A Citizen's Guide to the NSA Domestic Wiretapping Program

Since the allegations of domestic warrantless wiretapping of American citizens by the National Security Agency ("NSA") surfaced on December 16, 2005, the American people have been concerned about the legality of the NSA activities that have been described by the President. We - the American people - want our government to have the necessary tools to protect us in the War on Terror, but we worry that the current structure and scope of the NSA program is incompatible with the American system of government. However, because the executive branch has used a series of convoluted legal arguments to justify the NSA program, the American people, most of whom are not legal or Constitutional experts, have been unable to come to a consensus about the legitimacy of such activities. Since the result of this debate will have important ramifications for all Americans, it is crucial that our participation in the debate itself not be limited to the small percentage of lawyers and academics among us. In fact, the central issues underlying the legal arguments for and against the NSA program are related to fundamental aspects of America's history and values, and there is no reason why we cannot understand them. Moreover, because the American people are ultimately in charge of the American government itself, there is no reason why we cannot make the final decision on this matter (as well as any other facing our nation), regardless of what the lawyers and officials determine. This paper addresses, in an understandable form, the complete lack of true legal basis for the "NSA activities described by the President," and illustrates the danger such activities pose to the American system of government.

Summary

On September 17, 1787, delegates to the Constitutional Convention signed the United States Constitution, thus enshrining America's founding principles for all time. Within a year, the Constitution was ratified by the required number of states, making it the law of the land and laying down the necessary groundwork for the development of our democracy. Finally, on February 2, 1790, the American Constitutional system of government went into full operation, and it has protected our way of life ever since. In the course of the War on Terror, President Bush has authorized an NSA domestic warrantless wiretapping program that is incompatible with that system of government. Furthermore, the legal arguments that the executive branch has used to justify the NSA program are contrary to American values and history, and are therefore illegitimate. For the following reasons, the President's activities are unlawful and inconsistent with American civil liberties.

The President's assertion of "inherent constitutional authority" to operate outside of the normal separation of powers and checks and balances is incompatible with the American system of government. The executive branch cannot determine for itself what it can and cannot do to the exclusion of the legislative and judicial branches of government, nor can it act as its own check or balance, nor operate entirely in secret without a reasonable measure of outside oversight. The American people have always elected their political representatives based on a certain understanding of how our system of government operates, and as such, those representatives have the responsibility to either comply with that understanding or explain to all Americans why they are not. If the latter, the American people could reasonably be expected to demand new political representation that would reflect the true values and history of this great nation.

In the specific context of the NSA program involving the warrantless wiretapping of Americans and others within the United States, Congress has not authorized the President to create and regulate such activities at his own discretion. In order to characterize the NSA program as a standard component of the kind of military force authorized by the Congress after 9/11 in the Authorization for Use of Military Force ("AUMF"), the President has exaggerated the capabilities of the executive branch, implying that innocent Americans will not be subject to warrantless wiretapping. This characterization, though seemingly reassuring on the face of it, is both dishonest and unjustifiable as a matter of policy. By misleading the American public about this and other aspects of the NSA program, the President has inappropriately acted to hinder our understanding and discussion of this argument. Open and honest debate is a necessary component of democratic societies, and an honest assessment of the "NSA activities described by the President" would give the American people good reason to doubt the applicably of the AUMF. Furthermore, although Congress did respond to the terrorist attacks of 9/11 by authorizing the use of military force against terrorists, the President's claim that Congress therefore intended to sanction the development of a secretive domestic warrantless spying program is not valid. The executive branch correctly argues that the collection of intelligence about an enemy is a standard practice of war, but it ignores the fact that the vast majority of the "standard practices of war" do not apply to the unique circumstances of the War on Terror, especially concerning the domestic aspects of the conflict. In the context of the nature of the War on Terror and because of the importance Americans place on their civil liberties, domestic spying clearly deserves special and intentional consideration before being implemented. Therefore, the President cannot simply assume that Congress intended to automatically authorize such a program when it passed the AUMF.

The "NSA activities described by the President" are not consistent with the preexisting statutory framework that regulates the domestic spying activities of the United States government. Specifically, the NSA program violates the Foreign Intelligence Surveillance Act ("FISA"), the very purpose of which is to provide a legal means of engaging in domestic spying activities and to prohibit the kind of warrantless wiretapping that has been unilaterally authorized by the President. FISA makes it a criminal offense for a government employee to engage in the warrantless wiretapping of American citizens unless specifically authorized by another statute, and allows for the modification of its framework as necessary to change with the times and address new threats. The President's argument that the AUMF authorized the NSA program (and thus serves as an exempting statute under FISA) is invalid; in fact, the very existence of FISA further demonstrates that Congress had no intention of automatically authorizing the domestic warrantless wiretapping of Americans when it passed the AUMF. Although the American people understand that no one - including the President of the United States - can be above the law, President Bush has proclaimed that he can ignore any law (including FISA) if it interferes with his so-called "inherent authority" under the Constitution. This theory seriously undermines the democratic process and is incompatible with the American system of government, but has unfortunately already been put into practice by the executive branch. If we are to maintain our way of life, such a situation cannot stand.

