NSA warrantless surveillance (2001–07)

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The NSA warrantless surveillance controversy ("warrantless wiretapping") concerns surveillance of persons within the United States during the collection of allegedly foreign intelligence by the U.S. National Security Agency (NSA) as part of the touted war on terror. Under this program, referred to by the Bush administration as the terrorist surveillance program,[1] part of the broader President's Surveillance Program, the NSA was authorized by executive order to monitor, without search warrants, the phone calls, Internet activity (Web, e-mail, etc.), text messaging, and other communication involving any party believed by the NSA to be outside the U.S., even if the other end of the communication lies within the U.S. However, it has been discovered that all U.S. communications have been digitally cloned by government agencies, in apparent violation of unreasonable search and seizure. The excuse given to avoid litigation was that no data hoarded would be reviewed until searching it would be legal. But no excuse has been offered the initial seizure of the data which is also illegal, according to the U. S. Constitution.

Critics, however, claimed that the program was in an effort to attempt to silence critics of the Bush Administration and its handling of several controversial issues during its tenure. Under public pressure, the Bush administration allegedly ceased the warrantless wiretapping program in January 2007 and returned review of surveillance to the FISA court.[2] Subsequently, in 2008 Congress passed the FISA Amendments Act of 2008, which relaxed some of the original FISA court requirements.

During the Obama Administration, the NSA has allegedly continued operating under the new FISA guidelines despite campaign promises to end warrantless wiretapping.[3] However, in April 2009 officials at the United States Department of Justice acknowledged that the NSA had engaged in "overcollection" of domestic communications in excess of the FISA court's authority, but claimed that the acts were unintentional and had since been rectified.[4]

Overview

All wiretapping of American citizens by the National Security Agency requires a warrant from a three-judge court set up under the Foreign Intelligence Surveillance Act. After the 9/11 attacks, Congress passed the Patriot Act, which granted the President broad powers to fight a war against terrorism. The George W. Bush administration used these powers to bypass the FISA court and directed the NSA to spy directly on al-Qaeda in a new NSA electronic surveillance program. Reports at the time indicate that an "apparently accidental" "glitch" resulted in the interception of communications that were purely domestic in nature.[5] This action was challenged by a number of groups, including Congress, as unconstitutional.

The exact scope of the program remains secret, but the NSA was provided total, unsupervised access to all fiber-optic communications going between some of the nation's largest telecommunication companies' major interconnected locations, including phone conversations, email, web browsing, and corporate private network traffic.[6] Critics said that such "domestic" intercepts required FISC authorization under the Foreign Intelligence Surveillance Act.[7] The Bush administration maintained that the authorized intercepts were not domestic but rather foreign intelligence integral to the conduct of war and that the warrant requirements of FISA were implicitly superseded by the subsequent passage of the Authorization for Use of Military Force Against Terrorists (AUMF).[8] FISA makes it illegal to intentionally engage in electronic surveillance under appearance of an official act or to disclose or use information obtained by electronic surveillance under appearance of an official act knowing that it was not authorized by statute; this is punishable with a fine of up to $10,000 or up to five years in prison, or both.[9] In addition, the Wiretap Act prohibits any person from illegally intercepting, disclosing, using or divulging phone calls or electronic communications; this is punishable with a fine or up to five years in prison, or both.[10]

After an article about the program, (which had been code-named Stellar Wind), was published in The New York Times on December 16, 2005, Attorney General Alberto Gonzales confirmed its existence.[11][12][13] The Times had posted the exclusive story on their website the night before, after learning that the Bush administration was considering seeking a Pentagon-Papers-style court injunction to block its publication.[14]Bill Keller, the newspaper's former executive editor, had withheld the story from publication since before the 2004 Presidential Election, and the story that was ultimately published was essentially the same as reporters James Risen and Eric Lichtblau had submitted in 2004. The delay drew criticism from some in the press, arguing that an earlier publication could have changed the election's outcome.[15] In a December 2008 interview with Newsweek, former Justice Department employee Thomas Tamm revealed himself to be the initial whistle-blower to The Times.[16] The FBI began investigating leaks about the program in 2005, with 25 agents and 5 prosecutors on the case.[17]

Gonzales said the program authorized warrantless intercepts where the government had "a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda" and that one party to the conversation was "outside of the United States."[18] The revelation raised immediate concern among elected officials, civil right activists, legal scholars and the public at large about the legality and constitutionality of the program and the potential for abuse. Since then, the controversy has expanded to include the press' role in exposing a classified program, the role and responsibility of the US Congress in its executive oversight function and the scope and extent of presidential powers under Article II of the Constitution.[19]

Developments

In mid-August 2007, a three-judge panel of the United States Court of Appeals for the Ninth Circuit heard arguments in two lawsuits challenging the surveillance program. The appeals were the first to reach the court after dozens of civil suits against the government and telecommunications companies over NSA surveillance were consolidated last year before the chief judge of the Northern District of California, Vaughn R. Walker. One of the cases is a class-action lawsuit against AT&T, focusing on allegations that the company provided the NSA with its customers' phone and Internet communications for a vast data-mining operation. Plaintiffs in the second case are the al-Haramain Foundation Islamic charity and two of its lawyers.[20][21]

On November 16, 2007, the three judges — M. Margaret McKeown, Michael Daly Hawkins, and Harry Pregerson — issued a 27-page ruling that the charity, the Al-Haramain Islamic Foundation, could not introduce a key piece of evidence in its case because it fell under the government's claim of state secrets, although the judges said that "In light of extensive government disclosures, the government is hard-pressed to sustain its claim that the very subject matter of the litigation is a state secret."[22][23]

In an August 14, 2007, question-and-answer session with the El Paso Times which was published on August 22, Director of National Intelligence Mike McConnell confirmed for the first time that the private sector helped the warrantless surveillance program. McConnell argued that the companies deserved immunity for their help: "Now if you play out the suits at the value they're claimed, it would bankrupt these companies".[24] Plaintiffs in the AT&T suit subsequently filed a motion with the court to have McConnell's acknowledgement admitted as evidence in their case.[25]

The program may face an additional legal challenge in the appeal of two Albany, New York, men convicted of criminal charges in an FBI anti-terror sting operation. Their lawyers say they have evidence the men were the subjects of NSA electronic surveillance, which was used to obtain their convictions but not made public at trial or made available in response to discovery requests by defense counsel at that time.[26]

In an unusual related legal development, on October 13, 2007, The Washington Post reported that Joseph P. Nacchio, the former CEO of Qwest Communications, is appealing an April 2007 conviction on 19 counts of insider trading by alleging that the government withdrew opportunities for contracts worth hundreds of millions of dollars after Qwest refused to participate in an unidentified National Security Agency program that the company thought might be illegal. According to court documents unsealed in Denver in early October as part of Nacchio's appeal, the NSA approached Qwest about participating in a warrantless surveillance program more than six months before the Sep 11, 2001, attacks which have been cited by the government as the main impetus for its efforts. Nacchio is using the allegation to try to show why his stock sale should not have been considered improper.[27] According to a lawsuit filed against other telecommunications companies for violating customer privacy, AT&T began preparing facilities for the NSA to monitor "phone call information and Internet traffic" seven months before 9/11.[28]

On August 17, 2007, the Foreign Intelligence Surveillance Court said it would consider a request filed by the American Civil Liberties Union which asked the intelligence court to make public its recent, classified rulings on the scope of the government's wiretapping powers. Judge Colleen Kollar-Kotelly, presiding judge of the FISC, signed an order calling the ACLU's motion "an unprecedented request that warrants further briefing."[29] The FISC ordered the government to respond on the issue by August 31, saying that anything involving classified material could be filed under court seal.[30][31] On the August 31 deadline, the National Security Division of the Justice Department filed a response in opposition to the ACLU's motion with the court.[32]

In previous developments, the case ACLU v. NSA was dismissed on July 6, 2007 by the United States Court of Appeals for the Sixth Circuit.[33] The court did not rule on the spying program's legality. Instead, its 65-page opinion declared that the American Civil Liberties Union and the others who brought the case – including academics, lawyers and journalists – did not have the legal standing to sue because they could not demonstrate that they had been direct targets of the clandestine surveillance.[34] Detroit District Court judge Anna Diggs Taylor had originally ruled on August 17, 2006 that the program is illegal under FISA as well as unconstitutional under the First and Fourth amendments of the United States Constitution.[35][36][37] Judicial Watch, a watchdog group, discovered that at the time of the ruling Taylor "serves as a secretary and trustee for a foundation that donated funds to the ACLU of Michigan, a plaintiff in the case."[38] On February 19, 2008, the U.S. Supreme Court, without comment, turned down an appeal from the American Civil Liberties Union, letting stand the earlier decision dismissing the case.[39]

On September 28, 2006 the U.S. House of Representatives passed the Electronic Surveillance Modernization Act (H.R. 5825).[40] That bill now has been passed to the U.S. Senate, where three competing, mutually exclusive, bills—the Terrorist Surveillance Act of 2006 (S.2455) (the DeWine bill), the National Security Surveillance Act of 2006 (S.2455) (the Specter bill), and the Foreign Intelligence Surveillance Improvement and Enhancement Act of 2006 (S.3001) (the Specter-Feinstein bill) – were themselves referred for debate to the full Senate by the Senate Judiciary Committee on September 13, 2006.[41] Each of these bills would in some form broaden the statutory authorization for electronic surveillance, while still subjecting it to some restrictions. The Specter-Feinstein bill would extend the peacetime period for obtaining retroactive warrants to seven days and implement other changes to facilitate eavesdropping while maintaining FISA court oversight. The DeWine bill, the Specter bill, and the Electronic Surveillance Modernization Act (passed by the House) would all authorize some limited forms or periods of warrantless electronic surveillance subject to additional programmatic oversight by either the FISC (Specter bill) or Congress (DeWine and Wilson bills).

