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American Bar Association-accuses President Bush,
of violating both the Constitution and federal law.
02/13/06 -- Full text American Bar Association Task Force Report
American Bar Association
Adopted By The House Of Delegates
RESOLVED, that the American Bar Association calls upon the President
to abide by the limitations which the Constitution imposes on a
president under our system of checks and balances and respect the
essential roles of the Congress and the judicial branch in ensuring
that our national security is protected in a manner consistent with
constitutional guarantees;
FURTHER RESOLVED, that the American Bar Association opposes any
future electronic surveillance inside the United States by any U.S.
government agency for foreign intelligence purposes that does not
comply with the provisions of the Foreign Intelligence Surveillance
Act, 50 U.S.C. §§ 1801 et seq. (FISA), and urges the President, if
he believes that FISA is inadequate to safeguard national security,
to seek appropriate amendments or new legislation rather than acting
without explicit statutory authorization;
FURTHER RESOLVED, that the American Bar Association urges the
Congress to affirm that the Authorization for Use of Military Force
of September 18, 2001, Pub.L. No. 107-40, 115 Stat. 224 § 2(a)
(2001) (AUMF), did not provide a statutory exception to the FISA
requirements, and that any such exception can be authorized only
through affirmative and explicit congressional action;
FURTHER RESOLVED, that the American Bar Association urges the
Congress to conduct a thorough, comprehensive investigation to
determine: (a) the nature and extent of electronic surveillance of
U.S. persons conducted by any U.S. government agency for foreign
intelligence purposes that does not comply with FISA; (b) what basis
or bases were advanced (at the time it was initiated and
subsequently) for the legality of such surveillance; (c) whether the
Congress was properly informed of and consulted as to the
surveillance; (d) the nature of the information obtained as a result
of the surveillance and whether it was retained or shared with other
agencies; and (e) whether this information was used in legal
proceedings against any U.S. citizen.
FURTHER RESOLVED, that the American Bar Association urges the
Congress to ensure that such proceedings are open to the public and
conducted in a fashion that will provide a clear and credible
account to the people of the United States, except to the extent the
Congress determines that any portions of such proceedings must be
closed to prevent the disclosure of classified or other protected
information; and
FURTHER RESOLVED, that the American Bar Association urges the
Congress to thoroughly review and make recommendations concerning
the intelligence oversight process, and urges the President to
ensure that the House and Senate are fully and currently informed of
all intelligence operations as required by the National Security Act
of 1947.
REPORT
"Experience should teach us to be most on our guard to protect
liberty when the government's purposes are beneficent. . . .”
Olmstead v. United States, 277 U.S. 438, 479 (1928) (Brandeis, J.,
dissenting).
Introduction
On December 16, 2005, the New York Times reported that the President
had “secretly authorized the National Security Agency (NSA) to
eavesdrop on Americans and others inside the United States to search
for evidence of terrorist activity without the court-approved
warrants ordinarily required for domestic spying, according to
government officials.”1
The New York Times revelation has created a major national
controversy. The NSA program has drawn severe critics and staunch
defenders; dozens of newspaper editorials and op-ed pieces have
published, it has been a “hot topic” on hundreds of blogs, and both
Democrat and Republican members of Congress have called for
hearings.2
A number of terrorism defendants have filed legal challenges to
their previous pleas of guilty or convictions,3 and a lawsuit has
been filed in Detroit against the NSA by the American Civil
Liberties Union (ACLU), the National Association of Criminal Defense
Lawyers (NACDL), the Council on American Islamic Relations (CAIR)
and named individual plaintiffs -- including several lawyers --
seeking declaratory and injunctive relief demanding the NSA cease
and desist warrantless interception of Americans’ electronic and
telephone conversations because such interceptions “seriously
compromise the First Amendment’s guarantees of the freedoms of
speech, of the press, and of association, and the Fourth Amendment’s
prohibition on warrantless searches and seizures.”
In light of the importance of these issues, ABA President Michael S.
Greco appointed a Task Force on Domestic Surveillance in the Fight
Against Terrorism5 to “examine the legal issues surrounding federal
government surveillance conducted inside the United States relating
to the investigation of potential terrorist activities” and bring a
preliminary report with recommendations to the ABA House of
Delegates at the February 2006 Midyear Meeting. In his appointment
letters, President Greco stated:
Recent revelations about the National Security Agency's domestic
surveillance program remind us that we must continually and
vigilantly protect our Constitution and defend the rule of law.
