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Congressional response to the NSA warrantless surveillance program

Congressional inquiries and investigations

Three days after news broke about the Terrorist Surveillance Program, a bipartisan group of Senators--Democrats Dianne Feinstein of California, Carl Levin of Michigan, Ron Wyden of Oregon and Republicans Chuck Hagel of Nebraska and Olympia Snowe of Maine, sent a letter dated December 19, 2005 to Judiciary and Intelligence Committees chairmen and ranking members requesting the two committees to "seek to answer the factual and legal questions" about the program. An excerpt from the letter reads:
We respectfully request that the Select Committee on Intelligence and the Committee on the Judiciary, which share jurisdiction and oversight of this issue, jointly undertake an inquiry into the facts and law surrounding these allegations. The overlapping jurisdiction of these two Committees is particularly critical where civil liberties and the rule of law hang in the balance.

On Saturday the President stated that he "authorized the National Security Agency, consistent with U.S. law and the Constitution, to intercept the international communications of people with known links to al Qaeda and related terrorist organizations." It is critical that Congress determine, as quickly as possible, exactly what collection activities were authorized, what were actually undertaken, how many names and numbers were involved over what period, and what was the asserted legal authority for such activities. In sum, we must determine the facts.

Senate Judiciary Committee Chairman Arlen Specter, in a three-page letter dated June 7, 2006 to Vice President Dick Cheney, to prompt the Administration to provide: input on his proposed legislation, briefings to his committee about the program, and more cooperation with Congressional oversight. Specter also wrote about the Vice President lobbying the other Republican members of the Judiciary Committee about compelling telephone companies to testify about classified information. Specter wrote: "When some of the companies requested subpoenas so they would not be volunteers, we responded that we would honor that request. Later, the companies indicated that if the hearing were closed to the public, they would not need subpoenas. I then sought Committee approval, which is necessary under our rules, to have a closed session to protect the confidentiality of any classified information and scheduled a Judiciary Committee Executive Session for 2:30 P.M. yesterday to get that approval. I was advised yesterday that you had called Republican members of the Judiciary Committee lobbying them to oppose any Judiciary Committee hearing, even a closed one, with the telephone companies. I was further advised that you told those Republican members that the telephone companies had been instructed not to provide any information to the Committee as they were prohibited from disclosing classified information." Excerpts from Specter's letter follows:

...the Administration's continuing position on the NSA electronic surveillance program rejects the historical constitutional practice of judicial approval of warrants before wiretapping and denigrates the constitutional authority and responsibility of the Congress and specifically the Judiciary Committee to conduct oversight on constitutional issues.

On March 16, 2006, I introduced legislation to authorize the Foreign Intelligence Surveillance Court to rule on the constitutionality of the Administration's electronic surveillance program. Expert witnesses, including four former judges of the FISA Court, supported the legislation as an effective way to preserve the secrecy of the program and protect civil rights. The FISA Court has an unblemished record for keeping secrets and it has the obvious expertise to rule on the issue. The FISA Court judges and other experts concluded that the legislation satisfied the case-in-controversy requirement and was not a prohibited advisory opinion. Notwithstanding my repeated efforts to get the Administration's position on this legislation, I have been unable to get any response, including a "no".

The Administration's obligation to provide sufficient information to the Judiciary Committee to allow the Committee to perform its constitutional oversight is not satisfied by the briefings to the Congressional Intelligence Committees...

Specter also wrote that he was considering delaying the hearing on the telephone companies at Senator Hatch's urging:

Senator Hatch then urged me to defer action on the telephone companies hearing, saying that he would get Administration support for my bill which he had long supported. In the context of the doubt as to whether there were the votes necessary for a closed hearing or to proceed in any manner as to the telephone companies, I agreed to Senator Hatch's proposal for a brief delay on the telephone companies hearing to give him an opportunity to secure the Administration's approval of the bill which he thought could be done. When I announced this course of action at the full Committee Executive Session, there was a very contentious discussion which is available on the public record.

It has been my hope that there could be an accommodation between Congress's Article I authority on oversight and the President's constitutional authority under Article II. There is no doubt that the NSA program violates the Foreign Intelligence Surveillance Act which sets forth the exclusive procedure for domestic wiretaps which requires the approval of the FISA Court. It may be that the President has inherent authority under Article II to trump that statute but the President does not have a blank check and the determination on whether the President has such Article II power calls for a balancing test which requires knowing what the surveillance program constitutes.

If an accommodation cannot be reached with the Administration, the Judiciary Committee will consider confronting the issue with subpoenas and enforcement of that compulsory process if it appears that a majority vote will be forthcoming. The Committee would obviously have a much easier time making our case for enforcement of subpoenas against the telephone companies which do not have the plea of executive privilege. That may ultimately be the course of least resistance.

We press this issue in the context of repeated stances by the Administration on expansion of Article II power, frequently at the expense of Congress's Article I authority. There are the Presidential signing statements where the President seeks to cherry-pick which parts of the statute he will follow. There has been the refusal of the Department of Justice to provide the necessary clearances to permit its Office of Professional Responsibility to determine the propriety of the legal advice given by the Department of Justice on the electronic surveillance program...

Vice President Dick Cheney promptly replied back to Senator Specter in a three-page letter dated June 8, 2006 responding to his questions and concerns. The Vice President concluded his letter with: "While there may continue to be areas of disagreement from time to time, we should proceed in a practical way to build on the areas of agreement. I believe that other Senators and you, working with the executive branch, can find the way forward to enactment of legislation that would strengthen the ability of the Government to protect Americans against terrorists, while continuing to protect the rights of Americans, if it is the judgment of Congress that such legislation should be enacted. We look forward to working with you, knowing of the good faith on all sides." An excerpt from Cheney's letter follows:

...Your letter addressed four basic subjects: (1) the legal basis for the TSP; (2) the Administration position on legistation prepared by you relating to the TSP; (3) provision of information to Congress about the TSP; and (4) communications with Senators on the Judiciary Committee about the TSP.

The executive branch has conducted the TSP, from its inception on October 4, 2001 to the present, with great care to operate within the law, with approval as to legality of Presidential authorizations every 45 days or so by senior Government attorneys. The Department of Justice has act forth in detail in writing the constitutional and statutory bases, and related judicial precedents, for warrantless electronic surveillance under the TSP to protect against terrorism, and that information has been made available to your Committee and to the public.

Your letter indicated that you have repeatedly requested an Administration position on legislation prepared by you relating to the TSP program. If you would like a formal Administration position on draft legislation, you may at any time submit it to the Attorney General, the Director of National Intelligence, or the Director of the Office of Management and Budget (OMB) for processing, which will produce a formal Administration position. Before you do so, however, it might be more productive for executive branch experts to meet with you, and perhaps Senator DeWine or other Senators as appropriate, to review the various bills that have been introduced and to share the Administration's thoughts on terrorist surveillance legislation. Attorney General Alberto R. Gonzales and Acting Assistant Attorney General for the Office of Legal Counsel Steven G. Bradbury are key experts upon whom the executive branch would rely for this purpose. I will ask them to contact you promptly so that the cooperative effort can proceed apace.

Since the earliest days of the TSP, the executive branch has ensured that, consistent with the protection of the sensitive intelligence sources, methods and activities involved, appropriate members of Congress were briefed periodically on the program. The executive branch kept principally the chairman and ranking members of the congressional intelligence committees informed and later included the congressional leadership. Today, the full membership of both the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence (including four members on that Committee who also serve on your Judiciary Committee) are fully briefed on the program. As a matter of inter-branch comity and good executive-legislative practice, and recognizing the vital importance of protecting U.S. intelligence sources, methods and activities, we believe that the country as a whole, and the Senate and House respectively, are best served by concentrating the congressional handling of intelligence matters within the intelligence committees of the Congress. The internal organization of the two Houses is, of course, a matter for the respective Houses. Recognizing the wisdom of the concentration within the intelligence committees, the rules of the Senate (S. Res. 400 of the 94th Congress) and the House (Rule X, el. 11) creating the intelligence committees mandated that the intelligence committees have cross-over members who also serve on the judiciary, foreign/international relations, armed services, and appropriations committees.

Both in performing the legislative functions of the Vice Presidency as President of the Senate and in performing executive functions in support of the President, I have frequent contact with Senators, both at their initiative and mine. We have found such contacts helpful in maintaining good relations between the executive and legislative branches and in advancing legislation that serves the interests of the American people. The respectful and candid exchange of views is something to be encouraged rather than avoided. Indeed, recognizing the importance of such communication, the first step the Administration took, when it learned that you might pursue use of compulsory process in an attempt to force testimony that may involve extremely sensitive classified information, was to have one of the Administration's most senior officials, the Chief of Staff to the President of the United States, contact you to discuss the matter. Thereafter, I spoke with a number of other Members of the Senate Leadership and the Judiciary Committee. These communications are not unusual--they are the Government at work...

