Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information

Summary

The Revelations in December 2005 that President Bush had authorized the National Security Agency (NSA) to collect signals intelligence from communications involving U.S. persons within the United States, without obtaining a warrant or court order, raised numerous questions regarding the President’s authority to order warrantless electronic surveillance. President Bush stated that he believes his order to be fully supported by the Constitution and the laws of the United States, and Attorney General Gonzales clarified that the Administration based its authority both on inherent presidential powers and the joint resolution authorizing the use of “all necessary and appropriate force” to engage militarily those responsible for the terrorist attacks of September 11, 2001 (“AUMF”). Although the resolution does not expressly specify what it authorizes as “necessary and appropriate force,” the Administration discerned the intent of Congress to provide the statutory authority necessary to take virtually any action reasonably calculated to prevent a terrorist attack, including by overriding at least some statutory prohibitions that contain exceptions for conduct that is “otherwise authorized by statute.” Specifically, the Administration asserts that a part of the Foreign Intelligence Surveillance Act (FISA) that punishes those who conduct “electronic surveillance under color of law except as authorized by statute” does not bar the NSA surveillance at issue because the AUMF is just such a statute. On December 22, 2005, the Department of Justice Office of Legislative Affairs released a letter to certain members of the House and Senate intelligence committees setting forth in somewhat greater detail the Administration’s position with regard to the legal authority supporting the NSA activities described by the President.

This report lays out a general framework for analyzing the constitutional and statutory issues raised by the NSA electronic surveillance activity. It then outlines the legal framework regulating electronic surveillance by the government, explores ambiguities in those statutes that could provide exceptions for the NSA intelligence-gathering operation at issue, and addresses the arguments that the President possesses inherent authority to order the operations or that Congress has provided such authority.

This report supersedes CRS memorandum product WD00002, Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information, by Elizabeth B. Bazan and Jennifer K. Elsea.