Friday, December 23, 2005
The Department of Justice has released a memo defending President Bush’s warrantless domestic spying argument. There are two main arguments:
1) Any limitations FISA places on the President’s authority to issue warrantless
domestic searches are unconstitutional, and
2) Congress gave the President authority to issue warrantless domestic searches
It doesn’t seem like the DOJ has their heart in the first argument. They devote just two paragraphs out of a five page memo to this point. Most of that space is filled by caselaw decided before FISA even became law, making it largely irrelevant since FISA speaks directly to warrantless spying on Americans and declares it illegal.
Like other defenders of the President’s program, they place considerable emphasis on a 2002 decision by the FISA Court of Appeals. There are two important things to remember about that case:
- The FISA appeals court explicitly says it’s not addressing the issue (”It was
incumbent upon the [Truong] court, therefore, to determine the boundaries of
that constitutional authority [to conduct warrantless searches]…The question
before us is the reverse…”)
- The FISA appeals court acknowledges the cases it mentions were decided before FISA and didn’t consider the statute (”We reiterate that Truong dealt with a pre-FISA surveillance…it had no occasion to consider the application of the statute…”)
In other words, there is a reason that the DOJ is giving short shrift to this argument. There is little evidence to substantiate it.
The rest of the memo is devoted to arguing that the 9/18/01 Authorization for the Use of Military Force (AUMF) against al-Qaeda authorized the President’s actions. This argument doesn’t hold water either:
1. The administration tried to get language inserted into the AUMF that wouldThe Justice Department advances two theories about why Bush’s warrantless domestic surveillance program was legal and both of them fail. The truth is simple: the program was illegal because it violated federal criminal law.
have authorized them to take actions “in the United States.” They failed. [Tom
2. Federal law says that “exclusive means” to conduct electronic surveillance is
FISA and Title III (which governs the use of wiretaps by law enforcement).
Relying on the AUMF, the administration concedes that neither of those two
statutes were used. Federal law says that any surveillance that is not conducted
under those two statues is illegal. [18U.S.C. 2551(2)(f); 50U.S.C. 1809(a)]
3. FISA has a limited exception that allows warrantless
domestic wiretaps after a war is declared, but it only lasts 15 days. The Bush
administration program has been going on for more than four years. [50
The race is on: which comes first, Alito's confirmation or the Senate's investigation of the NSA overreach?