On January 17, 2007, Attorney General Alberto Gonzales informed U.S. Senate leaders by letter that the program would not be reauthorized by the President.[2] "Any electronic surveillance that was occurring as part of the Terrorist Surveillance Program will now be conducted subject to the approval of the Foreign Intelligence Surveillance Court," according to his letter.[42]

On September 18, 2008, the Electronic Frontier Foundation (EFF), an Internet-privacy advocacy group, filed a new lawsuit against the NSA, President George W. Bush, Vice President Dick Cheney, Cheney's chief of staff David Addington, former Attorney General and White House Counsel Alberto Gonzales and other government agencies and individuals who ordered or participated in the warrantless surveillance. They sued on behalf of AT&T customers to seek redress for what the EFF alleges to be an illegal, unconstitutional, and ongoing dragnet surveillance of their communications and communications records. An earlier, ongoing suit by the EFF may be bogged down by the recent changes to FISA provisions, but these are not expected to impact this new case.[43][44]

On January 23, 2009, the administration of President Barack Obama adopted the same position as his predecessor when it urged U.S. District Judge Vaughn Walker to set aside a ruling in Al-Haramain Islamic Foundation et al. v. Obama, et al.[45] The Obama administration also sided with the former administration in its legal defense of July 2008 legislation that immunized the nation's telecommunications companies from lawsuits accusing them of complicity in the eavesdropping program, according to testimony by Attorney General Eric Holder.[46]

On March 31, 2010, Judge Vaughn R. Walker, chief judge of the Federal District Court in San Francisco, ruled that the National Security Agency's program of surveillance without warrants was illegal when it intercepted phone calls of Al Haramain. Declaring that the plaintiffs had been "subjected to unlawful surveillance", the judge said the government was liable to pay them damages.[47]

In 2012, the Ninth Circuit vacated the judgment against the United States and affirmed the district court's dismissal of the claim against Mueller.[48]

Trailblazer and whistleblowing prosecution

The Trailblazer Project, an NSA IT project that began in 2000, has also been linked to warrantless surveillance. It was chosen over ThinThread, which had included some privacy protections. Three ex-NSA staffers, William Binney, J. Kirke Wiebe, and Ed Loomis, all of whom had quit NSA over concerns about the legality of the agency's activities, teamed with Diane Roark, a staffer on the House Intelligence Committee, to ask the Inspector General to investigate. A major source for the IG report was Thomas Andrews Drake, an ex-Air Force senior NSA official with an expertise in computers. Siobhan Gorman of The Baltimore Sun published a series of articles about Trailblazer in 2006–2007.

The FBI agents investigating the 2005 The New York Times story eventually made their way to The Baltimore Sun story, and then to Binney, Wiebe, Loomis, Roark, and Drake. In 2007 armed FBI agents raided the houses of Roark, Binney, and Wiebe. Binney claimed they pointed guns at his head. Wiebe said it reminded him of the Soviet Union. None were charged with crimes except for Drake. In 2010 he was indicted under the Espionage Act of 1917, as part of Obama's unprecedented crackdown on leakers.[49][50] The charges against him were dropped in 2011 and he pled to a single misdemeanor.

Background

FISA

The 1978 Foreign Intelligence Surveillance Act (FISA) regulates U.S. government agencies' carrying out of physical searches, and electronic surveillance, wherein a significant purpose is the gathering of foreign intelligence information. "Foreign intelligence information" is defined in 50 U.S.C. § 1801 as information necessary to protect the U.S. or its allies against actual or potential attack from a foreign power, sabotage or international terrorism. FISA defines a "foreign power" as a foreign government or any faction(s) of a foreign government not substantially composed of US persons, or any entity directed or controlled by a foreign government. FISA provides for both criminal and civil liability for intentional electronic surveillance under color of law except as authorized by statute.

FISA provides two documents for the authorization of surveillance. First, FISA allows the Justice Department to obtain warrants from the Foreign Intelligence Surveillance Court (FISC) before or up to 72 hours after the beginning of the surveillance. FISA authorizes a FISC judge to issue a warrant for the electronic cameras if "there is probable cause to believe that… the target of the electronic surveillance is a foreign power or an agent of a foreign power." 50 U.S.C. §1805(a)(3). Second, FISA permits the President or his delegate to authorize warrantless surveillance for the collection of foreign intelligence if "there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party". 50 U.S.C. §1802(a)(1).[51]

NSA surveillance program

Soon after the September 11, 2001 attacks U.S. President George W. Bush issued an executive order that authorized the National Security Agency (NSA) to conduct surveillance of certain telephone calls without obtaining a warrant from the FISC as stipulated by FISA (see 50 U.S.C. § 1802 50 U.S.C. § 1809 ). The complete details of the executive order are not known, but according to statements by the administration,[52] the authorization covers telephone calls originating overseas from or to a person suspected of having links to terrorist organizations such as al-Qaeda or its affiliates even when the other party to the call is within the US. The legality of surveillance involving US persons and extent of this authorization is at the core of this controversy which has steadily grown to include:

Authorization for Use of Military Force (AUMF) resolution

About a week after the 9/11 attacks, Congress passed the Authorization for Use of Military Force Against Terrorists (AUMF) which authorized the President to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

The administration has argued that the language used in the AUMF implicitly authorized the President to exercise those powers "incident to the waging of war", including the collection of enemy intelligence, FISA provisions notwithstanding.[8]

On January 20, 2006, Senator Patrick Leahy (D-VT), the ranking Democrat on the Senate Judiciary Committee along with lone co-sponsor Senator Ted Kennedy (D-MA) introduced S. Res. 350, a resolution "expressing the sense of the Senate that Senate Joint Resolution 23 (107th Congress), as adopted by the Senate on September 14, 2001, and subsequently enacted as the Authorization for Use of Military Force does not authorize warrantless domestic surveillance of United States citizens."[55][56] This non-binding resolution died in the Senate without being brought up for debate or being voted upon.[57]

Technical and operational details

Basic diagram of how the alleged wiretapping was accomplished. From EFF court filings[58]
Higher detail diagram of how alleged wiretapping worked. From EFF court filings[59]

Because of its highly classified status, little is publicly known about the actual implementation of the NSA domestic electronic surveillance program. Mark Klein, a retired AT&T communications technician, submitted an affidavit including limited technical details known to him personally in support of a class-action lawsuit filed by the Electronic Frontier Foundation in federal district court in San Francisco in January 2006 on behalf of AT&T customers who alleged that they had been damaged by the telecommunications corporation's cooperation with the NSA. The lawsuit is called Hepting v. AT&T.[60][61]

A January 16, 2004 statement by Mr. Klein includes additional technical details regarding the secret 2003 construction of an NSA-operated monitoring facility in Room 641A of 611 Folsom Street in San Francisco, the site of a large SBC phone building, three floors of which are occupied by AT&T. [62][63]

According to Klein's affidavit, the NSA-equipped room uses equipment built by Narus Corporation to intercept and analyze communications traffic, as well as perform data-mining functions.[64]

In an article appearing in the January/February 2008 issue of the Institute of Electrical and Electronics Engineers journal of Security and Privacy, noted technology experts from academia and the computing industry analyzed potential security risks posed by the NSA program, based on information contained in Klein's affidavits as well as those of expert witness J. Scott Marcus, a designer of large-scale IP-based data networks, former CTO at GTE Internetworking and at Genuity, and former senior advisor for Internet Technology at the US Federal Communications Commission.[65] They concluded that the likely architecture of the system created serious security risks, including the danger that such a surveillance system could be exploited by unauthorized users, criminally misused by trusted insiders, or abused by government agents.[66]

Journalist Barton Gellman reported in the Washington Post that David Addington – who was at that time legal counsel to former Vice President Dick Cheney – was the author of the controlling legal and technical documents for the NSA surveillance program, typing the documents on a TEMPEST-shielded computer across from his desk in room 268 of the Eisenhower Executive Office Building and storing them in a vault in his office.[67][68][69]

Legal issues

The NSA surveillance controversy involves legal issues that fall into two broad disciplines: statutory interpretation and Constitutional law. Statutory interpretation is the process of interpreting and applying legislation to the facts of a given case. Constitutional law is the body of law that governs the interpretation of the United States Constitution and covers areas of law such as the relationship between the federal government and state governments, the rights of individuals, and other fundamental aspects of the application of government authority in the United States.[70]

A flashback to Hewlett-Packard Spying Scandal Prosecution - a repeating story

However, there are analogies between the NSA Spying Scandal (2001–2007) and Hewlett-Packard Spying Scandal (2006)[71] that may ease to predict the court outcomes. HP, in order to find the leak source of its board strategic minutes revealed to press, employed several contractors to investigate the leak issue but without engaging any external legal firm and supervisory stakeholder. Contractors, under supervision of the HP's internal investigation team, confidentially used false pretense and social security numbers - a spying technique namely Pretexting - for obtaining phone records of suspicious board members and several journalists. Later on, the HP's surveillance extended beyond the board of directors leaking issue and became a conspiracy for interest of the probe initiators; through which it was claimed that the informational privacy rights of even innocent employees and directors of the board, who had nothing to do with the board leaks, were violated.

