109th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 109-384
_______________________________________________________________________
REQUESTING THE PRESIDENT AND DIRECTING THE SECRETARY OF DEFENSE TO
TRANSMIT TO THE HOUSE OF REPRESENTATIVES ALL INFORMATION IN THE
POSSESSION OF THE PRESIDENT OR THE SECRETARY OF DEFENSE RELATING TO THE
COLLECTION OF INTELLIGENCE INFORMATION PERTAINING TO PERSONS INSIDE THE
UNITED STATES WITHOUT OBTAINING COURT-ORDERED WARRANTS AUTHORIZING THE
COLLECTION OF SUCH INFORMATION AND RELATING TO THE POLICY OF THE UNITED
STATES WITH RESPECT TO THE GATHERING OF COUNTERTERRORISM INTELLIGENCE
WITHIN THE UNITED STATES
__________
ADVERSE REPORT
OF THE
COMMITTEE ON ARMED SERVICES
HOUSE OF REPRESENTATIVES
ON
H. RES. 645
March 7, 2006.--Referred to the House Calendar and ordered to be
printed.
HOUSE COMMITTEE ON ARMED SERVICES
One Hundred Ninth Congress
DUNCAN HUNTER, California, Chairman
CURT WELDON, Pennsylvania IKE SKELTON, Missouri
JOEL HEFLEY, Colorado JOHN SPRATT, South Carolina
JIM SAXTON, New Jersey SOLOMON P. ORTIZ, Texas
JOHN M. McHUGH, New York LANE EVANS, Illinois
TERRY EVERETT, Alabama GENE TAYLOR, Mississippi
ROSCOE G. BARTLETT, Maryland NEIL ABERCROMBIE, Hawaii
HOWARD P. ``BUCK'' McKEON, MARTY MEEHAN, Massachusetts
California SILVESTRE REYES, Texas
MAC THORNBERRY, Texas VIC SNYDER, Arkansas
JOHN N. HOSTETTLER, Indiana ADAM SMITH, Washington
WALTER B. JONES, North Carolina LORETTA SANCHEZ, California
JIM RYUN, Kansas MIKE McINTYRE, North Carolina
JIM GIBBONS, Nevada ELLEN O. TAUSCHER, California
ROBIN HAYES, North Carolina ROBERT A. BRADY, Pennsylvania
KEN CALVERT, California ROBERT ANDREWS, New Jersey
ROB SIMMONS, Connecticut SUSAN A. DAVIS, California
JO ANN DAVIS, Virginia JAMES R. LANGEVIN, Rhode Island
W. TODD AKIN, Missouri STEVE ISRAEL, New York
J. RANDY FORBES, Virginia RICK LARSEN, Washington
JEFF MILLER, Florida JIM COOPER, Tennessee
JOE WILSON, South Carolina JIM MARSHALL, Georgia
FRANK A. LoBIONDO, New Jersey KENDRICK B. MEEK, Florida
JEB BRADLEY, New Hampshire MADELEINE Z. BORDALLO, Guam
MICHAEL TURNER, Ohio TIM RYAN, Ohio
JOHN KLINE, Minnesota MARK UDALL, Colorado
CANDICE S. MILLER, Michigan G.K. BUTTERFIELD, North Carolina
MIKE ROGERS, Alabama CYNTHIA McKINNEY, Georgia
TRENT FRANKS, Arizona DAN BOREN, Oklahoma
BILL SHUSTER, Pennsylvania
THELMA DRAKE, Virginia
JOE SCHWARZ, Michigan
CATHY McMORRIS, Washington
MICHAEL CONAWAY, Texas
GEOFF DAVIS, Kentucky
Robert L. Simmons, Staff Director
C O N T E N T S
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Page
Purpose and Summary.............................................. 1
Background....................................................... 2
Executive Communications......................................... 5
Legislative History.............................................. 56
Committee Position............................................... 57
Communication from Another Committee............................. 57
Committee Cost Estimate.......................................... 57
Oversight Findings............................................... 57
Constitutional Authority Statement............................... 58
Record Vote...................................................... 58
109th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 109-384
======================================================================
REQUESTING THE PRESIDENT AND DIRECTING THE SECRETARY OF DEFENSE TO
TRANSMIT TO THE HOUSE OF REPRESENTATIVES ALL INFORMATION IN THE
POSSESSION OF THE PRESIDENT OR THE SECRETARY OF DEFENSE RELATING TO THE
COLLECTION OF INTELLIGENCE INFORMATION PERTAINING TO PERSONS INSIDE THE
UNITED STATES WITHOUT OBTAINING COURT-ORDERED WARRANTS AUTHORIZING THE
COLLECTION OF SUCH INFORMATION AND RELATING TO THE POLICY OF THE UNITED
STATES WITH RESPECT TO THE GATHERING OF COUNTERTERRORISM INTELLIGENCE
WITHIN THE UNITED STATES
_______
March 7, 2006.--Referred to the House Calendar and ordered to be
printed
_______
Mr. Hunter, from the Committee on Armed Services, submitted the
following
ADVERSE REPORT
[To accompany H. Res. 645]
The Committee on Armed Services, to whom was referred the
resolution (H. Res. 645) requesting the President and directing
the Secretary of Defense to transmit to the House of
Representatives all information in the possession of the
President or the Secretary of Defense relating to the
collection of intelligence information pertaining to persons
inside the United States without obtaining court-ordered
warrants authorizing the collection of such information and
relating to the policy of the United States with respect to the
gathering of counterterrorism intelligence within the United
States, having considered the same, report unfavorably thereon
without amendment and recommend that the resolution not be
agreed to.
PURPOSE AND SUMMARY
House Resolution 645, introduced on December 22, 2005, by
Congressman Robert Wexler, requests the President and directs
the Secretary of Defense to transmit to the House of
Representatives not later than 14 days after the date of the
adoption of the resolution all documents including telephone
and electronic mail records, logs, calendars, minutes, memos,
and records of internal discussions in their possession
relating to two matters: (1) the legal authority upon which
surveillance by the NSA or the DOD of persons inside the United
States and the gathering of counterterrorism intelligence
within the United States without obtaining court-ordered
warrants is based; and (2) the scope of the activities
undertaken by the DOD, the Counterintelligence Field Activity
(CIFA), or any related agency with regards to Threat and Local
Observation Notice (TALON) reports regarding the gathering of
counterterrorism intelligence within the United States.
Clause 7 of rule XIII of the Rules of the House of
Representatives provides for a committee to report on a
qualifying resolution of inquiry, such as H. Res. 645, within
14 legislative days or a privileged motion to discharge the
committee is in order. H. Res. 645 was referred to the Armed
Services Committee on December 22, 2005.
Under the rules and precedents of the House, a resolution
of inquiry is one of the means by which the House may request
information from the head of one of the executive departments.
It is a simple resolution making a demand of the head of an
executive department to furnish the House of Representatives
with specific information in the possession of the executive
branch. It is not used to request opinions or to require an
investigation on a subject.
BACKGROUND
Background on request for legal authority regarding warrantless
intelligence by the NSA
On December 16, 2005, the New York Times published an
article which revealed that the President had authorized the
NSA to collect electronic intelligence from communications
involving at least one person within the United States without
obtaining a warrant or court order.\1\ The next day the
President confirmed the existence of a classified NSA terrorist
surveillance program. The President stated that shortly after
the September 11, 2001 attacks, he authorized the NSA
``consistent with U.S. law and the Constitution to intercept
the international communications of people with known links to
al Qaeda and related terrorist organizations . . . to detect
and prevent terrorist attacks against the United States. . .
.'' \2\ The President emphasized that the surveillance program
is ``crucial to our national security. . . .'' \3\ He also
stated that the surveillance program is reviewed approximately
every 45 days and that these reviews have included approval by
the Attorney General and the Counsel to the President. Finally,
the President noted that congressional leaders had been briefed
on the surveillance activities more than a dozen times.
---------------------------------------------------------------------------
\1\ James Risen and Eric Lichblau, ``Bush Lets U.S. Spy on Callers
Without Courts,'' New York Times, December 16, 2005, p.A1.
\2\ President's Radio Address, Dec. 17, 2005.
\3\ Id.
---------------------------------------------------------------------------
On December 19, 2005, Attorney General Alberto Gonzales and
General Michael Hayden, Principal Deputy Director for National
Intelligence (and former NSA Director) described unclassified
aspects of the program at a press briefing. The Attorney
General stated that the program involved ``intercepts of
contents of communications where one . . . party to the
communication is outside the United States'' and the government
had ``a reasonable basis to conclude that one party to the
communication is a member of al Qaeda, affiliated with al
Qaeda, or a member of an organization affiliated with al Qaeda,
or working in support of al Qaeda.'' \4\ General Hayden stated
that the aim of the program is not ``to collect reams of
intelligence, but to detect and warn and prevent [terrorist]
attacks.'' \5\ On December 22, 2005, the Department of Justice
Office of Legislative Affairs released a letter to the
leadership of the congressional intelligence committees setting
forth in greater detail the legal authority for the NSA
activities. The letter asserted the NSA program is a lawful use
of the President's powers as Commander in Chief and that
Congress had supplemented the President's authority by passing
the Authorization for Use of Military Force (AUMF), enacted on
September 18, 2001 as a broad authorization for use of military
force against al Qaeda.
---------------------------------------------------------------------------
\4\ Press Release, White House, Press Briefing by Attorney General
Alberto Gonzalez and General Michael Hayden, Principal Deputy Director
for National Intelligence, Dec. 19, 2005.
\5\ Id.
---------------------------------------------------------------------------
The NSA program came under strict scrutiny after it was
revealed.\6\ In addition, on December 30, 2005, the Justice
Department announced it had opened a criminal investigation
into the possible unauthorized disclosure of classified
information regarding the NSA surveillance program.
---------------------------------------------------------------------------
\6\ On January 5, 2006, the Congressional Research Service released
a memorandum which questioned the President's legal authority to order
warrantless electronic surveillance. On February 2, 2006, a group of
fourteen law professors and former government sent a letter to
congressional leaders concluding that the NSA program appeared on its
face to violate existing law. In addition, at least two lawsuits have
been filed challenging the NSA program.
---------------------------------------------------------------------------
On January 19, 2006, Attorney General Gonzales transmitted
a 42 page memorandum (``White Paper'') to the Chairman and
Ranking Minority Member of the committee, detailing, in an
unclassified form, the legal authorities supporting the NSA
surveillance program.\7\ The White Paper again asserted that
the NSA program is based on the President's inherent
constitutional authority as Commander in Chief, supplemented by
Congress in the AUMF, enacted on September 18, 2001. The White
Paper contends that the NSA program is consistent with the
Foreign Intelligence Surveillance Act (FISA) and is also
consistent with privacy rights guaranteed by the Fourth
Amendment. The DOJ White Paper also highlights the continuing
threat posed by al Qaeda.\8\
---------------------------------------------------------------------------
\7\ A copy of the White Paper is attached to this report as Exhibit
1.
\8\ The White Paper notes that al Qaeda's leadership has repeatedly
threatened to attack the United States in the future. This threat was
reinforced on January 19, 2006, when an audio message purportedly
recorded by Osama bin Laden was broadcast by al Jazeera. According to
media reports, CIA intelligence officers who analyzed the recording
believed the voice on the audiotape is that of bin Laden. The al Qaeda
leader allegedly said that the lack of al Qaeda attacks in the United
States since September 11, 2001 is not related to any improved security
measures adopted by the United States. According to a transcript of the
audiotape, bin Laden warned of future attacks, stating ``the operations
are under preparation and you will see them in your homes the minute
they are through, with God's permission.''
---------------------------------------------------------------------------
The most comprehensive description of the operational
details of the NSA program was provided by General Hayden to
the National Press Club on January 23, 2006. He stated that
theprogram is narrowly targeted and focused. He indicated it does not
intercept conversations where both parties to the conversation are
located in the United States. One end of any call targeted under this
program is always outside of the United States and with a party
reasonably believed to be affiliated with al Qaeda. General Hayden
argued that the speed of operations, the ruthlessness of the enemy, and
the pace of modern communications have called on the NSA to do things
in ways that have never been required before. He contended that
although FISA includes an emergency provision allowing intercepts to
begin without a warrant, FISA is still not adequate because even an
emergency warrant requires pre-approval by the Attorney General.\9\
General Hayden stated that ``FISA's been a remarkably successful tool''
which the government uses aggressively, however, ``FISA does not give
us the operational effect'' the NSA authorities provide.
---------------------------------------------------------------------------
\9\ The emergency provision does not allow immediate surveillance.
Pursuant to 50 U.S.C. Sec. 1805(f), an emergency order may not be
obtained until the Attorney General reasonably determines that an
emergency situation exists and the factual basis for issuance of an
order under FISA exists. Thus, even though 72 hours of surveillance may
be ordered without a court order, FISA still requires the Attorney
General to determine in advance of the surveillance that all the
requirements for a regular FISA application will be fully supported and
will be approved by the court before an emergency authorization can be
granted. This emergency review process by the Attorney General requires
review by NSA lawyers, DOJ lawyers and finally by the Attorney General
himself.
---------------------------------------------------------------------------
In his State of the Union Address on January 31, 2006,
President Bush declared, ``the enemy has not lost the desire or
capability to attack us . . . the terrorist surveillance
program has helped prevent terrorist attacks.''
Attorney General Gonzales testified regarding this matter
before the Senate Judiciary Committee on Monday, February 6,
2006.
Acting Assistant Attorney General for the Office of Legal
Counsel Steven Bradbury and Assistant Attorney General for the
Office of Legislative Affairs William Moschella briefed the
committee on the NSA surveillance program and answered
questions from the members of the committee on February 8,
2006.
The committee concluded that the DOD had substantially
complied with the direction of H. Res. 645 to provide the House
of Representatives with the legal authority for the NSA
program. Therefore, the committee ordered the resolution to be
reported adversely.
Background on request for information regarding the scope of activities
undertaken regarding the gathering of counterterrorism
intelligence within the United States
On December 13, 2005, a report on the NBC Nightly News
disclosed that the Department of Defense (DOD) improperly used
a counterintelligence program designed to protect military
facilities from terrorist attacks to collect information on
domestic anti-war protestors. The report alleged that a DOD
agency, the Counterintelligence Field Activity (CIFA), misused
a reporting mechanism known as a Threat and Local Observation
Notice (TALON) reporting system by including information
regarding groups that did not pose a security threat to
military facilities. On December 19, 2005, Dr. Stephen A.
Cambone, the Under Secretary of Defense (Intelligence), wrote a
letter to the Chairman and Ranking Member of the Committee,
responding to the NBC report. Dr. Cambone indicated that he had
initiated a review of the CIFA program and would review the
TALON database to determine whether information had been
improperly stored or used in the database. He further indicated
that he would provide the results of that inquiry to the
committee.
On January 27, 2006, Robert Rogalski, Acting Deputy Under
Secretary of Defense (Counterintelligence and Security),
reported back to the Chairman and Ranking Minority Member of
the Committee with additional information regarding these
programs. Mr. Rogalski indicated that the review of the TALON
system was ``nearly completed'' and that it had been determined
that ``very small percentage'' of reports regarding
demonstrations and ``anti-base'' activity not related to
terrorist threats had been improperly included in the CIFA
database. Mr. Rogalski acknowledged that while the purpose of
the TALON program is ``to document suspicious incidents
possibly linked to foreign terrorist threats to DoD
resources,'' he added that ``some came to view the system as a
means to report information about demonstrations and anti-base
activity that would be of interest to field commanders from a
force protection perspective.'' Mr. Rogalski indicated that
CIFA has removed any TALON reports on demonstrations and anti-
base activity from the CIFA database and indicated there is an
ongoing process to remove any other reports from the database
that ``are no longer analytically significant.''
Mr. Rogalski also indicated that the DOD will soon issue
detailed guidance that will clarify the purpose of the CIFA
database and the rules governing the collection and retention
of the data in an effort to avoid any future improper use of
intelligence information. He indicated the new guidance will
include more detailed procedures to ensure compliance with the
policy prohibiting the collection of intelligence by those
programs that are not related to counterterrorism. He indicated
the Dr. Cambone has directed all DOD counterintelligence and
intelligence personnel to receive immediate refresher training
concerning the laws and procedures governing the handling of
information relating to U.S. persons.
The Department of Defense provided a closed briefing to the
committee on February 8, 2006 regarding this matter.
The committee concluded that the DOD had substantially
complied with the direction of H. Res. 645 to provide the scope
of activities conducted undertaken with regard to TALON
reports. Therefore the committee ordered the resolution to be
reported adversely.
EXECUTIVE COMMUNICATIONS
Department of Justice,
Office of the Attorney General,
Washington, DC, January 19, 2006
Hon. Duncan Hunter,
Chairman, Committee on Armed Services,
House of Representatives, Washington, D.C.
Dear Mr. Chairman: As the President recently described, in
response to the attacks of September 11th, he has authorized
the National Security Agency (NSA) to intercept international
communications into or out of the United States of persons
linked to al Qaeda or an affiliated terrorist organization. The
attached paper has been prepared by the Department of Justice
to provide a detailed analysis of the legal basis for those NSA
activities described by the President.
As I have previously explained, these NSA activities are
lawful in all respects. They represent a vital effort by the
President to ensure that we have in place an early warning
system to detect and prevent another catastrophic terrorist
attack on America. In the ongoing armed conflict with al Qaeda
and its allies, the President has the primary duty under the
Constitution to protect the American people. The Constitution
gives the President the full authority necessary to carry out
that solemn duty, and he has made clear that he will use all
authority available to him consistent with the law, to protect
the Nation. The President's authority to approve these NSA
activities is confirmed and supplemented by Congress in the
Authorization for Use of Military Force (AUMF), enacted on
September 18, 2001. As discussed in depth in the attached
paper, the President's use of his constitutional authority, as
supplemented by statue in the AUMF, is consistent with the
foreign Intelligence Surveillance Act and is also fully
protective of the civil liberties guaranteed by the Fourth
Amendment.
It is my hope that this paper will prove helpful to your
understanding of the legal authorities underlying the NSA
activities described by the President.
Sincerely,
Alberto R. Gonzales,
Attorney General.
Enclosure.
Legal Authorities Supporting the Activities of the National Security
Agency Described by the President
As the President has explained, since shortly after the
attacks of September 11, 2001, he has authorized the National
Security Agency (``NSA'') to intercept international
communications into and out of the United States of persons
linked to al Qaeda or related terrorist organizations. The
purpose of these intercepts is to establish an early warning
system to detect and prevent another catastrophic terrorist
attack on the United States. This paper addresses, in an
unclassified form, the legal basis for the NSA activities
described by the President (``NSA activities'').
SUMMARY
On September 11, 2001, the al Qaeda terrorist network
launched the deadliest foreign attack on American soil in
history. Al Qaeda's leadership repeatedly has pledged to attack
the United States again at a time of its choosing, and these
terrorist organizations continue to pose a grave threat to the
United States. In response to the September 11th attacks and
the continuing threat, the President, with broad congressional
approval, has acted to protect the Nation from another
terrorist attack. In the immediate aftermath of September 11th,
the President promised that ``[w]e will direct every resource
at our command--every means of diplomacy, every tool of
intelligence, every tool of law enforcement, every financial
influence, and every weapon of war--to the destruction of and
to the defeat of the global terrorist network.'' President Bush
Address to a Joint Session of Congress (Sept. 20, 2001). The
NSA activities are an indispensable aspect of this defense of
the Nation. By targeting the international communications into
and out of the United States of persons reasonably believed to
be linked to al Qaeda, these activities provide the United
States with an early warning system to help avert the next
attack. For the following reasons, the NSA activities are
lawful and consistent with civil liberties.
The NSA activities are supported by the President's well-
recognized 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 armed attacks on
the United States. The President has the chief responsibility
under the Constitution to protect America from attack, and the
Constitution gives the President the authority necessary to
fulfill that solemn responsibility. The President has made
clear that he will exercise all authority available to him,
consistent with the Constitution, to protect the people of the
United States.
