Peter Swire Legal FAQs on NSA Wiretaps
"This document is the introduction and executive summary for Legal FAQs (Frequently Asked Questions) about the National Security Agency wiretap program. This document is current as of January 30, but may be updated.
Read the full set of FAQs here
Summary of Legal Issues:
Based on the facts available to date, the wiretap program appears to be clearly illegal.
1. Wiretaps by federal officials are generally prohibited, unless there is a particular legal basis such as a court order. The “exclusive basis” for wiretaps is either Title III for criminal investigations or the Foreign Intelligence Surveillance Act (FISA) for foreign intelligence investigations. It is a crime to conduct wiretaps unless there is a “statutory basis” for doing so.
2. The Administration has given two, and only two, reasons why it says the criminal law does not apply to the program.
3. The first is the Authorization of Use of Military Force (AUMF), passed on September 13, 2001. For multiple reasons, the AUMF does not provide a legal basis for the NSA wiretap program.
4. The second is that the President has inherent authority that does not derive from statutes. The President indeed has important inherent authority as leader of the Executive Branch and Commander-in-Chief, but the current Administration has taken that position to unprecedented lengths. We have a system of checks and balances. As the Supreme Court has made clear, the President’s power is at its “lowest ebb” when his actions directly contradict a lawful statute, as they do here.
5. In addition, as we learn more facts about the program, there may well be a clear case that government actions have violated the Fourth Amendment rules against unreasonable searches and seizures.
6. In short, it is a crime to conduct wiretaps in the United States, of U.S. citizens, unless there is a statutory basis for doing so. There was no statutory basis here."