DoJ's Justification of the NSA Domestic Spying

The Justice Department has released its analysis of the NSA spying program (pdf), claiming that the president has, under the Authorization to Use Military Force passed by Congress in the wake of 9/11, sufficient inherent authority to order domestic wiretaps without warrants, and that the NSA program did not violate either the Foreign Intelligence Surveillance Act of 1978 or the 4th Amendment (full disclosure: I haven't yet read the actual text of DoJ's report; I'm basing this post on the analysis in today's New York Times article about the report).

As I wrote on Opinio Juris back when this story first broke, I believe that an AUMF differs from a declaration of war in one manner that is critical to understanding executive power in cases like this: the ceding of domestic legislative activity to the president by Congress. Where the formal declarations of war for WWI and WWII specifically pledged "all of the resources of the country" to the president in pursuit of the war, the AUMF does not use such language, only giving the president authorization to use "all necessary and appropriate force against those national, organizations, or persons he determines planned, authorized, or aided the terrorist attacks that occurred on September 11, 2001."

As Julian Ku points out over at Opinio Juris, this whole argument really hinges on whether or not "warrantless wiretapping of foreign-domestic phone calls is a plausible 'fundamental incident of war powers.'" But, in this case, the president does not and did not have "war powers." There was no declaration of war. The AUMF does not contain the critical language that indicates congressional intention to give the president to ability to take action in the domestic arena that would normally require a legislative act. This is not merely a semantic distinction. Giving the president the ability to act without legislative authorization is a huge step that cannot be taken lightly. In a war with no end in sight and in which there are few yardsticks with which to judge progress, giving the president unchecked and indefinite authority to eavesdrop or imprison is unacceptable. This is why we have checks and balances (or as my doctoral advisor Bruce Jentleson likes to say: separate branches sharing powers) on the use of power.

I am no fan of limiting the power of the president to use force without formal authorization from Congress. As I wrote in the Detroit News on 8/28/02, the Constitution, Supreme Court decisions, and congressional precedent clearly give the president wide latitude in deploying troops and using force without any legislative check. But where that power stops is on the homefront, where and when a president may need to appropriate legislative powers, as in the steel seizure case or this NSA surveillance operation. It may have been necessary and critical for the president to conduct such surveillance. But in this country the process is more important than the ends. We make sacrifices all the time in which our principles to civil liberties and individual freedoms trump desirable policy outcomes. Unless we are facing a truly existential threat to the nation, which I do not believe, in the absence of a nuclear attack, the US faces from al-Qaeda, policy must flow from process. This is why President Truman was not allowed to seize steel mills and why President Bush should not be allowed to conduct domestic spying without explicit Congressional approval. It is both dangerous and disingenuous to justify such legal violations for political expediency.