In the specific context of the current armed conflict with
al Qaeda and related terrorist organizations, Congress by
statute has confirmed and supplemented the President's
recognized authority under Article II of the Constitution to
conduct such warrantless surveillance to prevent further
catastrophic attacks on the homeland. In its first legislative
response to the terrorist attacks of September 11th, Congress
authorized the President to ``use all necessary and appropriate
force against those nations, organizations, or persons he
determines planned, authorized, committed, or aided the
terrorist attacks'' of September 11th in order to prevent ``any
future acts of international terrorism against the United
States.'' Authorization for Use of Military Force, Pub. L. No.
107-40, Sec. 2(a), 115 Stat. 224, 224 (Sept. 18, 2001)
(reported as a note to 50 U.S.C.A. Sec. 1541) (``AUMF'').
History conclusively demonstrates that warrantless
communications intelligence targeted at the enemy in time of
armed conflict is a traditional and fundamental incident of the
use of military force authorized by the AUMF. The Supreme
Court's interpretation of the AUMF in Hamdi v. Rumsfeld, 542
U.S. 507 (2004), confirms that Congress in the AUMF gave its
express approval to the military conflict against al Qaeda and
its allies and thereby to the President's use of all
traditional and accepted incidents of force in this current
military conflicts including warrantless electronic
surveillance to intercept enemy communications both at home and
abroad. This understanding of the AUMF demonstrates Congress's
support for the President's authority to protect the Nation
and, at the same time, adheres to Justice O'Connor's admonition
that ``a state of war is not a blank check for the President,''
Hamdi, 542 U.S. at 536 (plurality opinion), particularly in
view of the narrow scope of the NSA activities.
The AUMF places the President at the zenith of his powers
in authorizing the NSA activities. Under the tripartite
framework set forth by Justice Jackson in Youngstown Sheet &
Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952) (Jackson, J.,
concurring), Presidential authority is analyzed to determine
whether the President is acting in accordance with
congressional authorization (category I), whether he acts in
the absence of a grant or denial of authority by Congress
(category II), or whether he uses his own authority under the
Constitution to take actions incompatible with congressional
measures (category III). Because of the broad authorization
provided in the AUMF, the President's action here falls within
category I of Justice Jackson's framework. Accordingly, the
President's power in authorizing the NSA activities is at its
height because he acted ``pursuant to an express or implied
authorization of Congress,'' and his power ``includes all that
he possesses in his own right plus all that Congress can
delegate.'' Id. at 635.
The NSA activities are consistent with the preexisting
statutory framework generally applicable to the interception of
communications in the United States--the Foreign Intelligence
Surveillance Act (``FISA''), as amended, 50 U.S.C.
Sec. Sec. 1801-1862 (2000 & Supp. II 2002), and relevant
related provisions in chapter 119 of title 18.\1\ Although FISA
generally requires judicial approval of electronic
surveillance, FISA also contemplates that Congress may
authorize such surveillance by a statute other than FISA. See
50 U.S.C. Sec. 1809(a) (prohibiting any person from
intentionally ``engag[ing] . . . in electronic surveillance
under color of law except as authorized by statute''). The
AUMF, as construed by the Supreme Court in Hamdi and as
confirmed by the history and tradition of armed conflict, is
just such a statute. Accordingly, electronic surveillance
conducted by the President pursuant to the AUMF, including the
NSA activities, is fully consistent with FISA and falls within
category I of Justice Jackson's framework.
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\1\ Chapter 119 of title 18, which was enacted by Title III of the
Omnibus Crime Control and Safe Streets Act of 1968, as amended, 18
U.S.C. 2510-2521 (2000 & West Supp. 2005), is often referred to as
``Title III.''
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Even if there were ambiguity about whether FISA, read
together with the AUMF, permits the President to authorize the
NSA activities, the canon of constitutional avoidance requires
reading these statutes in harmony to overcome any restrictions
in FISA and Title III, at least as they might otherwise apply
to the congressionally authorized armed conflict with al Qaeda.
Indeed, were FISA and Title III interpreted to impede the
President's ability to use the traditional tool of electronic
surveillance to detect and prevent future attacks by a declared
enemy that has already struck at the homeland and is engaged in
ongoing operations against the United States, the
constitutionality of FISA, as applied to that situation, would
be called into very serious doubt. In fact, if this difficult
constitutional question had to be addressed, FISA would be
unconstitutional as applied to this narrow context.
Importantly, the FISA Court of Review itself recognized just
three years ago that the President retains constitutional
authority to conduct foreign surveillance apart from the FISA
framework, and the President is certainly entitled, at a
minimum, to rely on that judicial interpretation of the
Constitution and FISA.
Finally, the NSA activities fully comply with the
requirements of the Fourth Amendment. The interception of
communications described by the President falls within a well-
established exception to the warrant requirement and satisfies
the Fourth Amendment's fundamental requirement of
reasonableness. The NSA activities are thus constitutionally
permissible and fully protective of civil liberties.
BACKGROUND
A. The attacks of September 11, 2001
On September 11, 2001, the al Qaeda terrorist network
launched a set of coordinated attacks along the East Coast of
the United States. Four commercial jetliners, each carefully
selected to be fully loaded with fuel for a transcontinental
flight, were hijacked by al Qaeda operatives. Two of the
jetliners were targeted at the Nation's financial center in New
York and were deliberately flown into the Twin Towers of the
World Trade Center. The third was targeted at the headquarters
of the Nation's Armed Forces, the Pentagon. The fourth was
apparently headed toward Washington, DC, when passengers
struggled with the hijackers and the plane crashed in
Shanksville, Pennsylvania. The intended target of this fourth
jetliner was evidently the White House or the Capitol, strongly
suggesting that its intended mission was to strike a
decapitation blow on the Government of the United States--to
kill the President, the Vice President, or Members of Congress.
The attacks of September 11th resulted in approximately 3,000
deaths--the highest single-day death toll from hostile foreign
attacks in the Nation's history. These attacks shut down air
travel in the United States, disrupted the Nation's financial
markets and government operations, and caused billions of
dollars in damage to the economy.
On September 14, 2001, the President declared a national
emergency ``by reason of the terrorist attacks at the World
Trade Center, New York, New York, and the Pentagon, and the
continuing and immediate threat of further attacks on the
United States.'' Proclamation No. 7463, 66 Fed. Reg. 48,199
(Sept. 14, 2001). The same day, Congress passed a joint
resolution authorizing the President ``to use all necessary and
appropriate force against those nations, organizations, or
persons he determines planned, authorized, committed, or aided
the terrorist attacks'' of September 11th, which the President
signed on September 18th. AUMF Sec. 2(a). Congress also
expressly acknowledged that the attacks rendered it ``necessary
and appropriate'' for the United States to exercise its right
``to protect United States citizens both at home and abroad,''
and in particular recognized that ``the President has authority
under the Constitution to take action to deter and prevent acts
of international terrorism against the United States.'' Id.
pmbl. Congress emphasized that the attacks ``continue to pose
an unusual and extraordinary threat to the national security
and foreign policy of the United States.'' Id. The United
States also launched a large-scale military response, both at
home and abroad. In the United States, combat air patrols were
immediately established over major metropolitan areas and were
maintained 24 hours a day until April 2002. The United States
also immediately began plans for a military response directed
at al Qaeda's base of operations in Afghanistan. Acting under
his constitutional authority as Commander in Chief, and with
the support of Congress, the President dispatched forces to
Afghanistan and, with the assistance of the Northern Alliance,
toppled the Taliban regime.
As the President made explicit in his Military Order of
November 13, 2001, authorizing the use of military commissions
to try terrorists, the attacks of September 11th ``created a
state of armed conflict.'' Military Order Sec. l(a), 66 Fed.
Reg. 57,833 (Nov. 13, 2001). Indeed, shortly after the attacks,
NATO--for the first time in its 46-year history--invoked
article 5 of the North Atlantic Treaty, which provides that an
``armed attack against one or more of [the parties] shall be
considered an attack against them all.'' North Atlantic Treaty,
Apr. 4, 1949, art. 5, 63 Stat. 2241, 2244, 34 U.N.T.S. 243,
246; see also Statement by NATO Secretary General Lord
Robertson (Oct. 2, 2001), available at http://www.nato.int/
docu/speech/2001/s011002a.htm (``[I]t has now been determined
that the attack against the United States on 11 September was
directed from abroad and shall therefore be regarded as an
action covered by Article 5 of the Washington Treaty. . . .'').
The President also determined in his Military Order that al
Qaeda and related terrorists organizations ``possess both the
capability and the intention to undertake further terrorist
attacks against the United States that, if not detected and
prevented, will cause mass deaths, mass injuries, and massive
destruction of property, and may place at risk the continuity
of the operations of the United States Government,'' and
concluded that ``an extraordinary emergency exists for national
defense purposes.'' Military Order, Sec. l(c), (g), 66 Fed.
Reg. at 57,833-34.
B. The NSA activities
Against this unfolding background of events in the fall of
2001, there was substantial concern that al Qaeda and its
allies were preparing to carry out another attack within the
United States. Al Qaeda had demonstrated its ability to
introduce agents into the United States undetected and to
perpetrate devastating attacks, and it was suspected that
additional agents were likely already in position within the
Nation's borders. As the President has explained, unlike a
conventional enemy, al Qaeda has infiltrated ``our cities and
communities and communicated from here in America to plot and
plan with bin Laden's lieutenants in Afghanistan, Pakistan and
elsewhere.'' Press Conference of President Bush (Dec. 19,
2005), available at http://www.whitehouse.gov/news/releases/
2005/12/20051219-2.html (``President's Press Conference''). To
this day, finding al Qaeda sleeper agents in the United States
remains one of the paramount concerns in the War on Terror. As
the President has explained, ``[t]he terrorists want to strike
America again, and they hope to inflict even more damage than
they did on September the 11th.'' Id.
The President has acknowledged that, to counter this
threat, he has authorized the NSA to intercept international
communications into and out of the United States of persons
linked to al Qaeda or related terrorist organizations. The same
day, the Attorney General elaborated and explained that in
order to intercept a communication, there must be ``a
reasonable basis to conclude that one party to the
communication is a member of al Qaeda, affiliated with al
Qaeda, or a member of an organization affiliated with al
Qaeda.'' Press Briefing by Attorney General Alberto Gonzales
and General Michael Hayden, Principal Deputy Director for
National Intelligence, available at http://www.whitehouse.gov/
news/releases/2005/12/20051219-1.html (Dec. 19, 2005)
(statement of Attorney General Gonzales). The purpose of these
intercepts is to establish an early warning system to detect
and prevent another catastrophic terrorist attack on the United
States. The President has stated that the NSA activities
``ha[ve] been effective in disrupting the enemy, while
safeguarding our civil liberties.'' President's Press
Conference.
The President has explained that the NSA activities are
``critical'' to the national security of the United States. Id.
Confronting al Qaeda ``is not simply a matter of [domestic] law
enforcement''--we must defend the country against an enemy that
declared war against the United States. Id. To ``effectively
detect enemies hiding in our midst and prevent them from
striking us again . . . we must be able to act fast and to
detect conversations [made by individuals linked to al Qaeda]
so we can prevent new attacks.'' Id. The President pointed out
that ``a two-minute phone conversation between somebody linked
to al Qaeda here and an operative overseas could lead directly
to the loss of thousands of lives.'' Id. The NSA activities are
intended to help ``connect the dots'' between potential
terrorists. Id. In addition, the Nation is facing ``a different
era, a different war . . . people are changing phone numbers .
. . and they're moving quick[ly].'' Id. As the President
explained, the NSA activities ``enable[] us to move faster and
quicker. And that's important. We've got to be fast on our
feet, quick to detect and prevent.'' Id. ``This is an enemy
that is quick and it's lethal. And sometimes we have to move
very, very quickly.'' Id. FISA, by contrast, is better suited
``for long-term monitoring.'' Id.
As the President has explained, the NSA activities are
``carefully reviewed approximately every 45 days to ensure that
[they are] being used properly.'' Id. These activities are
reviewed for legality by the Department of Justice and are
monitored by the General Counsel and Inspector General of the
NSA to ensure that civil liberties are being protected. Id.
Leaders in Congress from both parties have been briefed more
than a dozen times on the NSA activities.
C. The continuing threat posed by al Qaeda
Before the September 11th attacks, al Qaeda had promised to
attack the United States. In 1998, Osama bin Laden declared a
``religious'' war against the United States and urged that it
was the moral obligation of all Muslims to kill U.S. civilians
and military personnel. See Statement of Osama bin Laden, Ayman
al-Zawahiri, et al., Fatwah Urging Jihad Against Americans,
published in Al-Quds al-'Arabi (Feb. 23, 1998) (``To kill the
Americans and their allies--civilians and military--is an
individual duty for every Muslim who can do it in any country
in which it is possible to do it, in order to liberate the al-
Aqsa Mosque and the holy mosque from their grip, and in order
for their armies to move out of all the lands of Islam,
defeated and unable to threaten any Muslim.''). Al Qaeda
carried out those threats with a vengeance; they attacked the
U.S.S. Cole in Yemen, the United States Embassy in Nairobi, and
finally the United States itself in the September 11th attacks.
It is clear that al Qaeda is not content with the damage it
wrought on September 11th. As recently as December 7, 2005,
Ayman al-Zawahiri professed that al Qaeda ``is spreading,
growing, and becoming stronger,'' and that al Qaeda is ``waging
a great historic battle in Iraq, Afghanistan, Palestine, and
even in the Crusaders' own homes.'' Ayman al-Zawahiri,
videotape released on Al-Jazeera television network (Dec. 7,
2005). Indeed, since September 11th, al Qaeda leaders have
repeatedly promised to deliver another, even more devastating
attack on America. See, e.g., Osama bin Laden, videotape
released on Al-Jazeera television network (Oct. 24, 2004)
(warning United States citizens of further attacks and
asserting that ``your security is in your own hands''); Osama
bin Laden, videotape released on Al-Jazeera television network
(Oct. 18, 2003) (``We, God willing, will continue to fight you
and will continue martyrdom operations inside and outside the
United States. . . .''); Ayman Al-Zawahiri, videotape released
on the Al-Jazeera television network (Oct. 9, 2002) (``I
promise you [addressing the `citizens of the United States']
that the Islamic youth are preparing for you what will fill
your hearts with horror''). Given that al Qaeda's leaders have
repeatedly made good on their threats and that al Qaeda has
demonstrated its ability to insert foreign agents into the
United States to execute attacks, it is clear that the threat
continues. Indeed, since September 11th, al Qaeda has staged
several large-scale attacks around the world, including in
Indonesia, Madrid, and London, killing hundreds of innocent
people.
ANALYSIS
I. The President has inherent constitutional authority to order
warrantless foreign intelligence surveillance
As Congress expressly recognized in the AUMF, ``the
President has authority under the Constitution to take action
to deter and prevent acts of international terrorism against
the United States,'' AUMF pmbl., especially in the context of
the current conflict. Article II of the Constitution vests in
the President all executive power of the United States,
including the power to act as Commander in Chief of the Armed
Forces, see U.S. Const. art. II, Sec. 2, and authority over the
conduct of the Nation's foreign affairs. As the Supreme Court
has explained, ``[t]he President is the sole organ of the
nation in its external relations, and its sole representative
with foreign nations.'' United States v. Curtiss-Wright Export
Corp., 299 U.S. 304, 319 (1936) (internal quotation marks and
citations omitted). In this way, the Constitution grants the
President inherent power to protect the Nation from foreign
attack, see, e.g., The Prize Cases, 67 U.S. (2 Black) 635, 668
(1863), and to protect national security information, see,
e.g., Department of the Navy v. Egan, 484 U.S. 518, 527 (1988).
To carry out these responsibilities, the President must
have authority to gather information necessary for the
execution of his office. The Founders, after all, intended the
federal Government to be clothed with all authority necessary
to protect the Nation. See, e.g., The Federalist No. 23, at 147
(Alexander Hamilton) (Jacob E. Cooke ed. 1961) (explaining that
the federal Government will be ``cloathed with all the powers
requisite to the complete execution of its trust''); id. No.
41, at 269 (James Madison) (``Security against foreign danger
is one of the primitive objects of civil society. . . . The
powers requisite for attaining it must be effectually confided
to the federal councils.''). Because of the structural
advantages of the Executive Branch, the Founders also intended
that the President would have the primary responsibility and
necessary authority as Commander in Chief and Chief Executive
to protect the Nation and to conduct the Nation's foreign
affairs. See, e.g., The Federalist No. 70, at 471-72 (Alexander
Hamilton); see also Johnson v. Eisentrager, 339 U.S. 763, 788
(1950) (``this [constitutional] grant of war power includes all
that is necessary and proper for carrying these powers into
execution'') (citation omitted). Thus, it has been long
recognized that the President has the authority to use
secretive means to collect intelligence necessary for the
conduct of foreign affairs and military campaigns. See, e.g.,
Chicago & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103,
111 (1948) (``The President, both as Commander-in-Chief and as
the Nation's organ for foreign affairs, has available
intelligence services whose reports are not and ought not to be
published to the world.''); Curtiss-Wright, 299 U.S. at 320
(``He has his confidential sources of information. He has his
agents in the form of diplomatic, consular and other
officials.''); Totten v. United States, 92 U.S. 105, 106 (1876)
(President ``was undoubtedly authorized during the war, as
commander-in-chief . . . to employ secret agents to enter the
rebel lines and obtain information respecting the strength,
resources, and movements of the enemy'').
In reliance on these principles, a consistent understanding
has developed that the President has inherent constitutional
authority to conduct warrantless searches and surveillance
within the United States for foreign intelligence purposes.
Wiretaps for such purposes thus have been authorized by
Presidents at least since the administration of Franklin
Roosevelt in 1940. See, e.g., United States v. United States
District Court, 444 F.2d 651, 669-71 (6th Cir. 1971)
(reproducing as an appendix memoranda from Presidents
Roosevelt, Truman, and Johnson). In a Memorandum to Attorney
General Jackson, President Roosevelt wrote on May 21, 1940:
You are, therefore, authorized and directed in such
cases as you may approve, after investigation of the
need in each case, to authorize the necessary
investigation agents that they are at liberty to secure
information by listening devices directed to the
conversation or other communications of persons
suspected of subversive activities against the
Government of the United States, including suspected
spies. You are requested furthermore to limit these
investigations so conducted to a minimum and limit them
insofar as possible to aliens.
Id. at 670 (appendix A). President Truman approved a memorandum
drafted by Attorney General Tom Clark in which the Attorney
General advised that ``it is as necessary as it was in 1940 to
take the investigative measures'' authorized by President
Roosevelt to conduct electronic surveillance ``in cases vitally
affecting the domestic security.'' Id. Indeed, while FISA was
being debated during the Carter Administration, Attorney
General Griffin Bell testified that ``the current bill
recognizes no inherent power of the President to conduct
electronic surveillance, and I want to interpolate here to say
that this does not take away the power [of] the President under
the Constitution.'' Foreign Intelligence Electronic
Surveillance Act of 1978: Hearings on H.R. 5764, H.R. 9745,
H.R. 7308, and H.R. 5632 Before the Subcomm. on Legislation of
the House Comm. on Intelligence, 95th Cong., 2d Sess. 15 (1978)
(emphasis added); see also Katz v. United States, 389 U.S. 347,
363 (1967) (White, J., concurring) (``Wiretapping to protect
the security of the Nation has been authorized by successive
Presidents.''); cf. Amending the Foreign Intelligence
Surveillance Act: Hearings Before the House Permanent Select
Comm. on Intelligence, 103d Cong. 2d Sess. 61 (1994) (statement
of Deputy Attorney General Jamie S. Gorelick) (``[T]he
Department of Justice believes, and the case law supports, that
the President has inherent authority to conduct warrantless
physical searches for foreign intelligence purposes. . . .'').
