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Responses to the Government's Defense of National Security Agency Warrantless Wiretaps

This page is a work in progress, which we will update periodically as new myths are promulgated and as additional information regarding the warrantless searches becomes available. We invite you to bring new information to our attention by emailing us at info@bordc.org.

Click on a Bush administration myth below for relevant facts and arguments:

Myth #1: It's lawful.

Reality Check:

Title 18, Part I, Chapter 119, Section 2511: "The Foreign Intelligence Surveillance Act of 1978 [FISA] 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."

Subchapter I, Section 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.... An offense described in this section is punishable by a fine of not more than $10,000 or imprisonment for not more than five years, or both."

The Details:

FISA was passed in 1978 in response to the Nixon Administration's warrantless surveillance of antiwar groups and other political opponents. It was enacted to outlaw abuse of the Fourth Amendment rights of Americans in times of war as well as times of peace. It forbade the federal government from spying on Americans by reading their mail (and now their e-mail as well) or listening to their phone conversations without obtaining a warrant from the FISA court established by Congress. It also established criminal penalties for failure to comply with FISA. The Foreign Intelligence Surveillance Court (FISC) has approved tens of thousands of warrants over the years and has rejected only a handful.

Myth #2: FISA wouldn't allow us to wiretap an Al Qaeda member calling someone in the U.S.

“If [an Al Qaeda link or affiliate is] making a phone call in the United States, it seems like to me we want to know why.” President Bush at Kansas State University January 23, 2006.

Reality Check:

FISA would not prevent such a wiretap. It does not apply at all to wiretaps targeted at foreign nationals abroad, even if the foreign national calls a non-U.S. person in the U.S. FISA applies only when the surveillance targets a citizen or permanent resident of the U.S., or when the surveillance is obtained from a wiretap physically located within the U.S. Even when the FISA law applies, the government need not wait for FISA approval to begin the wiretap. It may wiretap the target for up to 72 hours before obtaining approval of a FISA judge, based on a showing of probable cause that the target is an agent of a foreign power, a member of a terrorist organization or a "lone wolf" terrorist.

Myth #3: NSA is following the Constitution with respect to the Fourth Amendment.

“If there's any amendment to the Constitution that employees of the National Security Agency are familiar with, it's the Fourth.” General Michael V. Hayden at the National Press Club January 23, 2006.

Reality Check:

In the Q&A following his speech, Hayden argued with Knight Ridder reporter Jonathan Landay about the Fourth Amendment constitutional standard, which Hayden claimed did not mention “probable cause.”

The Fourth Amendment clearly states, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized” [italics added]

The Details:

Hayden was incorrect when he insisted that the Fourth Amendment did not reference probable cause. But to be clear, in order to conform to FISA, the agent applying for the wiretap warrant must certify only that he or she has probable cause to believe that the wiretap target is an agent of a foreign power or a member of a terrorist organization. rather than the traditional Fourth Amendment probable cause standard that the target has been involved in a crime or intends to commit a crime.

A few days after it was revealed that the Bush Administration ignored the FISA Court and conducted NSA spying without court approval, Judge James Robertson resigned from the FISA Court because he did not want the FISA process to be compromised.

In 2002, Senator Mike DeWine (R-Ohio) proposed a Senate bill that would have lowered the standard of proof for obtaining FISA warrants for surveillance of non-U.S. citizens from “probable cause” that the person was connected with terrorism or spying to a “reasonable suspicion.” The Bush administration rejected the lower standard, nominally because it was likely unconstitutional, but more probably (as we now know from the comments of Gen. Michael Hayden and others) because it had already de facto lowered the standard it was using for the NSA program to a “reasonable belief” instead of probable cause.

Myth #4: We've informed Congress.

“If I wanted to break the law, why was I briefing Congress?” President Bush at Kansas State University January 23, 2006.