In October 2006, HP's chairwoman Patricia Dunn and HP's former chief ethics officer Kevin Hunsaker and several private investigators were charged for criminal cases under California Penal Code such as

All of these charges were dismissed.[72]

FISA exclusivity provision

18 U.S.C. § 2511(2)(f) provides in relevant part that "the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in 50 U.S.C. § 1801(f)... and the intercept of domestic [communications] may be conducted." The interpretation of this clause is central to the controversy because both sides agree that the NSA program operates outside of the procedural framework provided by FISA. The interpretive conflict arises because other provisions of FISA, including the criminal sanctions subpart 50 U.S.C. § 1809 include an "unless authorized by statute" provision, raising the issue of statutory ambiguity. The administration's position is that the AUMF is an authorizing statute which satisfies the FISA criteria.

The U.S. Supreme Court faced a similar issue in Hamdi v. Rumsfeld where the government claimed that the AUMF authorized the President to detain U.S. citizens designated as an enemy combatant despite its lack of specific language to that intent and notwithstanding the provisions of 18 U.S.C. § 4001(a) which requires that the United States government cannot detain an American citizen except by an act of Congress. In that case, the Court ruled:

[B]ecause we conclude that the Government's second assertion ["that §4001(a) is satisfied, because Hamdi is being detained "pursuant to an Act of Congress" [the AUMF] is correct, we do not address the first. In other words, for the reasons that follow, we conclude that the AUMF is explicit congressional authorization for the detention of individuals .. and that the AUMF satisfied §4001(a)'s requirement that a detention be "pursuant to an Act of Congress"

In Hamdan v. Rumsfeld however, the court rejected the government's argument that the AUMF implicitly authorized the President to establish military commissions in violation of the UCMJ. The opinion of the Court held:

Neither of these congressional Acts, [AUMF or ATC] however, expands the President's authority to convene military commissions. First, while we assume that the AUMF activated the President's war powers, see Hamdi v. Rumsfeld, 542 U.S. 507 (2004)) (plurality opinion), and that those powers include the authority to convene military commissions in appropriate circumstances, see id., at 518; Quirin, 317 U. S., at 28–29; see also Yamashita, 327 U. S., at 11, there is nothing in the text or legislative history of the AUMF even hinting that Congress intended to expand or alter the authorization set forth in Article 21 of the UCMJ. Cf. Yerger, 8 Wall., at 105 (“Repeals by implication are not favored”)

Determining when explicit congressional authorization is and is not required appears by this decision to require a court to first determine whether an implicit authorization would amount to a "repeal by implication" of the governing Act.

The exclusivity clause also raises a separation of powers issue. (See Constitutional law issues below)

Domestic versus foreign intelligence

The arguments against the legality of the NSA fall into two broad categories, those who argue that FISA raises no Constitutional issues and therefore the NSA program is illegal on its face

Common to both of these views is the argument that the participation of "US persons" as defined in FISA 50 U.S.C. § 1801 renders the objectional intercepts "domestic" in nature.[73] Those advocating the "no constitutional issue" position, argue that Congress has the authority it needs to legislate in this area under Article I and the Fourth Amendment[74] while those who see a constitutional conflict[75] acknowledge that the existing delineation between Congressional and Executive authority in this area is not clear[76] but that Congress, in including the exclusivity clause in FISA, meant to carve out a legitimate role for itself in this arena.

The administration holds that an exception to the normal warrant requirements exists when the purpose of the surveillance is to prevent attack from a foreign threat. Such an exception has been upheld at the Circuit Court level when the target was a foreign agent residing abroad,[77][78] a foreign agent residing in the US,[79][80][81][82] and a US citizen abroad.[83] The warrantless exception was struck down when both the target and the threat was deemed domestic.[84] The legality of targeting US persons acting as agents of a foreign power and residing in this country has not been addressed by the US Supreme Court, but has occurred at least once, in the case of Aldrich Ames.[85]

Administration's statutory position

The Administration's position with regard to statutory interpretation, as outlined in the DOJ whitepaper, is to avoid what it has termed the "difficult Constitutional questions" by

This argument, as outlined in the DOJ whitepaper, is based on the language of the AUMF, specifically, the acknowledgment of the President's Constitutional authority contained in the preamble; "Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States", and the language in the resolution itself;

[Be it resolved] [t]hat the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

The administration also adds that the program is legal under Title II of the USA PATRIOT Act entitled Enhanced Surveillance Procedures, although it is not relying upon the domestic law enforcement provisions of the PATRIOT Act for authorization of any of the NSA program activities. The President had said prior to this, that Americans' civil liberties were being protected and that purely domestic wiretapping was being conducted pursuant to warrants under applicable law, including the Patriot Act.[87]

These arguments must be compared to the language of the FISA itself, which states:

Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress.[88]

Because the law only authorizes the President to bypass the FISA court during the first 15 days of a war declared by Congress (see "Declaration of war"), the administration's argument rests on the assumption that the AUMF gave the President more power than was understood as absolutely implicit in any Congressional "declaration of war" at the time of the statute's enactment. However, as a "declaration of war by the Congress" encompasses all military actions so declared, no matter how small, brief or otherwise constrained by Congress, the above citation could be seen as setting not a default or typical level of Presidential wartime authority, but instead a presumptive minimum, which might more often than not be extended (explicitly or implicitly) by Congress's war declaration.

Duty to notify Congress

According to Peter J. Wallison, former White House Counsel to President Ronald Reagan: "It is true, of course, that a president's failure to report to Congress when he is required to do so by law is a serious matter, but in reality the reporting requirement was a technicality that a President could not be expected to know about."[89] In regard to this program, a Gang of Eight (eight key members of Congress, thirteen in this case between the 107th and 109th Congressional Sessions) have been kept informed to some degree:

Under the National Security Act of 1947, §501–503, codified as 50 USC §413-§413b,[90] the President is required to keep Congressional intelligence committees "fully and currently" informed of U.S. intelligence activities, "consistent with ... protection from unauthorized disclosure of classified information relating to sensitive intelligence sources and methods or other exceptionally sensitive matters." For covert actions, from which intelligence gathering activities are specifically excluded in §413b(e)(1), the President is specifically permitted to limit reporting to the so-called "Gang of Eight".[91]

The administration contends that with regard to the NSA surveillance program, the administration fulfilled its notification obligations by briefing key members of Congress (thirteen individuals in this case between the 107th and 109th Congressional sessions) have been briefed on the NSA program more than a dozen times but they were forbidden from sharing information about the program with other members or staff.

On January 18, 2006 the Congressional Research Service released a report, "Statutory Procedures Under Which Congress Is To Be Informed of U.S. Intelligence Activities, Including Covert Actions".[92][93] That report found that "[b]ased upon publicly reported descriptions of the program, the NSA surveillance program would appear to fall more closely under the definition of an intelligence collection program, rather than qualify as a covert action program as defined by statute", and, therefore, concluded there was no specific statutory basis for limiting briefings on the terrorist surveillance program to the Gang of Eight.[94] However, the report goes on to note in its concluding paragraph that limited disclosure is also permitted under the statute "in order to protect intelligence sources and methods".[95]

Thus, although the specific statutory "Gang of Eight" notification procedure for covert action would not seem to apply to the NSA program, it is not clear if a limited notification procedure intended to protect sources and methods is expressly prohibited. Additionally, should the sources and methods exception apply it will require a factual determination as to whether it should apply to disclosure of the program itself or only to specific sensitive aspects.

Constitutional law issues

The constitutional debate surrounding executive authorization of warrantless surveillance is principally about separation of powers ("checks and balances"). If, as discussed above, no "fair reading" of FISA can be found in satisfaction of the canon of avoidance, these issues will have to be decided at the appellate level, by United States courts of appeals. It should be noted that in such a separation of powers dispute, the burden of proof is placed upon the Congress to establish its supremacy in the matter: the Executive branch enjoys the presumption of authority until an Appellate Court rules against it.