While the Task Force was operating under intense time pressures, it
benefitted from the fact that substantial analyses of the legal
issues had already been undertaken by a wide and diverse variety of
sources. For example, the Department of Justice issued a 42 page
“white paper,” an Assistant Attorney General sent a strong letter
responding to congressional inquiries, and the Attorney General
delivered a major address on the issue at the Georgetown Law Center.
Each, as expected, vigorously defended what the Administration is
calling a “terrorist surveillance program” (as opposed to “domestic
surveillance” or “warrantless eavesdropping”), as being entirely
lawful and within the President’s constitutional and statutory
authority. 6
On the other side of the issue, a variety of constitutional law
scholars and former government officials have released letters and
memoranda decrying the NSA program as a violation of FISA, and the
Constitution,7 and several Web sites have collected documents
related to the NSA domestic surveillance issues.8
The bipartisan Congressional Research Service issued three reports:
a report on the legislative history of the AUMF issued on January 4,
2006; a lengthy report issued on January 5, 2006, analyzing the NSA
program, and another report on January 18, 2006, regarding the
statutory reporting procedures required in intelligence matters.9
The Task Force unanimously agreed that the President should abide by
the limitations which the Constitution imposes on a president under
our system of checks and balances and respect the essential roles of
the Congress and the judicial branch in ensuring that our national
security is protected in a manner consistent with constitutional
guarantees. There was also consensus that any electronic
surveillance inside the United States by any U.S. government agency
for foreign intelligence purposes must comply with the provisions of
FISA and that, if the President believes that FISA is inadequate to
safeguard national security, he should seek appropriate amendments
or new legislation rather than acting without explicit statutory
authorization.
The Recommendation also urges the Congress to conduct a thorough,
comprehensive investigation of the issues surrounding the NSA
domestic surveillance program, with proceedings that are open to the
public and conducted in a fashion that will provide a clear and
credible account to the people of the United States, except to the
extent the Congress determines that any portions of such proceedings
must be closed to prevent the disclosure of classified or other
protected information.
The Task Force also calls for the Congress to thoroughly review and
make recommendations concerning the intelligence oversight process,
and urges the president to ensure that the House and Senate are
fully and currently informed of all intelligence operations as
required by the National Security Act of 1947.
Electronic Surveillance for Foreign Intelligence Purposes Conducted
Within the United States Should Comply with FISA
The Administration concedes that its secret NSA electronic
surveillance program entails “electronic surveillance” of “United
States persons” as those terms are defined by the Foreign
Intelligence Surveillance Act (“FISA”). The Administration
maintains, however, that Congress, in enacting the Authorization for
the Use of Military Force on September 18, 2001 (“AUMF”), Pub. L.
No. 107-40, 115 Stat. 224, authorized the President to conduct such
foreign intelligence electronic surveillance without obtaining the
court orders required by FISA.
As we explain, FISA is a detailed and comprehensive statute that was
enacted to strike a balance between the recognized need to conduct
foreign intelligence surveillance and the need to protect
fundamental civil liberties. FISA makes specific provision for
exceptions to its requirements in emergencies and in the event of
war. Moreover, following 9/11, FISA was amended by the Patriot Act,
at the behest of the President, to provide the greater flexibility
the administration argued was needed to address the enhanced threat
of international terrorism so tragically dramatized by the 9/11
attacks. The Patriot Act amendments, however, left intact FISA’s
explicit provisions making FISA procedures the exclusive means for
conducting electronic surveillance for foreign intelligence purposes
in the United States.
There is nothing in either the language of the AUMF or its
legislative history to justify the assertion that the general grant
of authority to use “all necessary and appropriate force” against Al
Qaeda and those affiliated with or supporting it, was intended to
amend, repeal or nullify the very specific and comprehensive terms
of FISA. Nor, under our system of checks and balances, is there any
serious constitutional issue concerning Congress’ power to regulate
electronic surveillance for foreign intelligence purposes where it
intercepts the communications of persons within the United States,
to assure that the Nation has the necessary means to combat
terrorism while also assuring that those means are not abused to
unjustifiably infringe civil liberties, through invasions of privacy
that not only violate the Fourth Amendment but chill the freedom of
speech and association protected by the First Amendment.
The FISA Statutory Framework
In 1967, the Supreme Court held for the first time that as a general
matter wiretapping was subject to the Fourth Amendment’s protections
against unreasonable searches and its requirement of a warrant in
most circumstances. Katz v. United States, 389 U.S. 347 (1967). The
Court left open, however, the question of whether the Fourth
Amendment applied to wiretapping conducted to protect national
security.