Finally, besides violating existing laws and being otherwise incompatible with our core values and system of government, the "NSA activities described by the President" are not consistent with the Fourth Amendment to the United States Constitution. The Fourth Amendment requires the executive branch to obtain a warrant before it can engage in a reasonable search (including wiretapping). While we certainly do face a serious threat in the War on Terror, the Founding Fathers intentionally designed the Fourth Amendment so that it would apply in even the most serious of situations (including in wartime and during national emergencies). It is true that over the years and in the context of individual court cases, the judicial branch has determined that in very specific situations, the executive branch can safely ignore the warrant requirement of the Fourth Amendment. However, because of the open-ended nature of the War on Terror, as well as the ease with which innocent Americans could fall under suspicion and be subjected to wiretapping through the NSA program, exempting the Fourth Amendment in this context would have disastrous consequences for American civil liberties. The exceptions to the warrant requirement of the Fourth Amendment are intended to maintain a careful balance between civil liberties and the public interest, such as by allowing for searches in public schools or by permitting police officers to use evidence discovered in plain sight. They are not intended to broadly and permanently allow the executive branch to ignore the civil liberties of the American people, even in the context of the War on Terror. Moreover, regarding the NSA program specifically, the self-imposed limitations and safeguards within the "NSA activities described by the President" are less protective than suggested by the President and are not sufficient to qualify the domestic spying program as being "reasonable." Most importantly of all, however, is the fact that the NSA program - as currently structured - is not compatible with the American system of government as established by the United States Constitution.

Background

A. The American System of Government

One of the very first things we all learn in school is that the American government is based on a system of separation of powers and checks and balances. The Founding Fathers understood that to give absolute power to any one part of government would make it unresponsive to the public and unaccountable for its mistakes. In order to prevent the rise of a uncontrollable executive (like the King in their native England) or the domination of an ineffective legislature (such as the first American system under the Articles of Confederation), the Founding Fathers divided the powers of government into three branches and ensured that each branch could monitor and rein in the other branches as necessary. Ever since, the different branches of the American government have competed with each other for power and authority, and the system has functioned as intended.

Although they are often discussed as one concept, the ideas of separation of powers and checks and balances each serve different yet complementary purposes. The separation of powers ensures that no one person or branch of government can control all of the necessary powers of governance. In the United States, the three branches of government are separated by function; the legislative branch makes the law, the executive branch enforces the law, and the judicial branch interprets the law. Although other democratic countries have separated the powers of their governments based on other considerations, America's Founding Fathers chose this particular arrangement for an important reason. If any one person or group within a government had the independent power to make, enforce, and interpret the law, the law itself would become meaningless. In essence, a unified government with absolute power would make the laws it wanted, enforce them as it pleased, and always interpret them in its own favor. Instead of a democracy, such a government would be a dictatorship.

While the separation of powers written into the American Constitution provided the necessary framework for the development of our democracy, the Founding Fathers knew that we would need a system of checks and balances to keep it intact. Unless the three branches of government have the ability to monitor and counteract each other, each branch could radically alter the course of our nation - at will - as long as each stayed within the realm of its own authority. In practice, an unchecked and unbalanced government would result in complete chaos: the legislative branch could make any law, the executive branch could enforce (or not enforce) it in any way that it wants, and the judicial branch could interpret it to mean anything it chooses. To address this issue, the Founding Fathers wrote a series of checks and balances into the Constitution that specifically describe the ways in which each branch can influence, limit, or counteract each of the other branches. For more than 200 years, each of the three branches has used this system of checks and balances to protect itself (and, more importantly, the American people) from the rest of the government.

B. The Nature of the War on Terror

Although we call it a "war," the War on Terror is unlike any war we have ever fought. Whereas all previous American wars have been between the United States and one or more foreign powers, the War on Terror is a battle against a strategy rather than a country. We certainly do have defined enemies in this conflict (one of which is al Qaeda, the terrorist group responsible for the September 11, 2001, attacks against the United States of America), but the War on Terror is not limited to combating the terrorism of one particular group or ideology. Instead, our goal is to stop anyone who would use the strategy of terror, which for these purposes can be broadly defined as "using force against noncombatants in order to achieve political objectives." Because it is such an unprecedented and unique conflict, the War on Terror cannot be thought about or fought in the same manner as a conventional war.

The military aspects of fighting the War on Terror clearly differentiate it from previous American wars. Unlike conflicts such as WWII or the Vietnam War, the War on Terror does not depend primarily on the might of the American military, but rather on the precision of American Intelligence and Special Forces, as well as the vigilance of law enforcement at home. To engage our enemy, rather than simply sending our troops into battle, we must ascertain and address the causes of terrorism while simultaneously pursuing the terrorists themselves. Instead of vast, easily-identifiable armies, we are primarily fighting against a very small number of terrorists who seek to blend into our own population. It will not always be easy to separate our enemies from our friends (or even from our own citizens). While some components of the War on Terror require action overseas, many of the most important tasks for the American government are happening within America itself. Securing the nation's borders and protecting our infrastructure and fellow citizens are among our highest priorities in this effort, and to accomplish them, our law enforcement and Homeland Security personnel must have access to the very best tools available.

As a nation of freedom and liberty, however, all Americans face an important question as we consider the future of the War on Terror. We must decide, for ourselves and for the generations of Americans that will follow us, whether or not providing our government with the best available tools requires us to abandon our long-standing system of government and surrender our cherished civil liberties. Although it is certainly true that terrorists are much less able to operate in closed societies, we know that voluntarily giving up our way of life is exactly what terrorists want. In fact, one of the primary goals of terrorism is to tempt the governments of free societies to crack down on their own people. Terrorists hope that such a crackdown will turn the people against their own government (and vice versa), and that the internal conflict will lead to political change. The debate over how much (if any) freedom we must relinquish because of the threat of terrorism is far from settled, and involves many complex and competing interests. However, one factor in the debate supersedes all of the others. Because this is a war against a strategy rather than a particular enemy, we can never truly "win" the War on Terror. Even if we completely defeat al Qaeda, there will always be other groups or individuals that are willing to use the strategy of terror to accomplish their goals. Therefore, whatever we decide now will have repercussions far beyond the foreseeable future.