Reality Check:

Key Republicans in Congress don't agree that they were properly briefed. For example, on Sunday, July 9, 2006, House Intelligence Committee Chairman Peter Hoekstra (R-Mich.) said that the White House possibly broke the law by keeping intelligence activities a secret from the lawmakers responsible for overseeing them. Rep. Hoekstra said he was infomed about the programs by whistleblowers in the intelligence community and then asked the Bush administration, using code names. Only then were the other members of the House and Senate intelligence committees briefed on the programs.

On Fox News Sunday, Hoekstra said, "We can’t be briefed on every little thing that they are doing. But in this case, there was at least one major–what I consider significant activity that we had not been briefed on. I want to set the standard that it is not optional for this president or any president or people in the executive community not to keep the intelligence committees fully informed of what they are doing.” (Read July 10, 2006, story in Washington Post.)

The Details:

As noted in a January 18, 2006, memo by the nonpartisan Congressional Research Service, titled Statutory Procedures Under Which Congress Is To Be Informed of U.S. Intelligence Activities, Including Covert Actions (PDF), President Bush was obligated to fully inform the House and Senate Select Committees on Intelligence. Instead, through Vice President Cheney, he informed only a handful of Committee leaders.

On December 19, 2005, Senator Rockefeller released a handwritten letter he wrote to Vice President Cheney, dated July 17, 2003 in which he objected to the fact that he is not a lawyer and was not allowed to inform anyone else or even consult his own attorney to gain clarity about whether the NSA wiretapping was legal or illegal.

Note the implications for Democracy and see this for what it is: a frontal assault on the people, their representatives in Congress, and the rule of law.

Myth #5: There's plenty of oversight.

According to President Bush, all sorts of government lawyers have approved this.

Reality Check:

To guard against tyranny, our founding fathers created a tripartite government—an Executive Branch, a Judiciary Branch, and a Legislative Branch—not a government of an Executive Branch and its own cadre of lawyers! Lawyers working for the Executive Branch have a tendency to defend the policies and actions of that branch. Unlike members of Congress, they are not accountable to the people to ensure that their rights and liberties are upheld.

In 1972, the Supreme Court rejected arguments quite similar to those the administration is now making to defend warrantless surveillance in the interests of national security solely upon the discretion of the executive branch. In the case of United States v. U.S. District Court (before FISA), it ruled that domestic surveillance could not take place without judicial review and a warrant. Although the case was silent on the issue of surveilling foreign powers and their agents, the Court examined the limits on the President's power, acting through the Attorney General, to authorize electronic surveillance in internal security matters without prior judicial approval. Justice Lewis Powell, writing for the majority, stated, "These Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillances may be conducted solely within the discretion of the Executive".

The Details:

In 2003 the program was temporarily suspended after then Deputy Attorney General James Comey protested. After being denied by the Justice Department, then White House Attorney Gonzales visited then Attorney General Ashcroft in the hospital. According to Newsweek, the program was quickly reauthorized after some additional steps merely within the executive branch were added.

The Foreign Intelligence Surveillance Act (FISA) was made law by Congress in 1978. U.S. Code Title 18, Part I, Chapter 119, Section 2511 (f) clearly states that “…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.”

Myth #6: Congress authorized it.

Congress by statute has confirmed and supplemented the President’s recognized authority under Article II of the Constitution to conduct such warrantless surveillance to prevent further catastrophic attacks on the homeland.

Source: U.S. Department of Justice memorandum of January 19, 2006, Legal Authorities Supporting the Activities of the National Security Agency Described by the President (PDF)

Reality Check:

Public Law 107-40, the Authorization to Use Military Force (AUMF) does not address domestic surveillance. It 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 acts that occurred on September 11, 2001…”

The AUMF says nothing whatsoever about wiretapping in the U.S. during wartime, while the FISA expressly addresses the subject, limiting authorization for warrantless surveillance to the first 15 days after war has been declared.

