“Eavesdropping on Americans: Implausible Deniability”
Professors David Cole of Georgetown and Curtis Bradley of Duke agree on little in the
law. Cole, an ardent defender of immigrants and civil liberties, is a darling of the left.
Bradley, a skeptic about international law and champion of national sovereignty, is a
darling of the right.
Yet last month they both joined a bipartisan group of 16 eminent law professors and
former government officials to denounce the Bush Administration’s national security
wiretapping of Americans. In the view of this ideologically disparate group, the Justice
Department’s defense of the eavesdropping lacks even a “plausible” legal basis.
In other words, in their opinion, the legal arguments put forward by Attorney General
Alberto Gonzales have the persuasive force of a cow flop.
And they are right. In 1972 the Supreme Court ruled that the Fourth Amendment
requires judicial warrants for domestic security wiretapping in the United States.
However, it left open whether a warrant is required for wiretaps in the US designed to
gather intelligence about a foreign power.
In 1978 Congress plugged the gap. The Foreign Intelligence Surveillance Act (“FISA”)
creates two separate legal schemes. Where a target in the US is exclusively foreign, such
as an embassy, and there is no “substantial likelihood” of overhearing Americans, the
President may authorize wiretaps for up to a year based on a certification by the Attorney
But where Americans in the US are targeted or likely to be overheard, a judicial warrant
for a foreign intelligence wiretap in the US must be obtained from a special, eleven-judge
FISA court. Operating in total secrecy, the FISA court may authorize electronic
surveillance, so long as the government shows probable cause that the target is a foreign
power or an agent of a foreign power.
International terrorist groups qualify as foreign powers. Americans who work for, or
knowingly conspire with or aid and abet groups like Al Qaeda, are agents of a foreign
FISA is fast and flexible. In emergencies the government can get a warrant up to 3 days
after surveillance begins. In wartime no warrant is required for the first 15 days – long
enough for the government to ask Congress for any necessary changes in the law.
A limited proviso protects free speech. Americans cannot be deemed agents of a foreign
power based solely on First Amendment activities. If a reporter emails a member of Al
Qaeda to ask a journalistic question, she may not be targeted by a FISA wiretap (although
the Al Qaeda member may be a target). But if there is probable cause to believe she is
conspiring with Al Qaeda, she may be targeted.
To engage in electronic surveillance of Americans in the US without either a FISA
warrant or an ordinary warrant from a criminal court is a federal crime. Nonetheless,
soon after 9/11, the National Security Agency, initially on its own and later with the
President’s blessing, began listening in on conversations between Americans in the US
and foreigners – with no judicial warrant.
The Justice Department offers two legal defenses. First, it claims that the congressional
authorization for the President to use force against terrorists after 9/11 implicitly
authorized him to wiretap Americans. As the legal scholars point out, that claim violates
elementary rules of statutory construction. Repeals of laws by implication are
disfavored; if Congress had meant to repeal FISA, it would have said so.
In addition, specific laws prevail over general laws. FISA specifically governs electronic
surveillance; a general law on use of force does not take its place.
The second government argument is that the President as commander in chief has implied
authority under the Constitution to wiretap our enemies in a war. Of course he does. But
that does not mean he has authority to wiretap Americans in the US, who have rights
under the Fourth Amendment, even in wartime. And even less can the President secretly
violate a law passed by Congress, acting within its constitutional powers.
Perhaps FISA should be amended. The National Security Agency may well wish to
listen in on all conversations between Americans and Al Qaeda, even if the Americans
are not agents of Al Qaeda, and even if there is no tap on the Al Qaeda end of the phone,
because their identities are unknown.
But if that change needs to be made – one must weigh the security gains against the loss
in freedom – the way to make it is by open debate and, if Congress is persuaded, by
changing the law. The answer is not to break the law in secret, and then to cover up the
crime in cow flops. This controversy is about much more than privacy or security; it is
about the rule of law.
Doug Cassel’s commentaries are broadcast Wednesdays during the noon hour of the Worldview
program on Chicago Public Radio, 91.5 FM. Views expressed are personal views of the author and
not necessarily those of Notre Dame Law School, the Center for Civil and Human Rights or Chicago