C. What We Know About the "NSA Activities Described by the President"

Unfortunately, we know very little about the domestic spying activities of the National Security Agency. In the past, we accepted that the NSA (an intelligence agency that spies on foreign communications and protects our own) had to operate in secret to be effective. However, because we live in an open society, we are always uncomfortable with governmental secrecy (and especially so when it applies to what is happening right here in America). In order to protect our civil liberties and maintain appropriate checks and balances, we limited the NSA's ability to operate in the United States and spy on Americans. That is why many Americans were shocked when the New York Times published an article on December, 16, 2005, claiming that President Bush, in aftermath of the 9/11 terrorist attacks, had authorized the NSA to spy on Americans as part of the War on Terror. Even more shocking was the article's assertion that the NSA had been authorized to spy on Americans - on American soil - without warrants.

The next day, during a radio address, President Bush publicly confirmed his decision to empower the NSA "to intercept the international communications of people with known links to al Qaeda and related terrorist organizations." Radio Address of President Bush (Dec. 17, 2005), available at http://www.whitehouse.gov/news/releases/2005/12/20051217.html. The President asserted that the program was both legal and limited in scope, and that sufficient oversight was in place to safeguard American civil liberties. Because the operational details of the NSA activities remain secret (even from key members of the legislative and judicial branches of government), the entire debate surrounding the program has had to be based only on what the President has disclosed. From the very beginning, members of the executive branch have been careful to refer only to the "NSA activities described by the President" when discussing the program, leaving open the possibility that there are other activities that have not been described by the President (and are therefore not addressed by the executive branch's public legal justifications).

Soon after President Bush's disclosure of the program, Attorney General Alberto Gonzales clarified some aspects of the President's remarks. Although the President had claimed that the NSA program was authorized to spy on people with "known links" to terrorist organizations, Attorney General Gonzales stated that the NSA needed only "...a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda." Press Briefing by Attorney General Alberto Gonzales and General Michael Hayden, Principle Deputy Director for National Intelligence (Dec. 19, 2005), available at http://www.whitehouse.gov/news/releases/2005/12/20051219-1.html (emphases added). Furthermore, the Attorney General explained that the judgment of whether or not a "reasonable basis" exists is made by an operational work force at the NSA (specifically, the decision requires the approval of two NSA employees, one of which must be a shift supervisor). Id. Finally, the Attorney General reiterated the President's argument that the program's scope was limited, emphasizing that the NSA was only authorized to engage in the warrantless wiretapping of international communications (meaning that one end of a communication must be outside of the United States and that purely domestic communications are not targeted by the program). Id.

The U.S. Department of Justice released its official legal justification for the program on January 19, 2006, in a document entitled "Legal Authorities Supporting the Activities of the National Security Agency Described by the President." As explained in that document, the executive branch's position rests on four basic arguments. The first is that the President of the United States has the "inherent authority" under the Constitution to authorize such a program primarily due to his powers as commander-in-chief. The second is that the Authorization for Use of Military Force ("AUMF"), passed by the Congress in the aftermath of 9/11, "confirms and supplements" the President's authority in that regard. The third is that the NSA program is "consistent" with the Foreign Intelligence Surveillance Act (which generally requires the executive branch to obtain search warrants from a secret court in order to spy on Americans for purposes of national security). The fourth and final argument is that the NSA activities are "consistent" with the Fourth Amendment to the United States Constitution (which prohibits the government from engaging in "unreasonable searches and seizures"). Each argument is supported with a spectrum of court cases and legalistic language, but it is important to remember that legal and Constitutional experts constantly disagree about the meaning of particular laws, court cases, and even (or especially) the Constitution itself.

Analysis

I. The President Has Limited Constitutional Authority To Order Warrantless Foreign Intelligence Surveillance

Our Constitution states that "[t]he executive Power shall be vested in a President of the United States of America," and that "[t]he President shall be Commander in Chief of the Army and Navy...". U.S. Const. amend. IV. The executive branch argues that because of this, in the context of the War on Terror, the President has inherent authority to authorize intelligence collection in the form of the domestic warrantless wiretapping of Americans. Furthermore (according to this argument), not only does the President have the authority to authorize such a program, but to do so irrespective of any law that runs contrary to it. The executive branch has asserted that this authority extends to a wide variety of areas beyond the narrow context of the "NSA activities described by the President." In effect, the executive branch is proclaiming that it can engage in a broad assortment of activities to which the separation of powers and checks and balances of the American system of government do not apply. Because the remaining arguments are described only as "confirming and supplementing" the President's inherent authority to authorize the NSA program, this position is the central justification upon which all the others depend. In fact, the executive branch's official stance is that the "inherent authority" argument is itself sufficient to justify the "NSA activities described by the President," and that no other explanation or justification is necessary. Because this argument is fundamentally incompatible with the American system of government, we must choose between one and the other. Either the President does not have the kind of "inherent authority" he has asserted, or the American system of separation of powers and checks and balances does not actually exist.

