Posted by K.M. Das

On Thursday, January 5, 2006, the Congressional Research Service released a 44-page memorandum casting further doubt on the legality of the National Security Agency’s monitoring of international communications of American citizens and residents. CRS, housed within the Library of Congress, is the “public policy research arm of the United States Congress.” CRS is intended to give Congress “its own source of nonpartisan, objective analysis and research on all legislative issues.”

On December 22, 2005, in response to the New York Times article on the NSA’s warrantless monitoring of international communications of American citizens and residents, the Department of Justice sent a five-page letter to lawmakers “to provide an additional brief summary of the legal authority supporting the NSA activities described by the President.”

In that letter, the DOJ relied on the President’s authority under Article II of the Constitution, as Commander in Chief, to “repel aggressive acts by third parties even without specific congressional authority.” Id. The DOJ also relied on Congress’s Authorization for the Use of Military Force (“AUMF”) following the September 11, 2001, terrorist attacks. According to the DOJ, “[t]he AUMF clearly contemplates action within the United States.” Id. (quoting the preamble of the AUMF for the proposition that “the attacks of September 11 てender it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad”). The DOJ analogized the NSA’s current program to programs during the two World Wars that had “intercepted telegrams into and out of the country.” Id. Finally, the DOJ argued that “[t]he President’s authorization of targeted electronic surveillance by the NSA is also consistent with the Foreign Intelligence Surveillance Act (てISA’)” because section 109 of FISA (50 U.S.C. ャ゚ 1809(a)(1)) has a broad exception for electronic surveillance “authorized by statute.” Id.

The CRS memorandum, which “lays out a general framework for analyzing the constitutional and statutory issues raised by the NSA electronic surveillance activity,” called into question the analysis in the DOJ December 22 letter. Id. The memorandum authors, Elizabeth B. Bazan and Jennifer K. Elsea, recognized that Congress and the Executive have “have never quite achieved a meeting of the minds regarding their respective powers” when it comes to “intelligence collection.” Id. at 7. The memorandum states that Congress intended the procedures of FISA “be the exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted.” Id. at 15-16; see also id. at 27 (“[t]he statutory language in FISA and the legislative history of the bill that became FISA . . . reflect the Congress’s stated intention to circumscribe any claim of inherent presidential authority to conduct electronic surveillance, as defined by the Act, to collect foreign intelligence information, so that FISA would be the exclusive mechanism for the conduct of such electronic surveillance”).

After addressing, in detail, each of the justifications proffered in the December 22 letter, the CRS memorandum authors concluded that “[w]hether an NSA activity is permissible under the Fourth Amendment and the statutory scheme outlined above is impossible to determine without an understanding of the specific facts involved and the nature of the President’s authorization, which are for the most part classified.” Id. at 42-43. However, “[i]f the NSA operations at issue are encompassed in the definition of てlectronic surveillance’ set forth under FISA, it would seem consistent with Congress’s intent that such surveillance must be carried out in accordance with the FISA procedures.” Id. at 43. The authors also concluded “it appears unlikely that a court would hold that Congress had expressly or impliedly authorized the NSA electronic surveillance operations here under discussion . . . .” Id. at 44. As their final analysis, the authors concluded that “the Administration’s legal justification, as presented in the summary analysis [in the December 22 letter], does not seem to be as well-grounded as the tenor of the letter suggests.” Id. at 44.