Why the NSA Program is Constitutional

President Obama is apparently ready to recommend sweeping changes to the NSA’s surveillance programs in a speech to be given next week. As I’ve argued in earlier posts here and in a recent opinion piece at Fox News, this would be a mistake for his presidency and the office in general— presidents who seek to transfer important powers to other branches during wartime are inevitably failed presidents.  

Obama’s panicky decision to make changes demonstrates a misunderstanding of the legal issues. Major changes would be necessary only if the program were violating constitutional rights. Contrary to popular perception, however, the programs are constitutional. The argument runs a little too long for me to do justice to it at Ricochet, so I wanted to share a short paper of mine that explains why the NSA programs are constitutional under existing law and the Fourth Amendment to the Constitution. You can find it here. Here’s the abstract, which gives you a sense of my approach:

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. 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 they properly fall within the province of Congress and the President to set future national security policy.

Part I of this paper describes the surveillance efforts against al Qaeda within a broader historical and legal context. Part II argues that the programs, as described publicly by authoritative sources, appear to meet statutory requirements. Part III addresses whether the NSA programs are constitutional along two dimensions. It argues that even if some aspect of the NSA programs does not fall within Congress’s authorization for foreign intelligence and counter-terrorism 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. Part III argues, however, that the NSA programs do not violate the Fourth Amendment, as currently interpreted by the federal courts.

I’d be interested to hear thoughts from those of you who read through the paper.

  1. Scarlet Pimpernel

    But the President believes in a living constitution.  That being the case, what the Constitution has been understood to mean in the past is irrelevant.

  2. Conor Friedersdorf

    This assertion – “Major changes would be necessary only if the program were violating constitutional rights” – is itself wrongheaded and contrary to the values of the Founding generation, when opponents of the Bill of Rights worried that setting forth 10 amendments would give future generations the idea that those were the only liberties the people ought to have been guaranteed. Professor Yoo vindicates their concern.

    It is possible for something to violate American values and basic moral precepts (though shalt not lie; thou shalt not steal) without violating the U.S. Constitution. But in my analysis, the NSA violates the Constitution, the law, U.S. values and basic tenets of morality.

  3. DocJay
    Conor Friedersdorf: This assertion – “Major changes would be necessary only if the program were violating constitutional rights” – is itself wrongheaded and contrary to the values of the Founding generation, when opponents of the Bill of Rights worried that setting forth 10 amendments would give future generations the idea that those were the only liberties the people ought to have been guaranteed. Professor Yoo vindicates their concern.

    It is possible for something to violate American values and basic moral precepts (though shalt not lie; thou shalt not steal) without violating the U.S. Constitution. But in my analysis, the NSA violates the Constitution, the law, U.S. values and basic tenets of morality. · 10 minutes ago

    I agree.  

  4. DocJay

    Now I’m going off the rez a bit here.  

    Does anyone in the government really care about the constitution anymore?  This president wipes his bottom with it day in and day out while we are all supposed to smile because we have birth control pills now.

    The law of the land has faded. The age of the criminal government is upon us as we descend in to slavery.  My fervent prayer is for revolution for there is one law I do think still matters and that’s the law of the gun.  

    Our crooked politicians on both sides need a reckoning with prosecutions and if we as a nation fail to do this we shall either have a blood bath or be slaves.  I will never be a slave.  

  5. Ekosj

    I don’t think there is a question about the NSA gathering phone/email data on foreign persons overseas. That seems fine. However I’m not sure at all about the same collection from Americans here at home. That seems a much higher bar. Hypothetical Question: Police pull over a speeding driver and find the car filled with drugs and unregistered weapons. Can the police pull the driver’s home, work and cell phone records without a search warrant/court order? Those records show calls to 10 different phone numbers. One number is located in a nearby port city and called numerous times. Can the police pull the records of that phone without a search warrant/court order? What about the other nine numbers? This is not a rhetorical question. I’m not a lawyer and genuinely curious about what the police can and can’t do in a criminal investigation. The answers to this hypothetical will go a long way to inform my thinking about this issue. Can someone assist?

  6. Tom Meyer, Ed.
    C

    Without addressing the constitutional issue, I’m still at a loss to understand what these programs — as described by their defenders — are supposed to yield that could not be gathered by traitional wiretaps on warranted suspects.

  7. Randy Webster

    Dr. Yoo is arguing from the way the Constitution has been interpreted for 200 years.  Would the NSA program have been Constitutional 200 years ago?  No way.  But we’ve had 200 years of a living Constitution.  Who knows anymore what is or is not Constitutional?  Only Anthony Kennedy.

