By Kate Martin
Center for National Security Studies
12/20/05 "CNSS" -- -- The President claims he has authority
as the Commander-in-Chief to conduct warrantless wiretaps of
Americans. But when Congress enacted the Foreign Intelligence
Surveillance Act in 1978, it expressly rejected the President’s
claim of inherent authority to conduct warrantless wiretaps. It then
went further and made it a crime to conduct such wiretaps.
The President has acted contrary to the express will of the
Congress. The Supreme Court has never approved a claim of
presidential authority to authorize acts outlawed by the Congress.
When Congress authorized secret wiretaps for national security
purposes in 1978, it intended to prevent any future President from
carrying out warrantless eavesdropping on Americans It made its
intention clear in five different sections of the law!
1) When Congress enacted FISA in 1978, it explicitly refused to
provide an exception to enable the President to eavesdrop on
Americans without getting a judicial warrant. It repealed the
provision which the government had relied upon in claiming inherent
presidential authority for warrantless wiretaps:
Nothing contained in this chapter or in section 605 of the
Communications Act of 1934 shall limit the constitutional power of
the President to take such measures as he deems necessary to protect
the Nation against actual or potential attack or other hostile acts
of a foreign power, to obtain foreign intelligence information
deemed essential to the security of the United States, or to protect
national security information against foreign intelligence
activities. Nor shall anything contained in this chapter be deemed
to limit the constitutional power of the President to take such
measures as he deems necessary to protect the United States against
the overthrow of the Government by force or other unlawful means, or
against any other clear and present danger to the structure or
existence of the Government. The contents of any wire or oral
communication intercepted by authority of the President in the
exercise of the foregoing powers may be received in evidence in any
trial hearing, or other proceeding only where such interception was
reasonable, and shall not be otherwise used or disclosed except as
is necessary to implement that power.” Pub. L. No. 90-351, 82 Stat.
212 (codified as amended at 18 U.S.C. §§ 2510-2520 (1968)).
The government had argued in the Keith case that this provision
supported the President’s constitutional authority to conduct
warrantless wiretaps; the Court found it neutral on the President’s
authority, not congressional authorization for warrantless
surveillance. United States v. United States District Court [Keith],
407 U.S. 297, 303 (1972).
2) Congress also refused to enact the language proposed by the Ford
administration that: “[n]othing contained in this chapter shall
limit the constitutional power of the President to order electronic
surveillance for the reasons stated in section 2511(3) of title 18,
United States Code, if the facts and circumstances giving rise to
such order are beyond the scope of this chapter.” S. 3197, 94th
Cong. 2d Sess, § 2528 (Mar. 23, 1976), reprinted in Hearings on S.
743, S. 1888, S. 3197 Before the Subcomm. On Criminal Laws and
Procedures of the Senate Judiciary Comm., 94th Cong., 2d Sess. 134
(1976) (stating in the first page of the report that S. 3197 was
identical to the measure transmitted to the Senate by the President
on March 23, 1976).
3) Instead, in FISA Congress enacted a comprehensive scheme
governing all foreign intelligence wiretaps, including provisions
for emergency wiretaps in advance of warrants and wiretaps of
foreign embassies inside the US without warrants, because as foreign
governments, they are not covered by the Fourth Amendment. It
expressly provided that after a declaration of war the Attorney
General could authorize warrantless wiretaps for 15 days.
Those steps alone would have sufficed to prohibit warrantless
wiretaps, but the Congress went further.
4) It expressly made it a crime for government officials "acting
under color of law" to engage in electronic eavesdropping "other
than pursuant to statute." 50 U.S.C. 1809.
5) Congress again made explicit that the FISA and the criminal
wiretap laws “shall be the exclusive means by which electronic
surveillance … communications may be conducted.” (Now codified at 18
USC 2511(f).) Section 201 of the FISA as enacted in 1978 provided
Nothing contained in this chapter, or section 605 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 by a means
other than electronic surveillance as defined in section 101 of the
Foreign Intelligence Surveillance Act of 1978, and procedures in
this chapter 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. Pub. L.
No. 95-511, 92 Stat. 1783, § 201 (1978).
Confronted with this explicit law against warrantless wiretaps, the
administration is now claiming that it had authority from Congress.
But its contention that the congressional resolution for the use of
force following the September 11, attacks authorized its warrantless
surveillance is ludicrous. FISA states that following a declaration
of war by the Congress, the President, acting through the Attorney
may institute electronic surveillance without a court order for no
more than fifteen days. (50 USC 1811.) At best, the September 2001
resolution is the equivalent of a declaration of war. At most,
therefore, the resolution authorized warrantless surveillance for
fifteen days. Nothing in the resolution can be read as amending this
specific limitation to allow unlimited warrantless surveillance.
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