NSA domestic spying lacks legal authority -- experts

A group of 14 prominent constitutional experts and former government officials released a letter to Congressional leaders on Jan. 9 characterizing the Bush administration's defense of its National Security Agency (NSA) domestic spying program as lacking "any plausible legal authority." The signers include the nation's leading constitutional scholars: the Deans or former Deans of Yale, Stanford and University of Chicago Law Schools; a former Director of the FBI; a former Deputy Attorney General; a former Acting Solicitor General; two lawyers who worked in the executive branch under President George W. Bush; and a prominent conservative scholar and fellow at the Hoover Institution. The letter, which was addressed to Congressional leaders, responds to a Dec. 22 Justice Department letter that sought to offer a legal defense of the program. The experts' letter makes three basic points: First, it rejects the Bush administration's principal defense–that the Authorization to Use Military Force (AUMF) implicitly authorized warrantless domestic wiretapping. The authors note that the AUMF is silent on wiretapping, and that Congress has specifically stated in another statute that the Foreign Intelligence Surveillance Act (FISA) and the criminal code–both of which require probable cause and a judicial order for wiretaps–are the "exclusive means" for electronic surveillance in the US. Moreover, in FISA Congress expressly addressed warrantless wiretapping during wartime, and limited such authority to the first 15 days of the conflict. If a declaration of war is not sufficient to authorize unlimited warrantless domestic spying, surely an authorization to use military force is not either. Second, the letter rejects the administration's contention that barring domestic warrantless wiretapping would raise a potential conflict with the president's Article II role as Commander in Chief. To say the president has inherent power to act in the absence of Congressional action, the authors note, does not mean that he has the power to act contrary to express statutory dictates where Congress has acted. Here, Congress and the president together enacted a law, FISA, that specifically addresses the topic, and President Bush is bound to follow that law. Third, the letter notes that warrantless domestic wiretapping raises serious questions under the Fourth Amendment. The Supreme Court has never upheld domestic wiretapping without probable cause and a warrant. And as FISA demonstrates, a warrant process can accommodate foreign intelligence searches. In conclusion the letter asserts: "If the Administration felt that FISA was insufficient, the proper course was to seek a legislative amendment. One of the crucial features of a constitutional democracy is that it is always open to the president–or anyone else–to seek to change the law. But it is also beyond dispute that, in such a democracy, the president cannot simply violate criminal laws behind closed doors because he deems them obsolete or impracticable." The Congressional Research Service released a report on the issue on Jan. 5 that similarly concludes that the Bush Administration's defense of the program is unpersuasive. In addition to being delivered to Congress, the letter will be published in the forthcoming issue of the New York Review of Books and will be available on the New York Review's website.