Democratic Members of the House Judiciary

During the Judiciary Democratic Congressional Briefing Constitution in Crisis: Domestic Surveillance and Executive Power on January 20, 2006, the Democrat members of the House Judiciary Committee held an informal hearing on the program. Their panelists were: Bruce Fein, Associate Deputy Attorney General in the Reagan Administration; James Bamford, an author; Professor Jonathon Turley of George Washington Law School; Richard Hersh of The Truth Project; Caroline Frederickson of American Civil Liberties Union (ACLU); and Kate Martin the Director of Center for National Security Studies.

In an excerpt from Fein's testimony he said:

...Our enemy recognizes that we will use surveillance and wiretapping to try to collect intelligence. And I don't think it's plausible to believe that any kind of discussion in theory that the President has extraordinary powers to surveil in wartime would permit the enemy to evade any kind of particular practice.

But, anyway, the Congress explicitly addressed the idea of the powers of the President during wartime and wiretapping.

The authorization of force statute doesn't refer to FISA.

The administration's claims that it sub silentio overruled FISA is on its face implausible. The rule of statutory construction for centuries is, the more specific statute overrides the more general one.

And I don't think anything more needs to be said about the fact that he is violating FISA.

I think it's even more worrisome to understand the claims he is making of inherent constitutional authority to undertake any efforts for the purpose of defeating terrorism, irrespective of congressional action or otherwise...

In an excerpt from Bamford's prepared statement he said:

...I would like to discuss some of the events that lead to the enactment of the Foreign Intelligence Surveillance Act, how the act applies to the NSA, and the dangers in violating the law. These dangers were long foreseen by Senator Frank Church, the Idaho Democrat who led the investigation into the abuses of the intelligence agencies in 1975. Following his probe of the NSA, Senator Church came away shocked and warned of the dangers of what might be called techno-tyranny. The agency's technological capability, he said, “at any time could be turned around on the American people and no American would have any privacy left, such [is] the capability to monitor everything: telephone conversations, telegrams, it doesn’t matter. There would be no place to hide.

If this government ever became a tyranny, if a dictator ever took charge in this country, the technological capacity that the intelligence community has given the government could enable it to impose total tyranny, and there would be no way to fight back, because the most careful effort to combine together in resistance to the government, no matter how privately it was done, is within the reach of the government to know. Such is the capability of this technology.

Senator Church spoke those words more than three decades ago, when the NSA's domestic surveillance capability was limited to hardline telephones and an occasional telegram. The agency had no access to the mail. Today the NSA is the largest intelligence agency on earth, and by far the most dangerous if not subjected to strict laws and oversight. It has the ability to virtually get into someone’s mind. It can read a person's most private thoughts expressed in e-mail correspondence sent from their home computer, eavesdrop on their cell phone as they drive to work, read the messages from their Blackberry as they ride the elevator, and then listen in on their office telephone, and monitor their computer and fax machine as they conduct business...

In an excerpt of Turley's testimony he said:

...Now, I want to be absolutely clear. What the President ordered in this case was a crime.

We can debate whether he had a good or bad motivation, but it was a crime.

Federal law makes it clear you cannot engage in this type of surveillance, in a domestic surveillance operation, without committing a crime and that you can go to jail for 5 years.

Now, we can debate the wisdom of that. We can debate why the President may have done it.

But, in my view, the President committed a crime, and we have to deal with that as citizens and, unfortunately, you have to deal with that as Members of Congress.

It gives me no pleasure to say that, but it also strikes me as an alarming circumstance when the President can go into a press conference and announce that he has violated a Federal statute 30 times and promises to continue to do so until someone stops him.

That's the most remarkable admission I've ever heard from a President of the United States.

Now, the Federal law is clear because of the exclusivity provision under Title III. Title III says quite clearly that all surveillance done domestically must be done pursuant to Title III or to FISA, and then FISA makes it a crime to engage in this type of surveillance without a court order.

Now, this is the most user-friendly law a President has ever been given. FISA virtually is devoid of a basis to turn down the President. That's why we've had over 13,000 FISA applications and only a handful of denials...

In an excerpt of Hersh's prepared statement he said:

...President Bush tells us only a few phone calls are listened to, but THAT'S NOT TRUE.

Mr. Bush says they only monitor calls to foreign countries, but THAT is ABSOLUTELY untrue.

He tells us that he spies only on known Al-Qaida contacts or affiliates, but I know for a fact that is NOT TRUE, because I was spied on in a house of worship IN THE UNITED STATES, and in private homes in Florida where I was meeting with other peaceful persons engaged in constitutionally-protected activity.

I HAVE EVERY REASON TO BELIEVE that the federal government listens to my phone calls to family members and friends about purely personal matters.

I have every reason to believe that the president's agents READ my e-mail, PHOTOGRAPH me as I exercise my Constitutional Rights, RECORD the license numbers of cars I ride in, and CREATE huge databases with information about me and my fellow activists, BECAUSE all of this specific activity is on record, from government files, as having been visited on American citizens, around the United States, by members of the Joint Terrorism Task Force, the FBI, the NSA and other agencies...

In an excerpt from Fredrickson's prepared statement she said:

...The White House and Department of Defense have used the tragedy of 9/11 to create a legal framework justifying coercive interrogations and torture as well as to short circuit judicial review of its actions.

On the topic of domestic surveillance and privacy rights, this is the same administration that had retired Rear Admiral John Poindexter develop the Total Information Awareness data-mining system at the Pentagon. That program was supposed to track in real time the electronic footprints of presumably every individual in the United States. The administration also proposed the Operation TIPS program, which would have recruited postal workers and cable technicians to be government snoops.

And the list goes on. Eavesdropping on attorney-client conversations. Implementing an air travel system called CAPPS II that promises to tar millions of innocent air travelers as potential terrorists. Actively seeking to paint its critics as traitors. Secretly deporting suspects to countries that use torture as an interrogation technique. Rounding up thousands of non-citizens after 9/11 on the weakest of leads. Aggressively using what should be limited anti-terrorism powers to side-step traditional checks and balances on its power. And creating arguably the most secretive administration this country has ever seen.

The NSA scandal is the latest and greatest in a long line of abuses. Congress must act...

In an excerpt of Martin's prepared statement she said:

The President claims he has authority as the Commander-in-Chief to conduct warrantless wiretaps of Americans. But when Congress enacted the Foreign Intelligence Surveillance Act in 1978, it expressly rejected the President’s claim of inherent authority to conduct warrantless wiretaps. It then went further and made it a crime to conduct such wiretaps.

The President has acted contrary to the express will of the Congress. The Supreme Court has never approved a claim of presidential authority to authorize acts outlawed by the Congress.

When Congress authorized secret wiretaps for national security purposes in 1978, it intended to prevent any future President from carrying out warrantless eavesdropping on Americans...

On that day Conyers also sent a letter to 20 telecommunications companies "to inquire whether your company has allowed the federal government to eavesdrop on customer communications through your facilities or has turned over customer records when not compelled to do so by law."

On May 10, 2006, Maurice Hinchey (D-NY) received a letter from the Department of Justice advising him that their investigation of the program had to be terminated due to denial of security clearances.

Fifteen days after the Office of Professional Responsibility letter, Representative Hinchey (D-NY) on May 25, 2006 introduced H. Res. 845, a resolution "requesting the President and directing the Secretary of Defense and the Attorney General to transmit to the House of Representatives not later than 14 days after the date of the adoption of this resolution, documents relating to the termination of the Department of Justice's Office of Professional Responsibility's investigation of the involvement of Department of Justice personnel in the creation and administration of the National Security Agency's warrantless surveillance program, including documents relating to Office of Professional Responsibility's request for and denial of security clearances." Hinchey was able to get three co-sponsors for this resolution. They are: Representative John Lewis (D-GA); Representative Henry Waxman (D-CA); and Representative Lynn Woolsey (D-CA).

U.S. Senate Judiciary Committee Hearing on Wartime Executive Power and the NSA's Surveillance Authority

During the Judiciary Committee hearing | Wartime Executive Power and the NSA's Surveillance Authority open to the public on February 6, 2006 Attorney General Alberto Gonzales defended the program asserting that the "except as authorized by statute" provision of meant that, due to the passage of the Authorization for the Use of Military Force, FISA isn't the exclusive means by which domestic electronic surveillance can be done. Gonzales said: "Congress and the American people are interested in two fundamental questions: is this program necessary and is it lawful. The answer to both questions is yes." In the excerpt following, Gonzales continued:

The question of necessity rightly falls to our Nation’s military leaders, because the terrorist surveillance program is an essential element of our military campaign against al Qaeda. I therefore address it only briefly. The attacks of September 11th placed the Nation in a state of armed conflict. In this armed conflict, our military employs a wide variety of tools and weapons to defeat the enemy. General Michael Hayden, Principal Deputy Director of National Intelligence and former Director of the NSA, recently explained why a terrorist surveillance program that allows us quickly to collect important information about our enemy is so vital and necessary to the War on Terror.

