RESPONSES TO QUESTIONS FROM CHAIRMAN SENSENBRENNER
1. The Foreign Intelligence Surveillance Court of Review, as the
Congressional
Research Service (CRS) concedes in its 2006 examination of the NSA
program, "is a court of appeals and is the highest court with express
authority over [the Foreign Intelligence Surveillance Act,] FISA to
address
the issue, its reference to inherent constitutional authority for the
President
to conduct warrantless foreign intelligence surveillance might be
interpreted
to carry considerable weight."6 The FISA Court of Review issued an
opinion
in 2002 that stated "all the other courts to have decided the issue, held
that
the President did have inherent authority to conduct warrantless searches
to
obtain foreign intelligence information . . . . We take for granted that
the
President does have that authority . . . ."7 The CRS memorandum
dated
January 5, 2006 does not dispute the fact that all other courts support
the
proposition that the President has inherent authority to conduct
warrantless
searches. Instead, the CRS memorandum appears to attempt to downplay
these precedents with a statement that the FISA Court of Review's
"allusion
to the holdings of 'all the other courts to have considered the issue,'
appears
to have been the cases which pre-date FISA's passage or which address
pre-
FISA surveillances."8
a. Have any courts addressed this issue since the enactment of FISA?
b. Have any courts since the enactment of FISA concluded that the
President did not have inherent authority?
c. Does reliance on pre-FISA cases by the FISA Court of Review
"[undercut] the persuasive force"9 of the conclusion that the President
has inherent constitutional authority to conduct warrantless surveillance?
As your question states, the FISA Court of Review discussed the
President's
inherent authority to conduct warrantless electronic surveillance in 2002,
twenty-four
years after FISA was enacted. See In re Sealed Case, 310 F.3d 717 (For. Int.
Surv. Ct.
Rev. 2002). In Sealed Case, the Court of Review considered whether the FISA
Court had
statutory or constitutional authority to place restrictions on the interaction
of criminal
prosecutors and foreign intelligence investigators as a condition for granting
surveillance
orders. The Court of Review held that the FISA Court erred by placing those
restrictions
on the Government. Because prior court decisions had suggested that this was
a
restriction on the President's constitutional authority, the Court of Review
discussed the
scope of the President's inherent constitutional authority over foreign
intelligence
surveillance and whether that authority could be restricted or enhanced by
statute. In so
doing, the Court of Review recognized that the U.S. Court of Appeals for the
Fourth
Circuit, "as did all the other courts to have decided the issue, held that the
President did
have authority to conduct warrantless searches to obtain foreign
intelligence
information." CRS's suggestion that the Court of Review somehow overlooked that
it
was relying on pre-FISA cases, thereby undermining its analysis, is entirely
without
merit. Indeed, the Court of Review was acutely conscious that the decisions it
was
discussing involved pre-FISA surveillance, and the court noted that fact
repeatedly, see
310 F.3d at 725, 726, 742. But that fact does not undercut the decision: the
whole point
of the opinion was whether and to what extent FISA could modify the
standards
governing the President's inherent constitutional authority. On this point, the
Court of
Review was clear: it "took for granted" that the President had inherent
constitutional
authority to conduct foreign intelligence surveillance and "assuming that is
so, FISA
could not encroach on the President's constitutional power." Id. at 742
(emphasis
added). In other words, according to the Court of Review, although FISA
could
supplement the President's power to conduct foreign intelligence surveillance,
it could
not take away that power, which is vested in him by Article II of the
Constitution.
Moreover, as your question correctly observes, no court since the passage of
FISA
has held to the contrary. For these reasons, the President was entitled to rely
on the
definitive pronouncement of the specialized court that Congress created to
address
precisely these matters.
2. In holding that the President has inherent authority to conduct
warrantless
surveillance, did any of the cases conclude this inherent authority did
not
arise from the Constitution?
Each of the cases cited in the paper of January 19, 2006
expressly grounded the
President's authority to conduct warrantless surveillance in the Constitution.
See United
States v. United States District Court ("Keith"), 407 U.S. 297, 308 (1972)
(when
discussing the "constitutional powers of the President," reserving any
"judgment on the
scope of the President's surveillance power with respect to the activities of
foreign
powers within or without this country"); United States v. Truong Dinh Hung, 629
F.2d
908, 913-14 (4th Cir. 1980) (stating that the President's authority to conduct
warrantless
foreign intelligence surveillance arises from the fact that, "perhaps most
crucially, the
executive branch not only has superior expertise in the area of foreign
intelligence, it is
also constitutionally designated as the pre-eminent authority in foreign
affairs. The
President and his deputies are charged by the constitution with the conduct of
the foreign
policy of the United States") (emphasis added); United States v. Butenko, 494
F.2d 593,
601 (3d Cir. 1974) (en banc) (explaining that electronic surveillance is a
necessary aid to
the President's fulfilling his constitutional responsibilities as
"Commander-in-Chief of
the Armed Forces and to administer the nation's foreign affairs" and stating
that
congressional attempts to limit foreign electronic surveillance that "hamper
the
President's effective performance of his duties in the foreign affairs field
would raise
constitutional questions"); United States v. Brown, 484 F.2d 418 (5th Cir.
1973)
10 See 310 F.3d at 746. ("because of the President's constitutional duty to act
for the
United States in the field offoreign relations, and his inherent power to
protect national
security in the context offoreign affairs, . . . the President may
constitutionally authorize
warrantless wiretaps for the purpose of gathering foreign intelligence").
3. Is there legal authority to support the proposition drawn from the
FISA
Court of Review's decision in In re Sealed Case,10 that the
President
continues to have the power to authorize warrantless electronic
surveillance
to gather foreign intelligence outside the FISA framework?
The NSA intelligence surveillance activities confirmed by the President
involve
targeting for interception by the NSA of communications where one party is
outside the
United States and there is probable cause ("reasonable grounds") to believe
that at least
one party to the communication is a member or agent of al Qaeda or an
affiliated terrorist
organization (hereinafter, the "Terrorist Surveillance Program" or the
"Program"). As set
forth below, the Terrorist Surveillance Program is consistent with FISA, and we
need not
consider whether the President may "gather foreign intelligence outside the
FISA
framework" to conclude that the Program is lawful.
The Supreme Court has explained that the Authorization for the Use of
Military
Force of September 18, 2001 (hereinafter "Force Resolution") must be understood
to
have authorized "fundamental and accepted" incidents of waging war. Hamdi
v.
Rumsfeld, 542 U.S. 507, 518 (2004) (plurality opinion); see id. at 587 (Thomas,
J.,
dissenting). Consistent with this traditional understanding, other Presidents,
including
Woodrow Wilson and Franklin Roosevelt, have interpreted general force
authorization
resolutions to permit warrantless surveillance to intercept suspected
enemy
communications. Cf. Curtis A. Bradley & Jack L. Goldsmith,
Congressional
Authorization and the War on Terrorism, 118 Harv. L. Rev. 2048, 2091
(2005)
(explaining that, with the Force Resolution, "Congress intended to authorize
the President
to take at least those actions permitted by the laws of war"). The Force
Resolution thus
authorizes the President to conduct the Terrorist Surveillance Program against
al Qaeda
and affiliated terrorist organizations. FISA itself contemplates that a later
enactment,
such as the Force Resolution, could authorize electronic surveillance because
it provides
that electronic surveillance is not prohibited if it is "authorized by
statute." 50 U.S.C.
§ 1809(a).
In addition, substantial authority indicates that the President has
inherent
constitutional authority over the gathering of foreign intelligence--authority
that
Congress may not circumscribe. The Foreign Intelligence Surveillance Court of
Review
suggested that, even after FISA, the President possesses inherent
constitutional authority
that FISA could not limit. In re Sealed Case, 310 F.3d 717, 742 (2002). As the
court
stated: "all the other courts to have decided the issue [have] held that the
President did
have inherent authority to conduct warrantless searches to obtain foreign
intelligence
information. . . . We take for granted that the President does have that
authority and,
assuming that is so, FISA could not encroach on the President's constitutional
power."
Id. This specialized court that Congress created for the very purpose of
hearing appeals
from the FISA court is not the only court to suggest that the President
maintains some
constitutional authority to conduct foreign intelligence surveillance that may
not be
limited by Congress. The Third Circuit explained that the gathering of
foreign
intelligence is essential to fulfilling the President's constitutional
responsibilities as
"Commander-in-Chief of the Armed Forces and to administer the nation's
foreign
affairs." United States v. Butenko, 494 F.2d 593, 601 (1974) (en banc).
Congressionally
imposed limitations on that power may so "hamper . . . the President's
effective
performance of his duties in the foreign affairs field [to] raise[]
constitutional questions."
Id. For that reason, the court interpreted a statute that preceded FISA as not
limiting the
President's constitutional authority to conduct foreign intelligence
surveillance. Id.
These considerations are particularly pressing in the context in which the
Terrorist
Surveillance Program operates; for, in a time of congressionally authorized
armed
conflict, the President's constitutional power is at its apex.
4. In the Sealed Case the Court of Review states, in part, "Even
without
taking into account the President's inherent constitutional authority to
conduct warrantless foreign intelligence surveillance. . .."11 The
January 5,
2006 CRS memorandum asserts that one approach to interpreting this and
other Court of Review statements would be to interpret them "as referring
to the President's inherent authority to conduct such surveillances
outside
the scope of 'electronic surveillance' under FISA. In essence, the
court's
statements would then be seen as a reference to presidential authority
over
those areas of NSA activities which were intentionally excluded from FISA
when it was enacted. Alternatively, it might be argued that the court's
statements may refer to continuing exercise of inherent presidential
authority within the FISA structure, which the Court of Review found to
be
constitutional."12 Does the President adhere to either of these
approaches to
support the program?
The Terrorist Surveillance Program does not rely on either of those rationales.
As
described above, the Foreign Intelligence Court of Review analyzed whether and
to what
extent Congress could augment the President's inherent constitutional authority
to
conduct foreign intelligence surveillance. By stating that "FISA could not
encroach on
the President's constitutional power," the Court of Review made clear its
opinion that
there are certain foreign intelligence surveillance matters for which Congress
cannot limit
the President's authority. Although the Court of Review did not describe the
precise
contours of the President's constitutional authority to conduct foreign
intelligence
surveillance, see In re Sealed Case, 310 F.3d 717, 742 (Foreign Int. Surv. Ct.
Rev. 2002),
the President's authority is at its zenith with respect to the circumstances of
the Terrorist
Surveillance Program. The President has ordered foreign intelligence
surveillance of the
declared enemy of the United States in a time of a congressionally authorized
armed
conflict. Because the Force Resolution authorizes the limited Terrorist
Surveillance
Program, we need not demarcate the limits of the President's constitutional
authority.
5. Some have questioned whether President Carter's signature on FISA
in
1978, together with his signing statement, was an explicit renunciation of
any
claim to inherent Executive authority under Article II of the Constitution
to
conduct warrantless surveillance.
a. Does Congress have the authority to renounce any inherent presidential
authority?
b. Is there any case law that supports or proscribes Congress' ability to
renounce inherent presidential authority?
The Constitution is the supreme law of the land, and any statutes
inconsistent with
the Constitution must yield. This basic principle of our system of government
means that
no President, merely by assenting to a piece of legislation, can diminish the
scope of the
President's constitutional power. See New York v. United States, 505 U.S. 144,
182
(1992) ("The constitutional authority of Congress cannot be expanded by the
'consent' of
the governmental unit whose domain is thereby narrowed, whether that unit is
the
Executive Branch or the States.") (collecting authorities). Nor do we believe
that
President Carter attempted to do so by signing FISA. President Carter's
Attorney
General testified at a hearing on FISA as follows: "[T]he current bill
recognizes no
inherent power of the President to conduct electronic surveillance, and I want
to
interpolate here to say that this does not take away the power of the President
under the
Constitution. It simply, in my view, is not necessary to state that power, so
there is no
reason to reiterate or iterate it as the case may be. It is in the
Constitution, whatever it is.
The President, by offering this legislation, is agreeing to follow the
statutory procedure."
Hearing Before the Subcomm. on Legislation of the House Permanent Select Comm.
on
Intelligence (Jan. 10, 1978) (emphasis added).
