This paper was presented at the Association for Education in Journalism and
Mass Communication in San Francisco August 2006.
I am not the author. If you have questions about this paper,
please contact the author directly.
If you have questions about the archives, email rakyat [ at ]
eparker.org. For an explanation of the subject line, send email to
[log in to unmask] with just the four words, "get help info aejmc," in the
body (drop the "").
(Oct 2006)
Thank you.
Elliott Parker
====================================================================
PLANTING THE SEEDS OF CONSTITUTIONAL CONFLICT: A LOOK AT THE LEGAL
LANDSCAPE CONCERNING PRESIDENTIAL POWER AND THE NSA'S WIRETAPPING PROGRAM
Brian Pafundi
Graduate Student, Mass Communications
College of Journalism and Communications
University of Florida
1130 SW Williston Rd. #E6
Gainesville, FL 32601
(727) 641-4786
[log in to unmask]
ABSTRACT
Following the terrorist attacks of September 11, 2001,
President Bush authorized the NSA to conduct "electronic surveillance
of Americans and others inside the United States to search for
evidence of terrorist activity without the court-approved warrants
ordinarily required for domestic spying." Since the wiretapping
involves both domestic and foreign communications, the surveillance
program raises numerous legal questions. This research will attempt
to discern the standard a decision regarding the legal challenges to
the spying program may be based on.
PLANTING THE SEEDS OF CONSTITUTIONAL CONFLICT: A LOOK AT THE LEGAL
LANDSCAPE CONCERNING PRESIDENTIAL POWER AND THE NSA'S WIRETAPPING PROGRAM
INTRODUCTION
During the questioning by the Senate Judiciary Committee of
Attorney General Alberto Gonzalez on the National Security Agency's
wiretapping program, Senator Lindsey Graham (R-South Carolina)
expressed his concern over the inherent powers argument articulated
by the Bush administration saying, "taken to its logical conclusion,
it concerns me that it could basically neuter the Congress and weaken
the courts."1 Ultimately, the Attorney General's response was
troubling: "I haven't done the detailed work that, obviously, these
kinds of questions requires. These are tough questions -- but I
believe that the president does have the authority under the
Constitution."2 If the Department of Justice has yet to do the
detailed legal analysis of such a program, somebody has to.
The discussion between Gonzalez and Graham focused on a
domestic wiretapping program authorized by President George W. Bush
following the terrorist attacks of September 11, 2001.3 According to
the New York Times, which broke this story, the National Security
Agency4 has been conducting electronic surveillance on the
communications of Americans and others inside the United States
without the court approval typically needed to carry out such
surveillance.5 It further stated that the NSA "has monitored the
international telephone calls and international e-mail messages of
hundreds, perhaps thousands of people inside the United States
without warrants..."6 With the leaking of the existence of this top
secret program, many civil liberty advocates quickly criticized the
operation as being "illegal."7 Conversely, the Bush administration
claimed that the operation is necessary for the disruption of
terrorist plots and to prevent other attacks within the United States.8
Since the wiretapping involves both domestic and foreign
communications, the NSA's surveillance program put into effect
shortly after September 11 raises numerous legal questions. The First
and Fourth Amendment implications, though important in the overall
discussion of the legality of the NSA's program, will not be
discussed here.9 Instead, this paper will look exclusively at both
presidential statutory and constitutional authority and how those
powers relate to the electronic surveillance of the communications of
Americans for national security purposes.
This paper is limited to an examination of the current state
of the law regarding electronic surveillance for domestic security
purposes and presidential power during a time of military conflict.
Electronic surveillance, for the purposes of this paper, includes the
wiretapping, eavesdropping and monitoring of all forms of electronic
communication, including telephone calls and e-mails. The paper will
examine the Foreign Surveillance Intelligence Act (FISA) and the
Authorization to Use Military Force (AUMF) for the War on Terror. It
will also analyze seminal United States Supreme Court decisions
regarding a president's inherent constitutional powers. The Bush
administration maintains that the spying program complies with the
requirements of FISA, is allowed under the AUMF and is consistent
with the president's inherent powers as commander-in-chief.10 Civil
liberty advocates and other critics disagree.
This research will attempt to discern the standard a decision
regarding any legal challenges to the spying program may be based on,
in terms of a President's constitutional and statutory authority.
That task will be accomplished by first taking a brief historical
journey examining both legally and theoretically, claims of inherent
presidential powers and key United States Supreme Court cases
regarding such claims. Next, surveillance will be discussed with an
emphasis on the Foreign Intelligence Surveillance Act. Finally, the
paper will evaluate the current NSA wiretapping program and then look
at the program through the framework of legal and theoretical
analysis developed in the previous sections.
PRESIDENTAL POWER
The president's powers during wartime are not absolute.11 The
separation of powers and the system of checks and balances
manufactured by the Framers of the United States Constitution apply
during a military conflict just as in a period of peace.12 In
creating the blueprint for a new government after the failure of the
Articles of Confederation, the Framers delegated to the president the
authority over the armed forces as commander-in-chief.13 In addition,
in Article I, Section 8, Congress was given the authority to "declare
war."14 With these two provisions, neither the executive branch nor
the legislative branch retains a monopoly over the war power of the
United States.
Before the American Revolution, the English Crown, in other
words, the Executive, held the power to make war.15 However, after
the ratification of the Constitution, that authority and other
important powers were granted to the legislature, Congress.16 Even
so, the Executive does retain control over the armed forces as
Commander-in-Chief.17 This power reflects, as stated by Alexander
Hamilton in Federalist 74, the framer's recognition that operational
control over the military is best vested in a single office, not a
deliberative body made up of individual legislators.18 Additionally,
the Framers conferred the power to "repel sudden attacks" on the
Executive when they changed the language of Congress's power from
"make" to "declare" war.19 However, in Federalist 69, Hamilton was
clear to point out that the executive's power over the armed forces
differed from those powers retained by the English Crown, which
included the authority to declare war.20 The Constitution grants that
explicit power to Congress21 because the Framers were worried that an
Executive could not be trusted with the power of war.22
Though the Constitution does limit both legislative and
judicial power, the executive's authority is not subject to such
limitation.23 Thus, presidents have long believed that the powers
enumerated in the Constitution are not an exhaustive list. For
example, Thomas Jefferson exercised executive authority when
acquiring the Louisiana Territory from France though no
Constitutional provision specifically allowed for such purchase.24
The lack of constraint on presidential authority noted above
has led scholars to develop three main schools of thought concerning
the inherent powers, those not enumerated in Article II of the United
States Constitution, of the executive. First, the prerogative theory
contends that the president "enjoys the sovereign's prerogative of
asserting, when necessary, unauthorized power in pursuit of the
public interest."25 This is the most expansive of the three theories
and its roots can be traced to John Locke's Second Treatise on
Government, in which he defined the president's power as the
authority "to act according to discretion for the public good,
without the prescription of law, and sometimes even against it."26
Next, the stewardship theory states "that inherent power
extends to doing anything not expressly forbidden, so long as it
serves the public interest and does not conflict with existing
legislation."27 Theodore Roosevelt, a stewardship theory proponent,
once said, "I acted for the common well being of all our people
whenever and in whatever measure was necessary, unless prevented by
direct constitutional or legislative prohibition."28
Finally, the most limited school of thought, championed by
William Howard Taft and known as the constitutional theory, argues
that "inherent powers are limited and must be traceable to specific
grants of power in the Constitution or legislation."29
Throughout the history of the United States, the White House
has been occupied by Presidents falling on all parts of the
presidential powers theoretical spectrum. For example, President
James Buchanan, who held office in the years leading up to the Civil
War (1856-1860), backed a limited view of presidential authority,
claiming that though the southern states' secession was illegal, the
Executive was powerless to do anything about it.30 In addition,
Buchanan also told an American company doing business in Nicaragua
that only Congress could authorize the use of force to collect
claims, since he viewed that as an act of war.31
On the other hand, Buchanan's successor Abraham Lincoln took
an expansive approach to executive power, willing to use any means
necessary to sustain the Union and the Constitution.32 By not calling
a special session of Congress shortly after the attack on Fort Sumter
(Lincoln waited 11 weeks), Lincoln believed he had the necessary
authority to preserve and protect the union from civil strife.33 With
this authority, President Lincoln, without clear Congressional,
statutory or constitutional approval, enlarged the army, suspended
habeas corpus and ordered a naval blockade of southern ports.34
Claims of inherent presidential power have come before the
Supreme Court in numerous instances. These claims in the foreign
affairs realm have been subject to less scrutiny than claims of the
same power in domestic affairs.35 In foreign affairs policy-making,
the president has been recognized by the Supreme Court as the "sole
organ of the nation in its external relations."36 However, when
presidents use the inherent powers claim to justify a domestic policy
enacted by the executive branch, the courts have been a bit more
skeptical.37 This discrepancy has led scholars to contend that the
United States has one president but two presidencies: one for
domestic affairs and the other for foreign affairs.38
The inherent powers doctrine39 has been used as justification
by President's when enacting various controversial policies,
including the suspension of the writ of habeus corpus during the
Civil War,40 the relocation of Japanese-Americans during World War
II41 and the seizing of steel mills during the Korean conflict.42 In
all of these instances, the executively enacted policies were
challenged and each case eventually ended up on the United States
Supreme Court's docket.