  8. DocJay
    Tom Meyer: Without addressing the constitutional issue, I’m still at a loss to understand what these programs — as described by their defenders — are supposed to yield that could not be gathered by traitional wiretaps on warranted suspects. · 26 minutes ago

    One thing I don’t see discussed is that every politician and political entity that is an enemy of this administration has likely been spied upon.  

    Politicians are of course likely to be corrupt scum with skeletons of a financial or sexual nature.

    I am very curious what leverage has been used against the opponents of this administration to get them to go along to get along ( see Gen Petraeus ).   

    On one level, I don’t want Obama to escape the pain he has put everyone through.   I want everyone associated with him to be spied on for the rest of their lives.  

    But I’d rather boot the NSA.   

  9. Fake John Galt

    Does it matter? The governments of the United States creates, implements, ignores and interprets the law as they wish for their own enrichment, the citizens be damned. To suggest the Constitution applies at this point is laughable. It is a historical document nothing more. Used only to give legitimacy to the political classes power grabs.

  10. Karen
    Conor Friedersdorf: This assertion – “Major changes would be necessary only if the program were violating constitutional rights” …

    It is possible for something to violate American values and basic moral precepts (though shalt not lie; thou shalt not steal) without violating the U.S. Constitution. But in my analysis, the NSA violates the Constitution, the law, U.S. values and basic tenets of morality. · 4 hours ago

    I’m really sympathetic to this point of view, but I don’t think Mr. Yoo is making a case for or against the violation of US values and morality on the part of the NSA, is he? And this no doubt merits it’s own thread, but how is the collection of phone metadata and the interception of emails of non-citizens a violation of U.S. values and morality or of the law for that matter in your view? Weren’t clandestine services created in part for the purpose of acquiring intelligence to be used in our favor against those who would do us harm?

  11. Tom Meyer, Ed.
    C
    Karen

    Weren’t clandestine services created in part for the purpose of acquiring intelligence to be used in our favor against those who would do us harm?

    Of course.  But as I asked earlier, what is being gained from this metadata that cannot be gathered by getting a traditional warrant against specific targets suspected of terrorism?

    No one objects to the NSA tapping the phones and/or reading the emails of suspected terrorists, provided they’ve received a lawful warrant after some meaningful process of review.  Many of us object, however, object to them being allowed to collect data on everyone — even seemingly innocuous data — on everyone just to be safe.

  12. civil westman

    Let us assume, for the moment, that whatever the NSA is doing is Constitutional. Although it seems impermissible to assess government programs based on their actual results, let us attempt to do so in this case. Let’s also ask ourselves on which side we would prefer to err. That is, if NSA data gathering might prevent attacks or it might be abused, which result is most likely? If we may indeed be wrong, which outcome poses the greater risk to security and liberty?

    Offhand, I can think of no government program which convincingly succeeds in ameliorating the problem it was created to address. It would at a minimum take a good bit of research to prove the efficacy of the few which may have actually succeeded. Given the weight of evidence of our experiences with government programs and the degree of “mission creep” and abuse we see in many, I have little doubt that the enormous amount of data being gathered will have little or no success in preventing attacks and a high likelihood of being eventually used either politically or in civilian criminal matters. There already exist avenues to permit the latter. It will only grow. Even if_Constitutional_it_is_a_very_bad_idea.

  13. Karen
    Tom Meyer

    Karen

    Of course.  But as I asked earlier, what is being gained from this metadata that cannot be gathered by getting a traditional warrant against specific targets suspected of terrorism?

    No one objects to the NSA tapping the phones and/or reading the emails of suspected terrorists, provided they’ve received a lawful warrant after some meaningful process of review.  Many of us object, however, object to them being allowed to collect data on everyone — even seemingly innocuous data — on everyone just to be safe. · 0 minutes ago

    I share your concern, but I wouldn’t characterize data gathering in those terms. From what I understand, a lot of valuable intelligence is in the public’s view already, it’s just a matter of finding the relevant pieces and supplementing that with intelligence they already have to figure out who they’re dealing with. Yeah, it is a fishing expedition in a lot of ways, but they may not know who the suspects are, because they don’t have much of a digital trail or are unknown to them. They’re looking for a needle in a haystack and trying to improve the quality of the haystack.

  14. Klaatu
    Tom Meyer

    Klaatu

    What the program is designed to yield is a link diagram or social network for a suspect.  In addition to analyzing what is said during a conversation, signal intelligence analysts determine who the target communicates with and who that person then communicates with.  This allows the analyst to identify potential nodes or cells.

    The NSA program in question allows the agency to immediately build such a diagram by querying previously collected and stored data after a warrant has been issued specific to the identified suspect rather than waiting the weeks or months necessary to collect the amount of data necessary to create a useful diagram after the suspect has been identified. · 0 minutes ago

    That was a very substantive answer, thank you.  Could you refer me to a source on this? · 2 minutes ago

    I do not have a source specific to the NSA program.  I am relying on personal experience as an intelligence officer a lifetime ago.

