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THE NSA WIRETAP PROGRAM VIOLATES FISA, AND THE CONSTITUTION'S SEPARATION OF POWERS CLAUSES

FISA, the "Foreign Intelligence Surveillance Act," governs the means by which foreign intelligence information may legally be gathered. Its application to the clandestine, "semi domestic" NSA wiretap program is unambiguous, as it covers communications to or from U.S. citizens or permanent resident aliens in the United States. 50 U.S.C. 1801(f), 1801(i).

FISA is also clear, and direct. "A person is guilty of an offense if he intentionally engages in electronic surveillance...except as authorized by statute." 50 U.S.C.1809. Moreover, Title I of the Electronic Communications Privacy Act (ECPA), the "Federal Wiretap Act" -- a domestic and privacy oriented statute which prohibits anyone from “intentionally intercept[ing] or endeavor[ing] to intercept any wire, oral, or electronic communication” (18 U.S.C. 2511 (1)(a)) -- provides that its procedures and FISA "shall be the exclusive means by which electronic surveillance ... may be conducted." 18 U.S.C. 2511(2)(f). If it's not covered under FISA or the Wiretap Act, it is expressly prohibited.

Nevertheless, it has been repeatedly argued by the executive branch that, despite the clear language of FISA, the program is authorized. Specifically, under Article II, Section 1 of the U.S. Constitution, which states that, "the executive power shall be vested in a President," along with Article II, Section 2, which states that the President, "shall be commander in chief of the army and the navy." The administration has also repeatedly argued that the program is authorized under the Authorization to Use Military Force resolution (AUMF) passed in the wake of the September 11 terrorist attack. Both of these arguments, despite how they are often portrayed in the media, are flagrantly incorrect.

Article 1, Section 1 of the Constitution, states; "All legislative powers herein granted shall be vested in a Congress." This clause, along with that same Article II, Section 1's "executive power" clause and Article III's "Judiciary Clause," denote the Constitution's most basic purposes; to establish a clear separation of powers between the branches of government, and to serve as a check upon the powers of each individually, and of the whole. Not one, but both of these fundamental purposes of the Constitution -- to prohibit unchecked powers, and to establish a clear separation of federal government power and function -- were violated by the executive branch's unilateral action to "grant" itself sweeping authority to engage in warrantless -- that is unchecked -- electronic surveillance on American citizens, in direct contravention of FISA.

Article II, Section 3 of the U.S. Constitution, moreover, requires that the President "take care that the laws be faithfully executed." This requirement is not magically suspended (particularly when it is the executive branch itself that is not following the law), by the commander in chief clause, simply because the executive branch can make an argument that it somehow relates to a war effort. To do so would render the separation of powers concept virtually meaningless in any time of war, stated or implied. This is also something which clearly would have been noted -- were this our Founders' bizarre intent -- by some constitutional reference beyond "Commander in Chief." As Congresswoman Heather Wilson (R-NM) put it; "Our Constitution with divided powers operates in war and in peace."

There is also no valid argument that FISA does not apply in war time, so that at least the executive would have been acting in the absence of a clear legislative prohibition. (This would not automatically legitimize the Executive's authorization of the wiretap program, but under certain interpretations, and depending upon the specifics of the program, could at least provide it with a defensible rationale). FISA has a specific war time provision, denoting its clear applicability to war time therein (50 U.S.C. 1811). Additionally, FISA was contemplated and amended by the Patriot Act of 2001 (at Sec.'s 206, 207, 214, 215 therein), passed in direct response to the attacks of Sept. 11, 2001 ushering in said war time, and quite clearly and specifically making it a war time statute thereby.

With respect to the assertion that the AUMF resolution of 2001 supersedes FISA, this is illogical based solely upon the fact, as noted, that the U.S. Patriot Act amended FISA, and came after the AUMF resolution (October 26, v. September 14, of 2001). But more importantly, the argument that the AUMF (or the AUMF with respect to Iraq, passed in October, 2002), unlike any other piece of legislation in our 200 plus year history, somehow authorizes violations of other laws not in direct conflict with it, without otherwise expressly or implicitly so stating, is, from a legal perspective, and to put it bluntly, preposterous.