In 1866, the Supreme Court unanimously ruled against
President's Abraham Lincoln's order suspending the writ of habeus
corpus in Ex parte Milligan.43 This case involved a presidential
action while Congress remained inactive on the matter. The action
arose during the Civil War when, in 1864, Lamdin Milligan was seized
by military authorities in the state of Indiana for allegedly being
part of a dissident group, the Order of American Knights, and then
tried by a military commission.44 Indiana, at the time, remained a
member of the Union and maintained a functioning court system.45 The
question the Supreme Court faced was whether the executive authorized
tribunal that tried and sentenced Milligan had the legal authority to
carry out such actions.46 Since the military tribunal was not
authorized by Congress (in fact, the majority of the Justices
believed that Congress did not even have the power to authorize such
a tribunal), no legal basis existed for its authority.47
The Court rejected the idea of constitutional authority
extending to the military tribunal since it was not "ordained and
established by Congress" and the President lacks the power to
authorize such courts since his duty is to execute, not make law.48
In addition, the Court rejected the necessity of the military
tribunal under "the laws and usages of war" since Indiana was not a
rebellious state and still maintained a functioning court system.49
A score less than a century after the Milligan decision, in
Korematsu v. United States, the Supreme Court upheld President
Franklin Roosevelt's Japanese Internment plan implemented during the
early stages of World War II, a program which enjoyed both
Congressional and Presidential approval.50 In February of 1942,
Roosevelt, via executive order, created "military zones" on the West
coast of the United States, amid growing fears of Japanese
invasion.51 In these zones, military commanders enjoyed the power to
impose curfews and exclude individuals (meaning to evacuate the
people from the "military zone") to prevent espionage and attack.52
Following Congressional authorization of the orders which provided
for penalties if a person subject to the order did not comply, tens
of thousands of Japanese-Americans were subject to curfews53 and
exclusion from the area by being transferred to "relocation camps."54
Toyosaburo Korematsu refused to follow an evacuation mandate and was
subsequently charged, tried and convicted of violating the exclusion
order. A 6-3 Supreme Court decision upheld the Korematsu's conviction.
In reaching its decision, the Court relied heavily on the
judgment of military commanders during a time of war.55 Since the
President, through an executive order and Congress, via legislation,
both sanctioned the exclusion program, the majority concluded that
the military commanders deciding on exclusion had authority to do so
through the power of war.56 "We cannot say that the war-making
branches of the Government did not have ground for believing ... such
persons ... constituted a menace to the national defense and safety,
which demanded that prompt and adequate measures be taken to guard
against it."57 Thus, the Court found that despite the liberty
interests of individuals subject to the relocation orders, deference
should be given to military commanders, who retain such authority as
granted by both the President and Congress. While Korematsu has been
discredited because of its focus on a single ethnic group,58 it still
serves as good law in terms of a President enacting a policy in
concurrence with Congressional authorization and the deference courts
show towards the political branches during military conflicts.
Less than a decade later after Korematsu, the United States Supreme
Court was faced with another case stemming from armed conflict, this
time involving a presidential action in contrast to the implied will
of Congress. In Youngstown Sheet & Tube Co. v. Sawyer, a 6-3 majority
ruled that President Harry Truman's seizure of steel mills shut down
because of a labor dispute during the Korean War exceeded his
presidential authority.59 The question before the Court was rather
simple: "whether the President was acting within his constitutional
power when he issued an order directing the Secretary of Commerce to
take possession of and operate most of the Nation's steel mills."60
The issue arose over a dispute between steel companies and
their employees while hammering out a new collective bargaining
agreement.61 In April 1952, in the midst of the military campaign in
Korea, the employees gave word of an impending national strike.62 A
few hours before the strike began, President Truman, believing "that
the proposed work stoppage would immediately jeopardize our national
defense" since manufacturers currently used steel as a component in
almost all weapons and other war material, issued Executive Order
10340 directing the Secretary of Commerce to seize most of the steel
mills and keep them operational.63
In ruling against any Presidential authority to seize privately
owned steel mills to settle labor disputes, a 6-3 majority64 stated
that "(T)he President's power, if any, to issue the order must stem
from either an act of Congress or from the Constitution itself."65 No
statute supporting such action existed and the government did not
even rely on statutory authority in its arguments.66 Moreover, as the
Court added, Congress actually refused to adopt seizure as a method
of settling labor disputes when passing the Taft-Hartley Act as an
amendment allowing such action was rejected.67
Since the majority found no statutory authorization allowing the
President to order seizure of the steel mills, it turned next to the
Constitution. The Government contended that the President's authority
to order the steel mill seizures "should be implied from the
aggregate of his powers."68 The Court quickly disqualified the idea
that the Commander-in-Chief clause grants the President the power in
question though it did recognize that the concept of the "theater of
war" was actively changing.69 Despite this recognition, Justice Hugo
Black's majority opinion declared that "we cannot with faithfulness
to our constitutional system" hold that the Commander in Chief has
the "ultimate power" to take possession of private property in order
to keep labor disputes from stopping production.70 Next, the Court
recognized the President's role as Chief Executive, proclaiming that
the Constitution refutes the President's role as lawmaker, limiting
his legislative duties to "recommending laws he think wise" and
vetoing bad laws.71
Other instances have also led to further questions regarding the
emergency and wartime duties of Congress and the Executive. The
United States Supreme Court has recognized the Executive as being the
"sole organ of the nation in its external relations,"72 while also
stating that the Constitution grants the President inherent power to
protect the nation from foreign attack.73 Yet, Congress does not
remain powerless in this realm. The Constitution, through its grants
of power in Section 8 of Article I, provides Congress with broad
oversight authority over national security and foreign policy.74
Congress utilized this oversight power it passed the War Powers Act
in 1973.75 Recognizing an increasing trend of Presidential commitment
of American troops after World War II culminating with the Vietnam
engagement, Congress took legislative action attempting to reign in
the President's power to sanction such engagement.76 Nevertheless, no
President has even acknowledged that he was legally bound to act
pursuant to the provisions of the War Powers Act, instead reporting
to Congress only to be "consistent with the War Powers Resolution."77
The conflict of power over national security between the
President and Congress has resulted in a "basic constitutional
dilemma."78 Justice Robert Jackson, in his concurrence in Youngstown,
described three "situations in which a President may doubt, or others
may challenge, his powers," balancing Congressional against Executive
power. According to Jackson, when the President acts in accordance
with express or implied Congressional authorization, his power "is at
its maximum,"79 as was the case in Korematsu.80 When Congress is
silent on an issue, Justin Jackson said, the president must "rely on
his own independent powers," which may also be subject to concurrent
Congressional authority.81 The Milligan situation, since Congress did
not authorize the tribunals, falls into this category.82 Finally,
Justice Jackson argues that if the President takes action clearly
contradicting the Congressional will, either implied or expressed, as
he did in Youngstown,83 the President's "power is at its lowest ebb."84
Legal principles aside, Richard Neustadt, a political science
scholar has recognized the president's power to persuade.85 According
to Neustadt, the United States government is a system of separated
institutions sharing powers.86 Because of this structure, the essence
of a president's power relies on his ability to persuade advisors,
principles, Congress and ultimately the people.87 If Neustadt is
right, then regardless of any legal justification, a president could
get away with authorizing a warrantless surveillance program if he
can utilize his power to persuade to prove to Congress, the public
and the courts that such a program is absolutely necessary.
