Wartime Executive Power and the NSA’s Surveillance Authority II

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Mr. Chairman, distinguished members of the subcommittee:

My name is Robert A. Levy. I am a senior fellow inconstitutional studies at the Cato Institute. Thank you forinviting me to comment on selected aspects of the National SecurityAgency's warrantless surveillance program.

I. Introduction

President Bush has authorized the NSA to eavesdrop, withoutobtaining a warrant, on telephone calls, emails, and othercommunications between U.S. persons in the United States andpersons outside of the United States. For understandable reasons,the operational details of the NSA program are secret, as are thedetails of the executive order that authorized the program. ButAttorney General Gonzales has stated that surveillance can betriggered if an executive branch official has reasonable grounds tobelieve that a communication involves a person "affiliated withal-Qaeda or part of an organization or group that is supportive ofal-Qaeda." 1

The attorney general has declared that the president's authorityrests on the post-9/11 Authorization for Use of Military Force[AUMF] and the president's inherent wartime powers under Article IIof the U.S. Constitution, which includes authority to gather"signals intelligence" on the enemy. 2

The NSA program, and its defense by the administration, raisethese questions, which I propose to address below: (1) Does NSAwarrantless surveillance violate the Fourth Amendment's protectionagainst unreasonable searches? (2) Does the program violate theForeign Intelligence Surveillance Act [FISA]? (3) Does the AUMFauthorize warrantless surveillance by the NSA? (4) Do thepresident's inherent powers allow him to ignore FISA? (5) Whatshould be done if the executive branch has acted unlawfully?

My conclusions, as elaborated in the following sections, are:First, the president has some latitude under the "executive Power"and "Commander-in-Chief" Clauses of Article II, even lackingexplicit congressional approval, to authorize NSA warrantlesssurveillance without violating the "reasonableness" requirement ofthe Fourth Amendment. But second, if Congress has expresslyprohibited such surveillance (as it has under FISA), then thestatute binds the president unless there are grounds to concludethat the statute does not apply. Third, in the case at hand, thereare no grounds for such a conclusion -- that is, neither the AUMFnor the president's inherent powers trump the express prohibitionin the FISA statute.

My testimony today addresses only the legality of the NSAprogram, not the policy question whether the program is necessaryand desirable from a national security perspective. If the programis both essential and illegal, then the obvious choices are tochange the program so that it complies with the law, or change thelaw so that it authorizes the program.

Nor do I address, other than to mention in this paragraph, threeother constitutional arguments that might be advanced in oppositionto warrantless surveillance by the NSA. First, in contravention ofthe First Amendment, the program may deprive innocent persons ofthe right to engage freely in phone and email speech. Second, thepresident may have violated his constitutional obligation to "takeCare that the Laws be faithfully executed." 3 Among the laws to be faithfully executed is FISA.No doubt, the president has some discretion in enforcing the law,but not leeway to take actions that the law expressly prohibits.Third, in contravention of the Fifth Amendment, the NSAsurveillance program may represent a deprivation of liberty withoutdue process. Liberty, as we know from the Supreme Court's recentdecision in Lawrence v. Texas4, encompasses selected aspects of privacy that areseparate from the question whether particular intrusions arereasonable in terms of the Fourth Amendment.

Those concerns are legitimate, but they have not been central tothe debate over NSA surveillance, and they are not the focus of theCommittee's deliberations or, therefore, of my testimony.

II. Does NSA Warrantless Surveillance Violate the FourthAmendment?

The president has contended that NSA warrantless surveillancedoes not offend Fourth Amendment protections against "unreasonable"searches. That contention is correct as far as it goes; but it doesnot go far enough.

To begin, the Fourth Amendment requires probable cause in orderto obtain a warrant, but it does not require a warrant for allsearches. There are numerous instances of permissible warrantlesssearches -- e.g., hot pursuit,5 evanescent evidence,6 search incident to arrest,7 stop and frisk,8 automobile searches,9 plain view searches,10 consent searches,11 and administrative searches.12 In fact, federal courts have recognized aborder search exception 13and, within the border search exception, an exception formonitoring certain international postal mail. 14 As for a national security exception forforeign intelligence surveillance, that remains an open issue. Theso-called Keith case in 1972 said there would be noexception if a domestic organization were involved; but there mightbe an exception if a foreign power were involved. 15

Thus, the administration can credibly argue that it may conductsome types of warrantless surveillance without violating the FourthAmendment. And because the president's Article II powers areelevated during time of war -- assuming the AUMF to be thefunctional, if not legal, equivalent of a declaration of war -- hispost-9/11 authorization of NSA warrantless surveillance might bejustifiable if the Congress had not expressly disapproved.

But the Congress did expressly disapprove, in the FISA statute.Therefore, the president's assertion of a national securityexception that encompasses the NSA program misses the point. Theproper question is not whether the president has inherent authorityto relax the "reasonableness" standard of the Fourth Amendment inorder to direct warrantless surveillance, even if not approved byCongress. The answer to that question is "yes, in some cases." Butthe narrower issue in the NSA case is whether the president, in theface of an express statutory prohibition, can direct that samesurveillance. The answer is "no," and I am not aware of any caselaw to support an argument to the contrary.

Put somewhat differently, Article II establishes that thepresident has inherent powers, especially during wartime. And thosepowers might be sufficient to support his authorization ofwarrantless surveillance, notwithstanding the warrant provisions ofthe Fourth Amendment. But Article II does not delineate the scopeof the president's wartime powers. And because Congress hasconcurrent authority in this area,16 an express prohibition by Congress is persuasivewhen deciding whether the president has overreached.

The distinction between concurrent and exclusive powers isimportant. For example, the president's "Power to grant Reprievesand Pardons"17 isexclusive; there is no stated power for Congress to modify it bylegislation -- e.g., by declaring certain offenses unpardonable. Bycontrast, the president's wartime powers are shared with Congress(see note 16). That suggests the president must comply with dulyenacted statutes unless he can show that Congress has exceeded itsauthority. In this instance, President Bush has made no suchshowing.