Just as one President may not, through signing legislation, eliminate the
Executive
Branch's inherent constitutional powers, Congress may not "renounce
inherent
presidential authority." The Constitution grants the President inherent power
to protect
the Nation from foreign attack, see, e.g., The Prize Cases, 67 U.S. (2 Black)
635, 668
(1863), and Congress may not "impede the President's ability to perform
his
constitutional duty," Morrison v. Olson, 487 U.S. 654, 691 (1988); see also id.
at 696-97.
Congress certainly may obviate the need to determine the precise contours of
the
President's inviolable constitutional authority, see Youngstown Sheet &
Tube Co. v.
Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring) ("When the President
acts
pursuant to an express or implied authorization of Congress, his authority is
at is
maximum, for it includes all that he possesses in his own right plus all that
Congress can
delegate.") (emphasis added). And that is the case here, as Congress authorized
the
President to undertake the fundamental and accepted incidents of war, including
signals
intelligence targeted at the enemy, through the Force Resolution.
6. Has any other President held that the President has this inherent
authority?
If so, has any other President used such an authority prior to and after
the
enactment of FISA?
Presidents long have relied on their inherent constitutional
authority to conduct
foreign intelligence surveillance. President Wilson, for example, relying only
on his
constitutional powers and a congressional authorization for use of force,
authorized the
interception of all telephone, telegraph, and cable communications into and out
of the
United States during World War I. See Exec. Order 2604 (Apr. 28, 1917).
Similarly,
President Roosevelt authorized the interception of "all . . .
telecommunications traffic in
and out of the United States." The Clinton Administration also relied on
inherent
constitutional authority in authorizing warrantless physical searches to
collect foreign
intelligence information. Jamie Gorelick, Deputy Attorney General in the
Clinton
Administration, testified before Congress in 1994, when Congress was
considering a
since-enacted proposal to amend FISA to permit court authorization of physical
searches
for foreign intelligence purposes, that the President has inherent authority
under the
Constitution to conduct foreign intelligence searches in the United States
without a
warrant, and that such warrantless searches are permissible under the Fourth
Amendment.
See Amending the Foreign Intelligence Surveillance Act: Hearings Before the
House
Permanent Select Comm. on Intelligence, 103d Cong. 2d Sess. 61, 64 (1994)
(statement
of Deputy Attorney General Jamie S. Gorelick). See also In re Sealed Case, 310
F.3d at
745-46. The history of Presidents' employing signals intelligence pursuant to
their
constitutional authority is detailed in the Justice Department's paper of
January 19, 2006.
See Legal Authorities Supporting the Activities of the National Security
Agency
Described by the President at 14-18 (Jan. 19, 2006).
7. The Department of Justice has stated that Congress has confirmed
and
supplemented the President's inherent authority by statute through the
Authorization for the Use of Military Force (AUMF).13 Please
explain
specifically how the AUMF has "confirmed and supplemented"14
the
President's inherent authority with respect to warrantless
surveillance.
The Force Resolution "confirm[s]" the President's inherent authority in this
area
by expressly recognizing that the September 11th attacks "render it both
necessary and
appropriate that the United States exercise its rights to self-defense and to
protect United
States citizens both at home and abroad." Force Resolution pmbl. The Resolution
states
that the attacks "continue to pose an unusual and extraordinary threat to the
national
security." Id. Finally, Congress explicitly affirmed that "the President has
authority
under the Constitution to take action to deter and prevent actions of
international
terrorism against the United States."
The Force Resolution "supplement[s]" the President's inherent authority
by
authorizing the President to "use all necessary and appropriate force against
those
nations, organizations, or persons he determines planned, authorized,
committed, or
aided" the terrorist attacks of September 11th in order to prevent "any future
acts of
international terrorism against the United States." The Force Resolution is
framed in
broad and powerful terms, and a majority of the Justices of the Supreme Court
concluded
in Hamdi v. Rumsfeld that the Force Resolution authorized the "fundamental
and
accepted" incidents of the use of military force. Cf. Curtis A. Bradley &
Jack L.
Goldsmith, Congressional Authorization and the War on Terrorism, 118 Harv. L.
Rev.
2048, 2091 (2005) (explaining that, with the Force Resolution, "Congress
intended to
authorize the President to take at least those actions permitted by the laws of
war"). As
set forth at greater length in the Department's January 19th paper, signals
intelligence is a
fundamental and accepted incident of the use of force during wartime. Moreover,
when it
enacted the Force Resolution, Congress was legislating in light of the fact
that past
Presidents (including Woodrow Wilson and Franklin Roosevelt, as noted above)
had
interpreted similarly broad resolutions to authorize much wider warrantless
interception
of international communications.
8. On December 19, 2005, USA Today reported that the President's
executive
order that authorized the surveillance program represented a "dramatic
shift from restrictions on domestic spying imposed after exposure in the
mid-1970s of NSA operations against U.S.
citizens."15
a. Is this claim substantiated?
b. Have previous Administrations, at the very least, recognized the
President's Constitutional duty to authorize similar programs related to
national security?
c. The same article asserted that the Communications Act of 1934 as well as
the U.S. Criminal Code have provisions that limit or ban the interception
of electronic communications. How do these laws effect the President's
prerogative to authorize the NSA program?
The Terrorist Surveillance Program is narrowly tailored to target only
communications where one party is outside the United States and there are
reasonable
grounds to believe that at least one party is a member or agent of al Qaeda or
an affiliated
terrorist organization. The "reasonable grounds to believe" standard is a
"probable
cause" standard of proof, see Maryland v. Pringle, 540 U.S. 366, 371 (2003)
("We have
stated . . . that '[t]he substance of all the definitions of probable cause is
a reasonable
ground for belief of guilt.'"), and "probable cause" is the standard employed
under FISA
for approving applications for electronic surveillance.
As explained in the Department of Justice's paper of January 19, 2006,
the
prohibitions on unauthorized surveillance set forth in FISA and chapter 119 of
title 18,
United States Code, must be read in light of section 109(a) of FISA, which
explicitly
contemplates that statutes can authorize intelligence surveillance outside the
procedures
set forth in FISA. See Legal Authorities Supporting the Activities of the
National
Security Agency Described by the President at 18-21.
Section 605 of the Communications Act of 1934 prohibits "divulg[ing] or
publish[ing]" the content or existence of interstate or foreign communications
by wire or
radio. See 47 U.S.C. § 605(a). This has long been viewed as inapplicable
to the
government's collection of foreign intelligence. President Roosevelt determined
that
those provisions do not prohibit federal government officials from gathering
foreign
intelligence for use within the Executive Branch, because the gathering of
such
information by the government does not constitute "divulg[ing] or publish[ing]"
the
communication. On the basis of this legal determination, President Roosevelt
ordered the
interception of "all telecommunications traffic" into or out of the United
States.
Memorandum from President Roosevelt (May 21, 1940), reproduced in United States
v.
United States District Court, 444 F.2d 651, 670 (6th Cir. 1971) (Appendix
A).
9. In a January 6, 2006 letter from Professor Laurence Tribe to
Congressman
Conyers, the Professor states that the National Security Agency program
"in
question, far from being authorized by Congress, flies in the fact of an
explicit congressional prohibition and is therefore unconstitutional
without
regard to the Fourth Amendment. . . The inevitable conclusion is that the
AUMF did not implicitly authorize what the FISA expressly prohibited. It
follows that the presidential program of surveillance at issue here is a
separation of powers as grave an abuse of executive authority as I can
recall
ever having studied."16 Do you agree that FISA "expressly prohibits"
the
specific activities authorized under this program?
We disagree with Professor Tribe's assertion that the Terrorist
Surveillance
Program runs into an "express congressional prohibition." Section 109 of FISA
itself
contemplates that intelligence surveillance can be authorized by statutes other
than FISA.
50 U.S.C. § 1809(a). Thus, FISA does not define the universe of
permissible intelligence
surveillance, and it does not close the door on subsequent congressional
authorizations of
electronic surveillance. Indeed, it is doubtful that one Congress could bind
future
Congresses in such a way. Instead, FISA reflects the understanding that
later-enacted
statutes could authorize electronic surveillance as circumstances
warrant.
The Force Resolution is precisely such a statute. In the Force
Resolution,
Congress authorized the President to use "all necessary and appropriate force
against
those nations, organizations, or persons" that "[the President] determines" to
be
responsible for the September 11th attacks. In this context, five Justices of
the Supreme
Court identified the proper mode for analyzing which powers accompany the
Force
Resolution. They concluded that the Force Resolution satisfied a statute nearly
identical
to section 109 of FISA, 18 U.S.C. § 4001(a), which prohibits the detention
of United
States citizens "except pursuant to an Act of Congress." See Hamdi v. Rumsfeld,
542
U.S. 507, 519 (plurality opinion); id. at 587 (Thomas, J., dissenting). Just as
it satisfies
section 4001, the Force Resolution satisfies FISA's provisions for
statutory
authorizations for intelligence surveillance. For that reason, it is simply
incorrect to
suggest that the Terrorist Surveillance Program "flies in the face of an
explicit
congressional prohibition." In his letter, Professor Tribe did not confront the
wholly
analogous effect of the Force Resolution on 18 U.S.C. § 4001, prohibiting
detention.
10. If FISA were read to prohibit the President from taking steps he
deemed
necessary to protect the United States during wartime, would the
constitutionality of that Act be called into question? Please explain in
detail
what constitutional problems or questions may arise if it were determined
that FISA, separately or in conjunction with the AUMF, prohibits the
President from authorizing the terrorist surveillance program.
As explained above, the Force Resolution authorizes the use of signals
intelligence against al Qaeda and affiliated terrorist organizations. But even
if there were
some ambiguity with respect to whether FISA can be read, together with the
Force
Resolution, to allow the Terrorist Surveillance Program, the President's
inherent powers
as Commander in Chief and as chief representative of the Nation in foreign
affairs to
undertake signals intelligence against the declared enemy of the United States
during an
armed conflict would require resolving such ambiguity in favor of the
President's
authority. Under the canon of constitutional avoidance, statutes are
interpreted to avoid
serious constitutional questions where "fairly possible." INS v. St. Cyr, 533
U.S. 289,
299-300 (2001) (citations omitted); Ashwander v. TVA, 297 U.S. 288, 345-48
(1936)
(Brandeis, J., concurring). The canon of constitutional avoidance has
particular
importance in the realm of national security, where the President's
constitutional
authority is at its highest. See Department of the Navy v. Egan, 484 U.S. 518,
527, 530
(1988); William N. Eskridge, Jr., Dynamic Statutory Interpretation 325
(1994)
(describing "[s]uper-strong rule against congressional interference with the
President's
authority over foreign affairs and national security"). Thus, there is no need
to confront
the question whether FISA would be unconstitutional if, contrary to the
correct
interpretation of the Force Resolution and FISA, the Terrorist Surveillance
Program were
somehow statutorily prohibited.
The constitutional problems that would be raised by a contrary interpretation
of
the statute are serious. Article II of the Constitution vests in the President
all executive
power of the United States, including the power to act as Commander in Chief,
see U.S.
Const. art. II, § 2, and authority over the conduct of the Nation's
foreign affairs. As the
Supreme Court has explained, "[t]he President is the sole organ of the nation
in its
external relations, and its sole representative with foreign nations." United
States v.
Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936) (internal quotation marks
and
citations omitted). In this way, the Constitution grants the President inherent
power to
protect the Nation from foreign attack, see, e.g., The Prize Cases, 67 U.S. (2
Black) 635,
668 (1863), and to protect national security information, see, e.g., Department
of the
Navy v. Egan, 484 U.S. 518, 527 (1988).
Based on that constitutional authority, the Department of Justice, in
both
Democratic and Republican administrations, has recognized the President's
inherent
authority to authorize foreign intelligence surveillance. President Carter's
Attorney
General, Griffin Bell, testified at a hearing on FISA as follows: "[T]he
current bill
recognizes no inherent power of the President to conduct electronic
surveillance, and I
want to interpolate here to say that this does not take away the power of the
President
under the Constitution." Hearing Before the Subcomm. on Legislation of the
House
Permanent Select Comm. on Intelligence (Jan. 10, 1978) (emphasis added).
