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Justice Dept.'s Explanation of Warrantless Surveillance

By Jeralyn, Section War on Terror
Posted on Thu Dec 22, 2005 at 09:03:14 PM EST
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The Office of Legislative Affairs for the Justice Department wrote this letter (pdf) Thursday to leaders of the Senate Select Committee on Intelligence in an attempt to justify the President's orders directing the National Security Agency to conduct warrantless electronic surveillance in the wake of 9/11.

DOJ says the President's actions were justified and legal by virtue of:

  • Article II of the Constitution
  • The Authorization for the Use of Military Force ("AUMF") of September 18,
    2001, 115 Stat. 224 (2001)
  • The 2002 FISA Review Court Ruling (background here.)
  • Principles of statutory construction that apply when there's an ambiguity
  • The Fourth Amendment's reasonableness requirement allowing for warrantless searches upon a showing of special need under the totality of the circumstances.

The letter acknowledges that FISA and Title III prohibit electronic surveillance unless authorized by statute. Here's the DOJ argument: The AUMF constitutes such a statute. And, if it doesn't, it should, because principles of statutory construction require that FISA and the AUMF be harmonized, and any ambiguities have to be resolved in favor of presidential authority.

In legalese, according to DOJ (note: this is cut and pasted from the pdf file which mistakes some symbols, so if you want to be completely accurate in citing, use the pdf link above):

The President's authorization of targeted electronic surveillance by the NSA is also consistent with the Foreign Intelligence Surveillance Act ("FISA"). Section 2511(2)(f) of title 18 provides as relevant here, that the procedures of FISA and two chapters of title 18 "shall be the exclusive means by which electronic surveillance.. . may be conducted." Section 109 of FISA, in turn, makes it unlawful to conduct electronic surveillance, "except as authorized by statute." 50 U.S.C. 1809(a)(l). Importantly, section 109's exception for electronic surveillance "authorized by statute" is broad, especially considered in the context of surrounding provisions. Sec 18 U.S.C. 2511 (1) ("Except as otherwise specifically provided in this chapter any person who intentionally intercepts . . . any wire, oral, or electronic communication[] . . . shall be punished . . ..") (emphasis added); id. 2511 (2)(e) (providing a defense to liability to individuals "conduct[ing] electronic surveillance, . . . as authorized by that Act [FISA]") (emphasis added).

By expressly and broadly excepting from its prohibition electronic surveillance undertaken "as authorized by statute," section 109 of FISA permits an exception to the "procedures" of FISA referred to in 18 U.S.C. 2511(2)(f) where authorized by another statute, even if the other authorizing statute does not specifically amend section 2511(2)(f). The AUMF satisfies section 109's requirement for statutory authorization of electronic surveillance, just as a majority of the Court in Hanzdi concluded that it satisfies the requirement in 18 U.S.C. 4001(a) that no U.S.
citizen be detained by the United States "except pursuant to an Act of Congress." See Hamdi, 542.

...any ambiguity as to whether the AUMF is a statute that satisfies the
requirements of FISA and allows electronic surveillance in the conflict with a1 Qaeda without complying with FISA procedures must be resolved in favor of an interpretation that is consistent with the President's long-recognized authority.

One thing the letter doesn't explain is why the Government couldn't invoke the 72 hour advance monitoring provision in FISA, which allows it to monitor for 72 hours before applying for a warrant. Also, contrary to what the letter says, many authorities have said FISA can act speedily, within a matter of hours.

It sounds to me like the Government wanted to do wholesale monitoring of large numbers of people and didn't want to submit a warrant request for each one because it was too much paperwork. Instead, it adopted the position, "Warrant? We don't need no stinkin' warrant."

The Government thumbed its nose and made an end-run around FISA, Title III and the Fourth Amendment's particularity clause, invoking Congress' authorization for the use of military force as a cover, when Congress, in voting for the authorization, had no idea it was going to be used to intercept the communications of persons within this country without a warrant.

A weak and transparent argument, in my view, but let's see what the experts think. And by that, I don't mean experts in the Bush Administration and Department of Justice.