During one of his first press conferences after confirming the existence of the NSA domestic warrantless wiretapping program, President Bush asked himself and then answered a question that runs to the heart of the inherent authority argument: "Do I have the legal authority to do this? And the answer is, absolutely." Press Conference of President Bush (Dec. 19, 2005), available at http://www.whitehouse.gov/news/releases/2005/12/20051219-2.html. The executive branch, entirely independently of the judicial and legislative branches of government, has decided that it has the authority to engage in warrantless wiretapping. In his response to a question regarding "unchecked powers" later on in the press conference, the President elucidated the executive branch's view of how the "NSA activities described by the President" fit into the American system of government. The President asserted that "[t]here is a check of people [the executive branch itself] being sworn to uphold the law..." and that voluntarily "talking to Congress" constitutes sufficient oversight. Id. The executive branch has proclaimed, again independently of the other branches, that it can decide what sort of checks and balances are necessary. Perhaps most instructive of all, the President stated that "...without revealing the operating details of our program, I just want to assure the American people that, one, I've got the authority to do this; two, it is a necessary part of my job to protect you; and three, we're guarding your civil liberties." Id. The President seems to have forgotten that the American system of government does not rest on assurances alone, nor does it consider any one branch of government to represent either a check or a balance on itself. It does not allow for any one branch to determine for itself what it has the authority to do, and it especially does not allow such a determination to be made in secret.

Of all the incompatibilities between the "NSA activities described by the President" and the American system of government, its secretive nature may be the most dangerous. The openness of the American government usually ensures that even if one branch of government acts outside of its Constitutional responsibilities, the American people and the other branches of government will discover the transgression and act to rectify it. It is for that reason that very few aspects of the American government operate in secret, and is why those that do are subject to careful scrutiny and regulation by multiple branches of government. Throughout this analysis, the program of domestic warrantless wiretapping is referred to as the "NSA activities described by the President" because it can address only that. The President has disclosed only those aspects of the NSA program that he determined was necessary in response to the New York Times article that first broke the story. As such, it is entirely possible that there are other components of the NSA program that remain unknown to the American public and the other branches of government, that the structure and scope of the program could change without notice, or even that there are other still-secret programs that may be of concern to the American people. Indeed, the only reason that we even know what little we do about the "NSA activities described by the President" is that a number of government employees were so concerned about the legality and potential consequences of the NSA program that they decided to leak classified information to the New York Times. Secrecy is a dangerous thing for any free society, which is precisely why we regulate it so carefully by subjecting it to the multi-branch checks and balances of our system of government.

When considering the argument that the President (and the President alone) has the "inherent authority" to authorize and regulate programs such as the "NSA activities described by the President," there can be only two interpretations. If the executive branch's position is incorrect, the current structure of the NSA program is incompatible with the American system of government and must be modified. If, however, we agree with the President's "inherent authority" argument, we must accept that we do not live under a system of separation of powers and checks and balances as we have always believed. This interpretation would pose serious questions about the legitimacy of our elected government (assuming, of course, that this interpretation of the Constitution does not prohibit democracy itself). While the American educational system is far from perfect, no one can reasonably claim that Americans mistakenly believe that the American system of government is based upon the separation of powers and checks and balances because of inadequate schooling. In fact, we believe these things because our Founding Fathers believed them, and because our schools have taught them to every generation of Americans since the ratification of the United States Constitution. As such, if the executive branch position is truly correct, we have been electing our leaders with a faulty understanding of the American system of government for more than 200 years. If the executive branch is going to operate under a different interpretation of its powers and responsibilities than the one understood by the American people, it must fully educate all American citizens about the "true" nature of our system of government so that we may vote accordingly.

II. The AUMF Confirms and Supplements the President's Limited Power to Use Warrantless Surveillance Against the Enemy in the Current Armed Conflict

On September 14, 2001, Congress passed the Authorization for Use of Military Force in response to the terrorist attacks of 9/11. The AUMF specifically authorized the President "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001." AUMF § 2(a). The executive branch argues that because collecting intelligence about the enemy is a standard practice of war (and does not require a search warrant), the authorization to use "all necessary and appropriate force" implicitly allows for the warrantless wiretapping of terrorists. Unfortunately, in his efforts to justify the program to the public, the President has overstated the capabilities of the executive branch by framing the NSA activities as applying only to terrorists. Since the "NSA activities described by the President" apply to innocent Americans as well, the use of an authorization for the use of force against terrorists as justification for the program is both dishonest and insupportable. The American people are not the enemy in the War on Terror, and should not be treated like it. In any case, as some members of Congress have asserted, Congress simply did not intend for the AUMF to authorize the executive branch to spy on American citizens without warrants. Because of the nature of the War on Terror and the importance Americans place on their civil liberties, it is unreasonable for the executive branch to assume that Congress would automatically authorize something like the "NSA activities described by the President" without specific consideration. Therefore, the President has clearly empowered the NSA to engage in a domestic spying program without authorization from Congress.

A. The American People Are Not the Enemy

After the once-secret NSA program had finally become known to the American public, President Bush expressed his opinion that "[t]he fact that we're discussing this program is helping the enemy." Press Conference of President Bush (Dec. 19, 2005), available at http://www.whitehouse.gov/news/releases/2005/12/20051219-1.html. Clearly, the President would have preferred it if the American people had never found out about the NSA domestic warrantless wiretapping program. While we can appreciate the need to protect the operational details of certain government programs for reasons of national security, we expect to be kept generally informed about what our government is doing on our behalf and with our tax dollars. This is all the more true when important issues such as our civil liberties and system of government are involved. By failing to inform the public about his authorization of the NSA warrantless wiretapping program, the President has treated us - the American people - as if we were the "enemy" of the War on Terror. Even after the existence of the NSA program was revealed, however, the President has consistently refused to describe basic features of the program and even mischaracterized certain components of it that have already been revealed by the executive branch itself. Allowing for the need to protect crucial operating details, there is no justification for misleading the American people about issues that are only of concern to them and of no use to terrorists.