Subsequently, in 1972, the Court held that wiretapping conducted for
domestic security purposes was subject to the Fourth Amendment and
required a warrant. United States v. United States District Court,
407 U.S. 297, 313-14, 317, 319-20 (1972). It left open the question,
however, whether electronic surveillance for foreign intelligence
purposes was subject to the Fourth Amendment’s requirement of a
warrant issued by a court authorizing the surveillance. Id. at 308.
There followed a period in which lower courts differed on this
question. During this same period, following the Watergate scandal
and revelations of abuses of wiretapping during the Nixon
administration, and with the support of both Presidents Ford and
Carter, a Senate Select Committee, headed by Senator Frank Church
(the “Church Committee”), undertook a comprehensive investigation of
government wiretapping and other surveillance procedures conducted
by the Executive branch without a warrant.
The Church Committee exposed substantial abuses of this purported
authority. See S. Rep. No. 94-755 (Senate Select Committee to Study
Governmental Operations with Respect to Intelligence Activities)
94th Cong., 2nd Sess., Book II at 5-20 (1976). It therefore
recommended congressional legislation to provide the government with
needed authority to conduct surveillance to protect national
security but to protect against the abuses of that authority and the
serious infringements of civil liberties disclosed by the
investigation. Id. at 296-341. FISA was enacted to carry out these
recommendations. Pub. L. 95-511, 92 Stat. 1783 (1978).
The bill, as enacted, had the full support of President Carter and
the Executive branch. See S. Rep. No. 95-604 (Judiciary Committee)
95th Cong., 1st Sess., Part 1 at 4 (1977). President Carter’s
Attorney General, Griffin Bell, testifying in support of the bill,
emphasized:
In my view this bill . . . sacrifices neither our security nor our
civil liberties, and assures that the abuses of the past will remain
in the past and that the dedicated and patriotic men and women who
serve this country in intelligence positions . . . will have the
affirmation of Congress that their activities are proper and
necessary.
When President Carter signed FISA into law, he said in his signing
statement:
The bill requires, for the first time, a prior judicial warrant for
all electronic surveillance for foreign intelligence or
counterintelligence purposes in the United States in which
communications of U.S. persons might be intercepted. It clarifies
the Executive’s authority to gather foreign intelligence by
electronic surveillance in the United States. It will remove any
doubt about the legality of those surveillances which are conducted
to protect our country against espionage and international
terrorism. It will assure FBI field agents and others involved in
intelligence collection that their acts are authorized by statute
and, if a U.S. person’s communications are concerned, by a court
order. And it will protect the privacy of the American people.
In short, the act helps to solidify the relationship of trust
between the American people and their Government. It provides a
basis for the trust of the American people in the fact that the
activities of their intelligence agencies are both effective and
lawful. It provides enough secrecy to ensure that intelligence
relating to national security can be securely required, while
permitting review by the courts and Congress to safeguard the rights
of Americans and others.
FISA applies to “electronic surveillance” which, among other things,
would include the electronic acquisition, within the United States,
of the content of communications to or from the United States or of
communications of a “United States person” located in the United
States. A “United States person” includes, among others, U.S.
citizens or permanent resident aliens. The Administration has never
questioned, and in fact, has conceded, that the NSA surveillance
program meets FISA’s definition of “electronic surveillance.”
With certain exceptions, FISA requires that to conduct “electronic
surveillance” the government must obtain a court order from a
special, secret court created by FISA known as the FISA court. To
obtain such an order, a federal officer must certify that “a
significant purpose” of the surveillance is to obtain foreign
intelligence information and provide a statement describing, among
other things, the basis for the belief that the information sought
is foreign intelligence information. The court will issue an order
authorizing the surveillance upon making a series of findings,
including that there is probable cause to believe that a target of
the electronic surveillance is a foreign power or agent of a foreign
power and that the surveillance is directed at facilities used, or
about to be used, by a foreign power or agent of a foreign power. A
“foreign power” includes international terrorist groups and an
“agent of a foreign power” includes a person other than a United
States person engaged in international terrorism.
FISA provides a number of exceptions, two of which are of particular
significance. First, it permits electronic surveillance without
first obtaining a court order, in situations certified by the
Attorney General as an emergency, provided that an order is sought
within 72 hours of the authorization of the surveillance by the
Attorney General. Id. Second, recognizing the exigencies created by
war, the President through the Attorney General, may authorize
electronic surveillance without a court order for a period of 15
days after a declaration of war by Congress.