ELECTRONIC SURVEILLANCE
The United States government has long conducted electronic
surveillance for a wide variety of reasons.88 A slew of federal
agencies each have their hand in the electronic surveillance cookie
jar. The National Security Agency (NSA), "on the frontiers of
communications and data processing," is charged with the duty of
collecting, processing and disseminating foreign signals
intelligence.89 In addition, the Federal Bureau of Investigation, the
Department of Homeland Security and the Defense Intelligence Agency,
to name a few, all have the capabilities and power to conduct some
form of electronic surveillance, but not without limitations.90 Just
as the technological capabilities to conduct such surveillance has
developed and progressed over time, so too has the law regulating
government surveillance.
Aside from the Fourth Amendment, which protects citizens from
"unreasonable searches and seizures,"91 two primary federal statutes
control federal electronic surveillance today. One law, Title III of
the Omnibus Crime Control and Safe Streets Act of 1968, applies
mostly to domestic electronic surveillance for law enforcement
purposes.92 The other, the law with which this paper is concerned,
the Foreign Intelligence Surveillance Act (FISA), applies only to the
gathering of information for foreign intelligence purposes.93
Congress enacted the Foreign Intelligence Surveillance Act in
1978 and, in doing so, established a separate legal regime for
foreign intelligence surveillance. Six years earlier, the United
States Supreme Court, in United States v. United States District
Court (commonly referred to as the Keith case), noted that because of
the "potential distinctions" between criminal surveillance and
surveillance involving domestic security, "Congress may wish to
consider protective standards for the latter which differ from those
already prescribed for specified crimes."94 These new standards could
be compatible with the Fourth Amendment, the Court added, "if they
are reasonable both in relation to the legitimate need of Government
for intelligence information and the protected rights of our citizens."95
In the Keith case, a unanimous U.S. Supreme Court held that
the Fourth Amendment freedoms cannot be guaranteed if domestic
security surveillances are conducted solely within the discretion of
the Executive Branch without the detached judgment of a neutral
magistrate.96 In doing so, the Court examined whether procedures
other than prior judicial authorization would satisfy the Fourth
Amendment requirements designed to protect individual privacy and
free expression in terms of domestic national security
investigations.97 The Court reasoned that those charged with the
investigative and prosecutorial duties in the Executive branch
"should not be the sole judges of when to utilize constitutionally
sensitive means."98 Ultimately, the Court, after balancing "the duty
of Government to protect domestic security, and the potential danger
posed by unreasonable surveillance to individual privacy and free
expression,"99 ruled that prior judicial review "is the time-tested
means of effectuating Fourth Amendment rights"100 and that the
Government's concerns over domestic surveillance do not warrant
departure from Fourth Amendment judicial oversight requirements.101
The Supreme Court's decision in Keith acted as the proverbial
spark to the foreign intelligence surveillance regulation fire.102 In
addition to the impact of United States v. United States District
Court, an investigation led by Idaho Senator Franklin Church
exploring, among other aspects of the intelligence community,103 the
past authorization of electronic surveillance by various Presidents,
also incited the enactment of FISA.104 The Church Committee started
probing possible illegal actions by the intelligence community in
1975.105 The committee found that though presidents have given "firm
orders" to intelligence agencies to gather information concerning
"subversive activities" of American citizens, they have "failed to
provide safeguards for the rights of American citizens."106
Additionally, the committee noted that since 1936, domestic
intelligence activities had expanded at a relentless pace.107 The
committee concluded that though the Nixon administration's use of
illegal or improper wiretapping for national security purposes
probably exceeded the same of previous administrations, every
President since Franklin Roosevelt had authorized some form of
warrantless electronic surveillance.108
The Foreign Intelligence Surveillance Act contains procedures to
carry out electronic surveillance while also providing restraints to
keep that surveillance power from being abused. While Congress worked
on enacting, FISA its concern over the Executive Branch's abuse of
the power to collect foreign intelligence clearly stood out. The
Senate Judiciary Committee stated in its report that "the need for
such statutory safeguards has become apparent in recent years" due to
the recent "revelations that warrantless electronic surveillance in
the name of national security has been seriously abused."109
Additionally, according to the Senate Intelligence Committee Report,
the Church Committee provided firm evidence that foreign intelligence
electronic surveillances involved abuses and that checks upon the
exercise of these clandestine methods were clearly necessary.110
Despite the recognition of the misuse of power, the committee did
acknowledge that "(S)afeguarding national security against the
intelligence activities of foreign agents remains a vitally important
Government purpose."111 Ultimately, however, FISA aimed to establish
the procedures by which the Executive Branch could carry out lawful
electronic surveillance for national security purposes while also
remaining sensitive to privacy and individual rights.112
In enacting FISA, Congress created the Foreign Intelligence
Surveillance Court (FISA Court), a body composed of 11 district court
judges charged with hearing applications for and granting orders
either approving or denying agency requests to conduct foreign
intelligence electronic surveillance.113 In granting an application
to conduct such surveillance, the FISA Court, according to the
legislation, must find probable cause to believe that:
the target of the electronic surveillance is a foreign power or agent
of a foreign power: Provided, That no United States person may be
considered a foreign power or an agent of a foreign power solely upon
the basis of activities protected by the first amendment to the
Constitution of the United States; and each of the facilities or
places at which the electronic surveillance is directed is being
used, or is about to be used, by a foreign power or an agent of a
foreign power.114
In determining the existence of probable cause, the court may use
past activities of the target as well as information regarding
current and future activities of the target.115
Each application to the FISA Court must include the identity
of the Federal officer filing the application,116 the approval of the
Attorney General,117 the identity or a description of the target,118
a statement of facts justifying the surveillance,119 a statement of
the proposed minimization procedures,120 and finally, a detailed
description of the what is being searched for and how it will be
obtained along with other details regarding the specific parameters
of the search and chain of command issues.121 Minimization, as
mentioned above, refers to the procedures used to "minimize" the
acquiring, retaining and disseminating of confidential information
regarding non-consenting citizen or lawful alien.122
In addition to the creation of the FISA Court and building
the procedural framework the Executive Branch must use to conduct
foreign intelligence surveillance, in enacting FISA, Congress also
made it a crime for anyone to engage in electronic surveillance
without statutory authorization.123 Also, Congress amended the
domestic law enforcement surveillance statute, known at the time as
Title III of the Omnibus Crime Control and Safe Streets Act of 1968
(Title III), when enacting FISA. Initially, Title III had a provision
excluding surveillance for national security purposes from any
restrictions at all. The relevant section read:
Nothing 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. Nor shall anything contained in this chapter be deemed to
limit the constitutional power of the President to take such measures
as he deems necessary to protect the United States against the
overthrow of the Government by force or other unlawful means, or
against any other clear and present danger to the structure or
existence of the Government.124
This entire clause was removed when FISA was enacted as Congress
departed from recognizing a Presidential constitutional authority to
conduct electronic surveillance. Instead, Congress declared that
"procedures in this chapter ... and the Foreign Intelligence
Surveillance Act of 1978 shall be the exclusive means by which
electronic surveillance ... and the interception of domestic wire and
oral communications may be conducted."125 As the Conference Committee
stated in its report, this was an attempt to apply the standard set
forth in Justice Jackson's concurrence in Youngstown, where he stated
that a President's authority is at is "lowest ebb" when he acts
inconsistent with the implied or expressed will of Congress.126
Though FISA exists as the statutory framework by which the federal
government can conduct electronic surveillance for domestic security
purposes, the Bush Administration has implemented the NSA's
wiretapping program without regard to the requirements of FISA. In
fact, General Michael Hayden, Principal Deputy Director of National
Intelligence, has said that the NSA's current program has been used
in lieu of the process established by FISA.127
NSA WIRETAPPING PROGRAM
As reported by the New York Times, President George W. Bush
"secretly authorized the National Security Agency to eavesdrop on
Americans" in the months proceeding the terrorist attacks of
September 11, 2001. Though full disclosure has yet and is not likely
to occur, minimal and general information regarding the NSA
wiretapping program has been disseminated since the story first broke
on December 15, 2005.