  15. Dr Steve

    Klaatu has it right. My view is also from experience. A good source is the paper Prof. Yoo posted to start this thread. If you want to learn more, the term of art for this sort of process is “traffic analysis.”

    I would add only that NSA’s TA folks don’t usually do this “in addition to analyzing what is said during a conversation.” Often, the starting point of the TA is a number found somewhere else (in the phone of a Gitmo detainee? On a computer disk in Abbottabad?). The conversation itself ended long ago, and was not intercepted/recorded by anyone. 

    Klaatu: I do not have a source specific to the NSA program.  I am relying on personal experience as an intelligence officer a lifetime ago. 

    Tom Meyer: That was a very substantive answer, thank you.  Could you refer me to a source on this? 

    Klaatu: What the program is designed to yield is a link diagram or social network for a suspect.  In addition to analyzing what is said during a conversation, . . .

    . . . waiting the weeks or months necessary to collect the amount of data necessary to create a useful diagram after the suspect has been identified. 

  16. Dr Steve

    Specifically, page 5 of the paper, and the article from lawfare.com referenced by footnote 17. 

    Dr Steve: A good source is the paper Prof. Yoo posted to start this thread. 

  17. Klaatu
    Tom Meyer: Without addressing the constitutional issue, I’m still at a loss to understand what these programs — as described by their defenders — are supposed to yield that could not be gathered by traitional wiretaps on warranted suspects. · January 10, 2014 at 3:05pm

    What the program is designed to yield is a link diagram or social network for a suspect.  In addition to analyzing what is said during a conversation, signal intelligence analysts determine who the target communicates with and who that person then communicates with.  This allows the analyst to identify potential nodes or cells.

    The NSA program in question allows the agency to immediately build such a diagram by querying previously collected and stored data after a warrant has been issued specific to the identified suspect rather than waiting the weeks or months necessary to collect the amount of data necessary to create a useful diagram after the suspect has been identified.

  18. Tom Meyer, Ed.
    C
    Klaatu

    Tom Meyer: Without addressing the constitutional issue, I’m still at a loss to understand what these programs — as described by their defenders — are supposed to yield that could not be gathered by traitional wiretaps on warranted suspects. · January 10, 2014 at 3:05pm

    What the program is designed to yield is a link diagram or social network for a suspect.  In addition to analyzing what is said during a conversation, signal intelligence analysts determine who the target communicates with and who that person then communicates with.  This allows the analyst to identify potential nodes or cells.

    The NSA program in question allows the agency to immediately build such a diagram by querying previously collected and stored data after a warrant has been issued specific to the identified suspect rather than waiting the weeks or months necessary to collect the amount of data necessary to create a useful diagram after the suspect has been identified. · 0 minutes ago

    That was a very substantive answer, thank you.  Could you refer me to a source on this?

  19. Karen

    Mr. Yoo, thank you. This doesn’t directly relate, but I have a question in response to your statement: “If the President wants to use the NSA to engage in warrantless searches, he cannot use its fruits in an ordinary criminal prosecution.” He has authority over the management of war, but what checks are in place to ensure he doesn’t use this power to retaliate against his rivals or subordinates? The reason I ask is because in an excerpt from Duty, Robert Gates relates a conversation where Obama “gave an order” to the military. Gates said he “had never heard a president explicitly frame a decision as a direct order…at Biden’s urging, demonstrated the complete unfamiliarity of both men with the American military culture.” Either Obama was completely ignorant of National Command Authority, or he was trying to bully his military leaders. Either way, it prompts concern for a responsible stewardship of his powers as Commander-In-Chief during “wartime.” Considering he’s culled many in the military’s senior leadership, the IRS scandal and others, how can we be sure that he’s not using the NSA to punish people? Who/what checks him?

  20. Chainsaw

    Hello All;; Happy, Happy Monday! I have many Conservative friends, that try and make this point; like Mr. Yoo did so elegantly. Let’s say he is correct; it really doesn’t matter. We all know thanks to Snoden; that Obama lied through this entire disclosure; in fact so many times that the White House looked like Linda Blare in the Exorcist! So if Mr Yoo assumes that the White House and Federal Agencies are using this information Constitutionally; we need to sell him land in Arizona fast! Or how about, Bengazi, Fast and Furious, Obama Care, Solindera, ACORN, Blogovich, IRS on Tea Party, Fox News Editors; or UN Anti Gun Treaty. I guess we all assumed that Obama followed the Constitution here too; 1/2/4/10/14 th all broken like egg shells! Chainsaw

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