This provision was intended to provide time to enable Congress to
amend FISA if it was determined necessary to do so to meet special
war-time needs. Notably, Congress rejected a request to make this
exception extend for one year after a declaration of war, indicating
that 15 days should be sufficient to make any necessary amendments.
Congress made explicit its intention that FISA is the exclusive
means by which electronic surveillance for foreign intelligence
purposes may be conducted. 18 U.S.C. §2511 provides in part: “[T]he
Foreign Intelligence Surveillance Act of 1978 shall be the exclusive
means by which electronic surveillance, as defined in Section 101 of
such Act [50 U.S.C. §1801] . . . may be conducted.” FISA also makes
it a criminal offense “to engage in electronic surveillance under
color of law except as authorized by statute.”
Following the attacks of September 11, 2001, the Administration
asked Congress to enact legislation to enhance its ability to
protect the nation against such attacks by Al Qaeda and other
international terrorists. Congress responded promptly to that
request, enacting the USA PATRIOT Act in October and the
Intelligence Authorization Act in December.
Those laws amended FISA in a number of respects, including expanding
the period for emergency electronic surveillance from 24 hours to 72
hours and reducing the requirement that the government certify that
the foreign intelligence gathering was a “primary purpose” of the
electronic surveillance to a showing only that it was “a significant
purpose.”
In sum, FISA is a comprehensive and exclusive procedure for
conducting foreign intelligence electronic surveillance in the
United States. It anticipates emergencies and the exigencies of war,
and it was specifically amended at the Administration’s request to
make it more responsive to the need to combat international
terrorism following the attacks of September 11, 2001. Nevertheless,
the Administration concedes that NSA conducted electronic
surveillance for a period of four years without complying with
FISA’s procedures.
The AUMF Does Not Create an Exception to FISA
The argument that Congress implicitly authorized the NSA program
when it enacted the Authorization for Use of Military Force (AUMF)
against al Qaeda, is unpersuasive. There is nothing in the text or
the history of the AUMF to suggest that Congress intended to permit
the Executive to engage in any and all warrantless electronic
surveillance in the United States without judicial approval or a
showing of probable cause as required by FISA.
The argument put forward by the Executive assumes that Congress
intended to remove all restraint on electronic surveillance
currently mandated by FISA or Title III, at least with regard to the
fight against terrorism. The history of FISA demonstrates a
congressional commitment to regulate the use of electronic
surveillance and to assure that there is a judicial check on
Executive power. Nothing in the AUMF suggests that Congress intended
to unleash the Executive to act without judicial supervision and
contrary to standards set by Congress in conformity with the
Constitution.
The Executive’s argument rests on an implicit, unstated inference
from the AUMF. Such an inference is directly contrary to the
explicit text of FISA. The Supreme Court has stated that specific
and carefully drawn statutes prevail over general statutes where
there is a conflict.
FISA contains a section entitled “Authorization during time of war,”
which provides that “[n]otwithstanding any other law, the President,
through the Attorney General, may authorize electronic surveillance
without a court order under this subchapter to acquire foreign
intelligence information for a period not to exceed fifteen calendar
days following a declaration of war by the Congress.” One need not
parse the language to determine Congressional intent, because the
plain meaning of the language is indisputable: i.e., When Congress
declares war, the President may permit the Attorney General to
authorize electronic surveillance without a court order under FISA
for 15 days. Thus, Congress limited the Executive power to engage in
electronic surveillance without judicial supervision to 15 days
following a formal declaration of war. It is inconceivable that the
AUMF, which is not a formal declaration of war, could be fairly read
to give the President more power, basically unlimited, than he would
have in a declared war.
The legislative history demonstrates that Congress intended that the
Executive seek legislation if it concluded that there was a need for
electronic surveillance not authorized by FISA for more than 15
days: “The Conferees intend that this [15-day] period will allow
time for consideration of any amendment to this act that may be
appropriate during a wartime emergency. . . . The conferees expect
that such amendment would be reported with recommendations within 7
days and that each House would vote on the amendment within 7 days
thereafter.”
The Executive’s argument distorts FISA and makes meaningless the
provision that identifies FISA and specific criminal code provisions
as “the exclusive means by which electronic surveillance . . . may
be conducted” because the argument assumes that the House version of
the bill would have authorized the President to engage in
warrantless electronic surveillance for the first year of a war, but
the Executive may treat any congressional act as authorizing an
exception from Title III and FISA. Were the argument accepted, the
Executive could justify repeal or suspension of FISA and Title III
restrictions in statutes appropriating money for federal agencies or
virtually any other legislation that, in the sole judgment of the
Executive, would be rendered more effective by greater electronic
surveillance.
