What do we know about the illegal phone taps?
The Times had evidence that the Bush administration was listening to phone calls and reading emails sent by American citizens and resident aliens (green card holders) with foreign endpoints. They sat on the story because the Bush administration claimed that revealing the existence of the program could expose national security secrets. The administration doesn't deny the program's existence.
We know that the national security claim is bogus because they had the authority to tap the phones and read the emails of people with ties to al Qaeda, they'd just have to get a warrant within 72 hours after the tap starts. That's 50 USC 1805 (f), for you keeping score at home. DefenseTech suggests that the process by which the taps are gathered is what the administration may have been worried about releasing, and the Times did not publish that information.
We know that people who match the basic description we have of the targets are subject to FISA warrants, since they are engaged in or linked to international terrorism which (50 USC 1801 (c)):
(1) involve[s] violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or any State;Al Qaeda falls within that category, and a foreign power is (50 USC 1801 (a)): "a group engaged in international terrorism or activities in preparation therefor." Agents of a foreign power are subject to warrants under FISA (the Foreign Intelligence Surveillance Act). Therefore, agents of al Qaeda can be tapped under FISA. QED.
(2) appear to be intended—
(A) to intimidate or coerce a civilian population;
(B) to influence the policy of a government by intimidation or coercion; or
(C) to affect the conduct of a government by assassination or kidnapping; and
(3) occur totally outside the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to coerce or intimidate, or the locale in which their perpetrators operate or seek asylum.
There are two circumstances FISA permits for taps without a warrant. One involves the 15 day period following a declaration of war by Congress (50 USC 1811), and no such declaration exists, besides which, the program has been active for 3 years, which is longer than 15 days.
The other allows warrantless taps lasting up to one year (not three years) if, as it says in 50 USC 1802 (a):
(A) the electronic surveillance is solely directed at—Part A is immaterial, (it applies to communication between an embassy and the homeland and circumstances like that).
(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title; or
(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (a)(1), (2), or (3) of this title;
(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and
(C) the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 1801 (h) of this title; and
if the Attorney General reports such minimization procedures and any changes thereto to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence at least thirty days prior to their effective date, unless the Attorney General determines immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their becoming effective immediately.
Part B specifically forbids warrantless taps against American citizens or resident aliens. Part C requires that efforts be made (50 USC 1801 (h)): "to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information." Part B rules out such taps of "US persons," and Part C restricts the dissemination of information about them.
There are also provisions for taps of phones under criminal law, but those require warrants, too.
So there's no law which permits the president to order a phone tap against an American citizen or resident alien without a warrant. This is fact.
Don't trust me. Ask Senator Lindsay Graham and he'll say: "I don’t know of any legal basis to go around that [the FISA courts]."
Or ask Senator Russ Feingold:
There's two ways you can do this kind of wiretapping under our law. One is through the criminal code, Title III; the other is through the Foreign Intelligence Surveillance Act. That's it. That's the only way you can do it. You can't make up a law and deriving it from the Afghanistan resolution. … The president has, I think, made up a law that we never passed.The law says no, also (18 USC 2511 (f)).
Did the president order a phone tap against an American citizen or resident alien without a warrant?
The Times says yes:
Mr. Bush's executive order allowing some warrantless eavesdropping on those inside the United States - including American citizens, permanent legal residents, tourists and other foreigners - is based on classified legal opinions that assert that the president has broad powers to order such searches, derived in part from the September 2001 Congressional resolution authorizing him to wage war on Al Qaeda and other terrorist groups, according to the officials familiar with the N.S.A. operation.Bush says yes, too:
I authorized the National Security Agency …,to intercept the international communications of people with known links to al Qaeda and related terrorist organizations.No warrants, no legal review by a competent authority, and no denial that American citizens and resident aliens were spied on.
Before we intercept these communications, the government must have information that establishes a clear link to these terrorist networks. … Yesterday, the existence of this secret program was revealed in media reports after being improperly provided to news organizations.
I have reauthorized this program more than 30 times since the September the 11th attacks, and I intend to do so for as long as our nation faces a continuing threat from al Qaeda and related groups.
In his press conference today, the President claimed authority as Commander in Chief (which is irrelevant, unless he would "render the Military independent of and superior to the Civil power"). He also cited the authorization to go to war in Afghanistan.
Georgia10 at DailyKos points out the flaws in that argument. The "whereas"es are legally irrelevant. The only legally binding text is the "Resolved" part. That says:
IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."In general," not in all things. He's still bound by law, and the law says that you can't tap an American citizen's phone without a warrant. Warrantless taps not "necessary and appropriate," even if they could be considered a use of force. They are unnecessary and inappropriate for the reasons above, and because an act of Congress can't overrule the 4th amendment. That's what the Supreme Court says (407 U.S. 297):
The freedoms of the Fourth Amendment cannot properly be guaranteed if domestic security surveillances are conducted solely within the discretion of the Executive Branch without the detached judgment of a neutral magistrate.Other facts at issue. No one is arguing about whether you can tap an American citizen's phone. You can, and everyone knows it. The terrorists either assume that their phones are tapped and their email is read, or they are too stupid to be any danger. If there's probable cause that a person is tied to terrorism, getting a FISA warrant isn't hard. FISA judges will tell agents if they need to get more evidence and come back, so the number of rejected warrants is tiny, perhaps 4 rejected warrants in the 27 year history of the court.
Official surveillance, whether its purpose be criminal investigation or ongoing intelligence gathering, risks infringement of constitutionally protected privacy of speech. Security surveillances are especially sensitive because of the inherent vagueness of the domestic security concept, the necessarily broad and continuing nature of intelligence gathering, and the temptation to utilize such surveillances to oversee political dissent. We recognize, as we have before, the constitutional basis of the President's domestic security role, but we think it must be exercised in a manner compatible with the Fourth Amendment.
Given that fact, and that they can start tapping before getting the warrant in an emergency, there's no need to break the law. But that's what they did.
I have yet to see anyone present a coherent legal, ethical or practical defense of this program. All I've seen is arguments that amount to Bush rocks, Clinton sucked. The fact that people didn't like Johnson didn't excuse Watergate, and Clinton's filandering doesn't justify Bush's reckless disregard for the law.
N.B. Before you jump on the "too stupid to be dangerous" comment, it's well known that since 1998, bin Laden hasn't used his satellite phone because it's too easy to track and listen in on. Talking in code, using throw-away cell phones and other similar practices are reputed to be common among the al Qaeda operatives.
James Bamford writes in A Pretext for War:
Despite the fact that the NSA was able to monitor bin Laden's satellite phone, the agency was never able to pick up any clues to the [embassy bombing] plot. Yet the phone was used by bin Laden and his top lieutenants to help orchestrate the bombings.Later: "[bin Laden] certainly knew the phone could be monitored."
The guys we can catch with illegal taps are the ones we'd catch with warranted taps. The ones we can't catch with warranted taps won't be caught by warrantless taps. I know that because the tap is the same either way. Taps on bin Laden's phone are (obviously) legal.
“Where Do Ya Draw the Line” by Dead Kennedys from the album Bedtime for Democracy (1987, 2:38).