Wiretapping--The Law

UPDATE: Liberal Garvey's Ghost challenges; I reply.

MaxedOutMama's been blogging 'bout warrantless international anti-terrorism wiretapping. I've touched on this before, but she points to Findlaw's collection of NSA-related documents, especially the Attorney General's January 19th White Paper defending the program. Here's other useful links:

• Gorin v. United States, 312 U.S. 19, 29 (1941) ("As they gave a detailed picture of the counter-espionage work of the Naval Intelligence, drawn from its own files, they must be considered as dealing with activities of the military forces. A foreign government in possession of this information would be in a position to use it either for itself, in following the movements of the agents reported upon, or as a check upon this country's efficiency in ferreting out foreign espionage. It could use the reports to advise the state of the persons involved of the surveillance exercised by the United States over the movements of these foreign citizens. The reports, in short, are a part of this nation's plan for armed defense. The part relating to espionage and counter-espionage cannot be viewed as separated from the whole.")



• United States v. United States District Court, 407 U.S. 297, 308 (1972) ("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."); id. at 321-22 ("this case involves only the domestic aspects of national security. We have not addressed, and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents.")



• S. J. Res. 23: Authorization for Use of Military Force (enacted Sep 18, 2001; Public Law No: 107-40):

  [T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

• Hamdi v. Rumsfeld, 542 U.S. 507, 519 (2004) ("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. 115 Stat. 224. 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.")



• United States v. Truong Dinh Hung, 629 F.2d 908, 913-15 (4th Cir. 1980) (footnotes omitted):

  We agree with the district court that the Executive Branch need not always obtain a warrant for foreign intelligence surveillance. Although the Supreme Court has never decided the issue which is presented to us, it formulated the analytical approach which we employ here in an analogous case, United States v. United States District Court (Keith), 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972). In Keith, the executive had conducted warrantless domestic security surveillance. The Court posited two inquiries to guide the Fourth Amendment determination of whether a warrant is required:

  If the legitimate need of Government to safeguard domestic security requires the use of electronic surveillance, the question is whether the needs of citizens for privacy and free expression may not be better protected by requiring a warrant before such surveillance is undertaken. We must also ask whether a warrant would unduly frustrate the efforts of Government to protect itself from acts of subversion and overthrow directed against it.

  407 U.S. at 315, 92 S.Ct. at 2135. Balancing individual privacy and government needs, the Supreme Court concluded that the executive must seek a warrant before it undertakes domestic security surveillance.
  
  For several reasons, the needs of the executive are so compelling in the area of foreign intelligence, unlike the area of domestic security, that a uniform warrant requirement would, following Keith, "unduly frustrate" the President in carrying out his foreign affairs responsibilities. First of all, attempts to counter foreign threats to the national security require the utmost stealth, speed, and secrecy. A warrant requirement would add a procedural hurdle that would reduce the flexibility of executive foreign intelligence initiatives, in some cases delay executive response to foreign intelligence threats, and increase the chance of leaks regarding sensitive executive operations. See Zweibon v. Mitchell, 516 F.2d 594, 704 (D.C. Cir. 1975) (Wilkey, J., concurring and dissenting).
  
  More importantly, the executive possesses unparalleled expertise to make the decision whether to conduct foreign intelligence surveillance, whereas the judiciary is largely inexperienced in making the delicate and complex decisions that lie behind foreign intelligence surveillance. See New York Times Co. v. United States, 403 U.S. 713, 727-30, 91 S.Ct. 2140, 2148-2150, 29 L.Ed.2d 822 (1971) (Stewart, J., concurring); United States v. Belmont, 301 U.S. 324, 330, 57 S.Ct. 758, 760, 81 L.Ed. 1134 (1937). The executive branch, containing the State Department, the intelligence agencies, and the military, is constantly aware of the nation's security needs and the magnitude of external threats posed by a panoply of foreign nations and organizations. On the other hand, while the courts possess expertise in making the probable cause determination involved in surveillance of suspected criminals, the courts are unschooled in diplomacy and military affairs, a mastery of which would be essential to passing upon an executive branch request that a foreign intelligence wiretap be authorized. Few, if any, district courts would be truly competent to judge the importance of particular information to the security of the United States or the "probable cause" to demonstrate that the government in fact needs to recover that information from one particular source.
  
  Perhaps most crucially, the executive branch not only has superior expertise in the area of foreign intelligence, it is also constitutionally designated as the pre-eminent authority in foreign affairs. See First National Bank v. Banco Nacional de Cuba, 406 U.S. 759, 765-68, 92 S.Ct. 1808, 1812-1814, 32 L.Ed.2d 466 (1972); Oetjen v. Central Leather Co., 246 U.S. 297, 302, 38 S.Ct. 309, 310, 62 L.Ed. 726 (1918). The President and his deputies are charged by the constitution with the conduct of the foreign policy of the United States in times of war and peace. See United States v. Curtiss-Wright Corp., 299 U.S. 304, 57 S.Ct. 216, 81 L.Ed. 255 (1936). Just as the separation of powers in Keith forced the executive to recognize a judicial role when the President conducts domestic security surveillance, 407 U.S. at 316-18, 92 S.Ct. at 2136-2137, so the separation of powers requires us to acknowledge the principal responsibility of the President for foreign affairs and concomitantly for foreign intelligence surveillance.
  
