President Bush’s defense of his National Security Agency directive to undertake electronic surveillance targeting U.S. citizens in the United States without judicial warrants contrary to the Foreign Intelligence Surveillance Act (FISA) follows the advice customarily received by first-year law students: “If the law is against you, argue the facts. If the facts are against you, argue the law. If both the law and the facts are against you, confuse the issue.”
Mr. Bush repeatedly insinuates that circumventing FISA is necessary to monitor calls from al Qaeda operatives into the United States which might thwart a new edition of attack like that of September 11, 2001. He and his subalterns rhetorically ask: “Should we stop eavesdropping on Osama bin Laden because a person in the United States picks up the phone? The obvious answer is “No.” But neither the Constitution nor FISA has ever required a warrant in such circumstances. Mr. Bush’s above hypothesis has never raised a legal problem.
In United States v. Verdugo-Urquidez (1990), the U.S. Supreme Court declared the Fourth Amendment protection against unreasonable searches or seizures does not apply to aliens outside the United States. In sustaining the warrantless search of an alien’s Mexican residence by U.S. Drug Enforcement Agency agents, Chief Justice William H. Rehnquist explained: “[T]he purpose of the Fourth Amendment was to protect the people of the United States against arbitrary action by their own government; it was never suggested that the provision was intended to restrain the actions of the federal government against aliens outside the United States.”
“There is likewise no indication that the Fourth Amendment was understood by contemporaries of the Framers to apply to activities of the United States directed against aliens in foreign territory or in international waters.”
The chief justice added that aliens are endowed with constitutional protections only “when they have come within the territory of the United States and developed substantial connections with this country.”
In sum, Mr. Bush has always enjoyed unconstrained authority to conduct NSA electronic surveillance against al Qaeda operatives or other aliens abroad no matter whom their communicants. The law has never suggested the NSA must cease monitoring al Qaeda communications if a person in the United States is on the other end. Like the Fourth Amendment as interpreted in Verdugo, FISA has never applied to interceptions of alien terrorist communications outside the United States. Under section 1801(f)(2) of Title 50, United States Code, electronic surveillance subject to FISA’s restrictions is defined to exclude interceptions of international wire communications to or from a person in the United States who is not the surveillance target if the acquisition occurs outside the United States.
On the other hand, the definition includes surveillances that target U.S. citizens or permanent resident aliens in the country under circumstances in which they enjoy a reasonable expectation of privacy. Mr. Bush has not disputed that the NSA’s eavesdropping falls within FISA, i.e., that it targets U.S. persons on American soil. His hypothetical featuring al Qaeda distracts from the legal issue at hand: whether he can ignore FISA’s wartime regulation of domestic spying targeting American citizens or any other legal restraint he finds irksome.
Mr. Bush’s champions erroneously suggest the NSA spying is data-mining that eschews monitoring particular individuals. Gen. Michael Hayden, principal deputy director of national intelligence and former NSA director, has described the surveillance program as “hot pursuit of communications entering or leaving America involving someone we believe is associated with al Qaeda. … It is not a driftnet … grabbing conversations that we then sort out by these alleged keyword searches or data-mining tools or other devices.”
Sen. Pat Roberts, Kansas Republican and chairman of the Senate Select Committee on Intelligence, lettered the Senate Judiciary Committee on Feb. 3, insisting “FISA does not provide an effective alternative to [the NSA’s domestic spying] to authorize the ’hot pursuit’ of terrorists operating in this country as they communicate with al Qaeda and al Qaeda affiliates overseas. FISA surveillance is beholden to a bureaucratic process that makes real agility and flexibility impossible to achieve. … Attorney General-approval of ’emergency’ surveillance under FISA must meet a probable cause standard, is limited to ’foreign powers’ or ’agents of a foreign power’ as defined in FISA, and is similarly encumbered by a bureaucratic approval process.”
But President Bush, speaking through the Justice Department, disputed the chairman’s every word in testimony to the Senate Intelligence Committee on July 31, 2002, long after the NSA domestic spying had begun. James A. Baker, counsel for intelligence policy, acclaimed the FISA amendments in the USA PATRIOT ACT: “The reforms… have affected every single application made by the department for electronic surveillance or physical search of suspected terrorists and have enabled the government to become quicker, more flexible, and more focused in going ’up’ on those suspected terrorists in the United States. [Lengthening the time period for emergency FISAs] has allowed us… to ensure that the government acts swiftly to respond to terrorist threats.”
Even if Mr. Roberts’ indictment of FISA were correct, the senator failed to explain why the deficiencies should not have been cured with further amendments in lieu of trashing the Constitution’s separation of powers. The chairman conspicuously omitted any suggestion a Republican-controlled Congress would have balked or that legislative deliberations would have exposed state secrets.
The question Mr. Bush and his surrogates evade can be simply stated: What constitutional authority empowers the president to nullify a federal statute that balances the privacy of U.S. citizens within the United States against national security in times of war because he prefers unconstrained spying?
Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.
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