NSA Spying on Americans Is Illegal


hat if it emerged that the
President of the United States was flagrantly violating the Constitution
and a law passed by the Congress to protect Americans against abuses
by a super-secret spy agency? What if, instead of apologizing, he
said, in essence, “I have the power to do that because I say
I can.” That frightening scenario is exactly what we are witnessing
in the case of the warrantless National Security Agency (NSA) spying
ordered by President Bush that was reported December 16, 2005 by

New York Times



According to the


, Bush signed a presidential order
in 2002 allowing the NSA  to monitor without a warrant the
international (and sometimes domestic) telephone calls and e-mail
messages of hundreds or thousands of citizens and legal residents
inside the United States. The program eventually came to include
some purely internal controls—but no requirement that warrants
be obtained from the Foreign Intelligence Surveillance Court as
the 4th Amendment to the Constitution and the foreign intelligence
surveillance laws require.


In other words, no independent review or judicial oversight.

That kind of surveillance is illegal. Period.


The day after this shocking abuse of power became public, President
Bush admitted that he had authorized it, but argued that he had
the authority to do so. However, the law governing government eavesdropping
on U.S. citizens is well-established and crystal clear. President
Bush’s claim that he is not bound by that law is simply astounding. 

Flouting A Long History 


he tensions between the need for intelligence
agencies to protect the nation and the danger that they would become
a domestic spy agency have been explicitly and repeatedly fought
out in U.S. history. The National Security Act of 1947 contained
a specific ban on intelligence operatives from operating domestically.
In the 1970s the U.S. learned about the extensive domestic political
spying carried out by the FBI, the military, the CIA, and the NSA,
and Congress passed new laws to prevent a repeat of those abuses. 

In a December 17 radio address Bush asserted that the spying was
“fully consistent with my constitutional responsibilities and
authorities.” But his constitutional duty is to “take
care that the laws be faithfully executed” (Article II, Section
3); the law clearly establishes well-defined procedures for eavesdropping
on U.S. persons and the fact is, Bush ordered that those procedures
not be followed.


Government eavesdropping on Americans is an extremely serious matter;
the ability to intrude on the private realm is a tremendous power
that can be used to monitor, embarrass, control, disgrace, or ruin
an individual. Because it is so invasive, the technology of wiretapping
has been subject to carefully crafted statutory controls almost
since it was invented. Ignoring those controls and wiretapping without
a court order is a crime that carries a significant prison sentence
(in fact, criminal violations of the wiretap statute were among
the articles of impeachment drafted against President Nixon shortly
before his resignation).


Clearly Illegal 


nfortunately, although the law in this matter
is clear, many Americans, faced with President Bush’s assertions
of “inherent” authority for these actions, will not know
what to believe. There are only five points they need to understand:


  • Point #1: Electronic surveillance by the government is strictly
    limited by the Constitution and federal law


    The law on
    surveillance begins with the Fourth Amendment to the Constitution,
    which states clearly that Americans’ privacy may not be invaded
    without a warrant based on probable cause.


The U.S. Supreme Court (

U.S. v. Katz

389 US 347) has made
it clear that this core privacy protection does cover government
eavesdropping. As a result, all electronic surveillance by the government
in the United States is illegal, unless it falls under one of a
small number of precise exceptions specifically carved out in the
laws. (United States Code Title 50, Chapter 36, Subchapter 1, Section
1809, Criminal sanction:

(a) Prohibited activities: A person
is guilty of an offense if he/she intentionally engages in electronic
surveillance under color of law except as authorized by statute




other words, the NSA can only spy where it is explicitly granted
permission to do so by statute. Citizens concerned about surveillance
do not have to answer the question, “What law restricts the
NSA’s spying?” Rather, the government is required to supply
an answer to the question “What law permits the NSA to spy?”


  • Point #2: There are only three laws that permit the government
    to spy 

Congress has explicitly stated that three laws are the exclusive
means by which domestic electronic surveillance can be carried out
(18 USC, Section 2511(2)(f)). They are:

Title III and the
Electronic Communications Privacy Act, which make up the statutes
that govern criminal wiretaps in the United States; and the Foreign
Intelligence Surveillance Act (FISA), which is the law that governs
eavesdropping on agents of “foreign powers” within the
United States, including suspected foreign terrorists. 

  • Point #3: The Bush-NSA spying was not authorized by any of these

Title III and ECPA govern domestic criminal wiretaps and are not
relevant to the NSA’s spying. FISA is the law under which the
NSA should have operated. It authorizes the government to conduct
surveillance in certain situations without meeting all of the requirements
of the Fourth Amendment that apply under criminal law, but requires
that an independent Foreign Intelligence Surveillance Court oversee
that surveillance to make sure that Americans who have no ties to
foreign terrorist organizations or other “foreign powers”
are not spied upon.