III. Does NSA Warrantless Surveillance Comply withFISA?

Accordingly, even if the administration establishes that NSAwarrantless surveillance during wartime is reasonable in thecontext of the Fourth Amendment, the question remains whether theNSA program violates the express terms of FISA. It does.

The text of FISA is unambiguous: "A person is guilty of anoffense if he intentionally engages in electronic surveillance ...except as authorized by statute." 18 That provision covers communications from or toU.S. citizens or permanent resident aliens in the United States.Moreover, the Wiretap Act provides that its procedures and FISA"shall be the exclusive means by which electronic surveillance ...may be conducted." 19

From the early 1960s until 1973, the NSA, without approval ofCongress, used a "watch list" of U.S. citizens and organizations insorting through intercepted foreign communications. That was knownas Project Minaret.20 From1945 to 1975, telegraph companies gave the NSA copies of mosttelegrams sent from the United States to overseas. That was knownas Project Shamrock, "probably the largest governmentalinterception program affecting Americans ever undertaken."21 Of course, there werealso domestic spying abuses by the Federal Bureau of Investigationunder J. Edgar Hoover against suspected communists, Black Panthers,civil rights leaders and others. That's why FISA was enacted in1978. It had a dual purpose: to curb abuses while facilitatingdomestic surveillance for foreign intelligence purposes.

To be sure, the FISA statute was drafted to deal with peacetimeintelligence. But that does not mean the statute can be ignoredwhen applied to the post-9/11 war on terror. First, the FISA textmakes no distinction between wartime and peacetime. To conductsurveillance without statutory authorization, in wartime orpeacetime, is a crime, punishable by up to five years inprison.22 Second, inpassing FISA, Congress expressly contemplated warrantlesssurveillance during wartime, but limited it to the first 15 daysafter war is declared. The statute reads: "Notwithstanding anyother law, the President, through the Attorney General, mayauthorize electronic surveillance without a court order under thistitle to acquire foreign intelligence information for a period notto exceed fifteen calendar days following a declaration of war bythe Congress."23 Third,FISA warrant requirements and electronic surveillance provisionswere amended by the USA PATRIOT Act,24 which was passed in response to 9/11 and signedby President Bush. If 9/11 triggered "wartime," as theadministration has repeatedly and convincingly argued, then theamended FISA is clearly a wartime statute.

Some administration supporters have argued that FISA and thePATRIOT Act provide tools that the president had anyway, except hecould not use the acquired evidence in a criminalprosecution.25 Yet there isno support for the notion that members of Congress, in passing thetwo statutes, thought they were simply debating the rules ofevidence. Moreover, warrant requirements are triggered even if thegovernment declines to prosecute. Imagine police secretly enteringa private home without a warrant, installing bugs on phones andtracer software on computers, searching every room and closet, thenleaving, never to be heard from again -- no arrest, no indictment,no notice to the target. Clearly, the Fourth Amendment's warrantprovisions have been violated, even if the target is unaware and nofruits of the search are used as evidence in a criminalprosecution. A key purpose of the Amendment is to ensure privacy inthose situations in which an expectation of privacy isreasonable.

That said, there may be some international satellite or radiocommunications that do not come under FISA's prohibition becausethe communicating parties could not reasonably expect privacy. ButI know of no court case that has denied there is a reasonableexpectation of privacy by U.S. citizens and permanent residentaliens in their phone calls and emails.

Moreover, the Justice Department, in a December 2005 letter toCongress, acknowledged that the president's October 2001 NSAeavesdropping order did not comply with the "procedures" of theFISA statute.26 TheDepartment offers two justifications -- the first of which Iexamine next.

IV. Does the AUMF Authorize Warrantless Surveillance bythe NSA?

The Justice Department asserts that Congress's post-9/11 AUMFprovides the statutory authorization that FISA requires. Under theAUMF, "the President is authorized to use all necessary andappropriate force against those nations, organizations, or persons"who may have been connected to 9/11.27 But that cannot reasonably mean the AUMFauthorizes warrantless surveillance by the NSA in the face of anexpress provision in FISA that limits such surveillance to thefirst 15 days after a declaration of war.

A settled canon of statutory interpretation directs thatspecific provisions in a statute supersede general provisions --lex specialis derogat legi generali. When FISA forbids"electronic surveillance without a court order" while the AUMFpermits "necessary and appropriate force," it is bizarre toconclude that electronic surveillance without a court order isauthorized. In voting for the AUMF, members of Congress surely didnot intend to make compliance with FISA optional. In fact, Congresswas simultaneously relaxing selected provisions of FISA via thePATRIOT Act. Here's how the Washington Post put it:"Clearheaded members of Congress voting for the [AUMF] certainlyunderstood themselves to be authorizing the capture of al-Qaeda andTaliban fighters. We doubt any members even dreamed they werechanging domestic wiretapping rules -- particularly because theywere focused on that very issue in passing the USA PATRIOT Act."28

Also in the Washington Post, former Senate minorityleader Tom Daschle (D-SD) wrote that Congress rejected proposedlanguage from the White House that the broader purpose of the AUMFwas to "deter and pre-empt any future acts of terrorism oraggression." And Congress also refused a last-minute administrationproposal to change "appropriate force against those nations" toread "appropriate force in the United States and against thosenations."29 Notably, notone of the 518 members of Congress who voted for the AUMF has nowcome forth to dispute Sen. Daschle's account, or claim that his orher vote was intended to approve NSA warrantless surveillance.

Still, proponents of the NSA surveillance program argue that (a)the intent of members of Congress in signing the AUMF is trumped bythe text of the AUMF itself, (b) "necessary and appropriate force,"as permitted under the AUMF, surely includes the gathering ofbattlefield intelligence, and (c) the war on terror, and the eventsof 9/11 in particular, have expanded the notion of "battlefield" toencompass places in the United States.30 Those assertions, insofar as they are posited asjustification for NSA warrantless surveillance, are mistaken forthree principal reasons:

First, communications from the actual battlefield -- e.g.,Afghanistan -- or from anywhere else outside the United States, canbe monitored without violating FISA as long as the target of thesurveillance is not a U.S. person in the United States.