President Bush and other administration officials have, though
somewhat cryptically, confirmed some facts about the program. First,
the President has admitted that he indeed authorized and reauthorized
an electronic surveillance program.128 Next, the program authorized
by the President does involve the interception of communications of
people inside the United States, according to both Vice President
Dick Cheney129 and Attorney General Alberto Gonzalez.130 In addition,
the Administration confirmed that President Bush ordered the program
without following the procedures set forth by Congress in the Foreign
Intelligence Surveillance Act.131
Though few of the program's operational details have been
confirmed, both the Center for Constitutional Rights and the American
Civil Liberties Union filed suit seeking injunctive relief, claiming
the program to be illegal.132 Shortly after these suits were filed,
the Department of Justice released a document laying out the legal
arguments articulated by the government in support of the president
retaining the authority to order such surveillance (this is commonly
referred to as the "White Paper").133
These lawsuits make similar claims challenging the
constitutionality of the NSA's wiretapping program launched and
ratified by the President. Both suits claim that the program in
question is in clear violation of the statutory mandates provided by
FISA.134 In addition, the parties seeking relief both represent
American citizens who have regular contact with people outside of the
United States, whose communications may have been subjected to
surveillance.135 Ultimately, since the President allegedly is
overreaching his executive authority and the protections afforded
citizens via the First and Fourth Amendments are not being
safeguarded by a detached magistrate, both the Center for
Constitutional Rights and the American Civil Liberties Union claim
the NSA's wiretapping program to be an illegal form of electronic
surveillance.136
However, in the Department of Justice's "White Paper," the
Bush Administration argues that the President is supported via
"inherent constitutional authority as Commander-in-Chief...to conduct
warrantless surveillance...for intelligence purposes."137 The
Department also points to the Authorization for Use of Military Force
(AUMF),138 passed by Congress in the days following the September 11
attacks, as further supplementing and confirming the President's
authority, superseding any procedures required by Congress via FISA.139
The AUMF states "That 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 11, 2001, or harbored
such organizations or persons, in order to prevent any future acts of
international terrorism against the United States by such nations,
organizations or persons." In the preamble of the act, Congress
stated that the President retains Constitutional authority to "take
action to deter and prevent acts of international terrorism."140
Congress passed this law in the week following the terrorist attacks
in Washington, D.C. and New York City. Subsequently, military force
was used in Afghanistan and eventually Iraq, all part of the greater
War on Terror.
The United States Supreme Court analyzed the expansive nature
of the AUMF in 2004 in Hamdi v. Rumsefeld, which involved a
President's authority to detain citizens deemed "enemy
combatants."141 The AUMF, according to a 6-3 majority, gives the
President the power to detain those people in the "limited category"
of individuals who fought with the Taliban in Afghanistan against the
United States. The Court deemed such detaining "an exercise of the
'necessary and appropriate force' Congress has authorized the
President to use" when it enacted the AUMF because the detaining of
enemy combatants is a fundamental and accepted incidence of war.142
Despite the lack of an express decree of power in the AUMF, the Court
still recognized that since capturing and confining enemy combatants
is pivotal to any war effort, Congress clearly granted such authority
to the Executive "in permitting the use of 'necessary and appropriate
force'."143 In reaching this decision, the Court was able to look
past 18 U.S.C. § 4001(a) enacted by Congress in 1971 which states
that no citizen shall be detained by the United States "except
pursuant to an act of Congress" since the Court found that the AUMF,
an act of Congress, authorizes Hamdi's detention.144
In the Justice Department's "White Paper" released in January
2006, the Government argues that, like detaining enemy combatants,
warrantless electronic surveillance is a "fundamental tool of
warfare" that Congress authorized the President to conduct in passing
the AUMF.145 Following the Supreme Court's lead in Hamdi, the Justice
Department urges that warrantless surveillance is one of the
"fundamental incidents of waging war," just as the Court found
detaining enemy combatants to be, legitimizing the President's
order.146 Subsequently, since FISA contemplates other statutes
authorizing surveillance,147 as the AUMF does, according to the Bush
Administration, the NSA wiretapping program falls in line with FISA.
Currently, both the ACLU and the CCR's legal actions are in
the preliminary phases. In both instances, the plaintiffs have sought
information from the government concerning details of the NSA's
program to no avail. According to the ALCU, "the Department of
Justice continues to refuse to give honest answers to basic
questions, such as how many Americans have had their phone calls and
e-mails listened to or read by the NSA without a warrant."148 The CCR
has had similar issues gaining information. Nonetheless, in early
March, the CCR moved for summary judgment in their challenge to the
warrantless surveillance program, asserting that the government has
"already admitted enough incriminating facts to prove the NSA Program
is illegal."149
In addition to the legal challenges, Congress has held
hearings and proposed bills. The Senate Judiciary Committee has held
three hearings on the NSA's wiretapping program, questioning Attorney
General Alberto Gonzalez, Members of the Foreign Intelligence
Surveillance Court and former government officials familiar with FISA
and electronic surveillance for national security purposes, to name a
few.150 Senators Charles Schumer (D-New York),151 Representatives
Jeff Flake (R-Arizona) and Adam Schiff (D-California),152 Senator
Mike DeWine (R-Ohio),153 Senator Robert Byrd (D-West Virginia),154
and Senator Arlen Specter (R-Pennsylvania)155 have all proposed some
sort of bill addressing the issue of warrantless surveillance
conducted by the NSA for foreign intelligence purposes. Votes on any
of the bills have yet to take place. Also, though the Senate has
rejected an investigation into the wiretapping program,156 Senator
Russ Feingold (D-Wisconsin) did propose a resolution censuring the
President and condemning his "unlawful authorization of wiretaps of
Americans within the United States without obtaining the court orders
required by the Foreign Intelligence Surveillance Act."157
In the little more than four months since the New York Times
broke the existence of a warrantless NSA wiretapping program
involving the domestic communications of Americans, little is known
about the actual function and capacity of the program. What is known
is that the communications of Americans, as defined by FISA, have
been subject to surveillance without the court approved warrants
Congress has required in its enactment of FISA; and the President, in
authorizing such surveillance, believes that the requirements of FISA
do not extend to the type of surveillance currently being carried out
and that he is in fact authorized to order such surveillance.
