Thursday, December 22, 2005


Why the Hamdi Case Does Nothing to Make the NSA Wiretaps Legal

The Bush Administration is trying to say that it was authorized by Congress to do the NSA wiretaps. It is relying on Justice O’Connor’s opinion in the Hamdi case to support its position. But that opinion does nothing of the sort.

A previous post explained why the NSA wiretaps are illegal. In summary, federal criminal law says that wiretaps by government officials are criminal, “except as authorized by statute.” Next, another part of the law says that Title III (for law enforcement) and FISA (for intelligence) shall be “the exclusive means” for wiretapping U.S. communications. In short, you need a statute, and there are only two statutes.

That is why the NSA wiretaps, without a court order, are illegal. It is simple. In the words of Bob Barr, formerly Republican chair of the House Judiciary subcommittee that oversees wiretap law: “This is just such an egregious violation of the electronic surveillance laws.”

In a letter reported in the media tonight (which is not yet online), the Justice Department argues, mistakenly, that there are actually three statutes. They rely on the Authorization for Use of Military Force (AUMF), passed in the days after the 9/11 attack, to claim that the NSA wiretaps are “authorized by statute.” In press accounts, they have said that Justice O’Connor’s opinion in the Hamdi case, joined by three other justices, is crucial support for that position.

This post explains why the Hamdi case offers no such support.

As Justice O’Connor writes: “The AUMF authorizes the President to use all necessary and appropriate force against nations, organizations, or persons associated with the September 11, 2001, terrorist attacks.” The question was whether Hamdi, a U.S. citizen, could be detained under the AUMF.

The facts are key. Hamdi, after all, was seized on the battlefield in Afghanistan by the Northern Alliance. The government alleged that Hamdi “affiliated with a Taliban military unit and received weapons training.” He was held as an enemy combatant. Quick quiz – do you think that the authorization of force allows such a capture?

Justice O’Connor emphasized that she was answering only “the narrow question before us: whether the detention of citizens falling within that definition is authorized.” The definition of who is covered by the Hamdi opinion: someone who is “part of or supporting forces hostile to the United States or coalition partners in Afghanistan and who engaged in an armed conflict against the United States there.” No mention of wiretaps carried out on U.S. citizens in the U.S.

O’Connor explains why detention of Hamdi fits into anyone’s view of the authorization of force:

“There can be no doubt that individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network responsible for those attacks, are individuals Congress sought to target in passing the AUMF. We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the “necessary and appropriate force” Congress has authorized the President to use.”

OK, that’s O’Connor’s opinion in Hamdi. Does it support the idea that Congress intended the Authorization of Military Force to apply to wiretaps of U.S. citizens in the United States? No, for at least four reasons.

Congressional intent. It is clear that Congress intended persons captured on the battlefield to be detained.

History of authorizations of force. O’Connor says detaining combatants is “fundamental and accepted.”

Would Congress have agreed at the time? Of course Congress would have allowed detention of someone fighting in Afghanistan against the U.S.

Foreign battlefield. The discretion of the President is at its maximum overseas (long legal tradition symbolized by the Curtis-Wright case) and in the theater of war (President as Commander-in-Chief).

All four of these factors are entirely different for wiretaps of U.S. persons in the U.S.

Congressional intent. Members of Congress have been startled and skeptical, to say the least, at the idea that they authorized these wiretaps. They never dreamed they were doing so.

History of authorizations of force. Capturing prisoners on the battlefield is a fundamental and traditional part of Congress authorizing the use of force. Widespread wiretapping of your own citizens is not.

Would Congress have agreed at the time? No. The Administration has admitted they would not have gotten Congressional approval.

Foreign battlefield. In contrast to the foreign battlefield, the power of the President to do searches (wiretaps) of U.S. persons within the U.S. is constrained by the 4th Amendment and numerous laws. Where Congress has spoken clearly about “the exclusive means” of wiretapping, the President cannot overrule the law.

In sum, Justice O’Connor’s opinion in Hamdi says it is limited to detention of persons seized on the battlefield. It offers no support for the NSA wiretaps.

Monday, December 19, 2005


Why the NSA Wiretapping Is Illegal

This post tries to lay out, in straightforward terms, the reason why the NSA surveillance program violates U.S. criminal law. (It is possible that classified details of the program would change the analysis, but I don’t see how.) The discussion here draws on my law review article “The System of Foreign Intelligence Surveillance Law,”, which provides the history of this area of law.

It takes two statutes to see the point.

The first statute is 50 U.S.C. Sec. 1809: “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.”

Two things to note here. “Under color of law” refers to government employees who are doing their job, such as NSA employees doing wiretaps under a Presidential order. Second, it is permitted to wiretap if and only if “authorized by statute.”

So what statutory authorization is there? Congress made clear back in 1978 that there are two, and only two, statutes that authorize wiretaps within the United States. One is “Title III,” which gives the rules for wiretaps for law enforcement. The other is the Foreign Intelligence Surveillance Act, which gives the rules for wiretaps for foreign intelligence purposes.

Since 1978, 18 U.S.C. Sec. 2511(2)(f) has said that Title III and FISA “shall be the exclusive means by which electronic surveillance ... and the interception of domestic wire and oral communications may be conducted.”

So that is why the NSA wiretaps appear illegal. Government officials can only wiretap “as authorized by statute” and the only statutes that count are Title III and FISA. The NSA wiretaps did not use the judicial procedures of either Title III or FISA.

What might be the defense in the legal memoranda by the Bush Justice Department? Hints in the press suggest two, both weak.

First, there is the suggestion that the authorization of force after 9/11 permitted the President to order domestic wiretaps. As a matter of reading statutes, this is a weak argument. On the one hand, we have a very specific statement by Congress in Sec. 2511(2)(f) that Title III and FISA are “the exclusive means.” On the other hand, the Administration seems to say that the general Congressional resolution amended that statute, without anyone realizing it. That approach is contrary to the usual reading of statutes, where there is no “repeal by implication” – you have to say you are repealing a specific statute for the repeal to be effective.

Second, the President seems to have invoked his general commander-in-chief power. In essence, the claim is that the President can repeal Sec. 2511(2)(f) simply by saying so in an Executive Order. That sort of claim of inherent presidential power was at the core of the debate about the so-called “torture memo.” Once the Congress and the press saw the memo, it was retracted and rewritten.

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