Here's how conservative constitutional studies fellow Robert Levy, of the Cato Institute, put it in testimony before the Senate Judiciary Committee:

"A settled canon of statutory interpretation directs that specific provisions in a statute supersede general provisions. When FISA forbids 'electronic surveillance without a court order' while the AUMF permits 'necessary and appropriate force,' it is bizarre (emphasis added) to conclude that electronic surveillance without a court order is authorized."

Conservative commentator George Will has satirically mocked it as ridiculous. Conservative constitutional scholar Levy called it "Bizarre." The slightly less conservative New Republic labeled it "absurd." Yet it is the exact Argument that Attorney General Alberto Gonzales has been repeatedly making to the Nation (and, one could argue, that much of the media has been duly repeating as if it is just one of two reasonable sides to the "debate.")

In response to the program, and in response to the administration's continued and tortured insistence in support despite the clear delineation of powers under our Constitution (upon which this nation was founded and upon which it has been successfully guided for over 200 years), former Nixon White House Counsel John Dean, on MSNBC's "Countdown," April 6, 2006, stated:

"Quite remarkable. Quite remarkable. Obviously, we have a Commander in Chief who believes that anything in the name of fighting terrorism, he has authority to do. I would remind people that don't feel concerned about that, that a nation that loses control and the check on its Commander in Chief is something other than a democracy."

Dean's underlying point, overstated or not, is well taken. As University of Chicago Law professor Richard Epstein puts it: ''I find every bit of this legal argument disingenuous. The president's position is essentially that [Congress] is not doing the right thing, so I'm going to act on my own."

The Administration's argument, is, essentially, that the executive branch can do whatever it wants (during this entire time of fighting terrorism, which may be indefinite) in order to fight terrorism, regardless of what Congress -- which actually writes the laws under our Constitution -- legislates. This would, once again, render the clear delineation of powers under the Constitution essentially null and void.

Moreover, the argument that the administration is engaging only in "this particular program," is not relevant to these considerations. "This particular program" (a de facto legislative repeal of FISA by the executive branch, which, once again, under the Constitution the Executive Branch has no authority to do), is what the administration decided it wanted, and the legal arguments with respect to it are no different than anything else the administration could theoretically decide. (Such as, for example, shutting down or restricting the presses, because information gives "aid and comfort to the enemy." A more preposterous example, but legally inseparable from the clandestine wiretap program. While the former would raise more egregious 1st Amendment concerns, the wiretap program also raises 1st, 4th and 5th Amendment concerns, and violates an express statutory prohibition as well).

Reagan Deputy Attorney General Bruce Fein, echoing similar points to Dean, notes:

"The founding fathers would be alarmed by George W. Bush's 'trust me' defense for collecting foreign intelligence in violation of the Foreign Intelligence Surveillance Act (FISA) and the Constitution's separation of powers."

Yale Law School Dean Howard Koh, also in testimony before the Senate Judiciary Committee, candidly observed that the program was "blatantly illegal." The American Bar Association overwhelmingly voted in favor of a resolution requesting that the administration cease violating both FISA, and the Constitution.

Levy, before the Judiciary Committee, put it this way, and it remains the bottom line under our Constitution and system of government:

"The executive branch cannot, in the face of an express prohibition by Congress, unilaterally set the rules, execute the rules, and eliminate oversight by the other branches."

While the issue can seemingly be contorted by various detailed and creative legal wrangling over how al Qaeda poses an enormous and unique threat (agreed, see here, and here), this does not implictly change the basic structure and meaning of our Constitution, or the division between our three branches of government under it. Yet to report the issue in anything aproaching this fashion would seem, once again, to be biased against the current administration. But, here, yet again, it is the facts that are biased against the administration; an administration which, in this instance, flagrantly violated the Constitution in authorizing clandestine and warrantless surveillance on American citizens, in broad violation of a clear, express and even war time statutory prohibition against it.

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