More
recently, the Foreign Intelligence Surveillance Court of Review recognized that
the
President has inherent constitutional authority to gather foreign intelligence
that cannot
be intruded upon by Congress. The court explained that all courts to have
addressed the
issue of the President's inherent authority have "held that the President did
have inherent
authority to conduct warrantless searches to obtain foreign intelligence
information." In
re Sealed Case, 310 F.3d 717, 742 (2002). On the basis of that unbroken line
of
precedent, the court "[took] for granted that the President does have that
authority," and
concluded that, assuming that is so, "FISA could not encroach on the
President's
constitutional power." Id. (emphasis added). It is important to remember that
virtually
every court that has concluded that the President has inherent authority to
conduct foreign
intelligence surveillance did so during a time of peace. During an armed
conflict, of
course, the President's constitutional power is at its apex, making a
hypothetical attempt
by Congress to interfere with the President's inherent authority all the
more
constitutionally troubling. Congress may not "impede the President's ability to
perform
his constitutional duty," Morrison v. Olson, 487 U.S. 654, 691 (1988); see also
id. at 696-
97, particularly not the President's most solemn constitutional
obligationâ€"the defense of
the Nation.
11. The January 5, 2006 CRS Memorandum quotes a December 22, 2005
letter
from the DOJ Office of Legislative Affairs that says, "But under
established
principles of statutory construction, the AUMF and FISA must be construed
in harmony to avoid any potential conflict between FISA and the
President's
Article II authority as Commander in Chief." The memorandum, however,
concludes, on this point, that "It is unclear how FISA and the AUMF are
seen to collide. Principles of statutory construction generally provide
guidance for interpreting Congress's intent with respect to a statute
where
the text is ambiguous or a plain reading leads to anomalous results; and
where possible, a statute that might be read in such a way as to violate
the
Constitution is to be construed to avoid the violation. However, such
principles are only to be applied where there is a genuine ambiguity or
conflict between two statutes, and where there is some possible reading
that
might avoid a conflict.. . ."17 A contrary view has been presented
by
constitutional scholar Robert Alt, that "if from some reason a court
finds
that there is a conflict between the AUMF and FISA, then standard rules
of
statutory interpretation suggest that the AUMF must control.
Specifically,
the AUMF contains a savings clause, making clear that the statute does
not
intend to impair the operation of the War Powers Resolution. See AUMF,
§
2(b)(2) (Nothing in this resolution supercedes any requirement of the War
Powers Resolution.). The canon of expressio unius est exclusio alterius
requires that Congress, having created an express exception for a statute
intended to limit Presidential power, must have excepted FISA if they
intended to exempt it from any conflict with the AUMF. They did not, and
so the AUMF must control if the statutes are seen as conflicting."18
(See
enclosure)
a. Which analysis is correct? Please explain why you agree or disagree with
these analyses.
b. Do FISA, the AUMF, and the NSA program conflict?
It is not the position of the Justice Department that FISA and the Force
Resolution
"collide." Indeed, the Force Resolution and FISA are perfectly consistent with
each
other. By expressly providing that other statutes may authorize electronic
surveillance,
FISA contemplates that statutes such as the Force Resolution could authorize
electronic
surveillanceâ€"outside the procedures of FISA. In this
respect, the Force Resolution is
precisely the type of limited, context-specific authorization that FISA
anticipates during
periods of armed conflict. Thus, interpreting the Force Resolution and FISA to
permit
the Terrorist Surveillance Program is not only "some possible reading," it is
the correct
reading.
The Force Resolution authorizes the use of intelligence surveillance as an
incident
of force directed against al Qaeda and affiliated terrorist organizations, and
FISA permits
such future authorizations by Congress as circumstances warrant. The canon
of
constitutional avoidance comes into play only to the extent that the proper
interpretation
of these statutes is not otherwise clear. It suggests that, insofar as there is
any ambiguity
whether FISA, read in light of the Force Resolution, authorizes the Terrorist
Surveillance
Program, that ambiguity must be resolved to allow the President to authorize
the Terrorist
Surveillance Programâ€"an early warning system critical to the
defense of the Nation.
Here, however, we do not believe that there is a "genuine ambiguity," because
the
authorization of the Program by these two statutes is clear.
Finally, we believe that Professor Alt's reasoning provides yet another reason
to
interpret the Force Resolution and FISA together to authorize the Terrorist
Surveillance
Program. To the extent that some have argued that FISA stands as a virtually
immovable
barrier that must be repealed or specifically amended, Professor Alt's analysis
goes some
way to establishing that such is indeed the effect of the Force Resolution. The
Force
Resolution expressly preserves a statute that purports to limit the President's
discretion in
a time of war. Under the expressio unius canon, the Force Resolution's
explicit
preservation of the War Powers Resolution suggests that other statutes that
would limit
the President's use of "necessary and appropriate force" would yield to the
Force
Resolution. In this way, to the extent that FISA actually limits the
President's ability to
employ signals intelligenceâ€"a fundamental incident of the
use of forceâ€"against the
declared enemy of the United States, the Force Resolution would vitiate
those
restrictions. That reading is consistent with the decision in Hamdi, where a
majority of
the Justices concluded that the Force Resolution satisfied a statutory
restriction on
detention (18 U.S.C. § 4001) that was nowhere mentioned in the Force
Resolution.
Professor Alt's reasoning provides still more justification for concluding that
the Force
Resolution would, if necessary, repeal FISA to the extent it prevents the
President from
making use of the fundamental and accepted incidents of the use of military
force in the
armed conflict against al Qaeda.
12. Please explain how the NSA terrorist surveillance program relates
to FISA.
In doing so, please explain how the program --" which operates outside
the
context of FISA --" is consistent with FISA, given that FISA --"
provides it
shall be the "exclusive means by which electronic surveillance, as defined
in
section 101 of [FISA], and the interception of domestic wire, oral, and
electronic communications may be conducted."19
Before answering this question, we note that the Department's
legal analysis
assumes, solely for purposes of that analysis, that the targeted interception
of
international communications authorized under the Terrorist Surveillance
Program would
constitute "electronic surveillance" as defined by FISA. As noted in our
January 19th
paper, we cannot confirm whether that is actually the case without disclosing
sensitive
classified information.
Section 2511(2)(f) of title 18 states that the "procedures in [chapter 119 of
title
18] and the Foreign Intelligence Surveillance Act of 1978 shall be the
exclusive means by
which electronic surveillance, as defined in section 101 of such Act, and the
interception
of domestic wire and oral communications may be conducted." But this provision
must
be read together with FISA, including section 109(a). Section 109(a)
expressly
contemplates that another "statute" can authorize electronic surveillance and
thereby
expressly incorporates such future enactments into the FISA framework. Section
109(a)
is a means within FISA, and thus reliance on the Force Resolution satisfies
section
2511(2)(f)'s admonition that FISA is the "exclusive means" for conducting
certain forms
of electronic surveillance. Reading FISA to permit electronic surveillance
authorized by
another statute makes particular sense because, as detailed at pages 22 and 23
of the
Department's January 19th paper, at the time of FISA's enactment, provisions of
law
besides FISA and chapter 119 of title 18 authorized the interception of
"electronic
surveillance" and there is no indication that FISA purported to outlaw that
practice. For
example, in 1978, use of a pen register or trap and trace device constituted
"electronic
surveillance" under FISA. While FISA authorized use of pen registers, chapter
119 of
title 18 did not. Thus, if FISA did not contemplate electronic surveillance
authorized
under another statute, the use of pen registers other than to collect foreign
intelligence
would have been illegal. That cannot have been the case, and no court has held
that pen
registers could not be authorized outside the foreign intelligence
context.
This reading of section 2511(2)(f) is also supported by its legislative
history,
which indicates an intent to prevent the President from engaging in
surveillance except as
authorized by Congress. Although section 2511(2)(f) mentions only FISA and
chapter
119 of title 18, the House Conference Report explains that section 2511(2)(f)
set forth all
then-existing statutory restrictions on electronic surveillance and cautioned
the President
not to engage in such surveillance outside of congressionally sanctioned
parameters. See
H.R. Conf. Rep. No. 95-1720, at 32, reprinted in 1978 U.S.C.C.A.N. 4048, 4064.
It was
not directed at restricting the manner in which Congress could subsequently
authorize
electronic surveillance.
13. Some are concerned that NSA's use of this authority erodes the
Department
of Justice's authority to conduct wiretaps under FISA. Do you agree with
this concern?
FISA remains an essential and invaluable tool for foreign
intelligence collection,
both in the armed conflict with al Qaeda and in other contexts. In contrast to
surveillance
conducted pursuant to the Force Resolution, FISA is not limited to the conflict
against al
Qaeda and affiliated terrorist organizations. In addition, FISA has procedures
that
facilitate the use of evidence in criminal prosecutions while, at the same
time, protecting
intelligence sources and methods. In this instance, the Force Resolution
provides the
President with another means for conducting intelligence surveillance against
al Qaeda
and related terrorist organizations.
14. Does the fact that Congress amended FISA in response to the
terrorists
attacks on September 11, 2001, "[bolster] the notion that FISA is intended
to
remain fully applicable," as asserted by the January 5, 2006 CRS
Memorandum?20
The amendments to FISA after the September 11th attacks are
fully consistent
with the Department's explanation of the legal authorities supporting the
Terrorist
Surveillance Program. It is important to emphasize that the Terrorist
Surveillance
Program is limited to communications where one party is outside the United
States and
there is probable cause ("reasonable grounds") to believe that at least one
party is a
member of al Qaeda or an affiliated terrorist organization--"the
organizations that the
President determined were responsible for the September 11th attacks. But
foreign
intelligence surveillance is also necessary to detect and prevent potential
attacks from
other, unrelated terrorist groups, as well as for a variety of purposes that
have nothing to
do with terrorism. These amendments to FISA enacted after September 11th were
crucial
to correct certain systemic problems in the FISA process that impaired its
effective
functioning across the board, not simply with respect to the armed conflict
against al
Qaeda.
Of particular importance were modifications that removed the "wall"
between
intelligence officers and criminal law enforcement officers. See In re Sealed
Case, 310
F.3d 717, 725-30 (Foreign. Int. Surv. Ct. Rev. 2002). This "wall" was
identified as
crippling the Government's use of foreign intelligence information well before
the
September 11th attacks and in contexts unrelated to terrorism. See, e.g., Final
Report of
the Attorney General's Review Team on the Handling of Las Alamos National
Laboratory Investigation 710, 729, 732 (May 2000); GAO, FBI Intelligence
Investigations: Coordination Within Justice on Counterintelligence Matters is
Limited
(GAO-01-780) 3, 31 (July 2001); see also The 9/11 Commission Report 78-81,
424
(2004). Although the existence of the "wall" undermined the fight against al
Qaeda, it
also impaired the Government's ability to conduct foreign intelligence
surveillance in
other critical contexts. Thus, the amendments to FISA made after the September
11th
attacks in no way undermine the conclusion that Congress authorized
electronic
surveillance for the particular conflict against al Qaeda through separate
legislation.
15. What is the rationale for authorizing a program to conduct
surveillance in a
manner that does not require prior judicial review by the FISA Court?
After September 11th, speed and agility were especially crucial
in fulfilling the
President's constitutional obligation of protecting the Nation from further
attacks. The
Terrorist Surveillance Program targets communications only where one party is
outside
the United States and there is probable cause to believe that at least one
party to the
communication is a member or agent of al Qaeda or an affiliated terrorist
organization.
FISA itself uses a "probable cause" standard. Among the advantages offered by
the
Terrorist Surveillance Program compared to FISA is who makes the probable
cause
determination and how many layers of review must occur before surveillance
begins.
Under the Terrorist Surveillance Program, professional intelligence officers,
who are
experts on al Qaeda and its tactics (including its use of communication
systems), with
appropriate and rigorous oversight, make the decisions about which
international
communications should be intercepted. Relying on the best available
intelligence, these
officers determine before intercepting any communications whether there is
probable
cause to believe that one of the parties to the communication is a member or
agent of al
Qaeda or an affiliated terrorist organization.
By contrast, pursuing "prior judicial review by the FISA court" requires
significantly more time. In order to obtain judicial review by the FISA court
before
conducting surveillance, the Government must assemble a voluminous application,
obtain
the approval of the Attorney General himself and senior administration national
security
officials, submit the materials to the court, and await its decision. Also,
because FISA
requires the Attorney General to "reasonably determine[]" that "the factual
basis for
issuance of" a FISA order exists at the time he approves an emergency
authorization, see
50 U.S.C. § 1805(f)(2), as a practical matter, it is necessary for NSA
intelligence officers,
NSA lawyers, Justice Department lawyers, and the Attorney General to review a
matter
before even emergency surveillance would begin. Great care must be exercised
in
reviewing requests for emergency surveillance because of the risks involved.