The courts uniformly have approved this longstanding
Executive Branch practice. Indeed, every federal appellate
court to rule on the question has concluded that, even in
peacetime, the President has inherent constitutional authority,
consistent with the Fourth Amendment, to conduct searches for
foreign intelligence purposes without securing a judicial
warrant. See In re Sealed Case, 310 F.3d 717, 742 (Foreign
Intel. Surv. Ct. of Rev. 2002) (``[A]ll the other courts to
have decided the issue [have] held that the President did have
inherent authority to conduct warrantless searches to obtain
foreign intelligence information. . . . We take for granted
that the President does have that authority and, assuming that
is so, FISA could not encroach on the President's
constitutional power.'') (emphasis added); accord, e.g., United
States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980);
United States v. Butenko, 494 F.2d 593 (3d Cir. 1974) (en
banc); United States v. Brown, 484 F.2d 418 (5th Cir. 1973).
But cf. Zweibon v. Mitchell, 516 F.2d 594 (D.C. Cir. 1975) (en
banc) (dictum in plurality opinion suggesting that a warrant
would be required even in a foreign intelligence
investigation).
In United States v. United States District Court, 407 U.S.
297 (1972) (the ``Keith'' case), the Supreme Court concluded
that the Fourth Amendment's warrant requirement applies to
investigations of wholly domestic threats to security--such as
domestic political violence and other crimes. But the Court in
the Keith case made clear that it was not addressing the
President's authority to conduct foreign intelligence
surveillance without a warrant and that it was expressly
reserving that question: ``[T]he instant case requires no
judgment on the scope of the President's surveillance power
with respect to the activities of foreign powers, within or
without this country.'' Id. at 308; see also Id. at 321-22 &
n.20 (``We have not addressed, and express no opinion as to,
the issues which may be involved with respect to activities of
foreign powers or their agents.''). That Keith does not apply
in the context of protecting against a foreign attack has been
confirmed by the lower courts. After Keith, each of the three
courts of appeals that have squarely considered the question
have concluded--expressly taking the Supreme Court's decision
into account--that the President has inherent authority to
conduct warrantless surveillance in the foreign intelligence
context. See, e.g., Truong Dinh Hung, 629 F.2d at 913-14;
Butenko, 494 F.2d at 603; Brown, 484 F.2d 425-26.
From a constitutional standpoint, foreign intelligence
surveillance such as the NSA activities differs fundamentally
from the domestic security surveillance at issue in Keith. As
the Fourth Circuit observed, the President has uniquely strong
constitutional powers in matters pertaining to foreign affairs
and national security. ``Perhaps most crucially, the executive
branch not only has superior expertise in the area of foreign
intelligence, it is also constitutionally designated as the
pre-eminent authority in foreign affairs.'' Truong, 629 F.2d at
914; see id. at 913 (noting that ``the needs of the executive
are so compelling in the area of foreign intelligence, unlike
the area of domestic security, that a uniform warrant
requirement would . . . unduly frustrate the President in
carrying out his foreign affairs responsibilities''); cf. Haig
v. Agee, 453 U.S. 280, 292 (1981) (``Matters intimately related
to foreign policy and national security are rarely proper
subjects for judicial intervention.''). \2\
---------------------------------------------------------------------------
\2\ Keith made clear that one of the significant concerns driving
the Court's conclusion in the domestic security context was the
inevitable connection between perceived threats to domestic security
and political dissent. As the Court explained: ``Fourth Amendment
protections become the more necessary when the targets of official
surveillance may be those suspected of unorthodoxy in their political
beliefs. The danger to political dissent is acute where the Government
attempts to act under so vague a concept as the power to protect
`domestic security.' '' Keith, 407 U.S. at 314; see also id. at 320
(``Security surveillances are especially sensitive because of the
inherent vagueness of the domestic security concept, the necessarily
broad and continuing nature of intelligence gathering, and the
temptation to utilize such surveillances to oversee political
dissent.''). Surveillance of domestic groups raises a First Amendment
concern that generally is not present when the subjects of the
surveillance are foreign powers or their agents.
---------------------------------------------------------------------------
The present circumstances that support recognition of the
President's inherent constitutional authority to conduct the
NSA activities are considerably stronger than were the
circumstances at issue in the earlier courts of appeals cases
that recognized this power. All of the cases described above
addressed inherent executive authority under the foreign
affairs power to conduct surveillance in a peacetime context.
The courts in these cases therefore had no occasion even to
consider the fundamental authority of the President, as
Commander in Chief, to gather intelligence in the context of an
ongoing armed conflict in which the United States already had
suffered massive civilian casualties and in which the
intelligence gathering efforts at issue were specifically
designed to thwart further armed attacks. Indeed, intelligence
gathering is particularly important in the current conflict, in
which the enemy attacks largely through clandestine activities
and which, as Congress recognized, ``pose[s] an unusual and
extraordinary threat,'' AUMF pmbl.
Among the President's most basic constitutional duties is
the duty to protect the Nation from armed attack. The
Constitution gives him all necessary authority to fulfill that
responsibility. The courts thus have long acknowledged the
President's inherent authority to take action to protect
Americans abroad, see, e.g., Durand v. Hollins, 8 F. Cas. 111,
112 (C.C.S.D.N.Y. 1860) (No. 4186), and to protect the Nation
from attack, see, e.g., The Prize Cases, 67 U.S. at 668. See
generally Ex parte Quirin, 317 U.S. 1, 28 (1942) (recognizing
that the President has authority under the Constitution ``to
direct the performance of those functions which may
constitutionally be performed by the military arm of the nation
in time of war,'' including ``important incident[s] to the
conduct of war,'' such as ``the adoption of measures by the
military command . . . to repel and defeat the enemy''). As the
Supreme Court emphasized in the Prize Cases, if the Nation is
invaded, the President is ``bound to resist force by force'';
``[h]e must determine what degree of force the crisis demands''
and need not await congressional sanction to do so. The Prize
Cases, 67 U.S. at 670; see also Campbell v. Clinton, 203 F.3d
19, 27 (D.C. Cir. 2000) (Silberman, J., concurring) (``[T]he
Prize Cases . . . stand for the proposition that the President
has independent authority to repel aggressive acts by third
parties even without specific congressional authorization, and
courts may not review the level of force selected.''); id. at
40 (Tatel, J., concurring) (``[T]he President, as commander in
chief, possesses emergency authority to use military force to
defend the nation from attack without obtaining prior
congressional approval.''). Indeed, ``in virtue of his rank as
head of the forces, [the President] has certain powers and
duties with which Congress cannot interfere.'' Training of
British Flying Students in the United States, 40 Op. Att'y Gen.
58, 61 (1941) (Attorney General Robert H. Jackson) (internal
quotation marks omitted). In exercising his constitutional
powers, the President has wide discretion, consistent with the
Constitution, over the methods of gathering intelligence about
the Nation's enemies in a time of armed conflict.
II. The AUMF confirms and supplements the President's inherent power to
use warrantless surveillance against the enemy in the current
armed conflict
In the Authorization for Use of Military Force enacted in
the wake of September 11th, Congress confirms and supplements
the President's constitutional authority to protect the Nation,
including through electronic surveillance, in the context of
the current post-September 11th armed conflict with al Qaeda
and its allies. The broad language of the AUMF affords the
President, at a minimum, discretion to employ the traditional
incidents of the use of military force. The history of the
President's use of warrantless surveillance during armed
conflicts demonstrates that the NSA surveillance described by
the President is a fundamental incident of the use of military
force that is necessarily included in the AUMF.
A. The text and purpose of the AUMF authorize the NSA
activities
On September 14, 2001, in its first legislative response to
the attacks of September 11th, Congress gave its express
approval to the President's military campaign against al Qaeda
and, in the process, confirmed the well-accepted understanding
of the President's Article II powers. See AUMF Sec. 2(a). \3\
In the preamble to the AUMF, Congress stated that ``the
President has authority under the Constitution to take action
to deter and prevent acts of international terrorism against
the United States,'' AUMF pmbl., and thereby acknowledged the
President's inherent constitutional authority to defend the
United States. This clause ``constitutes an extraordinarily
sweeping recognition of independent presidential constitutional
power to employ the war power to combat terrorism.'' Michael
Stokes Paulsen, Youngstown Goes to War, 19 Const. Comment. 215,
252 (2002). This striking recognition of presidential authority
cannot be discounted as the product of excitement in the
immediate aftermath of September 11th, for the same terms were
repeated by Congress more than a year later in the
Authorization for Use of Military Force Against Iraq Resolution
of 2002. Pub. L. No. 107-243, pmbl., 116 Stat. 1498, 1500 (Oct.
16, 2002) (``[T]he President has authority under the
Constitution to take action in order to deter and prevent acts
of international terrorism against the United States . . .
.''). In the context of the conflict with al Qaeda and related
terrorist organizations, therefore, Congress has acknowledged a
broad executive authority to ``deter and prevent'' further
attacks against the United States.
---------------------------------------------------------------------------
\3\ America's military response began before the attacks of
September 11th had been completed. See The 9/11 Commission Report 20
(2004). Combat air patrols were established and authorized ``to engage
inbound aircraft if they could verify that the aircraft was hijacked.''
Id. at 42.
---------------------------------------------------------------------------
The AUMF passed by Congress on September 14, 2001, does not
lend itself to a narrow reading. Its expansive language
authorizes the President ``to use all necessary and appropriate
force against those nations, organizations, or persons he
determines planned, authorized, committed, or aided the
terrorist attacks that occurred on September 11, 2001.'' AUMF
Sec. 2(a) (emphases added). In the field of foreign affairs,
and particularly that of war powers and national security,
congressional enactments are to be broadly construed where they
indicate support for authority long asserted and exercised by
the Executive Branch. See, e.g., Haig v. Agee, 453 U.S. 280,
293-303 (1981); United States ex rel. Knauff v. Shaughnessy,
338 U.S. 537, 543-45 (1950); cf. Loving v. United States, 517
U.S. 748, 772 (1996) (noting that the usual ``limitations on
delegation [of congressional powers] do not apply'' to
authorizations linked to the Commander in Chief power); Dames &
Moore v. Regan, 453 U.S. 654, 678-82 (1981) (even where there
is no express statutory authorization for executive action,
legislation in related field may be construed to indicate
congressional acquiescence in that action). Although Congress's
war powers under Article I, Section 8 of the Constitution
empower Congress to legislate regarding the raising,
regulation, and material support of the Armed Forces and
related matters, rather than the prosecution of military
campaigns, the AUMF indicates Congress's endorsement of the
President's use of his constitutional war powers. This
authorization transforms the struggle against al Qaeda and
related terrorist organizations from what Justice Jackson
called ``a zone of twilight,'' in which the President and the
Congress may have concurrent powers whose ``distribution is
uncertain,'' Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.
579, 637 (1952) (Jackson, J., concurring), into a situation in
which the President's authority is at its maximum because ``it
includes all that he possesses in his own right plus all that
Congress can delegate,'' id. at 635. With regard to these
fundamental tools of warfare--and, as demonstrated below,
warrantless electronic surveillance against the declared enemy
is one such tool--the AUMF places the President's authority at
its zenith under Youngstown.
It is also clear that the AUMF confirms and supports the
President's use of those traditional incidents of military
force against the enemy, wherever they may be--on United States
soil or abroad. The nature of the September 11th attacks--
launched on United States soil by foreign agents secreted in
the United States--necessitates such authority, and the text of
the AUMF confirms it. The operative terms of the AUMF state
that the President is authorized to use force ``in order to
prevent any future acts of international terrorism against the
United States,'' id., an objective which, given the recent
attacks within the Nation's borders and the continuing use of
air defense throughout the country at the time Congress acted,
undoubtedly contemplated the possibility of military action
within the United States. The preamble, moreover, recites that
the United States should exercise its rights ``to protect
United States citizens both at home and abroad.'' Id. pmbl.
(emphasis added). To take action against those linked to the
September 11th attacks involves taking action against
individuals within the United States. The United States had
been attacked on its own soil--not by aircraft launched from
carriers several hundred miles away, but by enemy agents who
had resided in the United States for months. A crucial
responsibility of the President--charged by the AUMF and the
Constitution--was and is to identify and attack those enemies,
especially if they were in the United States, ready to strike
against the Nation.
The text of the AUMF demonstrates in an additional way that
Congress authorized the President to conduct warrantless
electronic surveillance against the enemy. The terms of the
AUMF not only authorized the President to ``use all necessary
and appropriate force'' against those responsible for the
September 11th attacks; it also authorized the President to
``determine[]'' the persons or groups responsible for those
attacks and to take all actions necessary to prevent further
attacks. AUMF Sec. 2(a) (``the President is authorized to use
all necessary and appropriate force against those nations,
organizations, or persons he determines planned, authorized,
committed, or aided the terrorist attacks that occurred on
September 11th, 2001, or harbored such organizations or
persons'') (emphasis added). Of vital importance to the use of
force against the enemy is locating the enemy and identifying
its plans of attack. And of vital importance to identifying the
enemy and detecting possible future plots was the authority to
intercept communications to or from the United States of
persons with links to al Qaeda or related terrorist
organizations. Given that the agents who carried out the
initial attacks resided in the United States and had
successfully blended into American society and disguised their
identities and intentions until they were ready to strike, the
necessity of using the most effective intelligence gathering
tools against such an enemy, including electronic surveillance,
was patent. Indeed, Congress recognized that the enemy in this
conflict poses an ``unusual and extraordinary threat.'' AUMF
pmbl.
The Supreme Court's interpretation of the scope of the AUMF
in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), strongly supports
this reading of the AUMF. In Hamdi, five members of the Court
found that the AUMF authorized the detention of an American
within the United States, notwithstanding a statute that
prohibits the detention of U.S. citizens ``except pursuant to
an Act of Congress,'' 18 U.S.C. 4001(a). See Hamdi, 542 U.S. at
519 (plurality opinion); id. at 587 (Thomas, J., dissenting).
Drawing on historical materials and ``longstanding law-of-war
principles,'' id. at 518-21, a plurality of the Court concluded
that detention of combatants who fought against the United
States as part of an organization ``known to have supported''
al Qaeda ``is so fundamental and accepted an incident to war as
to be an exercise of the `necessary and appropriate force'
Congress has authorized the President to use.'' Id. at 518; see
also id. at 587 (Thomas, J., dissenting) (agreeing with the
plurality that the joint resolution authorized the President to
``detain those arrayed against our troops''); accord Quirin,
317 U.S. at 26-29, 38 (recognizing the President's authority to
capture and try agents of the enemy in the United States even
if they had never ``entered the theatre or zone of active
military operations''). Thus, even though the AUMF does not say
anything expressly about detention, the Court nevertheless
found that it satisfied section 4001(a)'s requirement that
detention be congressionally authorized.
The conclusion of five Justices in Hamdi that the AUMF
incorporates fundamental ``incidents'' of the use of military
force makes clear that the absence of any specific reference to
signals intelligence activities in the resolution is
immaterial. See Hamdi, 542 U.S. at 519 (``[I]t is of no moment
that the AUMF does not use specific language of detention.'')
(plurality opinion). Indeed, given the circumstances in which
the AUMF was adopted, it is hardly surprising that Congress
chose to speak about the President's authority in general
terms. The purpose of the AUMF was for Congress to sanction and
support the military response to the devastating terrorist
attacks that had occurred just three days earlier. Congress
evidently thought it neither necessary nor appropriate to
attempt to catalog every specific aspect of the use of the
forces it was authorizing and every potential preexisting
statutory limitation on the Executive Branch. Rather than
engage in that difficult and impractical exercise, Congress
authorized the President, in general but intentionally broad
terms, to use the traditional and fundamental incidents of war
and to determine how best to identify and engage the enemy in
the current armed conflict. Congress's judgment to proceed in
this manner was unassailable, for, as the Supreme Court has
recognized, even in normal times involving no major national
security crisis, ``Congress cannot anticipate and legislate
with regard to every possible action the President may find it
necessary to take.'' Dames & Moore, 453 U.S. at 678. Indeed,
Congress often has enacted authorizations to use military force
using general authorizing language that does not purport to
catalogue in detail the specific powers the President may
employ. The need for Congress to speak broadly in recognizing
and augmenting the President's core constitutional powers over
foreign affairs and military campaigns is of course
significantly heightened in times of national emergency. See
Zemel v. Rusk, 381 U.S. 1, 17 (1965) (``[B]ecause of the
changeable and explosive nature of contemporary international
relations . . . Congress--in giving the Executive authority
over matters of foreign affairs--must of necessity paint with a
brush broader than that it customarily wields in domestic
areas.'').
Hamdi thus establishes the proposition that the AUMF
``clearly and unmistakably'' authorizes the President to take
actions against al Qaeda and related organizations that amount
to ``fundamental incident[s] of waging war.'' Hamdi, 542 U.S.
at 519 (plurality opinion); see also id. at 587 (Thomas, J.,
dissenting). In other words, ``[t]he clear inference is that
the AUMF authorizes what the laws of war permit.'' Curtis A.
Bradley & Jack L. Goldsmith, Congressional Authorization and
the War on Terrorism, 118 Harv. L. Rev. 2048, 2092 (2005)
(emphasis added). Congress is presumed to be aware of the
Supreme Court's precedents. Indeed, Congress recently enacted
legislation in response to the Court's decision in Rasul v.
Bush, 542 U.S. 466 (2004)--which was issued the same day as the
Hamdi decision--removing habeas corpus jurisdiction over claims
filed on behalf of confined enemy combatants held at Guantanamo
Bay. Congress, however, has not expressed any disapproval of
the Supreme Court's commonsense and plain-meaning
interpretation of the AUMF in Hamdi.\4\
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\4\ This understanding of the AUMF is consistent with Justice
O'Connor's admonition that ``a state of war is not a blank check for
the President,'' Hamdi, 542 U.S. at 536 (plurality opinion). In
addition to constituting a fundamental and accepted incident of the use
of military force, the NSA activities are consistent with the law of
armed conflict principle that the use of force be necessary and
proportional. See Dieter Fleck, The Handbook of Humanitarian Law in
Armed Conflicts 115 (1995). The NSA activities are proportional because
they are minimally invasive and narrow in scope, targeting only the
international communications of persons reasonably believed to be
linked to al Qaeda, and are designed to protect the Nation from a
devastating attack.
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B. Warrantless electronic surveillance aimed at
intercepting enemy communications has long been
recognized as a fundamental incident of the use of
military force
The history of warfare--including the consistent practice
of Presidents since the earliest days of the Republic--
demonstrates that warrantless intelligence surveillance against
the enemy is a fundamental incident of the use of military
force, and this history confirms the statutory authority
provided by the AUMF. Electronic surveillance is a fundamental
tool of war that must be included in any natural reading of the
AUMF's authorization to use ``all necessary and appropriate
force.''
As one author has explained:
It is essential in warfare for a belligerent to be as
fully informed as possible about the enemy--his
strength, his weaknesses, measures taken by him and
measures contemplated by him. This applies not only to
military matters, but . . . anything which bears on and
is material to his ability to wage the war in which he
is engaged. The laws of war recognize and sanction this
aspect of warfare.
Morris Greenspan, The Modern Law of Land Warfare 325 (1959)
(emphases added); see also Memorandum for Members of the House
Permanent Select Comm. on Intel., from Jeffrey H. Smith, Re:
Legal Authorities Regarding Warrantless Surveillance of U.S.
Persons 6 (Jan. 3, 2006) (``Certainly, the collection of
intelligence is understood to be necessary to the execution of
the war.''). Similarly, article 24 of the Hague Regulations of
1907 expressly states that ``the employment of measures
necessary for obtaining information about the enemy and the
country [is] considered permissible.'' See also L. Oppenheim,
International Law vol. II Sec. 159 (7th ed. 1952) (``War cannot
be waged without all kinds of information, about the forces and
the intentions of the enemy . . . . To obtain the necessary
information, it has always been considered lawful to employ
spies . . . .''); Joseph R. Baker & Henry G. Crocker, The Laws
of Land Warfare 197 (1919) (``Every belligerent has a right . .
. to discover the signals of the enemy and . . . to seek to
procure information regarding the enemy through the aid of
secret agents.''); cf. J.M. Spaight, War Rights on Land 205
(1911) (``[E]very nation employs spies; were a nation so
quixotic as to refrain from doing so, it might as well sheathe
its sword for ever. . . . Spies . . . are indispensably
necessary to a general; and, other things being equal, that
commander will be victorious who has the best secret
service.'') (internal quotation marks omitted).