  In sum, because of the need of the executive branch for flexibility, its practical experience, and its constitutional competence, the courts should not require the executive to secure a warrant each time it conducts foreign intelligence surveillance. Accord, United States v. Butenko, 494 F.2d 593 (3 Cir.), cert. denied sub nom., Ivanov v. United States, 419 U.S. 881, 95 S.Ct. 147, 42 L.Ed.2d 121 (1974); United States v. Brown, 484 F.2d 418 (5 Cir. 1973), cert. denied, 415 U.S. 960, 94 S.Ct. 1490, 39 L.Ed.2d 575 (1974); United States v. Clay, 430 F.2d 165 (5 Cir. 1970), rev'd on other grounds, 403 U.S. 698, 91 S.Ct. 2068, 29 L.Ed.2d 810 (1971). Contra, Zweibon v. Mitchell, 516 F.2d 594 (D.C.Cir.1975) (dictum in plurality opinion in case involving surveillance of domestic organization having an effect on foreign relations but acting neither as the agent of nor in collaboration with a foreign power).
  
  However, because individual privacy interests are severely compromised any time the government conducts surveillance without prior judicial approval, this foreign intelligence exception to the Fourth Amendment warrant requirement must be carefully limited to those situations in which the interests of the executive are paramount. First, the government should be relieved of seeking a warrant only when the object of the search or the surveillance is a foreign power, its agent or collaborators. Cf. Zweibon v. Mitchell, 516 F.2d 594, 613 n.42 (D.C. Cir. 1975). In such cases, the government has the greatest need for speed, stealth, and secrecy, and the surveillance in such cases is most likely to call into play difficult and subtle judgments about foreign and military affairs. When there is no foreign connection, the executive's needs become less compelling; and the surveillance more closely resembles the surveillance of suspected criminals, which must be authorized by warrant.

• United States v. Brown, 484 F.2d 418, 426 (5th Cir. 1973) ("As United States District Court teaches, in the area of domestic security, the President may not authorize electronic surveillance without some form of prior judicial approval. However, because of the President's constitutional duty to act for the United States in the field of foreign relations, and his inherent power to protect national security in the context of foreign affairs, we reaffirm what we held in United States v. Clay, supra, that the President may constitutionally authorize warrantless wiretaps for the purpose of gathering foreign intelligence.")



• United States v. Duggan, 743 F.2d 59, 72 (2d Cir. 1984) ("Prior to the enactment of FISA, virtually every court that had addressed the issue had concluded that the President had the inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information, and that such surveillances constituted an exception to the warrant requirement of the Fourth Amendment. See United States v. Truong Dinh Hung, 629 F.2d 908, 912-14 (4th Cir. 1980), cert. denied, 454 U.S. 1144, 102 S.Ct. 1004, 71 L.Ed.2d 296 (1982); United States v. Buck, 548 F.2d 871, 875 (9th Cir.), cert. denied, 434 U.S. 890, 98 S.Ct. 263, 54 L.Ed.2d 175 (1977); United States v. Butenko, 494 F.2d 593, 605 (3d Cir.) (en banc), cert. denied, 419 U.S. 881, 95 S.Ct. 147, 42 L.Ed.2d 121 (1974); United States v. Brown, 484 F.2d 418, 426 (5th Cir. 1973), cert. denied, 415 U.S. 960, 94 S.Ct. 1490, 39 L.Ed.2d 575 (1974). But see Zweibon v. Mitchell, 516 F.2d 594, 633-51 (D.C. Cir. 1975) (dictum), cert. denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 187 (1976).")



• In re Sealed Case, 310, F3d. 717, 742 [slip op. at 48] (Foreign Intel. Surv. Ct. of Rev. 2002) ("The Truong court, as did all the other courts to have decided the 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.")



• The definition of "Electronic Surveillance" covered by FISA, 50 U.S.C. § 1801(f):

  'Electronic surveillance' means -
  (1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;
  (2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511(2)(i) of title 18;
  (3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or
  (4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.

  As Powerline's John Hinderaker observes, taping phones overseas for purposes of preventing terrorism, as opposed to criminal prosecution, isn't addressed:

  Based on what has been publicly disclosed, it seems likely that the NSA intercepts are picked up overseas, not inside the U.S. If that is the case, FISA simply has no application to the program.

