Thursday, March 30, 2006

Why The NSA Terrorist Surveillance Program is Legal

Let's start with some incontrovertible facts:

"the circumstances which may affect the public safety are [not] reducible within certain determinate limits, . . . it must be admitted, as a necessary consequence that there can be no limitation of that authority which is to provide for the defense and protection of the community in any matter essential to its efficiency."
-Alexander Hamilton, The Federalist No. 23

"This foreign affairs power is exclusive: it is "the very delicate, plenary and exclusive power of the President as sole organ of the federal government in the field of international relations - a power which does not require as a basis for its exercise an act of Congress."
United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936).


[T]he Constitution vests the President with responsibility over all matters within the executive branch that bear on national defense and foreign affairs, including, where necessary, the collection and dissemination of national security information. Because "[i]t is 'obvious and unarguable' that no governmental interest is more compelling than the security of the Nation," Haig, 453 U.S. at 307 (quoting Aptheker v. Secretary of State, 378 U.S. 500, 509 (1964))

The Executive is the sole actor conducting the management of foreign affairs and providing for our nation's defense. The history and text of the constitution establish this.

So, let us turn to some appropriate precedent's in this area.
Four federal appellate cases addressed the issue all of which uniformly concluded:

"Prior to the enactment of FISA, virtually every court that had addressed the issue had concluded that the President had the inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information, and that such surveillances constituted an exception to the warrant requirement of the Fourth Amendment."

--United States v. Duggan, 743 F.2d 59 (2nd Cir. 1984).

The courts all found the President's power in this area could not be constrained by the 4th Amendment. It is also worth noting that prior to the enactment of FISA, Congress also clearly believed the President had this power to protect the United States from foreign threats. The Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. Section 2510 et seq as orginally written said:

“[N]othing” in federal statutory law shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities. Nor shall anything … be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government.

Now, these citations are before the enactment of FISA and critics of the President have pointed this out.

So we'll turn to Sealed Case No 02-001 a November 2002 ruling which stated in a dicta "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." This added yet more (final?) uniformity to an issue that has been litigated at the federal level. Further, after this decision was rendered, the ACLU asked the US Supreme Court to review Sealed Case No 02-001, but the court declined.

The Congress in 1978 is apparently the only body to ever find that the President needs to receive ex ante judicial approval in the form of a warrant to conduct surveillance against foreign threats for national security purposes. No other court or Congress in the history of our constitutional government dating back to 1789 has concurred. In fact they have without exception, stated otherwise.

I'd also like to point out that no court has ruled FISA unconstitutional. However, let us turn to yet more established legal principles:

"The President, after all, is the 'Commander in Chief of the Army and Navy of the United States.' U.S. Const., Art. II., § 2. His authority to . . . control access to information bearing on national security . . . flows primarily from this constitutional investment of power . . . and exists quite apart from any explicit congressional grant. . . . The authority to protect such information falls on the President as head of the Executive Branch and as Commander in Chief.");
-Department of the Navy v. Egan, 484 U.S. 518, 527 (1988)


"Where the President's authority concerning national security or foreign relations is in tension with a statutory rather than a constitutional rule, the statute cannot displace the President's constitutional authority and should be read to be "subject to an implied exception in deference to such presidential powers."
--Rainbow Navigation, Inc. v. Department of the Navy, 783 F.2d 1072, 1078 (D.C. Cir. 1986) (Scalia, J.).


"in Freytag v. Commissioner, 501 U.S. 868 (1991), all four of the Justices who addressed the issue agreed that the President has "the power to veto encroaching laws . . . or even to disregard them when they are unconstitutional." Id. at 906 (Scalia, J., concurring);

So the President has the right and even duty to decline to abide by, or enforce statutes that he believes unconstitutional.

I'd like to explore one more court decision here as well. Referenced ostensibly by the President's critics: Youngstown Co. v. Sawyer, 343 U.S. 579 (1952)
In this case the Justice Jackson laid out a three pronged test regarding the relationship between the executive and legislative branches.

1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum.
2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain.
3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.

First, I believe it unpersuasive that a lone concurring opinion should be the threshold on which the President’s wartime powers rest.
Second, this decision was a review and judgment of President Truman's domestic actions as Justice Jackson said "That military powers of the Commander in Chief were not to supersede representative government of internal affairs seems obvious from the Constitution and from elementary American history."
Which indeed is quite clear and really undisputed here. (*though it is interesting as a historical footnote that 3 justices dissented!)

Bush's critics fail to acknowledge we are at war - an express authorization of Congress - with a foreign enemy, in bringing this case up.

I'd also like to make another citation while we are on the topic of Justice Jackson (who as FDR's Attorney General authorized warrantless wiretapping during WW II). In CHICAGO & SOUTHERN AIR LINES V. WATERMAN S.S. CORP. , 333 U.S. 103 (1948) he wrote:

The President, both as Commander-in-Chief and as the Nation’s organ for foreign affairs, has available intelligence services whose reports are not and ought not to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret. Nor can courts sit in camera in order to be taken into executive confidences. But even if courts could require full disclosure, the very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.

Finally, let us turn to the FISA statute itself. Critics, without knowing the technical details of the program, have alleged the Bush administration has violated the law.

That can not be squared with the fact that the Administration has obtained over 5,000 FISA warrants since 2001.

Even more importantly, FISA only applies to "situations where the target of the surveillance is a U.S. person or where that surveillance is "acquired in the United States." The debate over the legality of president's action covers only those last two categories of cases, not everything done by the NSA." The language of the statute says:

"Electronic surveillance" means - (1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes"

Bush's critics seem to be contending that if the NSA is simply monitoring international calls by targeting terrorists in say Pakistan, FISA has been violated.
This is simply untrue and not supported by any reading of the statute or regulations enacted since it's passage.
So unless they can present evidence of such activity on the part of the NSA, or can persuade the Supreme Court (or any one for that matter) that the President does not have the power to engage in warrantless surveillance to gather foreign intelligence and disregard statutes he believes limit his constitutional powers, they need to give their claims a rest.

For a review of some arguments put forth by DOJ see here (PDF warning)

AG Gonzales comments further on the program here

Senator Pat Roberts outlines the legality of the program here (PDF Warning)

ROBERT F. TURNER lays out the President's powers in an opinion piece here