The Details:

Did the administration conveniently forget language authorizing force “in the United States” was dropped from the authorization that the Bush administration asked them to pass? Former Senator Tom Daschle was Senate majority leader at the time of the AUMF, and wrote in a Washington Post article on December 25, 2005 that

[l]iterally minutes before the Senate cast its vote, the administration sought to add the words ‘in the United States and’ after ‘appropriate force’ in the agreed-upon text. This last-minute change would have given the president broad authority to exercise expansive powers not just overseas – where we all understood he wanted authority to act – but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused.

The Congressional Research Service interpreted the AUMF as follows:

The fact that Congress amended FISA subsequent to September 11, 2001, in order to maximize its effectiveness against the terrorist threat further bolsters the notion that FISA is intended to remain fully applicable. To conclude otherwise would appear to require an assumption that Congress intended the AUMF to authorize the President to conduct electronic surveillance, even against American citizens not involved in combat, under fewer restrictions than would apply during a declared war, notwithstanding FISA provisions strengthened to take such circumstances into account.

Source: Congressional Research Service, Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information, January 5, 2006, p. 37.

It is hard to find any ambiguity in the AUMF or FISA's clear exclusivity language that would justify the administration's preferred, imaginative but incredible reading.

Myth #7: The Supreme Court approves.

The Supreme Court approves domestic surveillance, based on its decision in Hamdi v. Rumsfeld that the Authorization to Use Military Force (AUMF) passed by Congress in the wake of Sept. 11th included the power to detain enemy combatants captured on the battlefield.

Reality Check:

In looking at the AUMF authorization, a plurality of the Supreme Court agreed only 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 when it passed 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.

The Details:

It is strange to use the Hamdi case, which the administration lost, to justify the president’s end run around the FISA court and the Fourth Amendment. In striking down the Bush administration’s assumed power to deny U.S. citizen enemy combatant Yasser Esam Hamdi access to a court, Supreme Court Justice Sandra Day O’Connor stated, “A state of war is not a blank check for the President.” A plurality of the Supreme Court agreed that under the AUMF, the President could name U.S. citizens captured on the battlefield in Afghanistan enemy combatants. However, surveillance is not the same thing as detention, battlefield operations abroad are not the same as domestic surveillance within the United States where the Fourth Amendment applies in full force, and in Hamdi it’s notable that the Court did not agree that the authorization superceded basic rights to due process. The Supreme Court most certainly did not permit wiretapping within the United States without complying with FISA’s expressly exclusive means.

In fact, the Supreme Court has never upheld warrantless wiretapping within the United States, for any purpose. In the landmark ruling of Katz v. United States (1967), the Supreme Court held that the Fourth Amendment applied to telephone calls, and that probable cause and a warrant are required before electronic surveillance of such communications may be conducted. And in a previously cited decision (United States v. United States District Court, 1972), the Supreme Court specifically rejected the argument that domestic security concerns justify warrantless wiretapping.

Myth #8: This power derives from the Constitution.

The NSA activities are supported by the President’s ... constitutional authority as Commander in Chief ... to conduct warrantless surveillance of enemy forces for intelligence purposes to detect and disrupt armed attacks on the United States. The President has the chief responsibility under the Constitution to protect America from attack, and the Constitution gives the President the authority necessary to fulfill that solemn responsibility.

Source: U.S. Department of Justice memorandum of January 19, 2006, Legal Authorities Supporting the Activities of the National Security Agency Described by the President (PDF)

Reality Check:

As the February 2, 2006, letter to members of Congress from a preeminent group of legal scholars states, "The Commander in Chief role does not authorize him to override express criminal prohibitions on domestic electronic surveillance." To argue, as the Administration does, that the President has exclusive constitutionality of "the means and methods of engaging the enemy," and that any conduct with relevance to this "engaging of the enemy" is immune from congressional regulation is not supported by any precedent of the Supreme Court. Nor is it consistent with the overall constitutional structure:

  • Congress has the explicit power "To make Rules for the Government and Regulation of the land and naval Forces" (U.S. Constitution, article I, section 8, clause 14).
  • And Congress has the explicit power to "make all Laws which shall be necessary and proper for carrying into Execution ... all ... Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof" (U.S. Constitution, Article I, Section 18). Congress passed FISA to regulate domestic surveillance.
  • The President has the explicit constitutional obligation to "take Care that the Laws be faithfully executed" (U.S. Constitution, article II, section 3).