Update: Former Sen. Tom Daschle debunks DOJ's letter in an oped in Friday's Washington Post.

As Senate majority leader at the time, I helped negotiate that law with the White House counsel's office over two harried days. I can state categorically that the subject of warrantless wiretaps of American citizens never came up. I did not and never would have supported giving authority to the president for such wiretaps. I am also confident that the 98 senators who voted in favor of authorization of force against al Qaeda did not believe that they were also voting for warrantless domestic surveillance.

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    Justice Dept.'s Explanation of Warrantless Surveillance | 16 comments (16 topical)
    Re: Justice Dept.'s Explanation of Warrantless Sur (none / 0) (#1)
    by Talkleft Visitor on Thu Dec 22, 2005 at 10:25:09 PM EST
    Oh, this is just splendid. Not only does this interrupt my wageslave all-nighter writing stupid answers to stupid questions just to give content providers the ability to transform art into commodity, but it also makes clear what these guys are doing. Shorter DOJ: 1. FISA is a moot court. 2. Surveillance equates to an act of force covered by Bushmebullyou's executive war powers. 3. The Empereror deigned
    ...to create an early warning detection system. FISA could not have provided the speed and agility required for the early warning detection system.
    Hence, if any of us get trapped in the early "detection" system, by DOJ logic, WE'RE COLLATERAL DAMAGE. brilliant This seals it for me. The boogieman for these guys is the fact that because they were doing MASSIVE surveillance on MASSIVE numbers of people, THEY DIDN'T KNOW WHO THEY WERE SPYING ON! "Psst..Hey, FISA...Could you give me about ehhh...300,000 JOHN DOE WARRANTS for our Internet surveillance project? No, it's not really monitoring, it's detection."

    Re: Justice Dept.'s Explanation of Warrantless Sur (none / 0) (#3)
    by Talkleft Visitor on Thu Dec 22, 2005 at 10:56:14 PM EST
    The boogieman for these guys is the fact that because they were doing MASSIVE surveillance on MASSIVE numbers of people, THEY DIDN'T KNOW WHO THEY WERE SPYING ON! Exactly. It's what I've been positing for three days, and only now someone gets it. It's Echelon, baby, (or whatever superseded it). They are wiretapping everybody, or at least very large numbers of non-specific people and conversations, looking for keyword "hits". That in itself is unconstutional if for no other reason than you cannot get a warrant without specifying poeople, places, things. When they get a hit they zero in on specific people and conversations for some deep surveillance. But now they still can't get a warrant because the probable cause evidence is tainted, having been obtained via a warrantless non-specific sweep. What's more, the zeroing-in occurs within milliseconds of a "hit" - no FISA court could be that agile! What I've just posited neatly explains everything and does not require the presupposition of Gee-Whiz technology beyond that which has long been suspected. (I would suggest that the original 80s-era Echelon capability has long since been supplemented or supplanted by direct taps at the Internet backbone and main telephone switches - graciously and quietly provided by our telecomms corporations in the 1990s.) Get it now? Big Brother is watching and listening.

    Re: Justice Dept.'s Explanation of Warrantless Sur (none / 0) (#4)
    by Talkleft Visitor on Thu Dec 22, 2005 at 10:57:53 PM EST
    Pardon my crappy typing.

    Re: Justice Dept.'s Explanation of Warrantless Sur (none / 0) (#5)
    by Talkleft Visitor on Thu Dec 22, 2005 at 11:11:52 PM EST
    So when they talk about "500" or "thousands" of people for whom they didn't get warants, they are only talking about the deep surveillance that occurs as the result of a "hit". They are glossing over the mass surveillance that has already occured to obtain the hits. This is where people are getting fogged out. They are thinking, "it's technology I don't understand," and "it's just computers, not people, doing the surveillance." People are not making the connection, to wit, that this is illegal wiretapping of everybody on a massive scale, and just as wrong as if it involved POTS qwires and human listeners. There are a host of yet-to-be adjudicated "reasonable expectation of privacy" questions, I'm sure. But we'd better address them. We didn't address them for 20 years when it was just foreigners in foreign lands. Now that it has all come home to roost...

