The Legality of the NSA Wiretapping Program

In December 2005, the New York Times revealed that the National Security Agency (NSA) was engaged in the warrantless wiretapping of calls involving Americans.1 In the several subsequent lawsuits challenging the wiretapping program,2 the government had a relatively rough go of it. One district judge stridently ruled the program unconstitutional on multiple grounds,3 and another rejected the government's invocation of the "state secrets" doctrine.4 Now, the Bush Administration has reached an agreement with the Foreign Intelligence Surveillance Court permitting that court to review all warrants on all wiretaps in terrorism investigations.5 Presumably, this moots the existing litigation, which focuses on prospective injunctive relief.6 Thus it now appears that there will never be a final judgment adjudicating the legality of the wiretapping program, leaving the question to the legal academy. So far, most of the academic commentary has been confined to the blogosphere and op-ed pages.7 Little of it has sought to dissect the relationship between presidential and congressional power with respect to foreign intelligence surveillance in support of a war. In this article, I seek a fuller answer to the question of whether the NSA program is legal, and I approach the question much in the way an appellate court would approach it if procedurally unencumbered.8 Procedure aside, the principal obstacle to determining the legality of the program is that it remains classified. I will assume that the administration's public statements about the program's contents are true. That is, I will assume that the NSA only engages in the warrantless wiretapping of calls into and out of the United States where one of the parties is "affiliated" with Al-Qaeda.9 The word affiliated is ambiguous; at its most restrictive, it could mean members of Al-Qaeda cells only, or anyone who has spoken with such people on the phone, while, at its most expansive, it could include anyone who has spoken with anyone who has had contact with a cell member. One should bear in mind that I have accepted the administration's claims at face value, just as a court assumes the allegations in a complaint are true when deciding a motion to dismiss. The most orthodox analytical sequence would start with the question of presidential power - did the President have either statutory or inherent constitutional authority to engage in such wiretapping? The problem is that the answer to this question is likely to turn in substantial part on whether the program is consistent with congressional pronouncements. Thus, I begin with the question of whether the program violates the Foreign Intelligence Surveillance Act of 1978 (FISA).10 After concluding that the program does violate FISA, I ask whether Congress impliedly exempted the program from the requirements of FISA in its Authorization for the Use of Military Force (AUMF) following the attacks of September 11, 2001." Because I conclude that the AUMF did not create any such exemption from FISA, I then reach the question of whether any provision in Article II of the Constitution authorizes the President to engage in such wiretapping. My conclusion is that the Constitution does authorize the President to order such a program. The next question is whether Congress has the power to regulate the exercise of this presidential power, and if so, whether FISA constitutes a valid regulation. This, in my view, is the most important question in this paper, and answering it takes me through the relationship between presidential and congressional powers in warmaking and foreign relations, the circumstances that led to the adoption of FISA, and the uniqueness of the terrorist threat after 9/11. All this considered, I conclude that FISA is a valid regulation of presidential powers, and therefore that the wiretapping program is illegal. Because I conclude that the program violates a valid statute, I need not consider whether the program also violates the Fourth Amendment; however, for posterity, I very briefly review existing Fourth Amendment law on the question. …