ANALYSIS
The Foreign Intelligence Surveillance Act, according to
Congress, is the sole means by which the Federal Government may
conduct electronic surveillance for the purposes of national
security.158 Yet the President, relying on both the Authorization for
Use of Military Force and his inherent constitutional powers has
authorized such surveillance. In enacting FISA, Congress has taken
action in the realm of foreign intelligence surveillance. Therefore,
any justification for warrantless surveillance stemming from the AUMF
would then have to rely on unstated, general implications
contradicting the express and specific statutory language of FISA.159
According to the Supreme Court, "(I)t is a commonplace of statutory
construction that the specific governs the general."160 Thus, since
Congress has specifically taken action in terms of electronic
surveillance for national security purposes by deeming FISA and Title
III the "exclusive means"161 by which electronic surveillance can be
conducted, it would be difficult to read the AUMF as granting the
President the authority to conduct warrantless surveillance without
following the requirements of FISA. Doing so would require that
Congress, via implication, has repealed the "exclusive means" clause of FISA.
In addition, to find an inherent power retained by the
president to conduct warrantless surveillance in accordance with his
duty as Commander-in-Chief, warrantless electronic surveillance must
be found to be a "fundamental incident of war."162 Though the
government has long conducted surveillance operations during times of
war, the War on Terror is fundamentally different than any other
armed conflict.163 Thus, in determining whether warrantless
electronic surveillance is a "fundamental incident of war," the
current program must be analyzed in light of the peculiarities of the
War on Terror.
The War on Terror knows no geographic boundaries. There is
neither an identifiable enemy force nor any front lines. In the last
declared war that the United States participated in, Germany, Japan
and other Axis Allies were the obvious enemies and electronic
surveillance was aimed at those enemies. In today's conflict, the
government targets electronic communications when, according to
administration officials, it has "a reasonable basis to conclude"
involve someone who 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."164 This broad standard leaves open
the possibility of American citizens being targeted by such a
program. And, according to the New York Times initial report,
American citizens have been subject to warrantless surveillance under
the NSA's program.165 Without the protection of the FISA court, no
one outside the Bush administration's surveillance and review
apparatus can know when U.S. citizens are targeted, or whether that
the surveillance indeed is limited to contact with persons suspected
of being connected to al Qaeda. It is only via oversight by a
detached magistrate that the rights of individuals that may be
implicated in the process of conducting electronic surveillance can
be protected.166
Although a President may have inherent power to conduct such
surveillance, the power, if it exists, is not exclusive.167 Congress,
under its Article I powers, has the authority to regulate domestic
wiretapping.168 Nowhere in the Department of Justice's "White Paper"
is this argument disputed.169 In enacting FISA, Congress clearly
attempted to regulate the gathering of foreign intelligence
surveillance and not to prohibit the collecting of such surveillance.
Since Congress validly enacted FISA, The President, as Chief
Executive, must execute the provisions of that statute.170
It appears that Congress has taken action in the electronic
surveillance for foreign intelligence purposes arena and that the
President has clearly taken action "incompatible with the expressed
or implied will of Congress." Thus, the asserted power claimed by the
President falls within Justice Jackson's third category of
presidential authority, as explained in Youngstown.171 In that case,
the Court noted that Congress explicitly rejected granting to the
President the authority to seize businesses in order to settle labor
disputes while enacting the Taft-Hartley Act by rejecting an
amendment to the Act that would have allowed just that.172 Similarly,
with the passing of FISA, Congress repealed a clause recognizing a
President's constitutional authority to conduct surveillance, instead
deeming FISA and Title III as the "exclusive means" by which
electronic surveillance may be conducted.173 If a particular
situation falls within Justice Jackson's third category, as the NSA's
wiretapping program does, the President's power is at its "lowest ebb."
However, the FISA procedures may hinder the usefulness of
electronic surveillance during the waging of the unconventional war
on terror. General Michael Hayden has said that the current NSA
program is more "aggressive" than programs typically available under
FISA.174 On another occasion, Hayden has said that under the
President's program, the procedures to intercept communications are
"quicker and a bit softer than it is for a FISA warrant."175 Thus, by
implication, the Bush Administration feels that without such a
program, the requirements of FISA would hinder the government's
operational capacity to intercept electronic communications for
foreign intelligence purposes. Therefore, much could be said about
President Bush's ability to utilize Neustadt's persuasion power to
convince the public, Congress and the courts of the operational
importance of the NSA's wiretapping program in preventing another
terrorist attack.
Additionally, the Bush Administration feels that the canon of
constitutional avoidance governs the current legal situation.176 This
doctrine, briefly, refers to the construing of a statute which may
infringe on a constitutionally granted power to avoid such an
infringement.177 In other words, the Bush Administration feels that
FISA should be applied in a way that it does not inhibit the
President's constitutional power to conduct warrantless surveillance
for national security purposes.178 Instead, FISA is best read if it
allows "a statute such as the AUMF to authorize electronic
surveillance outside FISA's enumerated procedures."179 To show that
Congress realized the potential that other statutes could authorize
the President to order electronic surveillance, the Justice
Department points to FISA's criminal sanctions section, which
provides that an individual is in violation of FISA when conducting
"electronic surveillance under color of law except as authorized by
statute" (emphasis added).180
CONCLUSION
The United States Supreme Court has recognized the President
as the "sole organ" of the government in terms of foreign affairs.181
In addition, the president enjoys the authority to "repel sudden
attacks" and is also commander-in-chief of the armed forces.182 Yet
Congress also retains concurrent powers in terms of the military,
foreign affairs and war. Congress has the authority to declare war as
well as the power of the purse, deciding how much funding the
military should receive.183 Congress is also given the authority to
regulate the behavior of members of the armed forces184 and to
provide rules concerning captures on sea and land.185 It has enacted
numerous laws, including the Uniform Code of Military Justice186 and
the Detainee Treatment Act187 via its authority to oversee the
foreign affairs of the nation. Nevertheless, Presidents have a
history of acting on their own prerogative in the name of national
security. The current situation is no different.
A group composed of scholars and former government officials,188 the
Congressional Research Service189 and the American Bar Association190
have all expressed a belief in the unconstitutionality of the NSA's
warrantless wiretapping program. Yet, while Congress continues to
hold hearings and propose bills and as the legal challenges to the
program already filed remain buried on the docket, the warrantless
domestic wiretapping continues.
