This article belongs to Behind the Bush column.

The New York Times published a story in December 2005 revealing President Bush authorized the National Security Agency (NSA) to engage in warrantless electronic surveillance of telephone calls and emails. On December 17, 2005 President Bush admitted to authorizing the NSA program.


Congress passed the Foreign Intelligence Surveillance Act (FISA) in 1978 as a way to guard against the type of abuses of presidential power which President Nixon engaged in, namely, using federal agencies to conduct electronic wiretapping on critics of his administration. The Articles of Impeachment against Nixon cite his authorization of illegal wiretapping as an impeachable offense:


He misused the Federal Bureau of Investigation, the Secret Service, and other executive personnel, in violation or disregard of the constitutional rights of citizens, by directing or authorizing such agencies or personnel to conduct or continue electronic surveillance or other investigations for purposes unrelated to national security, the enforcement of laws, or any other lawful function of his office; he did direct, authorize, or permit the use of information obtained thereby for purposes unrelated to national security, the enforcement of laws, or any other lawful function of his office; and did direct the concealment of certain records made by the Federal Bureau of Investigation of electronic surveillance.[i]


FISA governs domestic intelligence gathering, providing a secret court to issue warrants so the government can conduct electronic surveillance if probable cause can be shown that the target is a the agent of a foreign power. Section 105 (f) of FISA allows a warrant to be issued retroactively, three days after the surveillance is conducted, in emergencies. During a war, section 111 allows electronic surveillance without warrants for the first fifteen days. It is a crime to conduct electronic surveillance without warrants, as chapter 119 of FISA spells out. The Center for Constitutional Rights published a book titled, Articles of Impeachment against George W. Bush. In ‘Article I' of the book the breadth of the FISA program is spelled out:


FISA…allows for court authorization of such [electronic] surveillance only when the government produces evidence that the individual who is a target is an agent of a foreign power or foreign terrorist group.[ii]


A Congressional Research Services study by legislative attorney Elizabeth Bazan titled "The Foreign Intelligence Surveillance Act" looked at FISA court decisions. (It was updated in February 2007.) Bazan described the changes made to FISA post 9/11:


The USA PATRIOT Act of 2001, P.L. 107-56, made significant changes to some …provisions. Further amendments were included in the Intelligence Authorization Act for Fiscal Year 2002, P.L. 107-108, and the Homeland Security Act of 2002, P.L. 107-296, the Intelligence Reform and Terrorism Prevention Act, P.L. 108-458, the USA PATRIOT Improvement and Reauthorization Act of 2005, P.L. 109-177, and the USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006, P.L. 109-178. In addressing international terrorism or espionage, the same factual situation may be the focus of both criminal investigations and foreign intelligence collection efforts. Some of the changes in FISA under these public laws are intended, in part, to facilitate information sharing between law enforcement and intelligence elements. In its Final Report, the 9/11 Commission noted that the removal of the pre-9/11 "wall" between intelligence and law enforcement "has opened up new opportunities for cooperative action within the FBI."


The Constitution and warrantless wiretapping

 "Unreasonable searches and seizures" are prohibited by the Fourth Amendment of the Constitution, and the Fourth Amendment establishes "probable cause" must be proved in order for a judge to issue a search warrant. It also must be established that the target of the search is involved in criminal activity. "Although on its face the literal language of the amendment only prohibits ‘unreasonable searches and seizures,' the Supreme Court has consistently held that searches without a warrant are presumptively unreasonable, so that, except in a limited number of exceptional circumstances, warrantless searches are unconstitutional."[iii]


Bruce Fein is a constitutional and international lawyer who served as associate deputy attorney under Reagan, and was a member of the American Bar Association (ABA) Task Force on presidential signing statements. Regarding the NSA's program he wrote in an October 2006 Washington Monthly piece:


President Bush has flouted the Foreign Intelligence Surveillance Act of 1978 (FISA) for five years by directing the National Security Agency to target American citizens on American soil for electronic surveillance on his say-so alone. The president has defended his warrantless domestic spying with an imperial theory of inherent constitutional power that would empower him to open mail, break in and enter homes, or torture detainees, even in violation of federal criminal statutes. He has concealed details of the spying program indispensable to rational congressional oversight—for example, the number of Americans targeted, the earmarks employed to select the targets, or the intelligence yield of the spying.[iv]


The Bush administration's defense of the NSA program

In January 2006 the U.S. Department of Justice (DOJ) released a paper defending the use of warrantless wiretaps titled, "Legal Authorities Supporting the Activities of the National Security Agency Described by the President." The paper claimed the President has the inherent Constitutional right as Commander in Chief to "conduct warrantless surveillance of enemy forces." The paper further claimed that the Congress indirectly authorized the use of warrantless wiretapping through its September 18, 2001 authorization of the use of military force.


The President's role as Commander in Chief does not trump the powers of the Congress, laws enacted by the Congress, or the Bill of Rights. Former Supreme Court Justice Sandra Day O'Connor wrote, "A state of war is not a blank check for the President when it comes to the rights of the nation's citizens." Rep. John Conyers investigated the NSA program's use of warrantless wiretapping and published his findings in a document titled, "Domestic Surveillance." The report states that there is "obvious conflict with both the Foreign Intelligence Surveillance Act (FISA)…and the fourth amendment." Furthermore, the report finds the warrantless wiretapping to be "completely unlawful."


Former Congresswoman Elizabeth Holtzman, who served on the congressional committee which drafted the Nixon impeachment articles, disputes the DOJ's claims. Concerning the claims that Bush has the inherent constitutional authority to authorize warrantless wiretapping, she stated in an article for The Nation magazine, "The Supreme Court has never upheld the President's right to do this in the area of wiretapping, nor has it ever granted the President a monopoly of over war-powers' or recognized him as Commander in Chief of the country as opposed to Commander in Chief of the Army and Navy."


Coming next week: Several members of Congress spoke out about the NSA program, including Rep. Senator Arlen Specter.

[i] Center for Constitutional Rights. p. 130.

[ii] Ibid. p.

[iii] Ibid. p. 21.

[iv] Fein, Bruce. "Restrain this Whitehouse," Washington Monthly. October 2006.