The Details:

No one has questioned the President's power to gather foreign intelligence information abroad, such as on the battlefield or by targeting foreign spies or terrorists. However, surveillance in the United States, where the Constitution applies in full force, is subject to additional checks and balances protecting individual rights. As stated above in "The Details" on Myth #7, the Supreme Court in Katz v. United States held that the Fourth Amendment applies to telephone calls and that probable cause and a warrant are required before electronic surveillance of such communications may be conducted. Following that ruling, Congress passed FISA to address the Nixon administration's abuses of warrantless surveillance and established it as the exclusive means by which electronic surveillance can be conducted which provides for the obtaining of a warrant from the FISA court.

The Supreme Court has addressed the issue of executive action contrary to congressional statute during wartime only a few times, and each time it has required the President to adhere to legislative limitations on his authority--Youngstown Sheet and Tube, 343 U.S. 597 (1952); Little v. Barreme, 6 U.S. 170 (1948)

More recently the Supreme Court has rejected a similar assertion of wartime authority in Rasul v. Bush, 542 U.S. 466 (2004). The Bush administration argued that it would be unconstitutional to interpret a statute to infringe upon the President's powers as Commander in Chief. According to the February 2, 2006, letter of the legal scholars to members of Congress, the Administration Brief "argued that construing the habeas corpus statute to encompass actions filed on behalf of Guantánamo detainees 'would directly interfere with the Executive's conduct of the military campaign against Al Qaeda and its supporters' and would raise 'grave constitutional problems'." The Court did not accept this argument and held that Congress had conferred habeas jurisdiction on the federal courts to entertain the detainees' habeas action. Congress has enacted a number of statutes regulating the Commander-in-Chief's "means and methods of engaging the enemy." It has subjected the Armed Forces to the Uniform Code of Military Justice, and more recently enacted statutes prohibiting torture under all circumstances, 18 U.S.C. 2340-2340A, and prohibiting the use of cruel, inhuman and degrading treatment.

Myth #9: There's historical precedent.

The administration references a “long tradition of wartime enemy surveillance” authorized by presidents, including George Washington, Woodrow Wilson, and Franklin Delano Roosevelt.

Reality Check:

Although the administration's examples except George Washington are correct, they are irrelevant because they predate Congress's enactment of FISA in 1978 as "the exclusive means by which electronic surveillance ... and the interception of domestic wire, oral, and electronic communications may be conducted." The enumeration of presidents conveniently excludes President Nixon, whose surveillance of antiwar groups and political opponents inspired the enactment of FISA.

Furthermore, George Washington does not belong on the list, because when he authorized wartime enemy surveillance in 1775, during the Revolution War, he was a General, not a President, and his surveillance authorization pre-dated not only FISA but the existence of the United States and its Constitution and Bill of Rights.

The truth is that this president’s extreme claims of executive power – to torture, to kidnap and detain indefinitely without charge, to ignore explicit Congressional laws--are actually unprecedented in degree in U.S. history, and fly in the face of this nation’s founding principles of revolution against arbitrary imperial power.

Myth #10: We need to do this to fight terror.

In President Bush's State of the Union address on January 31, he stated emphatically, "We will not ... wait to be hit again," implying a cause and effect relationship between his administration adhering to the Constitution and Al Qaeda attacking us. President Bush cynically invokes 9/11 to justify extraordinary and apparently illegal usurpations of executive power – and attempts to reframe the issue by euphemistically referring to this domestic spying program as a “terrorist surveillance program” that has saved lives.

