The letter includes some legalese:
With minor exceptions, FISA authorizes electronic surveillance only upon certain specified showings, and only if approved by a court. The statute specifically allows for warrantless wartime domestic electronic surveillance--but only for the first fifteen days of a war. 50 U.S.C. § 1811. It makes criminal any electronic surveillance not authorized by statute, id. § 1809; and it expressly establishes FISA and specified provisions of the federal criminal code (which govern wiretaps for criminal investigation) as the "exclusive means by which electronic surveillance ... may be conducted," 18 U.S.C. § 2511(2)(f) (emphasis added).
Next, the letter explains the flaws in the Justice Department's attempt to legitimize the program.
[DOJ] maintains, however, that the program did not violate existing law because Congress implicitly authorized the NSA program when it enacted the Authorization for Use of Military Force (AUMF) against al Qaeda, Pub. L. No. 107-40, 115 Stat. 224 (2001). But the AUMF cannot reasonably be construed to implicitly authorize warrantless electronic surveillance in the United States during wartime, where Congress has expressly and specifically addressed that precise question in FISA and limited any such warrantless surveillance to the first fifteen days of war.
On the issue of presidential authority, the scholars write:
...even conceding that the President in his role as Commander in Chief may generally collect signals intelligence on the enemy abroad, Congress indisputably has authority to regulate electronic surveillance within the United States, as it has done in FISA. Where Congress has so regulated, the President can act in contravention of statute only if his authority is exclusive, and not subject to the check of statutory regulation. The DOJ letter pointedly does not make that extraordinary claim.
The last argument is that the program is violative of the 4th Amendment, noting that the Supreme Court has yet to uphold warrantless wiretapping in the United States.
[Graphic created exclusively for TalkLeft by C.L.]
