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.