THE BLOG
02/17/2006 11:52 am ET | Updated May 25, 2011

Why the NSA's Domestic Spying Program is Illegal

The uproar on Capitol Hill over President Bush's secret program to use the National Security Administration to spy on American citizens without a warrant continues to grow. But the NSA program - and the President's defense of it - are much more worrisome than many in Washington realize.

Under the Foreign Intelligence Surveillance Act (FISA), the President is prohibited from domestic spying on U.S. citizens without a warrant. To ease the President's ability to obtain such warrants, however, the FISA establishes a special court with streamlined procedures and relatively lenient standards. Yet the President chose simply to ignore the requirements of FISA.

The administration makes two arguments to support the spying program. The first is specious. The second is nothing less than a threat to the rule of law.

The first argument is that Congress "implicitly authorized" Bush to spy on citizens by the Authorization for the Use of Military Force (AUMF), the law passed right after 9/11 to authorize military action against Al Qaeda.

Of course, the text of the AUMF says absolutely nothing about domestic surveillance. FISA, by contrast, comprehensively regulates wiretapping for intelligence purposes, including detailed provisions on domestic surveillance during times of war.

Under standard principles of statutory interpretation, a general law is not read to replace an earlier, more specific law in the absence of some evidence that Congress intended to change the law. But nothing in the AUMF's text or legislative history indicates a congressional intent to override the detailed, carefully constructed FISA procedures.

In fact, during deliberations on the AUMF, Congress explicitly rejected an administration proposal to include a grant of authority to the President to exercise domestic war-making powers. Now Bush claims the statute empowers him in precisely the way Congress refused.

"Implicitly authorized" apparently should be taken to mean "lacking any basis in law."

In recognition of the weakness of the first argument, the administration offers another. This one, too, lacks legal foundation. More troubling still is that, if accepted, the President's argument would undermine the foundations of our system of checks and balances.

The administration says that the president does not need authority from Congress because the he has "inherent power" under the Constitution as Commander-in-Chief to take any action necessary, at home or abroad, to preserve national security.

"Inherent" powers? "Implicit" authorization? It makes one long for the good old days when President Bush pledged his allegiance to a philosophy of "strict" construction.

President Truman made the same "inherent powers" argument in the Supreme Court to defend of his seizure of U.S. steel mills during the Korean War. Under federal law, the executive could seize property under certain circumstances, but Truman elected to take over the mills without following the statutory procedures. As Commander-in-Chief, he claimed to have the implicit power to seize private property if necessary to support the war effort, without following contrary legislation that was in his view too burdensome.

In a landmark decision, Youngstown Sheet & Tube v. Sawyer, the Supreme Court rejected Truman's argument and held the seizure of the steel mills was unconstitutional.

Out of the Youngstown case came what has become the settled method of determining the boundaries of executive power under the Constitution. Under this framework, executive power is at its strongest when the president acts with the consent of Congress. When Congress and the executive are aligned, the President acts with the combined authority of both branches.

Conversely, the President's power is at its "lowest ebb" when the President acts contrary to the will of Congress. Then the President can only act if the Constitution grants him, and him alone, authority to govern in the relevant area.

In the steel seizure case, the president did not have "exclusive" authority to take private property or regulate industrial relations. Congress' authority in this area was well established, as evidenced by the seizure laws Truman ignored.

Nor does the Constitution vest President Bush with "exclusive" authority over domestic surveillance. Congress has a long-recognized role in regulating domestic searches and seizures, including surveillance in time of war. The FISA itself is a reflection of that authority, and that law specifically criminalizes electronic spying without a warrant.

And there's the rub. Under the "inherent powers" argument, the President's power is so broad that he can even violate the criminal laws. And he can do so covertly and without submitting to oversight by the other branches of government. But if the President can secretly ignore FISA -- which was enacted explicitly to limit surveillance by the executive branch -- what laws still bind him?

Logically, the President's inherent powers would allow him to violate any law so long as some tie to national security can be asserted.

Indeed, the President has already made clear that he believes the scope of his inherent powers permit him to violate other laws than FISA. When he signed the recently enacted McCain Amendment forbidding the torture of detainees, for example, Bush declared that his "inherent authority" as Commander-in-Chief still permitted him to employ torture at his discretion.

Quite literally, President Bush claims to be above the law. Americans inclined to trust President Bush should realize, however, that the precedent set here will empower future presidents. Do we really want all future presidents to have the power to disobey basic criminal laws?

President Bush's NSA program is illegal and needs to be stopped. Even more importantly, Congress must take a strong stand against Bush's dangerous reading of the Constitution.