The conflict against al Qaeda is, in fundamental respects, a war of information. We cannot build walls thick enough, fences high enough, or systems strong enough to keep our enemies out of our open and welcoming country. Instead, as the bipartisan 9/11 and WMD Commissions have urged, we must understand better who the enemy is and what he is doing. We have to collect the right dots before we can "connect the dots." The terrorist surveillance program allows us to collect more information regarding al Qaeda’s plans, and, critically, it allows us to locate al Qaeda operatives, especially those already in the United States and poised to attack. We cannot defend the Nation without such information, as we painfully learned on September 11th.

As Attorney General, I am primarily concerned with the legal basis for these necessary military activities. The Attorney General of the United States is the chief legal adviser for the President and the Executive Branch. Accordingly, the Department of Justice has thoroughly examined this program and concluded that the President is acting within his power in authorizing it. The Department of Justice is not alone in concluding that the program is lawful. Career lawyers at NSA and its Inspector General office have been intimately involved in the oversight of the program. The lawyers have found the program to be lawful and reviewed its conduct. The Inspector Genera's office has exercised vigorous reviews of the program to provide assurance that it is carried out within the terms of the President's authorization.

The terrorist surveillance program is firmly grounded in the President's constitutional authorities. The Constitution charges the President with the primary responsibility for protecting the safety of all Americans, and the Constitution gives the President the authority necessary to fulfill this solemn duty. See, e.g., The Prize Cases, 67 U.S. (2 Black) 635, 668 (1863). It has long been recognized that the President’s constitutional powers include the authority to conduct warrantless surveillance aimed at detecting and preventing armed attacks on the United States. Presidents have repeatedly relied on their inherent power to gather foreign intelligence for reasons both diplomatic and military, and the federal courts have consistently upheld this longstanding practice. See In re Sealed Case, 310 F.3d 717, 742 (Foreign Intel. Surv. Ct. of Rev. 2002).

If this authority is available in ordinary times, it is even more vital in the present circumstances of our armed conflict with al Qaeda. The President authorized the terrorist surveillance program in response to the deadliest foreign attack on American soil, and it is designed solely to prevent the next al Qaeda attack. After all, the goal of our enemy is to blend in with our civilian population in order to plan and carry out future attacks within America. We cannot forget that the September 11th hijackers were in our country, living in our communities.

The President's authority to take military action—including the use of communications intelligence targeted at the enemy—does not come merely from his constitutional powers. It comes directly from Congress as well. Just a few days after the attacks of September 11th, Congress enacted a joint resolution to support and authorize the military response to the attacks on American soil. Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (Sept. 18, 2001) ("AUMF"). In the AUMF, Congress did two important things. First, it expressly recognized the President's "authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States." Second, it supplemented that 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" in order to prevent further attacks on the United States.

Accordingly, the President's authority to use military force against those terrorist groups is at its maximum because he is acting with the express authorization of Congress. Thus, under the three-part framework of Justice Jackson’s concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952) (Jackson, J., concurring), the President’s authority falls within Category I, and is at its highest. He is acting "pursuant to an express or implied authorization of Congress," and the President’s authority "includes all that he possesses in his own right [under the Constitution] plus all that Congress can" confer on him.

Senator Specter (R-PA) suggested letting the Foreign Intelligence Surveillance Court decide the legality of the program:

SPECTER: Mr. Attorney General, starting with the FISA Court: well- respected, maintains secrecy, experienced in the field -- and I posed this question to you in my letter -- why not take your entire program to the FISA Court within the broad parameters of what is reasonable and constitutional and ask the FISA Court to approve it or disapprove it?

GONZALES: Senator, I totally agree with you that the FISA Court should be commended for its great service. They are working on weekends, they're working at nights...

SPECTER: Now on to my question.

GONZALES: ... assisting us in the war on terror.

In terms of, "Why not go to the FISA Court?" once the determination was made that neither the Constitution nor FISA prohibited the use of this tool, then the question becomes, for the commander in chief, which of the tools is appropriate given a particular circumstance.

And we studied very carefully the requirements of the Constitution under the Fourth Amendment. We studied very carefully what FISA provides for.

As I said in my statement, we believe that FISA does anticipate that another statute could permit electronic surveillance in a way that...

SPECTER: OK, you think you're right. But there are a lot of people who think you're wrong.

As a matter of public confidence, why not take it to the FISA Court? What do you have to lose if you're right?

GONZALES: What I can say, Senator, is that we are continually looking at ways that we can work with the FISA Court in being more efficient and more effective in fighting the war on terror.

Obviously, we would consider and are always considering methods of fighting the war effectively against Al Qaeda.

SPECTER: Well, speaking for myself, I would urge the president to take this matter to the FISA Court. They're experts. They'll maintain the secrecy. And let's see what they have to say.

SPECTER: Mr. Attorney General, did Judge Robertson of the FISA Court resign in protest because of this program?

GONZALES: I do not know why Judge Robertson resigned, sir.

SPECTER: Has the FISA Court declined to consider any information obtained from this program when considering warrants?

GONZALES: Sir, what I can say is that the sources of information provided or included in our application are advised or disclosed to the FISA Court. Because, obviously, one of the things they have to do is judge the reliability.

SPECTER: So if you have information that you're submitting to the FISA Court in support for a warrant, you tell them that it was obtained from this program?

GONZALES: Senator, I am uncomfortable talking in great detail about how this information is generally shared.

What I can say -- repeat what I just said. And that is, we, as a matter of routine, provide to the FISA Court information about the sources of the information that formed the basis of an application.

SPECTER: I'm not asking you how you get the information from the program. I'm asking you, do you tell the FISA Court that you got it from the program?

I want to know if they are declining to issue warrants because they are dissatisfied with the program.

GONZALES: Senator, I believe that getting into those kind of details is getting into the details about how the program is operated.

Obviously, the members of the court understand the existence of this program.

What I can say is, we have very open and very candid discussion and relationship with the FISA Court. To the extent that we're involved in intelligence activities that relate in any way to the FISA Court and they have questions about that, we have discussions with the FISA Court.

Our relationship with the court is extremely important. And we do everything that we can do to assure them with respect to our intelligence activities that affect decisions that they make.

SPECTER: I'm not going to press you further. But I'd ask you to reconsider your answer.

Senator Leahy (D-VT) asked Attorney General Gonzales about opening mail:

LEAHY: Did it authorize the opening of first-class mail of U.S. citizens? That you can answer yes or no.

GONZALES: There is all kinds of wild speculation about...

LEAHY: Did it authorize it?

SPECTER: Let him finish.

GONZALES: There is all kinds of wild speculation out there about what the president has authorized and what we're actually doing. And I'm not going to get into a discussion, Senator, about...

LEAHY: Mr. Attorney General, you're not answering my question. I'm not asking you what the president authorized.

Does this law -- you're the chief law enforcement officer of the country -- does this law authorize the opening of first-class mail of U.S. citizens, yes or no, under your interpretation?

GONZALES: Senator, I think that, again, that is not what is going on here.

We're only focused on international communications where one part of the communication is Al Qaeda. That's what this program is all about.

LEAHY: You haven't answered my question.

Senator Kennedy (D-MA) asked if terror suspects could get off due to tainted evidence:

KENNEDY: ...And my question to you is, looking at the national security issue, wouldn't we be in a stronger position if you had come to the Congress and say, "Let's get the kind of legislative authority that we need," rather than take a chance?

Wouldn't our national security have been better defended if we didn't have any question as to the legality of this issue?

Wouldn't the people that are in the front lines of our national security be better protected and our court system better defended?

And when we were able to get those al Qaeda individuals and they know they don't have any loopholes by appealing illegal eavesdropping, maybe then they begin to talk and try and make a deal.

KENNEDY: Maybe then that enhances our national security as well.

GONZALES: Well, sir, you've said a lot, so I don't know...

KENNEDY: Got short time, but I've...

GONZALES: Let me just say: You're absolutely right. We've got to have a very clear message. And we cannot be wrong on this.

I do not think that we are wrong on this.

Are we worried about the front-line people out at NSA? Of course we are. That is why the president, the day after the story ran in the New York Times, went out to the American people to reassure them that this was not a situation where we had an agency running amok, that he had authorized this activity and it was very narrowly tailored.

In terms of whether or not are we concerned about activities that may jeopardize investigations or prosecutions, absolutely we are. That's the last thing we want to do.

We believe this program is lawful. We do not believe that prosecutions are going to be jeopardized as a result of this program.

Obviously, we're in litigation now so I don't want to say much more than that. But, of course, we ought to be operating in a way where we're doing what we need to do to protect our investigations and to protect our prosecutions. And I think that we're doing that.

Senator Lindsey Graham (R-SC) talked about the role of Congress and intentions of their Authorization for the Use of Military Force passed in September 2001:

GRAHAM: ...In a dangerous and difficult time for our country, I chose inquiry versus inquisition, collaboration versus conflict.

