denots a lack of seriousness.
Posted by: Roscoe | December 21, 2005 at 03:37 PM
Well, presumably Bush couldn't order me killed because that would not serve any justifiable war ends that could not be accomplished in a more gentle manner. But the president can order all kinds of things under the authority of his war powers that he wouldn't be allowed to do under normal law.
What I'd like to know is where this distinction between his other powers and the wire-tapping power comes from. I'd think that gathering intelligence in pursuit of the enemy was one of his war powers. Isn't it? And if it is, why would it be treated specially in terms of following the law? Are there specific laws that say the president can kill people in war but can't tap their phones? Where does the distinction come from?
Posted by: Doc Rampage | December 21, 2005 at 04:36 PM
Doc - I don't think the distinction is between Bush's various Article II powers, I think it is between where those powers are executed, and against whom. Getting back to the killing you analogy, he couldn't kill you without comporting with due process (you have a constitutional right not to be deprived of "life" without due process of law). But if you moved to Bagdad and joined Al Qaeda, Bush could order you killed without answering to anyone.
Exactly where the line between where Bush can execute his war powers and where he can't is currently located is a complicated issue that I haven't attempted to figure out (and many aspects of it really haven't been decided yet). But certainly Bush can legally take steps dealing with non citizens in foreign countries (especially during a state of war) that he can't legally take against citizens here at home.
As to where the distinction comes from, I think a lot of places, statute, the Constitution, history and just common sense. For example, in my post I talk about how FISA distinguishes between activities here and overseas. Some of the president's power over foreign relations and to make war are derived from Article II. But a lot of the distinction "just grew" from common sense. Executives of countries have always had the right to search incomming parcels, make war, and engage in spying, so everyone assumed our president could do that too. Later court decisions have largely gone along.
Posted by: Roscoe | December 22, 2005 at 09:36 AM