The United States Constitution, as interpreted by United
States Supreme Court case law, grants inherent powers to the
president to protect the security of the nation. Whether this
authority extends to the ordering of the warrantless electronic
surveillance of the communications of American citizens is not quite
clear. Congress certainly spoke on the issue when it enacted the
Foreign Intelligence Surveillance Act in 1978. Senator Lindsey
Graham's quote in the introduction shows that some members of
Congress are worried about the implications any judicial approval of
such presidential power would have, in light of the Congressional
intent that FISA and Title III remain the "exclusive means" by which
electronic surveillance may be conducted. Because of the
Congressional action and the Presidential order in contradiction of
Congress, the President's power should be found to be at its "lowest ebb."191
Despite that possible disconcerting characterization, a
president is not necessarily precluded from ordering warrantless
domestic electronic surveillance. As the Supreme Court noted in
Hamdi, the Authorization to Use Military Force enacted by Congress
gives the president the power to use all necessary and appropriate
force to carry out all fundamental and acceptable incidences of
war.192 If the warrantless surveillance of domestic electronic
communications is found to be a fundamental incidence of war, than
the AUMF and not FISA would control the NSA's wiretapping program.
This would shift presidential authority to "its maximum," as stated
by Justice Jackson in Youngstown.193
As additional cases continue to be decided involving
expansive executive authority in this ever-changing post-September 11
environment, the legal landscape is sure to change. Despite these
impending developments in the legal landscape, with it's enacting of
FISA and the President's blatant disregard for its procedures,
Congress remains concerned with how the pending cases will play out.
With court decisions at least months away and appeals to surely
follow, it remains to be seen if the legislature's power will in fact
be weakened. In the mean time, with bills pending in both houses,
Congress is looking for a pre-emptive way to prevent its potential neutering.
1 U.S. Senate Judiciary Committee Holds a Hearing on Wartime
Executive Power and the National Security Agency's Surveillance
Authority, Washington Post.com, Feb. 6, 2006,
http://www.washingtonpost.com/wp-dyn/content/article/2006/02/06/AR2006020601001.html.
2 Id.
3 Id.
4 The National Security Agency was created in 1952 by President Harry
Truman and it "coordinates, directs, and performs highly specialized
activities to protect U.S. government information systems and produce
foreign signals intelligence information." NSA.gov, Introduction to
NSA/CSS, http://www.nsa.gov/about/index.cfm (last visited March 20,
2006). For a detailed discussion on the NSA and its various programs
and capabilities, see, e.g., JAMES BANFORD, BODY OF SECRETS (Anchor
Books 2002) (2001).
5 James Risen and Eric Lichtblau, Bush Secretly Lifted Some Limits on
Spying in U.S. After 9/11, officials say, N. Y. TIMES, Dec. 16, 2005.
6 Id.
7 ACLU.org, Eavesdropping 101: What Can the NSA Do?
http://www.aclu.org/safefree/nsaspying/23989res20060131.html (last
visited March 25, 2006).
8 Id.
9 The First Amendment, in pertinent part, states that "Congress shall
make no law…abridging the freedom of speech." U.S. CONST. amend. I.
The Fourth Amendment protects "The right of the people to be secure…
against unreasonable searches and seizures" while also prescribing
that "no Warrants shall issue, but upon probable cause." U.S. CONST.
amend IV. As the United States Supreme Court noted in Katz v.United
States, 389 U.S. 347 (1967), the Fourth Amendment's protections apply
to "people, not places." Thus, the surveillance of electronic
communications falls within the purview of the Fourth Amendment. The
First Amendment implications are a little less clear, though domestic
security surveillance could "chill the free expression protected by
the First Amendment." See, e.g., William C. Banks and M.E. Bowman,
Executive Authority for National Security Surveillance, 50 AM. U.L.
REV. 1. Also, for further discussion on the First Amendment issues
involved with the NSA's particular wiretapping program, refer to the
Fourth Claim for Relief in the Center for Constitutional Right's suit
filed against the government. Infra note 132.
10 U.S. Department of Justice, Legal Authorities Supporting the
Activities of the National Security Agency Described by the President
(Jan. 19, 2006) [hereinafter "White Paper"].
11 See Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (citing Youngstown
Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952), which held that
President Truman overstepped his authority by seizing privately owned
steel mills without specific Congressional or constitutional
authorization, despite the ongoing police action in Korea).
12 See, e.g., Ex parte Milligan, 71 U.S 2, 120 (1866). "The
Constitution of the United States is a law for rulers and people,
equally in war and in peace…"
13 U.S. CONST. art. II, § 2.
14 U.S. CONST. art. I, § 8.
15 Henry P. Monaghan, The Protective Power of the President, 93
COLUM. L. REV. 1 at 17.
16 Monaghan.
17 U.S. CONST. art. II, § 2.
18 THE FEDERALIST NO. 74, at 497 (Alexander Hamilton) (Heritage
Press, 1945). "Of all the cares or concerns of government, the
direction of war most peculiarly demands those qualities which
distinguish the exercise of power by a single hand."
19 JAMES MADISON, NOTES OF DEBATES IN THE FEDERAL CONVENTION OF 1787
476 (W.W. Norton & Co. 1987) (1893). Here, the author notes that
James Madison and Elbridge Gerry moved to insert "declare," instead
of "make" war, "leaving to the Executive the power to repel sudden
attacks." The motion passed 8 to 1.
20 THE FEDERALIST NO. 69 at 462-463. (Alexander Hamilton) (Heritage
Press, 1945). "The President will have only the occasional command of
such part of the militia of the nation as by legislative provision
may be called into the actual service of the Union. The king of Great
Britain…have at all times the entire command of all the militia"
within its jurisdiction.
21 U.S. CONST. art. I, § 8, stating that "The Congress shall have
power to…declare war."
22 See, e.g., JAMES MADISON at 476. Here, George Mason argued against
giving the power to declare war to the Executive since that office
could not be safely trusted with such authority.
23 Article I § 1 of the Constitution limits the legislative powers to
those "herein granted." In addition, Article III § 2 reads that "the
judicial power shall extend to…" and then details the power,
suggesting limitations on the same. There is no comparable clause
found in Article II that applies to the powers of the executive. U.S.
CONST. art. I-III.
24 See, e.g., WILLIAM A. DEGREGORIO, THE COMPLETE BOOK OF U.S.
PRESIDENTS 49 (Barnes & Noble Books 2004).
25 See, e.g., DAVID O'BRIEN, CONSTITUTIONAL LAW AND POLITICS 223 (5th ed. 2003)
26 JOHN LOCKE, SECOND TREATISE OF GOVERNMENT (Hackett Publishing Co.
1980) (1690).
27 O'BRIEN at 225.
28 THEODORE ROOSEVELT, AUTOBIOGRAPHY 389 (New York: Macmillan, 1913).
29 O'BRIEN at 225.
30 See, e.g., Biography of James Buchanan, Whitehouse.gov,
http://www.whitehouse.gov/history/presidents/jb15.html (last viewed
on March 26, 2006).
31 Id.
32 See, e.g., JAMES RANDALL, CONSTITUTIONAL PROBLEMS UNDER LINCOLN
(University of Illinois Press 1951) and CLINTON ROSSITER, THE
SUPREME COURT AND COMMANDER-IN-CHIEF: CONSTITUTIONAL DICTATORSHIP
(Princeton University Press 1948).
33 See supra note 32.
34 Id.
35 O'BRIEN at 288.
36 See O'BRIEN at 229, citing a speech by John Marshall to the House
of Representatives. in 1799. Also, see United States v.
Curtiss-Wright Corporation, 299 U.S. 304 (1936), holding that
Congress is able to delegate certain essential functions in the
foreign affairs arena to the executive.
37 O'BRIEN at 288.
38 See id. at 225, citing Aaron Wildavsky's "The Two Presidencies," 4
TRANS-ACTION 230 (Dec. 1969).
39 This doctrine refers to the general belief by presidents that
those powers enumerated in the Constitution are not the only powers
retained by the executive. Instead, the granted powers suggest
implied and inherent powers necessary to carry out the specific
grants of power.
