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A Legal Analysis of the NSA Warrantless Surveillance Program

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The warrantless National Security Agency (NSA) surveillance program is an illegal and unnecessary intrusion into the privacy of all Americans. The Congress must act swiftly to determine the scope of the program and insist that all electronic surveillance in the United States be conducted pursuant to the Foreign Intelligence Surveillance Act (FISA). This memorandum examines the government's legal defense of the program and concludes that it lacks serious merit.

The Bush Administration Position

The government's defense of the NSA warrantless surveillance program, first reported by the New York Times and then confirmed by the administration, rests on both inherent powers and a claim of statutory authorization.

The precise details of the program are still not known. In a December 19, 2005 press briefing, Attorney General Alberto Gonzales and General Michael V. Hayden, principal deputy director of National Intelligence, laid out the legal justification for the NSA program. The administration has admitted that after 9/11 the President authorized NSA to conduct warrantless electronic surveillance in the United States. The program included acquiring the content of conversations of American citizens in the United States at least when the other party is abroad and one or both are suspected of having ties to al Qaeda.

The administration's position is set out most clearly in a letter from Assistant Attorney General William Moschella, sent on December 22, 2005 to the leaders of the House and Senate Intelligence committees, and in the Press Briefing.

First, in the words of the Moschella Letter, "under Article II of the Constitution, including in his capacity as Commander in Chief, the President has the responsibility to protect the Nation from further [terrorist] attacks, and the Constitution gives him all necessary authority to fulfill that duty," including "the authority to order warrantless foreign intelligence surveillance within the United States."

Second, in the words of the Attorney General, "the authorization to use force, which was passed by the Congress in the days following September 11th, constitutes" authority for the administration "to engage in this kind of signals intelligence."

The claim of inherent authority might have some plausibility had Congress not acted so decisively to prohibit warrantless surveillance of U.S. persons in the United States when it enacted FISA in 1978. The second claim – that after September 11 Congress authorized the President to conduct this warrantless surveillance program – is utterly specious.

The arguments regarding the constitutional and statutory claims are intertwined. As Justice Jackson explained in his influential and frequently cited concurring opinion in the Steel Seizure case, the scope of the President's constitutional authority is affected by what Congress has done. The President's power is greatest when he acts with the support of the Congress and is weakest when he acts directly contrary to the will of Congress. The record is clear that Congress intended to prohibit warrantless intercepts in the United States. Because the constitutional argument can only be evaluated in light of the statutory claim, I deal with the latter first.

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