More on NSA Surveillance

bush2a.jpgThere are some recent blog posts and news stories worth reading about the NSA surveillance scandal.

Orin Kerr at the VC has a new post examining the argument that Article II of the Constitution grants the President the “inherent authority” to conduct warrantless surveillance in violation of the Foreign Intelligence Surveillance Act. He concludes:

I don’t think there is much doubt as to what the Supreme Court would do with the Article II argument. I think you would probably get an 8-1 vote against an expansive reading of Article II powers, and it’s really hard to see where the Administration could get 5 votes for the claim. That’s my ballpark guess, at least.

In particular, Kerr examines nine words in an opinion by the FISA Court of Review, In re Sealed Case, that many cite as support for the Article II argument. Kerr observes:

As for the 9 words of dicta from In re Sealed Case — “FISA could not encroach on the president’s constitutional power” — I find it hard to know what to make of it. In that case, the government was arguing that the statutory warrant requirement of FISA made monitoring pursuant to that requirement constitutionally reasonable. Was the court claiming that Congress could not impose a warrant requirement where a warrant would not required under the Fourth Amendment? That would reverse the usual role of the Fourth Amendment: it would transform the Fourth Amendment from a floor on privacy protections into a ceiling. Or is the Court merely saying that if FISA were repealed, the President’s constitutional power from pre-FISA days would still exist? I’m not entirely sure, and unfortunately the opinion doesn’t carefully explain it. If this phrase stands for the view that Article II powers trump FISA’s restrictions, then I would certainly want more authority than that; Congress thought it was binding the executive when it passed FISA, and it would be news justifying more than 9 words of dicta if this weren’t the case.

For wonks who are interested in more details, Kerr’s lengthy post is worth reading in its entirety.

I.M. Kierkegaard is maintaining a very good repository of links about the NSA surveillance story — and the links are being regularly updated.

Marty Lederman has another good post on the NSA surveillance. Lederman responds to an essay in the Weekly Standard by Gary Schmitt of AEI (former executive director of the President’s Foreign Intelligence Advisory Board). Schmitt argues that the President violated FISA because the law was too restrictive and the national security needs were paramount. Lederman writes:

Just to be clear: Schmitt is accusing the President of authorizing criminal conduct, of failing to abide by his constitutional obligation to “faithfully execute the laws.” No doubt the President, like Schmitt, thinks those laws are inadvisable, and damaging to our national security interests. But is that a sufficient excuse?

There’s a certain irony here, in that FISA itself is one of those rare statutes that expressly contemplates that the rules for Executive conduct might need to be altered during wartime. The statute provides that “[n]otwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress.” 50 U.S.C. 1811.

Why does the statute permit warrantless surveillance for only the first 15 days of a war? After all, the need for intelligence ordinarily will be just as great throughout the war, not only during its first 15 days. The answer is that 15 days was deemed sufficient to give the President the opportunity to ask Congress for a statutory amendment. As the Conference Report explained: “The Conferees intend that this [fifteen-day] period will allow time for consideration of any amendment to this act that may be appropriate during a wartime emergency. The conferees expect that such amendment would be reported with recommendations within 7 days and that each House would vote on the amendment within 7 days thereafter.” H.R. Conf. Rep. No. 95-1720, at 34 (1978).

The Bush Administration could have, but did not, take advantage of the 15-day window for legislative change that Congress specifically inserted in FISA (perhaps because it was informed that an amendment to allow this sort of data-mining would have been a political nonstarter). Instead, it simply decided to violate the law. Isn’t that choice to bypass the democratic process a bit disconcerting, even if (like Gary Schmitt) one thinks the law was a lousy idea to begin with?

The New York Times reports that the President’s surveillance program may be more extensive than has previously been thought:

Members of the Judiciary Committee have already indicated that they intend to conduct oversight hearings into the president’s legal authority to order domestic eavesdropping on terrorist suspects without a warrant.

But Congressional officials said Saturday that they would probably seek to expand the review to include the disclosure that the security agency, using its access to giant phone “switches,” had also traced and analyzed phone and Internet traffic in much larger volumes than what the Bush administration had acknowledged.

“We want to look at the entire program, an in-depth review, and this new data-mining issue is certainly a part of the whole picture,” said a Republican Congressional aide, who asked not to be identified because no decisions had been made on how hearings might be structured.

Current and former government officials say that the security agency, as part of its domestic surveillance program, has gained the cooperation of some of the country’s biggest telecommunications companies to obtain access to large volumes of international phone and Internet traffic flowing in and out of the United States.

The DOJ has launched a probe into the leaking of the NSA surveillance program to the New York Times.

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3 Responses

  1. John Armstrong says:

    Maybe this is a point that a lay reader such as myself misses in the rush, but what fetters does the administration accept on executive power? If the answer is “none”, or even “none as pertain to ‘wartime'”, then the whole business reeks of effective monarchy to my nose. I’m desparately hoping that I’ve managed to pick up a skewed viewpoint, since we’ve already had enough trouble with one King George in our history.

  2. MJ says:

    With all due respect to you, we’re not simply talking about “the 9 words of dicta from In re Sealed Case.” Here’s the relevant section of the opinion:

    “The Truong court, AS DID ALL THE OTHER COURTS TO HAVE DECIDED THIS ISSUE, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. 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.”

    In re Sealed Case, 310 F.3d 717, 742 (Foreign Int. Surv. Ct. Rev. 2002) (per curiam)

    So we’re not talking about just the FISA Court for the 4th Circuit, but also the recognization of the President’s inherent authority by the 5th, 3rd, and 9th Circuits as well. Even these decisions don’t exist in a vacuum, as the Supreme Court specifically left the question open in the 1972 Keith case, stating “The instant case requires no judgment on the scope of the president’s surveillance power with respect to the activities of foreign powers, within or without this country.”

    Still further, you have the AUMF which, in Hamdi, five justices agreed that the AUMF clearly authorizes the fundamental incidents of waging war – which can certainly be argued to include intercepting communications. A 2nd-year law student could argue that given the AUMF the President’s “authority is at its maximum” under Justice Jackson’s concurrence in Youngstown Sheet & Tube.

    Not knowing more about how the program actually works, it is a fool’s errand to predict how the Court might vote on such an issue. But I haven’t seen anyone point to any LEGAL AUTHORITY that conclusively contradicts the legal arguments that the White House is making.

    To say the argument boils down to nine words is like saying the Fourth Amendment is just about traffic stops – that’s only one piece of the puzzle.

  3. Orin Kerr says:


    You’re confusing two different arguments, I believe. The 9 words are the only authority for the view that Article II trumps FISA; the other circuits were interpreting the Fourth Amendment warrant requirement, not Article II.

    Anyway, I’ve blogged at length about this over at