Bush's domestic spying: constitutional? impeachable?

CRS ON WARRANTLESS SURVEILLANCE

The Congressional Research Service has prepared a detailed
evaluation of Bush Administration legal claims regarding
Presidential authority to conduct warrantless electronic
surveillance within the United States.

The CRS authors sift through each of the statutory, constitutional
and other arguments that have been presented in defense of the
reported NSA surveillance activity, and ultimately find them
wanting.

A final determination on the matter is impossible, they note,
"without an understanding of the specific facts involved and the
nature of the President's authorization, which are for the most
part classified."

In the end, however, "the Administration's legal justification, as
presented in the [December 22, 2005] summary analysis from the
Office of Legislative Affairs, does not seem to be as
well-grounded as the tenor of that letter suggests," they
cautiously conclude.

Conclusions

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.

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.138 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.

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 category139 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. 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."140 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. 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."141 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,142 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.

Here is what John Schmidt, ASSOCIATE ATTORNEY GENERAL UNDER BILL CLINTON -1994-TO 1997 WROTE ABOUT FISA.

QUOTE

"FISA does not anticipate a post-Sept. 11th situation. What was needed after Sept. 11th, according to the President, was surveillance beyond what could be authorized under that kind of individualized case by case judgment. IT IS HARD TO IMAGINE THE SUPREME COURT SECOND-GUESSING THAT PRESIDENTIAL JUDGMENT."

We shall see. In the meantime, political partisans keep throwing mud hoping some of it will stick but they are somewhat cowed by the appearance of polls which show that the American people do not feel that President Bush exceeded the authority granted to him constitionally.

Justice Sandra Day O'Connor rejected the Bush Administration's sweeping assertion that it could confine persons designated "unlawful combatants"--including U.S. citizens--without any judicial review, merely on the President's say-so.

"A state of war is not a blank check for the President," O'Connor opined just over a year ago, in Hamdi v. Rumsfeld.


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