Regarding the supposed legality of the program under the AUMF, when framing the nature of the domestic warrantless wiretapping program for the public, President Bush has repeatedly exaggerated the capabilities of the NSA and the executive branch. By assuming that the federal government can always correctly tell the difference between a terrorist and a non-terrorist, the President has implied that the NSA program will not affect innocent Americans in any way. Although untrue, this argument serves a very particular purpose. The President was authorized by the AUMF to use "all necessary and appropriate force" against terrorists (as well as their supporters and affiliates), but not against innocent Americans. Unless we are willing to allow our own government to consider all Americans to be potential terrorists, the President's public characterization of the NSA program is misleading and inappropriate. In order to foster a real debate about a particular policy or program (as is necessary in any democratic nation), the American people must understand the true nature of the program in question.

Unfortunately (but understandably), neither the President nor the employees of the NSA are infallible. They can (and do) make errors, just like every other human being. In the War on Terror, it is guaranteed that the executive branch will spy on some Americans and US residents who have done absolutely nothing wrong. In fact, because the American population is so large and the number of terrorists hiding among us is so small, it is very likely that far greater numbers of innocent Americans will be subjected to warrantless wiretapping than are terrorists. However, this does not mean that we cannot permit the executive branch to do the very best it can to protect us. Our system of government was intended to accommodate and even embrace human nature with all of its many strengths and weaknesses. We understand that each branch of government makes mistakes, but feel secure in the knowledge that because of the separation of powers and checks and balances built into our system, the damage from those mistakes can be limited and the mistakes themselves rectified by the other branches. Without those institutionalized protections, however, the American government would invariably succumb to human nature. Mistakes (and even intentional abuses of power) could no longer be prevented, remedied, or even detected.

Although President Bush has publicly implied that the NSA program only spies on terrorists, the executive branch simply is not capable enough to determine who is a terrorist and who is not with one-hundred percent accuracy. Therefore, when the President publicly addresses his authorization of warrantless wiretaps within the United States, he must keep in mind that innocent Americans will be targeted by the NSA program, and that we - the American people - are not the enemy. The American people understand the severity of the threat we face in the War on Terror, and we are willing to consider whatever steps our government thinks it must take in order to keep America safe. In order to do that, the government must candidly describe the nature of those steps and the sacrifices they entail in terms of our freedoms and other factors. This information would not help terrorists in any way, but is critically important to gaining our understanding and possible approval of any particular measure or policy. In this case, the President has unacceptably mischaracterized the nature of the NSA program in his effort to rationalize it to the American people as being justified under the AUMF.

B. Congress Did Not Intend for the AUMF to Authorize the Warrantless Wiretapping of Americans

Although collecting intelligence about the enemy is indeed a standard practice of war, the nature of the War on Terror necessitates a more nuanced approach than that taken by the executive branch on this issue. The "standard practices of war" can only apply to wars that are themselves "standard," primarily meaning wars that involve foreign countries or powers that have military forces and easily identifiable infrastructures. Certain aspects of the War on Terror have functioned (for the most part) like other "standard" wars we have fought. For instance, the US-led invasion of Afghanistan was well suited to the application of the "standard practices of war," and one could therefore reasonably interpret the AUMF as authorizing spying on Taliban and al Qaeda forces in support of our operations there. However, the domestic side of the War on Terror does not easily fit into the concept of standard warfare.

We have never before fought a war against an enemy that lives among us, organized not into military formations, but into self-contained "cells" that seek to blend into our own population. There is no "front" in the domestic War on Terror, nor is there an obvious and universal device (such as a uniform) that allows us to differentiate terrorists from everyone else. In this situation, applying many of the standard practices of war (carpet bombing, for instance) would have grave consequences for our own citizens. In a war that must be fought on our own soil against an enemy that moves among our own population, we have to admit that the "standard practices of war" do not automatically apply. Therefore, it is unreasonable for the executive branch to assume outright that the AUMF implicitly authorized the warrantless wiretapping of American citizens.

Specifically, there is good reason to think that Congress did not intend to authorize the kind of domestic spying that has been described by the President. The American people have a long history of valuing (and protecting) their civil liberties. We proudly teach our children about the first British settlers that came here to escape from the oppression and persecution of their own government, and about the very first Americans, who fought and won the Revolutionary War against all odds in order to create a land of freedom. Ever since the Bill of Rights was written into the United States Constitution specifically to protect the people from the actions of their government, Americans have fought wars against other governments and democratic battles against our own in order to protect our freedoms and civil rights. For instance, in the 1970s, when the American public first learned about the domestic spying activities of executive branch agencies such as the CIA and NSA, the resulting outcry prompted Congress to pass legislation that regulated and provided for the oversight of domestic surveillance. Time and time again, the American people have demonstrated the importance they place on their civil liberties. As such, it is reasonable to assume that the Congress, composed entirely of representatives of the American people, did not intend for the AUMF to automatically authorize any significant infringement of the people's cherished civil liberties. In the absence of additional legislation, it is clear that Congress has never authorized the President to empower the NSA to engage in the warrantless wiretapping of Americans on American soil.