Among
other things, if the Attorney General authorizes emergency surveillance and the
FISA
court later declines to permit surveillance, there is a risk that the court
would disclose the
surveillance to U.S. persons whose communications were intercepted, see 50
U.S.C.
§ 1806(j), potentially compromising ongoing intelligence efforts. The
Terrorist
Surveillance Program allows experienced intelligence officials to begin
surveillance
quickly while still safeguarding the civil liberties of Americans.
16. Does the legislative history of FISA "reflect an intention that the
phrase
'authorized by statute' was a reference to chapter 119 of Title 18 of the
U.S.
Code (title III) and to FISA itself, rather than having a broader meaning,
in
which case a clear indication of Congress's intent to amend or repeal it
might be necessary before a court would interpret a later statute as
superceding it"?21 Do you agree with this assertion? Please
explain.
The legislative history reveals no such intention to limit the scope of
section
109(a) to one chapter in one part of the United States Code, even if such a
reference
buried in a committee report could be probative in light of the plain meaning
of
"authorized by statute." The legislative history focusing on chapter 119 of
title 18
discussed in the CRS report you cite is directed at section 109(b), which
provides an
affirmative defense to law enforcement and investigative officers who conduct
electronic
surveillance "pursuant to a search warrant or court order" of a court of
competent
jurisdiction. That legislative history has nothing to do with whether the
electronic
surveillance is otherwise authorized by statute. As the legislative history
makes clear,
there were certain forms of electronic surveillance that potentially were
prohibited by the
new FISA statute that would be permitted if a court issued a warrant or
order.
In any event, the assertion that in enacting FISA, Congress was attempting
to
limit itself--"to require subsequent Congresses to jump through the
formal hoop of
explicitly "amending or repealing" FISA before a statute could qualify under
section
109(a)--"is unsustainable.
17. Have past United States Presidents employed signals intelligence of
the kind
authorized by President Bush after 9/11 to protect the nation during
wartime? Please explain.
Presidents have intercepted enemy messages to protect the
Nation during a time
of war since the earliest days of the Republic. This rich history is detailed
at length in the
Justice Department's paper of January 19, 2006. See Legal Authorities
Supporting the
Activities of the National Security Agency Described by the President at 14-18.
In the
electronic age, Presidents Wilson authorized the interception of all cable,
telegraph, and
telephone communications into and out of the United States during World War I.
See
Exec. Order No. 2604 (Apr. 28, 1917). During World War II, President
Roosevelt
similarly ordered the interception of all "telecommunications traffic" into and
out of the
United States. See Memorandum for the Secretaries of War, Navy, State, and
Treasury,
the Postmaster General, and the Federal Communications Commission from Franklin
D.
Roosevelt (Dec. 8, 1941). The Terrorist Surveillance Program, by contrast, is
far more
targeted and directly fulfills the President's core constitutional obligation
to protect the
Nation from foreign attack. The Terrorist Surveillance Program targets for
interception
only those communications where one party is outside the United States and
there is
probable cause to believe that at least one party is a member or agent of al
Qaeda or an
affiliated terrorist organization.
18. Does the Administration's position rely, as asserted by the January
5, 2006
CRS Memorandum, on the assumptions that (1) "the power to conduct
electronic surveillance for intelligence proposes is an essential aspect
of
military force in the same way that the capture of enemy combatants on
the
battlefield is a necessary incident to the conduct of military operations,"
and
(2) the Administration considers "the battlefield' in the war on terrorism
to
extend beyond the area of traditional military operations to include U.S.
territory"? The CRS Memorandum continues that "[b]oth assumptions
have been the subject of debate."22 Do you agree that it is
debatable as to
whether the United States homeland is still a target of al
Qaeda?
Signals intelligence targeted at the declared enemy of the United States during
an
armed conflict is certainly a "fundamental and accepted incident of war." As
described
above, past Presidents have a long history of employing intelligence
surveillance against
the enemy. As detailed in the January 19th paper, the laws of war have long
recognized
the permissibility and necessity of conducting signals intelligence. In order
to attack the
enemy, it is imperative to ascertain the enemy's location and plans. In this
regard, it is
important to note that Congress charged the President not only with using "all
necessary
and appropriate force" against the enemy, but to "determine[]" who the enemy
is.
Fulfilling those demands requires effective intelligence.
The United States homeland is certainly still the target of al Qaeda. Indeed,
as
recently as December 7, 2005, Ayman al-Zawahiri stated that al Qaeda "is
spreading,
growing, and becoming stronger," and that al Qaeda is "waging a great historic
battle in
Iraq, Afghanistan, Palestine, and even in the Crusaders' own homes." Ayman
al-
Zawahiri, videotape released on Al-Jazeera television network (Dec. 7, 2005).
And
earlier this year, Osama bin Laden warned that al Qaeda was preparing another
attack on
our homeland. After noting the deadly bombings his organization had committed
on
London and Madrid, he said that
The delay in similar operations happening in America has not been
because of failure to break through your security measures. The
operations are under preparation and you will see them in your homes the
minute they are through (with preparations), with God's permission.
Quoted at http://www.breitbart.com/news/2006/01/19/D8F7SMRH5.html (Jan. 19,
2006)
(emphasis added). The threat from al Qaeda continues. Our enemies in this
armed
conflict have unfortunately made the United States a part of the battlefield.
The attacks
by al Qaeda on September 11th occurred in the United States and killed
approximately
3,000 Americans--"the highest single-day death toll from hostile foreign
attack in the
Nation's history. That al Qaeda has brought the battle to the United States
cannot be the
subject of reasonable debate.
CRS is also wrong to suggest that the Terrorist Surveillance Program
somehow
"extend[s the conflict] beyond the area of traditional military operations to
include U.S.
territory." A crucial part of any war has been protecting the United States
homeland
against attack by the enemy, even where the conventional warfare occurs abroad.
In
order to protect the Nation against domestic attack and sabotage by the enemy,
Presidents
Wilson and Roosevelt ordered the interception of all electronic communications
into and
out of the United States, notwithstanding the fact that--"with the
exception of the
Japanese attacks on Pearl Harbor and at Dutch Harbor, Alaska--"the bombs
were dropped
and the guns were fired in those wars in Europe, Asia, and Africa, not the
United States.
In short, engaging in intelligence surveillance of the enemy by
intercepting
communications into and out of the United States has been a "traditional
military
operation" even when the conventional war was being fought overseas. Indeed,
the
Supreme Court of the United States has held that the President has far more
extensive
powers on United States soil during a time of war. For example, the Court
upheld the
President's detention, trial by military commission, and execution of enemy
combatants,
caught attempting to commit acts of sabotage in the United States during World
War II.
See Ex parte Quirin, 317 U.S. 1 (1942).
19. Does the Administration interpret the AUMF's authorization to
be
contingent on the realization of "actual attacks"23 on U.S. soil, or
to be an
authorization for the President to act in advance of actual attacks to
prevent
their occurrence?
The plain text of the Force Resolution demonstrates that
Congress provided the
necessary authorization for the President to exercise his solemn constitutional
obligation
to prevent further attacks on the United States. The preamble of the Force
Resolution
states that the United States must "exercise its rights to self-defense and []
protect United
States citizens both at home and abroad." The Force Resolution recognizes
the
constitutional obligation of the President to protect the nation from attack:
"the President
has authority under the Constitution to take action to deter and prevent acts
of
international terrorism against the United States." Most clearly, the Force
Resolution
directly authorized the President to use "all necessary and appropriate force .
. . in order
to prevent any future acts of international terrorism against the United
States" by those
who perpetrated the September 11th attacks. Under the terms of the Force
Resolution,
not to mention common sense, the President need not wait until al Qaeda
executes
another "actual attack" on United States soil before taking protective
action.
20. The January 5, 2006 CRS memorandum states, "To the extent that
the
President's executive order authorizes surveillance of persons who are
suspected of merely supporting Al Qaeda or affiliated terrorist
organizations,
it may be seen as being overly broad."24 Does the President's
executive order provide that persons "merely supporting al Qaeda" are
covered? The CRS Memorandum appears to attempt to diminish the
concern of those supporting al Qaeda in the U.S. What could be the
consequences of the actions of a person "merely supporting al Qaeda?"
The Terrorist Surveillance Program authorizes the interception
of international
communications only where one party is outside the United States and there is
probable
cause to believe that at least one party is a member or agent of al Qaeda or an
affiliated
terrorist organization. The Program is not targeted at innocent bystanders.
Actions
sufficient to render someone a member or agent of al Qaeda or an affiliated
terrorist
organization cannot be dismissed lightly. Such actions could, in many
circumstances,
allow our enemy to launch additional attacks within the United States.
21. The January 5, 2006 CRS Memorandum states, "While the collection
of
intelligence is also an important facet of fighting a battle, it is not clear
that
the collection of intelligence constitutes a use of force."25 Do you
agree?
The suggestion that the collection of intelligence does not
constitute a use of force
for purposes of the Force Resolution is incorrect. As Justice O'Connor
explained in
Hamdi, fundamental and accepted incidents of military force constitute "an
exercise of
the 'necessary and appropriate force' Congress has authorized the President to
use."
Hamdi, 542 U.S. at 518 (plurality opinion). It has long been accepted that the
collection
of intelligence is an integral element of the use of force, just as one must
aim a rifle
before firing it. As Chief Justice John Marshall (who himself was an officer
during the
Revolutionary War) said of George Washington (a renowned master of
military
intelligence), "A general must be governed by his intelligence and must
regulate his
measures by his information. It is his duty to obtain correct information . . .
." Tatum v.
Laird, 444 F.2d 947, 952-53 (D.C. Cir. 1971) (internal quotation marks
omitted), rev'd
on other grounds, 408 U.S. 1 (1972).
In authorizing the use of force against al Qaeda, the Force Resolution
undoubtedly authorizes actions that constitute necessary preparation for the
use of force.
For example, it undoubtedly authorized the transportation of munitions and
medical
supplies and even battlefield intelligence officers to Afghanistan, although
the mere act
of transportation might not, under the CRS memorandum's theory, itself be "a
use of
force." Any other reading of the Force Resolution would lead to the absurd
result that the
President is authorized to attack the enemy in Afghanistan, but is not
authorized to
transport troops and materiel to Afghanistan to do the fighting. But the
authorization to
use force necessarily also entails the traditional incidents of the use of
force, such as
transporting fighting forces. By the same token, the Force Resolution does not
require
the military to fight "blind," but rather necessarily authorizes it to use the
fundamental
tool of intelligence so it knows where and against whom to apply force, and to
permit it
to anticipate attacks. That is what the Terrorist Surveillance Program seeks to
do. If
there were any doubt on that score, it would be resolved by the fact that the
Force
Authorization itself indicates that the President is to "determine[]" who was
responsible
for the September 11th attacks in order to take action to prevent future
attacks.
22. The January 5, 2006 CRS Memorandum explains that the "Hamdi
plurality
cited the Geneva Conventions and multiple authorities on the law of war
to
reach its conclusion that the capture of combatants is an essential part
of
warfare." The Memorandum then continues, "The Administration has not
pointed to any authority similar to those cited by the Hamdi plurality
[at
518-19] to support its proposition that signals intelligence is a
fundamental
aspect of combat."26 Do you agree with the assumption made by CRS
that
signals intelligence is a less than conventional aspect of the conflict
that
would lead to its categorization as non-essential?
No. In our paper of January 19, 2006, the Department of Justice
explained at
length that signals intelligence has long been recognized as integral to
wartime operations
and authorized by the laws of war. See Legal Authorities Supporting the
Activities of the
National Security Agency Described by the President at 14-17. To take but one
example,
Article 24 of the Hague Regulations of 1907 could not have been more clear:
"the
employment of measures necessary for obtaining information about the enemy and
the
country is considered permissible." See also Joseph R. Baker & Henry G.
Crocker, The
Laws of Land Warfare 197 (1919) ("Every belligerent has a right . . . to
discover the
signals of the enemy and . . . to seek to procure information regarding the
enemy through
the aid of secret agents.") (emphasis added). When combined with the long
history of
this Nation intercepting communications into and out of the United States
during time of
war, as well as Supreme Court decisions recognizing the President's authority
to conduct
intelligence activities, see, e.g., Totten v. United States, 92 U.S. 105, 106
(1876); Chicago
& S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948); United
States v.
Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936), the Executive Branch
has
demonstrated that signals intelligence--"like the detention of enemy
combatants approved
in Hamdi--"unquestionably is a fundamental and accepted incident of
war.