The argument that the AUMF implicitly creates an exception to FISA
and is therefore consistent & strains credulity. It rests on the
notion that Congress, although it never mentioned electronic
surveillance or FISA in the AUMF, nevertheless implicitly intended
to create an undefined, unrestrained exception to FISA and give the
Executive unlimited power to engage in unlimited electronic
surveillance with no judicial review.
In an area as heavily regulated and as important to basic notions of
privacy as electronic surveillance, it is inconceivable that
Congress would have ceded greater unfettered power and discretion to
the Executive in dealing with al Qaeda than it would in a declared
war.
Moreover, the Attorney General has essentially conceded that no
reasonable person would conclude that Congress intended to cede such
power to the Executive: “We have had discussions with Congress in
the past—certain members of Congress—as to whether or not FISA could
be amended to allow us to adequately deal with this kind of threat,
and we were advised that that would be difficult, if not
impossible.” See Press Briefing by Attorney General Alberto Gonzales
and General Michael Hayden, Principal Deputy Director for National
Intelligence (Dec. 19, 2005), available at
http://www.whitehouse.gov/news/releases/2005/12/20051219-1.html. In
light of this concession, the claim that Congress granted the
Executive this authority under the AUMF is not credible.
The administration has argued that its position is supported by the
Supreme Court’s opinion in Hamdi v. Rumsfeld, but this is also
unpersuasive. A plurality of the Court in Hamdi held that the AUMF
authorized military detention of enemy combatants captured on the
battlefield abroad as a “fundamental incident of waging war.” When
Congress authorizes the use of force, it clearly contemplates that
the enemy will be killed or captured. There can be little doubt that
those who are captured on the battle field may be held while the
battle is fought. Typically, those captured are deemed prisoners of
war. But, in Hamdi, the question was whether a captured individual
could be held as an enemy combatant. The plurality expressly limited
its affirmative answer to individuals who were “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.”
It is not a fair reading of the Hamdi case to suggest that AUMF
repeals all limitations on Executive power previously contained in
any federal statute as long as the Executive in its sole discretion
deems additional power useful in the general fight against terror.
The Hamdi plurality agreed “that indefinite detention for the
purpose of interrogation,” even of conceded enemy combatants, “is
not authorized” by the AUMF. Id. If Congress did not provide the
Executive with the right to detain enemy combatants for intelligence
purposes, it is inconceivable that Congress intended to permit the
indefinite eavesdropping and invasion of privacy of American
citizens who are neither enemy combatants nor suspected of criminal
activity.
The Government’s Interpretation of the AUMF Is Not Required to Avoid
a Constitutional Question
The Administration mistakenly argues that its construction of the
AUMF is required to avoid a serious constitutional question. First,
the canon of avoidance only comes into play if there is an ambiguity
in a statute.
But neither FISA nor the AUMF are ambiguous on the question of
electronic surveillance. FISA explicitly makes its procedures the
exclusive means for conducting electronic surveillance. Meanwhile,
the AUMF contains no reference to electronic surveillance, and as
indicated above, nothing in the history or circumstances suggests
that the AUMF was intended to authorize electronic surveillance.
In any event, the constitutional question must be serious and
substantial. The Administration claims that unless its construction
of the AUMF is accepted, a serious constitutional question would be
raised as to whether FISA unconstitutionally encroaches on inherent
powers of the President as Commander-in-Chief. That question is
neither serious nor substantial. Even assuming that, after FISA, the
President retains inherent authority to conduct electronic
surveillance without a warrant to acquire foreign intelligence – a
question that has never been decided – that does not mean that
Congress lacks authority to regulate the exercise of that authority
to prevent its abuse and unnecessary intrusions on civil liberties.
It should be noted that both President Ford and President Carter
supported legislation to regulate the conduct of foreign
intelligence surveillance, and as noted, FISA was enacted with the
full support of President Carter. As the Senate report accompanying
the bill that became FISA noted:
The basis for this legislation is the understanding – concurred in
by the Attorney General – that even if the President has an
“inherent” constitutional power to authorize warrantless
surveillance for foreign intelligence purposes, Congress has the
power to regulate the exercise of this authority by legislating a
reasonable warrant procedure governing foreign intelligence
surveillance.
The analysis is plainly correct. Whatever inherent authority the
President may have to conduct foreign intelligence surveillance,
Congress also has the authority under Article I to regulate the
exercise of that authority.