To me there's two big things that this Congress faces and this president faces.

In all honesty, Mr. Attorney General, this statutory force resolution argument that you're making is very dangerous in terms of its application for the future. Because, if you overly interpret the force resolution -- and I'll be the first to say, when I voted for it, I never envisioned that I was giving to this president or any other president the ability to go around FISA carte blanche.

And you're right: It is not my intent it's the letter of the resolution.

What I'm saying is that, if you came back next time or the next president came back to this body, there would be a memory bank established here and I would suggest to you, Mr. Attorney General, it would be harder for the next president to get a force resolution if we take this too far. And the exceptions may be a mile long.

Do you share my concern?

GONZALES: I understand your concern, Senator.

GRAHAM: Thank you. And I appreciate that.

So that's just a comment about the practical application of where we could go one day if we over interpret. Because the offer is on the table; let's make sure we have the same understanding. Because if we have the same understanding between the executive, the legislative and the judicial branch, our enemy is weaker and we're stronger.

Now, to the inherent authority argument, taken to its logical conclusion, it concerns me that it could basically neuter the Congress and weaken the courts. And I'd like to focus a minute on the inherent authority of the president during a time of war concept...

In closing, the Chair of the hearing, Arlen Specter, recommended letting the Judiciary branch decide the legality of the program, rather than the Executive branch, stating that "what is at stake is the equilibrium established by our constitutional system.":

SPECTER: The law involving wiretapping, prior to the enactment of the Foreign Intelligence Surveillance Act, had the preceding sentence, quote: "Nothing contained" — referring to the law — "shall limit the constitutional power of the president to obtain foreign intelligence information deemed essential to the security of the United States." When the Foreign Intelligence Surveillance Act was passed, that language was stricken. So by all customary standards of statutory interpretation, FISA, Foreign Intelligence Surveillance Act, changed that 180 degrees, didn't it?

GONZALES: There is no question, if you look at the legislative history and in the record, that Congress intended to try to limit whatever president's inherent authority existed. But there's also, from my review of the record, a clear indication that some members of Congress were concerned about the constitutionality of this effort. And I think the House conference report talked about the fact -- this is what we're trying to do. It may be that the Supreme Court may have a different view of this. And I'm paraphrasing here. But that's a remarkable acknowledgement by a member of Congress that: Geez, is what we're doing here is constitutional? No question about it than that. Certainly, Congress intended to (inaudible) the president's authority, but also Congress, when they passed FISA, included Section 109, which is a main criminal provision in FISA that talks about, "You can't engage in electronic surveillance under (inaudible) law, except as otherwise provided by statute." And so I think we have to apply a fairly possible reading of the statute in that way, in order to avoid a very, in my judgment, a tough constitutional question as to whether or not -- does the Congress have the constitutional authority to pass the statute that infringes upon the president's inherent authority as commander in chief to engage in electronic surveillance of an enemy during a time of war?

SPECTER: I don't think you can use the principle of avoiding a tough constitutional conflict by disagreeing with the plain words of the statute. Attorney General Gonzales, when members of Congress heard about your contention that the resolution authorizing the use of force amended the Foreign Intelligence Surveillance Act, there was general shock.

GONZALES: Sir, we've never asserted that FISA has been amended. We've always asserted that our interpretation of FISA, which contemplates another statute and we have that here in the authorization to use force, that those complement each other. This is not a situation where FISA has been overwritten or FISA has been amended. That's never been our position.

SPECTER: That just defies logic and plain English. FISA says squarely that you can't have electronic surveillance of any person without a warrant. And you are saying, when you tag on to this other statute, which isn't a penal provision, that those words in FISA are no longer applicable, that there's been a later statutory resolution by Congress which changes that. Attorney General Gonzales, I think we come back to the Jackson formula. And my judgment, with some experience in the field -- and I was starting to tell you how shocked people were when we found out you thought that what we had done on the resolution of September 14th authorized electronic surveillance, just nobody had that in the remotest concept. And Senator Graham has articulated in very forceful terms the consequence of the administration making this interpretation, that before you ever get any authority from Congress again, we're going to go through every conceivable exception we can think of, or we just may not give the authority, because you come back to relying on inherent authority. And you may have the inherent authority. You may have the Article II authority, but I do not think that any fair, realistic reading of the September 14th resolution gives you the power to conduct electronic surveillance. That brings me to, really, what Jackson said, and it's so wise, it's worth reading again, quote: "When the president takes measures incompatible with the express or implied will of Congress, his power is at its lowest ebb, for then he can rely upon his own constitutional powers, minus any constitutional powers of Congress over the matter." Now, my reading of this situation legally is that there has been an express will of Congress to the contrary. And that when the president seeks to rely upon his own inherent power, then he is disregarding Congressional constitutional power. And then Jackson goes on, quote, "Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon subject." And I think that's what you're doing, you're disabling Congress from acting on the subject which Congress did, signed by the president. And then Justice Jackson goes on for really the critical language, "Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution."

SPECTER: That's what we're doing here today. We're going to do it a lot more. And then these are the critical words, more so than any of the others, quote: "For what is at stake is the equilibrium established by our constitutional system." And there's a very high value placed on the equilibrium of our constitutional system. That means everything.

GONZALES: I agree, Senator.

SPECTER: OK. Well, finally we found something to agree upon. Now, on the issue of the inherent power of the president, I believe the president has very substantial Article II power. I believe he does. And we have to be concerned, as a life-or-death matter, about Al Qaida. We really do. And I subscribe to the good faith of the president as to what he has done here. And I've said that publicly. And I subscribe to your good faith in what you have done here. And I just hope that there will be oversight somewhere along the line — perhaps in the Intelligence Committee, perhaps in the Intelligence Committee — to get into the details, the interstices, the semicolons is what you're doing — because I know you can't do that here. But I don't think you can measure the president's inherent authority under Article II without knowing what you're doing. Just cannot do it. Because that authority is not unlimited, and you've agreed to that.

GONZALES: I agree with that.

SPECTER: It's not a blank check.

GONZALES: That is correct, sir.

SPECTER: So it has to be within the parameters of being reasonable. And the cases, the circuit opinions emphasize the reasonable parameters. And the Supreme Court hasn't ruled on this issue yet. It's an open question. And the circuit opinions are mostly, if not all predating the Foreign Intelligence Surveillance Act. So I just hope the Intelligence Committee is going to come down to brass tacks here, and I hope it's the committee and not just the ranking and chairman. Both Senator Roberts and Senator Rockefeller have expressed forcefully their concern about not being lawyers and not having an opportunity to present these issues to lawyers to get a legal interpretation to square the facts up with what the law is. They just have been very explicit in their own limitations.

So, in conclusion, two most popular words of any presentation, I hope you will give weighty thought to taking this issue to the Foreign Intelligence Surveillance Court, lock, stock and barrel. Let them see the whole thing and let them pass judgment. Because if they did disagree with you, it's the equilibrium of our constitutional system which is involved.

And the Al Qaida threat is very weighty, but so is the equilibrium of our constitutional system.

U.S. Senate Judiciary Committee Hearing on Wartime Executive Power and the NSA's Surveillance Authority II

During the Judiciary Committee hearing Wartime Executive Power and the NSA’s Surveillance Authority II held on February 28, 2006 the panelists were: James Woolsey the Vice President Global Strategic Security Division; Harold Hongju Koh the Dean of Yale Law School; Ken Gormley an Associate Professor of Constitutional Law at Duquesne University School of Law; Professor Doug W. Kmiec of Pepperdine University School of Law; Bruce Fein, Esq. of Fein & Fein; Robert F. Turner the Associate Director of Center for National Security Law at University of Virginia; and Robert A. Levy, Esq. of Senior Fellow in Constitutional Studies at CATO Institute.

In an excerpt of Woolsey's prepared statement he said:

...The FISA Court considered and deliberated about only 1,758 requests for warrants in all of 2004 (and asked that 94 be modified before they were granted). And for each FISA warrant application:
-- a warrant request form is filled out by the FBI;
-- the target (an individual) is identified;
-- facts are set out establishing that there is probable cause to believe that the individual is involved in terror or spying;
-- details of the facilities and communications to be monitored are supplied;
-- procedures are set forth to minimize the collection of information about people in the U.S.
-- a Field Office Supervisor then verifies and approves the request;
-- FBI Special Agents and Attorneys at Headquarters ensure that the form contains all required information and finish the form;
-- The Director of the Agency certifies that the information being sought is necessary to protect the U.S. against actual potential attacks, spying, or international terrorism and cannot be obtained by normal investigative techniques;
-- At the Justice Department, lawyers in the Office of Intelligence Policy and Review draft a formal application based on the request;
-- The Attorney General reviews and approves the application.

