Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror

12 - Warrantless Wiretapping: Presidential Power to Set Aside Acts of Congress?

225 12 war­ rant­ less wire­ tap­ ping pres­ i­ den­ tial power to set aside acts of con­ gress? As we have seen, the Nixon ad­ min­ is­ tra­ tion used war­ rant­ less wire­ tap­ ping as one of its meth­ ods for deal­ ing with po­ lit­ i­ cal en­ e­ mies ­ within the ­ United ­ States. After Pres­ i­ dent ­ Nixon’s res­ ig­ na­ tion, the U.S. Sen­ ate voted in 1975 to es­ tab­ lish the ­ Church Com­ mit­ tee.1­ Headed by Sen­ a­ tor Frank ­ Church of Idaho, the com­ mit­ tee was ­ tasked with in­ ves­ ti­ gat­ ing ­ intelligence-gathering ­ abuses by the U.S. govern­ ment, in­ clud­ ing but not lim­ ited to what had gone on dur­ ing the Nixon years. The ­ Church Com­ mit­ tee in­ ves­ ti­ gated and ex­ posed a wide range of ­ abuses that had taken place over the ­ course of sev­ eral ­ decades, in­ clud­ ing sur­ veil­ lance pro­ grams­ called “Op­ er­ a­ tion Sham­ rock” and “Op­ er­ a­ tion Min­ a­ ret.” Op­ er­ a­ tion Sham­ rock was a ­ thirty-year ef­ fort to re­ view tele­ grams sent from the ­ United ­ States to other coun­ tries.2 At its ­ height, the Na­ tional Se­ cur­ ity ­ Agency an­ a­ lyzed as many as 150,000 mes­ sages a month. Each night, pri­ vate tele­ gram com­ pa­ nies would se­ cretly pro­ vide tele­ grams to NSA of­ fi­ cials. On the basis of in­ for­ ma­ tion gath­ ered from a re­ view of the tele­ grams, the NSA com­ piled a list of “dan­ ger­ ous” ­ Americans (code­ named “Min­ a­ ret”) that in­ cluded ac­ tors, en­ ter­ tain­ ers, po­ lit­ i­ cal ac­ ti­ vists, and civil ­ rights lead­ ers.3 These pro­ grams were ter­ mi­ nated after the ­ Church Com­ mit­ tee ­ brought them to light, but the Com­ mit­ tee was con­ cerned about fu­ ture war­ rant­ less spy­ ing on ­ Americans.4 In the wake of the ­ Church ­ Committee’s re­ ports, Con­ gress ­ passed the ­ Foreign In­ tel­ li­ gence Sur­ veil­ lance Act or FISA, which was de­ signed to allow the fed­ eral govern­ ment to en­ gage in le­ git­ i­ mate in­ tel­ li­ gence gath­ er­ ing re­ quired for na­ tional se­ cur­ ity while pre­ serv­ ing in­ di­ vid­ ual pri­ vacy ­ rights. 226 warrantless wiretapping FISA, which was ­ signed into law in 1978, pro­ vided a spe­ cific and “ex­ clu­ sive” frame­ work for ­ foreign in­ tel­ li­ gence gath­ er­ ing ­ through elec­ tronic sur­ veil­ lance and other means,5 in­ clud­ ing se­ vere pen­ al­ ties for vi­ o­ la­ tions of FISA: any per­ son who en­ gages in elec­ tronic sur­ veil­ lance not au­ thor­ ized by the law is ­ guilty of a crim­ i­ nal of­ fense pun­ ish­ able by five years in ­ prison and/or a $10,000 fine for each of­ fense.6 In most cases, FISA re­ quires that a war­ rant be ob­ tained be­ fore elec­ tronic sur­ veil­ lance can be con­ ducted—with three ex­ cep­ tions. First, no war­ rant is re­ quired when the elec­ tronic sur­ veil­ lance is aimed ­ solely at ac­ quir­ ing the con­ tents of com­ mu­ ni­ ca­ tions ­ between “foreign pow­ ers”;7 when there is no sub­ stan­ tial like­ li­ hood the sur­ veil­ lance will ac­ quire the con­ tents of com­ mu­ ni­ ca­ tions in­ volv­ ing a U.S. cit­ i­ zen, a law­ ful U.S. res­ i­ dent, or a U.S. cor­ po­ ra­ tion or as­ so­ ci­ a­ tion; when the sur­ veil­ lance con­ tin­ ues for one year or less; and when the at­ tor­ ney gen­ eral cer­ tifies its lim­ ited aims.8 Sec­ ond, under “an emer­ gency sit­ u­ a­ tion” as de­ ter­ mined by the at­ tor­ ney gen­ eral, war­ rant­ less emer­ gency sur­ veil­ lance may be con­ ducted for up to seven days, but the at­ tor­ ney gen­ eral must in­ form a FISA judge of the de­ ci­ sion to au­ thor­ ize emer­ gency war­ rant­ less sur­ veil­ lance.9 Third, the pres­ i­ dent, ­ through the at­ tor­ ney gen­ eral...