Here, through FISA, Congress has exercised its Article I powers to
regulate electronic surveillance for foreign intelligence purposes
in great detail and made it the exclusive means for conducting such
surveillance. The NSA domestic surveillance program is in direct
conflict with this detailed statutory scheme. Under the criteria set
forth in Justice Jackson’s famous concurring opinion in Youngstown
Sheet and Tube Co. v. Sawyer, in these circumstances the President’s
inherent power is at its “lowest ebb.” To sustain the President’s
power here a court would have to find that such power was “beyond
control by Congress.” In other words, the President's authority must
be not just inherent but exclusive.
Such a conclusion would be at odds with the principles of separation
of powers and our cherished system of checks and balances and faces
a particularly high hurdle where, as here, individual liberties are
at stake. As Justice O’Connor observed: it was “the central judgment
of the Framers of the Constitution that, within our political
scheme, the separation of governmental powers into three coordinate
Branches is essential to the preservation of liberty”.
The government argues that prior presidents have exercised their
inherent authority to conduct electronic surveillance without a
warrant for foreign intelligence purposes and that courts have
consistently upheld the exercise of that power.
But FISA was enacted precisely because, prior to FISA, prior
presidents had repeatedly abused that power. “[The Church Committee]
has concluded that every President since Franklin D. Roosevelt
asserted the authority to authorize warrantless electronic
surveillance and exercised that authority. While the number of
illegal or improper national security taps and bugs conducted during
the Nixon administration may have exceeded those in previous
administrations, the surveillances were regrettably by no means
atypical . . . [and were] ‘often conducted by illegal or improper
means’ . .”.
In enacting FISA, Congress was concerned not only with violations of
the Fourth Amendment, but the chilling effect that abuses of
electronic surveillance had on free speech and association. As the
Senate Report accompanying FISA explained:
Also formidable – although incalculable – is the “chilling effect”
which warrantless electronic surveillance may have on the
constitutional rights of those who were not targets of the
surveillance, but who perceived themselves, whether reasonably or
unreasonably, as potential targets. . . . The exercise of political
freedom depends in large measure on citizens’ understanding that
they will be able to be publicly active and dissent from official
policy, within lawful limits, without having to sacrifice the
expectation of privacy that they rightfully hold. Arbitrary or
uncontrolled use of warrantless electronic surveillance can violate
that understanding and impair that public confidence so necessary to
an uninhibited political life.
Moreover, the cases upholding the President’s inherent authority all
preceded the enactment of FISA. No court has ever held that Congress
was without power to regulate electronic surveillance for foreign
intelligence purposes to protect against the abuse of such
surveillance. The government incorrectly relies on a statement in In
re Sealed Case, 310 F.3d 717 (FISA Court of Review 2002), that: “We
take for granted that the President does have [inherent authority to
conduct warrantless searches to obtain foreign intelligence] and,
assuming that is so, FISA could not encroach on the President’s
constitutional power.” But this statement is dictum, made without
any analysis, in a case which raised no issue about the President’s
inherent authority or the constitutional power of Congress to
regulate the President’s exercise of that authority under FISA.
To the contrary, the issue in Sealed Case was whether FISA’s
criteria for the issuance of court orders authorizing electronic
surveillance satisfied the requirements of the Fourth Amendment. The
Court of Review held that they did. Moreover, the cases cited by the
Court of Review for the proposition that the President had inherent
authority to conduct warrantless surveillance all addressed
surveillance predating the enactment of FISA and hence, have no
bearing on whether any inherent authority the President had survives
FISA, i.e., whether the President has not just inherent but
exclusive authority to order warrantless surveillance of Americans.
Finally, if there is any serious constitutional question, it is
raised by the government’s construction of the AUMF. It would give
the President unfettered discretion, subject neither to regulation
by Congress nor scrutiny by a court, to conduct warrantless
electronic surveillance of Americans, based on the President’s (or
his designees’) unilateral determination that there is reason to
believe that one of the parties to the communication is a member of
Al Qaeda or of groups affiliated with or supporting Al Qaeda.
While the Supreme Court has never addressed the question of whether
such warrantless electronic surveillance would meet the requirements
of the Fourth Amendment, and a conclusive assessment of that
question would require a careful analysis of the facts, which the
secrecy surrounding this program precludes. The government maintains
that such surveillance fits within a “special needs” exception to
the Fourth Amendment’s requirement of a warrant or other court order
authorizing a search and that given the post 9/11 circumstances its
electronic surveillance without a court order was not an
“unreasonable search” within the meaning of the Fourth Amendment.