After the above steps are completed, the Attorney General may authorize an emergency order for a 72-hour period if he determines that there is a "factual basis" to believe that the order would be consistent with FISA, but if a FISA Court order cannot be obtained within that time the information obtained from the surveillance may not be used. Once the application is before the Court it must determine that there is probable cause to believe that the targeted individual is involved in terrorism or spying, that the information sought is necessary to protect the country against terrorism, and that the minimization procedures are appropriate.

Applying the understandably case-by-case deliberative tool of the FISA Court to the need very rapidly to map the electronic battlefield of the current war is even more of a misfit than applying the rules of sailboat racing to a race between aircraft traveling several times the speed of sound. In my view it is not that an amended FISA procedure is necessary, it is that the case-by-case deliberation for which courts are designed and well-suited is not the right tool for providing a check on the type of electronic surveillance that is the subject of these hearings. Neither the Attorney General nor the FISA Court can usefully deliberate and decide almost instantaneously whether there is probable cause to believe that an individual is an agent of a foreign power or terrorist organization if the government does not even know the name associated with a cell phone or email address. More basically, this issue of probable cause is a law enforcement question, not an intelligence question. We may learn at least as much of importance if the individual being called from an al Qaeda site overseas is a dupe or the subject of a false flag operation by terrorists and is not their agent at all. And if one tries to fit this battlefield electronic mapping operation into the FISA warrant process, then as Judge Posner has pointed out (WSJ Feb. 15, 2006) – e.g. if one lowers the warrant requirement to one of only "reasonable suspicion" or even whether an intercept "might yield useful information" -- then one rapidly approaches the point where the warrant process ceases to be a filter and judges have no basis for refusing to grant applications. It is not just that rapid mapping of the electronic battlefield doesn’t fit the FISA warrant process well, it does not fit it at all...

In an excerpt of Koh's prepared statement he said:

...In my professional opinion, the ongoing NSA domestic surveillance program is blatantly illegal, whether or not –as its defenders claim--it is limited to international calls with one end in the United States.

None of the program's defenders – including those who appear today-- has identified any convincing legal justification for conducting such a sweeping program without the legally required checks of congressional authorization and oversight and judicial review. My government service makes me fully sensitive to the ongoing threat from Al Qaeda and the need for law enforcement officials to be able to gather vital information before another terrorist attack occurs. Of course, in time of war, our Constitution recognizes the President as Commander-in-Chief. But the same Constitution requires that the Commander-in-Chief obey the Fourth Amendment, which guarantees that [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 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. By so saying, the Fourth Amendment requires that any government surveillance be reasonable, supported except in emergency situations by warrants issued by courts, and based upon specific probable cause. The current NSA surveillance program, as I understand it, violates all three constitutional standards...

In an excerpt of Professor Gormley prepared statement he said:

...I have absolutely no question about the good faith of our President and our Attorney General. These are unusual times in our nation's history. I agree that the President's power as commander-in-chief -- even on American soil -- is potentially heightened, at least for a period of time, given the attacks on the World Trade Center and the continued threat of attacks from a new brand of enemy.

Moreover, it is important to recognize that after September 11th, a fair case can be made that our nation is faced with a shifting paradigm, in which our own soil is potentially part of the field of battle. This, combined with new challenges posed by previously-unimagined forms of communications technology, may ratchet up presidential power (generally) on the homefront.

At the same time, the defense offered by the Bush Administration for its wiretap program is eerily similar to the losing argument advanced by President Harry Truman in 1952, when he seized the steel mills. Even aggregating all of the powers available to him under the Constitution, the Supreme Court concluded that the goal of "keeping the country from going to hell" -- even during time of war; was not sufficient to nullify the Constitution. Seizing private property on American soil is a power generally reserved to Congress pursuant to the 5th Amendment power involving eminent domain. To make matters worse, President Truman defied legislation there, amendments to the Taft-Hartley Act dealing with labor unrest that specifically withheld such power from the executive branch. As Justice Jackson declared in his now-famous concurrence in the Steel Seizure Case, presidential power was at its high point in the "theater of war," abroad. It was at its "lowest ebb" on American turf, especially when the president had acted without Constitutional or Congressional support. 343 U.S. at 635-38 (Jackson, J., concurring).

Applying these lessons to the Bush wiretap program, it is possible to draw useful conclusions. In a nut-shell, the Bush Administration program bumps up against the Constitution in a number of different ways, and fails to survive that collision. There are problems enough when the executive branch does an end-run around an act of Congress, by-passing a legislative scheme that has been put in place for precisely this type of domestic surveillance. But the problems only multiply tenfold where, as here, the chief executive's actions collide with the fundamental rights of citizens and residents under the Bill of Rights, specifically the 4th Amendment. In such a case, the president's power is at rock bottom. Indeed, it arguably falls into a category even lower than that occupied by President Truman in the Steel Seizure case. Taking property by eminent domain, if it is accomplished by the government improperly, can always be remedied after-the-fact by just compensation. The right of privacy protected by the 4th Amendment, however, can never be returned once violated. That is why individual rights and liberties are protected on a prospective basis, under our Constitution. Once lost, those rights are irretrievable.

There was no question that President Truman believed passionately that his actions were necessary to protect American soldiers' lives and to safeguard the nation. (It turned out, years later, that the threat posed by a steel strike was grossly overstated). Symposium at 676. There is likewise no doubt that President Bush believes, fervently, that the warrantless surveillance of certain communications by citizens or residents on American soil is necessary to carry out the administration's difficult war on terror.

Yet as Senator Specter aptly stated in the first round of this Committee's hearings, echoing the words of Justice Sandra Day O'Connor in the Hamdi case, this does not provide a "blank check." Congress and the courts have a duty to correct the situation, if the executive branch commits an error in assessing its own powers. At least four problems are evident with respect to the current Bush administration secret surveillance program. In simplest form, they are as follows:

First, nothing in the text of the Constitution specifically gives the President the power to bypass the warrant requirement of the 4th Amendment, on the domestic front, even during times of emergency.

Second, the administration's program circumvents a specific act of Congress, which establishes the FISA court and sets forth detailed procedures for conducting surveillance of precisely this sort, involving citizens and residents of the United States. 50 U.S.C. Section 1801 et seq. (1978).

Third, that power is even further diminished because the Bush administration's program collides with rights of American citizens and residents under the Bill of Rights, to wit, those protected by the Fourth Amendment. This collision potentially puts the President's power at an even lower point on the continuum of Constitutional power than that of President Truman in the Steel Seizure case.

Fourth, if one adapts Justice Jackson's Steel Seizure test and applies it to Congress, one discovers that Congress is at its zenith in exercising powers in this matter.

Congress has the power to establish inferior courts and to define their jurisdiction, pursuant to Article I, Section 8, Clause 9 of the Constitution. Congress furthermore has the power to enact laws ensuring that the 4th Amendment and other provisions of the Constitution are observed; it has done so with detailed wiretap statutes since the 1960s. On top of this, Congress is given the exclusive power to legislate on domestic matters (Article I, Section 1) and to declare war (Article I, Section 8, clause 11). Thus, Congress is at a high point in terms of exercising its powers here. On the other hand, President Bush is arguably in the third and lowest category of Presidential power set forth by Justice Jackson in the Steel Seizure case, as discussed above. Unlike some struggles between two branches of government, this is not a close call. The true challenge for this Committee is to find an appropriate resolution to this quandary...

In an excerpt of Kmiec's prepared statement he said:

...While signals intelligence has been a common feature of past war efforts, this exclusion is apparently insufficient to cover the present Terrorist Surveillance Program of the NSA. Assuming this to be true, it is nevertheless significant that Congress understood that the NSA surveillance that it had categorically excluded from FISA could include the monitoring of international communications into or out of the United States of U.S. citizens. The Senate Report, for example, specifically referred to the Church Committee Report for its description of the NSA’s activities, S. Rep. No. 95-604, at 64 n.63, 1978 U.S.C.C.A.N. at 3965-66 n.63, which stated that "the NSA intercepts messages passing over international lines of communication, some of which have one terminal within the United States. Traveling over these lines of communication, especially those with one terminal in the United States, are messages of Americans . . . ." S. Rep. 94-755, at Book II, 308 (1976). Congress’ understanding in the legislative history of FISA that such communications could be intercepted outside FISA procedures again suggests the prudent manner in which Congress sought to avoid executive-legislative clash.

