JURIST Guest Columnist Peter Shane of Moritz College of Law, Ohio State University, says that decisions by the Republican leaders of two congressional committees not to launch probes into warrantless NSA surveillance of Americans contrary to FISA, the Foreign Intelligence Surveillance Act, reflect a serious breakdown in the constitutional system of checks and balances between different branches of government...
One of two Administration arguments for the legality of its program of warrantless electronic surveillance is that such spying was implicitly authorized by the 2001 resolution for the Authorization for the Use of Military Force in Afghanistan. The AUMF supposedly provides the statutory authority for warrantless surveillance that is an express exemption from the requirements of the Foreign Intelligence Surveillance Act.
Among the many problems with this argument is the fact that Congress, when it enacted FISA, actually thought about how to handle electronic surveillance during wartime. Under FISA, the President is allowed to "authorize electronic surveillance . . . to acquire intelligence information for a period not to exceed fifteen days following a declaration of war by the Congress." The obvious reason was to give Congress two weeks to decide what variations in the FISA regime ought be implemented in law to give the President continuing legal authority to conduct surveillance, but in circumstances appropriate to wartime.
Of course, Congress did not intend the AUMF as a declaration of war, legally speaking. And it did not change FISA to eliminate the warrant requirement for domestic spying. So, in order to accept the Administration's argument, you have to believe something like this: In enacting the AUMF, which does not say a word about declaring war or expanding wiretapping, Congress implicitly authorized the President to conduct warrantless surveillance for an indefinite period of time, even though Congress, when it explicitly considered in 1978 the scope of presidential authority after a formal declaration of war, limited his authority to conduct warrantless surveillance to a period of 15 days. Such an argument is logically and legally absurd.
It follows in the footsteps, however, of the Administration's equally specious lawyering on the question of torture. In the now infamous "Torture Memo" of 2002, the Justice Department's Office of Legal Counsel offered a preposterously narrow reading of the statute banning acts intended to provoke "severe physical or mental pain and suffering." With regard to physical harms, OLC would have limited the ban's purview to acts inflicting harms that "rise to the level of death, organ failure, or serious impairment of body functions." The sole legal authority on which that fanciful reading is founded is a citation to an entirely unrelated statute describing the physical harms that entitle people to certain emergency medical health benefits.
Executive branch lawyers will naturally be mindful of the interests of the Presidency in deciding how to interpret the constitutional and statutory law of the United States. But there is a line between scrupulous attention to the legitimate interests of your client and what might be called pants-on-fire lawyering taking positions so plainly at odds with legal judgment and common sense that their absurdity verges on downright dishonesty. In many critical areas of foreign and military policy, the executive functions virtually free of public scrutiny. In such sensitive areas, conscientious lawyering within the executive branch is pretty much our only institutional check to insure observance of the rule of law. When Justice Department lawyers proffer incompetent legal positions in defense of the President's supposed discretion to do whatever he feels like, they are truly complicit in subverting the Constitution.
A recurring question in the FISA-gate debate is why the executive branch, which actually has emergency authority under FISA to conduct warrantless surveillance, did not use it. This seems especially mysterious given that the President and Attorney General insist the NSA has listened in only on conversations involving parties who belong to or are associated with al Qaeda.
I actually have a guess about this, and I emphasize it is only a guess. The question to ask is, how did the government know that it was listening on conversations of this kind. My hypothesis is that they were using a technique called "pattern recognition." That is, using computers to sift through data about thousands of telephone communications things like call length, points of origin and reception, and so on as well as word sampling from the conversations themselves, the NSA developed an algorithm for which patterns would likely be characteristic of al Qaeda-related phone calls. If I am right, then the following two things would also be true:
1. The Administration can accurately say that it limited its "listening" to al Qaeda-related phone calls only if you don't count the original computer surveillance of the contents of phone calls as "listening."
2. The information that led to the identification of certain phone calls as al Qaeda-related did not include information specific to the actual parties to the phone call. The information was only a "pattern," which, judging from the results, typically was not well designed to yield fruitful "hits."
The reason I think this is a decent guess is that FISA would not permit the computerized "listening in" that I suspect has occurred, and it's not clear whether the FISA court would accept pattern evidence as the sole basis for establishing probable cause that a phone call would actually yield foreign intelligence information. The court might also have rebelled against the process that yielded the pattern information in the first place. That would explain why the Administration did not rely on the court.
What it fails to explain again, if my guess is right is why the Administration did not ask for an amendment to FISA to allow this sort of program. With Republican majorities in both Houses and the Administration's skill in the politics of national security, what were they afraid of?
The Republican Intelligence Committee chairs are apparently willing to hold hearings into the potential need for amending FISA. Perhaps the Administration's requests for amendments will offer some clue as to what is already happening.
Peter Shane is the Joseph S. Platt/Porter Wright Morris & Arthur Professor of Law and Director, Center for Interdisciplinary Law and Policy Studies at Moritz College of Law, Ohio State University