The NSA program, and its defense by the administration, raise these questions, which I propose to address below: (1) Does NSA warrantless surveillance violate the Fourth Amendment's protection against unreasonable searches? (2) Does the program violate the Foreign Intelligence Surveillance Act [FISA]? (3) Does the AUMF authorize warrantless surveillance by the NSA? (4) Do the president's inherent powers allow him to ignore FISA? (5) What should be done if the executive branch has acted unlawfully?My conclusions, as elaborated in the following sections, are: First, the president has some latitude under the "executive Power" and "Commander-in-Chief" Clauses of Article II, even lacking explicit congressional approval, to authorize NSA warrantless surveillance without violating the "reasonableness" requirement of the Fourth Amendment. But second, if Congress has expressly prohibited such surveillance (as it has under FISA), then the statute binds the president unless there are grounds to conclude that the statute does not apply. Third, in the case at hand, there are no grounds for such a conclusion -- that is, neither the AUMF nor the president's inherent powers trump the express prohibition in the FISA statute.
My testimony today addresses only the legality of the NSA program, not the policy question whether the program is necessary and desirable from a national security perspective. If the program is both essential and illegal, then the obvious choices are to change the program so that it complies with the law, or change the law so that it authorizes the program.
Nor do I address, other than to mention in this paragraph, three other constitutional arguments that might be advanced in opposition to warrantless surveillance by the NSA. First, in contravention of the First Amendment, the program may deprive innocent persons of the right to engage freely in phone and email speech. Second, the president may have violated his constitutional obligation to "take Care that the Laws be faithfully executed." Among the laws to be faithfully executed is FISA. No doubt, the president has some discretion in enforcing the law, but not leeway to take actions that the law expressly prohibits. Third, in contravention of the Fifth Amendment, the NSA surveillance program may represent a deprivation of liberty without due process. Liberty, as we know from the Supreme Court's recent decision in Lawrence v. Texas^4, encompasses selected aspects of privacy that are separate from the question whether particular intrusions are reasonable in terms of the Fourth Amendment.
Those concerns are legitimate, but they have not been central to the debate over NSA surveillance, and they are not the focus of the Committee's deliberations or, therefore, of my testimony.
II. Does NSA Warrantless Surveillance Violate the Fourth Amendment?
The president has contended that NSA warrantless surveillance does not offend Fourth Amendment protections against "unreasonable" searches. That contention is correct as far as it goes; but it does not go far enough. ... [massive snippage]
http://www.washingtonpost.com/wp-srv/nation/nationalsecurity/gonazles.letter.pdf
Leahy responded to that letter ...
March 1, 2006Hat tip to The JURIST.The Honorable Alberto Gonzales
Attorney General
United States Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530Dear Attorney General Gonzales:
I write in response to your unusual letter seeking to modify your February 6 testimony that you sent to Chairman Specter yesterday. More than three weeks after the hearing you send the Committee a six-page letter seeking to alter your live testimony. Your letter, in fact, does little to clarify your testimony. Instead, it raises many questions, both factual and also some going to the credibility of your testimony.
At the outset of my questioning I asked when the Bush-Cheney Administration came to the conclusion that the congressional resolution authorizing the use of military force against al Qaeda also authorized warrantless wiretapping of Americans inside the United States. You never directly answered my question. Now, in your February 28 letter to Chairman Specter, you admit that "the Department's legal analysis has evolved over time." While not yet a direct answer to my question, you have at least indicated that you did not rely on that legal rationalization when the spying program began in 2001. I still wish to know when you concluded that the Authorization for the Use of Military Force authorized the warrantless wiretapping of Americans inside the United States and renew our request for the documents that embody that conclusion.
Of course, you realize the significance of the timing: It will demonstrate that your reliance on an "evolving interpretation" of the Authorization for the Use of Military Force shows it to be after-the-fact legal rationalization rather than the contemporaneous intent underlying the congressional resolution. You will still need to correct or better explain your statements on pages 184 and 187 of the transcript, which you recognize "may give [a] misimpression."
Second are the disturbing suggestions in your February 28 letter that there are other secret programs impinging on the liberties and rights of Americans. Much of your letter is devoted to not providing answers to the questions of a number of us regarding legal justifications for activities beyond those narrowly conceded by you to have already been confirmed by the President. We need to know what other activities affecting Americans' rights you view as justified by the Authorization for the Use of Military Force. Please provide answers to the following questions:
Do other programs of warrantless electronic surveillance exist? Do other programs of warrantless physical searches or mail searches exist? Which agencies run these programs and how long have they been in operation? What legal standards apply to these other programs?
Also, please clarify your clarification of the repeated assertions you made on February 6 that the Department of Justice had not done the legal analysis as to whether it could intercept purely domestic communications of persons associated with al Qaeda. Has the Department done such an analysis since September 11, 2001? If so, what did the Department conclude?
Your continued refusal to answer these questions is a source of great concern. Likewise, the indication in your letter that your Department has conducted additional legal rationalizations and "analysis beyond the January 19^th paper" make your production of the legal opinions to the Senate Judiciary Committee all the more important.
At the February 6 hearing you were confronted with your January 2001 testimony from your confirmation hearing, which appeared to many Senators to have been misleading. I expect that your letter yesterday was an attempt to provide some defense to a charge that you misled the Committee, again, in your testimony on February 6. You seek to add qualifiers and to hedge already vague answers about the shifting legal analysis for the President's domestic spying program without judicial approval and about the scope of activities undertaken secretly based on your expansive interpretation of inherent powers of the unitary executive not based on statutory authorities.
It is no secret that the Department of Justice has exhibited a disturbingly arrogant pattern of unresponsiveness to questions that I and other Democratic Senators have posed on many issues in the past. Congress has a constitutional duty to conduct oversight of this Administration in order to ensure its accountability to all Americans. Indeed, the Democratic members of the Committee are still waiting for answers to questions we posed following your February 6^th hearing that were due yesterday. I look forward to your prompt reply to this inquiry, as well as your overdue answers to the Committee.
Sincerely,
PATRICK LEAHY
Ranking Democratic Member
The NSA issue is perking pretty HOT, below the media's primary radar.