Spying 101
FISA ... AUMF ... 12333 ... Hamdi. Get used to these references to laws, executive orders, and Supreme Court rulings -- you'll hear them invoked repeatedly at next week's Senate hearings on the National Security Agency's warrantless domestic surveillance program. Because the hearings will be public, few if any operational details of the classified program will come to light.
But a protracted legal debate is sure to unfold, with the Bush administration arguing that existing laws and rules allow the monitoring program, and opponents countering that those same laws and rules don't allow the program -- or even that they expressly forbid it.
With that framework in mind, here's a look at the central components of next week's debate, and what each side is likely to say about them.
The Foreign Intelligence Surveillance Act of 1978
FISA is "the exclusive means by which electronic surveillance ... may be conducted" within the United States. It created a special court that grants or denies orders to eavesdrop domestically. The administration acknowledges that FISA, on its own, does not authorize the NSA program. FISA contains an escape hatch, however.
The act specifies that a subsequent statute could allow warrantless domestic eavesdropping. The administration contends that that statute was the Authorization for Use of Military Force, which Congress enacted one week after 9/11. The AUMF cleared the president "to use all necessary and appropriate force" against Al Qaeda and "to prevent any future acts of international terrorism against the United States."
The AUMF says nothing about electronic surveillance. But surveillance is a fundamental "incident" of war, part of the president's "inherent constitutional authority as commander-in-chief," according to the Justice Department's 42-page legal defense of the NSA program. Indeed, the administration contends that FISA might be unconstitutional if it limited the president's constitutional power to order warrantless surveillance.
"It's a very sound argument," said Noel Francisco, a former associate counsel to President Bush and a deputy assistant attorney general in the Justice Department who is now in private practice. Francisco, who didn't work on the NSA program, said that if the AUMF and FISA are in conflict, Supreme Court jurisprudence necessitates that they be resolved in the way that least threatens the Constitution.
Critics argue that Congress did not authorize domestic spying in the AUMF, and expressly prohibited it in FISA. Administration officials have acknowledged, in fact, that they approached lawmakers shortly after 9/11 about amending FISA to allow the NSA activities but were told not to try.
In a January open letter to Congress, 14 legal scholars and former government officials wrote, "The administration cannot argue on the one hand that Congress authorized the NSA program in the AUMF, and at the same time that it did not ask Congress for such authorization because it feared Congress would say no."
The letter also noted that FISA contains another provision to allow warrantless monitoring in wartime. However, the provision authorizes such monitoring for only 15 days, a window that, the 1978 legislative report said, would allow the administration to seek changes to the law.
FISA is a battleground for those on one side who believe that the president has the sole authority to conduct war and those on the other side who support Congress's power to dictate how the president can do it. Sen. Arlen Specter, R-Pa., who will chair next week's hearings, takes the latter view. The administration's AUMF argument is "very, very thin," Specter said in a CNN interview in late January. "To say that there was congressional intent [to allow domestic eavesdropping] ... is a stretch."
Executive Order 12333
Signed by President Reagan in 1981, Executive Order 12333 (called "twelve triple three") is the guidebook that enumerates intelligence agencies' "goals, direction, duties, and responsibilities." Just after 9/11, Gen. Michael V. Hayden, then the NSA director, used 12333 to conduct surveillance of specific foreign targets and then shared that intelligence with the FBI, according to sources familiar with the events and to Hayden's public remarks.
Executive Order 12333 authorizes intelligence agencies "to collect, retain, or disseminate information concerning United States persons" that is "obtained in the course of a lawful ... international terrorism investigation."
Hayden has acknowledged using 12333, and The New York Times reported that the NSA has given the FBI information that involves Americans.
The controversial 12333 resulted from conflict over the executive branch's national security powers. Reagan wanted to use 12333 to lay down markers against FISA and other laws that might tread on presidential authority. "It was a philosophy," an affirmation of the commander-in-chief's powers, explained Victoria Toensing, who helped craft the order's language as an aide to the Senate Intelligence Committee.
The executive order made it clear that "the president, under the Constitution, has the ultimate authority in the national security area," said John Poindexter, who was Reagan's national security adviser in the mid-1980s. It was intentionally "quite broad but has often been interpreted quite narrowly," Poindexter said. "When something like this is passed down through the hierarchy, each level typically steps back from the edge to make sure their subordinates don't go beyond."
Referring to the NSA director's action after 9/11, Poindexter added, "Apparently Hayden took as much latitude as the [order] provided. He saw what needed to be done and he did it."
Executive orders, however, are not laws. The argument that 12333 grants extraordinary powers is open to challenge. Executive orders can "fill in gray areas of a law," said Michael Dorf, a constitutional law professor at the Columbia University School of Law, but they are valid only "to the extent that [they are] consistent with existing law."
Hamdi v. Rumsfeld
In Hamdi v. Rumsfeld, the administration argued before the Supreme Court that although the AUMF did not mention detentions, it allowed the president to hold "enemy combatants," including U.S. citizens, without affording them due process. In 2004, Justice Sandra Day O'Connor, writing for a plurality of justices, acknowledged that the AUMF allowed detentions as "an accepted incident of war."
But she limited that authority to "individuals who fought against the United States in Afghanistan as part of the Taliban," a known supporter of Al Qaeda. She rejected the administration's broader assertions of power: "A state of war is not a blank check for the president when it comes to the rights of the nation's citizens." The Court ruled that enemy combatants could challenge their cases before a judge or "neutral decision-maker."
Though the administration lost in Hamdi, the White House embraces the Court's finding that the AUMF grants the president certain war powers even without specifying them. As with FISA, the administration says that the AUMF overrode an existing law prohibiting extrajudicial detention of U.S. citizens because that law allowed for exceptions "pursuant to an act of Congress."
The Justice Department, in its legal defense, argued that the Court found that Congress gave the president the power to use "all traditional and accepted incidents of force ... including warrantless electronic surveillance."
But the Hamdi analogy "is inapt," according to the letter from the 14 critics, because it "overlooks the carefully limited holding and rationale" in the ruling.
The administration's argument "ignores the express language of the Court," said Jonathan Turley, a law professor at George Washington University and an attorney who is asking the government to confirm or deny that the NSA program targeted his client, a Muslim scholar imprisoned for inciting violence against the United States.
Foreign Versus Domestic
FISA doesn't apply to the NSA's activities conducted entirely outside the United States. Administration officials call the NSA program a "foreign-intelligence" activity that targets only those communications in which one party is outside the U.S. But how does a communication qualify as "international" or "foreign" when the other party is within the nation's borders?
According to a White House statement in late January, "domestic calls are calls inside the United States," but "international calls are calls either to or from the United States." Even when one party to a monitored communication is inside the country, this definition classifies the conversation as "international" -- thus putting such calls in the NSA's foreign-intelligence domain, where FISA does not reach.
This assertion that a call partially based in the United States can be categorized as "international," and therefore be monitored, "blows a giant hole in the Fourth Amendment," which protects against unreasonable searches and seizures, Turley contends. Treating domestic communication as foreign intelligence "would effectively gut decades of federal statutory laws and case decisions."
A former CIA general counsel and federal judge disagrees that the NSA program imperils the Fourth Amendment. Stanley Sporkin, whom Reagan appointed to the bench in 1985, said that considering what administration officials describe as the program's narrow focus -- targeting known or suspected terrorists or their affiliates -- "I don't think that ... you can say it's unreasonable to do what [the NSA is] doing here." The president would be remiss in not monitoring communications, he said, if they contain plans for a terrorist strike. Sporkin cites a well-worn legal axiom: "The Constitution is not a suicide pact."
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