Second, a call from, say, France or the United Kingdom cannotreasonably be construed as battlefield-related unless the termbattlefield has no geographic limits. The courts have rejected thatidea in comparing the arrests of two U.S. citizens, Yaser Hamdi andJose Padilla. In Hamdi v. Rumsfeld, federal appellatejudge J. Harvie Wilkinson pointedly noted that Yaser Hamdi'sbattlefield capture was like "apples and oranges" compared to JosePadilla's arrest in Chicago.31 And in Padilla v. Rumsfeld, the U.S.Court of Appeals for the Second Circuit rejected the argument thatall the world is a battlefield in the war on terror.32

Third, if Naples, Italy is part of the battlefield, why notNaples, Florida? The same logic that argues for warrantlesssurveillance of foreign-to-domestic and domestic-to-foreigncommunications would permit warrantless surveillance ofall-domestic communications as well. Of course, the administrationdenies the existence of an all-domestic surveillance program, butso too would the administration have denied the NSA's currentprogram but for the leak in the New York Times.

As law professor Richard Epstein has noted:33 A current battlefield, where there is armedcombat, is vastly different from a potential battlefield that coulderupt if the enemy were to launch a terrorist act. To argue that weare living in a "war zone" would be news to most Americans joggingin Central Park or watching television in Los Angeles. There is,after all, a distinction to be made between suburban Chicago andsuburban Baghdad. Nor did the events of 9/11 transform the UnitedStates into a battlefield in the Afghan war -- any more than didthe attack on Pearl Harbor or the invasion by eight Nazis in theEx parte Quirin case34 transform the United States into a World War IIbattlefield.

What, then, does the preamble of the AUMF mean when it refers toterrorist acts that "render it both necessary and appropriate thatthe United States exercise the right to self-defense and to protectU.S. citizens both at home and abroad" (emphasis added)? Here, too,Professor Epstein has correctly interpreted the text:35 The AUMF preamble sets out thepurpose of the resolution but does not address the legitimacy ofmeans undertaken to carry out that purpose. No one doubts that thepresident has the right to use force in self-defense to protectcitizens at home and abroad. But a preamble containing a broadstatement of goals is not an affirmative grant of power to violatethe law.

Finally, did the Supreme Court in Hamdi v.Rumsfeld36 interpretthe AUMF so broadly as to buttress the administration's claim thatthe AUMF justifies the NSA surveillance program? At issue in Hamdiwas whether the AUMF satisfied the Non-Detention Act,37 which required a statute authorizingHamdi's extended detention. The government insisted that a U.S.citizen could be detained indefinitely, without access to counsel,without a hearing, and without knowing the basis for his detention.The Court plurality agreed that a U.S. citizen could be initiallydetained under the AUMF. But only "Taliban combatants"38; only with access tocounsel39; only after"notice of the factual basis for his classification"40 ; only after a hearing41 ; and only if not "indefinitedetention for ... interrogation."42 In other words, the Hamdi Courtinterpreted the scope of the AUMF narrowly, not broadly. Not evenHamdi's lawyers had argued that the government had to release enemysoldiers captured on the battlefield. Yet each of the government'sother contentions were rebuffed by the Court. Indeed, ifHamdi were a victory for the government, why did theDefense Department release him after declaring in court papers thatmerely allowing Hamdi to meet with counsel would "jeopardize[]compelling national security interests" and "interfere with if notirreparably harm the military's ongoing efforts to gatherintelligence."43

In summary, the AUMF does not address, much less authorize,warrantless domestic surveillance.

V. Do the President's Inherent War Powers Allow Him toIgnore FISA?

Attorney General Gonzales has a second, more plausible, defenseof warrantless surveillance -- namely, Article II of theConstitution states that "The executive Power shall be vested in aPresident" who "shall be Commander in Chief" of the armed forces.That power, says the attorney general, trumps any contrary statuteduring time of war.

I respectfully disagree -- which is not to say I believe thepresident is powerless to order warrantless wartime surveillance.For example, intercepting enemy communications on the battlefieldis clearly an incident of his war power. But warrantlesssurveillance of Americans inside the United States, who may havenothing to do with al-Qaeda, does not qualify as incidental wartimeauthority. The president's war powers are broad, but not boundless.Indeed, the war powers of Congress, not the president, are thosethat are constitutionalized with greater specificity.44

The question is not whether the president has unilateralexecutive authority, but rather the extent of that authority. Andthe key Supreme Court opinion that provides a framework forresolving that question is Justice Robert Jackson's concurrence inYoungstown Sheet & Tube v. Sawyer45 -- the 1952 case denying President Truman'sauthority to seize the steel mills. Truman had argued that a laborstrike would irreparably damage national security because steelproduction was essential to the production of war munitions. Butduring the debate over the 1947 Taft-Hartley Act,46 Congress had expressly rejectedseizure.

Justice Jackson offered the following analysis, which wasrecently adopted by the Second Circuit in holding that theadministration could no longer imprison Jose Padilla:47 First, when the president actspursuant to an express or implied authorization from Congress, "hisauthority is at its maximum."48 Second, when the president acts in the absenceof either a congressional grant or denial of authority, "there is azone of twilight in which he and Congress may have concurrentauthority, or in which its distribution is uncertain."49 But third, where the president takesmeasures incompatible with the express or implied will of Congress-- such as the NSA program, which violates an express provision ofthe FISA statute -- "his power is at its lowest."50

Even under Youngstown's second category (congressionalsilence), the president might have inherent wartime authority tointerpret the "reasonableness" standard of the Fourth Amendment ina manner that would sanction certain warrantless surveillance. Butthe NSA program does not fit in Youngstown's secondcategory. It belongs in the third category, in which the presidenthas acted in the face of an express statutory prohibition.