In accordance with these well-established principles, the
Supreme Court has consistently recognized the President's
authority to conduct intelligence activities. See, e.g., Totten
v. United States, 92 U.S. 105, 106 (1876) (recognizing
President's authority to hire spies); Tenet v. Doe, 544 U.S. 1
(2005) (reaffirming Totten and counseling against judicial
interference with such matters); see also Chicago & S. Air
Lines v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948) (``The
President, both as Commander-in-Chief and as the Nation's organ
for foreign affairs, has available intelligence services whose
reports neither are not and ought not to be published to the
world.''); United States v. Curtiss-Wright Export Corp., 299
U.S. 304, 320 (1936) (The President ``has his confidential
sources of information. He has his agents in the form of
diplomatic, consular, and other officials.''). Chief Justice
John Marshall even described the gathering of intelligence as a
military duty. See Tatum v. Laird, 444 F.2d 947, 952-53 (D.C.
Cir. 1971) (``As Chief Justice John Marshall said of
Washington, `A general must be governed by his intelligence and
must regulate his measures by his information. It is his duty
to obtain correct information . . . .' '') (quoting Foreword,
U.S. Army Basic Field Manual, Vol. X, circa 1938), rev'd on
other grounds, 408 U.S. 1 (1972).
The United States, furthermore, has a long history of
wartime surveillance--a history that can be traced to George
Washington, who ``was a master of military espionage'' and
``made frequent and effective use of secret intelligence in the
second half of the eighteenth century.'' Rhodri Jeffreys-Jones,
Cloak and Dollar: A History of American Secret Intelligence 11
(2002); see generally id. at 11-23 (recounting Washington's use
of intelligence); see also Haig v. Agee, 471 U.S. 159, 172 n.16
(1981) (quoting General Washington's letter to an agent
embarking upon an intelligence mission in 1777: ``The necessity
of procuring good intelligence, is apparent and need not be
further urged.''). As President in 1790, Washington obtained
from Congress a ``secret fund'' to deal with foreign dangers
and to be spent at his discretion. Jeffreys-Jones, supra, at
22. The fund, which remained in use until the creation of the
Central Intelligence Agency in the mid-twentieth century and
gained ``longstanding acceptance within our constitutional
structure,'' Halperin v. CIA, 629 F.2d 144, 158-59 (D.C. Cir.
1980), was used ``for all purposes to which a secret service
fund should or could be applied for the public benefit,''
including ``for persons sent publicly and secretly to search
for important information, political or commercial,'' id. at
159 (quoting Statement of Senator John Forsyth, Cong. Debates
295 (Feb. 25, 1831)). See also Totten, 92 U.S. at 107 (refusing
to examine payments from this fund lest the publicity make a
``secret service'' ``impossible'').
The interception of communications, in particular, has long
been accepted as a fundamental method for conducting wartime
surveillance. See, e.g., Greenspan, supra, at 326 (accepted and
customary means for gathering intelligence ``include air
reconnaissance and photography; ground reconnaissance;
observation of enemy positions; interception of enemy messages,
wireless and other; examination of captured documents; . . .
and interrogation of prisoners and civilian inhabitants'')
(emphasis added). Indeed, since its independence, the United
States has intercepted communications for wartime intelligence
purposes and, if necessary, has done so within its own borders.
During the Revolutionary War, for example, George Washington
received and used to his advantage reports from American
intelligence agents on British military strength, British
strategic intentions, and British estimates of American
strength. See Jeffreys-Jones, supra, at 13. One source of
Washington's intelligence was intercepted British mail. See
Central Intelligence Agency, Intelligence in the War of
Independence 31, 32 (1997). In fact, Washington himself
proposed that one of his Generals ``contrive a means of opening
[British letters] without breaking the seals, take copies of
the contents, and then let them go on.'' Id. at 32 (``From that
point on, Washington was privy to British intelligence pouches
between New York and Canada.''); see generally Final Report of
the Select Committee to Study Governmental Operations with
respect to Intelligence Activities (the ``Church Committee''),
S. Rep. No. 94-755, at Book VI, 9-17 (Apr. 23, 1976)
(describing Washington's intelligence activities).
More specifically, warrantless electronic surveillance of
wartime communications has been conducted in the United States
since electronic communications have existed, i.e., since at
least the Civil War, when ``[t]elegraph wiretapping was common,
and an important intelligence source for both sides.'' G.J.A.
O'Toole, The Encyclopedia of American Intelligence and
Espionage 498 (1988). Confederate General J.E.B. Stuart even
``had his own personal wiretapper travel along with him in the
field'' to intercept military telegraphic communications.
Samuel Dash, et al., The Eavesdroppers 23 (1971); see also
O'Toole, supra, at 121, 385-88, 496-98 (discussing Civil War
surveillance methods such as wiretaps, reconnaissance balloons,
semaphore interception, and cryptanalysis). Similarly, there
was extensive use of electronic surveillance during the
Spanish-American War. See Bruce W. Bidwell, History of the
Military Intelligence Division, Department of the Army General
Staff: 1775-1941, at 62 (1986). When an American expeditionary
force crossed into northern Mexico to confront the forces of
Pancho Villa in 1916, the Army ``frequently intercepted
messages of the regime in Mexico City or the forces contesting
its rule.'' David Alvarez, Secret Messages 6-7 (2000). Shortly
after Congress declared war on Germany in World War I,
President Wilson (citing only his constitutional powers and the
joint resolution declaring war) ordered the censorship of
messages sent outside the United States via submarine cables,
telegraph, and telephone lines. See Exec. Order No. 2604 (Apr.
28, 1917). During that war, wireless telegraphy ``enabled each
belligerent to tap the messages of the enemy.'' Bidwell, supra,
at 165 (quoting statement of Col. W. Nicolai, former head of
the Secret Service of the High Command of the German Army, in
W. Nicolai, The German Secret Service 21 (1924)).
As noted in Part I, on May 21, 1940, President Roosevelt
authorized warrantless electronic surveillance of persons
suspected of subversive activities, including spying, against
the United States. In addition, on December 8, 1941, the day
after the attack on Pearl Harbor, President Roosevelt gave the
Director of the FBI ``temporary powers to direct all news
censorship and to control all other telecommunications traffic
in and out of the United States.'' Jack A. Gottschalk,
``Consistent with Security''. . . . A History of American
Military Press Censorship, 5 Comm. & L. 35, 39 (1983) (emphasis
added). See Memorandum for the Secretaries of War, Navy, State,
and Treasury, the Postmaster General, and the Federal
Communications Commission from Franklin D. Roosevelt (Dec. 8,
1941). President Roosevelt soon supplanted that temporary
regime by establishing an office for conducting such electronic
surveillance in accordance with the War Powers Act of 1941. See
Pub. L. No. 77-354, Sec. 303, 55 Stat. 838, 840-41 (Dec. 18,
1941); Gottschalk, 5 Comm. & L. at 40. The President's order
gave the Government of the United States access to
``communications by mail, cable, radio, or other means of
transmission passing between the United States and any foreign
country.'' Id. See also Exec. Order No. 8985, Sec. 1, 6 Fed.
Reg. 6625, 6625 (Dec. 19, 1941). In addition, the United States
systematically listened surreptitiously to electronic
communications as part of the war effort. See Dash,
Eavesdroppers, at 30. During World War II, signals intelligence
assisted in, among other things, the destruction of the German
U-boat fleet by the Allied naval forces, see id. at 27, and the
war against Japan, see O'Toole, supra, at 32, 323-24. In
general, signals intelligence ``helped to shorten the war by
perhaps two years, reduce the loss of life, and make inevitable
an eventual Allied victory.'' Carl Boyd, American Command of
the Sea Through Carriers, Codes, and the Silent Service: World
War II and Beyond, 27 (1995); see also Alvarez, supra, at 1
(``There can be little doubt that signals intelligence
contributed significantly to the military defeat of the
Axis.''). Significantly, not only was wiretapping in World War
II used ``extensively by military intelligence and secret
service personnel in combat areas abroad,'' but also ``by the
FBI and secret service in this country.'' Dash, supra, at 30.
In light of the long history of prior wartime practice, the
NSA activities fit squarely within the sweeping terms of the
AUMF. The use of signals intelligence to identify and pinpoint
the enemy is a traditional component of wartime military
operations--or, to use the terminology of Hamdi, a
``fundamental and accepted . . . incident to war,'' 542 U.S. at
518 (plurality opinion)--employed to defeat the enemy and to
prevent enemy attacks in the United States. Here, as in other
conflicts, the enemy may use public communications networks,
and some of the enemy may already be in the United States.
Although those factors may be present in this conflict to a
greater degree than in the past, neither is novel. Certainly,
both factors were well known at the time Congress enacted the
AUMF. Wartime interception of international communications made
by the enemy thus should be understood, no less than the
wartime detention at issue in Hamdi, as one of the basic
methods of engaging and defeating the enemy that Congress
authorized in approving ``all necessary and appropriate force''
that the President would need to defend the Nation. AUMF
Sec. 2(a) (emphasis added).
Accordingly, the President has the authority to conduct
warrantless electronic surveillance against the declared enemy
of the United States in a time of armed conflict. That
authority derives from the Constitution, and is reinforced by
the text and purpose of the AUMF, the nature of the threat
posed by al Qaeda that Congress authorized the President to
repel, and the long-established understanding that electronic
surveillance is a fundamental incident of the use of military
force. The President's power in authorizing the NSA activities
is at its zenith because he has acted ``pursuant to an express
or implied authorization of Congress.'' Youngstown, 343 U.S. at
635 (Jackson, J., concurring).
III. The NSA activities are consistent with the foreign intelligence
surveillance act
The President's exercise of his constitutional authority to
conduct warrantless wartime electronic surveillance of the
enemy, as confirmed and supplemented by statute in the AUMF, is
fully consistent with the requirements of the Foreign
Intelligence Surveillance Act (``FISA'').\5\ FISA is a
critically important tool in the War on Terror. The United
States makes full use of the authorities available under FISA
to gather foreign intelligence information, including
authorities to intercept communications, conduct physical
searches, and install and use pen registers and trap and trace
devices. While FISA establishes certain procedures that must be
followed for these authorities to be used (procedures that
usually involve applying for and obtaining an order from a
special court), FISA also expressly contemplates that a later
legislative enactment could authorize electronic surveillance
outside the procedures set forth in FISA itself. The AUMF
constitutes precisely such an enactment. To the extent there is
any ambiguity on this point, the canon of constitutional
avoidance requires that such ambiguity be resolved in favor of
the President's authority to conduct the communications
intelligence activities he has described. Finally, if FISA
could not be read to allow the President to authorize the NSA
activities during the current congressionally authorized armed
conflict with al Qaeda, FISA would be unconstitutional as
applied in this narrow context.
---------------------------------------------------------------------------
\5\ To avoid revealing details about the operation of the program,
it is assumed for purposes of this paper that the activities described
by the President constitute ``electronic surveillance,'' as defined by
FISA, 50 U.S.C. Sec. 1801(f).
---------------------------------------------------------------------------
A. The requirements of FISA
FISA was enacted in 1978 to regulate ``electronic
surveillance,'' particularly when conducted to obtain ``foreign
intelligence information,'' as those terms are defined in
section 101 of FISA, 50 U.S.C. Sec. 1801. As a general matter,
the statute requires that the Attorney General approve an
application for an order from a special court composed of
Article III judges and created by FISA--the Foreign
Intelligence Surveillance Court (``FISC''). See 50 U.S.C.
Sec. Sec. 1803-1804. The application must demonstrate, among
other things, that there is probable cause to believe that the
target is a foreign power or an agent of a foreign power. See
id. Sec. 1805(a)(3)(A). It must also contain a certification
from the Assistant to the President for National Security
Affairs or an officer of the United States appointed by the
President with the advice and consent of the Senate and having
responsibilities in the area of national security or defense
that the information sought is foreign intelligence information
and cannot reasonably be obtained by normal investigative
means. See id. Sec. 1804(a)(7). FISA further requires the
Government to state the means that it proposes to use to obtain
the information and the basis for its belief that the
facilities at which the surveillance will be directed are being
used or are about to be used by a foreign power or an agent of
a foreign power. See id. Sec. 1804(a)(4), (a)(8).
FISA was the first congressional measure that sought to
impose restrictions on the Executive Branch's authority to
engage in electronic surveillance for foreign intelligence
purposes, an authority that, as noted above, had been
repeatedly recognized by the federal courts. See Americo R.
Cinquegrana, The Walls (and Wires) Have Ears: The Background
and First Ten Years of the Foreign Intelligence Surveillance
Act of 1978, 137 U. Penn. L. Rev. 793, 810 (1989) (stating that
the ``status of the President's inherent authority'' to conduct
surveillance ``formed the core of subsequent legislative
deliberations'' leading to the enactment of FISA). To that end,
FISA modified a provision in Title III that previously had
disclaimed any intent to have laws governing wiretapping
interfere with the President's constitutional authority to
gather foreign intelligence. Prior to the passage of FISA,
section 2511(3) of title 18 had stated that ``[n]othing
contained in this chapter or in section 605 of the
Communications Act of 1934 . . . shall limit the constitutional
power of the President to take such measures as he deems
necessary to protect the Nation against actual or potential
attack or other hostile acts of a foreign power, to obtain
foreign intelligence information deemed essential to the
security of the United States, or to protect national security
information against foreign intelligence activities.'' 18
U.S.C. Sec. 2511(3) (1970). FISA replaced that provision with
an important, though more limited, preservation of authority
for the President. See Pub. L. No. 95-511, Sec. 201(b), (c), 92
Stat. 1783, 1797 (1978), codified at 18 U.S.C. Sec. 2511(2)(f)
(West Supp. 2005) (carving out from statutory regulation only
the acquisition of intelligence information from
``international or foreign communications'' and ``foreign
intelligence activities . . . involving a foreign electronic
communications system'' as long as they are accomplished
``utilizing a means other than electronic surveillance as
defined in section 101'' of FISA). Congress also defined
``electronic surveillance,'' 50 U.S.C. Sec. 1801(f), carefully
and somewhat narrowly.\6\
---------------------------------------------------------------------------
\6\ FISA's legislative history reveals that these provisions were
intended to exclude certain intelligence activities conducted by the
National Security Agency from the coverage of FISA. According to the
report of the Senate Judiciary Committee on FISA, ``this provision
[referencing what became the first part of section 2511(2)(f)] is
designed to make clear that the legislation does not deal with
international signals intelligence activities as currently engaged in
by the National Security Agency and electronic surveillance conducted
outside the United States.'' S. Rep. No. 95-604, at 64 (1978),
reprinted in 1978 U.S.C.C.A.N. 3904, 3965. The legislative history also
makes clear that the definition of ``electronic surveillance'' was
crafted for the same reason. See id. at 33-34, 1978 U.S.C.C.A.N. at
3934-36. FISA thereby ``adopts the view expressed by the Attorney
General during the hearings that enacting statutory controls to
regulate the National Security Agency and the surveillance of Americans
abroad raises problems best left to separate legislation.'' Id. at 64,
1978 U.S.C.C.A.N. at 3965. Such legislation placing limitations on
traditional NSA activities was drafted, but never passed. See National
Intelligence Reorganization and Reform Act of 1978: Hearings Before the
Senate Select Committee on Intelligence, 95th Cong., 2d Sess. 999-1007
(1978) (text of unenacted legislation). And Congress understood that
the NSA surveillance that it intended categorically to exclude from
FISA could include the monitoring of international communications into
or out of the United States of U.S. citizens. The report specifically
referred to the Church Committee report for its description of the
NSA's activities, S. Rep. No. 95-604, at 64 n.63, 1978 U.S.C.C.A.N. at
3965-66 n.63, which stated that ``the NSA intercepts messages passing
over international lines of communication, some of which have one
terminal within the United States. Traveling over these lines of
communication, especially those with one terminal in the United States,
are messages of Americans. . . .'' S. Rep. 94-755, at Book II, 308
(1976). Congress's understanding in the legislative history of FISA
that such communications could be intercepted outside FISA procedures
is notable.
---------------------------------------------------------------------------
In addition, Congress addressed, to some degree, the manner
in which FISA might apply after a formal declaration of war by
expressly allowing warrantless surveillance for a period of
fifteen days following such a declaration. Section 111 of FISA
allows the President to ``authorize electronic surveillance
without a court order under this subchapter to acquire foreign
intelligence information for a period not to exceed fifteen
calendar days following a declaration of war by the Congress.''
50 U.S.C. Sec. 1811.
The legislative history of FISA shows that Congress
understood it was legislating on fragile constitutional ground
and was pressing or even exceeding constitutional limits in
regulating the President's authority in the field of foreign
intelligence. The final House Conference Report, for example,
recognized that the statute's restrictions might well
impermissibly infringe on the President's constitutional
powers. That report includes the extraordinary acknowledgment
that ``[t]he conferees agree that the establishment by this act
of exclusive means by which the President may conduct
electronic surveillance does not foreclose a different decision
by the Supreme Court.'' H.R. Conf. Rep. No. 95-1720, at 35,
reprinted in 1978 U.S.C.C.A.N. 4048, 4064. But, invoking
Justice Jackson's concurrence in the Steel Seizure case, the
Conference Report explained that Congress intended in FISA to
exert whatever power Congress constitutionally had over the
subject matter to restrict foreign intelligence surveillance
and to leave the President solely with whatever inherent
constitutional authority he might be able to invoke against
Congress's express wishes. Id. The Report thus explains that
``[t]he intent of the conferees is to apply the standard set
forth in Justice Jackson's concurring opinion in the Steel
Seizure Case: `When a President takes measures incompatible
with the express or implied will of Congress, his power is at
the lowest ebb, for then he can rely only upon his own
constitutional power minus any constitutional power of Congress
over the matter.' '' Id. (quoting Youngstown Sheet & Tube Co.
v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring));
see also S. Rep. No. 95-604, at 64, reprinted in 1978
U.S.C.C.A.N. at 3966 (same); see generally Elizabeth B. Bazen
et al., Congressional Research Service, Re: Presidential
Authority to Conduct Warrantless Electronic Surveillance to
Gather Foreign Intelligence Information 28-29 (Jan. 5, 2006).
It is significant, however, that Congress did not decide
conclusively to continue to push the boundaries of its
constitutional authority in wartime. Instead, Congress reserved
the question of the appropriate procedures to regulate
electronic surveillance in time of war, and established a
fifteen-day period during which the President would be
permitted to engage in electronic surveillance without
complying with FISA's express procedures and during which
Congress would have the opportunity to revisit the issue. See
50 U.S.C. Sec. 1811; H.R. Conf. Rep. No. 95-1720, at 34,
reprinted in 1978 U.S.C.C.A.N. at 4063 (noting that the purpose
of the fifteen-day period following a declaration of war in
section 111 of FISA was to ``allow time for consideration of
any amendment to this act that may be appropriate during a
wartime emergency'').
B. FISA contemplates and allows surveillance authorized
``by statute''
Congress did not attempt through FISA to prohibit the
Executive Branch from using electronic surveillance. Instead,
Congress acted to bring the exercise of that power under more
stringent congressional control. See, e.g., H. Conf. Rep. No.
95-1720, at 32, reprinted in 1978 U.S.C.C.A.N. 4048, 4064.
Congress therefore enacted a regime intended to supplant the
President's reliance on his own constitutional authority.
Consistent with this overriding purpose of bringing the use of
electronic surveillance under congressional control and with
the commonsense notion that the Congress that enacted FISA
could not bind future Congresses, FISA expressly contemplates
that the Executive Branch may conduct electronic surveillance
outside FISA's express procedures if and when a subsequent
statute authorizes such surveillance.
Thus, section 109 of FISA prohibits any person from
intentionally ``engag[ing] . . . in electronic surveillance
under color of law except as authorized by statute.'' 50 U.S.C.
