The Legal Case for Bush’s Wiretapping

With Alberto Gonzales testifying before Congress today defending Bush’s policy of wiretapping phone calls from U.S. phones to suspected foreign terrorists, it’s a good time to review the legality of the program.

For the Mainstream Media, there is nothing to debate. They have consistently presented the program as illegal.

But if one actually looks at the law, it seems the president had a good legal case.

In a December 22, 2005 memo to Congress, the Bush Administration made that case.

This constitutional authority includes the authority to order warrantless foreign intelligence surveillance within the United States, as all federal appellate courts, including at least four circuits, to have addressed the issue have concluded. See, e.g., In re Sealed Case, 310 F.3d 717, 742 (FISA Ct. of Review 2002) (“[A]ll the other courts to have decided the issue [have] held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. . . . We take for granted that the President does have that authority. . . .”). The Supreme Court has said that warrants are generally required in the context of purely domestic threats, but it expressly distinguished foreign threats. See United States v. United States District Court, 407 U.S. 297, 308 (1972). As Justice Byron White recognized almost 40 years ago, Presidents have long exercised the authority to conduct warrantless surveillance for national security purposes, and a warrant is unnecessary “if the President of the United States or his chief legal officer, the Attorney General, has considered the requirements of national security and authorized electronic surveillance as reasonable.” Katz v. United States, 389 U.S. 347, 363-64 (1967) (White, J., concurring).

If the president does have the Constitutional authority to tap phones of people suspected to be in contact with foreign terrorists, no law that Congress passes can take that away from him.

Neither does the failure of a previous president to use this Constitutional power make it go away. Presidents may have all kinds of reasons, good or bad, to accomodate Congress.

For example, every president since the passage of the War Powers Resolution of 1973 has held it to be unconstitutional. Yet the Elder Bush chose to ask Congress for approval of the military liberation of Kuwait.

The Clinton Administration, for example, explicitly claimed a Constitutional right to conduct warrantless searches in national security matters. It ended up complying with the wishes of Congress, but in sufficiently dire circumstances would probably have been more assertive.

Let’s continue with the document.

The President’s constitutional authority to direct the NSA to conduct the activities he described is supplemented by statutory authority under the AUMF. The AUMF authorizes the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks of September 1 1, 2001, . . . in order to prevent any future acts of international terrorism against the United States.” § 2(a). The AUMF clearly contemplates action within the United States, See also id. pmbl. (the attacks of September 11 “render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad”). The AUMF cannot be read as limited to authorizing the use of force against Afghanistan, as some have argued. Indeed, those who directly “committed” the attacks of September 11 resided in the United States for months before those attacks. The reality of the September 11 plot demonstrates that the authorization of force covers activities both on foreign soil and in America.

In Hanmdi v. Rumsfeld, 542 U.S. 507 (2004), the Supreme Court addressed the scope of the AUMF. At least five Justices concluded that the AUMF authorized the President to detain a U.S. citizen in the United States because “detention to prevent a combatant’s return to the battlefield is a fundamental incident of waging war” and is therefore included in the “necessary and appropriate force” authorized by the Congress. Id. at 518-19 (plurality opinion of O’Connor, J.); see id. at 587 (Thomas, J., dissenting). These five Justices concluded that the AUMF “clearly and unmistakably authorize[s]” the “fundamental incident[s] of waging war.” Id. at 5 18-19 (plurality opinion); see id. at 587 (Thomas, J., dissenting).

Communications intelligence targeted at the enemy is a fundamental incident of the use of military force. Indeed, throughout history, signals intelligence has formed a critical part of waging war. In the Civil War, each side tapped the telegraph lines of the other. In the World Wars, the United States intercepted telegrams into and out of the country. The AUMF cannot be read to exclude this long-recognized and essential authority to conduct communications intelligence targeted at the enemy. We cannot fight a war blind. Because communications intelligence activities constitute, to use the language of Hamdi, a fundamental incident of waging war, the AUMF clearly und unmistakeably authorizes such activities directed against the communications of our enemy.

In his prepared testimony for Congress, Gonzales says:

Some have suggested that the AUMF did not authorize intelligence collection inside the United States. That contention cannot be squared with the reality of the September 11th attacks on our soil, launched from within the country, and carried out by sleeper agents who had lived amongst us. Given this background, Congress certainly intended to support the President’s use of force to repel an unfolding attack within the United States. Congress also must be understood to have authorized the traditional means by which the military detects and responds to such attacks. Nor can this contention be squared with the language of the AUMF itself, which calls on the President to protect Americans both “at home and abroad,” to take action to prevent further terrorist attacks “against the United States,” and directs him to determine who was responsible for the attacks. Such a contention is also contrary to the long history of wartime surveillance, which has often involved the interception of enemy communications into and out of the United States.

Against this backdrop, the NSA’s focused terrorist surveillance program falls squarely within the broad authorization of the AUMF even though, as some have argued, the AUMF does not expressly mention surveillance. The AUMF also does not mention detention of enemy combatants. But we know from the Supreme Court’s decision in Hamdi that such detention is authorized even for U.S. citizens. Justice O’Connor reasoned: “Because detention to prevent a combatant’s return to the battlefield is a fundamental incident of waging war, in permitting the use of ‘necessary and appropriate force,’ Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here.” 542 U.S. at 519 (plurality opinion).

In other words, when Congress gives the president the power to wage war, the President can do all those thing that have historically been part of “waging war.”

The Powerline blog has a good rundown of all these issues.

A long, detailed brief for the Administration’s case can be found here.

One final question has to be: why didn’t the Bush Administration use the FISA Court, as all previous presidents did? One possible answer comes from an article in the Seattle Post-Intelligencer:

WASHINGTON — Government records show that the administration was encountering unprecedented second-guessing by the secret federal surveillance court when President Bush decided to bypass the panel and order surveillance of U.S.-based terror suspects without the court’s approval.

A review of Justice Department reports to Congress shows that the 26-year-old Foreign Intelligence Surveillance Court modified more wiretap requests from the Bush administration than from the four previous presidential administrations combined.

The court’s repeated intervention in Bush administration wiretap requests may explain why the president decided to bypass the court nearly four years ago to launch secret National Security Agency spying on hundreds and possibly thousands of Americans and foreigners inside the United States, according to James Bamford, an acknowledged authority on the supersecret NSA, which intercepts telephone calls, e-mails, faxes and Internet communications.

Liberals who don’t like this exercise of presidential power have some options. Huffing and puffing about the “illegal” actions of the president, and talking about impeachment are pretty bad ones, and only moonbat leftists, and Republicans (who like to watch the left implode) want that to happen.

But changing the law to allow the president to do this kind of wiretapping — which obviously needs to be done — while getting decent Congressional and judicial oversight is where serious discussion begins.