Naturally, if the statutory prohibition is itselfunconstitutional, the administration is not only permitted butobligated to ignore it. That's the argument administrationsupporters have proffered to excuse the NSA's defiance ofFISA.51 To bolster theircase, they cite the only opinion that the FISA Court of Review hasever issued, In re: Sealed Case.52 There, the appellate panel mentioned severalearlier cases53 thatconcluded the president has "inherent authority to conductwarrantless searches to obtain foreign intelligenceinformation."54 The Courtof Review then added: "We take for granted that the President doeshave that authority and, assuming that is so, FISA could notencroach on the President's constitutional power."55

Three responses: First, I do not contend that the presidentlacks "inherent authority to conduct warrantless searches to obtainforeign intelligence information." He has such authority, butCongress, exercising its own concurrent wartime powers, has limitedthe scope of that authority by excluding warrantless surveillanceintentionally targeted at a U.S. person in the United States.Second, the surveillance in the earlier cases cited by SealedCase took place pre-FISA, so Congress had not yet laid out therules. Third, the quote from Sealed Case convenientlystops one sentence short. Here is the very next sentence: "Thequestion before us is the reverse, does FISA amplify thePresident's power by providing a mechanism that at least approachesa classic warrant and which therefore supports the government'scontention that FISA searches are constitutionallyreasonable."56 In resolvingthat question, the Court of Review did not conclude that FISA"encroach[ed] on the President's constitutional power." Quite thecontrary, according to the court, FISA permissibly amplified thepresident's power. The restrictive provisions in FISA were simply aclarification of his new and expanded authority.

Thus, Sealed Case provides no support for the assertionthat FISA unconstitutionally constrains the president's inherentwartime authority. Moreover, such claims leave important questionsunanswered. For example: If warrantless domestic surveillance isincidental to the president's inherent powers, so too aresneak-and-peek searches, roving wiretaps, library records searches,and national security letters -- all of which were vigorouslydebated in deciding whether to reauthorize the PATRIOT Act. Couldthe president have proceeded with those activities even if theywere not authorized by Congress? If so, what was the purpose of thedebate? And if not, what makes the NSA program different?

Further, the attorney general asserts that the AUMF and thecommander-in-chief power are sufficient to justify the NSA program.He, or his predecessor, made similar claims for military tribunalswithout congressional authorization,57 secret CIA prisons,58 indefinite detention of U.S.citizens,59 enemy combatantdeclarations without hearings as required by the GenevaConventions,60 andinterrogation techniques that may have violated our treatycommitments banning torture.61 Is any of those activities outside thepresident's commander-in-chief and AUMF powers? If not, what arethe bounds, if any, that constrain the president's unilateralwartime authority?

VI. What Should Be Done to Remedy Unlawful Acts by theExecutive Branch?

Having concluded that NSA's warrantless surveillance program isillegal, let me comment briefly on some remedial steps to cure thepresident's violation of the FISA statute.

At the outset, I reject the proposition that the president, butfor his ability to order warrantless surveillance of U.S. persons,would be impotent in the war on terror. First, he has expansivepower to conduct surveillance outside the United States. Second,the PATRIOT Act and other statutes have given him broad leewaywithin the United States. Third, he has considerable, although notplenary, inherent authority under the commander-in-chief power whenCongress has approved, or even perhaps when Congress has beensilent. But when Congress exercises its own powers and expresslyprohibits what the president would like to undertake, thepresident's power is limited.

Yet, even then, if it's necessary and desirable to monitor thecommunication of a U.S. person in the United States, then thepresident could, and should, have sought a FISA warrant. Therequirement to obtain a warrant from the FISA court is probablecause that someone may be "an agent of a foreignpower,"62 which includesinternational terrorist groups. That standard is far below theusual criminal-law requirement for probable cause that a crime hasbeen, or is about to be, committed. Almost all FISA requests aregranted, and emergency approval for wiretaps can be handled withinhours. In fact, the FISA statute allows the government in emergencysituations to put a wiretap in place immediately, then seek courtapproval later, within 72 hours.63

Attorney General Gonzales has declared that 72 hours is notenough; it takes longer than that to prepare a warrantapplication.64 That istantamount to arguing that the Justice Department lacks sufficientpersonnel to handle its workload, so it's compelled to actillegally to circumvent prescribed procedures. Moreover, theadministration has not, to my knowledge, complained about the same72-hour window that governs domestic-to-domestic communicationsunder FISA. Why is the window too short only when the party on theother end happens to be outside the United States? Indeed, thewindow was increased from 24 to 72 hours in the IntelligenceAuthorization Act for Fiscal Year 2002.65 If the longer period is still inadequate, whyhasn't the administration requested another extension fromCongress?

In his recent Senate testimony on the NSA program,66 Attorney General Gonzales outlinedthe following steps that must be taken before an emergency warrantapplication is filed. (1) NSA officials identify a legitimatetarget. (2) NSA lawyers ensure that the application complies withFISA. (3) Justice Department lawyers must agree. (4) The attorneygeneral must agree. (5) The application must be approved by aCabinet-level officer. (6) It must be approved by a senior officialwith mass security responsibility, such as the director of theFBI.

FISA itself imposes only three requirements:67 (1) The attorney general must approve. (2)An official confirmed by the Senate with foreign affairsresponsibility must certify that the surveillance has foreignintelligence value. (3) "Minimization procedures" must ensure thatsurveillance is not overbroad (for example, by preventing retentionof information unrelated to national security). Accordingly, theredundancies cited by the attorney general are not necessary tocomply with FISA. My colleague at the Cato Institute, Mark Moller,points out that the president "could cull out duplicative layers oflawyer oversight at both NSA and the Department of Justice. Hecould eliminate multiple sign-offs by senior officials. NSA caseofficers could initiate the warrant request. An intelligenceoversight counsel assigned to specific ongoing investigations couldprocess the warrant within the 72-hour time frame."68

Moller concludes that "the president can simply change theprocedures and cut the red tape. The president's authority tomanage the executive branch is a far more modest assertion of powerthan an 'inherent' authority to ignore the law."69

Admittedly, FISA warrants might not be available for somesurveillance operations that the NSA would like to undertake. FISAallows warrants only against foreign powers, including terroristgroups, or their agents. Therefore, a warrant is not available ifthe intended domestic target is not an "agent," even if he is anal-Qaeda contact (perhaps not aware that his communications haveintelligence value). Conceivably, FISA could be amended so thatwarrants could issue merely upon showing that an individual has hadcontact with al-Qaeda. That is a policy question, not a legalquestion, on which I claim no special insight.