Sec. 1809(a)(1) (emphasis added). Because FISA's prohibitory
provision broadly exempts surveillance ``authorized by
statute,'' the provision demonstrates that Congress did not
attempt to regulate through FISA electronic surveillance
authorized by Congress through a subsequent enactment. The use
of the term ``statute'' here is significant because it strongly
suggests that any subsequent authorizing statute, not merely
one that amends FISA itself, could legitimately authorize
surveillance outside FISA's standard procedural requirements.
Compare 18 U.S.C. Sec. 2511(1) (``Except as otherwise
specifically provided in this chapter any person who--(a)
intentionally intercepts . . . any wire, oral, or electronic
communication[] . . . shall be punished. . . .'') (emphasis
added); id. Sec. 2511(2)(e) (providing a defense to liability
to individuals ``conduct[ing] electronic surveillance, . . . as
authorized by that Act [FISA]'') (emphasis added). In enacting
FISA, therefore, Congress contemplated the possibility that the
President might be permitted to conduct electronic surveillance
pursuant to a later-enacted statute that did not incorporate
all of the procedural requirements set forth in FISA or that
did not expressly amend FISA itself.
To be sure, the scope of this exception is rendered less
clear by the conforming amendments that FISA made to chapter
119 of title 18--the portion of the criminal code that provides
the mechanism for obtaining wiretaps for law enforcement
purposes. Before FISA was enacted, chapter 119 made it a
criminal offense for any person to intercept a communication
except as specifically provided in that chapter. See 18 U.S.C.
Sec. 2511(1)(a), (4)(a). Section 201(b) of FISA amended that
chapter to provide an exception from criminal liability for
activities conducted pursuant to FISA. Specifically, FISA added
18 U.S.C. Sec. 2511(2)(e), which provides that it is not
unlawful for ``an officer, employee, or agent of the United
States . . . to conduct electronic surveillance, as defined in
section 101 of the Foreign Intelligence Surveillance Act of
1978, as authorized by that Act.'' Id. Sec. 2511(2)(e).
Similarly, section 201(b) of FISA amended chapter 119 to
provide that ``procedures in this chapter [or chapter 121
(addressing access to stored wire and electronic communications
and customer records)] and the Foreign Intelligence
Surveillance Act of 1978 shall be the exclusive means by which
electronic surveillance, as defined in section 101 of such Act,
and the interception of domestic wire, oral, and electronic
communications may be conducted.'' Id. Sec. 2511(2)(f) (West
Supp. 2005).\7\
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\7\ The bracketed portion was added in 1986 amendments to section
2511(2)(f). See Pub. L. No. 99-508 Sec. 101(b)(3), 100 Stat. 1848,
1850.
---------------------------------------------------------------------------
The amendments that section 201(b) of FISA made to title 18
are fully consistent, however, with the conclusion that FISA
contemplates that a subsequent statute could authorize
electronic surveillance outside FISA's express procedural
requirements. Section 2511(2)(e) of title 18, which provides
that it is ``not unlawful'' for an officer of the United States
to conduct electronic surveillance ``as authorized by'' FISA,
is best understood as a safe-harbor provision. Because of
section 109, the protection offered by section 2511(2)(e) for
surveillance ``authorized by'' FISA extends to surveillance
that is authorized by any other statute and therefore excepted
from the prohibition of section 109. In any event, the purpose
of section 2511(2)(e) is merely to make explicit what would
already have been implicit--that those authorized by statute to
engage in particular surveillance do not act unlawfully when
they conduct such surveillance. Thus, even if that provision
had not been enacted, an officer conducting surveillance
authorized by statute (whether FISA or some other law) could
not reasonably have been thought to be violating Title III.
Similarly, section 2511(2)(e) cannot be read to require a
result that would be manifestly unreasonable--exposing a
federal officer to criminal liability for engaging in
surveillance authorized by statute, merely because the
authorizing statute happens not to be FISA itself.
Nor could 18 U.S.C. Sec. 2511(2)(f), which provides that
the ``procedures in this chapter . . . and the Foreign
Intelligence Surveillance Act of 1978 shall be the exclusive
means by which electronic surveillance . . . may be
conducted,'' have been intended to trump the commonsense
approach of section 109 and preclude a subsequent Congress from
authorizing the President to engage in electronic surveillance
through a statute other than FISA, using procedures other than
those outlined in FISA or chapter 119 of title 18. The
legislative history of section 2511(2)(f) clearly indicates an
intent to prevent the President from engaging in surveillance
except as authorized by Congress, see H.R. Conf. Rep. No. 95-
1720, at 32, reprinted in 1978 U.S.C.C.A.N. 4048, 4064, which
explains why section 2511(2)(f) set forth all then-existing
statutory restrictions on electronic surveillance. Section
2511(2)(f)'s reference to ``exclusive means'' reflected the
state of statutory authority for electronic surveillance in
1978 and cautioned the President not to engage in electronic
surveillance outside congressionally sanctioned parameters. It
is implausible to think that, in attempting to limit the
President's authority, Congress also limited its own future
authority by barring subsequent Congresses from authorizing the
Executive to engage in surveillance in ways not specifically
enumerated in FISA or chapter 119, or by requiring a subsequent
Congress specifically to amend FISA and section 2511(2)(f).
There would be a serious question as to whether the Ninety-
Fifth Congress could have so tied the hands of its successors.
See, e.g., Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 135 (1810)
(noting that ``one legislature cannot abridge the powers of a
succeeding legislature''); Reichelderfer v. Quinn, 287 U.S.
315, 318 (1932) (``[T]he will of a particular Congress . . .
does not impose itself upon those to follow in succeeding
years''); Lockhart v. United States, 126 S. Ct. 699, 703 (2005)
(Scalia, J., concurring) (collecting precedent); 1 W.
Blackstone, Commentaries on the Laws of England 90 (1765)
(``Acts of parliament derogatory from the power of subsequent
parliaments bind not''). In the absence of a clear statement to
the contrary, it cannot be presumed that Congress attempted to
abnegate its own authority in such a way.
Far from a clear statement of congressional intent to bind
itself, there are indications that section 2511(2)(f) cannot be
interpreted as requiring that all electronic surveillance and
domestic interception be conducted under FISA's enumerated
procedures or those of chapter 119 of title 18 until and unless
those provisions are repealed or amended. Even when section
2511(2)(f) was enacted (and no subsequent authorizing statute
existed), it could not reasonably be read to preclude all
electronic surveillance conducted outside the procedures of
FISA or chapter 119 of title 18. In 1978, use of a pen register
or trap and trace device constituted electronic surveillance as
defined by FISA. See 50 U.S.C. Sec. Sec. 1801(f), (n). Title I
of FISA provided procedures for obtaining court authorization
for the use of pen registers to obtain foreign intelligence
information. But the Supreme Court had, just prior to the
enactment of FISA, held that chapter 119 of title 18 did not
govern the use of pen registers. See United States v. New York
Tel. Co., 434 U.S. 159, 165-68 (1977). Thus, if section
2511(2)(f) were to be read to permit of no exceptions, the use
of pen registers for purposes other than to collect foreign
intelligence information would have been unlawful because such
use would not have been authorized by the ``exclusive''
procedures of section 2511(2)(f), i.e., FISA and chapter 119.
But no court has held that pen registers could not be
authorized outside the foreign intelligence context. Indeed,
FISA appears to have recognized this issue by providing a
defense to liability for any official who engages in electronic
surveillance under a search warrant or court order. See 50
U.S.C. Sec. 1809(b). (The practice when FISA was enacted was
for law enforcement officers to obtain search warrants under
the Federal Rules of Criminal Procedure authorizing the
installation and use of pen registers. See S. 1667, A Bill to
Amend Title 18, United States Code, with Respect to the
Interception of Certain Communications, Other Forms of
Surveillance, and for Other Purposes: Hearing Before the
Subcomm. On Patents, Copyrights and Trademarks of the Senate
Comm. on the Judiciary, 99th Cong. 57 (1985) (prepared
statement of James Knapp, Deputy Assistant Attorney General,
Criminal Division)).\8\
---------------------------------------------------------------------------
\8\ Alternatively, section 109(b) may be read to constitute a
``procedure'' in FISA or to incorporate procedures from sources other
than FISA (such as the Federal Rules of Criminal Procedure or state
court procedures), and in that way to satisfy section 2511(2)(f). But
if section 109(b)'s defense can be so read, section 109(a) should also
be read to constitute a procedure or incorporate procedures not
expressly enumerated in FISA.
---------------------------------------------------------------------------
In addition, section 2511(2)(a)(ii) authorizes
telecommunications providers to assist officers of the
Government engaged in electronic surveillance when the Attorney
General certifies that ``no warrant or court order is required
by law [and] that all statutory requirements have been met.''
18 U.S.C. Sec. 2511(2)(a)(ii).\9\ If the Attorney General can
certify, in good faith, that the requirements of a subsequent
statute authorizing electronic surveillance are met, service
providers are affirmatively and expressly authorized to assist
the Government. Although FISA does allow the Government to
proceed without a court order in several situations, see 50
U.S.C. Sec. 1805(f) (emergencies); id. Sec. 1802 (certain
communications between foreign governments), this provision
specifically lists only Title III's emergency provision but
speaks generally to Attorney General certification. That
reference to Attorney General certification is consistent with
the historical practice in which Presidents have delegated to
the Attorney General authority to approve warrantless
surveillance for foreign intelligence purposes. See, e.g.,
United States v. United States District Court, 444 F.2d 651,
669-71 (6th Cir. 1971) (reproducing as an appendix memoranda
from Presidents Roosevelt, Truman, and Johnson). Section
2511(2)(a)(ii) thus suggests that telecommunications providers
can be authorized to assist with warrantless electronic
surveillance when such surveillance is authorized by law
outside FISA.
---------------------------------------------------------------------------
\9\ Section 2511(2)(a)(ii) states: ``Notwithstanding any other law,
providers of wire or electronic communication service, . . . are
authorized by law to provide information, facilities, or technical
assistance to persons authorized by law to intercept . . .
communications or to conduct electronic surveillance, as defined [by
FISA], if such provider . . . has been provided with . . . a
certification in writing by [specified persons proceeding under Title
III's emergency provision] or the Attorney General of the United States
that no warrant or court order is required by law, that all statutory
requirements have been met, and that the specific assistance is
required.''
---------------------------------------------------------------------------
In sum, by expressly and broadly excepting from its
prohibition electronic surveillance undertaken ``as authorized
by statute,'' section 109 of FISA permits an exception to the
``procedures'' of FISA referred to in 18 U.S.C. Sec. 2511(2)(f)
where authorized by another statute, even if the other
authorizing statute does not specifically amend section
2511(2)(f).
C. The AUMF is a ``statute'' authorizing surveillance
outside the confines of FISA
The AUMF qualifies as a ``statute'' authorizing electronic
surveillance within the meaning of section 109 of FISA.
First, because the term ``statute'' historically has been
given broad meaning, the phrase ``authorized by statute'' in
section 109 of FISA must be read to include joint resolutions
such as the AUMF. See American Fed'n of Labor v. Watson, 327
U.S. 582, 592-93 (1946) (finding the term ``statute'' as used
in 28 U.S.C. Sec. 380 to mean ``a compendious summary of
various enactments, by whatever method they may be adopted, to
which a State gives her sanction''); Black's Law Dictionary
1410 (6th ed. 1990) (defining ``statute'' broadly to include
any ``formal written enactment of a legislative body,'' and
stating that the term is used ``to designate the legislatively
created laws in contradistinction to court decided or unwritten
laws''). It is thus of no significance to this analysis that
the AUMF was enacted as a joint resolution rather than a bill.
See, e.g., Ann Arbor R.R. Co. v. United States, 281 U.S. 658,
666 (1930) (joint resolutions are to be construed by applying
``the rules applicable to legislation in general''); United
States ex rel. Levey v. Stockslager, 129 U.S. 470, 475 (1889)
(joint resolution had ``all the characteristics and effects''
of statute that it suspended); Padilla ex rel. Newman v. Bush,
233 F. Supp. 2d 564, 598 (S.D.N.Y. 2002) (in analyzing the
AUMF, finding that there is ``no relevant constitutional
difference between a bill and a joint resolution''), rev'd sub
nom. on other grounds, Rumsfeld v. Padilla, 352 F.3d 695 (2d
Cir. 2003), rev'd, 542 U.S. 426 (2004); see also Letter for the
Hon. John Conyers, Jr., U.S. House of Representatives, from
Prof. Laurence H. Tribe at 3 (Jan. 6, 2006) (term ``statute''
in section 109 of FISA ``of course encompasses a joint
resolution presented to and signed by the President'').
Second, the longstanding history of communications
intelligence as a fundamental incident of the use of force and
the Supreme Court's decision in Hamdi v. Rumsfeld strongly
suggest that the AUMF satisfies the requirement of section 109
of FISA for statutory authorization of electronic surveillance.
As explained above, it is not necessary to demarcate the outer
limits of the AUMF to conclude that it encompasses electronic
surveillance targeted at the enemy. Just as a majority of the
Court concluded in Hamdi that the AUMF authorizes detention of
U.S. citizens who are enemy combatants without expressly
mentioning the President's long-recognized power to detain, so
too does it authorize the use of electronic surveillance
without specifically mentioning the President's equally long-
recognized power to engage in communications intelligence
targeted at the enemy. And just as the AUMF satisfies the
requirement in 18 U.S.C. Sec. 4001(a) that no U.S. citizen be
detained ``except pursuant to an Act of Congress,'' so too does
it satisfy section 109's requirement for statutory
authorization of electronic surveillance.\10\ In authorizing
the President's use of force in response to the September 11th
attacks, Congress did not need to comb through the United
States Code looking for those restrictions that it had placed
on national security operations during times of peace and
designate with specificity each traditional tool of military
force that it sought to authorize the President to use. There
is no historical precedent for such a requirement:
authorizations to use military force traditionally have been
couched in general language. Indeed, prior administrations have
interpreted joint resolutions declaring war and authorizing the
use of military force to authorize expansive collection of
communications into and out of the United States.\11\
---------------------------------------------------------------------------
\10\ It might be argued that Congress dealt more comprehensively
with electronic surveillance in FISA than it did with detention in 18
U.S.C. Sec. 4001(a). Thus, although Congress prohibited detention
``except pursuant to an Act of Congress,'' it combined the analogous
prohibition in FISA (section 109(a)) with section 2511(2)(f)'s
exclusivity provision. See Letter to the Hon. Bill Frist, Majority
Leader, U.S. Senate, from Professor Curtis A. Bradley et al. at 5 n.6
(Jan. 9, 2006) (noting that section 4001(a) does not ``attempt[] to
create an exclusive mechanism for detention''). On closer examination,
however, it is evident that Congress has regulated detention far more
meticulously than these arguments suggest. Detention is the topic of
much of the Criminal Code, as well as a variety of other statutes,
including those providing for civil commitment of the mentally ill and
confinement of alien terrorists. The existence of these statutes and
accompanying extensive procedural safeguards, combined with the
substantial constitutional issues inherent in detention, see, e.g.,
Hamdi, 542 U.S. at 574-75 (Scalia, J., dissenting), refute any such
argument.
\11\ As noted above, in intercepting communications, President
Wilson relied on his constitutional authority and the joint resolution
declaring war and authorizing the use of military force, which, as
relevant here, provided ``that the President [is] authorized and
directed to employ the entire naval and military forces of the United
States and the resources of the Government to carry on war against the
Imperial German Government; and to bring the conflict to a successful
termination all of the resources of the country are hereby pledged by
the Congress of the United States.'' Joint Resolution of Apr. 6, 1917,
ch. 1, 40 Stat. 1. The authorization did not explicitly mention
interception of communications.
---------------------------------------------------------------------------
Moreover, crucial to the Framers' decision to vest the
President with primary constitutional authority to defend the
Nation from foreign attack is the fact that the Executive can
act quickly, decisively, and flexibly as needed. For Congress
to have a role in that process, it must be able to act with
similar speed, either to lend its support to, or to signal its
disagreement with, proposed military action. Yet the need for
prompt decisionmaking in the wake of a devastating attack on
the United States is fundamentally inconsistent with the notion
that to do so Congress must legislate at a level of detail more
in keeping with a peacetime budget reconciliation bill. In
emergency situations, Congress must be able to use broad
language that effectively sanctions the President's use of the
core incidents of military force. That is precisely what
Congress did when it passed the AUMF on September 14, 2001--
just three days after the deadly attacks on America. The
Capitol had been evacuated on September 11th, and Congress was
meeting in scattered locations. As an account emerged of who
might be responsible for these attacks, Congress acted quickly
to authorize the President to use ``all necessary and
appropriate force'' against the enemy that he determines was
involved in the September 11th attacks. Under these
circumstances, it would be unreasonable and wholly impractical
to demand that Congress specifically amend FISA in order to
assist the President in defending the Nation. Such specificity
would also have been self-defeating because it would have
apprised our adversaries of some of our most sensitive methods
of intelligence gathering.\12\
---------------------------------------------------------------------------
\12\ Some have suggested that the Administration declined to seek a
specific amendment to FISA allowing the NSA activities ``because it was
advised that Congress would reject such an amendment,'' Letter to the
Hon. Bill Frist, Majority Leader, U.S. Senate, from Professor Curtis A.
Bradley et al. 4 & n.4 (Jan. 9, 2005), and they have quoted in support
of that assertion the Attorney General's statement that certain Members
of Congress advised the Administration that legislative relief ``would
be difficult, if not impossible.'' Id. at 4 n.4. As the Attorney
General subsequently indicated, however, the difficulty with such
specific legislation was that it could not be enacted ``without
compromising the program.'' See Remarks by Homeland Security Secretary
Chertoff and Attorney General Gonzales on the USA PATRIOT Act (Dec. 21,
2005), available at http://www.dhs.gov/dhspublic/display?content=5285.
---------------------------------------------------------------------------
Section 111 of FISA, 50 U.S.C. Sec. 1811, which authorizes
the President, ``[n]otwithstanding any other law,'' to conduct
``electronic surveillance without a court order under this
subchapter to acquire foreign intelligence information for a
period not to exceed fifteen calendar days following a
declaration of war by Congress,'' does not require a different
reading of the AUMF. See also id. Sec. 1844 (same provision for
pen registers); id. Sec. 1829 (same provision for physical
searches). Section 111 cannot reasonably be read as Congress's
final word on electronic surveillance during wartime, thus
permanently limiting the President in all circumstances to a
mere fifteen days of warrantless military intelligence
gathering targeted at the enemy following a declaration of war.
Rather, section 111 represents Congress's recognition that it
would likely have to return to the subject and provide
additional authorization to conduct warrantless electronic
surveillance outside FISA during time of war. The Conference
Report explicitly stated the conferees' ``inten[t] that this
[fifteen-day] period will allow time for consideration of any
amendment to this act that may be appropriate during a wartime
emergency.'' H.R. Conf. Rep. No. 95-1720, at 34, reprinted in
1978 U.S.C.C.A.N. at 4063. Congress enacted section 111 so that
the President could conduct warrantless surveillance while
Congress considered supplemental wartime legislation.
Nothing in the terms of section 111 disables Congress from
authorizing such electronic surveillance as a traditional
incident of war through a broad, conflict-specific
authorization for the use of military force, such as the AUMF.
Although the legislative history of section 111 indicates that
in 1978 some Members of Congress believed that any such
authorization would come in the form of a particularized
amendment to FISA itself, section 111 does not require that
result. Nor could the Ninety-Fifth Congress tie the hands of a
subsequent Congress in this way, at least in the absence of far
clearer statutory language expressly requiring that result. See
supra, pp. 21-22; compare, e.g., War Powers Resolution, Sec. 8,
50 U.S.C. Sec. 1547(a) (``Authority to introduce United States
Armed Forces into hostilities . . . shall not be inferred . . .
from any provision of law . . . unless such provision
specifically authorizes [such] introduction . . . and states
that it is intended to constitute specific statutory
authorization within the meaning of this chapter.''); 10 U.S.C.