• 18 U.S.C. § 2511(f):

  Nothing contained in this chapter or chapter 121 or 206 of this title, or section 705 of the Communications Act of 1934, shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, and procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted. (emphasis added)

• FISA legislative history, quoted in the White Paper:

  [W]hile FISA was being debated during the Carter Administration, Attorney General Griffin Bell testified that “the current bill recognizes no inherent power of the President to conduct electronic surveillance, and I want to interpolate here to say that this does not take away the power [of] the President under the Constitution.” Foreign Intelligence Electronic Surveillance Act of 1978: Hearings on H.R. 5764, H.R. 9745, H.R. 7308, and H.R. 5632 Before the Subcomm. on Legislation of the House Comm. on Intelligence, 95th Cong., 2d Sess. 15 (1978) (emphasis added)

  BTW, avoid the Congressional Research Service "analysis" of wiretap legality: as Captain Ed observes, "the CRS report was prepared Alfred Cumming -- the same Alfred Cumming who gave John Kerry $1,250 for his run against George Bush in the 2004 election cycle." Cumming somehow overlooked Bell's testimony, allowing him to conclude the President lacks warrantless wiretap authority.



• Other link repositories:
  
  Kierkegaard Lives.
  
  The Electronic Privacy Information Center's list of links on wiretapping and table of FISA orders.
  
  Pitt Law School-based Jurist's link list.
  
  Discussion and analysis at Concurring Opinions.
  
  GW Law Professor Orin Kerr's thread on the Volokh Conspiracy.
  
  Hugh Hewitt's links [added 1/22]



• My view: I'll let three others speak for me:
  
  The Wall Street Journal:

  The issue is not about circumventing normal civilian Constitutional protections, after all. The debate concerns surveillance for military purposes during wartime. No one would suggest the President must get a warrant to listen to terrorist communications on the battlefield in Iraq or Afghanistan. But what the critics are really insisting on here is that the President get a warrant the minute a terrorist communicates with an associate who may be inside in the U.S. That's a loophole only a terrorist could love.

  MaxedOutMama:

  Historically speaking, the Presidency has done such things on US soil in times of war. And even in the case of domestic wiretapping, the authorization given upon showing of probable cause is for the suspect number, which in these cases appears to be foreign. Now it's not controversial that the Presidency can monitor communications outside the US, but in FISA Congress set forth the principle that it could control the Presidency's use of domestic electronic networks to monitor foreign communications.
  
  But standards such as probable cause have little relationship to the type of intelligence work needed to identify amorphous lines of communication. What, exactly, is the purpose of a judicial review in such circumstances? Realistically speaking, such a net must be cast very wide in order to gain usable information. You have to spiderweb out from what you do know to all possible points, and look at patterns, etc. So either NSA would be going to judges and saying "well, this here number appears to be possibly associated with this one", or "this is being billed to the same entity, and in the past we have picked up such-and-such activity associated to this entity" and some judge would be saying "no, yes" basically at random, or FISA courts would be rubber-stamping all such requests.
  
  Do you think that the NSA should have to get a judge to agree that it can look at calls made from inside the US to Iranian President Ahmadinejad's cell phone? Because that is what this amounts to. How severe is the impact on the individual freedom of American citizens?

  Tommy:
  

  We are fighting a war, the congress authorized, and the President took, action. I expect the communications of the enemy to be monitored. All of the communications of the enemy. The fact that the enemy is communicating with people within our borders does not in the slightest change that. Maybe I’ve spent more time around collection type assets than the average person, but I confess I was shocked to learn that people were surprised this was going on. If the program was monitoring domestic communications with persons other than Al Qaeda and associated groups, that is something different. But as of yet, I have heard nothing to suggest that was the case.

More:

RNC Chairman Ken Mehlman: "Do Nancy Pelosi and Howard Dean really think that when the NSA is listening in on terrorists planning attacks on America, they need to hang up when those terrorists dial their sleeper cells in the United States?"

Still More:

Former Reagan-era Deputy Assistant Attorney General Victoria Toensing in the WSJ:

The NSA undoubtedly has identified many foreign phone numbers associated with al Qaeda. If these numbers are monitored only from outside the U.S., as consistent with FISA requirements, the agency cannot determine with certainty the location of the persons who are calling them, including whether they are in the U.S. New technology enables the president, via NSA, to establish an early-warning system to alert us immediately when any person located in the U.S. places a call to, or receives a call from, one of the al Qaeda numbers. Do Mr. Gore and congressional critics want the NSA to be unable to locate a secret al Qaeda operative in the U.S.?

And John Hawkins at Right Wing News:

We have now come to a point in the war on terror where the most reasonable of protective measures, like listening in on the conversations of terrorists calling people in the United States, has become a source of great controversy. . .

[M]any of the very reasonable security measures the Bush administration has taken have been attacked as if they were pulled out of void, as if they were needless bits of red tape that could be cut with no consequences whatsoever.

This is a mistake.

Instead, people who attack the Bush administration for securing this country should be explicitly asked again and again whether getting rid of Gitmo, neutering our interrogation measures, stopping warrantless wiretaps of terrorist calls to the US, getting rid of the Patriot Act, etc., etc., is worth significantly increasing the chances of having another 9/11 style attack on the country.

Then, if they answer the affirmative, at least the voters will know where they stand and, as an added benefit, we'll perhaps be spared their shrill condemnations of President Bush for not protecting us from terrorists after an attack that they helped make possible occurs.