But the “special needs” exception is a narrow doctrine. The doctrine
has usually been invoked to protect law enforcement officers from
concealed weapons, prevent the destruction of physical evidence like
illegal drugs, or permit testing for drugs or alcohol to regulate
the safety of schools, workplaces or transportation. None of these
cases involved government acquisition of the content of private
communications, where the intrusion into privacy has a chilling
effect on freedom of speech and association. It was for that very
reason that the Supreme Court rejected government claims that it had
a special need for warrantless electronic surveillance of
communications for domestic security purposes. As the Court
explained:
National security cases . . . often reflect a convergence of First
and Fourth Amendment values not present in cases of ‘ordinary’ crime
. . . . ‘Historically, the struggle for freedom of speech and press
in England was bound up with the issue of the scope of the search
and seizure power.’ History abundantly documents the tendency of
Government – however benevolent and benign its motives – to view
with suspicion those who most fervently dispute its policies. Fourth
Amendment protections become the more necessary when the targets of
official surveillance may be those suspected of unorthodoxy in their
political beliefs.
These considerations also apply to electronic surveillance of
persons in the United States for foreign intelligence purposes.
Thus, even if there were a "special needs" exception for warrantless
surveillance of Americans, it is likely that a court would construe
it extremely narrowly, subject to the Fourth amendment, and
available only in extraordinary circumstances unforeseen by Congress
and in which there is no time to seek amendment to the law. It is
highly unlikely that a court would uphold the exercise of such
authority for four years, let alone indefinitely. The government has
not shown that resort to FISA’s procedures is impractical, nor has
it provided any explanation as to why in the more than four years
since 9/11 it has not asked Congress for any amendments to FISA –
beyond those sought and obtained under the USA PATRIOT Act – to
address any alleged inadequacy of FISA.
The government’s argument that the President and the NSA have
limited the program to circumstances where they have “reason to
believe” that at least one party to the communication is a member of
Al Qaeda or organizations affiliated with or supporting Al Qaeda
does not provide reasonable protections against unjustified
invasions of the privacy of innocent persons or a safeguard against
abuse from a long-term program. The “very heart” of the Fourth
Amendment requirement is that the judgment of whether the evidence
justifies invasion of a citizen’s privacy be made by a “neutral and
detached magistrate.” As the Court there explained:
The Fourth Amendment does not contemplate the executive officers of
Government as neutral and disinterested magistrates. Their duty and
responsibility are to enforce the laws, to investigate and to
prosecute. . . . But those charged with this investigative and
prosecutorial duty should not be the sole judges of when to utilize
constitutionally sensitive means in pursuing their tasks. The
historical judgment, which the Fourth Amendment accepts, is that
unreviewed executive discretion may yield too readily to pressures
to obtain incriminating evidence and overlook potential invasions of
privacy and protected speech. . . . The Fourth Amendment
contemplates a prior judicial judgment . . . , not the risk that
executive discretion may be reasonably exercised. This judicial role
accords with our basic constitutional doctrine that individual
freedoms will best be preserved through a separation of powers and
division of functions among the different branches and levels of
Government.
Thus, warrantless electronic surveillance in the United States for
foreign intelligence purposes would raise very serious and
substantial Fourth Amendment questions.
The Need for Additional Congressional Investigation and Oversight
There are important questions about the nature, scope, and operation
of the NSA domestic surveillance program that remain unanswered and
which have not been examined by the Congress. For example, it has
been reported that serious dissension existed within the
administration over the expansive authority granted to the NSA, that
then-Deputy Attorney General James Comey, acting in the absence of
Attorney General John Ashcroft who was in the hospital with a
serious pancreatic condition, once refused to reauthorize the NSA
program, causing a high level delegation of White House Counsel
Gonzales and chief of staff Andy Card to visit Ashcroft in the
hospital to appeal Comey’s decision
The questions about the scope of the NSA’s electronic surveillance
are highlighted by conflicting statements made by government
officials. While the Administration now argues that only calls by
suspected terrorists emanating from outside the United States have
been monitored, the San Francisco Chronicle reported on December 22,
2005 that:
White House Press Secretary Scott McClellan said National Security
Agency surveillance ordered by the president after the Sept. 11
attacks four years ago might have inadvertently picked up innocent
conversations conducted entirely within the United States by
Americans or foreigners.
That would violate what McClellan called Bush's requirement that one
party to the communication had to be outside the United States and
raised the possibility that NSA surveillance of terror suspects had
morphed into surreptitious monitoring of some communications
strictly within the United States without court approval.