Sec. 401 (stating that any other provision of law providing
assistance to foreign countries to detect and clear landmines
shall be subject to specific limitations and may be construed
as superseding such limitations ``only if, and to the extent
that, such provision specifically refers to this section and
specifically identifies the provision of this section that is
to be considered superseded or otherwise inapplicable''). An
interpretation of section 111 that would disable Congress from
authorizing broader electronic surveillance in that form can be
reconciled neither with the purposes of section 111 nor with
the well-established proposition that ``one legislature cannot
abridge the powers of a succeeding legislature.'' Fletcher v.
Peck, 10 U.S. (6 Cranch) at 135; see supra Part II.B. For these
reasons, the better interpretation is that section 111 was not
intended to, and did not, foreclose Congress from using the
AUMF as the legal vehicle for supplementing the President's
existing authority under FISA in the battle against al Qaeda.
The contrary interpretation of section 111 also ignores the
important differences between a formal declaration of war and a
resolution such as the AUMF. As a historical matter, a formal
declaration of war was no longer than a sentence, and thus
Congress would not expect a declaration of war to outline the
extent to which Congress authorized the President to engage in
various incidents of waging war. Authorizations for the use of
military force, by contrast, are typically more detailed and
are made for the specific purpose of reciting the manner in
which Congress has authorized the President to act. Thus,
Congress could reasonably expect that an authorization for the
use of military force would address the issue of wartime
surveillance, while a declaration of war would not. Here, the
AUMF declares that the Nation faces ``an unusual and
extraordinary threat,'' acknowledges that ``the President has
authority under the Constitution to take action to deter and
prevent acts of international terrorism against the United
States,'' and provides that the President is authorized ``to
use all necessary and appropriate force'' against those ``he
determines'' are linked to the September 11th attacks. AUMF
pmbl., Sec. 2. This sweeping language goes far beyond the bare
terms of a declaration of war. Compare, e.g., Act of Apr. 25,
1898, ch. 189, 30 Stat. 364 (``First. That war be, and the same
is hereby declared to exist . . . between the United States of
America and the Kingdom of Spain.'').
Although legislation that has included a declaration of war
has often also included an authorization of the President to
use force, these provisions are separate and need not be
combined in a single statute. See, e.g., id. (``Second. That
the President of the United States be, and he hereby is,
directed and empowered to use the entire land and naval forces
of the United States, and to call into the actual service of
the United States the militia of the several states, to such
extent as may be necessary to carry this Act into effect.'')
(emphasis added). Moreover, declarations of war have legal
significance independent of any additional authorization of
force that might follow. See, e.g., Louis Henkin, Foreign
Affairs and the U.S. Constitution 75 (2d ed. 1996) (explaining
that a formal state of war has various legal effects, such as
terminating diplomatic relations, and abrogating or suspending
treaty obligations and international law rights and duties);
see also id. at 370 n.65 (speculating that one reason to fight
an undeclared war would be to ``avoid the traditional
consequences of declared war on relations with third nations or
even . . . belligerents'').
In addition, section 111 does not cover the vast majority
of modern military conflicts. The last declared war was World
War II. Indeed, the most recent conflict prior to the passage
of FISA, Vietnam, was fought without a formal declaration of
war. In addition, the War Powers Resolution, enacted less than
five years before FISA, clearly recognizes the distinctions
between formal declarations of war and authorizations of force
and demonstrates that, if Congress had wanted to include such
authorizations in section 111, it knew how to do so. See, e.g.,
50 U.S.C. Sec. 1544(b) (attempting to impose certain
consequences 60 days after reporting the initiation of
hostilities to Congress ``unless the Congress . . . has
declared war or has enacted a specific authorization for such
use'' of military force) (emphasis added). It is possible that,
in enacting section 111, Congress intended to make no provision
for even the temporary use of electronic surveillance without a
court order for what had become the legal regime for most
military conflicts. A better reading, however, is that Congress
assumed that such a default provision would be unnecessary
because, if it had acted through an authorization for the use
of military force, the more detailed provisions of that
authorization would resolve the extent to which Congress would
attempt to authorize, or withhold authorization for, the use of
electronic surveillance.\13\
---------------------------------------------------------------------------
\13\ Some have pointed to the specific amendments to FISA that
Congress made shortly after September 11th in the USA PATRIOT Act, Pub.
L. No. 107-56, Sec. Sec. 204, 218, 115 Stat. 272, 281, 291 (2001), to
argue that Congress did not contemplate electronic surveillance outside
the parameters of FISA. See Memorandum for Members of the House
Permanent Select Comm. on Intel. from Jeffrey H. Smith, Re: Legal
Authorities Regarding Warrantless Surveillance of U.S. Persons 6-7
(Jan. 3, 2006). The USA PATRIOT Act amendments, however, do not justify
giving the AUMF an unnaturally narrow reading. The USA PATRIOT Act
amendments made important corrections in the general application of
FISA; they were not intended to define the precise incidents of
military force that would be available to the President in prosecuting
the current armed conflict against al Qaeda and its allies. Many
removed long-standing impediments to the effectiveness of FISA that had
contributed to the maintenance of an unnecessary ``wall'' between
foreign intelligence gathering and criminal law enforcement; others
were technical clarifications. See In re Sealed Case, 310 F.3d 717,
725-30 (Foreign Int. Surv. Ct. Rev. 2002). The ``wall'' had been
identified as a significant problem hampering the Government's
efficient use of foreign intelligence information well before the
September 11th attacks and in contexts unrelated to terrorism. See,
e.g., Final Report of the Attorney General's Review Team on the
Handling of the Los Alamos National Laboratory Investigation 710, 729,
732 (May 2000); General Accounting Office, FBI Intelligence
Investigations: Coordination Within Justice on Counterintelligence
Criminal Matters Is Limited (GAO-01-780) 3, 31 (July 2001). Finally, it
is worth noting that Justice Souter made a similar argument in Hamdi
that the USA PATRIOT Act all but compelled a narrow reading of the
AUMF. See 542 U.S. at 551 (``It is very difficult to believe that the
same Congress that carefully circumscribed Executive power over alien
terrorists on home soil [in the USA PATRIOT Act] would not have meant
to require the Government to justify clearly its detention of an
American citizen held on home soil incommunicado.''). Only Justice
Ginsburg joined this opinion, and the position was rejected by a
majority of Justices.
Nor do later amendments to FISA undermine the conclusion that the
AUMF authorizes electronic surveillance outside the procedures of FISA.
Three months after the enactment of the AUMF, Congress enacted certain
``technical amendments'' to FISA which, inter alia, extended the time
during which the Attorney General may issue an emergency authorization
of electronic surveillance from 24 to 72 hours. See Intelligence
Authorization Act for Fiscal Year 2002, Pub. L. No. 107-108, Sec. 314,
115 Stat. 1394, 1402 (2001). These modifications to FISA do not in any
way undermine Congress's previous authorization in the AUMF for the
President to engage in electronic surveillance outside the parameters
of FISA in the specific context of the armed conflict with al Qaeda.
---------------------------------------------------------------------------
The broad text of the AUMF, the authoritative
interpretation that the Supreme Court gave it in Hamdi, and the
circumstances in which it was passed demonstrate that the AUMF
is a statute authorizing electronic surveillance under section
109 of FISA. When the President authorizes electronic
surveillance against the enemy pursuant to the AUMF, he is
therefore acting at the height of his authority under
Youngstown, 343 U.S. at 637 (Jackson, J., concurring).
D. The Canon of constitutional advoidance requires
resolving in favor of the President's authority any
ambiguity about whether FISA forbids the NSA
activities
As explained above, the AUMF fully authorizes the NSA
activities. Because FISA contemplates the possibility that
subsequent statutes could authorize electronic surveillance
without requiring FISA's standard procedures, the NSA
activities are also consistent with FISA and related provisions
in title 18. Nevertheless, some might argue that sections 109
and 111 of FISA, along with section 2511(2)(f)'s
``exclusivity'' provision and section 2511(2)(e)'s liability
exception for officers engaged in FISA-authorized surveillance,
are best read to suggest that FISA requires that subsequent
authorizing legislation specifically amend FISA in order to
free the Executive from FISA's enumerated procedures. As
detailed above, this is not the better reading of FISA. But
even if these provisions were ambiguous, any doubt as to
whether the AUMF and FISA should be understood to allow the
President to make tactical military decisions to authorize
surveillance outside the parameters of FISA must be resolved to
avoid the serious constitutional questions that a contrary
interpretation would raise.
It is well established that the first task of any
interpreter faced with a statute that may present an
unconstitutional infringement on the powers of the President is
to determine whether the statute may be construed to avoid the
constitutional difficulty. ``[I]f an otherwise
acceptableconstruction of a statute would raise serious constitutional
problems, and where an alternative interpretation of the statute is
`fairly possible,' we are obligated to construe the statute to avoid
such problems.'' INS v. St. Cyr, 533 U.S. 289, 299-300 (2001)
(citations omitted); Ashwander v. TVA, 297 U.S. 288, 345-48 (1936)
(Brandeis, J., concurring). Moreover, the canon of constitutional
avoidance has particular importance in the realm of national security,
where the President's constitutional authority is at its highest. See
Department of the Navy v. Egan, 484 U.S. 518, 527, 530 (1988); William
N. Eskridge, Jr., Dynamic Statutory Interpretation 325 (1994)
(describing ``[s]uper-strong rule against congressional interference
with the President's authority over foreign affairs and national
security''). Thus, courts and the Executive Branch typically construe a
general statute, even one that is written in unqualified terms, to be
implicitly limited so as not to infringe on the President's Commander
in Chief powers.
Reading FISA to prohibit the NSA activities would raise two
serious constitutional questions, both of which must be avoided
if possible: (1) whether the signals intelligence collection
the President determined was necessary to undertake is such a
core exercise of Commander in Chief control over the Armed
Forces during armed conflict that Congress cannot interfere
with it at all and (2) whether the particular restrictions
imposed by FISA are such that their application would
impermissibly impede the President's exercise of his
constitutionally assigned duties as Commander in Chief.
Constitutional avoidance principles require interpreting FISA,
at least in the context of the military conflict authorized by
the AUMF, to avoid these questions, if ``fairly possible.''
Even if Congress intended FISA to use the full extent of its
constitutional authority to ``occupy the field'' of
``electronic surveillance,'' as FISA used that term, during
peacetime, the legislative history indicates that Congress had
not reached a definitive conclusion about its regulation during
wartime. See H.R. Conf. Rep. No. 95-1720, at 34, reprinted in
1978 U.S.C.C.A.N. at 4063 (noting that the purpose of the
fifteen-day period following a declaration of war in section
111 of FISA was to ``allow time for consideration of any
amendment to this act that may be appropriate during a wartime
emergency''). Therefore, it is not clear that Congress, in
fact, intended to test the limits of its constitutional
authority in the context of wartime electronic surveillance.
Whether Congress may interfere with the President's
constitutional authority to collect foreign intelligence
information through interception of communications reasonably
believed to be linked to the enemy poses a difficult
constitutional question. As explained in Part I, it had long
been accepted at the time of FISA's enactment that the
President has inherent constitutional authority to conduct
warrantless electronic surveillance for foreign intelligence
purposes. Congress recognized at the time that the enactment of
a statute purporting to eliminate the President's ability, even
during peacetime, to conduct warrantless electronic
surveillance to collect foreign intelligence was near or
perhaps beyond the limit of Congress's Article I powers. The
NSA activities, however, involve signals intelligence performed
in the midst of a congressionally authorized armed conflict
undertaken to prevent further hostile attacks on the United
States. The NSA activities lie at the very core of the
Commander in Chief power, especially in light of the AUMF's
explicit authorization for the President to take all necessary
and appropriate military action to stop al Qaeda from striking
again. The constitutional principles at stake here thus involve
not merely the President's well-established inherent authority
to conduct warrantless surveillance for foreign intelligence
purposes during peacetime, but also the powers and duties
expressly conferred on him as Commander in Chief by Article II.
Even outside the context of wartime surveillance of the
enemy, the source and scope of Congress's power to restrict the
President's inherent authority to conduct foreign intelligence
surveillance is unclear. As explained above, the President's
role as sole organ for the Nation in foreign affairs has long
been recognized as carrying with it preeminent authority in the
field of national security and foreign intelligence. The source
of this authority traces to the Vesting Clause of Article II,
which states that ``[t]he executive Power shall be vested in a
President of the United States of America.'' U.S. Const. art.
II, Sec. 1. The Vesting Clause ``has long been held to confer
on the President plenary authority to represent the United
States and to pursue its interests outside the borders of the
country, subject only to limits specifically set forth in the
Constitution itself and to such statutory limitations as the
Constitution permits Congress to impose by exercising one of
its enumerated powers.'' The President's Compliance with the
``Timely Notification'' Requirement of Section 501(b) of the
National Security Act, 10 Op. O.L.C. 159, 160-61 (1986)
(``Timely Notification Requirement Op.'').
Moreover, it is clear that some presidential authorities in
this context are beyond Congress's ability to regulate. For
example, as the Supreme Court explained in Curtiss-Wright, the
President ``makes treaties with the advice and consent of the
Senate; but he alone negotiates. Into the field of negotiation
the Senate cannot intrude; and Congress itself is powerless to
invade it.'' 299 U.S. at 319. Similarly, President Washington
established early in the history of the Republic the
Executive's absolute authority to maintain the secrecy of
negotiations with foreign powers, even against congressional
efforts to secure information. See id. at 320-21. Recognizing
presidential authority in this field, the Executive Branch has
taken the position that ``congressional legislation authorizing
extraterritorial diplomatic and intelligence activities is
superfluous, and . . . statutes infringing the President's
inherent Article II authority would be unconstitutional.''
Timely Notification Requirement Op., 10 Op. O.L.C. at 164.
There are certainly constitutional limits on Congress's
ability to interfere with the President's power to conduct
foreign intelligence searches, consistent with the
Constitution, within the United States. As explained above,
intelligence gathering is at the heart of executive functions.
Since the time of the Founding it has been recognized that
matters requiring secrecy and intelligence in particular--are
quintessentially executive functions. See, e.g., The Federalist
No. 64, at 435 (John Jay) (Jacob E. Cooke ed. 1961) (``The
convention have done well therefore in so disposing of the
power of making treaties, that although the president must in
forming them act by the advice and consent of the senate, yet
he will be able to manage the business of intelligence in such
manner as prudence may suggest.''); see also Timely
Notification Requirement Op., 10 Op. O.L.C. at 165; cf. New
York Times Co. v. United States, 403 U.S. 713, 729-30 (1971)
(Stewart, J., concurring) (``[I]t is the constitutional duty of
the Executive--as a matter of sovereign prerogative and not as
a matter of law as the courts know law--through the
promulgation and enforcement of executive regulations, to
protect the confidentiality necessary to carry out its
responsibilities in the field of international relations and
national defense.'').
Because Congress has rarely attempted to intrude in this
area and because many of these questions are not susceptible to
judicial review, there are few guideposts for determining
exactly where the line defining the President's sphere of
exclusive authority lies. Typically, if a statute is in danger
of encroaching upon exclusive powers of the President, the
courts apply the constitutional avoidance canon, if a
construction avoiding the constitutional issue is ``fairly
possible.'' See, e.g., Egan, 484 U.S. at 527, 530. The only
court that squarely has addressed the relative powers of
Congress and the President in this field suggested that the
balance tips decidedly in the President's favor. The Foreign
Intelligence Surveillance Court of Review recently noted that
all courts to have addressed the issue of the President's
inherent authority have ``held that the President did have
inherent authority to conduct warrantless searches to obtain
foreign intelligence information.'' In re Sealed Case, 310 F.3d
717, 742 (Foreign Intel. Surv. Ct. of Rev. 2002). On the basis
of that unbroken line of precedent, the court ``[took] for
granted that the President does have that authority,'' and
concluded that, ``assuming that is so, FISA could not encroach
on the President's constitutional power.'' Id.\14\ Although the
court did not provide extensive analysis, it is the only
judicial statement on point, and it comes from the specialized
appellate court created expressly to deal with foreign
intelligence issues under FISA.
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\14\ In the past, other courts have declined to express a view on
that issue one way or the other. See, e.g., Butenko, 494 F.2d at 601
(``We do not intimate, at this time, any view whatsoever as the proper
resolution of the possible clash of the constitutional powers of the
President and Congress.'').
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But the NSA activities are not simply exercises of the
President's general foreign affairs powers. Rather, they are
primarily an exercise of the President's authority as Commander
in Chief during an armed conflict that Congress expressly has
authorized the President to pursue. The NSA activities,
moreover, have been undertaken specifically to prevent a
renewed attack at the hands of an enemy that has already
inflicted the single deadliest foreign attack in the Nation's
history. The core of the Commander in Chief power is the
authority to direct the Armed Forces in conducting a military
campaign. Thus, the Supreme Court has made clear that the
``President alone'' is ``constitutionally invested with the
entire charge of hostile operations.'' Hamilton v. Dillin, 88
U.S. (21 Wall.) 73, 87 (1874); The Federalist No. 74, at 500
(Alexander Hamilton). ``As commander-in-chief, [the President]
is authorized to direct the movements of the naval and military
forces placed by law at his command, and to employ them in the
manner he may deem most effectual to harass and conquer and
subdue the enemy.'' Fleming v. Page, 50 U.S. (9 How.) 603, 615
(1850). As Chief Justice Chase explained in 1866, although
Congress has authority to legislate to support the prosecution
of a war, Congress may not ``interfere[ ] with the command of
the forces and the conduct of campaigns. That power and duty
belong to the President as commander-in-chief.'' Ex parte
Milligan, 71 U.S. (4 Wall.) 2, 139 (1866) (Chase, C.J.,
concurring in judgment) (emphasis added).
The Executive Branch uniformly has construed the Commander
in Chief and foreign affairs powers to grant the President
authority that is beyond the ability of Congress to regulate.
In 1860, Attorney General Black concluded that an act of
Congress, if intended to constrain the President's discretion
in assigning duties to an officer in the army, would be
unconstitutional:
As commander-in-chief of the army it is your right to
decide according to your own judgment what officer
shall perform any particular duty, and as the supreme
executive magistrate you have the power of appointment.
Congress could not, if it would, take away from the
President, or in anywise diminish the authority
conferred upon him by the Constitution.
Memorial of Captain Meigs, 9 Op. Att'y Gen. 462, 468 (1860).
Attorney General Black went on to explain that, in his view,
the statute involved there could probably be read as simply
providing ``a recommendation'' that the President could decline
to follow at his discretion. Id. at 469-70.\15\
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\15\ Executive practice recognizes, consistent with the
Constitution, some congressional control over the Executive's decisions
concerning the Armed Forces. See, e.g., U.S. Const. art. I, Sec. 8, cl.
12 (granting Congress power ``to raise and support Armies''). But such
examples have not involved congressional attempts to regulate the
actual conduct of a military campaign, and there is no comparable
textual support for such interference. For example, just before World
War II, Attorney General Robert Jackson concluded that the Neutrality
Act prohibited President Roosevelt from selling certain armed naval
vessels and sending them to Great Britain. See Acquisition of Naval and
Air Bases in Exchange for Over-Age Destroyers, 39 Op. Att'y Gen. 484,
496 (1940). Jackson's apparent conclusion that Congress could control
the President's ability to transfer war material does not imply
acceptance of direct congressional regulation of the Commander in
Chief's control of the means and methods of engaging the enemy in
conflict. Similarly, in Youngstown Sheet & Tube Co. v. Sawyer, the
Truman Administration readily conceded that, if Congress had prohibited
the seizure of steel mills by statute, Congress's action would have
been controlling. See Brief for Petitioner at 150, Youngstown, 343 U.S.
579 (1952) (Nos. 744 and 745). This concession implies nothing
concerning congressional control over the methods of engaging the
enemy.
Likewise, the fact that the Executive Branch has, at times, sought
congressional ratification after taking unilateral action in a wartime
emergency does not reflect a concession that the Executive lacks
authority in this area. A decision to seek congressional support can be
prompted by many motivations, including a desire for political support.
In modern times, several administrations have sought congressional
authorization for the use of military force while preserving the
ability to assert the unconstitutionality of the War Powers Resolution.