III. The NSA Activities Are Not Consistent with the Foreign Intelligence Surveillance Act

The Foreign Intelligence Surveillance Act regulates the executive branch's ability to legally spy on Americans or others within the United States. It established a special secret court (known as the FISA Court) that reviews executive branch applications for domestic search warrants, and allows the executive branch to appeal a decision to yet another secret court (known as the Foreign Intelligence Surveillance Court of Review) if a warrant request is denied. Partly because it claims that FISA is too slow for the purposes of the War on Terror, the executive branch has bypassed the FISA Court by refusing to apply for warrants to engage in the domestic wiretapping of the NSA program. Although it notes that "FISA generally requires judicial approval of electronic surveillance," the executive branch argues that FISA cannot apply to the "NSA activities described by the President" essentially because if FISA denied the President's authority to authorize warrantless domestic spying, FISA itself would be unconstitutional. Legal Authorities Supporting the Activities of the National Security Agency Described by the President (Jan. 19, 2006). However, the entire purpose of FISA is to prevent exactly the kind of warrantless wiretapping being done as part of the "NSA activities described by the President," and the law cannot be interpreted to allow the NSA program. Moreover, the argument that FISA either does not apply in this context or is unconstitutional is both invalid and dangerous when applied to the American system of government.

A. The Purpose of FISA

In the late 1970s, following investigations into the domestic spying activities of certain executive branch agencies (some of which involved the monitoring of non-violent antiwar activists and other political figures), Congress and the American public alike were appalled at the degree to which the executive branch had been spying on American citizens without any kind of warrant or court authorization. They understood that the executive branch had to have the ability to spy within the United States for reasons of national security, but felt that it should be required to apply for and obtain search warrants in order to strike a reasonable balance between security interests and American civil liberties. Because the usual method of obtaining search warrants was open to the public (and hence unsuitable for matters of national security), Congress recognized that it would be necessary to create a new system that would operate in secret, yet still provide the appropriate level of oversight required by the American system of government. Therefore, in 1978, Congress passed FISA to create and regulate a special secret court through which the executive branch could legally wiretap American citizens and others within the United States.

The central purpose of FISA is to prevent the executive branch from engaging in exactly the sort of behavior it has in the "NSA activities described by the President." Besides creating a framework under which the executive branch can obtain legal search warrants for the domestic wiretapping of Americans, FISA makes it a criminal offense to engage in warrantless wiretapping and allows the subjects of such wiretapping to sue for actual and punitive damages. By engaging in warrantless wiretapping of Americans on American soil, members of the executive branch are not only ignoring the law, they are actively violating it and could be subject to criminal prosecution.

In order to defend the legality of the "NSA activities described by the President" under FISA, the executive branch points out that FISA allows for exceptions to its rules if specifically authorized by another statute. As discussed above, the executive branch argues that the AUMF authorized the President to engage in the domestic warrantless wiretapping of American citizens, which (if true) would serve as the exempting statute and thus make the NSA program legal. However, as was also discussed above, the AUMF cannot possibly have authorized the "NSA activities described by the President." In fact, since FISA specifically forbids the executive branch from engaging in the domestic wiretapping of American citizens, there is even more reason to doubt that Congress intended to authorize such a program when it passed the AUMF. It is completely unreasonable to assume that Congress would intentionally nullify a major work of legislation such as FISA without specifically (or even vaguely) acknowledging that that was its intention.

It is important to note that, although the AUMF did not authorize the NSA program in question, FISA does contain provisions that allow for exceptions or changes to the existing structure of the FISA court. The PATRIOT Act, for instance, passed by Congress in the aftermath of 9/11, loosened restrictions on certain kinds of searches allowed under FISA and increased the number of judges serving on the FISA Court. Since FISA was designed to accommodate the evolving needs of the American government as time progressed and circumstanced changed, the executive branch's claim that the FISA Court is "too slow" does not excuse its violation of the law. By operating within our system of government, the executive branch can request exceptions or changes to FISA, which can then be considered and possibly enacted by the legislative branch. The separation of powers within the American system of government simply does not allow the executive branch to make its own laws or interpret existing laws to mean whatever it wants.

B. The President is Not Above the Law

Even though FISA clearly prohibits the executive branch from engaging in domestic warrantless wiretapping of American citizens, the President authorized the NSA to do exactly that. As justification, the executive branch argues that FISA is unconstitutional because it interferes with the inherent executive powers of the President, and thus can be safely ignored. This argument, if true, would have consequences far beyond the question of whether or not FISA applies to the "NSA activities described by the President." In essence, the executive branch is proclaiming that no law - FISA or otherwise - can prohibit the President from engaging in the domestic warrantless wiretapping of American citizens, nor can it prohibit any activity that the President himself determines falls within his supposed "inherent authority" under the Constitution. If the American system of government truly is based upon the separation of powers and checks and balances, this argument cannot be valid.

The United States Constitution assigns particular responsibilities to each of the three branches of government, and the executive branch is correct in its assertion that it possesses certain powers that cannot be limited by Congress. For instance, unless it amends the Constitution itself, Congress cannot pass a law that eliminates the President's ability to receive Ambassadors from other countries or to serve as the Commander in Chief of the American military. If the legislative branch did pass such a law, however, it would be the responsibility of the judicial branch (not the executive branch) to interpret it and declare it unconstitutional. The idea that the executive branch itself has the authority to determine whether and how a given law applies to it violates the very purpose of our system of government.