Which brings us to the question of what, if anything, does FISA require during wartime? It is fair to observe that in all the recorded military engagements of our past, the military has engaged in searches and surveillance without a warrant. Neither Congress nor the President has required the armed forces to seek a battlefield warrant to conduct visual or electronic surveillance of enemy forces. Was it FISA's intent for military operations within the United States to operate under a different rule? There is no legislative history requiring that FISA be construed contrary to historical practice. The Civil War is, of course, the main historical battle fought on our soil and there is no history suggesting that any search or observation of confederate forces during the Civil War was subject to a warrant requirement. The expressed congressional intent was to "reconcile national intelligence and counterintelligence needs with constitutional principles in a way that is consistent with both national security and individual rights." S.Rep. No. 95-701, 95th Cong., 2d Sess. 16 (1978). The courts have interpreted this language carefully so as not to defeat valid intelligence needs. Thus, Judge Wilkey in U.S. v. Belfield, 692 F.2d 141 (D.C. Cir 1982) rejected the claim that FISA, insofar as it does not require disclosure and an adversary hearing, violates the Fifth and Sixth amendments or was contrary to the Omnibus Crime Control and Safe Streets Act of 1968 (OCCA) 18 U.S.C. § 2518(9) (1976) (providing the contents of an intercepted communication may not be used in any proceeding unless the aggrieved person is first furnished with a copy of the application and court order authorizing the interception). Applying the general disclosure obligation, Judge Wilkey reasoned, would have ignored that Congress recognized the need for the Executive to engage in and employ the fruits of clandestine surveillance without being constantly hamstrung by disclosure requirements.

It is thus no disrespect to Congress' ample authority in matters of foreign affairs to believe that FISA should not be readily interpreted to "hamstring" the Executive in its conduct of wartime intelligence. Were enemy al Qaeda forces to invade and operate on the territory of the United States, the Constitution could not reasonably be construed to require a search warrant for the military to conduct surveillance of the enemy, and the greatest hesitation should be exhibited before attributing to Congress the intent to encumber the military with a FISA warrant...

In a brief excerpt from Turner's prepared statement he said:

...Summarized briefly, I believe the President's critics have been focusing on the wrong law. They are certainly correct when they emphasize the importance of the "rule of law" and note that the president is not "above the law" in our system of government. And in my view there has been some alarming "lawbreaking" that has contributed to the current controversy and has weakened our nation in the struggle against international terrorism.

But to me, the primary focus ought not start with a discussion of whether the Authorization for the Use of Military Force (AUMF)—passed by Congress with but a single dissent on September 14, 2001—constituted statutory authorization for warrantless foreign intelligence "wiretaps" (and, obviously, the technology involved here has little to do with attaching alligator clips to telephone terminals), but on the more fundamental question of where the Constitution placed discretion in this area in the first place. For if the people have vested exclusive responsibility for foreign intelligence national security surveillance in the discretion of the Executive, and Congress has attempted to usurp that power not by amending the Constitution but merely by statute, I submit that it is Congress that has broken the law. The remedy, then, is not to further encumber the President’s efforts to discover and counter the military plans of our nation’s declared enemies, but rather to correct the error and return to the constitutional scheme. Obviously, if members believe that concerns of civil liberties or fair play warrant placing greater restrictions on the power of our Executive to protect this country from foreign terrorists or other enemies, the option will remain to argue that case on the merits and seek appropriate amendments to the Constitution as provided for in Article V...

In an excerpt from Levy's prepared statement he said:

...My conclusions, as elaborated in the following sections, are: First, the president has some latitude under the "executive Power" and "Commander-in-Chief" Clauses of Article II, even lacking explicit congressional approval, to authorize NSA warrantless surveillance without violating the "reasonableness" requirement of the Fourth Amendment. But second, if Congress has expressly prohibited such surveillance (as it has under FISA), then the statute binds the president unless there are grounds to conclude that the statute does not apply. Third, in the case at hand, there are no grounds for such a conclusion -- that is, neither the AUMF nor the president's inherent powers trump the express prohibition in the FISA statute.

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

U.S. Senate Judiciary Committee Hearing on NSA III: Wartime Executive Powers and the FISA Court

During the Judiciary Committee hearing NSA III: Wartime Executive Powers and the FISA Court , the third hearing on the controversy that was held on March 28, 2006, the two panelists of the second panel were: Morton H. Halperin a Senior Fellow at Center for American Progress and Executive Director of Open Society Policy Center; and David S. Kris the Senior Vice President of Time Warner, Inc.

In an excerpt of Halperin's prepared statement he said:

...Let me start with an area of complete agreement. If al Qaeda is calling someone in the United States, the government should be listening. I would have thought that FISA provided all the authority needed to listen to such calls. If the administration believed that the FISA rules were not sufficient it should have come to Congress and asked for an amendment to FISA. Now, if the administration makes the case in public that, following 9/11, greater flexibility is needed to listen in a timely way to such calls, Congress should be prepared to amend FISA as necessary and consistent with the Fourth Amendment—after it is fully briefed on any such need. I will describe below the possible elements of such legislation based on ideas that I understand have been discussed in various congressional offices.

I want to emphasize what I believe to be a fundamental point: Congress cannot legislate in the dark. Before Congress considers further legislation, it must conduct a full and complete investigation of the full range of current activities being carried on outside of the procedures prescribed by FISA. It should also insist that the administration provide a public explanation of what additional authority it believes it needs, with additional detail provided in closed hearings. And Congress should require that, as a condition for granting the additional authority, all surveillance be conducted pursuant to the standards of FISA...

In an excerpt of Kris's prepared statement he said:

...My statutory and constitutional analysis of the NSA surveillance program can be summarized as follows: (1) NSA engaged in foreign intelligence "electronic surveillance" as defined by FISA ; (2) FISA’s "exclusivity provision" prohibits such surveillance except under the "procedures" in FISA; (3) the September 2001 Authorization to Use Military Force (AUMF), as interpreted by the Supreme Court in Hamdi v. Rumsfeld, does not implicitly repeal the exclusivity provision or otherwise authorize the surveillance; and therefore (4) the NSA’s surveillance program raises the question whether the exclusivity provision is an unconstitutional infringement of the President’s constitutional power under Article II. The answer to that question (and to the related Fourth Amendment question) depends in large part on facts not yet available. I believe, however, that the constitutional analysis will turn in large part on two operational issues – the importance of the information sought (as compared to the scope of the surveillance), and the need to eschew the use of FISA in obtaining the information. With the relevant facts unavailable, I express no opinion on the constitutional issue.

As of this writing, the government’s best legal defense of the NSA program appears in a letter from DOJ to certain Members of Congress dated December 22, 2005, and a whitepaper released by DOJ on January 19, 2006. The letter and whitepaper can be summarized as follows: (1) the President has constitutional authority under Article II to "order warrantless foreign intelligence surveillance within the United States" of the type conducted by NSA; (2) that constitutional authority "is supplemented by statutory authority under the AUMF" as interpreted in Hamdi; (3) the NSA surveillance program accords with the exclusivity provision because FISA "permits an exception" to its own procedures where surveillance is "authorized by another statute, even if the other authorizing statute does not specifically amend" the exclusivity provision; and (4) any doubt on the previous question must be resolved in the government's favor to "avoid any potential conflict between FISA and the President’s Article II authority as Commander in Chief." Finally, the government asserts in its whitepaper, (5) if the exclusivity provision does forbid the NSA surveillance, then it was repealed by the AUMF or is unconstitutional. In the discussion that follows, I address each of these arguments. While I do not agree with the government, I appreciate the very high quality of its current legal analysis...

House Committee on Intelligence

Representative Jane Harman (D-CA), of the Gang of Eight, wrote a letter to President Bush dated January 4, 2006, in an effort to get the full House Permanent Select Committee on Intelligence briefed on the program. In an excerpt from her letter, Harman wrote:

...As a member of the Gang of Eight, I have received periodic briefings on highly classified programs. However, with respect to the NSA program that you have disclosed, I have reviewed the law and now believe that the practice of briefing only certain Members of the intelligence committees violates the specific requirements of the National Security Act of 1947.

The National Security Act requires that "The President shall ensure that the congressional intelligence committees are kept fully and currently informed of the intelligence activities of the United States . . . ." 50 U.S.C. § 413(a)(1). The Act makes clear that the requirement to keep the committees informed may not be evaded on the grounds that "providing the information to the congressional intelligence committees would constitute the unauthorized disclosure of classified information." 50 U.S.C. § 413(e).

The Act provides for one exception to the President's duty to keep all committee Members fully and currently informed of intelligence activities. In the context of a covert action, the President may, if he concludes that "it is essential . . . to meet extraordinary circumstances affecting vital interests of the United States," limit notification to the Gang of Eight. 50 U.S.C. § 413b(c)(2). That procedure applies by the terms of the statute to covert actions, not intelligence collection activities.

For all intelligence activities that are not covert actions, the Executive Branch's duty is clear: the "heads of all . . . entities involved in intelligence activities shall . . . keep the congressional intelligence committees fully and currently informed of all intelligence activities." 50 U.S.C. § 413a(a)(1) (emphasis added).

The NSA program does not qualify as a "covert action." That term is defined in the National Security Act as "activities of the United States Government to influence political, economic, or military conditions abroad, where it is intended that the role of the United States Government will not be apparent." 50 U.S.C. § 413b(e). Covert actions, pursuant to the statute, do not include "activities the primary purpose of which is to acquire intelligence . . . ." 50 U.S.C. § 413b(e)(1).

