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Was NSA's Indiscriminate Wiretapping of Americans Overseas Illegal?

By Jack M. Balkin

ABC News reports that the NSA has for years been engaged in what appears to be a fairly indiscriminate program of wiretapping hundreds of U.S. citizens' satellite communications to the United States from places overseas. This was done without any evidence that the targeted Americans had anything to do with terrorism, let alone al Qaeda and the Taliban. And one of the sources relates that he and others in his section of NSA "routinely shared salacious or tantalizing phone calls that had been intercepted."

I'm not sure this is really breaking news -- One of ABC's principal sources has been saying this for almost a year now.

More importantly, was this legal? An NSA spokesman says that "the law was followed assiduously."

Was it?

Two misimpressions to get out of the way at the outset:

First, this probably didn't violate FISA. When it enacted FISA in 1978, Congress decided that the statute would not cover surveillance that occurred abroad, especially via satellite -- even if that surveillance targeted U.S. persons overseas. It's not that Congress thought the NSA should be completely free to engage in overseas surveillance; indeed, the House Intelligence Committee specifically noted that the legislature's decision not to regulate surveillance abroad "should not be viewed as congressional authorization of such activities as they affect the privacy interests of Americans. The committee merely recognizes at this point that such overseas surveillance activities are not covered by this bill." The topic was thought to be more complex than domestic surveillance, and touching on more classified NSA programs, and so Congress committed to addressing it distinctly in future legislation -- something it did not get around to doing for 30 years. (The recent FISA amendments are the first statutory regulation of surveillance of U.S. persons overseas.)

Congress thought that it could put off legislation in 1978 because it could rely on regulatory restrictions already in place -- the Committee noted "with approval that electronic surveillance of American citizens while abroad has been limited in part both by the President's Executive Order applicable to the U.S. intelligence community and by procedures approved by the Attorney General." More on that below.

Second, because FISA didn't cover this surveillance, it probably was not part of the NSA's so-called "Terrorist Surveillance Program," as described by Attorney General Gonzales. Indeed, it appears to have been not nearly as tailored as even that very indiscriminate program.

So what law did regulate such surveillance? Two things:

1. Executive Order 12333. Executive Order 12333 is a follow-on Executive Order that replaced the one that was in place in 1978 (E.O. 12036) -- the E.O. that gave Congress assurance that surveillance of Americans overseas would be sufficiently regulated. Section 2.5 of E.O. 12333 provides:

The Attorney General hereby is delegated the power to approve the use for intelligence purposes, within the United States or against a United States person abroad, of any technique for which a warrant would be required if undertaken for law enforcement purposes, provided that such techniques shall not be undertaken unless the Attorney General has determined in each case that there is probable cause to believe that the technique is directed against a foreign power or an agent of a foreign power.

(The AG has subsequently authorized NSA to engage in such surveillance before obtaining the AG's sign-off in certain limited and time-bounded situations.)

In addition, United States Signals Intelligence Directive 18 imposes "minimization" requirements that almost certainly would prohibit the sort of uses of U.S. persons' communications that are described in the ABC story.

Therefore, if this story is true, it appears the NSA violated E.O. 12333 and USSID-18 -- assuming, of course, that President Bush did not secretly authorize the NSA to disregard such directives, something that Senator Sheldon Whitehouse has been suggesting. As I've explained earlier (see Point 3 here), that should be something that angers Congress, if it is true. This is probably the real, big news behind the ABC news story: If the President secretly undid E.O. 12333, this is precisely the sort of abuse that one would expect.

2. The Fourth Amendment. The leading -- indeed, virtually the only -- case on the question indicates that the E.O. 12333 requirement that the U.S.-person target of such overseas surveillance be an agent of a foreign power, is also a Fourth Amendment minimum. That court held that such surveillance of U.S. persons overseas can be done without a warrant only (i) when authorized by the President or the Attorney General; (ii) when conducted primarily for foreign intelligence purposes; and (iii) when targeted at foreign powers or their agents, including American citizens believed to be agents of a foreign power. See U.S. v. bin Laden, 126 F. Supp. 2d 264, 277 (S.D.N.Y. 2000).

Assuming that some or all of that holding is correct, then the NSA activity described by ABC News would appear to violate the Fourth Amendment, too, even if it did not violate FISA.

Full post as published by Balkinization on October 10, 2008 (boomark / email).