Legal FAQs on NSA Wiretaps
This document is the introduction and executive summary for Legal FAQs (Frequently Asked Questions) about the National Security Agency wiretap program. This document is current as of January 30, but may be updated.
Based on the facts available to date, the wiretap program appears to be clearly illegal.
1. Wiretaps by federal officials are generally prohibited, unless there is a particular legal basis such as a court order. The “exclusive basis” for wiretaps is either Title III for criminal investigations or the Foreign Intelligence Surveillance Act (FISA) for foreign intelligence investigations. It is a crime to conduct wiretaps unless there is a “statutory basis” for doing so.
2. The Administration has given two, and only two, reasons why it says the criminal law does not apply to the program.
3. The first is the Authorization of Use of Military Force (AUMF), passed on September 13, 2001. For multiple reasons, the AUMF does not provide a legal basis for the NSA wiretap program.
4. The second is that the President has inherent authority that does not derive from statutes. The President indeed has important inherent authority as leader of the Executive Branch and Commander-in-Chief, but the current Administration has taken that position to unprecedented lengths. We have a system of checks and balances. As the Supreme Court has made clear, the President’s power is at its “lowest ebb” when his actions directly contradict a lawful statute, as they do here.
5. In addition, as we learn more facts about the program, there may well be a clear case that government actions have violated the Fourth Amendment rules against unreasonable searches and seizures.
6. In short, it is a crime to conduct wiretaps in the United States, of U.S. citizens, unless there is a statutory basis for doing so. There was no statutory basis here.
The goal of "Legal FAQs about the NSA Program" is to explain the law. This document explains the legal issues as I understand them in light of my experience in the area, including as a government official and law professor.
Widespread violation of the criminal law is serious in its own right. It is far better to change the law than to break it, and Congress has amended FISA often, including approving the changes the Administration has proposed since September 11. I write briefly to suggest a partial list of other sorts of concerns raised by the NSA wiretapping program:
1. Jeopardizes ongoing investigations. When laws are broken, the legal system imposes consequences. Revelations about the NSA wiretapping program throw into doubt a wide range of investigations and prosecutions in the fight against terrorism. In criminal cases that can put terrorists behind bars, judges now have to worry that evidence was based on illegal wiretaps. Evidence might be excluded or convictions overturned. More broadly, defendants will be emboldened to challenge the prosecutions, making it more difficult to get cooperation that will help us to fight terrorism. Even more broadly, in light of the years of misrepresentations about the program, the FISA court and other courts will not know when to believe the government when it says where evidence has come from. Judges who believe in the rule of law may feel obligated to be stricter with the government, rather than being able to trust its statements.
2. Wastes valuable investigative resources. A January 17 story in the New York Times highlighted the huge amount of time and resources devoted to the program, apparently with minimal results. In the days after 9/11, the FBI decided to follow up on every lead, an understandable response to the urgent threat. Long lists of phone numbers continued to be generated by the NSA program, however. According to a senior prosecutor: "It affected the F.B.I. in the sense that they had to devote so many resources to tracking every single one of these leads, and, in my experience, they were all dry leads." Long after 9/11, “the N.S.A. material continued to be viewed as unproductive, prompting agents to joke that a new bunch of tips meant more calls to Pizza Hut.” The Pizza Hut joke suggests a bleak reality for the program – many ordinary Americans have been tracked by this program, in violation of the law, for little apparent good.
3. Undermines the effectiveness of the NSA. FISA was a reaction to scandals in the 1970s, when it was learned that the NSA was routinely monitoring the international communications of Americans. In addition to phone company cooperation, Operation Minaret involved telegram companies that gave the NSA a large fraction of the telegrams entering or leaving the United States. FISA was passed in response to these revelations.
Until now, the big picture on FISA is that is has worked. The NSA and other agencies have been given the power to do intensive surveillance against terrorists and other agents of foreign powers. In return, the agencies have followed the law passed by Congress and signed by the President.
The new revelations are a return to the bad old days, when the Administration told Congress one thing but did another. Press reports about data mining of many U.S. phone calls, thus far denied by the Administration, illustrate the problem – it is impossible to tell now whether the one program the President has admitted to is part of a larger group of programs in which the Administration is violating surveillance laws. In 2004, President Bush said on multiple occasions that judicial warrants were still needed to conduct wiretaps, but we now know he was ordering wiretaps without warrants at the same time.
In response to these revelations, a key concern is that the long-range effectiveness of the NSA will be undermined. Once trust is lost, it is hard to restore. Morale of career officers may suffer as their hard work is called into question. Needed initiatives may be placed on hold because of fear of Congressional second-guessing. Well-intentioned reforms may get in the way of helpful actions.
The revelations of recent weeks are big news. The Administration has risked the long-term effectiveness of the NSA by going behind Congress’ back.
4. Threatens the constitutional system of checks and balances. The current Administration is claiming executive power far beyond our historical understanding. Here are three recent examples: it can wiretap without a warrant in the United States, contrary to FISA (the NSA program); it can torture, contrary to international law and the recent statute championed by Senator McCain; and it can hold a U.S. citizen in detention forever, with no judicial review, simply because the President says the citizen is an “enemy combatant.” It is hard to see any limits to the President’s claims – the entire PATRIOT Act has become essentially irrelevant because the President claims he would have the powers without the law. And these extremely broad powers would go on for years to come, so long as there are terrorists in the world who oppose the United States.
This list of powers resembles “martial law” as it exists in other countries. We never declared martial law during World War II or the Cold War. But the Administration asserts that the current challenges facing our country justify greater power for the President. The risks of concentrated power are a central theme of the Federalist Papers and our constitutional history. It is therefore vital for Congress and the courts to give meaning to Justice O’Connor’s words in Hamdi, that “war is not a blank check to the President.”
About the author. Peter Swire is the c= William O’Neill Professor of Law at the Ohio State University, and Visiting Senior Fellow at the Center for American Progress. Prof. Swire has written the most detailed history and analysis of the Foreign Intelligence Surveillance Act, published in Volume 72 of the George Washington Law Review, at 1306 (2004). The article appears in final form, with different formatting, here. In 2000, he chaired a White House Working Group, including the intelligence agencies, on how to update electronic surveillance law for the Internet Age. He has testified before Congress on FISA, and more information is available at www.peterswire.net.
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