On December 16, 2005, a New York Times article revealed that starting in 2001, President Bush had directed the NSA to conduct the Terrorist Screening Program (“TSP”) involving massive warrantless wiretapping from within the United States of telephone and email communications. Within hours of the publication of the article, the Electronic Privacy Information Center (“EPIC”) filed a Freedom of Information Act (“FOIA”) request for two legal memoranda authored for the Office of Legal Counsel of the Department of Justice by then-Assistant Attorney General Jack Goldsmith. When the government refused to comply, EPIC brought a lawsuit to compel compliance, which was consolidated with lawsuits by the ACLU and National Security Archive. On September 5, 2014, the Justice Department released a redacted 108 page memorandum by Jack Goldsmith dated May 6, 2004, and a second, much shorter memorandum by Mr. Goldsmith dated July 16, 2004. EPIC stated that the DOJ had produced “mostly unredacted version” of the memoranda, but that some parts of the legal analysis, including possibly contrary authority, are still being withheld.”
The Stellar Wind program that President Bush directed the NSA to undertake on October 4, 2001 included the warrantless “interception of the contents of certain communications … for which there was probable cause to believe [redacted]” and the collection of telephonic and email metadata, both of these to be done within the United States. With regard to FISA, Mr. Goldsmith contended, in the May 6, 2004 memorandum, that Congress’ enactment of the Authorization for the Use of Military Force on September 18, 2001 had overridden the restrictions in FISA on the collection of contents of communications. In addition, Mr. Goldsmith contended that “in the circumstances of the current armed conflict with al Queda, the restrictions set out in FISA, as applied to targeted efforts to intercept the communications of the enemy in order to prevent further armed attacks on the United States would be an unconstitutional infringement on the constitutionally assigned powers of the President. The President has inherent constitutional authority as Commander in Chief and sole organ for the nation in foreign affairs to conduct warrantless surveillance of enemy forces for intelligence purposes to detect and disrupt attacks on the United States.” At 3-4. Turning to the Fourth Amendment, the May 6, 2004 memorandum argued that Stellar Wind’s targeted collection of the contents of communications fell within an exception to the warrant requirement of and satisfied the Fourth Amendment’s reasonableness requirement. Relying on Smith v. Maryland, 442 U.S. 735 (1979), the memorandum contended that the Fourth Amendment did not apply to the collection of telephonic and email metadata.
The much shorter July 16, 2004 memo purported to explain “why the [Supreme] Court’s analysis in Hamdi [v. Rumsfield on June 28, 2004] supports our previous conclusion that Congress has authorized the target content [redacted] of STELLAR WIND.” At 1. According to the Memorandum, five justices in Hamdi had agreed that the Authorization for the Use of Military Force legalized the detention of a U.S. citizen captured on the battlefield in Afghanistan, “even though the Authorization did not specifically refer to detention and notwithstanding a separate statute prohibiting unauthorized detentions — because it is a ‘fundamental’ and ‘accepted’ incident of waging war.” At 4 (citation omitted). By analogizing the role of wiretapping in war to the role of the capture of enemy combatants, Mr. Goldsmith invoked Hamdi as proof that the Authorization of Military Force extended to the warrantless collection of the contents of communications. “Because the interception of enemy communications for intelligence purposes is also a fundamental and long-accepted incident of war, the Congressional Authorization likewise provides authority for STELLAR WIND targeted content [redacted]. Hamdi supports this conclusion even though the Authorization does not specifically refer to intelligence collection and notwithstanding statutory restrictions on the use of electronic surveillance within the United States for foreign intelligence purposes.” At 4-5 (citations omitted).
A summary of the litigation, with links to legal documents, is available at http://epic.org/privacy/nsa/foia/. See, especially, “Freedom of Information Act Documents.”