But it is important to note that under current law, surveillanceof non-agent U.S. persons is even more egregious than warrantlesssurveillance of agents. The latter could be cured by a warrant; theformer could not. In other words, if NSA targets a non-agent U.S.person, the violation of FISA consists not merely of unauthorizedsurveillance without obtaining a FISA warrant, but of surveillanceunder circumstances where a FISA warrant would never have beengranted.

If the president thought the law should be amended to authorizewarrantless surveillance of either agents or non-agents, he had aconvenient vehicle for that purpose shortly after 9/11. That's whenthe PATRIOT Act was passed, substantially enhancing the president'sauthority under FISA and expanding his ability to conduct foreignintelligence surveillance. The president could have, but did not,seek new authority for the NSA -- authority that he has nowdecreed, unilaterally, without input from either Congress or thecourts.

Maybe Congress would not have approved if asked. Or maybe thecourts would have overridden any further loosening of the warrantprovisions. But the legal stumbling block for the administration isnot just that it failed to get affirmative support for expandedsurveillance from Congress and the courts. The bigger predicamentis that Congress, without objection from the president, expresslyrejected warrantless domestic surveillance and codified thatprohibition in the FISA statute, which the president implicitlyaccepted when he signed the PATRIOT Act.

Because the central problem with the NSA surveillance program istoo much unchecked authority in the executive branch, the obvioussolution is for the federal legislature or the federal judiciary tointervene. But the courts may decide they cannot play a role:First, the Justice Department will not prosecute; second,surveillance targets who have been secretly monitored are unlikelyto know of their victimization; third, potential targets may not beable to prove sufficient injury; and fourth, aggrieved members ofCongress have previously been denied legal standing tosue.70

That elevates the need for congressional intervention. But thepresident has resisted asking Congress to approve NSA domesticsurveillance because, among other things, publicity might tip offal-Qaeda.71 Perhaps hisconcern is legitimate, but "tipping off terrorists" is an excusenot to debate any counterterrorism statute, including the PATRIOTAct, which was nonetheless debated vigorously. Moreover, thepresident's rationale assumes that al-Qaeda would be blissfullyignorant of the surveillance but for congressionaldeliberations.

The administration may be justified in taking measures that inpre-9/11 times could be seen as infringements of civil liberties.After all, the fuzzy text of the Fourth Amendment (unreasonablesearches) and the Fifth Amendment (due process) leaves room forexceptions at the margin. But the executive branch cannot, in theface of an express prohibition by Congress, unilaterally set therules, execute the rules, and eliminate oversight by the otherbranches.

Response to Supplementary Questions

March 24, 2006

1. Question from Sen. Schumer: Assuming thatplaintiffs can establish legal standing to sue, would Supreme Courtreview of the NSA program be a good idea? Can you think of anylegitimate reason why the administration would not welcome SupremeCourt review, especially because the President is certain that theprogram is legal and Constitutional?

1. Response: Supreme Court review of the NSAprogram would be useful in settling the following questions: (a)Does the program violate the Fourth Amendment? (b) Does the programviolate provisions of FISA? (c) Does the AUMF satisfy FISA'srequirement for an authorizing statute? (d) What is the scope ofthe President's Article II powers? (e) To what extent are thePresident's powers elevated during wartime, even though Congresshas not formally declared war? (f) Did Congress, in enacting FISA,unconstitutionally encroach on the President's inherent powers?

On the other hand, Supreme Court review of the NSA program mightbe counterproductive in these respects: (a) Policy issues relatedto necessity and effectiveness of the program are best addressed bythe political branches. Judges have no special expertise to makethose evaluations. (b) Litigation would likely postpone acongressional remedy, thereby extending the period during which thePresident is disregarding a duly enacted federal statute. (c) TheCourt might determine that a narrow remedy is appropriate - e.g.,dismissing a criminal prosecution or rejecting illegally gatheredevidence - thereby leaving an illegal program in place. (d) Ifinstead, the Court were to enjoin all or part of the NSA program,national security might be compromised. In short, the better remedyis a congressional fix.

2. Question from Sen. Schumer: In the historyof the FISA court, more than 19,000 applications for warrants havebeen made, and only five have ever been denied. Did theadministration have anything to fear from asking the FISA court fororders to conduct NSA surveillance?

2. Response: A comparison between the number ofwarrant applications approved under FISA and the number denied canbe somewhat misleading. Undoubtedly, a large number of applicationswere not presented to the FISA court because the Justice Departmentknew they would have been rejected. As noted on page 13 of mytestimony, FISA allows warrants only against foreign powers,including terrorist groups, or their agents. Therefore, a warrantis not available if the intended domestic target is not an "agent,"even if he is an al-Qaeda contact (perhaps not aware that hiscommunications have intelligence value). I do not know whether theNSA is monitoring the communications of non-agent U.S. persons. Butif so, surveillance of non-agent U.S. persons would be an even moreegregious violation of FISA than warrantless surveillance ofagents. The latter could be cured by a warrant; the former couldnot. In other words, if the NSA targets a non-agent U.S. person,the violation of FISA consists not merely of unauthorizedsurveillance without a FISA warrant, but of surveillance undercircumstances where a FISA warrant would never have beengranted.

Additionally, the administration might not have sought approvalof specific NSA activities because "emergency" surveillance hadalready been implemented and the Justice Department could notcomplete the post-implementation application within the allotted72-hour window. Indeed, that was the argument proffered by AttorneyGeneral Gonzales (www.usdoj.gov/ag/speeches/2006/ag_speech_0601241.html)in his January 24, 2006, speech at Georgetown University. I address(and reject) that argument on pages 12 and 13 of my testimony.

3. Question from Sen. Schumer: Under FISA, theadministration must report to Congress every year on the number ofFISA orders requested, granted, and denied. Does that reportingrequirement endanger national security? Would a similar requirementfor the NSA domestic surveillance program pose different securityconcerns?