FISA was significantly loosened by the PATRIOT Act (which, for example,
allowed it to be used for some criminal investigations). Parts of
it stand in clear violation of the Fourth Amendment. However, even
the post-PATRIOT Act version of FISA does not authorize the president
to conduct warrantless eavesdropping on U.S. citizens or permanent
legal residents in the U.S. without an order from the FISA Court.
Yet it is that very court order requirement—imposed to protect
innocent Americans—that the president ignores.


One member of the FISA Court, Judge James Roberston, has apparently
resigned from the court in protest of President Bush’s secret
authorization of this program. The

New York Times

that the court’s chief judge complained about the program when
she was (belatedly) notified of it and refused to allow information
gathered under the program to be used as the basis for FISA wiretap


  • Point #4: Congress’s post-9/11 use-of-force resolution does
    not legitimize the Bush/NSA spying 

Congress after 9/11 approved the Authorization to Use Military Force
against those responsible for the attacks in order to authorize
the president to conduct foreign military operations such as the
invasion of Afghanistan.


But that resolution contains no language changing, overriding, or
repealing any laws passed by Congress. Congress does not repeal
legislation through hints and innuendos, and the Authorization to
Use Military Force does not authorize the president to violate the
law against surveillance without a warrant any more than it authorizes
him to carry out an armed robbery or seize control of Citibank in
order to pay for operations against terrorists.  

When President Truman tried to seize control of steel mills that
were gripped by strikes in 1952, the Supreme Court decisively rejected
his authority to make such a seizure, even in the face of arguments
that the strike would interfere with the supply of weapons and ammunition
to U.S. troops in Korea. 

Co. V. Sawyer

(343 U.S. 579, 1952)


order cannot properly be sustained as an exercise of the President’s
military power as Commander in Chief of the Armed Forces….

can the seizure order be sustained because of the several constitutional
provisions that grant executive power to the President….” 

The Supreme Court also rejected similar assertions of inherent executive
power by Richard Nixon.

FISA contains explicit language describing
the president’s powers “during time of war” and provides
that “the President, through the Attorney General, may authorize
electronic surveillance without a court order under this title to
acquire foreign intelligence information for a period not to exceed
fifteen days following a declaration of war by the Congress.”
So even if we accept the argument that the use-of-force resolution
places us on a war footing, warrantless surveillance would have
been legal for only 15 days after the resolution was passed on September
18, 2001

  • Point #5: The need for quick action does not justify an end-run
    around the courts 

FISA allows wiretapping without a court order in an emergency; the
court must be notified within 72 hours. The government is aware
of this emergency power and has used it repeatedly. In addition,
the Foreign Intelligence court is physically located in the Justice
Department building and the FISA law requires that at least two
FISA judges reside in the Washington, DC area, for precisely the
reason that rapid action is sometimes needed. 

Given the extensive (indeed, excessive) surveillance powers that
the government already possesses, the Administration’s blatantly
illegal use of warrantless surveillance raises an important question:
why? One possibility, raised by the

New York Times

in a December
24, 2005 story (“Spy Agency Mined Vast Data Trove, Officials
Report”), is that the NSA is relying on assistance from several
unnamed telecommunications companies to “trace and analyze
large volumes of communications” and is “much larger than
the White House has acknowledged.”


This, as security expert Bruce Schneier has noted, suggests the
Bush administration has developed “a whole new surveillance
paradigm”—exploiting the NSA’s well known capabilities
to spy on individuals not one at a time, as FISA permits, but to
run communications en masse through computers in the search for
“suspicious" individuals or patterns. This “new paradigm”
may well be connected to the NSA program sometimes known as Echelon,
which carries out that kind of mass collection of communications
(www.nsawatch.org). This “wholesale” surveillance, as
Schneier calls it, would constitute an illegal invasion of privacy
on a scale that has never before been seen (Schneier, “NSA
and Bush’s Illegal Eavesdropping,” Salon.com).


According to the


, several telecommunications companies
provided the NSA with direct access to streams of communications
over their networks. The NSA appears to have direct access to a
large volume of Americans’ communications—with not only
the assent, but also the cooperation of the companies handling those


It is not clear from the report what companies are involved or how
or what the NSA can access. But this revelation raises questions
about the legal authority of the NSA to request and receive this
data and also whether these companies may have violated federal
laws protecting these communications or their own privacy polices
(which may, for example, provide that they will only turn over their
customers’ data with their consent or in response to a proper

Regardless of the scale of the spying, we are facing a historic
moment: the president of the United States has claimed sweeping
wartime powers to brush aside the clear limits on his power set
by our Constitution and laws—a chilling assertion of presidential
power that has not been seen since Richard Nixon. 


more, see www.aclu.org