Protecting our lives

The value of a listening ear

By John Romano
From the March 2006 Print Edition

The National Security Agency program that monitors phone calls to and from suspected terrorists in the United States is a complex legal issue. Those claiming that it is obviously illegal or unconstitutional do not have a clear understanding of the legal precedents surrounding the issue. Critics argue that the Fourth Amendment and the Foreign Intelligence Surveillance Act of 1978 require the president to obtain a warrant before wiretapping anyone inside the United States, so this program is in violation of those two laws. However, the Supreme Court has long held that there are exceptions to the warrant requirement of the Fourth Amendment, and some argue that FISA itself may be limiting the president’s authority as commander in chief, and is therefore unconstitutional.

The president’s defense of the program is two-fold: first, the authority was granted to him by statute when Congress, following the attacks on September 11, granted him the authority to use all “necessary and appropriate force” to stop terrorist cells operating in the United States, including wiretapping known or suspected terrorists to gain information; and second, the inherent authority granted him by the Constitution grants him the ability to wage war. Both of these arguments are supported by past Supreme Court decisions.

When Congress granted the president the authority to pursue al Qaeda and other terrorists attempting to attack the United States, it was effectively a declaration of war. The president argues that the taping of terrorist calls either into or out of the United States is a necessary step of waging that war. It is hard to deny that gathering intelligence is an important tool in waging a war, but some critics have argued that warrantless wiretaps were not intended to be used when Congress gave the president wartime authority.

However, the Supreme Court ruled in Hamdi v. Rumsfeld (2004) that the president has authority to detain enemy combatants even though that was not expressly granted by Congress in the “Authorization to Use Military Force” law. The Supreme Court ruled that detaining the enemy is a necessary act of waging a war. Similarly, gathering intelligence is also a necessary part of waging war, so the Hamdi decision would suggest that the president has the authority to gather intelligence, and can do so as he sees fit.

Article II of the United States Constitution designates the president commander in chief of the armed forces. He, then, is the person ultimately responsible for protecting the country from foreign threats. The Supreme Court maintained in U.S. v. Butenko (1974) that warrants were not necessary where “surveillances … were ‘conducted and maintained solely for the purpose of gathering foreign intelligence information.’” This makes sense considering that gathering intelligence is a necessary act of waging a war, especially in this instance, where the enemies are loosely organized, stateless terrorists.

In U.S. v. Duggan (1984) the Supreme Court stated, “virtually every court that had addressed the issue had concluded that the president had the inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information, and that such surveillances constituted an exception to the warrant requirement of the Fourth Amendment.”

This changed, however, when Congress passed the Foreign Intelligence Surveillance Act in 1978. Congress changed the law to require the president to get a warrant to monitor persons inside the United States, even if they were being monitored for national security reasons. The Foreign Intelligence Surveillance Court was established as a secret court to grant these warrants.

The crux of the argument against the current NSA program lies within this Court; the FISC is supposed to be able to handle the varying needs of the executive to gather intelligence. However, the Supreme Court has at least suggested that this is a breach of the separation of powers. In U.S. v. Troung (1980) the Court said: “The president may authorize surveillance without seeking a judicial warrant because of his constitutional prerogatives in the area of foreign affairs.”

Even the FISC itself — the only time it addressed the issue — recognized the president’s inherent authority: “We take for granted that the president does have that authority [to conduct warrantless searches to obtain foreign intelligence] and, assuming that is so, FISA count not encroach on the president’s constitutional power.”1

It is clear from such precedents that the Supreme Court has recognized the inherent constitutional authority of the president to conduct warrantless surveillance for the purpose of gathering intelligence. Because he is an equal partner alongside the legislature and the judiciary, he has power that cannot be encroached upon. No law passed by Congress, short of a constitutional amendment, can take this authority away from the president. Simply because FISA has been the law for twenty years does not mean that the president must follow it if it is unconstitutional, as it appears it may be.

Critics of the program should not be so quick to claim it illegal. The law in this area is not as clear as they think it is, and the stakes of being wrong are far too high.

Read the counterpoint.

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