3. Response: While I have no special knowledgeon the subject, I am not aware of claims by the administration thatreporting requirements under FISA have compromised nationalsecurity. Presumably, surveillance conducted under the NSA programis more sensitive and, therefore, might raise concerns not raisedby FISA warrant applications. Nonetheless, the administration hasreportedly agreed to a proposed bill -- drafted by Senators DeWine,Graham, Hagel, and Snowe -- that requires semiannual reporting toCongress on the extent and effectiveness of the NSA program. Thatbill also directs the administration to provide operational detailsabout specific surveillance, on request, to newly-formed TerrorismSurveillance Sub-Committees.

4. Question from Sen. Kennedy: How are theactions taken by the President to authorize the NSA programconsistent with our system of checks and balances?

4. Response: The animating sentiment at thetime of the founding was fear of executive power. Against thatbackdrop, it is remarkable that the President now claims that ourfounding documents authorize him to wield unilateral wartime powerswith virtually no safeguards. He asserts, in effect, that hisactions are presumptively and irrebuttably legal, without judicialreview, despite a contrary statute.

Nor were separation of powers concerns alleviated when theadministration briefed the Gang of Eight -- especially when themembers were not given complete and timely information, they werenot allowed to take notes or consult aides, they were prohibitedfrom discussing it afterward with others, and the briefings wereoperational not legal. Indeed, the National Security Act of 1947states that "The President shall ensure that the congressionalintelligence committees are kept fully and currently informed ofthe intelligence activities of the United States." 50 USC§413(a)(1).

The enactment of FISA in 1978 was intended, in part, to curb theabuses of Projects Minaret and Shamrock. But FISA used velvetgloves. Essentially, it legalized some conduct that had previouslybeen illegal -- for example, NSA surveillance of U.S. persons inthe United States without probable cause that a crime had been (orwas about to be) committed. Now the administration contends thatFISA, because it still requires a warrant (albeit under liberalizedstandards), did not go far enough. Perhaps so. But most presidents,when they think a law is outdated or ineffective or otherwiseill-advised, ask Congress to amend or repeal the law. PresidentBush, on the other hand, basically repealed FISA by himself, byignoring its provisions. He argues that Article II of theConstitution gives him all the authority he needs. But section 3 ofthat article obligates him to "take Care that the Laws befaithfully executed." FISA is one of those laws -- duly enacted byCongress, signed by a previous president, and later by PresidentBush when he signed the PATRIOT Act, which amended several FISAprovisions that he now finds unacceptable. The President cannot, onone hand, agree to FISA amendments, then, on the other hand, insistthat FISA's provisions, as amended, are an abuse of hisconstitutional authority.

To be sure, Article II states that "The executive Power shall bevested in a President" who "shall be Commander in Chief of the Armyand Navy." But that provision simply establishes that the Presidenthas certain inherent powers, especially during wartime; it does notdefine the scope of those powers, much less excuse him fromcompliance with the law. The President has some discretion inenforcing the law, but he does not have latitude to pick and choosewhich laws he will enforce or to take actions that the lawexpressly prohibits.

Some legal authorities have questioned whether a mere statute(FISA) can impinge on the President's Article II powers. Yes, itcan: First, because Congress exercises concurrent authority duringwartime (see page 4 of my testimony), and is thus empowered todelineate the scope of the President's wartime powers. Second,because Article I, section 8, of the Constitution expresslyauthorizes Congress to "make all Laws which shall be necessary andproper" for executing not only its own powers, but also "all otherPowers vested by this Constitution in the Government of the UnitedStates, or in any Department or Officer thereof." [Emphasis added.]So the Constitution explicitly provides that the President'sinherent authority under Article II is subject to regulation byCongress. Perhaps some regulations of national security are tooabsurd or cumbersome for emergencies, and are therefore"unnecessary or improper," but the burden of proof is on thePresident, and he has not produced any evidence at all. [SeeWilliam Van Alstyne, "The Role of Congress in DeterminingIncidental Powers of the President and of the Federal Courts: AComment on the Horizontal Effect of the Sweeping Clause," Law &Contemporary Problems, vol. 40, no. 2, spring 1976, pp. 102-34 (TheNecessary and Proper Clause "assigns to Congress alone theresponsibility to say by law what additional authority, if any, theexecutive and the courts are to have beyond that core of powersthat are indispensable").]

5. Question from Sen. Kennedy: Should there beboth Congressional oversight and judicial review over domesticsurveillance programs?

5. Response: Judicial review of warrantapplications already exists under FISA, and judicial review of theadmissibility of evidence obtained by domestic surveillance isavailable in criminal prosecutions. But judicial review of thelegality of the NSA program might not be available under currentlaw. A threshold obstacle to such programmatic review is therequirement that plaintiffs have legal standing to sue. As noted onpage 13 of my testimony, the courts may decide they cannot play arole: First, the Justice Department will not prosecute; second,surveillance targets who have been secretly monitored are unlikelyto know of their victimization; third, potential targets may not beable to prove sufficient injury; and fourth, aggrieved members ofCongress have previously been denied legal standing (seeCampbell v. Clinton, 203 F.3d 19 (D.C. Cir. 2000), cert.denied 121 S. Ct 50 (2000).

Furthermore, Article III courts are constitutionally obligatedto address only "Cases" or "Controversies," not to issue advisoryopinions. The FISA court, while it may examine warrant applicationsrelated to a specific investigation, may not be instructed byCongress to review the NSA program in its entirety. Consequently,the process for judicial review outlined by Chairman Specter in thedraft of his National Surveillance Act of 2006 would not, in myview, pass constitutional muster. (I have submitted, separately,comments to Senator Specter regarding his draft legislation.)

Congress could, by statute, create legal standing for FISAplaintiffs. Still, even if the standing problem were resolved, Ihave reservations about the desirability of judicial review of theNSA program, as outlined in the second paragraph of my response toQuestion #1 above.

Both the difficulty of providing for judicial review, andreservations regarding its desirability, suggest that the need forcongressional oversight is elevated and urgent. In that regard, Icommend, as a starting point, the proposal by Seventh Circuit JudgeRichard A. Posner ("A New Surveillance Act," Wall StreetJournal, February 15, 2006).