Article I and II

Article I vests Congress with the sole authority "To make Rules for the Government and Regulation of the land and naval Forces" and "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." The U.S. Supreme Court has used the "necessary and proper" clause of Article I to affirm broad Congressional authority to legislate as it sees fit in the domestic arena but has limited its application in the arena of foreign affairs. In the landmark Curtiss-Wright decision, Justice Sutherland writes in his opinion of the Court:

The ["powers of the federal government in respect of foreign or external affairs and those in respect of domestic or internal affairs"] are different, both in respect of their origin and their nature. The broad statement that the federal government can exercise no powers except those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect of our internal affairs.

Article II vests the President with power as "Commander in Chief of the Army and Navy of the United States," and requires that he "shall take Care that the Laws be faithfully executed".

The U.S. Supreme Court has historically used Article II to justify wide deference to the President in the arena of foreign affairs. Two historical and recent Supreme Court cases define the secret wiretapping by the NSA. Quoting again from the Curtiss-Wright decision:

It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations–a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution.

The extent of the President's power as Commander-in-Chief has never been fully defined, but two U.S. Supreme Court cases are considered seminal in this area:[96][97] Youngstown Sheet and Tube Co. v. Sawyer and Curtiss-Wright.

In addition, two relatively new cases, Hamdi v. Rumsfeld and Hamdan v. Rumsfeld, have clarified, and in the case of Hamdan limited, the scope of executive power to detain and try suspected terrorists as enemy combatants.

In Hamdan, the Court's opinion in footnote 23, rejected the notion that Congress is impotent to regulate the exercise of executive war powers:

Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 637 (1952) (Jackson, J., concurring). The Government does not argue otherwise.

Whether "proper exercise" of Congressional war powers includes authority to regulate the gathering of foreign intelligence, which in other rulings has been recognized as "fundamentally incident to the waging of war", is a historical point of contention between the Executive and Legislative branches.[8][98]

As noted in "Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information", published by The Congressional Research Service:

A review of the history of intelligence collection and its regulation by Congress suggests that the two political branches have never quite achieved a meeting of the minds regarding their respective powers. Presidents have long contended that the ability to conduct surveillance for intelligence purposes is a purely executive function, and have tended to make broad assertions of authority while resisting efforts on the part of Congress or the courts to impose restrictions. Congress has asserted itself with respect to domestic surveillance, but has largely left matters involving overseas surveillance to executive self-regulation, subject to congressional oversight and willingness to provide funds.

The same report makes clear the Congressional view that intelligence gathered within the U.S. and where "one party is a U.S. person" qualifies as domestic in nature and as such completely within their purview to regulate, and further that Congress may "tailor the President's use of an inherent constitutional power":

The passage of FISA and the inclusion of such exclusivity language reflects Congress's view of its authority to cabin the President's use of any inherent constitutional authority with respect to warrantless electronic surveillance to gather foreign intelligence.

The Senate Judiciary Committee articulated its view with respect to congressional power to tailor the President's use of an inherent constitutional power:

  • The basis for this legislation [FISA] is the understanding – concurred in by the Attorney General – that even if the President has an "inherent" constitutional power to authorize warrantless surveillance for foreign intelligence purposes, Congress has the power to regulate the exercise of this authority by legislating a reasonable warrant procedure governing foreign intelligence surveillance

Fourth Amendment issues

The Fourth Amendment to the United States Constitution is part of the Bill of Rights and helps guard against "unreasonable" searches and seizures by agents of the government. It is solely a right of the people that neither the Executive nor Legislative branch can lawfully abrogate, not even if acting in concert: no statute can make an unreasonable search reasonable, nor a reasonable search unreasonable.

The term "unreasonable" is deliberately imprecise but connotes the sense that there is a rational basis for the search and that it is not an excessive imposition upon the individual given the motivation for and circumstances of the search, and is in accordance with customary societal norms. It is conceived that a judge will be sufficiently distanced from the authorities seeking a warrant that they can render an impartial decision unaffected by any prejudices or improper motivations they (or the legislators who enacted a law they are seeking to enforce) may harbor.

An individual who believes their Fourth Amendment rights have been violated by an unreasonable search or seizure may file a civil suit for monetary compensation and seek a court-ordered end to a pattern or practice of such unlawful activities by government authorities, although the plaintiff will need to have evidence that such a wiretap is taking place in order to show standing (Amnesty International v. Clapper). Such civil rights violations are sometimes punishable by state or federal law. Evidence obtained in an unlawful search or seizure is generally inadmissible in a criminal trial.

The law countenances searches without warrant as "reasonable" in numerous circumstances, among them (see below): the persons, property, and papers of individuals crossing the border of the United States and those of paroled felons; in prisons, public schools and government offices; and of international mail. Although these are undertaken as a result of statute or Executive order, they should not be seen as deriving their legitimacy from these, rather, the Fourth Amendment explicitly allows reasonable searches, and the government has instituted some of these as public policy.

The Supreme Court held in Katz v. United States (1967), that the monitoring and recording of private conversations within the United States constitutes a "search" for Fourth Amendment purposes, and therefore the government must generally obtain a warrant before undertaking such domestic recordings.

The Supreme Court has also held in Smith v Maryland (1979) that citizens have no Fourth Amendment expectation of privacy in the business records (sometimes termed metadata) of their communications. This means that the court can subpoena data such as the numbers that an individual has phoned, when and, to a limited degree, where (subject to Jones v. United States) the phone conversation occurred, although a full judicial warrant would be required for the government to acquire or admit audio content from the telephone call. Under Section 215 of the PATRIOT act, the FBI can subpoena some or all such records from a business record holder using a warrant applied for in the Foreign Intelligence Surveillance Court.

The protection of "private conversations" has been held to apply only to conversations where the participants have not only manifested a desire but also a reasonable expectation that their conversation is indeed private and that no other party is listening in. In the absence of such a reasonable expectation, the Fourth Amendment does not apply, and surveillance without warrant does not violate it. Privacy is clearly not a reasonable expectation in communications to persons in the many countries whose governments openly intercept electronic communications, and is of dubious reasonability in countries against which the United States is waging war.

The law also recognizes a distinction between domestic surveillance taking place within U.S. borders and foreign surveillance of non-U.S. persons either in the U.S. or abroad.[99] In United States v. Verdugo-Urquidez, the Supreme Court reaffirmed the principle that the Constitution does not extend protection to non-U.S. persons located outside of the United States, so no warrant would be required to engage in even physical searches of non-U.S. citizens abroad.

The U.S. Supreme Court has never ruled on the constitutionality of warrantless searches targeting foreign powers or their agents within the US. There have been, however, a number of Circuit Court rulings upholding the constitutionality of such warrantless searches.[100] In United States v. Bin Laden, the Second Circuit noted that "no court, prior to FISA, that was faced with the choice, imposed a warrant requirement for foreign intelligence searches undertaken within the United States."[101] Assistant Attorney General William Moschella in his written response to questions from the House Judiciary Committee explained that in the administration's view, this unanimity of pre-FISA Circuit Court decisions vindicates their argument that warrantless foreign-intelligence surveillance authority existed prior to FISA and since, as these ruling indicate, that authority derives from the Executive's inherent Article II powers, they may not be encroached by statute.[102] In 2002, the United States Foreign Intelligence Surveillance Court of Review (Court of Review) met for the first time and issued an opinion (In re: Sealed Case No. 02-001) which seems to echo that view. They too noted all the Federal courts of appeal having looked at the issue had concluded that there was constitutional power for the president to conduct warrantless foreign intelligence surveillance. Furthermore, based on these rulings it "took for granted such power exits" and ruled that under this presumption, "FISA could not encroach on the president's constitutional power." Professor Orin Kerr argues in rebuttal that the part of In re: Sealed Case No. 02-001 that dealt with FISA (rather than the Fourth Amendment) was nonbinding obiter dicta and that the argument does not restrict Congress's power to regulate the executive in general.[103]

Harold Koh, dean of Yale Law School, Suzanne Spaulding, former general counsel for the Intelligence Committees of the House and Senate, and former Counsel to the President John Dean, contend that FISA clearly makes the wiretapping illegal and subject to the criminal penalties of FISA,[104] (in seeming disagreement with the FISA Court of Review finding above) and that the president's own admissions already constitute sufficient evidence of a violation of the Fourth Amendment, without requiring further factual evidence. Professor John C. Eastman, in his analysis, prepared at the behest of the House Judiciary Committee, comparing the CRS and DOJ reports, concluded instead that under the Constitution and ratified by both historical and Supreme Court precedent, "the President clearly has the authority to conduct surveillance of enemy communications in time of war and of the communications to and from those he reasonably believes are affiliated with our enemies. Moreover, it should go without saying that such activities are a fundamental incident of war."[105]

Border search exception

Orin S. Kerr, associate professor of law at The George Washington University Law School[106] and a leading scholar in the subjects of computer crime law and internet surveillance,[107] points to an analogy between the NSA intercepts and searches allowed by the Fourth Amendment under the border search exception.

