Domestic Spying

The Department of Justice this week released a memo which describes the legal justification for the domestic surveillance activities authorized by the President.

The memo makes a few assertions and findings of law. I am not sure I agree with them, but there is an argument that they are correct.

First, the memo briefly discusses FISA, the Foreign Intelligence Service Act. It does not make the assertion that these activities fall under FISA, which is probably because they do not.

FISA authorizes (in Section 1802(a)) electronic surveillance without a court order, but only if the individuals surveilled are agents of foreign governments. Operatives of non-governmental organizations (like al Quaeda) are not subject to warrantless, non-court ordered surveillance. Additionally, for any surveillance to occur under 1802(a), there must be no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party. "United States person" is defined as a citizen of the United States, an alien lawfully admitted for permanent residence ..., an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power... . Note that it says that a U.S. person can't be a party to any of these conversations. This is not solely a limit on the target of the investigation. There must be a substantial likelihood that no intercept will involve any U.S. citizens or other U.S. persons. If a terrorist regularly orders out for pizza, this standard can't be met.

The memo goes on to cite the Prize Cases in support of the argument that the President has the authority to repen invasions and attacks by force. This case is very interesting because, although it is from the Civil War era, it deals with a few issues very close to home in the "War on Terror". Of particular interest is the Court's discussion of the nature of war:

"The parties belligerent in a public war are independent nations. But it is not necessary, to constitute war, that both parties be acknowleges asindependent nations or sovereign states. A war may exist where one of the belligerents claims sovereign rights as against the other."

This language was, of course, intended to show that the war between the North and the South was a war, regardless of the fact that one side asserted that it was between citizens of the same country. However, I think it is important to note that there still was an assertion that othe other side was and was acting as an independent nation. Al Quaeda does not operate as such. Even moreso, the nebulous concept of "terror" does not operate as such. Could members of the ALF be considered a sovereign nation when they blow up a biology building? I don't think so.

Al Quaeda operatives who are U.S. persons are more appropriately considered a "fifth collumn" within the U.S. than operatives of a sovereign nation. I do not think the Prize cases change this, in spite of the fact that they also dealt with "war" being waged on U.S. citizens by U.S. citizens. In fact, the case discusses this, by saying "...a civil war always begins by insurrection against the lawful authority of the government....When the party in rebellion occupy and hold in a hostile manner a certain portion of territory, have declared their independence, have cast off their allegiance, have organized armies, have commenced hostilities against their former sovereign, the world acknowledges them as belliigerents, and the contest a war." This is not the situation with regard to al Quaeda operatives within the U.S. It would be much easier if it were. If al Quaeda were to take over, say, Texas Stadium (home of the rat bastard C*wboys), we could bug it and bomb it into oblivion without a second thought. However, so long as they are acting in secret, this cannot be considered a "war" as described by the Prize Cases.

That's all sidebar, however, as the memo does not make the argument discussed above. Instead, it uses the Prize Cases to support the main argument that Congress' September 18th authorization for the use of force authorizes this activity. Note that this authorization deals with the use of military force and the Armed Forces. The NSA was, until 1952, under the direct control of the armed forces. However, in 1952, uts role was expanded, and it became an agency under the DOD separate from the armed forces. The chairman of the NSA is always an active military officer, but the NSA itself is not under military command, and is not considered an "armed force".

The memo attempts to counter this argument (without explicitly mentioning it) by likening the surveillance power to the detention power uphed in Hamdi v. Rumsfeld. Note that Hamdi didn't really discuss this issue. The memo is describing dicta in several of the opinions of a case (soem of which reached conflicting results). Also note that Hamdi was in a ver different position than the individuals who are being surveilled. Hamdi, although a U.S. citizen, was captured in foreign territory while actively egaged in waging war against U.S. forces. Even assuming that the discussions in this case are binding or persuasive, Hamdi's actions clearly met the standard of "war" described in the Prize Cases. U.S. citizens with al Quaeda sympathies, but who have not yet declared those sympathies in an open and gostile manner and are less clear.


The discussion of In re: Sealed Case has similar issues. There's a passage on page 48 (beginning "The Truong court..." that explicitly says that the President can conduct warrantless searches to obtain "foreign intelligence information".

...However, this court says that it "assumes" that that argument is true (apparently because the issue was irrelevant to the issue being addressed by the court...the Constitutionality of FISA), then goes on to rip apart the Truong case on other grounds.

Even if that dicta is valid, I would question whether the ability to get foreign intelligence information could justify domestic searches and seizures. I just don't know.