Under Judge Posner's proposal, warrantless surveillance would bepermitted only if the President certifies its necessity andCongress declares a national emergency. Then, surveillance relatedonly to foreign terror groups would be covered; i.e., nosurveillance of domestic terror groups and no use of thesurveillance for ordinary criminal investigations. The statutewould be subject to a five-year sunset provision. On an annualbasis, an administration official would have to certify, subject toperjury charges, that all surveillance complied with the new law.Semiannually, the NSA would report to the FISA court, identifyingeach warrantless surveillance and why it was undertaken. The court,in turn, would report any improper surveillance to congressionalintelligence committees and a newly-formed oversight committee,which comprised the head of the Department of Homeland Security,the Attorney General, the Director of National Intelligence, and asenior or retired federal judge appointed by the Chief Justice.That committee, not an Article III court, would have primaryresponsibility to oversee compliance with the statute.

6. Question from Sen. Kennedy: What standardsshould be met to demonstrate a link to terrorism before the NSAshould be able to initiate domestic surveillance?

6. Response: I do not know the full extent ofNSA surveillance. But Attorney General Gonzales stated (www.whitehouse.gov/news/releases/2005/12/20051219-1.html)that surveillance is triggered when an executive branch officialhas reasonable grounds to believe that a communication involves aperson "affiliated with al-Qaeda or part of an organization orgroup that is supportive of al-Qaeda." That means FISA warrantsmight not be available for some surveillance operations that theNSA is undertaking -- e.g., monitoring the communications ofal-Qaeda "contacts" who do not rise to the level of "agent." Usefulintelligence might therefore be lost even if the administrationwere forced to seek FISA warrants, which are not presentlyavailable unless the target is an agent.

Conceivably, FISA could be amended so that warrants could issuemerely upon showing that an individual has had contact withal-Qaeda. That is a policy question, not a legal question, on whichI claim no special insight. If the administration were to furnishconvincing evidence that (a) existing FISA procedures areproscribing surveillance that is necessary to combat terrorism, (b)a change in the law would be effective in obtaining theintelligence that is now unobtainable, and (c) no less intrusivemethod of getting that same intelligence would be equallyeffective, then I would likely favor changing the law --notwithstanding attendant civil liberties concerns -- therebyrelaxing the links to terrorism that must be demonstrated in orderto trigger surveillance. But unless there is a persuasive showingof necessity and effectiveness, coupled with a narrowly tailoredlegislative remedy, I would leave FISA's warrant provisions inplace, direct the President to comply with those provisions, andestablish by statute legal standing to test the President'scompliance in court, if necessary.

7. Question from Sen. Kennedy: Would Congressbe remiss if it failed to fully understand the details of theprogram before acting on any legislation? What would a completeinvestigation entail?

7. Response: At a minimum, before enactinglegislation, Congress should determine answers to the followingquestions: (1) What is the scope of the NSA program? Are onlyal-Qaeda agents targeted, or mere contacts as well? (2) How oftenhas the NSA monitored the communications of U.S. persons in theUnited States? Over what period? (3) What are the technologicaladvances that may have rendered FISA obsolete? (4) To what extentis data-mining part of the program? (5) Is the physicalintelligence collection done domestically or overseas? (6) Whatevidence suggests that the program has been effective? How manyfalse positives and false negatives have there been? (7) Whatminimization procedures are in place to ensure that intelligence isnot retained longer, or distributed more widely, than is absolutelynecessary?

Ultimately, the goals of any legislation should include: (1)Legitimizing essential surveillance; (2) requiring judicial reviewwhen the target is a U.S. person; (3) limiting the relaxedsurveillance standards to foreign counter-terrorism, excludingdomestic surveillance that might sweep in environmental activists,abortion and animal rights groups, etc.; (4) ensuring appropriateminimization procedures; and (5) providing for recurringcongressional oversight. Finally, the legislation should besunsetted -- perhaps after four years, to coincide with theexpiration of selected provisions of the reauthorized PATRIOTAct.

BIOGRAPHICAL SKETCH OF ROBERT A. LEVY

Robert A. Levy is senior fellowin constitutional studies at the Cato Institute, which he joined in1997 after 25 years in business. Levy clerked for Judge Royce C.Lamberth on the U.S. District Court in Washington, D.C., and forJudge Douglas H. Ginsburg on the U.S. Court of Appeals for the D.C.Circuit.


1 Press Briefing withAttorney General Alberto Gonzales and General Michael Hayden,Principal Deputy Director for National Intelligence (Dec. 19,2005), available at http://www.whitehouse.gov/news/releases/2005/12/20051219-1.html.

2 U.S. Department ofJustice, Legal Authorities Supporting the Activities of theNational Security Agency Described by the President, Jan. 19,2006.

3 U.S. Const. art. II,§ 3. Indeed, even if the president believes in good faith thatFISA is trumped by his war powers, his use of secret executiveorders is not the manner in which he should discharge hisobligation to defend the Constitution and execute the law. Instead,he should have made his case to Congress, expanding on the list ofFISA grievances that he would like to have amended.

4Lawrence v.Texas, 539 U.S. 558, 562 (2003).

5Warden v.Hayden, 387 U.S. 294 (1967).

6Cupp v. Murphy,412 U.S. 291 (2000).

7Chimel v.California, 395 U.S. 752 (1969).

8Terry v. Ohio,392 U.S. 1 (1968).

9United States v.Ross, 456 U.S. 798 (1982).

10Arizona v.Hicks, 480 U.S. 321 (1987).

11Schneckloth v.Bustamonte, 412 U.S. 218 (1973).

12Camara v.Municipal Court of City and County of San Francisco, 387 U.S.523 (1967).

13United States v.Martinez-Fuerte, 428 U.S. 543 (1976).

14United States v.Ramsey, 431 U.S. 606, 619-21 (1977).

15United States v.United States District Court (Keith), 407 U.S. 297, 322 n.20(1972).

