The Magazine

Constitutional Surveillance

Listening in on our enemies has never been against the law.

Mar 6, 2006, Vol. 11, No. 24 • By VICTORIA TOENSING
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The Fourth Circuit explained that a warrant in the area of foreign intelligence would "add a procedural hurdle" that could increase the "chance of leaks" and "delay executive response to foreign intelligence threats." Such threats "require the utmost stealth, speed, and secrecy."

Although it did not have to do so to reach its decision, the Fourth Circuit discussed FISA, stating it requires, "prior judicial approval for some foreign intelligence surveillance." The act, though, "does not . . . transport" the warrant requirement "unaltered into the foreign intelligence field." Thus, after passage of FISA, this court took great pains to stress that a FISA warrant is not the only legal method for the president to obtain foreign intelligence.

Most significantly, in 2002, the FISA appellate court cited the Fourth Circuit case saying, "The Truong court, as did all other courts to have decided the issue, 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 and, assuming that is so, FISA could not encroach on the President's constitutional power."

So there is the rub. Under established case law, parts of FISA are unconstitutional in so far as they prohibit or limit the president's constitutional authority to collect foreign intelligence information.

There is an important rule of judicial review. Courts do not like to declare laws unconstitutional and will attempt to find language that "saves" them. That rule brings us to the president's arguing that the congressional resolution giving the president the Authority to Use Military Force (AUMF) permits him to wiretap consistent with FISA. In an irony too scrumptious to resist pointing out to the critics, the president's argument is an attempt to save FISA from being declared unconstitutional.

A little statutory history is required to understand this legal argument. When Congress passed FISA it contained two contradictory statements: (1) FISA and the criminal wiretap statute were the "exclusive means" by which there could be interception of wire and oral communications, and (2) a person is guilty of a crime if he intentionally "under color of law" (which is how the president does it) obtains foreign intelligence information, unless he is "authorized by statute." Like it or not, that's how laws get passed. Each side gets something. Those against any wiretapping got the gift of limiting the conduct to those two laws; proponents got the gift of an exception to that limitation: some other law.

There has been ill-informed criticism of the president's use of the broad language of the Authorization to Use Military Force ("use all necessary and appropriate force against" those responsible for 9/11) to support the argument that Congress passed a law that fits that FISA exception. For example, George Will groused recently in the Washington Post that the administration "incoherently argue[s] that the AUMF . . . authorized the NSA surveillance." Yet in the 2004 Hamdi case, a majority of the Supreme Court agreed with the president's argument.

Hamdi was an American citizen captured on the battlefield in Afghanistan and detained in the United States as an enemy combatant, meaning he was imprisoned but not charged with a crime. Hamdi argued he should be freed because there is a law mandating that "no citizen" shall be imprisoned unless there is an Act of Congress. There is no such act, claimed Hamdi. But five of the Supreme Court justices agreed that the AUMF could have such a broad reading. "[I]t is of no moment that the AUMF does not use specific language of detention. Because detention to prevent a combatant's return to the battlefield is a fundamental incident of waging war," the words "necessary and appropriate force" were a clear congressional authorization to detain Hamdi, according to Justice O'Connor's rather coherent opinion. No one can seriously argue that obtaining foreign intelligence information about the enemy is not a "fundamental incident of waging war."

An amendment to FISA would be nice as a political matter--the two branches in agreement and all those warm good feelings. But it is not necessary legally for the constitutional health of the NSA program.

Victoria Toensing, a founding partner of diGenova & Toensing, is a former Justice Department official and chief counsel for the Senate Intelligence Committee.