    Re: Justice Dept.'s Explanation of Warrantless Sur (none / 0) (#6)
    by Talkleft Visitor on Fri Dec 23, 2005 at 12:16:31 AM EST
    Sosume...Don't fall for the "wiretap" equals "internet surveillance" mantra. They are two separate gorillas and probably will serve as foundation for some defense as wacky as this DOJ love note. "Wiretaps" are used to intercept and record real-time "aural" communication. They are covered by Title III, 18 USC2510 et. seq. Because they intercept and record the actual contents of the "aural" communication, and because we have an "expectation of privacy", under the 4th Amendment, law enforcement must present probable cause for that wiretap. "Pen registers" and/or "trap and trace" devices are a different animal, though their ancestry is also from the analog world. A "pen register", at least in an analog world, does not record the content of an "aural" conversation. It's original definition says it's a device that "records or decodes electronic or other impulses which identify the numbers dialed or otherwise transmitted on the telephone line to which such device is." "Trap and trace" are meant to catch the phone numbers coming in to a certain numbers. A very important thing to notice...(very important). In the analog world, this required two distinct devices, one for incoming, one for outgoing. Likewise, one for source and one for destination. On the Internet, source(s) and destination(s) are contained in every single packet of data. And I only need one device. For more, see this.

    Re: Justice Dept.'s Explanation of Warrantless Sur (none / 0) (#7)
    by killer on Fri Dec 23, 2005 at 04:39:36 AM EST
    My brother works for a multi-national. He makes international calls and emails every day. I am now reluctant to call him and I sure won't use his work email anymore (I can't afford to get on a no-fly list).

    Re: Justice Dept.'s Explanation of Warrantless Sur (none / 0) (#8)
    by Talkleft Visitor on Fri Dec 23, 2005 at 05:38:39 AM EST
    logicophilosophicus, I have posted this before. This is taken from the DOJ's Website. Pen and trap requires a warrant as well.
    Amendment: Section 216 of the Act amends sections 3121, 3123, 3124, and 3127 of title 18 to clarify that the pen/trap statute applies to a broad variety of communications technologies. References to the target "line," for example, are revised to encompass a "line or other facility." Such a facility might include, for example, a cellular telephone number; a specific cellular telephone identified by its electronic serial number; an Internet user account or e-mail address; or an Internet Protocol address, port number, or similar computer network address or range of addresses. In addition, because the statute takes into account a wide variety of such facilities, amendments to section 3123(b)(1)(C) now allow applicants for pen/trap orders to submit a description of the communications to be traced using any of these or other identifiers.
    Re: Justice Dept.'s Explanation of Warrantless Sur (none / 0) (#9)
    by john horse on Fri Dec 23, 2005 at 07:34:08 AM EST
    According to a recent disclosure by former Senator Daschle in the Washington Post, Bush requested but Congress rejected the war making authority that Bush is now claiming that Congress granted. "Congress refused explicitly to grant authority that the Bush administration now asserts is implicit in the resolution."

    Re: Justice Dept.'s Explanation of Warrantless Sur (none / 0) (#10)
    by Talkleft Visitor on Fri Dec 23, 2005 at 08:19:28 AM EST
    macro... Nobody said that pen/trap didn't require warrants. But the burden on law enforcement for getting approval is minimal compared to "wiretaps" because the "expectation of privacy" derived from the original analog devices is non-existent. From the Center for Democracy and Technology
    On the other hand, the Supreme Court has held that there is no constitutionally-protected privacy interest in the numbers one dials to initiate a telephone call. Smith v. Maryland, 442 U.S. 735, 742 (1979). Accordingly, the pen register and trap and trace provisions in 18 USC 3121 et seq. establish minimum standards for court-approved law enforcement access to the "electronic or other impulses" that identify "the numbers dialed" for outgoing calls and "the originating number" for incoming calls. 18 USC 3127(3)-(4). To obtain such an order, the government need merely certify that "the information likely to be obtained is relevant to an ongoing criminal investigation." 18 USC 3122-23. (There is no constitutional or statutory threshold for opening a criminal investigation.)
    In short, "wiretap": privacy, hard to get. "pen/trap": no privacy, easy to get

