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,” www.ssrn.com/abstracts=586616, 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.