Monday, August 21, 2006

Illegal vs Unconstitutional: NSA, FISA, and all that

As many of you know, a federal judge has found the NSA warrantless surveillance program to be both illegal—in violation of FISA and various other things—and unconstitutional.

The discussions I have seen so far ignore the important distinction between those two conclusions. The fact that the surveillance violates FISA means that what has so far been done is illegal—and, incidentally, that Bush is a felon, as are lots of people at NSA. But FISA is legislation; Congress can repeal or alter it, and presumably will do so if the appeals court supports the ruling and a majority in both houses believe the current surveillance program is desirable.

Congress cannot so easily repeal or alter the Constitution. So if the surveillance is unconstitutional, that means the surveillance will have to stop.

I should add that, in my view, the illegality of the surveillance has been obvious from the beginning, as I said some time back. FISA was written to control precisely the sort of activity NSA has been engaged in—intercepting communications between suspected terrorists abroad and people in the U.S. It set up procedures for doing so and made it a felony to intercept without following those procedures, or to knowingly use information obtained by such warrantless interceptions.

The only arguments I have seen on the other side are either that Congress repealed FISA without knowing it was doing so when it authorized the use of force or that the President is entitled to break the law in matters of national security. Neither strikes me as plausible. The constitutionality, on the other hand, is a more complicated question, and one that I don't think I have sufficient expertise to answer.

Oddly enough, if Bush believed that what he was doing was unconstitutional that may explain why he did it. FISA provides a two week window after the beginning of a war during which its provisions are suspended—presumably to permit Congress to amend its provisions if necessary. Under the circumstances of the 9/11 attack, it is hard to believe that Congress would have refused to go along with an administration request to make legal the sort of interceptions NSA has been engaged in. But one likely consequence of such an amendment would be a lawsuit claiming that the activity it was authorising was unconstitutional—and if the courts agreed, that would leave Bush unable to engage in surveillance that he, presumably, saw as an important tool for preventing another attack.


Gary McGath said...

There's another possible explanation of Bush's decision not to seek legislative authorization for his actions (other than that he's an arrogant bastard who doesn't think laws apply to him, which is the explanation I favor), and it's consistent with his statements. He claimed that public disclosure of the program somehow jeopardized national security, though he's never explained this.

But that suggests that he may have wanted to create the illusion that he was restrained by FISA, when actually he wasn't, in order to order surveillance more quickly than even the streamlined FISA procedures would allow, thus lulling terrorists into thinking they had a small window in which they could communicate.

But if this was his motivation, then he's gone down a very dangerous road, taking advantage of the appearance of legal restraint for a rather nebulous purpose. Since the terrorists would be very unlikely to know when they came under suspicion and a secret FISA warrant obtained, it's hard to see what use they could make of such a window. And a President who takes advantage of the appearance of legal restraint to do something that's apparently prohibited puts a huge dent in the government's credibility.

Anonymous said...

according to , the administration talked to some members of congress about changing FISA to allow the program, but "[they] were advised that that was not something [they] could likely get, certainly not without jeopardizing the existence of the program, and, therefore, killing the program."

I suspect that sentence is mangled and "jeopardizing the existence" should be "jeopardizing the secrecy of the existence" or "calling attention to the existence." Anyhow, it looks to me like the worry was congress not wanting to make it legal, although the statement is compatible with DDF's scenario of attention establishing unconstitutionality.

I'm told that this exchange between the administration and congress was in 2002, not at the time of the Patriot act. But the article makes it look like 2001.

gary mcgarth,
you repeat the administration talking point that it is possible to wiretap faster than FISA allows. This seems obviously false, as you can wiretap first and ask FISC later. The only drawbacks to FISC are (1) it might say no and (2) you have to spend time (money) writing request.

Anonymous said...

It seems to me the explanation is either "the arrogance of power" ...or that Bush is being deliberately misled by his senior advisors with a view to entrapping the president.