23. The January 5, 2006 CRS Memorandum states that "a presumption that
the
authorization [in the AUMF] extends to less conventional aspects of the
conflict could unravel the fabric of Hamdi, especially where measures are
taken within the United States."27 Do you agree with CRS'
presumption
and conclusion?
No. The plurality opinion in Hamdi stands for the proposition
that the Force
Resolution authorizes the President to use the fundamental and accepted
incidents of war
in prosecuting our armed conflict with al Qaeda. There, five Justices concluded
that the
Force Resolution authorized the detention of an enemy combatant within the
United
States. As demonstrated above, conducting signals intelligence against the
enemy is
precisely such a fundamental incident; it is not somehow a "less conventional
aspect of
conflict." Moreover, during previous wars, Presidents have used electronic
surveillance
of communications into and out of the United States on a scale far broader than
that of
the Terrorist Surveillance Program. To assert that the Force Resolution, or the
successful
prosecution of the armed conflict with al Qaeda, does not involve actions
within the
United States aimed at preventing further terrorist attacks in this country is
to ignore the
nature of this conflict. The United States was attacked on September 11th, not
by planes
launched from carriers hundreds of miles offshore, but by foreign agents who
had resided
within the United States for months or years. The Terrorist Surveillance
Program is
directed at undermining precisely that demonstrated capability of the
enemy.
In determining whether the Force Resolution should be read to authorize
action
within the United States, it is helpful to note that, in it, Congress expressly
recognized
that the September 11th attacks "render it both necessary and appropriate that
the United
States exercise its rights to self-defense and to protect United States
citizens both at home
and abroad." Force Resolution pmbl. (emphasis added). Congress affirmed that
"the
President has authority under the Constitution to take action to deter and
prevent actions
of international terrorism against the United States." Id. (emphasis added).
Accordingly,
Congress authorized the President "to use all necessary and appropriate force
against
those" associated with the attacks "in order to prevent future acts of
international
terrorism against the United States." Id. (emphasis added). In addition, when
Congress
passed the Force Resolution on September 14, 2001, the World Trade Center was
still
burning, combat air patrols could be heard over many American cities, and there
was
great concern that another attack within the United States would follow
shortly.
24. Professor Tribe argues, in his January 6, 2006 letter, contrary to
the
Department of Justice's assertion, that Hamdi supports the conclusion
that
the AUMF cannot provide the requisite authorization by pointing to the
fact
that "the Hamdi plurality agreed 'that indefinite detention for the purpose
of
interrogation' even conceded enemy combatants 'is not authorized' by the
AUMF. 124 S. Ct. at 2641 (emphasis added)."28 Do you agree
with
Professor Tribe's argument?
No. The Hamdi plurality's statement does not support that argument. Five
Justices (the plurality and Justice Thomas) rejected Hamdi's argument that,
because the
war on terror might continue indefinitely, the Force Resolution did not
authorize his
detention for the duration of the war. Hamdi v. Rumsfeld, 542 U.S. 507, 519-21
(2004)
(plurality opinion); id. at 592, 594 (Thomas, J., dissenting). The plurality
agreed that the
laws of war generally permit the detention of enemy combatants for purposes
of
preventing their return to battle until the end of hostilities. Id. at 520.
Although the
plurality acknowledged that the duration of the conflict with al Qaeda may in
the future
raise difficult questions about the propriety of extended detentions of
combatants to
prevent their return to hostilities, it expressly declined to confront those
questions
because "that is not the situation we face as of this date." Id. Instead,
Justice O'Connor's
opinion concluded that the United States may detain enemy combatants "for the
duration
of these hostilities." Id. at 521. The plurality recognized that the laws of
war and the
Force Resolution do not authorize "indefinite detention for the purpose of
interrogation,"
as opposed to prevent return to the conflict. Id. at 521 (emphasis added). The
plurality
based its conclusion on the lack of precedent supporting such conduct under the
"law of
war." See generally Curtis A. Bradley & Jack L. Goldsmith,
Congressional
Authorization and the War on Terrorism, 118 Harv. L. Rev. 2048, 2091
(2005)
(explaining that, with the Force Resolution, "Congress intended to authorize
the President
to take at least those actions permitted by the laws of war").
As noted in our January 19th paper, however, the law of war clearly supports
the
use of intelligence surveillance during wartime. See Legal Authorities
Supporting the
Activities of the National Security Agency Described by the President at 14;
see, e.g.,
Joseph R. Baker & Henry G. Crocker, The Laws of Land Warfare 197 (1919)
("Every
belligerent has a right . . . to discover the signals of the enemy and . . . to
seek to procure
information regarding the enemy through the aid of secret agents.") (emphasis
added).
25. What legal precedents, if any, support the Administration's
position that the
September 14, 2001 AUMF directive to the President to use "all necessary
and appropriate force"29 against al Qaeda included the ability to
authorize
NSA intercepts of al Qaeda-related communications into and out of the
United States?
The Administration's position is clearly supported by the
Supreme Court's
decision in Hamdi v. Rumsfeld, 542 U.S. 507 (2004). In Hamdi, five Justices
concluded
that the Force Resolution authorizes the President to use "fundamental and
accepted"
incidents of the use of military force in prosecuting the armed conflict
against the terrorist
organizations responsible for the September 11th attacks. Id. at 518-519; id.
at 587
(Thomas, J., dissenting). And, as explained at length in the Department's paper
of
January 19, 2006, the use of signals intelligence to ascertain the identity and
intentions of
the enemy has long been a fundamental and accepted incident of the use of
force. See
Legal Authorities Supporting the Activities of the National Security Agency
Described by
the President at 14-17. Intelligence surveillance is particularly important in
the present
conflict given the demonstrated willingness and ability of the enemy to blend
in with the
civilian population until it is ready to strike. It follows that the Force
Resolution, as
construed in Hamdi, authorizes the interception of communications where one
party is
outside the United States and there is probable cause to believe that at least
one party is a
member or agent of al Qaeda or an affiliated terrorist organization.
26. Putting aside the AUMF, can the Administration cite any legal
precedents
that support the President's authority to conduct searches for foreign
intelligence purposes in the absence of express statutory or judicial
authorization?
The President's inherent constitutional authority to conduct
warrantless searches
for foreign intelligence purposes has been repeatedly and consistently
recognized by the
courts. See In re Sealed Case, 310 F.3d 717, 742 (Foreign Int. Surv. Ct. Rev.
2002);
United States v. Truong Dinh Hung, 629 F.2d 908, 913-17 (4th Cir. 1980); United
States
v. Butenko, 494 F.2d 593, 602-06 (3d Cir. 1974) (en banc); United States v.
Brown, 484
F.2d 418, 425-27 (5th Cir. 1973); United States v. Bin Laden, 126 F. Supp.2d
264, 271-
77 (S.D.N.Y. 2000). Truong, Butenko, and Brown all addressed pre-FISA
surveillance
that was conducted in the absence of any congressional or judicial
authorization.
Similarly, in Bin Laden the district court upheld the constitutionality of
warrantless
foreign intelligence searches of a U.S. citizen overseas, including a physical
search of the
individual's home. Although In re Sealed Case involved surveillance conducted
pursuant
to FISA, the court there expressly took "for granted" that the President has
the inherent
authority to conduct foreign intelligence searches, adding that "FISA could not
encroach
on the President's constitutional power." 310 F.3d at 742. Finally, as noted
above, the
Deputy Attorney General in the Clinton Administration testified before Congress
that the
President has inherent authority under the Constitution to conduct foreign
intelligence
searches of the private homes of U.S. citizens in the United States without a
warrant, and
that such warrantless searches are permissible under the Fourth Amendment.
See
Amending the Foreign Intelligence Surveillance Act: Hearings Before the
House
Permanent Select Comm. on Intelligence,103d Cong. 2d Sess. 61, 64 (1994)
(statement
of Deputy Attorney General Jamie S. Gorelick).
27. On January 21, 2006, the National Journal purported that President
Bush is
"unilaterally interpret[ing] the law," constitutional or otherwise, in
the
"global war on terror."30 Is this a proper characterization of the
President's
actions in authorizing the NSA program? What is the President's role in
interpreting law?
The President is the Chief Executive of the United States, charged by the
Constitution to "take Care that the Laws be faithfully executed." U.S. Const.
art. II, § 3.
In addition, the President takes an oath to "preserve, protect and defend the
Constitution
of the United States." Id. art. II, § 1. In order to execute the laws and
defend the
Constitution, the President must be able to interpret them. The interpretation
of law, both
statutory and constitutional, is therefore an indispensable and well
established
presidential function. Cf. Bowsher v. Synar, 478 U.S. 714, 733 (1986)
("Interpreting a
law enacted by Congress to implement the legislative mandate is the very
essence of
'execution' of the law."). In performing that role, the President is guided by
relevant
judicial precedent, and informs Congress about Executive Branch interpretations
of laws
through the oversight process. The President's power to interpret the laws is
particularly
important when he is engaged in a task--"such as the direction of the
operations of an
armed conflict--"that falls within the special and unique competence of
the Executive
Branch. The President's role in interpreting the laws is not, therefore, a
"unilateral[]"
one, but respects the roles of the other branches of government.
The Terrorist Surveillance Program is in keeping with those well
established
principles. It reflects authoritative judicial interpretations of the
President's
constitutional authority to conduct intelligence surveillance, as well as
interpretations of
the Force Resolution and FISA. In addition, the Administration repeatedly has
briefed
the leadership of the oversight committees about the Program.
28. On January 20, 2006, Senator Patrick Leahy introduced a
resolution31 and
stated that he is "setting the record straight that Congress did not
authorize
President Bush's illegal spying program when it passed a 2001 resolution
governing the use of military force in the war on terror."32 Please
explain
the Administration's position of what the resolution governing the use of
military force permits the President to do? Does it impose specific
restrictions on the President?
The text of the Force Resolution clearly confers significant
power on the
President; it authorizes him to "use all necessary and appropriate force
against those
nations, organizations, or persons he determines planned, authorized,
committed, or aided
the terrorist attacks . . . in order to prevent any future acts of
international terrorism
against the United States by such nations, organizations or persons." (Emphasis
added.)
A majority of the Supreme Court has concluded that that language authorizes use
of
"fundamental and accepted" incidents of war. Hamdi, 542 U.S. at 518
(plurality
opinion); id. at 587 (Thomas, J., dissenting). Hamdi indicates that actions
that, by
historical practice and under the laws of war, are fundamental and accepted
incidents of
war are encompassed within the "force" that Congress has authorized the
President to
use. Cf. Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization
and the
War on Terrorism, 118 Harv. L. Rev. 2048, 2091 (2005) (explaining that, with
the Force
Resolution, "Congress intended to authorize the President to take at least
those actions
permitted by the laws of war"). Although the Force Resolution does not purport
to
impose specific restrictions on the President's authority, the scope of the
Force
Resolution is not unlimited. For example, it authorizes the use of force only
against those
nations, organizations, or persons that the President determines planned,
authorized,
committed, or aided the September 11th attacks, as well as those that harbored
the guilty
parties. Whatever the outer limits of the authority encompassed by the Force
Resolution,
however, it is clear that the Terrorist Surveillance Program--"which
authorizes
interception only of those communications in which one party is outside the
United States
and for which there is probable cause to believe that at least one party is a
member or
agent of al Qaeda or an affiliated terrorist organization--"fits
comfortably within its terms.
29. Does the lack of specific language in the AUMF referencing
electronic
surveillance undermine the Administration's contention that the AUMF
provides the statutory authority for the program to be authorized by the
President?
No. In Hamdi, five Justices of the Supreme Court concluded that
the Force
Resolution authorized the detention of U.S. citizens captured on the
battlefield in
Afghanistan, despite the fact that the resolution does not expressly mention
detention. In
reaching that conclusion, the plurality observed that "it is of no moment that
the Force
Resolution does not use specific language of detention." 542 U.S. at 519.
Instead, what
mattered was the fact that "detention to prevent a combatant's return to the
battlefield is a
fundamental incident of waging war." Id. So it is with signals intelligence as
well. In
authorizing the President to use "all necessary and appropriate force" against
the parties
responsible for the September 11th attacks--"particularly because
Congress indicated that
it was for the President to "determine[]" who was responsible for the
attacks--"Congress
necessarily authorized him to use the means necessary to determine the
identity, location,
and strength of the enemy. Other Presidents, including Woodrow Wilson and
Franklin
Roosevelt, have interpreted general force authorization resolutions that did
not
specifically address surveillance to permit warrantless surveillance to
intercept suspected
enemy communications. The language of the Force Resolution must be read against
this
historical backdrop. Because signals intelligence aimed at intercepting
enemy
communications has long been recognized as a fundamental incident of waging
war, the
Force Resolution authorizes that activity regardless of whether the text of the
resolution
uses the specific language of surveillance.
