Con Law Scholars Dismantle Bush Apology for Warrantless Spying (Edmundson)

A bipartisan array of constitutional law scholars has published "A Letter to Congress" (New York Review of Books, Feb. 8) assailing the DOJ's apology for Bush's secret, illegal program of domestic surveillance.  The authors include Walter Dellinger, Ronald Dworkin, Richard Epstein, Harold Koh, William S. Sessions (former FBI director), Geoffrey Stone, Kathleen Sullivan, Lawrence Tribe, and William Van Alstyne. Responding to the DOJ's Dec. 19, 2005, White Paper and related transmissions to members of Congress, the Letter begins:

[T]he Justice Department's defense of what it concedes was secret and warrantless electronic surveillance of persons within the United States fails to identify any plausible legal authority for such surveillance. Accordingly the program appears on its face to violate existing law.

The basic legal question here is not new. In 1978, after an extensive investigation of the privacy violations associated with foreign intelligence surveillance programs, Congress and the President enacted the Foreign Intelligence Surveillance Act (FISA).... FISA comprehensively regulates electronic surveillance within the United States, striking a careful balance between protecting civil liberties and preserving the "vitally important government purpose" of obtaining valuable intelligence in order to safeguard national security." ...

With minor exceptions, FISA authorizes electronic surveillance only upon certain specified showings, and only if approved by a court. The statute specifically allows for warrantless wartime domestic electronic surveillance—but only for the first fifteen days of a war. 50 U.S.C. § 1811. It makes criminal any electronic surveillance not authorized by statute, id. § 1809; and it expressly establishes FISA and specified provisions of the federal criminal code (which govern wiretaps for criminal investigation) as the "exclusive means by which electronic surveillance...may be conducted," 18 U.S.C. § 2511(2)(f) (emphasis added).

The Department of Justice concedes that the NSA program was not authorized by any of the above provisions. It maintains, however, that the program did not violate existing law because Congress implicitly authorized the NSA program when it enacted the Authorization for Use of Military Force (AUMF) against al-Qaeda.... But the AUMF cannot reasonably be construed to implicitly authorize warrantless electronic surveillance in the United States during wartime, where Congress has expressly and specifically addressed that precise question in FISA and limited any such warrantless surveillance to the first fifteen days of war.

The Letter goes on to demolish an alternative argument floated by the Gonzales DOJ: that the Bush program is legal because the President possesses inherent power during wartime to gather "signals intelligence" secretly and without warrant. 

    Why not simply apply for FISA warrants, post-facto if necessary?  Anticipating Bush's red-faced answer (here), Washingtonpost.com blogger William M. Arkin has suggested--in "The Curious Section 126 of the PATRIOT Act" (Dec. 23, 2005)--that "the government decided after 9/11 to monitor everyone," by high-tech methods of "pattern-based data-mining" that can sift through

massive databases of non-publicly available data; both proprietary databases and [the NSA's] own compiled intelligence and law enforcement databases to "search" for terrorists and terrorist connections.  In this program, the subject of monitoring is not one individual but everyone.

The "reasonable suspicion" standard under FISA could readily be met by data-mined patterns of past electronic transactions with persons overseas--but only if the nature and extent of the data-mining were made know in the application.  The reason why Bush and his "operators" decided to ignore FISA, Arkin guesses, was that   

the government couldn't go to the Court or the Congress and say, "hey, we'd like to monitor everyone on a fishing expedition to find the next Mohamed Atta."

...not even to a Republican Court or Congress.