As a general matter, Gang of Eight briefings do not provide for effective oversight. Members of the Gang of Eight cannot take notes, seek the advice of their counsel, or even discuss the issues raised with their committee colleagues. It is precisely for this reason that the law requires briefings for the full committee. As you know, both congressional intelligence committees are select committees, formed of Members who hold the highest security clearances and have a proven ability to safeguard classified information. They were formed to be a select subset of the Congress, which could provide oversight on behalf of their colleagues who do not sit on the intelligence committees.

I urge you to reconsider your position. In my view, failure to provide briefings to the full congressional intelligence committees is a continuing violation of the National Security Act.

Representative Heather Wilson (R-NM), Chair of the House Technical and Tactical Intelligence Subcommittee of the House Permanent Select Committee on Intelligence, in a press statement she released dated February 8, 2006 said she "wrote to Attorney General Alberto Gonzales asking to be fully informed about the NSA program" adding that her "request covered all electronic surveillance conducted without a court order within the United States since September 11, 2001. I also asked to be fully informed on what are called 'minimization' procedures and mechanisms in place and reviews conducted to ensure full compliance with the Foreign Intelligence Surveillance Act and other laws protecting the privacy of U.S. persons." She added that she believes "the time has come to review and update the Foreign Intelligence Surveillance Act." In an excerpt from her statement, Wilson said:

...I had serious concerns and questions about this program when it was initially reported. Those concerns grew in recent days as the Attorney General answered questions and did not answer others in the Senate.

The House Intelligence Committee as a whole has to be briefed into this program and fully informed by the Administration on exactly what is being done. We must conduct a complete review of this program. There are serious questions that need answers, and we are starting to get those answers. That could not be done by the Chairman and the Ranking member alone, and the Administration's decision to do so is the right thing to do.

The FISA statute does allow the President and the Congressional leadership to agree on procedures that would limit information on some programs to a handful of members – the so-called Gang of Eight. These procedures are not written down and are really a matter of practice and negotiation between successive Presidents and Congresses. There are reasons to limit some information to an even smaller set of people than the intelligence committees.

At the same time, the Administration regularly and systematically briefs Intelligence Committee members about highly classified programs which, if compromised, could cause tremendous damage to national security.

The members of the Intelligence Committee are serious people committed to protecting this country and its secrets. Most of us have some background in national security matters. After 11 years in the Air Force, I served on the National Security Council Staff in the first Bush White House. I've had a security clearance of some form or another for all but about three years since I was 17 years old.

I have spent enough time in the world of intelligence to know that it is very common for published reports in this field to be inaccurate. That's not intentional; it's just the nature of covering secrets. The inaccuracies cannot be corrected by the people who run the programs.

Effective oversight has to start with the facts. The facts must come from the National Security Agency, the Attorney General and the Director of National Intelligence.

In the war on terrorism, I believe Congress and the President share the same goal: to keep Americans safe and free. All of us remember where we were on that cool September morning and all of us share the same resolve to make sure that we never endure a day like that again...

On February 8, 2006 Michael V. Hayden and Alberto R. Gonzales gave the committee a secret briefing. Jane Harman (D-Calif.), told reporters that "the ice is falling.

On February 16, 2006 the co-chairmen of the House Permanent Select Committee on Intelligence said the committee will hold closed door investigations. Jamal Ware, a spokesman for Chairman Hoekstra, said the inquiry would not examine operational details, however anonymous congressional aides and representative Heather A. Wilson said it would. Rep. Jane Harman (D-Calif.) said she was told there was no broader program than the NSA warrantless surveillance by White House counsel Harriet Miers on March 1 and by Attorney General Alberto R. Gonzales on March 2, 2006.

Senator Feingold's Motion to Censure the President

Senator Russell Feingold (D-WI), a member of both the Senate Judiciary Committee and the Select Committee on Intelligence, on March 12 2006, introduced S. Res. 398 "a resolution relating to the censure of George W. Bush." Feingold was able to get three other co-sponsors for this proposed resolution: Senator Tom Harkin (D-IA), Senator Barbara Boxer (D-CA); and Senator John Kerry (D-MA). At the time, many reporters suggested that his call for censure was due to presidential aspirations, an attempt to appeal to the liberal 'base' of the Democratic Party. However, Feingold later announced that he would not be running for the presidency, putting those allegations to rest.

An excerpt of Feingold's proposed resolution follows:

Whereas President George W. Bush has, since the public disclosure of the National Security Agency surveillance program, falsely implied that the program was necessary because the executive branch did not have authority to wiretap suspected terrorists inside the United States, by making statements about the supposed need for the program, including--

(1) on January 25, 2006, stating at the National Security Agency that `When terrorist operatives are here in America communicating with someone overseas, we must understand what's going on if we're going to do our job to protect the people. The safety and security of the American people depend on our ability to find out who the terrorists are talking to, and what they're planning. In the weeks following September the 11th, I authorized a terrorist surveillance program to detect and intercept al Qaeda communications involving someone here in the United States.'; and

(2) on January 31, 2006, asserting during the State of the Union that `The terrorist surveillance program has helped prevent terrorist attacks. It remains essential to the security of America. If there are people inside our country who are talking with al Qaeda, we want to know about it, because we will not sit back and wait to be hit again.'; and

Whereas President George W. Bush inaccurately stated in his January 31, 2006, State of the Union address that `Previous Presidents have used the same constitutional authority I have, and federal courts have approved the use of that authority.', even though the President has failed to identify a single instance since the Foreign Intelligence Surveillance Act of 1978 became law in which another President has authorized wiretaps inside the United States without complying with the Foreign Intelligence Surveillance Act of 1978, and no Federal court has evaluated whether the President has the inherent authority to authorize wiretaps inside the United States without complying with the Foreign Intelligence Surveillance Act of 1978: Now, therefore, be it

Resolved, That the United States Senate does hereby censure George W. Bush, President of the United States, and does condemn his unlawful authorization of wiretaps of Americans within the United States without obtaining the court orders required by the Foreign Intelligence Surveillance Act of 1978, his failure to inform the full congressional intelligence committees as required by law, and his efforts to mislead the American people about the authorities relied upon by his Administration to conduct wiretaps and about the legality of the program.

During the Judiciary Committee hearing An Examination of the Call to Censure the President held on March 31, 2006 on Senator Feingold's proposed resolution to censure President George W. Bush the five panelists were: Professor Robert F. Turner the Associate Director of Center for National Security Law at University of Virginia; Bruce Fein a Partner at Fein & Fein; Lee Casey a Partner at Baker & Hostetler; John Dean an author and former White House Counsel to President Richard Nixon; and John Schmidt a Partner at Mayer Brown.

In an excerpt of Professor Turner's prepared statement he said:

...Let me highlight a few of the relevant facts in this matter:

- American wartime leaders have been authorizing the warrantless intercept of enemy communications into the United States since General George Washington authorized the surreptitious interception of mail from Great Britain during the American Revolution. Abraham Lincoln authorized the tapping of telegraph lines, Woodrow Wilson authorized monitoring all cable traffic between the United States and Europe, and Franklin D. Roosevelt authorized broad monitoring of international communications long before Congress authorized American participation in World War II.

- When FISA was before the Senate in 1978, President Carter’s Attorney General, former Court of Appeals Judge Griffin Bell, testified. He noted that FISA did not include any recognition of the President’s independent constitutional authority to authorize warrantless wiretaps for foreign intelligence purposes, as the 1968 Crime Control and Safe Streets Act had done. And Attorney General Bell observed that the FISA statute "does not take away the power of the President under the Constitution."

- When FISA was enacted, Congress established not only the Foreign Intelligence Surveillance Court, but also a Foreign Intelligence Surveillance Court of Review to hear appeals from the FISA Court. In its only case, decided on November 18, 2002, the unanimous FISA Court of Review observed that every court to have decided the issue has, and I quote, "held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information," and concluded: "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." (My emphasis.)

- It is not as if the Founding Fathers ignored the issue of Intelligence. As early as 1776, Benjamin Franklin and his colleagues on the Committee of Secret Correspondence in the Continental Congress unanimously agreed that they could not share sensitive secrets about a French covert operation to assist the American Revolution, because: "we find by fatal experience that Congress consists of too many members to keep secrets."

- On March 5, 1788, writing in Federalist No. 64, John Jay explained to the American people, while advocating ratification of the Constitution, that Congress could not be trusted to keep secrets. It is worth quoting his words:

There are cases where the most useful intelligence may be obtained, if the persons possessing it can be relieved from apprehensions of discovery. Those apprehensions will operate on those persons whether they are actuated by mercenary or friendly motives, and there doubtless are many of both descriptions, who would rely on the secrecy of the president, but who would not confide in that of the senate, and still less in that of a large popular assembly. The convention have done well therefore in so disposing of the power of making treaties, that although the president must in forming them act by the advice and consent of the senate, yet he will be able to manage the business of intelligence in such manner as prudence may suggest.

