“When the President does it, that means that it is not illegal.” So Richard Nixon infamously defended his approval of a plan to engage in warrantless wiretapping of Americans involved in the antiwar movement in the 1970s. For thirty years Nixon’s defense has stood as the apogee of presidential arrogance. But of course Nixon was proved wrong. The wiretapping plan was shelved when J. Edgar Hoover, of all people, objected to it. Nixon’s approval of it was listed in the articles of impeachment. Nixon learned the hard way that Presidents are not above the law.
George W. Bush appears not to have learned the lesson. His defense of the National Security Agency’s warrantless wiretapping of Americans resurrects the Nixon doctrine, with one modification. For Bush, “when the Commander in Chief does it, it is not illegal.” In a memo to Congress, the Administration argued that the Commander in Chief may not be restricted in the “means and methods of engaging the enemy,” and that Bush is thus free to wiretap Americans without court approval in the “war on terror” even if Congress has made it a crime. This assertion of uncheckable executive power is just one of five myths the Administration has propagated in a PR blitz designed to convince the public of a transparently unconvincing argument. As Congress readies for hearings on the subject, here’s a primer on the spying debate.
Myth 1: Following existing law would require the NSA to turn off a wiretap of an Al Qaeda member calling in to the United States.
Variations on this theme appear every time the Administration defends the NSA spying program. The suggestion is that the Foreign Intelligence Surveillance Act (FISA) would interfere with the President’s ability to monitor Al Qaeda members’ calls when it’s most important to do so. There’s only one problem: FISA would not require the tap to be turned off. First, FISA does not apply at all to wiretaps targeted at foreign nationals abroad. Its restrictions are triggered only when the surveillance is targeted at a citizen or permanent resident of the United States, or when the surveillance is obtained from a wiretap physically located within the United States. If the NSA is listening in on an Al Qaeda member’s phone in Pakistan, nothing in FISA requires it to stop listening if that person calls someone in the United States. Second, even when FISA is triggered, it does not require the wiretap to be turned off but merely to be approved by a judge, based on a showing of probable cause that the target is a member of a terrorist organization. Such judicial approval may be obtained after the wiretap is put in place, so long as it is approved within seventy-two hours.
Myth 2: Congress approved the NSA spying program when it authorized military force against Al Qaeda.
This argument cannot be squared with existing law, which provides that even when Congress declares war–a much more formal and grave step than an authorization to use force–the President has only fifteen days to conduct warrantless surveillance. The Al Qaeda authorization says not one word about wiretapping Americans. In addition, when asked why the Administration did not seek to amend FISA to permit this program, the Attorney General explained that he consulted with several members of Congress but that they told him it would be “difficult, if not impossible,” to obtain permission. You can’t argue that you didn’t ask because Congress would have said no, but that without asking, and without Congress saying so, it actually said yes.