16 Congress's authorityincludes the power to "define and punish ... Offenses against theLaw of Nations" (U.S. Const. art. I, § 8); "declare War"(id.); "make Rules concerning Captures on Land and Water" (id.);"raise and support Armies" (id.); "provide and maintain a Navy"(id.); "make Rules for the Government and Regulation of the landand naval forces" (id.); call forth, organize, arm, discipline andgovern the Militia "to execute the Laws ... suppress Insurrectionsand repel Invasions" (id.); and suspend habeas corpus (id. §9).

17 U.S. Const. art II,§ 2.

18 50 U.S.C. §1809(a)(1).

19 18 U.S.C. §2511(f).

20 "National SecurityAgency Surveillance Affecting Americans," SupplementaryDetailed Staff Reports on Intelligence Activities and the Rights ofAmericans - Book III, Select Committee to Study GovernmentalOperations with Respect to Intelligence Activities, U.S. Senate,April 23, 1976, available at http://www.icdc.com/~paulwolf/cointelpro/churchfinalreportIIIj.htm.

21 Id.

22 50 U.S.C. §1809(c).

23 50 U.S.C. §1811.

24 Pub. L. No. 107-56,115 Stat. 272 (Oct. 26, 2001).

25 See, e.g., David B.Rivkin, online debate with Robert A. Levy on "NSA Surveillance,"available at http://www.fed-soc.org/pdf/domesticsurveillance.pdf.

26 Memorandum fromWilliam Moschella, Asst. Attorney General for Leg. Affairs, toChairs and Ranking Members of Senate and House IntelligenceCommittees (Dec. 22, 2005), available at http://news.findlaw.com/hdocs/docs/nsa/dojnsa122205ltr.pdf.

27 S.J. Res. 23, 107thCong. (2001).

28 "The Power to Spy,"editorial, Washington Post, p. B6, Dec. 25, 2005.

29 Tom Daschle, "PowerWe Didn't Grant," Washington Post, p. A21, Dec. 23,2005.

30 See, e.g., David B.Rivkin, online debate with Richard Epstein on "DomesticEavesdropping," available at http://www.opinionduel.com/debate/?q=NDc=.

31Hamdi v.Rumsfeld, 337 F.3d 335, 344 (4th Cir. 2003) (Wilkinson, J.,concurring in the denial of rehearing en banc).

32Padilla v.Rumsfeld, 352 F.3d 695, 721 (2003), rev'd on other grounds,124 S. Ct. 2711 (2004).

33 Richard Epstein,online debate with David B. Rivkin on "Domestic Eavesdropping,"available at http://www.opinionduel.com/debate/?q=NDc=.

34Ex parteQuirin, 317 U.S. 1 (1942).

35 Epstein,supra n. 33.

36Hamdi v.Rumsfeld, 542 U.S. 507 (2004).

37 18 U.S.C. §4001(a).

38Hamdi, 542U.S. at 521.

39 Id. at 539.

40 Id. a 533.

41 Id.

42 Id. at 521.

43 Quoted in "FreeingMr. Hamdi," editorial, Washington Post, p. A24, Sep. 24,2004.

44 See supra n. 16.

45Youngstown Sheet& Tube Co. v. Sawyer, 343 U.S. 579, 634 (1952) (Jackson,J., concurring).

46 29 U.S.C.§§ 141-87.

47 Padilla, 352 F.3d at711.

48 Youngstown, 343 U.S.at 635.

49 Id. at 637.

50 Id.

51 See, e.g., Rivkin,supra n. 25.

52In re: SealedCase, 310 F.3d 717 (Foreign Intelligence Surveillance Court ofReview 2002).

53 See, e.g., UnitedStates v. Truong, 629 F.2d 908 (4th Cir. 1980).

54In re: SealedCase, 310 F.3d at 742.

55 Id.

56 Id.

57 See, e.g., UnitedStates v. Hicks, Prosecution Response to Defense Motion toDismiss, p. 3, Oct. 18, 2004, available at http://www.pentagon.mil/news/Oct2004/d20041022lack.pdf.

58 See, e.g., Memorandumfor Alberto R. Gonzales, Counsel to the President, "Re:Permissibility of Relocating Certain 'Protected Persons' fromOccupied Iraq," March 19, 2004, available athttp://www.humanrightsfirst.com/us_law/etn/gonzales/memos_dir/memo_2004….

59 See, e.g.,Hamdi, 542 U.S. at 516-17.

60 See, e.g., Memorandumfrom President Bush, "The Humane Treatment of al-Qaeda and TalibanDetainees," Feb. 7, 2002, available at http://www.humanrightsfirst.com/us_law/etn/gonzales/memos_dir/dir_20020207_Bush_Det.pdf.

61 See, e.g.,President's Statement on Signing of H.R. 2863, the "Department ofDefense, Emergency Supplemental Appropriations to AddressHurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006"(Dec. 30, 2005), available at http://www.whitehouse.gov/news/releases/2005/12/20051230-8.html.

62 50 U.S.C. §1804(a)(4)(A).

63 50 U.S.C. §1824(e)(1)(A).

64 Speech, Department ofJustice, Prepared Remarks for Attorney General Alberto Gonzales atthe Georgetown University Law Center, (Jan. 24, 2006), available athttp://www.usdoj.gov/ag/speeches/2006/ag_speech_0601241.html.

65 Pub. L. No. 107-08,115 Stat. 1394 (Dec. 28, 2001).

66Wartime ExecutivePower and the NSA's Surveillance Authority: Hearings Before theSenate Judiciary Committee, 109th Cong. (Feb. 6, 2006).Transcript available at http://www.washingtonpost.com/wp-dyn/content/article/2006/02/06/AR2006020600931.html.

67 50 U.S.C. §1804(a).

68 Mark Moller, "OvalOffice Space," publication pending.

69 Id.

70 See Campbell v.Clinton, 203 F.3d 19 (D.C. Cir. 2000), cert. denied 121 S. Ct50 (2000) (31 members of Congress denied standing to sue PresidentClinton for violating the 1973 War Powers Act when he ordered themilitary to join NATO in bombing Yugoslavia).

71 See, e.g., JohnDiamond, "Lawmakers Doubtful on Surveillance; Gonzales Says He'llConsider Proposals," USA Today, p. 7A, Feb. 7, 2006.