Unfortunately, President Bush has already put this dangerous theory into practice. Besides authorizing the "NSA activities described by the President" in direct contravention of established law, the President has attached so-called "signing statements" to hundreds of new laws that assert his authority to ignore provisions of those laws as he sees fit. In many cases, these "signing statements" directly undermine the democratic process because the provisions in question were the product of intense negotiations between the legislative and executive branches, or were otherwise crucial components of the law. One of the most outrageous examples of this involved the reauthorization of the PATRIOT Act, which extended (and in some cases, made permanent) the expanded powers given to the executive branch after 9/11. In order to break a filibuster and secure passage of the bill, the President and Congress agreed upon compromise provisions that ensured some degree of Congressional oversight of the expanded powers. Shortly after the bill was signed into law on March 9, 2006, the President attached a signing statement that announced his authority to ignore some of the very same provisions that were crucial to its passage. Similarly, after Congress passed an amendment to a defense appropriations bill that was intended to prohibit American government personnel from engaging in torture, the President declared that he could ignore the law at will. The argument that FISA does not apply to the President because of his inherent Constitutional powers is invalid, and is extremely dangerous when applied to the wider context of the American system of government. No one - including the President - is above the law of the United States.

IV. The NSA Activities Are Not Consistent With the Fourth Amendment

The Fourth Amendment to the United States Constitution protects us against "unreasonable searches and seizures" by the government, but does allow for reasonable searches and/or seizures if the executive branch can obtain a warrant based on "probable cause." To explain why the NSA supposedly does not need warrants to legally engage in searches under its domestic wiretapping program, the executive branch argues that the warrant requirement of the Fourth Amendment does not apply to the NSA program because it fits into a category of "special needs" that are exempt from the usual restrictions placed on American law enforcement. Furthermore, it argues that the program of warrantless wiretapping is limited in its scope and subject to sufficient oversight, and that it is therefore "reasonable" and not a threat to American civil liberties. However, even (and especially) in the context of the War on Terror, Americans must be wary of relinquishing their civil liberties. In light of the serious consequences that the sort of broad and permanent exception to the Fourth Amendment asserted by the President would cause, such an exception is clearly unacceptable. Additionally, the self-imposed limitations upon the NSA program are both inadequate and much less protective of civil liberties than has been suggested by the President. The "NSA activities described by the President" are not reasonable as currently structured, nor are they even remotely compatible with the American system of government. Therefore, the NSA domestic warrantless wiretapping program is not consistent with the Fourth Amendment to the United States Constitution.

A. The Nature of the War on Terror Requires Extreme Caution in Regard to the Fourth Amendment

The United States Constitution forms the basis of our system of government and is the highest law in the land, and decisions about exceptions to its requirements cannot be made lightly. When Americans and others around the world speak about the "freedom" of the United States, it is to our Constitution which they are referring, and often specifically to the Bill of Rights. Although the majority of the Constitution is devoted to forming the government itself and describing what each part of it can do (and not do) to the other parts, the Bill of Rights describes what the government cannot do to us, the American people. While the judicial branch has decided that there can be specific limitations placed upon even the most sacred of our Constitutionally-protected rights (for instance, even with the right to free speech, we cannot falsely yell "fire!" in a crowded building), such limitations apply only in very narrow contexts. Each infringement upon American civil liberties must be considered carefully before it can be legally exempted from the rules of the United States Constitution.

The Fourth Amendment has long protected Americans from the excesses of government. While it was originally intended to prevent the government from doing things such as arbitrarily stopping and searching people in the street or entering private homes without a warrant, it has been interpreted by the judicial branch to apply in a wide variety of contexts with the changing times. As such, Americans feel safe when they talk on the phone or use the internet because they generally do not have to worry that the government is listening to their conversations. Although many people may not feel threatened by arbitrary government searches (including wiretapping) because they have done nothing wrong and therefore have nothing to hide, there in an important reason the Fourth Amendment was written into the Constitution. Rather than protecting the guilty, the Fourth Amendment was primarily intended to protect the majority of Americans who are innocent from being falsely accused of crimes or violations they did not commit.

In the War on Terror, Americans may be tempted to relinquish their Constitutional rights out of fear or even the simple confidence that whatever infringements occur will not apply to them. Unfortunately, the nature of the War on Terror makes this an extremely dangerous idea. Unlike other wars, the War on Terror can never be won entirely, and therefore any restrictions placed on American civil liberties will become essentially permanent. In the context of the Fourth Amendment, because the enemy in this war moves among us and blends into our own population, innocent Americans could easily become the subject of false suspicion and arbitrary searches if broad exceptions to the warrant requirement are permitted. Because its very purpose is to protect the rights of the innocent, Americans must be extremely cautious about allowing the executive branch to circumvent any part of the Fourth Amendment in a manner that will permanently sanction arbitrary searches of innocent people.