The border search exception permits searches at the border of the United States "or its functional equivalent." (United States v. Montoya De Hernandez, 473 U.S. 531, 538 (1985)). The idea here is that the United States as a sovereign nation has a right to inspect stuff entering or exiting the country as a way of protecting its sovereign interests, and that the Fourth Amendment permits such searches. Courts have applied the border search exception in cases of PCs and computer hard drives; if you bring a computer into or out of the United States, the government can search your computer for contraband or other prohibited items at the airport or wherever you are entering or leaving the country. See, e.g., United States v. Ickes, 393 F.3d 501 (4th Cir. 2005) (Wilkinson, J.)...At the same time, I don't know of a rationale in the case law for treating data differently than physical storage devices. The case law on the border search exception is phrased in pretty broad language, so it seems at least plausible that a border search exception could apply to monitoring at an ISP or telephone provider as the "functional equivalent of the border," much like airports are the functional equivalent of the border in the case of international airline travel...the most persuasive case on point: United States v. Ramsey, [held] that the border search exception applies to all international postal mail, permitting all international postal mail to be searched.
Criminal prosecution under the NSA program

Evidence gathered without warrant may raise significant Fourth Amendment issues which could preclude its use in a criminal trial. As a general rule of law, evidence obtained improperly without lawful authority, may not be used in a criminal prosecution. The U.S. Supreme Court has never addressed the constitutionality of warrantless searches (which has been broadly defined by the court to include surveillance) targeting foreign powers or their agents, the admissibility of such evidence in a criminal trial nor whether it is permissible to obtain or use evidence gathered without warrant against US persons acting as agents of a foreign power.

Presidential findings

The National Security Act of 1947[108] requires Presidential findings for covert acts. SEC. 503. [50 U.S.C. 413b] (a) (5) of that act states: "A finding may not authorize any action that would violate the Constitution or any statute of the United States."

District Court findings

On August 17, 2006, Judge Anna Diggs Taylor of the United States District Court for the Eastern District of Michigan ruled in ACLU v. NSA that the Terrorist Surveillance Program was unconstitutional under the Fourth and First Amendments and enjoined the NSA from using the program to conduct electronic surveillance "in contravention of [FISA or Title III]".[36] In her ruling,[109] she wrote:

The President of the United States, a creature of the same Constitution which gave us these Amendments, has indisputably violated the Fourth in failing to procure judicial orders as required by FISA, and accordingly has violated the First Amendment Rights of these Plaintiffs as well.

Even some legal experts who agreed with the outcome have criticized the reasoning set forth in the opinion.[110] Others have argued that the perceived flaws in the opinion in fact reflect the Department of Justice's refusal to argue the legal merits of the program (they chose to focus solely on arguments about standing and state secrets grounds).[111]

On October 4, 2006, a panel of the United States Court of Appeals for the Sixth Circuit unanimously ruled that the government can continue the program while it appeals the lower court decision.[112][113]

On July 6, 2007 the Sixth Circuit dismissed the case, finding that the plaintiffs had no standing.

The Court found that:[114]

[T]he plaintiffs do not – and because of the State Secrets Doctrine cannot – produce any evidence that any of their own communications have ever been intercepted by the NSA, under the TSP, or without warrants. Instead, they assert a mere belief, which they contend is reasonable and which they label a “well founded belief,”...
Implicit in each of the plaintiffs' alleged injuries is the underlying possibility — which the plaintiffs label a "well founded belief" and seek to treat as a probability or even a certainty – that the NSA is presently intercepting, or will eventually intercept, communications to or from one or more of these particular plaintiffs, and that such interception would be detrimental to the plaintiffs' clients, sources, or overseas contacts. This is the premise upon which the plaintiffs' entire theory is built.

But even though the plaintiffs' beliefs – based on their superior knowledge of their contacts' activities – may be reasonable, the alternative possibility remains that the NSA might not be intercepting, and might never actually intercept, any communication by any of the plaintiffs named in this lawsuit.

Corporate confidentiality analysis

Corporate secrecy is also an issue. Wired reported: In a letter to the EFF, AT&T objected to the filing of the documents in any manner, saying that they contain sensitive trade secrets and could be "used to 'hack' into the AT&T network, compromising its integrity."[115] However, Chief Judge Vaughn Walker stated, during the September 12, 2008 hearing in the class-action lawsuit filed by the EFF, that the Klein evidence could be presented in court, effectively ruling that AT&T's trade secret and security claims were unfounded.

Third-party legal analytical arguments

Arguing that the program is legal or probably legal based upon War Powers Resolution

The majority of legal arguments supporting the NSA warrantless surveillance program have been based on the War Powers Resolution. There have not been any other noteworthy types of supporting legal arguments. The War Powers Resolution has been questioned as unconstitutional since its creation, and its adaptation to the NSA warrantless surveillance program has been questionable.

War Powers Resolution used against US citizens

Some people assert that the Patriot Act is not unconstitutional as pertaining to its implications on US citizens. Their arguments are based on the assertion that government has unlimited powers to protect against enemies during wartime. There have been no Declarations of war by the US that could include a direct declaration of war against US citizens. Under the War Powers Resolution the only option otherwise was to enact an authorization of the use of military force (which has been seen as unconstitutional since its creation. Under the War Powers Resolution Authorization for Use of Military Force Against Terrorists (AUMF) was enacted. The AUMF has been used as a basis for justifying the Patriot Act and related laws. The AUMF strictly states in Section 2: (a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. This declaration of war only goes so far though. Since it clearly identifies the enemy "nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons" & it states a war-time goal of "in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." Therefore these "nations, organizations or persons" would have had to have been identified as having "planned, authorized, committed, or aided the (9/11) terrorist attacks... or harbored such organizations or persons." Since the language in the declaration of war clearly states that the declared enemy had to have been involved with a specific aspect of causing (planned, authorized, committed, aided, or harbored) 9/11, the enforcement of such policies is legally limited to those parties as well. The application of wartime powers worldwide (and within USA) assumed under these pretenses can be seen as an implicit interpretation of the law, although it explicitly states that the enemies must have been involved with 9/11.

Since no US citizens have been identified as being involved in the 9/11 attacks, and since AUMF strictly states that war-time enemies are those who were involved in 9/11, extending these war-time powers to US citizens can be seen as unconstitutional or an undeclared war.

While the Patriot Act does not explicitly state that its powers are based on the AUMF, the opinions that its resulting actions are constitutional are. Without a wartime declaration or Authorization for Use of Military Force against a particular group, the US government would not have the ability to adopt limitless constitution-breaking powers, as such is strictly forbidden in the constitution. The Tenth Amendment explicitly states that powers not granted to the federal government nor prohibited to the states by the Constitution of the United States are reserved to the states or the people." The Ninth Amendment states that "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."

The Ninth Amendment bars denial of unenumerated rights if the denial is based on the enumeration of certain rights in the Constitution, but does not bar denial of unenumerated rights if the denial is based on the enumeration of certain powers in the Constitution.[119] Hence since the war-time powers have not been legally enacted against US citizens the enumeration of certain powers does not override the enumeration of certain rights. Without the backing of a declaration of war stating the US citizens as an enemy, the powers that have been enacted against US citizens under the Patriot Act are unconstitutional (as they violate 1st, 4th and other amendments).

Arguing that the program is illegal or probably illegal

The arguments against the legality of the NSA fall into two broad categories: those who argue that FISA raises no Constitutional issues and therefore the NSA program is illegal on its face,[104] and those who argue that FISA (perhaps purposefully) raises a Constitutional conflict which should be resolved in Congress' favor.[75]

Related issues

Warrantless wiretaps and the history of FISA

The administration has compared the NSA warrantless surveillance program with historical wartime warrantless searches in the United States, going back to George Washington.[52]

Critics have pointed out that Washington's surveillance occurred before the existence of the U.S. Constitution, and the other historical precedents cited by the administration were before the passage of FISA, and therefore did not directly contravene federal law.[75] Abuses of electronic surveillance by the federal government such as Project SHAMROCK led to reform legislation in the 1970s.[136] Advancing technology began to present questions not directly addressed by the legislation as early as 1985.[137]

Executive orders by previous administrations including Clinton's and Carter's authorized the attorneys general to exercise authority with respect to both options under FISA.[138][139] In Clinton's executive order, he authorized his attorney general "[pursuant] to section 302(a)(1)" to conduct physical searches without court order "if the Attorney General makes the certifications required by that section".

Sufficiency of FISA in the war on terror

On December 19, 2005, U.S. Dept. of Justice Assistant Attorney General for Legislative Affairs, William Moschella, wrote a letter to the Chairs and Ranking Members of the U.S. Senate and House of Representatives, defending the NSA program:

As explained above, the President determined that it was necessary following September 11 to create an early warning detection system. FISA could not have provided the speed and agility required for the early warning detection system. In addition, any legislative change, other than the AUMF, that the President might have sought specifically to create such an early warning system would have been public and would have tipped off our enemies concerning our intelligence limitations and capabilities. Nevertheless, I want to stress that the United States makes full use of FISA to address the terrorist threat, and FISA has proven to be a very important tool, especially in longer-term investigations. In addition, the United States is constantly assessing all available legal options, taking full advantage of any developments in the law.

