Wiretap

The University of Minnesota Law School’s alumni magazine has a downloadable PDF with an exchange among its law professors about the legality of the NSA wiretapping without a warrant.

Then, there’s a discussion about the exchange on the excellent legal blog, The Volokh Conspiracy.

One of the professors argues that it’s legal. The other two that it isn’t. To me, it’s a massacre: The nays have it.

The biggest question in my mind has always been “why” the NSA needs to skirt FISA. Timeliness isn’t a reason; FISA’s well-known compliance isn’t a reason. What’s the reason? Why can’t they give a single, decent explanation for why they don’t bother getting a warrant?

In the U. of Minnesota exchange, this lack of a reason becomes a legal issue. Professor Carpenter points out that when Congress granted the President broad powers to fight against the 9-11 murderers, they specifically limited him to “necessary and appropriate force.”

Since there’s no answer to the “why,” then wiretapping without a warrant should be presumed to be unnecessary.

The next major point is that FISA has built-in rules for war-time use. That is, even if Congress did declare war (which is open for debate), they didn’t repeal the laws they had already passed about wiretapping during wartime. When at war, FISA allows up to 15 days to apply for a warrant after wiretapping. Even this was violated.

There’s more, of course, but you’ll have to read the 7 pages yourself.

The guy arguing that it’s legal more or less tosses out any challenge by arguing that 1) Congress has declared war, and 2) in a time of war, the President has power to do what he wants as Commander in Chief, and “no statute of Congress can limit it.”

He has to grant this extraordinary, unprecedented, and unconstitutional power to the president because the law would otherwise be against him. He more or less says that the Executive branch CANNOT violate FISA, because FISA doesn’t apply in time of war.

As one of his interlocutors says, the Constitution simply has no provision that gives unlimited power to the president in time of war. There are wartime provisions that give Congress more powers, but not the president: “There is no general ‘emergency clause’ or ‘necessity clause’ holding the usual rules automatically in abeyance, and certainly none that give the president such power.”