See, e.g., Statement on Signing the Resolution Authorizing the Use of
Military Force Against Iraq, 1 Pub. Papers of George Bush 40 (1991)
(``[M]y request for congressional support did not . . . constitute any
change in the long-standing positions of the executive branch on either
the President's constitutional authority to use the Armed Forces to
defend vital U.S. interests or the constitutionality of the War Powers
Resolution.''). Moreover, many actions for which congressional support
has been sought--such as President Lincoln's action in raising an Army
in 1861--quite likely fall primarily under Congress's core Article I
powers.
---------------------------------------------------------------------------
Supreme Court precedent does not support claims of
congressional authority over core military decisions during
armed conflicts. In particular, the two decisions of the
Supreme Court that address a conflict between asserted wartime
powers of the Commander in Chief and congressional legislation
and that resolve the conflict in favor of Congress--Little v.
Barreme, 6 U.S. (2 Cranch) 170 (1804), and Youngstown Sheet &
Tube Co. v. Sawyer, 343 U.S. 579 (1952), are both
distinguishable from the situation presented by the NSA
activities in the conflict with al Qaeda. Neither supports the
constitutionality of the restrictions in FISA as applied here.
Barreme involved a suit brought to recover a ship seized by
an officer of the U.S. Navy on the high seas during the so-
called ``Quasi War'' with France in 1799. The seizure had been
based upon the officer's orders implementing an act of Congress
suspending commerce between the United States and France and
authorizing the seizure of American ships bound to a French
port. The ship in question was suspected of sailing from a
French port. The Supreme Court held that the orders given by
the President could not authorize a seizure beyond the terms of
the statute and therefore that the seizure of the ship not in
fact bound to a French port was unlawful. See 6 U.S. at 177-78.
Although some commentators have broadly characterized Barreme
as standing for the proposition that Congress may restrict by
statute the means by which the President can direct the
Nation's Armed Forces to carry on a war, the Court's holding
was limited in at least two significant ways. First, the
operative section of the statute in question applied only to
American merchant ships. See id. at 170 (quoting Act of
February 9, 1799). Thus, the Court simply had no occasion to
rule on whether, even in the limited and peculiar circumstances
of the Quasi War, Congress could have placed some restriction
on the orders the Commander in Chief could issue concerning
direct engagements with enemy forces. Second, it is significant
that the statute in Barreme was cast expressly, not as a
limitation on the conduct of warfare by the President, but
rather as regulation of a subject within the core of Congress's
enumerated powers under Article I--the regulation of foreign
commerce. See U.S. Const., art. I, Sec. 8, cl. 3. The basis of
Congress's authority to act was therefore clearer in Barreme
than it is here.
Youngstown involved an effort by the President--in the face
of a threatened work stoppage--to seize and to run steel mills.
Congress had expressly considered the possibility of giving the
President power to effect such a seizure during national
emergencies. It rejected that option, however, instead
providing different mechanisms for resolving labor disputes and
mechanisms for seizing industries to ensure production vital to
national defense.
For the Court, the connection between the seizure and the
core Commander in Chief function of commanding the Armed Forces
was too attenuated. The Court pointed out that the case did not
involve authority over ``day-to-day fighting in a theater of
war.'' Id. at 587. Instead, it involved a dramatic extension of
the President's authority over military operations to exercise
control over an industry that was vital for producing equipment
needed overseas. Justice Jackson's concurring opinion also
reveals a concern for what might be termed foreign-to-domestic
presidential bootstrapping. The United States became involved
in the Korean conflict through President Truman's unilateral
decision to commit troops to the defense of South Korea. The
President then claimed authority, based upon this foreign
conflict, to extend presidential control into vast sectors of
the domestic economy. Justice Jackson expressed ``alarm[]'' at
a theory under which ``a President whose conduct of foreign
affairs is so largely uncontrolled, and often even is unknown,
can vastly enlarge his mastery over the internal affairs of the
country by his own commitment of the Nation's armed forces to
some foreign venture.'' Id. at 642.
Moreover, President Truman's action extended the
President's authority into a field that the Constitution
predominantly assigns to Congress. See id. at 588 (discussing
Congress's commerce power and noting that ``[t]he Constitution
does not subject this lawmaking power of Congress to
presidential or military supervision or control''); see also
id. at 643 (Jackson, J., concurring) (explaining that Congress
is given express authority to `` `raise and support Armies' ''
and `` `to provide and maintain a Navy' '') (quoting U.S.
Const. art. I, Sec. 8, cls. 12, 13). Thus, Youngstown involved
an assertion of executive power that not only stretched far
beyond the President's core Commander in Chief functions, but
that did so by intruding into areas where Congress had been
given an express, and apparently dominant, role by the
Constitution.\16\
---------------------------------------------------------------------------
\16\ Youngstown does demonstrate that the mere fact that Executive
action might be placed in Justice Jackson's category III does not
obviate the need for further analysis. Justice Jackson's framework
therefore recognizes that Congress might impermissibly interfere with
the President's authority as Commander in Chief or to conduct the
Nation's foreign affairs.
---------------------------------------------------------------------------
The present situation differs dramatically. The exercise of
executive authority involved in the NSA activities is not
several steps removed from the actual conduct of a military
campaign. As explained above, it is an essential part of the
military campaign. Unlike the activities at issue in
Youngstown, the NSA activities are directed at the enemy, and
not at domestic activity that might incidentally aid the war
effort. And assertion of executive authority here does not
involve extending presidential power into areas reserved for
Congress. Moreover, the theme that appeared most strongly in
Justice Jackson's concurrence in Youngstown--the fear of
presidential bootstrapping--does not apply in this context.
Whereas President Truman had used his inherent constitutional
authority to commit U.S. troops, here Congress expressly
provided the President sweeping authority to use ``all
necessary and appropriate force'' to protect the Nation from
further attack. AUMF Sec. 2(a). There is thus no bootstrapping
concern.
Finally, Youngstown cannot be read to suggest that the
President's authority for engaging the enemy is less extensive
inside the United States than abroad. To the contrary, the
extent of the President's Commander in Chief authority
necessarily depends on where the enemy is found and where the
battle is waged. In World War II, for example, the Supreme
Court recognized that the President's authority as Commander in
Chief, as supplemented by Congress, included the power to
capture and try agents of the enemy in the United States, even
if they never had ``entered the theatre or zone of active
military operations.'' Quirin, 317 U.S. at 38.\17\ In the
present conflict, unlike in the Korean War, the battlefield was
brought to the United States in the most literal way, and the
United States continues to face a threat of further attacks on
its soil. In short, therefore, Youngstown does not support the
view that Congress may constitutionally prohibit the President
from authorizing the NSA activities.
---------------------------------------------------------------------------
\17\ It had been recognized long before Youngstown that, in a
large-scale conflict, the area of operations could readily extend to
the continental United States, even when there are no major engagements
of armed forces here. Thus, in the context of the trial of a German
officer for spying in World War I, it was recognized that ``[w]ith the
progress made in obtaining ways and means for devastation and
destruction, the territory of the United States was certainly within
the field of active operations'' during the war, particularly in the
port of New York, and that a spy in the United States might easily have
aided the ``hostile operation'' of U-boats off the coast. United States
ex reI. Wessels v. McDonald, 265 F. 754, 764 (E.D.N.Y. 1920).
---------------------------------------------------------------------------
The second serious constitutional question is whether the
particular restrictions imposed by FISA would impermissibly
hamper the President's exercise of his constitutionally
assigned duties as Commander in Chief. The President has
determined that the speed and agility required to carry out the
NSA activities successfully could not have been achieved under
FISA.\18\ Because the President also has determined that the
NSA activities are necessary to the defense of the United
States from a subsequent terrorist attack in the armed conflict
with al Qaeda, FISA would impermissibly interfere with the
President's most solemn constitutional obligation--to defend
the United States against foreign attack.
---------------------------------------------------------------------------
\18\ In order to avoid further compromising vital national security
activities, a full explanation of the basis for the President's
determination cannot be given in an unclassified document.
---------------------------------------------------------------------------
Indeed, if an interpretation of FISA that allows the
President to conduct the NSA activities were not ``fairly
possible,'' FISA would be unconstitutional as applied in the
context of this congressionally authorized armed conflict. In
that event, FISA would purport to prohibit the President from
undertaking actions necessary to fulfill his constitutional
obligation to protect the Nation from foreign attack in the
context of a congressionally authorized armed conflict with an
enemy that has already staged the most deadly foreign attack in
our Nation's history. A statute may not ``impede the
President's ability to perform his constitutional duty,''
Morrison v. Olson, 487 U.S. 654, 691 (1988) (emphasis added);
see also id. at 696-97, particularly not the President's most
solemn constitutional obligation--the defense of the Nation.
See also In re Sealed Case, 310 F.3d at 742 (explaining that
``FISA could not encroach on the President's constitutional
power'').
Application of the avoidance canon would be especially
appropriate here for several reasons beyond the acute
constitutional crises that would otherwise result. First, as
noted, Congress did not intend FISA to be the final word on
electronic surveillance conducted during armed conflicts.
Instead, Congress expected that it would revisit the subject in
subsequent legislation. Whatever intent can be gleaned from
FISA's text and legislative history to set forth a
comprehensive scheme for regulating electronic surveillance
during peacetime, that same intent simply does not extend to
armed conflicts and declared wars.\19\ Second, FISA was enacted
during the Cold War, not during active hostilities with an
adversary whose mode of operation is to blend in with the
civilian population until it is ready to strike. These changed
circumstances have seriously altered the constitutional
calculus, one that FISA's enactors had already recognized might
suggest that the statute was unconstitutional. Third, certain
technological changes have rendered FISA still more
problematic. As discussed above, when FISA was enacted in 1978,
Congress expressly declined to regulate through FISA certain
signals intelligence activities conducted by the NSA. See
supra, at pp. 18-19 & n.6.\20\ These same factors weigh heavily
in favor of concluding that FISA would be unconstitutional as
applied to the current conflict if the canon of constitutional
avoidance could not be used to head off a collision between the
Branches.
---------------------------------------------------------------------------
\19\ FISA exempts the President from its procedures for fifteen
days following a congressional declaration of war. See 50 U.S.C.
Sec. 1811. If an adversary succeeded in a decapitation strike,
preventing Congress from declaring war or passing subsequent
authorizing legislation, it seems clear that FISA could not
constitutionally continue to apply in such circumstances.
\20\ Since FISA's enactment in 1978, the means of transmitting
communications has undergone extensive transformation. In particular,
many communications that would have been carried by wire are now
transmitted through the air, and many communications that would have
been carried by radio signals (including by satellite transmissions)
are now transmitted by fiber optic cables. It is such technological
advancements that have broadened FISA's reach, not any particularized
congressional judgment that the NSA's traditional activities in
intercepting such international communications should be subject to
FISA's procedures. A full explanation of these technological changes
would require a discussion of classified information.
---------------------------------------------------------------------------
As explained above, FISA is best interpreted to allow a
statute such as the AUMF to authorize electronic surveillance
outside FISA's enumerated procedures. The strongest
counterarguments to this conclusion are that various provisions
in FISA and title 18, including section 111 of FISA and section
2511(2)(f) of title 18, together require that subsequent
legislation must reference or amend FISA in order to authorize
electronic surveillance outside FISA's procedures and that
interpreting the AUMF as a statute authorizing electronic
surveillance outside FISA procedures amounts to a disfavored
repeal by implication. At the very least, however, interpreting
FISA to allow a subsequent statute such as the AUMF to
authorize electronic surveillance without following FISA's
express procedures is ``fairly possible,'' and that is all that
is required for purposes of invoking constitutional avoidance.
In the competition of competing canons, particularly in the
context of an ongoing armed conflict, the constitutional
avoidance canon carries much greater interpretative force.\21\
---------------------------------------------------------------------------
\21\ If the text of FISA were clear that nothing other than an
amendment to FISA could authorize additional electronic surveillance,
the AUMF would impliedly repeal as much of FISA as would prevent the
President from using ``all necessary and appropriate force'' in order
to prevent al Qaeda and its allies from launching another terrorist
attack against the United States. To be sure, repeals by implication
are disfavored and are generally not found whenever two statutes are
``capable of co-existence.'' Ruckelshaus v. Monsanto Co., 467 U.S. 986,
1018 (1984). Under this standard, an implied repeal may be found where
one statute would ``unduly interfere with'' the operation of another.
Radzanower v. Touche Ross & Co., 426 U.S. 148, 156 (1976). The
President's determination that electronic surveillance of al Qaeda
outside the confines of FISA was ``necessary and appropriate'' would
create a clear conflict between the AUMF and FISA. FISA's restrictions
on the use of electronic surveillance would preclude the President from
doing what the AUMF specifically authorized him to do: use all
``necessary and appropriate force'' to prevent al Qaeda from carrying
out future attacks against the United States. The ordinary restrictions
in FISA cannot continue to apply if the AUMF is to have its full
effect; those constraints would ``unduly interfere'' with the operation
of the AUMF.
Contrary to the recent suggestion made by several law professors
and former government officials, the ordinary presumption against
implied repeals is overcome here. Cf. Letter to the Hon. Bill Frist,
Majority Leader, U.S. Senate, from Professor Curtis A. Bradley et al.
at 4 (Jan. 9, 2006). First, like other canons of statutory
construction, the canon against implied repeals is simply a presumption
that may be rebutted by other factors, including conflicting canons.
Connecticut National Bank v. Germain, 503 U.S. 249, 253 (1992); see
also Chickasaw Nation v. United States, 534 U.S. 84, 94 (2001); Circuit
City Stores, Inc. v. Adams, 532 U.S. 105, 115 (2001). Indeed, the
Supreme Court has declined to apply the ordinary presumption against
implied repeals where other canons apply and suggest the opposite
result. See Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 765-66
(1985). Moreover, Blackfeet suggests that where the presumption against
implied repeals would conflict with other, more compelling interpretive
imperatives, it simply does not apply at all. See 471 U.S. at 766.
Here, in light of the constitutional avoidance canon, which imposes the
overriding imperative to use the tools of statutory interpretation to
avoid constitutional conflicts, the implied repeal canon either would
not apply at all or would apply with significantly reduced force.
Second, the AUMF was enacted during an acute national emergency, where
the type of deliberation and detail normally required for application
of the canon against implied repeals was neither practical nor
warranted. As discussed above, in these circumstances, Congress cannot
be expected to work through every potential implication of the U.S.
Code and to define with particularity each of the traditional incidents
of the use of force available to the President.
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IV. The NSA activities are consistent with the Fourth Amendment
The Fourth Amendment prohibits ``unreasonable searches and
seizures'' and directs that ``no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the
persons or things to be seized.'' U.S. Const. amend. IV. The
touchstone for review of government action under the Fourth
Amendment is whether the search is ``reasonable.'' See, e.g.,
Vernonia Sch. Dist. v. Acton, 515 U.S. 646, 653 (1995).
As noted above, see Part I, all of the federal courts of
appeals to have addressed the issue have affirmed the
President's inherent constitutional authority to collect
foreign intelligence without a warrant. See In re Sealed Case,
310 F.3d at 742. Properly understood, foreign intelligence
collection in general, and the NSA activities in particular,
fit within the ``special needs'' exception to the warrant
requirement of the Fourth Amendment. Accordingly, the mere fact
that no warrant is secured prior to the surveillance at issue
in the NSA activities does not suffice to render the activities
unreasonable. Instead, reasonableness in this context must be
assessed under a general balancing approach, ``by assessing, on
the one hand, the degree to which it intrudes upon an
individual's privacy and, on the other, the degree to which it
is needed for the promotion of legitimate governmental
interests.'' United States v. Knights, 534 U.S. 112, 118-19
(2001) (quoting Wyoming v. Houghton, 526 U.S. 295, 300 (1999)).
The NSA activities are reasonable because the Government's
interest, defending the Nation from another foreign attack in
time of armed conflict, outweighs the individual privacy
interests at stake, and because they seek to intercept only
international communications where one party is linked to al
Qaeda or an affiliated terrorist organization.
A. The warrant requirement of the Fourth Amendment does not
apply to the NSA activities
In ``the criminal context,'' the Fourth Amendment
reasonableness requirement ``usually requires a showing of
probable cause'' and a warrant. Board of Educ. v. Earls, 536
U.S. 822, 828 (2002). The requirement of a warrant supported by
probable cause, however, is not universal. Rather, the Fourth
Amendment's ``central requirement is one of reasonableness,''
and the rules the Court has developed to implement that
requirement ``[s]ometimes . . . require warrants.'' Illinois v.
McArthur, 531 U.S. 326, 330 (2001); see also, e.g., Earls, 536
U.S. at 828 (noting that the probable cause standard ``is
peculiarly related to criminal investigations and may be
unsuited to determining the reasonableness of administrative
searches where the Government seeks to prevent the development
of hazardous conditions'') (internal quotation marks omitted).
In particular, the Supreme Court repeatedly has made clear
that in situations involving ``special needs'' that go beyond a
routine interest in law enforcement, the warrant requirement is
inapplicable. See Vernonia, 515 U.S. at 653 (there are
circumstances ``when special needs, beyond the normal need for
law enforcement, make the warrant and probable-cause
requirement impracticable'') (quoting Griffin v. Wisconsin, 483
U.S. 868, 873 (1987)); see also McArthur, 531 U.S. at 330
(``When faced with special law enforcement needs, diminished
expectations of privacy, minimal intrusions, or the like, the
Court has found that certain general, or individual,
circumstances may render a warrantless search or seizure
reasonable.''). It is difficult to encapsulate in a nutshell
all of the different circumstances the Court has found to
qualify as ``special needs'' justifying warrantless searches.
But one application in which the Court has found the warrant
requirement inapplicable is in circumstances in which the
Government faces an increased need to be able to react swiftly
and flexibly, or when there are at stake interests in public
safety beyond the interests in ordinary law enforcement. One
important factor in establishing ``special needs'' is whether
the Government is responding to an emergency that goes beyond
the need for general crime control. See In re Sealed Case, 310
F.3d at 745-46.
Thus, the Court has permitted warrantless searches of
property of students in public schools, see New Jersey v.
T.L.O., 469 U.S. 325, 340 (1985) (noting that warrant
requirement would ``unduly interfere with the maintenance of
the swift and informal disciplinary procedures needed in the
schools''), to screen athletes and students involved in
extracurricular activities at public schools for drug use, see
Vernonia, 515 U.S. at 654-55; Earls, 536 U.S. at 829-38, to
conduct drug testing of railroad personnel involved in train
accidents, see Skinner v. Railway Labor Executives' Ass'n, 489
U.S. 602, 634 (1989), and to search probationers' homes, see
Griffin, 483 U.S. 868. Many special needs doctrine and related
cases have upheld suspicionless searches or seizures. See,
e.g., Illinois v. Lidster, 540 U.S. 419, 427 (2004) (implicitly
relying on special needs doctrine to uphold use of automobile
checkpoint to obtain information about recent hit-and-run
accident); Earls, 536 U.S. at 829-38 (suspicionless drug
testing of public school students involved in extracurricular
activities); Michigan Dep't of State Police v. Sitz, 496 U.S.
444, 449-55 (1990) (road block to check all motorists for signs
of drunken driving); United States v. Martinez-Fuerte, 428 U.S.
543 (1976) (road block near the border to check vehicles for
illegal immigrants); cf. In re Sealed Case, 310 F.3d at 745-46
(noting that suspicionless searches and seizures in one sense
are a greater encroachment on privacy than electronic
surveillance under FISA because they are not based on any
particular suspicion, but ``[o]n the other hand, wiretapping is
a good deal more intrusive than an automobile stop accompanied
by questioning''). To fall within the ``special needs''
exception to the warrant requirement, the purpose of the search
must be distinguishable from ordinary general crime control.
See, e.g., Ferguson v. Charleston, 532 U.S. 67 (2001); City of
Indianapolis v. Edmond, 531 U.S. 32, 41 (2000).
Foreign intelligence collection, especially in the midst of
an armed conflict in which the adversary has already launched
catastrophic attacks within the United States, fits squarely
within the area of ``special needs, beyond the normal need for
law enforcement'' where the Fourth Amendment's touchstone of
reasonableness can be satisfied without resort to a warrant.