Review Process
30. On December 17, 2005, the President stated that
"[t]he authorization [he]
gave the National Security Agency after September the 11th helped address
that problem in a way that is fully consistent with [his] constitutional
responsibilities and authorities." He stated that "the activities [he]
authorized are reviewed approximately every 45 days. Each review is based
on a fresh intelligence assessment of terrorist threats to the continuity of
our
government and the threat of catastrophic damage to our homeland. During
each assessment, previous activities under the authorization are
reviewed.
The review includes approval by our nation's top legal officials,
including
the Attorney General and the Counsel to the President."33 This
appears to
explain the ongoing review of the program for compliance.
a. Please explain how the proposal for the program was reviewed before it
was authorized and initiated.
b. Who was included in this review prior to the program going into effect?
c. What was the time line of the discussions that took place?
d. When was the program authorized?
e. Was the program implemented in any capacity before receiving legal
approval?
The President sought and received the advice of lawyers in the Department
of
Justice and elsewhere before the Program was authorized and implemented.
The
Program was first authorized and implemented in October 2001.
31. With regard to the ongoing review process of the NSA's activities
that
includes thorough review by the Justice Department and NSA's top legal
officials, including NSA's general counsel and inspector general, please
explain this review process, what each review constitutes, and how
reviews
were conducted when new individuals assumed positions previously held by
others who already had been consulted. What is the process for
reauthorizing the program?
General Hayden has stated that the Terrorist Surveillance
Program is "overseen
by the most intense oversight regime in the history of the National Security
Agency," see
Remarks by General Michael V. Hayden to the National Press Club, available
at
http://www.dni.gov/release_letter_012306.html, and is subject to extensive
review in
other departments as well. The oversight program includes review by lawyers at
the
Department of Justice and by the NSA's Office of General Counsel and Office
of
Inspector General. In addition, with the participation of the Office of the
Director of
National Intelligence and the Department of Justice, the Program is reviewed
every 45
days and the President decides whether to reauthorize it. This review includes
an
evaluation of the Terrorist Surveillance Program's effectiveness, a thorough
assessment
of the current threat to the United States posed by al Qaeda, and assurances
that
safeguards continue to protect civil liberties.
32. To what extent were FISA judges informed of the program? Did
FISA
judges who were informed about the program object to it? In what manner
were objections raised? How did the Administration respond to the
objections, if they were raised? If a Member had problems with the
program, what were they legally permitted to do?
Because communications with and the proceedings of the Foreign
Intelligence
Surveillance Court are classified and confidential, we cannot divulge the
content of any
discussions with the Foreign Intelligence Surveillance Court. We assure you,
however,
that the Department keeps the Foreign Intelligence Surveillance Court fully
informed
regarding information that is relevant to the FISA process.
33. Did any of the individuals involved in the pre-program review express
concern or refuse to sign-off on the program?
a. On January 9, 2006, Newsweek published a story on the development of
the program. The article claims that "On one day in the spring of 2004,
White House chief of staff Andy Card and the then White House Counsel
Alberto Gonzales made a bedside visit to John Ashcroft, attorney general
at the time, who was stricken with a rare and painful pancreatic disease,
to try--"without success--"to get him a reverse his deputy, Acting Attorney
General James Comey, who was balking at the warrantlesseavesdropping."34
Is this accurate?
b. On January 17, 2006, the New York Times reported that FBI officials
repeatedly complained about the NSA "eavesdropping program" and
believed that it was intruding upon the rights of everyday law-abiding
U.S. citizens.35 Are there documented complaints by FBI officials
challenging the legality of this program at the time of its inception or
throughout its activity?
c. The Times article claimed that Director Mueller also raised concerns
about the legal rationale of the NSA program. Is this claim accurate and,
if so, were Director Mueller's concerns addressed to his satisfaction?
It would be inappropriate for us to disclose any confidential and
privileged
internal deliberations of the Executive Branch.
34. The President in his December 17, 2005 radio address, also pointed out
that
the leadership and the Intelligence Committee chairs and ranking members
"have been briefed more than a dozen times on this authorization and the
activities conducted under it."36 Please explain which Members of
Congress
were consulted, whether any expressed concern, and how those concerns
were addressed. In addition, please explain how any consultations were
conducted when new individuals assumed positions previously held by
others who already had been consulted.
The Administration provided appropriate briefings about the Terrorist
Surveillance Program to the Chairs and Ranking Members of the House and
Senate
Intelligence Committees and to leaders of both parties in the House and Senate.
When a
new Member of Congress assumed one of those positions, he or she then was given
a
similar briefing. As for whether any Members of Congress expressed concerns,
the
Attorney General testified before the Senate that, to his knowledge, of those
Members of
Congress who were briefed, "no one has asserted the program should be
stopped."
35. Please explain what efforts the Administration has made to keep
Congress
informed about the terrorist surveillance program and what, if any,
efforts
the President plans to undertake to ensure the Congress is fully informed
about the program.
The Administration has observed and continues to observe
appropriate
arrangements. The arrangements have involved the leadership of the two Houses
and
their respective Intelligence Committees. In addition, the Administration has
already
briefed the new subcommittee of the Senate Select Committee on Intelligence
created to
oversee the Terrorist Surveillance Program and is making similar arrangements
with
respect to the House Permanent Select Committee on Intelligence.
36. Please explain why the Administration is only informing the
Congress as a
whole of the scope and nature of this program at the present
time.
The briefings of the leadership of both Houses and of the Intelligence
Committees
were entirely consistent with governing law when dealing with exceptionally
sensitive
intelligence matters. The National Security Act of 1947 contemplates that
the
Intelligence Committees of both Houses will be appropriately notified of
intelligence
programs, and the Act specifically contemplates more limited disclosure in the
case of
exceptionally sensitive matters. Title 50 of the U.S. Code provides that the
Director of
National Intelligence and the heads of all departments, agencies, and other
entities of the
Government involved in intelligence activities shall keep the Intelligence
Committees
fully and currently informed of intelligence activities "[t]o the extent
consistent with due
regard for the protection from unauthorized disclosure of classified
information relating
to sensitive intelligence sources and methods or other exceptionally sensitive
matters."
50 U.S.C. §§ 413a(a), 413b(b). It has long been the practice of both
Democratic and
Republican administrations to inform the Chair and Ranking Members of the
Intelligence
Committees about exceptionally sensitive matters. The Congressional Research
Service
has acknowledged that the leaders of the Intelligence Committees "over time
have
accepted the executive branch practice of limiting notification of intelligence
activities in
some cases to either the Gang of Eight, or to the chairmen and ranking members
of the
intelligence committees." See Alfred Cumming, Statutory Procedures Under
Which
Congress is to be Informed of U.S. Intelligence Activities, Including Covert
Actions,
Congressional Research Service Memorandum at 10 (Jan. 18, 2006). In view of
the
extraordinarily sensitive nature of this intelligence activity, broader
dissemination of the
operational details of the Program risked compromising it.
37. On December 20, 2005, the St. Petersburg Times claimed that former
Senator
Bob Graham, who chaired the Senate Intelligence Committee at the time the
Committee was briefed about the program by Vice President Cheney, said,
"We were not told that there was not going to be a warrant secured and
were not told that this was going to change the standard for wiretapping
of
U.S. citizens." 37
a. How much detail was disclosed to the Intelligence Committee regarding
the NSA program?
b. Was the level of detail disclosed consistent with what was required by law
and consistent with disclosures regarding classified other program?
c. Did any Members of Congress ask for additional details?
d. What are the legal requirements or precedents that stipulate the type of
information to be disclosed or withheld?
To begin with, the Terrorist Surveillance Program does not "change the
standard
for wiretapping of U.S. citizens." The Program is an exceedingly narrow one,
that targets
for interception only those communications where one party is outside the
United States
and there is probable cause to believe that at least one party is a member or
agent of al
Qaeda or an affiliated terrorist organization.
The Vice President of the United States has publicly stated that he
personally
conducted those briefings and provided a very detailed account of the Program.
Senator
Pat Roberts, the Chairman of the Senate Select Committee on Intelligence,
stated that
those who were briefed were given repeated opportunities to ask questions and
express
concerns until they had received all the information they wished See Meet the
Press,
transcript for Feb. 12, 2006 (available at
http://www.msnbc.msn.com/id/11272634/).
Certainly, the fact that no court order would be obtained before
intercepting
communications under the Terrorist Surveillance Program clearly was disclosed
to
members who attended these briefings.
38. The January 17, 2006 New York Times article also quoted an
anonymous
FBI agent who allegedly said that the program uncovered no active al
Qaeda
networks planning attacks inside the U.S.. Does the President conduct
ongoing evaluations of the effectiveness of this program?38
As discussed in above in the response to Question 31, the
President has required
that the Terrorist Surveillance Program be reviewed approximately every 45
days. The
purpose of those reviews is to ensure that the Program continues to remain
necessary and
effective in helping to safeguard the Nation against another terrorist attack.
The
Department is confident that the Program is helping to achieve that goal.
Although we
cannot fully address the Program's accomplishments without revealing classified
and
sensitive operational details, the statements of General Hayden and Director
Mueller at
the February 2d Worldwide Threat Briefing are illustrative. General Hayden
stated that
"the program has been successful; . . . we have learned information from this
program
that would not otherwise have been available" and that "[t]his information has
helped
detect and prevent terrorist attacks in the United States and abroad." Director
Muller
stated that "leads from that program have been valuable in identifying would-be
terrorists
in the United States, individuals who were providing material support to
terrorists."
The Surveillance Program
39. Please explain the exact scope of the terrorist
surveillance program
described by the President. Specifically, please explain whether the
program is designed to intercept only international communications or
whether it is also designed to intercept domestic
communications.
a. What is the distinction?
b. Also, please specifically describe the type of individual targeted by the
program. In doing so, please explain whether the program is targeted
specifically at the surveillance of individuals affiliated with al Qaeda and
related terrorist organizations or whether it is broader in scope.
The Terrorist Surveillance Program targets for interception only those
communications where one party is outside of the United States and there is
probable
cause to believe that at least one party to the communication is a member or
agent of al
Qaeda or an affiliated terrorist organization. The Program does not target for
interception
wholly domestic communications.
40. On December 16, 2005, the New York Times claimed that President Bush
"secretly authorized the National Security Agency to eavesdrop on
Americans and others inside the United States to search for evidence of
terrorist activity without court-approved warrants ordinarily required
for
domestic spying, according to government
officials."39
a. Did President Bush authorize this program to search for evidence of
terrorist activity or was there a more narrow purpose for this
surveillance?
b. If the purpose was more narrow, please describe that purpose.
The narrow purpose of the Terrorist Surveillance Program is to create an
earlywarning
system aimed at detecting and preventing another catastrophic al Qaeda
attack
on the United States. To the extent that your question about using the Program
"to search
for evidence" seeks to determine whether the Program is designed for
conventional law
enforcement purposes, that is not the purpose of the Program. The purpose of
the
Terrorist Surveillance Program is not to bring criminals to justice.
41. Has surveillance conducted under this program been of
communications
between parties, all of which were known to be located within the United
States?
As we have explained above, the Terrorist Surveillance Program
targets for
interception only those communications where one party is outside of the United
States
and there is probable cause to believe that at least one party to the
communication is a
member or agent of al Qaeda or an affiliated terrorist organization. The
Program does
not target for interception wholly domestic communications.
42. If al Qaeda members purchase cell phones with U.S. domestic
phone
numbers, but these members are located and are placing phone calls
outside
the United States, would these calls be characterized as "domestic"? Does
the characterization change if the call is routed domestically?
Because the question calls for the revelation of operational details about
the
Program, we cannot discuss it in this setting.
43. The President explained that these intercepts were related to the
war on
terrorism and that, "Before we intercept these communications, the
government must have information that establishes a clear link to these
terrorist networks."40 Is this still true? What is the
standard?
