The editors of the L.A. Times continue to simply assume without analysis that President Bush’s surveillance program was unconstitutional. The most thorough analysis I have seen of the program’s legality was done by Orin Kerr, in a post I linked yesterday. Kerr concluded — very tentatively — that the program is probably constitutional, but probably violates FISA. Isn’t that bad enough? Not for the L.A. Times editors, who insist in this morning’s editorial that the program violates the Constitution:
ONE OF THE PERKS OF being commander in chief is that you get to edit the Constitution, even the Bill of Rights, from time to time. That is in essence the legal justification offered by the Bush administration for its authorization of a secret program to wiretap, without any court order, international communications of individuals within the United States suspected of ties to terrorist groups.
Let’s face it: the editors haven’t done a constitutional analysis of the surveillance program. That’s okay; I can read minds, and I could tell what they were thinking when they wrote that passage: It just doesn’t have the same snap to say Bush violated a statute, so let’s say he violated the Constitution. Besides, it really sounds unconstitutional, doesn’t it?
More on the constitutionality of the program in the extended entry.
The editors write:
“The fact that we’re discussing this program is helping the enemy,” Bush testily said at his Monday news conference. He then made much of the fact that the monitoring program, which bypasses the Foreign Intelligence Surveillance Act’s requirement that investigators seek secret court warrants in national security cases, only applies to international communications, where one caller or e-mail correspondent is out of the country.
“So in other words,” Bush explained, “this is not a — if you’re calling from Houston to L.A., that call is not monitored. And if there was ever any need to monitor, there would be a process to do that.”
This distinction between international and domestic calls is perplexing. Americans in their own country do not waive their 4th Amendment right to privacy when they dial 011.
Kerr seems less perplexed by the distinction than the editors. He says:
As I understand it, all of the monitoring involved in the NSA program involved international calls (and international e-mails). That is, the NSA was intercepting communications in the U.S., but only communications going outside the U.S. or coming from abroad. I’m not aware of any cases applying the border search exception to raw data, as compared to the search of a physical device that stores data, so this is untested ground. At the same time, I don’t know of a rationale in the caselaw for treating data differently than physical storage devices. The case law on the border search exception is phrased in pretty broad language, so it seems at least plausible that a border search exception could apply to monitoring at an ISP or telephone provider as the “functional equivalent of the border,” much like airports are the functional equivalent of the border in the case of international airline travel. [UPDATE: A number of people have contacted me or left comments expressing skepticism about this argument. In response, let me point out the most persuasive case on point: United States v. Ramsey, holding that the border search exception applies to all international postal mail, permitting all international postal mail to be searched. Again, this isn't a slam dunk, but I think a plausible argument -- and with dicta that seems to say that mode of transportation is not relevant.]
Interestingly, Kerr is skeptical of the claim that the Authorization to Use Military Force authorizes the surveillance program — yet the L.A. Times today prints a news article that says (deep down in the article, of course) that many legal experts have bought into that claim:
Bush and Gonzales also said Congress had authorized such extraordinary measures in the wake of the Sept. 11 attacks. The “Authorization for Use of Military Force” adopted by Congress said the president could “use all necessary and appropriate force” to capture those who planned the attacks and “to prevent any future acts of international terrorism against the United States.” Several legal experts said this was a stronger justification for Bush’s action.
“I think the authorization of use of military force is probably adequate as an authorization for surveillance,” said Cass Sunstein, a University of Chicago law professor.
If Cass Sunstein says it, it must be true!