U.S. District Judge Dee Benson of Utah, also of the FISC, stated that he was unclear on why the FISC's emergency authority would not meet the administration's stated "need to move quickly." He and fellow judges on the court attended a briefing in January, called by presiding Judge Colleen Kollar-Kotelly.[140][141] The court was also concerned about "whether the administration had misled their court about its sources of information on possible terrorism suspects . . . [as this] could taint the integrity of the court's work."[142]

In part to address this problem, several commentators have raised the issue of whether, regardless how one feels about the authorization issue, FISA needs to be amended to address specific foreign intelligence needs, current technology developments, and advanced technical methods of intelligence gathering, in particular to provide for programmatic approvals of general or automated surveillance of foreign terrorist communications, the results of which could then legally be used as predicate for FISA warrants. In a recent essay, Judge Richard A. Posner opined that FISA "retains value as a framework for monitoring the communications of known terrorists, but it is hopeless as a framework for detecting terrorists. [FISA] requires that surveillance be conducted pursuant to warrants based on probable cause to believe that the target of surveillance is a terrorist, when the desperate need is to find out who is a terrorist."[143] For other examples, see Fixing Surveillance;[144] Why We Listen,[145] The Eavesdropping Debate We Should be Having;[146] A New Surveillance Act;[147] and A historical solution to the Bush spying issue[148] (the latter setting out a historical perspective on the need for programmatic approval in foreign intelligence surveillance generally). And see Whispering Wires and Warrantless Wiretaps[149] (discussing how FISA is inadequate to address certain technology developments).

During the investigational phase of the 9/11 Commission, a letter written by Special Agent Coleen Rowley, in her capacity as legal council to the FBI's Minneapolis Field Office, to FBI Director Robert Mueller came to the attention of the committee.[150] In that letter and in subsequent testimony before the commission and the Senate Judiciary Committee, SA Rowley recounted among other things, the manner in which FISA procedural hurdles had hampered the FBI's investigation of Zacarias Moussaoui (the so-called "20th hijacker") prior to the 9/11 attacks. Among the factors she cited were the complexity of the application and the detailed information required and confusion by field operatives about the standard of probable cause required by the FISC and the strength of the required link to a foreign power. At his appearance before the Senate Judiciary Committee in June 2002, Director Mueller in response to questions about the Rowley allegations testified that unlike normal criminal procedures, FISA warrant applications are "complex and detailed", requiring the intervention of FBI Headquarters (FBIHQ) personnel trained in a specialized procedure (the "Woods" procedure) to ensure accuracy.[151]

FISA exclusivity controversy

On January 19, 2006 the Department of Justice published a memorandum that stated in part:

For the foregoing reasons, the President—in light of the broad authority to use military force in response to the attacks of September 11 and to prevent further catastrophic attack expressly conferred on the President by the Constitution and confirmed and supplemented by Congress in the AUMF—has legal authority to authorize the NSA to conduct the signals intelligence activities he has described. Those activities are authorized by the Constitution and by statute, and they violate neither FISA nor the Fourth Amendment.

The following day, Senator Patrick Leahy (D-VT), the ranking Democrat on the Senate Judiciary Committee along with lone co-sponsor Senator Ted Kennedy (D-MA) introduced S. Res. 350, a resolution "expressing the sense of the Senate that Senate Joint Resolution 23 (107th Congress), as adopted by the Senate on September 14, 2001, and subsequently enacted as the Authorization for Use of Military Force does not authorize warrantless domestic surveillance of United States citizens."[55][56] This non-binding resolution died in the Senate without being brought up for debate or being voted upon, so cannot be considered the "sense of the Senate."[57]

On February 2, 2006 the same 14 constitutional scholars and former government officials responded:

In sum, we remain as unpersuaded by the DOJ's 42-page attempt to find authority for the NSA spying program as we were of its initial five-page version. The DOJ's more extended discussion only reaffirms our initial conclusion, because it makes clear that to find this program statutorily authorized would requires rewriting not only clear specific federal legislation, but major aspects of constitutional doctrine. Accordingly, we continue to believe that the administration has failed to offer any plausible legal justification for the NSA program.

On June 29, 2006, in a detainee case Hamdan v. Rumsfeld, the Supreme Court rejected an analogous AUMF argument. Writing for the majority, Justice Stevens, while ruling that "the AUMF activated the President's war powers, and that those powers include the authority to convene military commissions in appropriate circumstances" (citations omitted), held there was nothing in the AUMF language "even hinting that Congress intended to expand or alter the authorization set forth in Article 21 of the Uniform Code of Military Justice. The distinction drawn by J. Stevens in Hamdan between that case and Hamdi, where the AUMF language was found to override the explicit language regarding detention in 18 U.S.C. § 4001(a) is that the instant case would require a "Repeal by implication" of the UCMJ. How this distinction would be drawn in future cases involving the NSA program is unclear.

Separation of powers and Unitary Executive theory

Further information: Unitary Executive theory, Commander-in-Chief and Separation of powers

The administration argues that the power to conduct the warrantless surveillance within U.S. borders was granted by the Constitution and by a statutory exemption, as is advocated by the Unitary Executive theory using the interpretation of John Yoo et al.. He argues that the President had the "inherent authority to conduct warrantless searches to obtain foreign intelligence information."[152][153]

The United States Court of Appeals for the District of Columbia Circuit has ruled that the President's authority as commander-in-chief extends to the "independent authority to repel aggressive acts...without specific congressional authorization" and without court review of the "level of force selected."[154] Whether such declarations applying to foreign intelligence are in compliance with FISA has been examined by few courts since the passage of the act in 1978.

It is also uncertain whether the allegation that surveillance involves foreign parties suffices to extend law governing the president's military and foreign affairs powers to cover domestic activities. The Supreme Court voiced this concern in Hamdi v. Rumsfeld, ruling that "a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens."

The Congressional Research Service, a nonpartisan research arm of the Library of Congress, released a detailed report on NSA electronic surveillance, "Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information," on January 5, 2006, which concluded:

From the foregoing analysis, it appears unlikely that a court would hold that Congress has expressly or impliedly authorized the NSA electronic surveillance operations here under discussion, and it would likewise appear that, to the extent that those surveillances fall within the definition of "electronic surveillance" within the meaning of FISA or any activity regulated under Title III, Congress intended to cover the entire field with these statutes. To the extent that the NSA activity is not permitted by some reading of Title III or FISA, it may represent an exercise of presidential power at its lowest ebb, in which case exclusive presidential control is sustainable only by “disabling Congress from acting upon the subject.” While courts have generally accepted that the President has the power to conduct domestic electronic surveillance within the United States inside the constraints of the Fourth Amendment, no court has held squarely that the Constitution disables the Congress from endeavoring to set limits on that power. To the contrary, the Supreme Court has stated that Congress does indeed have power to regulate domestic surveillance, and has not ruled on the extent to which Congress can act with respect to electronic surveillance to collect foreign intelligence information.[98][155][156]

Classified information

Leaking of classified information

There is no single law that criminalizes the leaking of all classified information. There are certain statutes that prohibit certain types of classified information being leaked under certain circumstances. One such law is 18 U.S.C. § 798; it was tacked on to the Espionage Act of 1917 during the Second Red Scare in 1950. It is the 'SIGINT' statute, meaning signals intelligence. This statute says that

... whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, [including by publication,] classified information [relating to] the communication intelligence activities of the United States or any foreign government, [shall be fined or imprisoned for up to ten years.]

This statute is not limited in application to only federal government employees. However, the Code of Federal Regulations suggests the statute may apply primarily to the "[c]ommunication of classified information by Government officer or employee". 50 USCS §783 (2005).

There is a statutory procedure[157] for a "whistleblower" in the intelligence community to report concerns with the propriety of a secret program, The Intelligence Community Whistleblower Protection Act of 1998, Pub. L. 105–272, Title VII, 112 Stat. 2413 (1998). Essentially the Act provides for disclosure to the agency Inspector General, and if the result of that is unsatisfactory, appeal to the Congressional Intelligence Committees. A former official of the NSA, Russ Tice, has asked to testify under the terms of the Intelligence Community Whistleblower Protection Act, in order to provide information to these committees about "highly classified Special Access Programs, or SAPs, that were improperly carried out by both the NSA and the Defense Intelligence Agency."[158]

Executive Order 13292, which sets up the U.S. security classification system, provides (Sec 1.7) that "[i]n no case shall information be classified in order to conceal violations of law".

Given doubts about the legality of the overall program, the classification of its existence may not have been valid under E.O. 13292.

Publication of classified information

It is unlikely that the New York Times could be held liable for publishing its article under established Supreme Court precedent. In Bartnicki v. Vopper, 532 U.S. 514,[159] the Supreme Court held that the First Amendment precluded liability for a media defendant for publication of illegally obtained communications that the media defendant itself did nothing illegal to obtain if the topic involves a public controversy. The high court in Bartnicki accepted due to the suit's procedural position, that interception of information which was ultimately broadcast by the defendant radio station was initially illegal (in violation of ECPA), but nonetheless gave the radio station a pass because it did nothing itself illegal to obtain the information.

