NSA Spying Myths

By David Cole
The Nation

"When the President does it, that means that it is not illegal." So Richard Nixon infamously defended his approval of a plan to engage in warrantless wiretapping of Americans involved in the antiwar movement in the 1970s. For thirty years Nixon's defense has stood as the apogee of presidential arrogance. But of course Nixon was proved wrong. The wiretapping plan was shelved when J. Edgar Hoover, of all people, objected to it. Nixon's approval of it was listed in the articles of impeachment. Nixon learned the hard way that Presidents are not above the law.

George W. Bush appears not to have learned the lesson. His defense of the National Security Agency's warrantless wiretapping of Americans resurrects the Nixon doctrine, with one modification. For Bush, "when the Commander in Chief does it, it is not illegal." In a memo to Congress, the Administration argued that the Commander in Chief may not be restricted in the "means and methods of engaging the enemy," and that Bush is thus free to wiretap Americans without court approval in the "war on terror" even if Congress has made it a crime. This assertion of uncheckable executive power is just one of five myths the Administration has propagated in a PR blitz designed to convince the public of a transparently unconvincing argument. As Congress readies for hearings on the subject, here's a primer on the spying debate.

Myth 1: Following existing law would require the NSA to turn off a wiretap of an Al Qaeda member calling in to the United States.

Variations on this theme appear every time the Administration defends the NSA spying program. The suggestion is that the Foreign Intelligence Surveillance Act (FISA) would interfere with the President's ability to monitor Al Qaeda members' calls when it's most important to do so. There's only one problem: FISA would not require the tap to be turned off. First, FISA does not apply at all to wiretaps targeted at foreign nationals abroad. Its restrictions are triggered only when the surveillance is targeted at a citizen or permanent resident of the United States, or when the surveillance is obtained from a wiretap physically located within the United States. If the NSA is listening in on an Al Qaeda member's phone in Pakistan, nothing in FISA requires it to stop listening if that person calls someone in the United States. Second, even when FISA is triggered, it does not require the wiretap to be turned off but merely to be approved by a judge, based on a showing of probable cause that the target is a member of a terrorist organization. Such judicial approval may be obtained after the wiretap is put in place, so long as it is approved within seventy-two hours.

Myth 2: Congress approved the NSA spying program when it authorized military force against Al Qaeda.

This argument cannot be squared with existing law, which provides that even when Congress declares war--a much more formal and grave step than an authorization to use force--the President has only fifteen days to conduct warrantless surveillance. The Al Qaeda authorization says not one word about wiretapping Americans. In addition, when asked why the Administration did not seek to amend FISA to permit this program, the Attorney General explained that he consulted with several members of Congress but that they told him it would be "difficult, if not impossible," to obtain permission. You can't argue that you didn't ask because Congress would have said no, but that without asking, and without Congress saying so, it actually said yes.

Myth 3: Bush informed Congress of the NSA program.

"If I wanted to break the law, why was I briefing Congress?" Bush asked in a speech on the spying issue. His Administration claims that it informed isolated members of Congress twelve times, but there is no evidence that it told those members either that it believed its actions were authorized by the use-of-force resolution or that it was asserting executive power to violate criminal law. In addition, the briefings were classified, and members were prohibited from repeating to other members anything that was said there. So the answer to Bush's question is that he may have "informed Congress" precisely to provide cover in case his secret lawbreaking ever became public, but he did so in a manner that insured Congress could not take action against him.

Myth 4: The courts have upheld inherent presidential power to conduct warrantless wiretapping for foreign intelligence purposes.

Bush's defenders claim that every court to address the subject has said the President has inherent authority to conduct warrantless wiretapping for foreign intelligence-gathering purposes. What they do not say is that those courts were addressing presidential authority before Congress regulated such activity by enacting FISA in 1978. The fact that Presidents may have "inherent" authority to take action in the absence of contrary Congressional intent does not mean they have uncheckable authority to do so once Congress has prohibited the conduct. That argument would mean FISA is unconstitutional, and no court has so ruled.

Myth 5: The President as Commander in Chief cannot be regulated by Congress.

The Administration's ultimate defense is that even if Bush broke the law, his constitutional authority as Commander in Chief permits him to do so at his discretion. According to the Justice Department, Congress cannot limit his choice of how to "engage the enemy." This rationale is not limited to wiretapping. On the same theory, Justice argued in 2002 that he could order torture despite a criminal statute to the contrary. It is that theory that Bush was presumably invoking when, in signing the amendment barring "cruel, inhuman and degrading treatment" of terrorism suspects, he said he would interpret it "in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief."

Bush tried this theory out on the Supreme Court in the Guantanamo cases, when he argued that it would be an unconstitutional intrusion on his Commander in Chief powers to extend habeas corpus review to Guantanamo detainees. Not a single Justice on the Court accepted that radical proposition. But that hasn't stopped Bush from asserting it again. After all, when you get to say what the law is, what's a contrary Supreme Court precedent or two?

Photo credit: David Cole (Rhoda Baer)