40 Ex parte Milligan, 71 U.S. 2 (1866).
41 Korematsu v. United States, 323 U.S. 214 (1944).
42 Youngstown.
43 Milligan.
44 Id.
45 Id.
46 Id.
47 Id.
48 Milligan.
49 Id.
50 Korematsu.
51 Id.
52 Id.
53 The curfews were challenged and upheld by the Supreme Court in
Hirabayashi v. United States, 320 U.S. 81 (1943).
54 Korematsu.
55 Korematsu.
56 Id.
57 Id.
58 See Civil Liberties Act of 1988, acknowledging the "fundamental
injustice of the evacuation, relocation and internment of United
States citizens and permanent resident aliens of Japanese ancestry
during World War II." 50 U.S.C.S Appx Sec. 1989b.
59 343 U.S. 579 (1952).
60 Id. at 582.
61 Id.
62 Id. at 583.
63 Id.
64 Though four justices concurred with the opinion of the Court
penned by Justice Black, these Justices, Felix Frankfurter, Douglas,
Robert Jackson and Burton each wrote their own opinion. Justice Clark
concurred in the result of the Court. Chief Justice Vinson, joined by
Justices Reed and Minton dissented. Id.
65 Id. at 585.
66 Youngstown.
67 Id. at 586.
68 Id. at 587.
69 Id.
70 Id.
71 Id.
72 See, Curtiss-Wright (In this case, the Court held that Congress
did not unconstitutionally delegate power to the Executive because
the policy at issue was directed at foreign affairs, not to domestic policy).
73 See, The Prize Cases, 67 U.S. 935 (1863)(Here, a 5-4 Court upheld
President Lincoln's ordering of a blockade of the Southern ports
because "the president is not only authorized, but bound to resist
force by force."
74 These powers include the authority "to declare War, grant Letters
of Marque and Reprisal, and make Rules concerning captures on Land
and Water," "to raise and support Armies," "to provide and maintain a
Navy," "to make Rules for the Government and Regulation of the land
and Naval forces," "to provide for calling forth the Militia to
execute the Laws of the Union, suppress Insurrection and Repel
invasions," and "to provide for organizing, arming and disciplining
the Militia." U.S. CONST. art. I, § 8.
75 War Powers Act, 50 U.S.C. § 1541 (2005). This statute, passed over
presidential veto, provides that a president can commit American
forces only after a declaration of war, in accordance with specific
statutory authorization or to repel an attack on the United States.
76 Presidential scholar Joseph Pika claims that the War Powers
Resolution of 1973 was "the most important congressional attempt to
reclaim powers lost or given to the executive. JOSEPH PIKA ET AL, THE
POLITICS OF THE PRESIDENCY 379 (5th ed. 2002).
77 Id.
78 Youngstown.
79 Id. at 636.
80 In Korematsu, both the president, via executive order, and
Congress through a duly enacted statute, authorized the creation of
military zones.
81 Youngstown at 637.
82 Milligan.
83 Youngstown.
84 Id.
85 RICHARD NEUSTADT, PRESIDENTIAL POWER: THE POLITICS OF LEADERSHIP (1960).
86 Id. at 33.
87 For an in-depth discussion of the persuasion power, see Chapter 3
of Neustadt's Presidential Power.
88 See, e.g., DANIEL SOLOVE ET AL, INFORMATION PRIVACY LAW 214 (2d ed. 2005).
89 Introduction to NSA/CSS.
90 See e.g., ROBERT O'HARROW JR., NO PLACE TO HIDE (Free Press 2006)
(2005). In this title, the author explores the beginnings of what he
deems a "surveillance society" in the United States both from a
technological and practical point-of-view. This discussion regarding
surveillance and national security is completed in light of the
privacy concerns imbedded within such widespread surveillance.
O'Harrow describes the different agencies and their responsibilities
in terms of surveillance.
91 U.S. CONST. amend. IV. In addition, the Supreme Court, in Katz v.
United States, concluded that the Fourth Amendment governs "not only
the seizure of tangible items, but extends as well to the recording
of oral statements." 389 U.S. 347 at 353 (1967).
92 18 U.S.C. § 2510.
93 50 U.S.C. § 1801.
94 407 U.S. 297 at 323 (1972) [hereinafter "Keith."].
95 Keith, see supra note 94.
96 Id. at 316-317.
97 Keith at 310.
98 Id. at 317.
99 Id. at 315.
100 Id. at 318.
101 Id.
102 In the Keith the decision, the Court observed that if it wished,
Congress could create a special court to authorize electronic
surveillance in sensitive cases. Keith at 323.
103 The Church Committee, formally known as the Senate Select
Committee to Study Government Operations with Respect to Intelligence
Activities, investigated a variety of topics, including the
Intelligence Community's cooperation during the President Kennedy
assassination investigation, the opening of mail and the unauthorized
storage of toxic agents. See S. REP. 94-755 (1976) [hereinafter,
"Church Committee"].
104 David Jonas, The Foreign Intelligence Surveillance Act Through
the Lens of the 9/11 Commission Report, 27 N.C. CENT. L. J. 95, 104 (2005).
105 BANFORD at 434.
106 Church Committee supra note 104.
107 Id. at 21.
108 Foreign Intelligence Surveillance Act of 1978: Hearing Before the
Subcomm. on Criminal Laws and Procedures of the Senate Comm. on the
Judiciary, 95th Cong. 7 (1977). For further discussion regarding the
executively enacted surveillance programs since the time of President
Roosevelt, see the Church Committee Report, supra note 104.
109 Foreign Intelligence Surveillance Act of 1978: Hearing Before the
Subcomm. on Criminal Laws and Procedures of the Senate Comm. on the Judiciary.
110 Id.
111 Id. at 9.
112 Id. at 15.
113 Foreign Intelligence Surveillance Act, 50 U.S.C. § 1803 (a)
(2005). According to the Electronic Privacy Information Center it was
not until 2003 that the FISA Court issued its first denial of an
application for electronic surveillance, in light of the Act's
procedural safeguards. In fact, from the inception of the court until
that first denial in 2003, some 20,000-plus applications had been approved.
114 Foreign Intelligence Surveillance Act, 50 U.S.C. § 1805 (a) (2005).
115 Id. § 1805 (b).
116 Id. § 1804 (a)(1).
117 Id. § 1804 (a)(2).
118 Id. § 1804 (a)(3).
119 Id. § 1804 (a)(4).
120 Id. § 1804 (a)(5).
121 Id. § 1804 (a)(6-11).
122 Id. § 1801 (g)(1).
123 Foreign Intelligence Surveillance Act, 50 U.S.C. § 1809 (a)(1).
124 See Keith, supra note 94.
125 18 U.S.C. § 2511 (2)(f) (2005).
126 H.R. REP. 95-1720, at (1978) (Conf. Rep.).
127 Excerpt from Attorney General Alberto Gonzales and General
Michael Hayden, Principal Deputy Director for National Intelligence,
Press Briefing (Dec. 19, 2005), available at
http://www.whitehouse.gov/news/releases/2005/12/print/20051219-
1.html. [hereinafter, Gonzalez and Hayden Press Conference]
128 See, e.g., The President's Radio Address, 41 WEEKLY COMP. PRES.
DOC. 1880 (Dec. 17, 2005), available at http://frwebgate.access.gpo.gov/cgibin/
getdoc.cgi?dbname=2005_presidential_documents&docid=pd26de
05_txt-9.pdf. In this address, President Bush stated, "In the weeks
following the terrorist attacks on our Nation, I authorized the
National Security Agency, consistent with U.S. law and the
Constitution, to intercept the international communications of people
with known links to Al Qaida and related terrorist organizations."