The President's explanation remains entirely correct. As
explained above, the
Terrorist Surveillance Program is narrowly tailored to target for interception
only
communications where one party is outside the United States and there are
reasonable
grounds to believe that at least one party is a member or agent of al Qaeda or
an affiliated
terrorist organization. The "reasonable grounds to believe" standard is a
"probable
cause" standard of proof, see Maryland v. Pringle, 540 U.S. 366, 371 (2003)
("We have
stated . . . that '[t]he substance of all the definitions of probable cause is
a reasonable
ground for belief of guilt.'"), and "probable cause" is the standard employed
under FISA
for approving applications for electronic surveillance.
44. Please explain in detail whether the terrorist surveillance program
complies
with the requirements of the Fourth Amendment.
The Fourth Amendment prohibits "unreasonable searches and
seizures" and
directs that "no Warrants shall issue, but upon probable cause, supported by
Oath or
affirmation, and particularly describing the place to be searched, and the
persons or
things to be seized." U.S. Const. amend. IV. The touchstone for review of
government
action under the Fourth Amendment is whether the search is "reasonable." See,
e.g.,
Vernonia Sch. Dist. v. Acton, 515 U.S. 646, 653 (1995).
All of the federal courts of appeals to have addressed the issue have affirmed
the
President's inherent constitutional authority to collect foreign intelligence
without a
warrant. See In re Sealed Case, 310 F.3d at 742. Properly understood,
foreign
intelligence collection in general, and the Terrorist Surveillance Program in
particular, fit
within the "special needs" exception to the warrant requirement of the
Fourth
Amendment. Accordingly, the mere fact that no warrant is secured prior to
the
surveillance at issue in the Terrorist Surveillance Program does not render the
activities
unreasonable. Instead, reasonableness in this context must be assessed under a
general
balancing approach, " 'by assessing, on the one hand, the degree to which it
intrudes upon
an individual's privacy and, on the other, the degree to which it is needed for
the
promotion of legitimate governmental interests.'" United States v. Knights, 534
U.S.
112, 118-19 (2001) (quoting Wyoming v. Houghton, 526 U.S. 295, 300 (1999)).
The
Terrorist Surveillance Program is reasonable because the Government's
interest,
defending the Nation from another foreign attack in time of armed conflict,
outweighs the
individual privacy interests at stake, and because it seeks to intercept
only
communications where one party is outside the United States and there is
probable cause
to believe that at least one party is a member or agent of al Qaeda or an
affiliated terrorist
organization.
In "the criminal context," the Fourth Amendment reasonableness
requirement
"usually requires a showing of probable cause" and a warrant. Board of Educ. v.
Earls,
536 U.S. 822, 828 (2002). The requirement of a warrant supported by probable
cause,
however, is not universal. Rather, the Fourth Amendment's "central requirement
is one of
reasonableness," and the rules the Court has developed to implement that
requirement
"[s]ometimes . . . require warrants." Illinois v. McArthur, 531 U.S. 326, 330
(2001); see
also, e.g., Earls, 536 U.S. at 828 (noting that the probable cause standard "is
peculiarly
related to criminal investigations and may be unsuited to determining the
reasonableness
of administrative searches where the Government seeks to prevent the
development of
hazardous conditions") (internal quotation marks omitted).
In particular, the Supreme Court repeatedly has made clear that in
situations
involving "special needs" that go beyond a routine interest in law enforcement,
the
warrant requirement is inapplicable. See Vernonia, 515 U.S. at 653 (there
are
circumstances " 'when special needs, beyond the normal need for law
enforcement, make
the warrant and probable-cause requirement impracticable'") (quoting Griffin
v.
Wisconsin, 483 U.S. 868, 873 (1987)); see also McArthur, 531 U.S. at 330 ("When
faced
with special law enforcement needs, diminished expectations of privacy,
minimal
intrusions, or the like, the Court has found that certain general, or
individual,
circumstances may render a warrantless search or seizure reasonable."). It is
difficult to
encapsulate in a nutshell all of the different circumstances the Court has
found to qualify
as "special needs" justifying warrantless searches. But one application in
which the Court
has found the warrant requirement inapplicable is in circumstances in which
the
Government faces an increased need to be able to react swiftly and flexibly, or
when
there are at stake interests in public safety beyond the interests in ordinary
law
enforcement. One important factor in establishing "special needs" is whether
the
Government is responding to an emergency that goes beyond the need for general
crime
control. See In re Sealed Case, 310 F.3d at 745-46.
Thus, the Court has permitted warrantless searches of property of students
in
public schools, see New Jersey v. T.L.O., 469 U.S. 325, 340 (1985) (noting that
warrant
requirement would "unduly interfere with the maintenance of the swift and
informal
disciplinary procedures needed in the schools"), to screen athletes and
students involved
in extracurricular activities at public schools for drug use, see Vernonia, 515
U.S. at 654-
55; Earls, 536 U.S. at 829-38, to conduct drug testing of railroad personnel
involved in
train accidents, see Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602,
634
(1989), and to search probationers' homes, see Griffin, 483 U.S. 868. Many
special
needs doctrine and related cases have upheld suspicionless searches or
seizures. See, e.g.,
Illinois v. Lidster, 540 U.S. 419, 427 (2004) (implicitly relying on special
needs doctrine
to uphold use of automobile checkpoint to obtain information about recent
hit-and-run
accident); Earls, 536 U.S. at 829-38 (suspicionless drug testing of public
school students
involved in extracurricular activities); Michigan Dep't of State Police v.
Sitz, 496 U.S.
444, 449-55 (1990) (road block to check all motorists for signs of drunken
driving);
United States v. Martinez-Fuerte, 428 U.S. 543 (1976) (road block near the
border to
check vehicles for illegal immigrants); cf. In re Sealed Case, 310 F.3d at
745-46 (noting
that suspicionless searches and seizures in one sense are a greater
encroachment on
privacy than electronic surveillance under FISA because they are not based on
any
particular suspicion, but "[o]n the other hand, wiretapping is a good deal more
intrusive
than an automobile stop accompanied by questioning"). To fall within the
"special
needs" exception to the warrant requirement, the purpose of the search must
be
distinguishable from ordinary general crime control. See, e.g., Ferguson v.
Charleston,
532 U.S. 67 (2001); City of Indianapolis v. Edmond, 531 U.S. 32, 41
(2000).
Foreign intelligence collection, especially in the midst of an armed conflict
in
which the enemy has already launched catastrophic attacks within the United
States, fits
squarely within the area of "special needs, beyond the normal need for law
enforcement"
where the Fourth Amendment's touchstone of reasonableness can be satisfied
without
resort to a warrant. Vernonia, 515 U.S. at 653. The Executive Branch has
long
maintained that collecting foreign intelligence is far removed from the
ordinary criminal
law enforcement action to which the warrant requirement is particularly suited.
See, e.g.,
Amending the Foreign Intelligence Surveillance Act: Hearings Before the
House
Permanent Select Comm. on Intelligence,103d Cong. 2d Sess. 62, 63 (1994)
(statement
of Deputy Attorney General Jamie S. Gorelick) ("[I]t is important to understand
that the
rules and methodology for criminal searches are inconsistent with the
collection of
foreign intelligence and would unduly frustrate the President in carrying out
his foreign
intelligence responsibilities. . . . [W]e believe that the warrant clause of
the Fourth
Amendment is inapplicable to such [foreign intelligence] searches."); see also
In re
Sealed Case, 310 F.3d 745. The object of foreign intelligence collection is
securing
information necessary to protect the national security from the hostile designs
of foreign
powers like al Qaeda and affiliated terrorist organizations, including the
possibility of
another foreign attack on the United States. In foreign intelligence
investigations,
moreover, the targets of surveillance often are agents of foreign powers,
including
international terrorist groups, who may be specially trained in concealing
their activities
and whose activities may be particularly difficult to detect. The Executive
requires a
greater degree of flexibility in this field to respond with speed and absolute
secrecy to the
ever-changing array of foreign threats faced by the Nation. Even in the
domestic context,
the Supreme Court has recognized that there may be significant distinctions
between
wiretapping for ordinary law enforcement purposes and domestic national
security
surveillance. See United States v. United States District Court, 407 U.S. 297,
322 (1972)
("Keith") (explaining that "the focus of domestic [security] surveillance may
be less
precise than that directed against more conventional types of crime" because
often "the
emphasis of domestic intelligence gathering is on the prevention of unlawful
activity or
the enhancement of the Government's preparedness for some possible future
crisis or
emergency"); see also United States v. Duggan, 743 F.2d 59, 72 (2d Cir. 1984)
(reading
Keith to recognize that "the governmental interests presented in national
security
investigations differ substantially from those presented in traditional
criminal
investigations").
In particular, the Terrorist Surveillance Program is undertaken to prevent
further
devastating attacks on our Nation, and it serves the highest government purpose
through
means other than traditional law enforcement. The Program is designed to enable
the
Government to act quickly and flexibly (and with secrecy) to find agents of al
Qaeda and
its affiliates--"international terrorist groups which have already
demonstrated a capability
to infiltrate American communities without being detected--"in time to
disrupt future
terrorist attacks against the United States. As explained by the Foreign
Intelligence
Surveillance Court of Review, the nature of the "emergency" posed by al Qaeda
"takes
the matter out of the realm of ordinary crime control." In re Sealed Case, 310
F.3d at
746. Thus, under the "special needs" doctrine, no warrant is required by the
Fourth
Amendment for the Terrorist Surveillance Program.
As the Supreme Court has emphasized repeatedly, "[t]he touchstone of the
Fourth
Amendment is reasonableness, and the reasonableness of a search is determined
by
assessing, on the one hand, the degree to which it intrudes upon an
individual's privacy
and, on the other, the degree to which it is needed for the promotion of
legitimate
governmental interests." Knights, 534 U.S. at 118-19 (quotation marks omitted);
see also
Earls, 536 U.S. at 829. The Supreme Court has found a search reasonable when,
under
the totality of the circumstances, the importance of the governmental interests
outweighs
the nature and quality of the intrusion on the individual's Fourth Amendment
interests.
See Knights, 534 U.S. at 118-22. Under the standard balancing of interests
analysis used
for gauging reasonableness, the Terrorist Surveillance Program is consistent
with the
Fourth Amendment.
With respect to the individual privacy interests at stake, there can be no
doubt
that, as a general matter, interception of telephone communications implicates
a
significant privacy interest of the individual whose conversation is
intercepted. The
Supreme Court has made clear at least since Katz v. United States, 389 U.S. 347
(1967),
that individuals have a substantial and constitutionally protected reasonable
expectation
of privacy that their telephone conversations will not be subject to
governmental
eavesdropping. Although the individual privacy interests at stake may be
substantial, it is
well recognized that a variety of governmental interests--"including
routine law
enforcement and foreign-intelligence gathering--"can overcome those
interests.
On the other side of the scale here, the Government's interest in implementing
the
Terrorist Surveillance Program is the most compelling interest
possible--"securing the
Nation from foreign attack in the midst of an armed conflict. One attack
already has
taken thousands of lives and placed the Nation in state of armed conflict.
Defending the
Nation from attack is perhaps the most important function of the federal
Government--"
and one of the few express obligations of the federal Government enshrined in
the
Constitution. See U.S. Const. art. IV, § 4 ("The United States shall
guarantee to every
State in this Union a Republican Form of Government, and shall protect each of
them
against Invasion . . . .") (emphasis added); The Prize Cases, 67 U.S. (2 Black)
635, 668
(1863) ("If war be made by invasion of a foreign nation, the President is not
only
authorized but bound to resist force by force."). As the Supreme Court has
declared, "[i]t
is 'obvious and unarguable' that no governmental interest is more compelling
than the
security of the Nation." Haig v. Agee, 453 U.S. 280, 307 (1981).
The Government's overwhelming interest in detecting and thwarting further
al
Qaeda attacks is easily sufficient to make reasonable the intrusion into
privacy involved
in intercepting international communications where there is "a reasonable basis
to
conclude that one party to the communication is a member of al Qaeda,
affiliated with al
Qaeda, or a member of an organization affiliated with al Qaeda." Press Briefing
by
Attorney General Alberto Gonzales and General Michael Hayden, Principal
Deputy
Director for National Intelligence, available at
http://www.whitehouse.gov/news/
releases/2005/12/20051219-1.html (Dec. 19, 2005) (statement of Attorney
General
Gonzales); cf. Edmond, 531 U.S. at 44 (noting that "the Fourth Amendment would
almost
certainly permit an appropriately tailored roadblock set up to thwart an
imminent terrorist
attack" because "[t]he exigencies created by th[at] scenario[] are far removed"
from
ordinary law enforcement). The United States has already suffered one attack
that killed
thousands, disrupted the Nation's financial center for days, and successfully
struck at the
command and control center for the Nation's military. And the President has
stated that
the Terrorist Surveillance Program is "critical" to our national security.