Reality Check:

Even if the administration's claim that this program truly focuses only on terrorists, that is no excuse for evading the law and the clear requirement that warrants be obtained. The administration's claim that the program is limited contradict the carefully researched and reported stories on this program, such as Homeland Security chief Chertoff's admission that thousands of calls have been monitored, and FBI officials' complaints about having to check “thousands” of useless leads, thereby diverting FBI resources. There cannot be definitive proof so long as the program is kept completely secret. Merely stating a lofty purpose does not excuse a president from his duty to the Constitution and to obey the laws enacted by the Congress. The only plot in the United States that the administration has claimed was stopped was the ridiculous plot of Iyman Faris to destroy the Brooklyn Bridge using a blowtorch – a plot that they previously said was stopped using the Patriot Act.

The administration’s record of deception and its proven record of maintaining thousands of pages of files on organizations like the ACLU, Greenpeace, and other nonviolent organizations; its harassment and monitoring of innocent Muslims, mosques, anti-war protesters, and political dissidents; its issuance of tens of thousands of national security letters to businesses, libraries, hospitals and other organizations insisting that they divulge private information regarding their customers; its collaboration with airlines, telecommunication, and information technology companies to again reveal private consumer information; its use of the Pentagon to spy on peaceful religious groups like the Quakers and the Catholic Workers; all give the lie to the assertion that the administration is focused only on “terrorists.”

Myth #11: Had we done this before September 11th, the attacks could have been prevented.

Vice President Cheney has stated that the program has saved thousands of lives. General Michael V. Hayden and other members of the Bush administration have suggested that the program could have prevented the September 11th attacks.

Reality Check:

The same officials who said at the time that no one could have foreseen the attacks, now say that they could have been prevented. The government agencies did not miss the 9/11 plot because it may take a few hours to get a warrant to wiretap phone calls or read e-mail messages. This is a cynical use of 9/11 to produce the kind of fear that makes people lose sight of the importance of their civil liberties.

We now know from the 9/11 Commissioners and other sources that the attacks were both foreseen in many ways (including in the August Presidential Daily Briefing) and preventable. What were needed to prevent them were competent human actions, not expanded powers that infringe civil liberties.

Myth #12: It’s a limited program.

Said Gonzales, “It is an early-warning system with only one purpose: to detect and prevent the next attack on the United States.”

Reality Check:

Current law provides a 72-hour window of opportunity for wiretapping before the government must obtain a secret FISA court order to continue the wiretapping.

The Details:

The NSA program is actually limitless, because the executive branch has withheld oversight from all but a few in its own clandestine clique.

Myth #13: Going through FISA takes too much time.

Reality Check:

As David Cole has said, “[Attorney General Gonzales] is free to go and ask Congress to change the law. He is not free, as he did here, to order executive branch officials to violate that law.”

The Details:

According to Attorney General Gonzales, FISA’s 72-hour warrantless wiretapping window, within which the government must apply for a warrant is not long enough. Intelligence officers “would have to get the sign-off of lawyers at the NSA that all provisions of FISA have been satisfied, then lawyers in the Department of Justice would have to be similarly satisfied, and finally as attorney general I would have to be satisfied that the search meets the requirements of FISA. And then we would have to be prepared to follow up with a full FISA application within the 72 hours.”

While this self-justifying explanation overstates the bureaucratic requirements, the truth is that FISA judges can and have acted quickly (meeting on occasion in the middle of the night or early morning and issuing warrants within hours or minutes); more importantly, the law is clear that the government has up to three days (or fifteen days after a declaration of war) to obtain the warrants.

What Gonzales seems to really be saying here, is that in a number of cases where they would like to engage in domestic spying, they don’t have sufficient factual grounds of the sort that would satisfy even the FISA court – which has declined less than a handful of the nearly 20,000 warrants it has been asked to approve. This implicit admission should be of concern to all Americans.

Other Resources

Domestic Surveillance: National Security Agency Warrantless Wiretapping
At-a-glance FISA wiretapping warrant process
Current Threats: Privacy/Freedom from Unreasonable Searches and Seizures