01/04/2006 04:24 pm ET Updated May 25, 2011

Bush's Spy Program and FISA

In an earlier post ("Bush"s Spy Program and the Fourth Amendment"), I argued that Bush's recently disclosed spy program almost certainly violates the Fourth Amendment. Now, I will take up the Foreign Intelligence Surveillance Act (FISA) issue. In 1978, after a broad range of abusive and unlawful investigative practices by the Nixon administration came to light, Congress enacted FISA. This legislation was designed to strike a careful balance between protecting civil liberties and enabling the government to protect the nation against foreign enemies.

FISA established special rules dealing with foreign intelligence surveillance, and set up a special "secret" court, the Foreign Intelligence Surveillance Court, to handle these matters, but it retained the probable cause and warrant requirements of the Fourth Amendment. FISA criminalizes any electronic surveillance not authorized by statute, and it made clear that it set forth the exclusive means by which foreign intelligence surveillance may be conducted.

The Bush spy program secretly authorized the National Security Agency to circumvent FISA by conducting foreign intelligence surveillance of American citizens on American soil without any showing of probable cause and without first obtaining a warrant from the FISA Court. There is no question that the Bush spy program directly and unequivocally violated FISA.

Defenders of the Bush program argue that it is nonetheless lawful for one of two reasons. First, they argue that Congress's enactment of the Authorization to Use Military Force (AUMF) implicitly overrode FISA. Second, they argue that FISA cannot constitutionally be applied to the Bush spy program, because the program is constitutionally justified by the President's power to act as "commander-in-chief" of the army and navy. Neither argument has merit.

The AUMF authorized the President "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks of September 11, 2001 . . . in order to prevent any future acts of international terrorism against the United States." Although the AUMF certainly gives the President certain powers, for example, the power to invade Iraq, it did not in any way amend FISA. When there is an apparent conflict between a specific law and a general law, the specific law governs. Clearly, FISA is the specific law in this context. More fundamentally, though, FISA expressly anticipated what would happen in the event of a declared war, and provided that in such an event the President could lawfully use warrantless foreign intelligence surveillance for a maximum period of fifteen days, after which he would have to comply with FISA or formally seek a specific congressional amendment of the law. The AUMF, of course, falls far short of a declaration of war, but even if we were to treat it as the equivalent of a declaration of war, it does not in any way purport to address the fifteen-day provision of FISA. In short, nothing in the AUMP expressly or impliedly authorized the President to violate FISA.

The defenders of the Bush program next argue that the President, as "commander-in-chief" of the army and navy, has the "inherent" authority to implement warrantless electronic surveillance of American citizens on American soil, without probable, and without going to the FISA Court, if he deems it necessary. Each branch of the federal government has certain "inherent" powers. For example, if Congress enacted legislation stating that the President cannot order American troops in Iraq to capture prisoners, this would violate the President's inherent authority as commander-in-chief. If Congress enacted a law stating that the Supreme Court no longer has the power of judicial review, this would violate the inherent authority of the judiciary. And if the President refused to execute a law properly passed by Congress over his veto, this would violate the inherent authority of Congress, and the President could be impeached.

That inherent authority exists does not tell us its scope or when it may be exercised in the face of contrary judgments of the other branches of government or specific constitutional rights. The Supreme Court most recently dealt with this issue in its 2004 decision in the Hamdi case. On the one hand, the Court found that the detention of individuals who fought against the United States in Afghanistan was a "fundamental and accepted incident to war," and thus was within the President's authority. On the other hand, the Court made clear that the President does not have the authority to hold such individuals indefinitely or to deny them due process in deciding whether they were in fact enemy combatants. Although President Bush argued that he has the "inherent" authority as commander-in-chief to deal with alleged enemy combatant pretty much as he pleased, the Court emphatically rejected this assertion. As Justice O'Connor proclaimed, "a state of war in not a blank check for the President when it comes to the rights of the Nation's citizens." For similar reasons, the Court rejected excessive commander-in-chief claims in the Steel Seizure Case during the Korean War and in the Pentagon Papers case during the Vietnan War.

Moreover, the Court has long recognized that the President's inherent authority as commander-in-chief is at its "lowest ebb" when, as here, the Congress has expressly prohibited the action he seeks to take. Whatever the commander-in-chief power may say about other circumstances, it does not give the President the authority to override both the Fourth Amendment and express congressional legislation in order to wiretap American citizens on American soil without either probable cause or a warrant. This is an excessive and unjustified assertion of the President's inherent authority, and is not by any means "a fundamental and accepted incident to war." Indeed, under Bush's view of the commander-in-chief power, he doesn't need the authority of the Patriot Act, and the provision of the Constitution authorizing Congress to suspend the writ of habeas corpus in cases of rebellion or invasion is simply superfluous. Bush can do it all.

This is not to say that the President had no resource if he believed that FISA unduly restricts his ability to protect the nation. What he could and should have done is to urge Congress to amend FISA by enacting new legislation, which could then be properly tested in a court of law. Instead, he sought to elide the constitutional process entirely and surreptitiously ordered the NSA spy program without either congressional affirmation or judicial review. That will not stand.