In Congress, Rep. Peter Hoekstra, R-Mich., chairman of the House
Intelligence Committee, told a news conference that White House
officials had acknowledged during briefings for congressional
leaders that U.S.-to-U.S. communications might be inadvertently
intercepted during NSA's worldwide quest for al Qaeda-related
conversations between terror suspects in the United States and
overseas.
Moreover, public statements made well after the NSA program was
underway raise issues that should be examined by Congress. When
James A. Baker, the Justice Department's counsel for intelligence
policy, testified before the Senate Select Committee on Intelligence
on July 31, 2002, he stated that the Administration did not support
a proposal by Senator Mike DeWine (R-OH) to lower the legal standard
for electronic surveillance “because the proposed change raises both
significant legal and practical issues,” might not “pass
constitutional muster," and “could potentially put at risk ongoing
investigations and prosecutions.” He added:
We have been aggressive in seeking FISA warrants and, thanks to
Congress's passage of the USA PATRIOT Act, we have been able to use
our expanded FISA tools more effectively to combat terrorist
activities. It may not be the case that the probable cause standard
has caused any difficulties in our ability to seek the FISA warrants
we require, and we will need to engage in a significant review to
determine the effect a change in the standard would have on our
ongoing operations. If the current standard has not posed an
obstacle, then there may be little to gain from the lower standard
and, as I previously stated, perhaps much to lose.
Interestingly, these paragraphs no longer appear in the official
version of Baker’s testimony. Senator Russell Feingold recently
accused Attorney General Gonzales of “misleading the Senate” during
his confirmation hearings in his answer to a question about whether
the president could authorize warrantless wiretapping of U.S.
citizens. As the Washington Post reported:
Gonzales said that it was impossible to answer such a hypothetical
question but that it was "not the policy or the agenda of this
president" to authorize actions that conflict with existing law. He
added that he would hope to alert Congress if the president ever
chose to authorize warrantless surveillance, according to a
transcript of the hearing.
Even the President has come under attack for potentially misleading
statements. In a speech in Buffalo, NY, on April 20, 2004 – more
than two years after the NSA program had been authorized – President
Bush stated: Now, by the way, any time you hear the United States
government talking about wiretap, it requires -- a wiretap requires
a court order. Nothing has changed, by the way. When we're talking
about chasing down terrorists, we're talking about getting a court
order before we do so.
Thus, the Task Force Recommendations also urge the Congress to
conduct a thorough, comprehensive investigation to determine: (a)
the nature and extent of electronic surveillance of U.S. persons
conducted by any U.S. government agency for foreign intelligence
purposes that does not comply with FISA; (b) what basis or bases
were advanced (at the time it was initiated and subsequently) for
the legality of such surveillance; (c) whether the Congress was
properly informed of and consulted as to the surveillance; and (d)
the nature of the information obtained as a result of the
surveillance and whether it was retained or shared with other
agencies.
We also believe that these hearings should be open and conducted in
a fashion that will provide a clear and credible account to the
people of the United States, except to the extent the Congress
determines that any portions of such proceedings must be closed to
prevent the disclosure of classified or other protected information.
Finally, the Congressional Research Service report of January 18,
2006, “Statutory Procedures Under Which Congress Is To Be Informed
of U.S. Intelligence Activities, Including Covert Actions,”16 makes
it clear that Congress needs to thoroughly review and make
recommendations concerning the intelligence oversight process, to
ensure that the House and Senate are fully and currently informed of
all intelligence operations as required by the National Security Act
of 1947.
Conclusion
The American Bar Association has stood shoulder to shoulder with the
president in the fight against terrorism. Every member of the Task
Force – indeed, every member of this great Association – wants the
president to use all appropriate tools to defeat these enemies of
democracy. However, as President Greco said in creating the Task
Force, “We must continually and vigilantly protect our Constitution
and defend the rule of law.” And, as Supreme Court Justice Murphy
warned in a case arising during World War II:
"[W]e must be on constant guard against an excessive use of any
power, military or otherwise, that results in the needless
destruction of our rights and liberties. There must be a careful
balancing of interests. And we must ever keep in mind that “The
Constitution of the United States is a law for rulers and people,
equally in war and in peace, and covers with the shield of its
protection all classes of men, at all times, and under all
circumstances.”
We simply cannot allow our constitutional freedoms to become a
victim of the fight against terrorism. The proposed Recommendations
should be adopted by the ABA House of Delegates in order to strike a
proper balance between individual liberty and Executive power.
Respectfully submitted,
NEAL R. SONNETT, Chair ABA Task Force on Domestic Surveillance in
the Fight Against Terrorism
February 2006
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