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 The New York Times revealed in mid-December that for the past four years President Bush has repeatedly authorized the National Security Agency, a Defense Department intelligence agency, to conduct surveillance of domestic communications involving foreign contacts. Eventually, the Bush Administration admitted that the Times story is accurate. The President’s actions constitute an abuse of power and violate our Constitution and federal law.
The President attempted to justify his actions on three grounds:

1. his notification to a few select members of Congress;
2. Congress’ resolution authorizing him to make war on Iraq and Afghanistan; and
3. his constitutional authority as Commander-in-Chief to maintain national security.

Merely notifying a few members of Congress that the Administration intended to violate the law does not justify bypassing existing legislation. We can imagine how successful we would be in defending our clients if we tried to argue that “well, he told his friends he was going to do it. . .” In addition, the 2001 authorization to use force against the perpetrators of 9/11 did not give the President any express or implied power to order the NSA to eavesdrop domestically on citizens and intercept their private telephone conversations and e-mail.

Contrary to the White House’s assertions, neither Congress nor the Supreme Court has ever explicitly given the Executive Branch a green light to conduct domestic electronic eavesdropping without a warrant in “national security” matters. Indeed, the Supreme Court held over 30 years ago in U.S. v. U.S. District Court,¹ that domestic eavesdropping without prior judicial approval was not lawful as a reasonable exercise of the President’s power to protect the national security. As the Court concluded: “These Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillances may be conducted solely within the discretion of the Executive Branch.”² 

Six years after that decision, Congress enacted the Foreign Intelligence Surveillance Act (FISA) to give the government power to tap individuals domestically who were believed to be operating for foreign powers. FISA creates a system of oversight that prohibits even the President from acting without judicial approval. FISA also creates an at least implicit recognition that all domestic surveillance, even for foreign intelligence gathering, must be subject to some warrant requirement. FISA was a compromise between law enforcement/intelligence and civil libertarians, and was designed to define the parameters for intelligence surveillance in the United States. Ours is a system of checks and balances and in enacting FISA, Congress recognized the potential for abuses when the President acts on his own. FISA also allows for swift action — active wiretapping up to 72 hours — prior to a warrant application in the event of a genuine emergency. The tools are in place to protect our nation if a real and immediate threat exists and wiretapping is thought to be essential to combat that threat.

I am not endorsing the FISA procedures, which are secret and non-adversarial, and which we do not believe always meet constitutional standards. For example, NACDL opposed, and still does, as a violation of the Fourth Amendment’s protection against illegal search and seizure, the PATRIOT Act’s elimination of the requirement that the primary purpose of a FISA application be intelligence gathering, rather than criminal investigation. But for all its shortcomings, FISA represents the minimum threshold Congress has established for foreign intelligence gathering in the United States.³ In contrast, the eavesdropping operations at issue here are hidden from any scrutiny whatsoever.

Domestic clandestine surveillance is not a role for the military in a free society. It is contrary to established law, the Constitution, and our way of life. As Justice William O. Douglas explained in Katz v. United States,⁴ the Fourth Amendment requires a neutral fact-finder to issue search warrants. Under the separation of powers doctrine created by the Constitution, the Executive Branch is not neutral and disinterested; that is the role of the courts. The protections of the Fourth Amendment cannot be assured when the President and the Attorney General reserve for themselves both the role of investigator-and-prosecutor and disinterested neutral magistrate.

Justice Brandeis foresaw the erosion of our civil liberties in his dissent in Olmstead v. U.S.,⁵ another government eavesdropping case almost 80 years ago. “Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent…. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”⁶ Our government, Brandeis said, teaches by example. “If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.” ⁷ 

Congress must hold hearings to determine the extent of this illegal tapping and to take appropriate action to prevent it from continuing or ever happening again — and NACDL must be active in insisting that such hearings be conducted. In the interim, attorneys who have cases in which the NSA intercept program may have relevance should take action to require the government to reveal whether anyone involved in any way in the case — defendants, lawyers, witnesses, etc. — had been subjected to such surveillance by any federal agency (including the Defense Intelligence Agency, which apparently was also active in the program). A related issue is seeking discovery of whether any of the warrantless surveillance contributed to and tainted FISA applications or other investigative methods.

It is time for Congress and the courts to exert their own independent roles to assure that no other executive agencies are being misused in contravention of U.S. laws or are otherwise impinging on the civil liberties of American citizens.

Notes

1. 407 U.S. 297 (1972).
2. Id. at 316-17. 
3.  It is interesting to note that the 26-year-old FISA Court modified more wiretap requests from the Bush Administration than from the four previous presidential administrations combined. The FISA judges modified only two search warrants out of the 13,102 applications that were approved over the first 22 years of the Court’s operation. But since 2001, the judges modified 179 out of the 5,645 requests for court-ordered surveillance. A total of 173 of those “substantive modifications” occurred in 2003 and 2004, the most recent years for which public records are available. See Stewart M. Powell, “Secret Court Modified Wiretap Requests,” The Seattle Post-Intelligencer, December 24, 2005.
4. 389 U.S. 347 (1967). 
5.  277 U.S. 438 (1928). 
6.  Id. at 479. 
7.  Id. at 485.

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