The Department of Justice Memo, Debunked

The Department of Justice has released a memo defending President Bush’s warrantless domestic spying argument. There are two main arguments:

1) Any limitations FISA places on the President’s authority to issue warrantless domestic searches are unconstitutional, and

2) Congress gave the President authority to issue warrantless domestic searches

It doesn’t seem like the DOJ has their heart in the first argument. They devote just two paragraphs out of a five page memo to this point. Most of that space is filled by caselaw decided before FISA even became law, making it largely irrelevant since FISA speaks directly to warrantless spying on Americans and declares it illegal.


Like other defenders of the President’s program, they place considerable emphasis on a 2002 decision by the FISA Court of Appeals. There are two important things to remember about that case:

The FISA appeals court explicitly says it’s not addressing the issue (“It was incumbent upon the [Truong] court, therefore, to determine the boundaries of that constitutional authority [to conduct warrantless searches]…The question before us is the reverse…”)

The FISA appeals court acknowledges the cases it mentions were decided before FISA and didn’t consider the statute (“We reiterate that Truong dealt with a pre-FISA surveillance…it had no occasion to consider the application of the statute…”)

In other words, there is a reason that the DOJ is giving short shrift to this argument. There is little evidence to substantiate it.

The rest of the memo is devoted to arguing that the 9/18/01 Authorization for the Use of Military Force (AUMF) against al-Qaeda authorized the President’s actions. This argument doesn’t hold water either:

1. The administration tried to get language inserted into the AUMF that would have authorized them to take actions “in the United States.” They failed. [Tom Daschle, 12/23/05]

2. Federal law says that “exclusive means” to conduct electronic surveillance is FISA and Title III (which governs the use of wiretaps by law enforcement). Relying on the AUMF, the administration concedes that neither of those two statutes were used. Federal law says that any surveillance that is not conducted under those two statues is illegal. [18 U.S.C. 2551(2)(f); 50 U.S.C. 1809(a)]

3. FISA has a limited exception that allows warrantless domestic wiretaps after a war is declared, but it only lasts 15 days. The Bush administration program has been going on for more than four years. [50 U.S.C. 1811]

The Justice Department advances two theories about why Bush’s warrantless domestic surveillance program was legal and both of them fail. The truth is simple: the program was illegal because it violated federal criminal law.