And from that time until the Vietnam War, both Congress and the judiciary were very deferential to the Executive when it came to managing "the business of intelligence"—whether in peace or war.

- The very first appropriation of Treasury funds for foreign affairs told President Washington to "account specifically" only for those expenditures "as in his judgment may be made public, and also for the amount of such expenditures as he may think it advisable not to specify . . . ." That is to say, understanding that its members could not keep secrets, the Congress deferred to the President on matters of intelligence and foreign affairs. They didn't seek "classified reports" or "secret briefings."

Indeed, this was the consistent practice during the early years of our nation. In a February 19, 1804, letter to Treasury Secretary Albert Gallatin, President Thomas Jefferson explained:

The Constitution has made the Executive the organ for managing our intercourse with foreign nations. . . . The Executive being thus charged with the foreign intercourse, no law has undertaken to prescribe its specific duties. . . . From the origin of the present government to this day . . . . it has been the uniform opinion and practice that the whole foreign fund was placed by the Legislature on the footing of a contingent fund, in which they undertake no specifications, but leave the whole to the discretion of the President.

- In 1818, the great Representative Henry Clay observed on the House floor that expenditures from the President's "secret service" account were not "a proper subject of inquiry" by Congress.

- And since the ninth Whereas Clause in the pending resolution makes a reference to a requirement in the National Security Act of 1947 that Congress be kept informed about intelligence activities, I should point out that this reference really ought to say "as amended," because the original 1947 act did not include the slightest suggestion that Congress had any business looking into secret national security activities. And that was not an oversight...

In an excerpt of Fein's prepared statement he said:

...With regard to S. Res. 398, it is also a statement to the Supreme Court that Congress disputes President Bush's interpretation of FISA and inherent Article II powers. If President Harry Truman could run against a "do nothing" Congress, I see no reason why Congress cannot reciprocally run against a "doing wrong" president.

In conjunction with President William Jefferson Clinton's impeachment, which I supported, I then held a different view regarding the propriety or legitimacy of censure. I worried that it would enable Congress to engage in character assassination by condemning a president without an opportunity to present exculpatory evidence, in contrast to the impeachment process. I am now persuaded that my worry was overbroad. In this case, the President has been given a full opportunity to dispute the censure assertions and the Senate record is open to publish any presidential response, the danger of character assassination is much attenuated. Censure now seems to me a legitimate expression of Congress about the conduct of the President that contributes to enlightened public opinion and debate. With regard to my former unsound view, I can cite President Abraham Lincoln for the proposition that a man who does not grow wiser by the day is a fool, and Justice Robert H. Jackson who explained a similar recantation with the observation that he was astonished that a man of his intelligence had been guilty of such foolishness. See McGrath v. Kristensen, 340 U.S. 162 (1950)(concurring opinion).

Censure should not be employed over every legal disagreement between Congress and the Executive...

In an excerpt of Casey's prepared statement he said:

...Despite the rhetoric of the last four months, FISA is not a comprehensive statute that requires the President to obtain a "warrant" to collect foreign intelligence. It is a narrow law that requires an "order" be obtained for "electronic surveillance" in only four circumstances:
(1) Where a United States person is the target of, rather than incidental to, the surveillance;
(2) Where the acquisition of the intelligence will be accomplished by devices located within the United States;
(3) Where the sender and all recipients of the relevant communication are present in the United States; or
(4) Where surveillance devices are used within the United States to collect communications other than wire or radio communications. 50 U.S.C. § 1801(f)(1-4).

That being the case, based upon how the President, Attorney General, and General Hayden (former head of NSA and now Deputy Director of National Intelligence), have described the NSA program, it is not at all clear than any of the intercepts would properly fall within FISA in the first instance. In that regard, the NSA program appears to have been:
(1) targeted at al Qaeda operatives and their associates – in other words, communications are intercepted and monitored based on an al Qaeda association; and
(2) directed only at international communications with an al Qaeda operative or associate on one end: As General Hayden made clear, "one end of any call targeted under this program is always outside the United States;" and
(3) the purpose is not to collect evidence for a criminal prosecution, but to identify and thwart additional attacks against the United States.

Whatever this program is, it is not the pervasive dragnet of American domestic communications about which so many of the Administration’s critics have fantasized. Moreover, unless some of these communications are intercepted in the United States, or the targeted al Qaeda operative happens also to be a "United States person," FISA does not apply by its own terms...

In an excerpt of Dean's prepared statement he said:

...Bush's on-going action with his NSA wiretapping (if not secrecy, torture, etc.) and Congressional inaction (or acquiescence) must, sooner or later, intersect, and a point will be reached and crossed when the Congress has all but sanctioned the conduct and the president can violate the law with utter abandonment. No one can say that the Congress has not been put on notice. While there is vague law that says Congressional inaction is not a license for executive action, Congress is now confronted with executive branch attorneys who take the most aggressive reading possible in all situations that favor executive power. It is only necessary to look at the Administration's interpretation of the September 18, 2001 Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541) which it reads as authorization for the NSA program, to appreciate how far it will push.

And that is what I believe will happen if Chairman Specter's proposal to involve the Foreign Intelligence Surveillance Act court should become law. If past is prologue, President Bush will not bother to veto the bill, rather he will quietly issue a signing statement saying as Commander in Chief he disagrees with the bill, and he does not care what the FISA court says, and he will just keep doing what he has been doing. In short, should Congress pass Chairman Specter's bill, the Chairman should recall what happened to Senator John McCain's torture amendment before he attends the photo op at the White House while Vice President Cheney is off somewhere approving the signing statement – and gutting the law. If this committee does not believe this Administration is hell bent on expanding its powers with such in-your-face actions, you have been looking the other way for some five years of this presidency.

That is why censure might be the only way for the Senate to avoid acquiescing in what is clearly a blatant violation of the 1978 FISA stature, not to mention the Fourth Amendment. If "censure" is politically too strong for the Senate, then an appropriately worded Sense of the Senate resolution not acquiescing in the president’s defiance of the law might be a fall back position to prevent a waiver, and preserve Congress’s prerogatives.

In short, I implore the Senate to undertake not a partisan action, but a strong institutional action. I recall a morning – and it was just about this time in the morning and it was exactly this time of the year – March 21, 1973 – that I tried to warn a president of the consequences of staying his course. I failed to convince President Nixon that morning, and the rest, as they say, is history. I certainly do not claim to be prescient. Then or now. But actions have consequences, and to ignore them is merely denial...

In an excerpt of Schmidt's prepared statement he said:

...I served from 1994 to 1997 as the Associate Attorney General in the Justice Department under President Clinton. I have a long history of leadership positions in the campaigns of Democrats for office at the local, state and national levels, including those of Bill Clinton, Paul Simon and Richard Daley, who I served as chief of staff when he first became Mayor of Chicago. So I approach this issue without any partisan presumption or bias in favor of President Bush.

I believe strongly, however, that any consideration of "censure" for the President's authorization of the NSA surveillance program is totally unwarranted and inappropriate. To characterize the President's actions in such terms demeans and undermines serious discussion of matters vital to the national security and the constitutional rights of the American people....

...The post-9/11 situation faced by President Bush demonstrates the prescience of Attorney General Levi's comments about unforeseen future threats and changing technologies that could require surveillance outside any statutorily prescribed mechanism. Everyone who has been briefed on the NSA program to date has concluded that it is a reasonable use of today's technologies in response to the unprecedented al Qaeda threat of foreign terrorist attack in this country. The present confusion over the legality of the President's action also demonstrates the wisdom of Levi's advice that the President's retained constitutional authority should be recognized in the statute itself.

But even if one believes that the Foreign Intelligence Surveillance Court of Review, and Attorney General Levi and Attorney General Bell, and people like myself, are all wrong in concluding that the FISA Act did not limit the President's constitutional authority to authorize the NSA program, there is no basis for the Congress to consider "censure" of the President.

There is no evidence that the President did not act in good faith on the basis of the legal advice of the Attorney General and other lawyers at the Justice Department and at the National Security Agency. There is no evidence of any kind that the NSA program has been directed to serve any purpose other than the protection of the nation against further Al Qaeda attack. The program has been carried out by intelligence professionals--it is not Nixonian wiretapping on political enemies or J. Edgar Hoover spying on the sex life of civil rights leaders.

Debate over the legality of the NSA program is legitimate. Efforts to modify the FISA law to allow surveillance programs of this kind to come under the ambit of the FISA court (which Attorney General Levi suggested thirty years ago), or to provide for more effective congressional oversight, are legitimate and in my view desirable. See "Historical Solution to the Bush Spying Issue," Chicago Tribune (February 12, 2006) (attached).

But a resolution to "censure" the actions of a President who has, by all evidence, acted in good faith and on the basis of credible legal advice to protect the nation against attack is irresponsible and should be rejected...

References

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