Constitution permits surveilance of enemy communications

Victoria Toensing:

In the aftermath of the New York Times's illegal disclosure of surveillance by the National Security Agency, the Senate now debates whether to amend the Foreign Intelligence Surveillance Act (FISA), the law that formulates a procedure for the president to obtain warrants to wiretap foreign individuals and entities within the United States. The senators claim they are considering such legislation not to bury the NSA program, but to save it. It's time for a legal primer on the Constitution and national security law.

In Article II, the Constitution establishes the president as commander in chief. As such he has inherent authority to conduct warrantless surveillance for the purpose of acquiring foreign intelligence information. He does not have the authority to close banks, seize steel mills, or raise our taxes; he does have it to get battlefield information about an enemy who has killed thousands of us on our soil and threatens to do so again.

No court opinion denies this constitutional authority to the president. All federal appellate courts that have considered the issue, including the FISA appeals court, have recognized such authority. The Supreme Court, over three decades ago, emphatically specified in the Keith case that it would leave this issue to another day. In doing so, the Court provided a clear indication that foreign surveillance is not domestic surveillance.

The Keith Court held that the president does not have authority to conduct warrantless searches of entities that are "domestic," i.e., where "[t]here is no evidence of any involvement, directly or indirectly of a foreign power."... Keith made clear that "domestic" wiretapping is a legal term of art that does not turn on whether the surveillance takes place in the United States. Media misuse of that term to characterize the NSA surveillance, where one party is foreign and linked to al Qaeda, indicates an absence of legal sophistication or an attempt to prejudice the issue, or both.

Post-Keith appellate decisions, before and after the 1978 FISA statute, uphold the president's inherent constitutional authority for warrantless acquisition of foreign intelligence information.

In 1973, the U.S. Circuit Court of Appeals for the Fifth Circuit relied on one of its previous decisions in holding that it "reaffirms . . . the President may constitutionally authorize warrantless wiretaps for the purpose of gathering foreign intelligence." The court cited a Federalist Papers theme as "buttress[ing]" its decision: "the President must take great care to safeguard the nation from possible foreign encroachment."

In 1974, the majority of the entire Third Circuit (sitting en banc) considered a challenge to an espionage conviction where warrantless surveillance had not only been carried out by the president but also used at trial. In affirming the conviction, the court stated, "The importance of the President's responsibilities in the foreign affairs field requires the judicial branch to act with the utmost care when asked to place limitations on the President's powers in that area. As Commander-in-Chief, the President must guard the country from foreign aggression, sabotage, and espionage."

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Most significantly, in 2002, the FISA appellate court cited the Fourth Circuit case saying, "The Truong court, as did all other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. . . . We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power."

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

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

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There is much more. The opponents of this surveilance can show no case that supports their position.