Press Conference
of President Bush (Dec. 19, 2005). To this day, finding al Qaeda sleeper agents
in the
United States remains one of the preeminent concerns of the war on terrorism.
As the
President has explained, "[t]he terrorists want to strike America again, and
they hope to
inflict even more damage than they did on September 11th." Id.
Of course, because the magnitude of the Government's interest here depends
in
part upon the threat posed by al Qaeda, it might be possible for the weight
that interest
carries in the balance to change over time. It is thus significant for the
reasonableness of
the Terrorist Surveillance Program that the President has established a system
under
which he authorizes the surveillance only for a limited period, typically for
45 days. This
process of reauthorization ensures a periodic review to evaluate whether the
threat from
al Qaeda remains sufficiently strong that the Government's interest in
protecting the
Nation and its citizens from foreign attack continues to outweigh the
individual privacy
interests at stake.
Finally, as part of the balancing of interests to evaluate Fourth
Amendment
reasonableness, it is significant that the Terrorist Surveillance Program is
limited to
intercepting international communications where there is probable cause to
believe that at
least one party to the communication is a member or agent of al Qaeda or an
affiliated
terrorist organization. This factor is relevant because the Supreme Court has
indicated
that in evaluating reasonableness, one should consider the "efficacy of [the]
means for
addressing the problem." Vernonia, 515 U.S. at 663; see also Earls, 536 U.S. at
834
("Finally, this Court must consider the nature and immediacy of the
government's
concerns and the efficacy of the Policy in meeting them."). That consideration
does not
mean that reasonableness requires the "least intrusive" or most "narrowly
tailored" means
for obtaining information. To the contrary, the Supreme Court has repeatedly
rejected
such suggestions. See, e.g., Earls, 536 U.S. at 837 ("[T]his Court has
repeatedly stated
that reasonableness under the Fourth Amendment does not require employing the
least
intrusive means, because the logic of such elaborate
less-restrictive-alternative arguments
could raise insuperable barriers to the exercise of virtually all
search-and-seizure
powers.") (internal quotation marks omitted); Vernonia, 515 U.S. at 663 ("We
have
repeatedly refused to declare that only the 'least intrusive' search
practicable can be
reasonable under the Fourth Amendment."). Nevertheless, the Court has indicated
that
some consideration of the efficacy of the search being implemented--"that
is, some
measure of fit between the search and the desired objective--"is relevant
to the
reasonableness analysis. The Terrorist Surveillance Program is targeted to
intercept
international communications of persons reasonably believed to be members or
agents of
al Qaeda or an affiliated terrorist organization, a limitation which further
strongly
supports the reasonableness of the Program.
In sum, the Terrorist Surveillance Program is consistent with the Fourth
Amendment because the warrant requirement does not apply in these
circumstances,
which involve both "special needs" beyond the need for ordinary law enforcement
and
the inherent authority of the President to conduct warrantless intelligence
surveillance to
obtain foreign intelligence to protect our Nation from foreign armed attack.
The
touchstone of the Fourth Amendment is reasonableness, and the Terrorist
Surveillance
Program is certainly reasonable, particularly taking into account the nature of
the threat
the Nation faces.
45. Throughout the Federal criminal code,41 the statutes authorize
arrests
without warrants if there is "reasonable grounds to believe" that a crime
has
been or is about to be committed. Does this a probable cause standard
translate to the NSA program? Is there case law to support this
standard?
As explained above, the Terrorist Surveillance Program targets for
interception
only communications where one party is outside the United States and where
there are
reasonable grounds to believe that at least one party to the communication is a
member or
agent of al Qaeda or an affiliated terrorist organization. The "reasonable
grounds to
believe" standard is a "probable cause" standard of proof. See Maryland v.
Pringle, 540
U.S. 366, 371 (2003) ("We have stated . . . that '[t]he substance of all the
definitions of
probable cause is a reasonable ground for belief of guilt.'").
46. Please explain what efforts are currently underway with respect to
the
terrorist surveillance program to ensure that the civil liberties and
privacy
of ordinary Americans are adequately protected and what additional
efforts,
if any, the President is considering to effectively address these
issues.
As explained above, the processes for approving particular instances of
surveillance under the Terrorist Surveillance Program, and for periodically
reviewing the
Program as a whole, are careful and thorough. Surveillance decisions are made
by
professional intelligence officers, who are experts on al Qaeda and its tactics
(including
its use of communication systems). Relying on the best available intelligence
and subject
to rigorous oversight, these officers, before ordering the interception of any
international
communications, must determine whether there is probable cause to believe that
at least
one of the parties to the communication is a member or agent of al Qaeda or an
affiliated
terrorist organization. Procedures are in place to protect U.S. privacy rights,
including
applicable procedures required by Executive Order 12333 and approved by the
Attorney
General, that govern acquisition, retention, and dissemination of information
relating to
U.S. persons.
In addition, the Terrorist Surveillance Program is reviewed and reauthorized at
the
highest levels of Government approximately every 45 days, and this process is
designed
to ensure that the Program will not be continued unless the al Qaeda threat to
the United
States continues to justify use of the Program. In making a determination to
reauthorize
the Program, the President relies on reviews undertaken by the Intelligence
Community
and Department of Justice, a strategic assessment of the continuing importance
of the
Program to the national security of the United States, and assurances that
safeguards
continue to protect civil liberties.
47. Press reports have stated that the Justice Department has opened an
investigation of the leak of information regarding the highly classified
NSA
program.42 Does the Department consider the unauthorized disclosure
of
information about this program to be a leak of classified information?
Has
the Department, as reported by the press, opened an investigation of the
leak
of this information?
The Department of Justice has initiated an investigation to determine whether
the
law was broken when the existence of the Terrorist Surveillance Program was
leaked to
the news media. If it is determined, after a careful evaluation of all the
evidence, that a
crime has been committed, then Department of Justice officials will have to
decide
whether to bring appropriate criminal charges against those responsible.
Consistent with
established Department of Justice practice, however, we cannot comment further
on this
ongoing investigation.
48. The Washington Post reported that "Fewer than 10 U.S. citizens or
residents
a year, according to an authoritative account, have aroused enough
suspicion during warrantless eavesdropping to justify interception of
their
domestic calls, as well."43 Are targets of the NSA surveillance
program
"U.S. citizens and residents," or do targets also include non-U.S.
persons?
Are targets of this surveillance program those who have "aroused enough
suspicion" or are there other justifications for the interception? Do you
agree with the premise made by the Washington Post that this program
monitored domestic calls?
The Terrorist Surveillance Program targets communications only
when one party
is outside the United States and there is probable cause to believe that at
least one party is
a member or agent of al Qaeda or an affiliated terrorist organization.
Accordingly, it is
possible that the NSA has intercepted communications to which a U.S. person is
a party.
As we have explained, however, the Program does not target communications that
are
wholly domestic (i.e., those made from one point in the United States to
another). In
addition, as mentioned above, procedures are in place to protect U.S. privacy
rights,
including applicable procedures required by Executive Order 12333 and approved
by the
Attorney General, that govern acquisition, retention, and dissemination of
information
relating to U.S. persons.
49. This article also stated that "Computer-controlled systems collect
and sift
basic information about hundreds of thousands of faxes, e-mails and
telephone calls into and out of the United States before selecting the ones
for
scrutiny by human eyes and ears." And that "Successive stages of
filtering
grow more intrusive as artificial intelligence systems rank voice and
data
traffic in order to likeliest interest to human analysts. But
intelligence
officers, who test the computer judgments by listening initially to brief
fragments of conversation, "wash out" most of the leads within days or
weeks."44 General Hayden, in an interview with Chris Wallace on
February
5, 2006, indicated that this is not an accurate depiction of the NSA
surveillance program. Is this a data-mining program, as the Washington
Post article conveys, or is this a limited program "where NSA has already
established its reasons for being interested in that specific
communication"?
As General Hayden correctly indicated, the Terrorist
Surveillance Program is not
a "data-mining" program. He stated that the Terrorist Surveillance Program is
not a
"drift net out there where we're soaking up everyone's communications"; rather,
under
the Terrorist Surveillance Program, NSA targets for interception "very
specific
[international] communications" for which, in NSA's professional judgment,
there is
probable cause to believe that one of the parties to the communication is a
member or
agent of al Qaeda or an affiliated terrorist group--"people "who want to
kill Americans."
See Remarks by General Michael V. Hayden to the National Press Club, available
at
http://www.dni.gov/release_letter_012306.html.
50. On behalf of a group of organizations45 that requested,
in a January 30,
2006 letter to Chairman Sensenbrenner and Ranking Member Conyers,
oversight of the NSA surveillance program, please respond to the
following:
a. Is the NSA surveillance program a single program, which operates under
a single authorization? What is the scope and/or nature of the
program(s)?
b. What are the criteria and triggers for collection and/or analysis of
information? How do these criteria and triggers differ from those in
effect prior to September 11, 2001?
c. Were laws violated and, if so, who bears responsibility?
d. What information is obtained through this program? Is it shared with
other agencies? Once obtained, how is it used and/or stored, whether by
NSA or other agencies?
We are able to address only the Terrorist Surveillance Program. We
cannot
address the operational details of the Program or any other sensitive
intelligence
activities. The Terrorist Surveillance Program allows the NSA to intercept only
a narrow
range of communications. Communications are not targeted for interception under
the
Program unless one party is outside the United States and there is probable
cause to
believe that at least one party to the communication is a member or agent of al
Qaeda or
an affiliated terrorist organization. FISA also employs a probable cause
standard
(specifically, whether there is "probable cause to believe" that the target of
the
surveillance is an agent of a foreign power). Among the advantages offered by
the
Terrorist Surveillance Program compared to FISA is who makes the probable
cause
determination and how many layers of review will occur before surveillance
begins.
Under the Terrorist Surveillance Program, professional intelligence officers,
who are
experts on al Qaeda and its tactics (including its use of communication
systems), relying
on the best available intelligence and with appropriate and rigorous oversight,
make the
decisions about which communications should be intercepted. By contrast,
because FISA
requires the Attorney General to "reasonably determine[]" that "the factual
basis for
issuance of" a FISA order exists at the time he approves an emergency
authorization, see
50 U.S.C. § 1805(f)(2), as a practical matter, it is necessary for NSA
intelligence officers,
NSA lawyers, Justice Department lawyers, and the Attorney General to review a
matter
before even emergency surveillance would begin. As noted above, great care must
be
exercised in reviewing requests for emergency surveillance, because if the
Attorney
General authorizes emergency surveillance and the FISA court later declines to
permit
surveillance, there is a risk that the court would disclose the surveillance to
U.S. persons
whose communications were intercepted. See 50 U.S.C. § 1806(j).
After a thorough review, the Department of Justice has concluded that the
Terrorist Surveillance Program is lawful, because it represents a legitimate
use of the
President's long-recognized inherent constitutional authority to engage in
warrantless
surveillance in order to gather foreign intelligence information, an authority
that was
confirmed and supplemented by Congress when it enacted the Force Resolution.
In
addition, the Force Resolution provides the statutory authorization necessary
to satisfy
the requirements of section 109 of the Foreign Intelligence Surveillance Act,
50 U.S.C.
§ 1809(a)(1).
We cannot, in this setting, answer questions about how the information
obtained
through the Terrorist Surveillance Program is used and stored without
revealing
operational details about the Program. We note, however, that General Hayden
has stated
that information from the Program "has helped detect and prevent terrorist
attacks in the
United States and abroad." Procedures are in place, including applicable
procedures
required by Executive Order 12333 and approved by the Attorney General, that
govern
acquisition, retention, and dissemination of information relating to U.S.
persons.
51. Finally, please explain whether you believe Congress should amend
FISA to
provide the president with the necessary authority to conduct the
terrorist
surveillance program. If the answer to this question is yes, please
explain
what amendments to the FISA legislation may be needed. If the answer to
this question is no, please explain how Congress may effectively evaluate
or
conduct oversight of the program.
The Administration believes that it is unnecessary to amend
FISA to
accommodate the Terrorist Surveillance Program. The Administration will, of
course,
work with Congress and evaluate any proposals for improving FISA.