    Re: Justice Dept.'s Explanation of Warrantless Sur (none / 0) (#11)
    by Edger on Fri Dec 23, 2005 at 08:46:26 AM EST
    John Horse, In that same Washington Post article Daschle is also quoted saying:
    "Literally minutes before the Senate cast its vote, the administration sought to add the words 'in the United States and' after 'appropriate force' in the agreed-upon text," Daschle wrote. "This last-minute change would have given the president broad authority to exercise expansive powers not just overseas -- where we all understood he wanted authority to act -- but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused."
    This suggests that it is very clear that Bush's actions were not only premeditated, but he that knows he had no authority under law for it. I think John Dean nails it when he calls Bush "the first President to admit to an impeachable offense."

    Re: Justice Dept.'s Explanation of Warrantless Sur (none / 0) (#12)
    by Talkleft Visitor on Fri Dec 23, 2005 at 08:58:19 AM EST
    My land-line calls are carried partly over the Internet using Vonage. Do I have a reasonable expectation of privacy?

    Re: Justice Dept.'s Explanation of Warrantless Sur (none / 0) (#13)
    by john horse on Fri Dec 23, 2005 at 07:05:57 PM EST
    Edger is correct. I don't see how anyone could read the Washington Post article and not conclude that Bush knew that what he was doing was illegal but still did it. I agree that he should be impeached. However, here is what I expect given that the GOP control both houses of Congress. There will be an investigation. In the face of evidence to the contrary, the GOP Congress will claim that the Bush administration was confused about what the rules. They will pass a law so that he will never do it again. They thus cover their butts by claiming they are against domestic spying while not holding Bush to account for violating the law.

    Re: Justice Dept.'s Explanation of Warrantless Sur (none / 0) (#14)
    by Che's Lounge on Fri Dec 23, 2005 at 07:21:02 PM EST
    Principles of statutory construction that apply when there's an ambiguity Yeah I looked that up in my handy DOJ-to-english translation book and it reads: "we can do whatever we want".

    Re: Justice Dept.'s Explanation of Warrantless Sur (none / 0) (#15)
    by Edger on Fri Dec 23, 2005 at 10:26:44 PM EST
    John Horse: They thus cover their butts by claiming they are against domestic spying while not holding Bush to account for violating the law. Yeah, you're probably right, John... What do you think? Should we remind them here that they have an election to fight next year? Should we remind them that they don't have to go down with a sinking ship? That they can be both self-serving and do the right thing at the same time? Should we even need to remind them?

    Re: Justice Dept.'s Explanation of Warrantless Sur (none / 0) (#16)
    by Talkleft Visitor on Sat Dec 24, 2005 at 04:29:22 AM EST
    See this: Spy Agency Mined Vast Data Trove, Officials Report which is what I said in these comments earlier. The biggest issue is not the 500 or "thousands" that have been specifically wiretapped illegally, it's the mass wiretapping that's going on indiscriminately.

    Re: Justice Dept.'s Explanation of Warrantless Sur (none / 0) (#17)
    by Talkleft Visitor on Sat Dec 24, 2005 at 08:06:51 AM EST
    The expansive Art. II powers claimed suggests the importance of the Bill of Rights: declaratory statements that even though some stretch of the imagination might justify expansive powers, true liberty requires limits. The FISA appellate ruling is also notable, underlinging the fact that just because a court (if usually compliant FISA applies) says it is so, it is not necessarily the case. A handpicked (by Rehnquist) bunch of conservatives judges overturn the one FISA ruling that clearly went against the gov't. And, makes sure to insert an open-ended timebomb just for the PTB to seize.

    Justice Dept.'s Explanation of Warrantless Surveillance | 16 comments (16 topical)