|
Director
|
Memorandum to Interested Persons
From: Kate Martin and Brittany Benowitz, Center for National Security Studies
Re: President’s authorization of domestic spying violates specific criminal prohibition
Date: December 20, 2005
The President claims he has authority as the Commander-in-Chief to conduct warrantless wiretaps of Americans. But when Congress enacted the Foreign Intelligence Surveillance Act in 1978, it expressly rejected the President’s claim of inherent authority to conduct warrantless wiretaps. It then went further and made it a crime to conduct such wiretaps.
The President has acted contrary to the express will of the Congress. The Supreme Court has never approved a claim of presidential authority to authorize acts outlawed by the Congress.
When Congress authorized secret wiretaps for national security purposes in 1978, it intended to prevent any future President from carrying out warrantless eavesdropping on Americans It made its intention clear in five different sections of the law!
1) When Congress enacted FISA in
1978, it explicitly refused to provide an exception to enable the
President to
eavesdrop on Americans without getting a judicial warrant. It
repealed the provision which the government
had relied upon in claiming inherent presidential authority for
warrantless wiretaps:
Nothing contained in this chapter
or in section 605 of the Communications Act of 1934 shall limit the
constitutional power of the President to take such measures as he deems
necessary
to protect the Nation against actual or potential attack or other
hostile acts
of a foreign power, to obtain foreign intelligence information deemed
essential
to the security of the United States, or to protect national security
information against foreign intelligence activities. Nor shall anything
contained in this chapter be deemed to limit the constitutional power
of the
President to take such measures as he deems necessary to protect the
United States against the overthrow of the
Government by force or other unlawful means, or against any other clear
and
present danger to the structure or existence of the Government. The
contents of
any wire or oral communication intercepted by authority of the
President in the
exercise of the foregoing powers may be received in evidence in any
trial
hearing, or other proceeding only where such interception was
reasonable, and
shall not be otherwise used or disclosed except as is necessary to
implement
that power.” Pub.
L. No. 90-351, 82 Stat. 212 (codified as amended at 18 U.S.C. §§
2510-2520
(1968)).
The government had argued in the Keith case that this
provision supported the President’s constitutional authority to conduct
warrantless wiretaps; the Court found it neutral on the
President’s authority, not congressional authorization for warrantless
surveillance. United States v. United States
District Court [Keith], 407
U.S. 297, 303 (1972). 2) Congress also refused to enact
the language proposed by the Ford administration that:
“[n]othing
contained in this chapter shall limit the constitutional power of the
President
to order electronic surveillance for the reasons stated in section
2511(3) of
title 18, United States Code, if the facts and circumstances giving
rise to
such order are beyond the scope of this chapter.” S. 3197, 94th
Cong. 2d Sess, § 2528 (Mar. 23, 1976), reprinted in Hearings on S. 743,
S. 1888, S. 3197 Before the Subcomm.
On Criminal Laws and Procedures of the Senate Judiciary Comm., 94th
Cong.,
2d Sess. 134 (1976) (stating in the first page of the
report that S. 3197 was identical to the measure transmitted to the
Senate by
the President on March 23, 1976).
3)
Instead,
in FISA Congress enacted a comprehensive
scheme governing all
foreign intelligence wiretaps, including provisions for emergency
wiretaps in advance of warrants and wiretaps of foreign embassies
inside the US
without warrants, because as foreign governments, they are not covered
by the
Fourth Amendment. It expressly provided
that after a declaration of war the Attorney General could authorize
warrantless wiretaps for 15 days.
Those steps alone would have sufficed to prohibit warrantless wiretaps, but the Congress went further.
4) It expressly made it a crime
for
government officials "acting under color of law"
to engage in electronic eavesdropping
"other than pursuant to statute." 50
U.S.C. 1809.
5) Congress again made explicit
that the FISA and the criminal wiretap laws “shall be the exclusive
means
by which electronic surveillance … communications may be
conducted.”
(Now codified at 18 USC
2511(f).) Section 201 of the FISA as
enacted in 1978 provided that:
Nothing contained in this
chapter,
or section 605 of the Communications Act of 1934, shall be deemed to
affect the
acquisition by the United States Government of foreign intelligence
information
from international or foreign communications by a means other than
electronic
surveillance as defined in section 101 of the Foreign Intelligence
Surveillance Act of 1978, and procedures in this chapter and the
Foreign
Intelligence Surveillance Act of 1978 shall be the exclusive means by
which electronic surveillance, as defined in section 101 of such Act,
and the
interception of domestic wire, oral, and electronic communications may
be
conducted. Pub.
L. No. 95-511, 92 Stat. 1783, § 201 (1978).
Confronted with this explicit law against warrantless wiretaps, the administration is now claiming that it had authority from Congress. But its contention that the congressional resolution for the use of force following the September 11, attacks authorized its warrantless surveillance is ludicrous. FISA states that following a declaration of war by the Congress, the President, acting through the Attorney General, may institute electronic surveillance without a court order for no more than fifteen days. (50 USC 1811.) At best, the September 2001 resolution is the equivalent of a declaration of war. At most, therefore, the resolution authorized warrantless surveillance for fifteen days. Nothing in the resolution can be read as amending this specific limitation to allow unlimited warrantless surveillance.