See also Excerpt from President's News Conference, 41 W EEKLY COMP.
PRES. DOC. 1885 (Dec. 19, 2005), available at
http://frwebgate.access.gpo.gov/cgibin/
getdoc.cgi?dbname=2005_presidential_documents&docid=pd26de
05_txt-11.pdf. Here, the President said that he had reauthorized the
program over 30 times and that he intends to continue reauthorizing
the program, "for so long as the Nation faces the continuing threat
of an enemy that wants to kill American citizens."
129 See, James Taranta, A Strong Executive, WALL STREET JOURNAL, Jan.
28, 2006, at A8. Here, Vice President Cheney is quoted as saying, "It
is the interception of communications, one end of which is outside
the United States, and one end of which, either outside the United
States or inside, we have reason to believe is al-Qaeda-connected."
130 Gonzalez and Hayden Press Briefing. Attorney General Gonzalez was
quoted describing the surveillance, "To the extent that there is a
moderate and heavy communication involving an American citizen, it
would be a communication where the other end of the call is outside
the United States and where we believe that either the American
citizen or the person outside the United States
is somehow affiliated with al Qaeda."
131 See, Id., where General Hayden was quoted, "[T]his is a more . .
. 'aggressive' program than would be traditionally available under
FISA." See also, Excerpt from General Michael Hayden, Principal
Deputy Director of National Intelligence, Address to the National
Press Club (Jan. 23, 2006), available at
http://www.dni.gov/release_letter_012306.html. [hereinafter, Hayden
Press Conference]. General Hayden stated, "If FISA worked just as
well, why wouldn't I use FISA? To save typing? No. There is an
operational impact here, and I have two paths in front of me, both of
them lawful, one FISA, one the presidential – the president's
authorization. And we go down this path because our operational
judgment is it is much more effective. So we do it for that reason."
132 See Center for Constitutional Rights v. George Bush, et. al.
(filed on January 17, 2006 in United States District Court, Southern
District of New York) and American Civil Liberties Union v. National
Security Agency (filed on the same day in United States District
Court, Eastern District of Michigan).
133 White Paper supra note 10.
134 CCR v. Bush and ACLU v. NSA supra note 132.
135 Id.
136 Id.
137 Id.
138 Pub. L. No. 107-40 (Sept. 18, 2001) (reported as a note to 50
U.S.C.A. § 1541).
139 Id.
140 Id.
141 542 U.S. 507 at 516 (2004).
142 Hamdi at 518.
143 Id. at 519.
144 Id. at 517.
145 White Paper, supra note 10.
146 Id.
147 FISA's criminal sanctions section which provides that an
individual is in violation of FISA when conducting "electronic
surveillance under color of law except as authorized by statute"
(emphasis added). The emphasize clause shows a recognition that other
statutes aside from FISA may also authorize the executive branch to
engage in electronic surveillance.
148 ACLU Rebukes Department of Justice Continued Stonewalling on
Wiretapping Questions, Says Accountability and Transparency Needed,
ACLU.org, http://www.aclu.org/safefree/general/24750prs20060324.html (3-24-06).
149 U.S. Government Admits Illegal Domestic Spying According to Major
Filing in Federal Court Today, CCR-NY.org,
http://www.ccr-ny.org/v2/reports/report.asp?ObjID=VzSGDLGjUD&Content=721
(last reviewed on March 31, 2006).
150 See, e.g., Senate Judiciary Committee Continues Hearings into
Illegal NSA Spying Program, ACLU Urges Lawmakers go Get Facts Before
Acting, ALCU.org,
http://www.aclu.org/safefree/spying/24762prs20060328.html (3-28-06).
151 Full text of the bills can be found at
http://www.cdt.org/security/nsa/briefingbook.php.
152 Id.
153 Id.
154 Id.
155 Id.
156 Charles Babington and Carol Leonnig, Senate Rejects Wiretapping
Probe, WASH. POST, Feb. 17, 2006.
157 See supra note 151.
158 See supra note 151.
159 See, e.g., Letter to Congress from Constitutional Law Scholars
and Former Government Officials, available at
http://www.cdt.org/security/20060109legalexpertsanalysis.pdf (last
viewed on March 31, 2006) [hereinafter "Scholars Letter].
160 Morales v. TWA, 504 U.S. 374, 384 (1992)(citing, e.g., Crawford
Fitting Co. v. J. T. Gibbons Inc., 482 U.S. 437, 445 (1987)).
161 See supra pg. 22.
162 Hamdi.
163 First, the War on Terror is not being conducted in congruence
with a congressionally authorized declaration of war. Also, it is not
being waged solely against another state. Thus, there is no clear
enemy. Instead, the War on Terror is most akin to the proverbial War
on Drugs, a battle against an inanimate entity with no obvious battle
lines or geographic limits. The adversary in the War on Terror lurks
in the shadows and seeks objectives very different from those of an
enemy in a conventional war.
164 Hayden and Gonzalez News Conference.
165 Risen and Lichtblau.
166 Keith supra note 94.
167 In re Sealed Case, 310 F.3d 717 (Foreign Intel. Surv. Ct. of Rev. 2002).
168 See, e.g., S. Rep. No. 95-604, pt. I, at 16 (1977) (Congress's
assertion of power to regulate the President's authorization of
electronic surveillance for foreign intelligence purposes was
"concurred in by the Attorney General.") In addition, in a letter
from John M. Harmon, Assistant Attorney General, to Edward P. Boland,
Chairman of the House Permanent Select Comm. on Intelligence sent in
April of 1978, Harmon stated, "it seems reasonable to conclude that
Congress, in the exercise of its power in this area, may not vest in
the courts the authority to approve intelligence surveillance."
169 White Paper, supra note 10.
170 Article II, Sec. 3 requires that a President "shall take care
that the laws be faithfully executed." The mandatory "shall" requires
the President to follow and enforce the laws duly enacted by Congress.
171 Youngstown at 637.
172 See, supra pg. 13.
173 See, supra pg. 22.
174 Hayden and Gonzalez Press Conference supra note 127.
175 Hayden Press Conference, supra note 132.
176 White Paper, supra note 10.
177 Id.
178 Id.
179 Id.
180 Foreign Intelligence Surveillance Act, 50 U.S.C § 1809(a)(1).
181 Curtiss-Wright.
182 U.S. CONST. art. II, § 2.
183 Id.
184 Id.
185 Id.
186 10 U.S.C. Title 47. This law acts as the foundation for the
military's criminal justice system and was passed in 1950.
187 42 USCS § 2000dd. This act, passed in 2005, protects anyone in
the custody of the United States from "cruel, inhuman or degrading
treatment or punishment."
188 Scholars Letter, supra note 159.
189 In this report, the CRS ultimately found that the warrantless
wiretapping authorized by the President represents an exercise of
presidential power at its lowest ebb. Congressional Research Service,
Statutory Procedures Under Which Congress Is To Be Informed of U.S.
Intelligence Activities, Including Covert Actions, Jan. 18, 2006.
190 Here, the ABA's House of Delegates adopted a resolution opposing
any further electronic surveillance not in compliance with FISA's
procedures. ABA Task Force on Domestic Surveillance in the Fight
Against Terrorism Biographies Feb. 13, 2006, available at
http://www.abanet.org/op/greco/memos/aba_house302-0206.pdf (last
viewed on March 31, 2006).
191 Youngstown.
192 Hamdi.
193 Youngstown.
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