The executive branch claims that the warrant requirement of the Fourth Amendment does not apply to the "NSA activities described by the President" because the interests of national security in the War on Terror outweigh the privacy interests of the Americans who may be targeted by the warrantless wiretapping program. However, the Fourth Amendment does not mention anything about any of its provisions being inapplicable in wartime or in the face of threats to national security. Rather than being an oversight of the Founding Fathers (all of whom happened to be very familiar with the needs of national security during a crisis, since they had recently fought the Revolutionary War against the most powerful nation in the world), the wartime applicability of the Fourth Amendment was surely intentional. If the executive branch was permitted to ignore provisions of the Fourth Amendment (or any section of the Constitution, for that matter) whenever the executive branch itself determines that the United States faces a significant threat to its national security, the Fourth Amendment would be rendered effectively meaningless. It is therefore even more important that during an open-ended national crisis like the War on Terror, Americans do not relinquish their Constitutional protections against warrantless searches. While it may well be perfectly understandable and predictable that the executive branch would attempt to limit our civil liberties during such a crisis (which is the very reason that the Founding Fathers added the Fourth Amendment and the entire Bill of Rights to the Constitution in the first place), it remains unacceptable for it to do so. Specifically, it cannot simply proclaim that the NSA domestic wiretapping program is automatically exempt from the warrant requirement of the Fourth Amendment, especially without explicit guidance from the judicial branch of government.

B. The NSA Activities Are Not Reasonable

In order to calm the public outcry that was sure to result from its circumvention of the Fourth Amendment, the executive branch has assured us that the "NSA activities described by the President" are "reasonable," and thus of no concern to the average American. According to President Bush (speaking for the executive branch), "... we're guarding your civil liberties." Press Conference of President Bush (Dec. 19, 2005), available at http://www.whitehouse.gov/news/releases/2005/12/20051219-1.html. As evidence of this claim, the executive branch has described a number of limitations it has imposed upon itself as it engages in the domestic warrantless wiretapping of Americans. As previously mentioned, the "NSA activities described by the President" are supposedly limited to spying on international communications (rather than purely domestic calls) that involve at least one person that the government has a "reasonable basis" to believe is involved with terrorism. Furthermore, the executive branch reviews the "NSA activities described by the President" approximately every 45 days, and must reauthorize the program for it to continue. Finally, although the executive branch's legal justification for the program makes no mention of it, the President (again speaking for the executive branch) claims that "...we're briefing Congress." Id. Regardless of the executive branch's assertions to the contrary, these self-imposed limitations are not enough to qualify the "NSA activities described by the President" as being "reasonable."

The limitations described by the executive branch are not nearly as protective of the rights and civil liberties of innocent Americans as the President has suggested to the American public. As mentioned previously, the President has publicly stated that the NSA can only engage in the domestic warrantless wiretapping of Americans who have "known links" to terrorist organizations, when, in fact, the true standard is much lower. Even the "reasonable basis" standard does not easily lend itself to a universal reading, meaning that each NSA employee involved in the program may be applying the standard differently. The claim that the executive branch is "briefing Congress" is misleading as well; in reality, the briefings have been limited to select members of Congress at the executive branch's discretion (meaning, of course, that the subject matter of such briefings could also be limited to whatever aspects of the program the executive branch desires to disclose). Although there can be many different opinions regarding what level of protection our civil liberties require, it is clear that the President has overstated the limitations that have been placed upon the NSA program, suggesting that he may feel that Americans would be uncomfortable with the true nature of the protections.

That being said, the unreasonableness of the "NSA activities described by the President" has more to do with the program's undermining of the American system of government than with the specific limitations (or lack thereof) placed on it by the executive branch. In fact, the executive branch's argument that the NSA program is "reasonable" because it operates under a variety of self-imposed limitations demonstrates the fundamental incompatibility between the "NSA activities described by the President" and the system of separation of powers and checks and balances that we hold so dearly. Our government was purposefully designed in such a way that none of the branches would be put in the difficult position of regulating and policing themselves entirely alone. Although each branch of government certainly does regulate and police itself in a variety of situations, it does so in an open process that provides the other branches of government the opportunity to intervene if necessary.

Because the very existence of the "NSA activities described by the President" was unknown to all but a few members of the legislative and judicial branches until exposed by an article in the New York Times, neither branch could have possibly fulfilled its Constitutional responsibility to check and balance the executive. Even after the program was revealed, the executive branch has refused to answer many questions put to it by members of Congress and has even denied that the legislative branch has the authority to regulate the domestic warrantless wiretapping program. Furthermore, because innocent Americans who are monitored by the program may never be aware of it (meaning that they cannot sue the government in response), it may be impossible for the judicial branch to ever address the issue. Perhaps most frightening of all is the fact that the executive branch could change or remove the so-called "reasonable" limitations on the NSA program at any time without the knowledge of the American people or the other branches of government. In fact, according to an April 7, 2006, article in the Washington Post, Attorney General Alberto Gonzales refused to rule out the possibility that the NSA could extend the program to include the warrantless wiretapping of purely domestic calls (therefore undermining the restriction to spy on international calls only, one of the central self-imposed limitations on the program). The American system of government simply cannot function if the executive branch refuses to operate according to the separation of powers and checks and balances as it has in this situation. Far from being "reasonable," the NSA domestic warrantless wiretapping program is instead a direct threat to our entire way of life. As such, it is certainly not consistent with the Fourth Amendment to the United States Constitution, nor with the most fundamental values of this proud country.

Conclusion

For the foregoing reasons, the President - in light of the American system of government and the nature of the War on Terror - does not have legal authority to authorize the NSA to conduct the domestic spying activities he has described. Even if the activities were somehow construed within the current legal or political environment to be lawful, the values and history of the United States of America clearly indicate that they should not be. Indeed, each of the three branches of government would do well to remember that, in the end, it is the American people who are sovereign over the future of our nation. We will not stand idly by while our laws are broken, our civil liberties violated, and our very system of government corrupted. The so-called "NSA activities described by the President" are not authorized by the Constitution nor by statute, and they patently violate both FISA and the Fourth Amendment.