Vernonia, 515 U.S. at 653. The Executive Branch has long
maintained that collecting foreign intelligence is far removed
from the ordinary criminal law enforcement action to which the
warrant requirement is particularly suited. See, e.g., Amending
the Foreign Intelligence Surveillance Act: Hearings Before the
House Permanent Select Comm. on Intelligence, 103d Cong. 2d
Sess. 62, 63 (1994) (statement of Deputy Attorney General Jamie
S. Gorelick) (``[I]t is important to understand that the rules
and methodology for criminal searches are inconsistent with the
collection of foreign intelligence and would unduly frustrate
the President in carrying out his foreign intelligence
responsibilities. . . . [W]e believe that the warrant clause of
the Fourth Amendment is inapplicable to such [foreign
intelligence] searches.''); see also In re Sealed Case, 310
F.3d 745. The object of foreign intelligence collection is
securing information necessary to protect the national security
from the hostile designs of foreign powers like al Qaeda and
affiliated terrorist organizations, including the possibility
of another foreign attack on the United States. In foreign
intelligence investigations, moreover, the targets of
surveillance often are agents of foreign powers, including
international terrorist groups, who may be specially trained in
concealing their activities and whose activities may be
particularly difficult to detect. The Executive requires a
greater degree of flexibility in this field to respond with
speed and absolute secrecy to the ever-changing array of
foreign threats faced by the Nation.\22\
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\22\ Even in the domestic context, the Supreme Court has recognized
that there may be significant distinctions between wiretapping for
ordinary law enforcement purposes and domestic national security
surveillance. See United States v. United States District Court, 407
U.S. 297, 322 (1972) (``Keith'') (explaining that ``the focus of
domestic [security] surveillance may be less precise than that directed
against more conventional types of crime'' because often ``the emphasis
of domestic intelligence gathering is on the prevention of unlawful
activity or the enhancement of the Government's preparedness for some
possible future crisis or emergency''); see also United States v.
Duggan, 743 F.2d 59, 72 (2d Cir. 1984) (reading Keith to recognize that
``the governmental interests presented in national security
investigations differ substantially from those presented in traditional
criminal investigations''). Although the Court in Keith held that the
Fourth Amendment's warrant requirement does apply to investigations of
purely domestic threats to national security--such as domestic
terrorism, it suggested that Congress consider establishing a lower
standard for such warrants than that set forth in Title III. See id. at
322-23 (advising that ``different standards'' from those applied to
traditional law enforcement ``may be compatible with the Fourth
Amendment if they are reasonable both in relation to the legitimate
need of the Government for intelligence information and the protected
rights of our citizens''). Keith's emphasis on the need for flexibility
applies with even greater force to surveillance directed at foreign
threats to national security. See S. Rep. No. 95-701, at 16 (``Far more
than in domestic security matters, foreign counterintelligence
investigations are `long range' and involve `` `the interrelation of
various sources and types of information.' '') (quoting Keith, 407 U.S.
at 322). And flexibility is particularly essential here, where the
purpose of the NSA activities is to prevent another armed attack
against the United States.
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In particular, the NSA activities are undertaken to prevent
further devastating attacks on our Nation, and they serve the
highest government purpose through means other than traditional
law enforcement.\23\ The NSA activities are designed to enable
the Government to act quickly and flexibly (and with secrecy)
to find agents of al Qaeda and its affiliates--an international
terrorist group which has already demonstrated a capability to
infiltrate American communities without being detected--in time
to disrupt future terrorist attacks against the United States.
As explained by the Foreign Intelligence Surveillance Court of
Review, the nature of the ``emergency'' posed by al Qaeda
``takes the matter out of the realm of ordinary crime
control.'' In re Sealed Case, 310 F.3d at 746. Thus, under the
``special needs'' doctrine, no warrant is required by the
Fourth Amendment for the NSA activities.
---------------------------------------------------------------------------
\23\ This is not to say that traditional law enforcement has no
role in protecting the Nation from attack. The NSA activities, however,
are not directed at bringing criminals to justice but at detecting and
preventing plots by a declared enemy of the United States to attack it
again.
---------------------------------------------------------------------------
B. The NSA activities are reasonable
As the Supreme Court has emphasized repeatedly, ``[t]he
touchstone of the Fourth Amendment is reasonableness, and the
reasonableness of a search is determined by assessing, on the
one hand, the degree to which it intrudes upon an individual's
privacy and, on the other, the degree to which it is needed for
the promotion of legitimate governmental interests.'' Knights,
534 U.S. at 118-19 (quotation marks omitted); see also Earls,
536 U.S. at 829. The Supreme Court has found a search
reasonable when, under the totality of the circumstances, the
importance of the governmental interests outweighs the nature
and quality of the intrusion on the individual's Fourth
Amendment interests. See Knights, 534 U.S. at 118-22. Under the
standard balancing of interests analysis used for gauging
reasonableness, the NSA activities are consistent with the
Fourth Amendment.
With respect to the individual privacy interests at stake,
there can be no doubt that, as a general matter, interception
of telephone communications implicates a significant privacy
interest of the individual whose conversation is intercepted.
The Supreme Court has made clear at least since Katz v. United
States, 389 U.S. 347 (1967), that individuals have a
substantial and constitutionally protected reasonable
expectation of privacy that their telephone conversations will
not be subject to governmental eavesdropping. Although the
individual privacy interests at stake may be substantial, it is
well recognized that a variety of governmental interests--
including routine law enforcement and foreign-intelligence
gathering--can overcome those interests.
On the other side of the scale here, the Government's
interest in engaging in the NSA activities is the most
compelling interest possible--securing the Nation from foreign
attack in the midst of an armed conflict. One attack already
has taken thousands of lives and placed the Nation in state of
armed conflict. Defending the Nation from attack is perhaps the
most important function of the federal Government--and one of
the few express obligations of the federal Government enshrined
in the Constitution. See U.S. Const. art. IV, Sec. 4 (``The
United States shall guarantee to every State in this Union a
Republican Form of Government, and shall protect each of them
against Invasion. . . .'') (emphasis added); The Prize Cases,
67 U.S. (2 Black) 635, 668 (1863) (``If war be made by invasion
of a foreign nation, the President is not only authorized but
bound to resist force by force.''). As the Supreme Court has
declared, ``[i]t is `obvious and unarguable' that no
governmental interest is more compelling than the security of
the Nation.'' Haig v. Agee, 453 U.S. 280, 307 (1981).
The Government's overwhelming interest in detecting and
thwarting further al Qaeda attacks is easily sufficient to make
reasonable the intrusion into privacy involved in intercepting
one-end foreign communications where there is ``a reasonable
basis to conclude that one party to the communication is a
member of al Qaeda, affiliated with al Qaeda, or a member of an
organization affiliated with al Qaeda.'' Press Briefing by
Attorney General Alberto Gonzales and General Michael Hayden,
Principal Deputy Director for National Intelligence, available
at http://www.whitehouse.gov/news/releases/2005/12/20051219-
1.html (Dec. 19, 2005) (statement of Attorney General
Gonzales); cf. Edmond, 531 U.S. at 44 (noting that ``the Fourth
Amendment would almost certainly permit an appropriately
tailored roadblock set up to thwart an imminent terrorist
attack'' because ``[t]he exigencies created by th[at]
scenario[] are far removed'' from ordinary law enforcement).
The United States has already suffered one attack that killed
thousands, disrupted the Nation's financial center for days,
and successfully struck at the command and control center for
the Nation's military. And the President has stated that the
NSA activities are ``critical'' to our national security. Press
Conference of President Bush (Dec. 19, 2005). To this day,
finding al Qaeda sleeper agents in the United States remains
one of the preeminent concerns of the war on terrorism. As the
President has explained, ``[t]he terrorists want to strike
America again, and they hope to inflict even more damage than
they did on September 11th.'' Id.
Of course, because the magnitude of the Government's
interest here depends in part upon the threat posed by al
Qaeda, it might be possible for the weight that interest
carries in the balance to change over time. It is thus
significant for the reasonableness of the NSA activities that
the President has established a system under which he
authorizes the surveillance only for a limited period,
typically for 45 days. This process of reauthorization ensures
a periodic review to evaluate whether the threat from al Qaeda
remains sufficiently strong that the Government's interest in
protecting the Nation and its citizens from foreign attack
continues to outweigh the individual privacy interests at
stake.
Finally, as part of the balancing of interests to evaluate
Fourth Amendment reasonableness, it is significant that the NSA
activities are limited to intercepting international
communications where there is a reasonable basis to conclude
that one party to the communication is a member or agent of al
Qaeda or an affiliated terrorist organization. This factor is
relevant because the Supreme Court has indicated that in
evaluating reasonableness, one should consider the ``efficacy
of [the] means for addressing the problem.'' Vernonia, 515 U.S.
at 663; see also Earls, 536 U.S. at 834 (``Finally, this Court
must consider the nature and immediacy of the government's
concerns and the efficacy of the Policy in meeting them.'').
That consideration does not mean that reasonableness requires
the ``least intrusive'' or most ``narrowly tailored'' means for
obtaining information. To the contrary, the Supreme Court has
repeatedly rejected such suggestions. See, e.g., Earls, 536
U.S. at 837 (``[T]his Court has repeatedly stated that
reasonableness under the Fourth Amendment does not require
employing the least intrusive means, because the logic of such
elaborate less-restrictive-alternative arguments could raise
insuperable barriers to the exercise of virtually all search-
and-seizure powers.'') (internal quotation marks omitted);
Vernonia, 515 U.S. at 663 (``We have repeatedly refused to
declare that only the `least intrusive' search practicable can
be reasonable under the Fourth Amendment.''). Nevertheless, the
Court has indicated that some consideration of the efficacy of
the search being implemented--that is, some measure of fit
between the search and the desired objective--is relevant to
the reasonableness analysis. The NSA activities are targeted to
intercept international communications of persons reasonably
believed to be members or agents of al Qaeda or an affiliated
terrorist organization, a limitation which further strongly
supports the reasonableness of the searches.
In sum, the NSA activities are consistent with the Fourth
Amendment because the warrant requirement does not apply in
these circumstances, which involve both ``special needs''
beyond the need for ordinary law enforcement and the inherent
authority of the President to conduct warrantless electronic
surveillance to obtain foreign intelligence to protect our
Nation from foreign armed attack. The touchstone of the Fourth
Amendment is reasonableness, and the NSA activities are
certainly reasonable, particularly taking into account the
nature of the threat the Nation faces.
CONCLUSION
For the foregoing reasons, the President--in light of the
broad authority to use military force in response to the
attacks of September 11th and to prevent further catastrophic
attack expressly conferred on the President by the Constitution
and confirmed and supplemented by Congress in the AUMF--has
legal authority to authorize the NSA to conduct the signals
intelligence activities he has described. Those activities are
authorized by the Constitution and by statute, and they violate
neither FISA nor the Fourth Amendment.
------
Department of Defense, Office of the
Under Secretary of Defense (Intelligence),
Washington, DC, December 19, 2005.
Hon. Duncan Hunter,
Chairman, Committee on Armed Services,
House of Representatives, Washington, DC.
Dear Mr. Chairman: An NBC Nightly News segment aired on
December 13th alleging that Department of Defense (DoD)
entities are collecting information on American peace activists
and monitoring protests against the Iraq war. The segment
highlighted entries in the Department's Threat and Local
Observation Notice (TALON) reporting system. I want to provide
you some context not otherwise reported in the segment.
The Department is authorized to conduct an integrated and
cooperative counterintelligence (CI) and military law
enforcement effort that protects its installations, property
and people from threats of all kinds--both overseas and in the
United States. In support of this effort, designated DoD
organizations report unfiltered information provided by
concerned citizens, DoD personnel charged with responsibilities
for the security of DoD installations (e.g., gate guards) or
other DoD personnel reporting suspicious activities. That
information is merged with information from local, state and
federal law enforcement and other intelligence, security and CI
organizations and is used by analysts to assess potential
threats to DoD interests.
TALON is the place where DoD initially stores ``dots'' of
information which if validated, might later be connected to
avert an attack before it occurs. Under existing procedures, a
``dot'' of information that is not validated as threatening
must be removed from the TALON system in less than 90 days. If
the ``dot'' is validated, the information is transferred to law
enforcement.
I have directed that the appropriate CI and military law
enforcement organizations within the Department take several
actions. A thorough review of the TALON reporting system is
underway to ensure full compliance with DoD directives and U.S.
laws. We will review those policies and procedures for proper
application with respect to receipt and retention of
information about U.S. persons. Finally, we will review the
TALON database to determine whether information has been
improperly used or stored in the database.
I have directed that all Department CI and intelligence
personnel receive immediate refresher training concerning the
laws, policies and procedures that govern the responsibilities
for handling information, especially information related to
U.S. persons.
My office is currently engaged in both formal and informal
dialogue with members of your staff on this subject. We stand
ready to answer questions you may have.
I have sent a similar letter to the Committee's Ranking
Member, the Honorable Ike Skelton.
Sincerely,
Stephen A. Cambone,
Under Secretary of Defense.
------
Department of Defense, Office of the
Under Secretary of Defense (Intelligence),
Washington, DC, January 27, 2006.
Hon. Duncan Hunter,
Chairman, Committee on Armed Services,
House of Representatives, Washington, DC.
Dear Mr. Chairman: In the Under Secretary of Defense for
Intelligence letter of December 19, 2005, Dr. Stephen Cambone
provided you some context not otherwise reported in an NBC News
segment on the Department of Defense (DoD) TALON system. Dr.
Cambone also advised that we would thoroughly review the TALON
system. That review is nearly completed. I would like to update
you on our results:
DoD field commanders highly value the TALON
reporting program as a source of timely information
about possible foreign terrorist threats to their
personnel and facilities.
The TALON reporting system is much like a capability to
document information from a ``neighborhood watch'' program in
which concerned citizens or DoD personnel report suspicious
activities they believe may be linked to possible foreign
terrorist activities to DoD counterintelligence, law
enforcement or intelligence organizations. The focus of the
effort was on possible foreign terrorist threats to the DoD and
not on U.S. persons in the United States. The information that
was reported to DoD security, law enforcement,
counterintelligence or intelligence personnel was then briefed
to local military command officials and laws enforcement as
appropriate prior to being sent to the TALON reporting database
at the Counterintelligence Field Activity (CIFA) for analysis.
CIFA's role in the process is to maintain the database and
conduct analysis.
TALON reporting has led to a number of
investigations. Those include terrorism investigations,
most often conducted under the purview of the Joint
Terrorism Task Forces headed by FBI, and the reporting
has identified other criminal activities. The reporting
has also disclosed some patterns that have allowed the
Department to focus or change security procedures in
order to deter potential terrorist activities.
Although the TALON reporting system was
intended to document suspicious incidents possibly
linked to foreign terrorist threats to DoD resources,
some came to view the system as a means to report
information about demonstrations and anti-base activity
that would be of interest to the field commanders from
a force protection prospective. A very small percentage
of these reports were submitted to the TALON/
CORNERSTONE database.
CIFA has removed the TALON reports on
demonstrations and anti-base activity from the
database. The process to remove other reports that are
no longer analytically significant is ongoing. All
TALON reports are now reviewed at CIFA upon receipt to
ensure compliance with the TALON reporting criteria.
The DoD organizations involved in the TALON
reporting system were following multiple rule sets
regarding the collection and retention of this
information. The Department will soon issue detailed
guidance that clarifies the purpose of the database,
the rules governing the collection and retention of the
data and more detailed procedures to be followed. The
database will then be reviewed again to ensure
compliance.
Dr. Cambone also directed that all Department
counterintelligence and intelligence personnel receive
immediate refresher training concerning the laws, policies and
procedures that govern the responsibilities for handling
information, especially information related to U.S. persons.
The refresher training is underway and should be completed by
January 31, 2006.
This review clearly indicates that TALON is an important
and valuable tool, and that we have room for improvement. We
will continue our analysis of findings from this review to
determine precisely what we need to do to improve and will
provide you with additional information.
There is nothing more important to the U.S. military than
the trust and good will of the American people. The DoD values
that trust and good will and consequently views with the
greatest concern any potential violation of the strict DoD
policy governing the protection of civil liberties. Our new
guidance will reflect that concern and protect that trust.
My office continues to be engaged in formal and informal
dialogue with members of your staff on this subject. These
discussions have been positive and productive. I look forward
to an opportunity to brief your committee on these complex and
overlapping issues. I have sent a similar letter to the
Committee's Ranking Member, the Honorable Ike Skelton.
Sincerely,
Robert W. Rogaliski,
Deputy Under Secretary of Defense
(Counterintelligence and Security).
------
LEGISLATIVE HISTORY
As noted above, H. Res. 645 was introduced on December 22,
2005, and referred to the Committee on Armed Services.
On March 1, 2006, the Committee on Armed Services held a
mark-up session to consider H. Res. 645. After general
discussion of the resolution, Ranking Member Skelton offered an
amendment requesting the President and requiring the Secretary
of Defense to provide to the House of Representatives
classified information on the results of the NSA surveillance
program. The amendment failed on a record vote of 21 ayes to 32
noes. The committee reported adversely the resolution by voice
vote, a quorum being present.
COMMITTEE POSITION
On March 1, 2006, the Committee on Armed Services met in
open session and reported adversely the resolution H. Res. 645
to the House by voice vote, a quorum being present.
COMMUNICATION FROM ANOTHER COMMITTEE
House of Representatives,
Permanent Select Committee on Intelligence,
Washington, DC, February 8, 2006
Hon. Duncan Hunter,
Chairman, Committee on Armed Services,
House of Representatives, Washington, DC
Dear Mr. Chairman: As you move forward to markup House
Resolution 645, the resolution of inquiry offered by Mr. Wexler
on the Terrorist Surveillance Program (TSP), I want to offer
some concerns/considerations.
The specific techniques and measures employed in this
program are rightfully and highly classified. In fact, only a
handful of Members of Congress are fully read into the details
of these precious sources and methods. I am vitally concerned
that, were the Administration to be forced to comply with the
resolution's requests for specific information (logs, memos,
telephone and electronic mail records, etc.) related to the TSP
program, there could be a serious compromise of vital national
security information and the terrorists targeted by this
program would be given the warning necessary to thwart our
intelligence efforts against them.
There has been a great deal of hue and cry on many fronts
about the process for overseeing this program, hence this
resolution of inquiry. I can assure you, however, that House
Leadership and those of us on the Intelligence Committee who
are properly charged under House rules with exclusively
overseeing these focused and limited Intelligence Community
efforts have been fully and currently informed of all aspects
of the program. We have been and are given ample opportunity to
question the process, the operational aspects, and the legality
of the program. I see no need for directing the President or
the Secretary of Defense to produce information that is already
properly provided to the Congress.
Sincerely,
Peter Hoekstra, Chairman
------
COMMITTEE COST ESTIMATE
Pursuant to clause 3(d) of rule XIII of the Rules of the
House of Representatives, the committee estimates the costs of
implementing the resolution would be minimal. The Congressional
Budget Office did not provide a cost estimate for the
resolution.
OVERSIGHT FINDINGS
With respect to clause 3(c)(1) of rule XIII of the Rules of
the House of Representatives, the committee reports that the
findings and recommendations of the committee, based on
oversight activities pursuant to clause 2(b)(1) of rule X, are
incorporated in the descriptive portions of this report.
With respect to clause 3(c)(2) of rule XIII of the Rules of
the House of Representatives and section 308(a)(1) of the
Congressional Budget Act of 1974, this legislation does not
include any new spending or credit authority, nor does it
provide for any increase or decrease in tax revenues or
expenditures.
With respect to clause 3(c)(4) of rule XIII of the Rules of
the House of Representatives, performance goals and objectives
can not be explained, because the resolution does not require
any new funding.
CONSTITUTIONAL AUTHORITY STATEMENT
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the committee finds that the rule
does not apply because H. Res. 645 is not a bill or joint
resolution that may be enacted into law.
RECORD VOTE
In accordance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, record and voice votes were taken
with respect to the committee's consideration of H. Res. 645.
.