Nor could the government have prevented the publication of the classified information by obtaining an injunction. In the Pentagon Papers case, (New York Times Co. v. U.S., 403 U.S. 713 (1971)),[160] the Supreme Court held in a 6–3 decision that injunctions against the New York Times publication of classified information (United States-Vietnam Relations, 1945–1967: A Study Prepared by The Department of Defense – a 47-volume, 7,000-page, top-secret United States Department of Defense history of the United States' political and military involvement in the Vietnam War from 1945 to 1971) were unconstitutional prior restraints and that the government had not met the heavy burden of proof required for prior restraint.

The 1917 Espionage Act, aside from the SIGINT statute discussed above, only criminalizes 'national defense' information, not 'classified' information. Although the Justice Department as a matter of law sees no exemption for the press, as a matter of fact it has refrained from prosecuting:

A prosecution under the espionage laws of an actual member of the press for publishing classified information leaked to it by a government source would raise legitimate and serious issues and would not be undertaken lightly, indeed, the fact that there has never been such a prosecution speaks for itself.

On the other hand, Sean McGahan of Northeastern University, told the Washington Post,

There's a tone of gleeful relish in the way they talk about dragging reporters before grand juries, their appetite for withholding information, and the hints that reporters who look too hard into the public's business risk being branded traitors.[161]

Responses and analyses

Administration response to press stories

On December 17, 2005, President George W. Bush addressed the growing controversy in his weekly radio broadcast.[162] He stated that he was using his authority as President, as Commander in Chief of the US military, and such authority as the United States Congress had given him, to intercept international communications of "people with known links to al Qaeda and related terrorist organizations". He added that before intercepting any communications, "the government must have information that establishes a clear link to these terrorist networks." He speculated that had the right communications been intercepted, perhaps the 9/11 attacks could have been prevented. He said the NSA program was re-authorized every 45 days, having at that time been reauthorized "more than 30 times"; it was reviewed by the Justice Department and NSA lawyers "including NSA's general counsel and inspector general", and Congress leaders had been briefed "more than a dozen times".[163]

In a speech in Buffalo, New York on April 20, 2004, he had said that:

Secondly, there are such things as roving wiretaps. Now, by the way, any time you hear the United States government talking about wiretap, it requires – a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so. It's important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.[164]

And again, during a speech at Kansas State University on January 23, 2006, President Bush mentioned the program, and added that it was "what I would call a terrorist surveillance program", intended to "best... use information to protect the American people",[165] and that:

What I'm talking about is the intercept of certain communications emanating between somebody inside the United States and outside the United States; and one of the numbers would be reasonably suspected to be an al Qaeda link or affiliate. In other words, we have ways to determine whether or not someone can be an al Qaeda affiliate or al Qaeda. And if they're making a phone call in the United States, it seems like to me we want to know why.

This is a – I repeat to you, even though you hear words, "domestic spying," these are not phone calls within the United States. It's a phone call of an al Qaeda, known al Qaeda suspect, making a phone call into the United States [...] I told you it's a different kind of war with a different kind of enemy. If they're making phone calls into the United States, we need to know why – to protect you.

During a speech[166] in New York on January 19, 2006 Vice President Dick Cheney commented on the controversy, stating that a "vital requirement in the war on terror is that we use whatever means are appropriate to try to find out the intentions of the enemy," that complacency towards further attack was dangerous, and that the lack of another major attack since 2001 was due to "round the clock efforts" and "decisive policies", and "more than luck." He stated that:

[B]ecause you frequently hear this called a 'domestic surveillance program.' It is not. We are talking about international communications, one end of which we have reason to believe is related to al Qaeda or to terrorist networks affiliated with al Qaeda.. a wartime measure, limited in scope to surveillance associated with terrorists, and conducted in a way that safeguards the civil liberties of our people.
General Michael Hayden.

In a press conference on December 19 held by both Attorney General Alberto Gonzales and General Michael Hayden, the Principal Deputy Director for National Intelligence, General Hayden claimed, "This program has been successful in detecting and preventing attacks inside the United States." He stated that even an emergency authorization under FISA required marshaling arguments and "looping paperwork around". Hayden also implied that decisions on whom to intercept under the wiretapping program were being made on the spot by a shift supervisor and another person, but refused to discuss details of the specific requirements for speed.[18]

Beginning in mid-January 2006 there was an increase in public discussion on the legality of the terrorist surveillance program by the Administration.[167]

The United States Department of Justice sent a 42-page white paper to Congress on January 19, 2006 stating the grounds upon which it was felt the NSA program was entirely legal, which restates and elaborates on reasoning Attorney General Alberto Gonzales used at the December press conference when the legality of the program was questioned.[168] Gonzales spoke further at Georgetown University January 24, claiming that Congress had given the President the authority to order the surveillance without going through the courts, and that normal procedures to order surveillance were too slow and cumbersome.[169]

General Hayden stressed the NSA respect for the Fourth Amendment, stating at the National Press Club on January 23, 2006 that, "Had this program been in effect prior to 9/11, it is my professional judgment that we would have detected some of the 9/11 al Qaeda operatives in the United States, and we would have identified them as such."[170]

Some sources state that despite the NSA program, "[t]he agency ... still seeks warrants to monitor entirely domestic communications."[171] An article from February 5, 2006 in the Washington Post reported that the program had netted few suspects.[54]

In a speech on January 25, 2006, Bush said, "I have the authority, both from the Constitution and the Congress, to undertake this vital program,"[172] telling the House Republican Caucus at their February 10 conference in Maryland that "I wake up every morning thinking about a future attack, and therefore, a lot of my thinking, and a lot of the decisions I make are based upon the attack that hurt us."[173]

President Bush reacted to a May 10 domestic call records article in USA Today by restating his position, that it is "not mining or trolling through the personal lives of millions of innocent Americans."[174]

Congressional response

Three days after news broke about the warrantless wiretapping program, a bipartisan group of Senators—Democrats Dianne Feinstein of California, Carl Levin of Michigan, Ron Wyden of Oregon and Republicans Chuck Hagel of Nebraska and Olympia Snowe of Maine, sent a letter dated December 19, 2005 to Judiciary and Intelligence Committees chairmen and ranking members requesting the two committees to "seek to answer the factual and legal questions" about the program.

On January 20, 2006, in response to the administration's asserted legal justification of the NSA program being based in part on the AUMF, Senators Leahy (D-VT) and Kennedy (D-MA) introduced Resolution 350 to the Judiciary Committee that purported to express a "sense of the Senate" that the AUMF "does not authorize warrantless domestic surveillance of United States citizens".[55][56] Resolution 350 was never reported out of committee and has no effect.[57]

In introducing their resolution to committee,[175] they quoted Justice O'Connor's opinion that even war "is not a blank check for the President when it comes to the rights of the Nation's citizens."

Additionally, they asserted their opinion that the US DOJ legal justification for the NSA program was a "manipulation of the law" similar to other "overreaching" and "twisted interpretations" in recent times. Leahy and Kennedy also asserted that Attorney General Gonzales "admitted" at a press conference on December 19, 2005, that the Administration did not seek to amend FISA to authorize the NSA spying program because it was advised that "it was not something we could likely get." (However, as noted below under "Proposed Amendments to FISA", Gonzales has made clear that what he actually said was that such an amendment was "not something [they] could likely get" without disclosing the nature of the program and operational limitations and that it was believed that such disclosure would be damaging to national security.)

Leahy and Kennedy also asserted that in their view the procedures being followed in the NSA program, specifically, the ongoing 45-day reapproval by the Attorney General, the White House Counsel and the Inspector General of the National Security Agency, was "not good enough" because each of these is an executive branch appointees who in turn report directly to the Executive. Finally, they concluded that Congressional and Judicial oversight were fundamental and should not be unilaterally discarded. Resolution 350 has not been reported out of committee.

Senate Judiciary Committee chairman Arlen Specter, in a three-page letter dated June 7, 2006 to Vice President Dick Cheney, to prompt the Administration to provide: input on his proposed legislation, briefings to his committee about the program, and more cooperation with Congressional oversight. Specter also wrote about the Vice President lobbying the other Republican members of the Judiciary Committee about compelling telephone companies to testify about classified information.

In February 2008, the Bush Administration backed a new version of the Foreign Intelligence Surveillance Act (FISA) that would grant telecom companies retroactive immunity from lawsuits stemming from the alleged surveillance. On March 13, 2008 the U.S. House of Representatives held a secret session to discuss classified information relating to the new FISA. On March 14, the House passed a bill that would not grant the immunity sought by the Bush administration.

