Congressional Research Service on NSA Wiretaps

The Congressional Research Service has released a report, “Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information” on the recent NSA surveillance issue:

Recent media revelations that the President authorized the National Security Agency (NSA) to collect signals intelligence from communications involving U.S. persons within the United States, without obtaining a warrant or court order, raise numerous questions regarding the President’s authority to order warrantless electronic surveillance.

The Washington Post has offered its own conclusions in “Report Rebuts Bush on Spying”:

A report by Congress's research arm concluded yesterday that the administration's justification for the warrantless eavesdropping authorized by President Bush conflicts with existing law and hinges on weak legal arguments.

But Powerline's John has indicated we should actually read the doggone thing:

The Post's coverage of the CRS report is deeply misleading.

I love such a simple disagreement, so let's take a look! The report has a ton of background information and the following conclusion:

Whether an NSA activity is permissible under the Fourth Amendment and the statutory scheme outlined above is impossible to determine without an understanding of the specific facts involved and the nature of the President’s authorization, which are for the most part classified. If the NSA operations at issue are encompassed in the definition of “electronic surveillance” set forth under FISA, it would seem consistent with Congress’s intent that such surveillance must be carried out in accordance with FISA procedures. Although section 109(a) of FISA does not explicitly limit the language “as authorized by statute” to refer only to Title III and to FISA, the legislative history suggests that such a result was intended. The exceptions to the criminal prohibition under Title III, however, are specifically limited to those mentioned within Title III. Even if the AUMF is read to provide the statutory authorization necessary to avoid criminal culpability under FISA, it does not necessarily follow that the AUMF provides a substitute authority under FISA to satisfy the more specific language in Title III. To the extent that any of the electronic surveillance at issue may be outside the sweep of FISA or Title III, Congress does not appear to have legislated specifically on the subject, nor, by the absence of legislation, to have authorized or acquiesced in such surveillance.

We start with a mixed bag. We're not sure what the issue is, and as a result we have to look in a variety of areas. The last sentence leads to a discussion on whether not Congress can limit Presidental authority by statute.

Whether such electronic surveillances are contemplated by the term “all necessary and appropriate force” as authorized by the AUMF turns on whether they are, under the Hamdi analysis, an essential element of waging war. Even assuming that the President’s role as Commander in Chief of the Armed Forces is implicated in the field of electronic surveillance for the collection of foreign intelligence information within the United States, it should not be accepted as a foregone conclusion that Congress has no role to play. By including the emergency authorization for electronic surveillance without a court order for fifteen days following a declaration of war, Congress seems clearly to have contemplated that FISA would continue to operate during war although such conditions might necessitate amendments. Amendments to FISA in the USA PATRIOT Act and subsequent legislation further demonstrate Congress’s willingness to make adjustments. The history of Congress’s active involvement in regulating electronic surveillance within the United States leaves little room for arguing that Congress has accepted by acquiescence the NSA operations here at issue.

It's patently obvious that electronic surveillance is essential to conducting a war. All it takes is a simple understanding of the effect of Enigma intercepts on the conduct of World War II to illustrate that, let alone the millions of other examples. The leap here is that because we are at war with terrorist organizations that seek to undermine the US, its democracy, and its interests, we need to conduct such intelligence operations whenever and wherever the terrorists operate. Sophisticated intelligence gathering is required to combat an enemy that uses the civilian population as concealment and as a target, but I'm not the one writing this report.

To the extent that the Administration seems to base its interpretation of the AUMF and FISA on the assumption that a reading contrary to the one they rely upon would be an unconstitutional violation of separation-of-powers principles, it appears to regard the matter as deserving the highest level of deference under Youngstown’s first category simply by virtue of the assumption that it would survive scrutiny under the third category. To conclude that Congress’s enactments are unconstitutional and therefore could not reflect Congress’s intent seems to beg the question.

Legal trick denied, sorry. Use of a legal trick undermines the entire argument as well. I do not put a lot of weight on this argument or it's counter. They are side issues.

Court cases evaluating the legality of warrantless wiretaps for foreign intelligence purposes provide some support for the assertion that the President possesses inherent authority to conduct such surveillance. The Court of Review, the only appellate court to have addressed the issue since the passage of FISA, “took for granted” that the President has inherent authority to conduct foreign intelligence electronic surveillance under his Article II powers, stating that, “assuming that was so, FISA could not encroach on that authority.” However, much of the other lower courts’ discussions of inherent presidential authority occurred prior to the enactment of FISA, and no court has ruled on the question of Congress’s authority to regulate the collection of foreign intelligence information.

An appellate court (the FISA Court of Review!) takes the President's authority for granted and doesn't think FISA limits it in this area, but other courts are silent on the issue. Score one for precedent for the President.

From the foregoing analysis, it appears unlikely that a court would hold that Congress has expressly or impliedly authorized the NSA electronic surveillance operations here under discussion, and it would likewise appear that, to the extent that those surveillances fall within the definition of “electronic surveillance” within the meaning of FISA or any activity regulated under Title III, Congress intended to cover the entire field with these statutes. To the extent that the NSA activity is not permitted by some reading of Title III or FISA, it may represent an exercise of presidential power at its lowest ebb, in which case exclusive presidential control is sustainable only by “disabling Congress from acting upon the subject.” While courts have generally accepted that the President has the power to conduct domestic electronic surveillance within the United States inside the constraints of the Fourth Amendment, no court has held squarely that the Constitution disables the Congress from endeavoring to set limits on that power. To the contrary, the Supreme Court has stated that Congress does indeed have power to regulate domestic surveillance, and has not ruled on the extent to which Congress can act with respect to electronic surveillance to collect foreign intelligence information. Given such uncertainty, the Administration’s legal justification, as presented in the summary analysis from the Office of Legislative Affairs, does not seem to be as well-grounded as the tenor of that letter suggests.

So, Congress did not authorize the intercepts, domestic intercepts are indeed regulated, so it all depends on the nature of the intercepts. On the court side, there is a little evidence for the Administration's interpretation but definitely a danger that once the nature of the intercepts is determined, of the justification being tenuous.

Looking at the report, I have to say that the Washington Post has pretty much done a hack-job here by cherry-picking the parts of the conclusion it likes. John at Powerline is right in that actually reading the CRS report brings us to a different conclusion than “Report Rebuts Bush on Spying.”

In fact, John points out a set of court precedents that support the power of the President to conduct warrantless surveillance on foreign powers:

The critical issue, as I have argued repeatedly, is the President's inherent power under Article II of the Constitution to take military actions appropriate to protect the nation's security. That inherent power has been recognized again and again by the federal courts. In at least five appellate decisions, as I noted here, the federal courts have specifically held that the President has the inherent constitutional power to order warrantless intercepts to gain foreign intelligence information (which is defined to include information on terrorism).

I'm still siding with the President on this one, and certainly not with the cherry-picking of the Washington Post.

Update: I went a little crazy with my highlighting, so I've backed it off and added to my discussion slightly as to why I highlighted what I did.

Josh Poulson

Posted Saturday, Jan 7 2006 11:06 AM

Adjacent entries


« Terrorists In Italy Arrested Due To Wiretap Evidence
Carnival of Cordite #42 »





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There is one comment on this entry.


I have to agree with you, I haven't heard anything as of yet that would make me believe that President Bush over stepped his authority.


Posted Sunday, Jan 8 2006 12:48 PM

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