The legality of the National Security Agency's bulk data surveillance programs.

• Author: Yoo, John C.

INTRODUCTION

Controversy has arisen again over the federal government's electronic surveillance efforts to gather intelligence on foreign terrorist groups. Recent disclosures, both authorized and illicit, have described two secret National Security Agency (NSA) programs. The first collects telephone "metadata" such as calling records--but not the content of phone calls--both inside and outside the United States. A second NSA program intercepts the e-mails of non-U.S. persons outside the United States. (1) Despite the claims of critics, these programs do not violate the Foreign Intelligence Surveillance Act (FISA), as recently amended by Congress, or the Fourth Amendment to the Constitution. Concerns about the proper balance between these surveillance programs and individual privacy may be appropriate, but these programs properly fall within the province of Congress and the President to set future national security policy.

Legal questions over surveillance arise from the unconventional nature of the war against al Qaeda. On September 11, 2001, the al Qaeda terrorist network launched attacks on New York City and Washington, D.C. from territory in Afghanistan substantially under its control. Under normal circumstances, American military and intelligence officers, acting pursuant to the President's Commander-in-Chief authority, would carry out electronic surveillance against a foreign enemy in wartime. Al Qaeda, however, operates through teams of covert agents who disguise their communications and movements within normal peaceful activities. American law subjects domestic criminal enterprises, which operate in similar ways, to the more elaborate system of search warrants, individualized suspicion, and judicial supervision required by the Fourth Amendment. Controversy over the legality of the NSA's programs basically centers on whether surveillance of al Qaeda should follow the wartime foreign intelligence model or the criminal justice approach.

This paper will address the legality of the NSA's programs in this light. Part I will describe the surveillance efforts against al Qaeda within a broader historical and legal context. Part II will argue that the programs, as described publicly by authoritative sources, appear to meet statutory requirements. Part III will address whether the NS A programs are constitutional along two dimensions. First, it will argue that even if some aspect of the NSA programs does not fall within Congress's authorization for foreign intelligence and counterterrorism surveillance, it would most likely rest within the President's Commander-in-Chief authority over the management of war. Second, even if the federal government has the internal authority to conduct surveillance, the Bill of Rights, through the Fourth Amendment, may still prohibit its application to citizens or non-citizens present in the territorial United States. This Article will argue, however, that the NSA programs do not violate the Fourth Amendment as currently interpreted by the federal courts.

1. HISTORICAL AND LEGAL CONTEXT

   On September 11, 2001, the al Qaeda network launched four coordinated attacks aimed at critical buildings in the heart of the nation's capital and financial system. Nineteen terrorists hijacked four civilian passenger airliners and crashed them into the World Trade Center towers in New York City and the Pentagon outside Washington, D.C. Another flight, apparently destined for the Capitol or the White House, crashed in Pennsylvania after passengers fought to seize back control of the plane. The attacks killed about 3,000 people, with many more injured, caused billions of dollars in physical damage, and caused further economic loss through disruptions in transportation, communications, and the financial markets. If a nationstate, such as the Soviet Union during the Cold War, had carried out identical strikes, there would be little doubt that the United States would be at war.

   These attacks, however, differed significantly from normal attacks in conventional wars. The enemy's soldiers did not wear uniforms, did not carry arms openly, and did not operate as part of regular military units. Mohammed Atta and his eighteen agents disguised themselves as civilians for travel and training, used civilian aircraft as weapons, and launched the attacks by surprise from within U.S. borders. Al Qaeda itself cannot lay claim to the status of a nation. In 2001, it exercised no territorial sovereignty, had no population, and fielded no regular armed forces. Rather, al Qaeda takes the form of a decentralized network of extremists who wish to engineer fundamentalist political and social change in Islamic countries. Its terrorist cells operate both abroad and within the United States.

   It is al Qaeda's nature as a decentralized network that stresses the normal division between military and intelligence surveillance and the warrant-based approach of the criminal justice system. The Constitution vests the President with the executive power and designates him Commander-in-Chief. (2) The Framers understood these powers to invest the executive with the duty to protect the nation from foreign attack and the right to control the conduct of military hostilities. (3) To exercise those powers effectively, the President must have the ability to engage in electronic surveillance that gathers intelligence on the enemy. Regular military intelligence need not follow standards of probable cause for a warrant or reasonableness for a search, just as the use of force against the enemy does not have to comply with the Fourth Amendment. During war, military signals intelligence might throw out a broad net to capture all communications within a certain area or by an enemy nation. Unlike the criminal justice system, which seeks to detain criminals, protection of national security need not rest on particularized suspicion of a specific individual.

   This approach applies to national security activity that occurs within the United States as well as outside it. In 1972, the Supreme Court refused to subject surveillance for national security purposes to the Fourth Amendment warrant requirement. (4) But it has extended this protection to purely domestic terrorist groups, out of concern that the government might use its powers to suppress political liberties. (5) Lower courts, however, have found that when the government conducts a search of a foreign power or its agents, it need not meet the requirements that apply to criminal law enforcement. In a leading 1980 case, the Fourth Circuit held that "the needs of the executive are so compelling in the area of foreign intelligence, unlike the area of domestic security, that a uniform warrant requirement would ... unduly frustrate the President in carrying out his foreign affairs responsibilities." (6) A warrant requirement for national security searches would reduce the flexibility of the executive branch, which possesses "unparalleled expertise to make the decision whether to conduct foreign intelligence surveillance" and is "constitutionally designated as the pre-eminent authority in foreign affairs." (7) A warrant requirement would place national security decisions in the hands of the judiciary, which "is largely inexperienced in making the delicate and complex decisions that lie behind foreign intelligence surveillance." (8)

   Under this framework, Presidents conducted national security surveillance using their executive authority for decades. President Nixon's abuses, however, led Congress to enact the Foreign Intelligence Surveillance Act (FISA) in 1978. (9) FISA replaced presidentially-ordered monitoring of national security threats with a system similar to that used by law enforcement to conduct electronic surveillance of criminal suspects, but with important differences to protect classified information. FISA requires the government to show "probable cause" that a target is "an agent of a foreign power," which includes terrorist groups. (10) A special court of federal district judges, the Foreign Intelligence Surveillance Court (FISC), examines classified information in a closed, ex parte hearing before issuing the warrant. (11)

   FISA obviously strikes a compromise between the wartime and criminal approaches to information gathering. It establishes a system that bears strong resemblances to the criminal justice system, such as the requirement of an individual target, probable cause, and a warrant issued by a federal court. On the other hand, in a nod to the purposes of foreign intelligence surveillance, it does not require a showing of probable cause of criminal activity by the target, which the Fourth Amendment normally requires for a search warrant. (12) Instead, FISA only demands that the government show "probable cause" that the target is linked to a foreign power or terrorist group.

   Opponents of the NSA's bulk data collection programs argue that FISA cannot authorize bulk data collection because it was structured as a protection against invasive government searches. (13) This rationale holds that FISA's "general approach" requires a degree of individualized suspicion when conducting a search. (14) This "general approach" argument rests upon FISA's requirements that electronic information be linked to a specific target, known to be a foreign power or agent thereof, and that the government show probable cause that the target is a foreign power or agent thereof. (15) Furthermore, opponents argue that the FISC was specifically created to prevent the government from going too far in its searches, reinforcing FISA's general approach of protecting against invasive government surveillance. (16)

   As explained above, FISA does not reflect a general attitude against government surveillance; rather, it creates a balance between the criminal system's restrictions on government searches and the broader acceptance of information-gathering during wartime. Although FISA does lay out a probable cause...