Legal developments

Congressionally proposed FISA amendments

The Administration has contended that amendment was unnecessary because they believe that the President had inherent authority to approve the NSA program, and that the process of amending FISA might require disclosure of classified information that could harm national security. In response, Senator Leahy said, "If you do not even attempt to persuade Congress to amend the law, you must abide by the law as written."[176] President Bush claims that he can ignore the law because he claims that the Constitution gives him "inherent authority" to do so.[177][178]

However, Attorney General Alberto Gonzales has stated that the Bush administration chose not to ask Congress for an amendment to FISA to authorize such wiretaps explicitly because it would have been difficult to get such an amendment without compromising classified information relating to operational details. "This is not a backdoor approach. We believe Congress has authorized this kind of surveillance. We have had discussions with Congress in the past – certain members of Congress – as to whether or not FISA could be amended to allow us to adequately deal with this kind of threat, and we were advised that that would be difficult, if not impossible."[18] Some politicians and commentators have used this statement – “would be difficult, if not impossible”—to argue that the Administration declined to seek a specific amendment to FISA because the administration believed Congress would have rejected it. However, later in the same briefing Gonzales clarified his earlier remark to say that the administration had been advised that amendment was something they were not likely to get "without jeopardizing the existence of the program." At another briefing, two days later, Gonzales made this point again:[179]

What I said, or what I surely intended to say, if I didn't say, is that we consulted with leaders in the congress about the feasibility of legislation to allow this type of surveillance. We were advised that it would be virtually impossible to obtain legislation of this type without compromising the program. And I want to emphasize the addition of, without compromising the program. That was the concern.

Finally, in his written Responses to Questions from Senator Specter in which Specter specifically asked why the administration had not sought to amend FISA to accommodate the NSA program,[180] Gonzales wrote:

[W]e were advised by members of Congress that it would be difficult, if not impossible to pass such legislation without revealing the nature of the program and the nature of certain intelligence capabilities. That disclosure would likely have harmed our national security, and that was an unacceptable risk we were not prepared to take.

Nevertheless, competing legislative proposals to authorize the NSA program subject to Congressional or FISA court oversight have been proposed and have been the subject of Congressional hearings throughout the summer.[181]

On March 16, 2006, Senators Mike DeWine (R-OH), Lindsey Graham (R-SC), Chuck Hagel (R-NE), and Olympia Snowe (R-ME) introduced the Terrorist Surveillance Act of 2006 (S.2455),[182][183] under which the President would be given certain additional limited statutory authority to conduct electronic surveillance of suspected terrorists in the United States subject to enhanced Congressional oversight. Also on March 16, 2006, Senator Arlen Specter (R-PA) introduced The National Security Surveillance Act of 2006 (S.2453),[184][185] which would amend FISA to grant retroactive amnesty[186] for warrantless surveillance conducted under presidential authority and provide FISA court (FISC) jurisdiction to review, authorize, and oversight "electronic surveillance programs." On May 24, 2006, Senator Specter and Senator Dianne Feinstein (D-CA) introduced the Foreign Intelligence Surveillance Improvement and Enhancement Act of 2006 (S.3001) asserting FISA as the exclusive means to conduct foreign intelligence surveillance.

On September 13, 2006, the Senate Judiciary Committee voted to approve all three mutually exclusive bills, thus, leaving it to the full Senate to resolve.[41]

On July 18, 2006, U.S. Representative Heather Wilson (R-NM) introduced the Electronic Surveillance Modernization Act (H.R. 5825). Wilson's bill would give the President the authority to authorize electronic surveillance of international phone calls and e-mail linked specifically to identified terrorist groups immediately following or in anticipation of an armed or terrorist attack on the United States. Surveillance beyond the initial authorized period would require a FISA warrant or a presidential certification to Congress. On September 28, 2006 the House of Representatives passed Wilson's bill and it was referred to the Senate.[40]

Each of these bills would in some form broaden the statutory authorization for electronic surveillance, while still subjecting it to some restrictions. The Specter-Feinstein bill would extend the peacetime period for obtaining retroactive warrants to seven days and implement other changes to facilitate eavesdropping while maintaining FISA court oversight. The DeWine bill, the Specter bill, and the Electronic Surveillance Modernization Act (already passed by the House) would all authorize some limited forms or periods of warrantless electronic surveillance subject to additional programmatic oversight by either the FISC (Specter bill) or Congress (DeWine and Wilson bills).

FISA court order

On January 18, 2007, Attorney General Alberto Gonzales told the Senate Judiciary Committee "Court orders issued last week by a Judge of the Foreign Intelligence Surveillance Court will enable the government to conduct electronic surveillance – very specifically, surveillance into or out of the United States where there is probable cause to believe that one of the communicants is a member or agent of al Qaeda or an associated terrorist organization – subject to the approval of the FISA Court. We believe that the court's orders will allow the necessary speed and agility the government needs to protect our Nation from the terrorist threat."[187] The ruling by the FISA Court was the result of a two-year effort between the White House and the court to find a way to obtain court approval that also would "allow the necessary speed and agility" to find terrorists, Gonzales said in a letter to the top committee members. The "innovative" court order on Jan 10 will do that, Gonzales wrote. Senior Justice department officials would not say whether the orders provided individual warrants for each wiretap or whether the court had given blanket legal approval for the entire NSA program. The American Civil Liberties Union said in a statement that "without more information about what the secret FISA court has authorized, there is no way to determine whether the NSA's current activities are lawful."[188] Chip Pitts of Stanford Law School argues that substantial legal questions remain regarding the core NSA program as well as the related data mining program (and the use of National Security Letters), despite the government's apparently bringing the NSA program within the purview of the FISA law.[189]

FISCR Ruling of August 2008

In August 2008, the United States Foreign Intelligence Surveillance Court of Review (FISCR) affirmed the constitutionality of the Protect America Act of 2007 in a heavily redacted opinion released on January 15, 2009, which is only the second such public ruling since the enactment of the FISA Act.[190][191][192][193][194]

See also

References

  1. ↑ Sanger, David E.; O'Neil, John (January 23, 2006). "White House Begins New Effort to Defend Surveillance Program". The New York Times.
  2. ↑ 2.0 2.1 The New York Times (PDF) http://graphics8.nytimes.com/packages/pdf/politics/20060117gonzales_Letter.pdf. Missing or empty |title= (help)
  3. ↑ Savage, Charlie; Risen, James (March 31, 2010). "Federal Judge Finds N.S.A. Wiretaps Were Illegal". The New York Times.
  4. ↑ Eric Lichtblau and James Risen (April 15, 2009). "Officials Say U.S. Wiretaps Exceeded Law". The New York Times. Retrieved September 5, 2012.
  5. ↑ James Risen and Eric Lichtblau (December 21, 2005). "Spying Program Snared U.S. Calls". The New York Times. Retrieved May 28, 2006.
  6. ↑ https://www.eff.org/files/filenode/att/presskit/ATT_onepager.pdf
  7. ↑ Article 50 United States Code, Section 1809 (In FISA, subchapter 1)
  8. ↑ 8.0 8.1 8.2 U.S. Department of Justice White Paper on NSA Legal Authorities "Legal Authorities Supporting the Activities of the National Security Agency Described by the President" (pdf) January 19, 2006.
  9. ↑ "US CODE: Title 50, section 1809. Criminal sanctions".
  10. ↑ "US CODE: Title 18, section 2511. Interception and disclosure of wire, oral, or electronic communications prohibited".
  11. ↑ James Risen and Eric Lichtblau (December 16, 2005). "Bush Lets U.S. Spy on Callers Without Courts". The New York Times. Retrieved December 29, 2012.
  12. ↑ "Bush Lets U.S. Spy on Callers Without Courts". NYT's Risen & Lichtblau's December 16, 2005 Bush Lets U.S. Spy on Callers Without Courts. Retrieved February 18, 2006. via commondreams.org
  13. ↑ Calame, Byron (August 13, 2006). "Eavesdropping and the Election: An Answer on the Question of Timing". The New York Times. Retrieved May 20, 2010.
  14. ↑ Lichtblau, Eric (March 26, 2008). "The Education of a 9/11 Reporter: The inside drama behind the Times' warrantless wiretapping story.". Slate. Retrieved March 31, 2008.
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  23. ↑ Lichtblau, Eric (November 17, 2007). "Court Bars Secret Papers in Eavesdropping Case". The New York Times.
  24. ↑ Roberts, Chris (August 22, 2007). "Transcript: Debate on the foreign intelligence surveillance act". El Paso Times.
  25. ↑ Nakashima, Ellen (September 1, 2007). "AT&T Plaintiffs Cite McConnell Remarks". The Washington Post.
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  27. ↑ Ellen Nakashima and Dan Eggen (October 13, 2007). "Former CEO Says U.S. Punished Phone Firm". The Washington Post.
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  37. ↑ U.S. Judge finds Wiretap Actions Violate the Law (requires subscription)
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  39. ↑ "Court Rejects ACLU Challenge to Wiretaps". Associated Press. February 19, 2008. Retrieved February 20, 2008.
  40. ↑ 40.0 40.1 House Passes Wilson FISA Bill, Press Release, September 29, 2006.
  41. ↑ 41.0 41.1 Conflicting Bills on Warrantless Surveillance Advance in Senate, Secrecy News, September 14, 2006
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  74. ↑ See for example,Cole, Epstein, Heynmann Open Letter to Congress
    Congress indisputably has authority to regulate electronic surveillance within the United States, as it has done in FISA. Where Congress has so regulated, the President can act in contravention of statute only if his authority is exclusive, that is, not subject to the check of statutory regulation.
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