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Harold Hongju Koh
February 28, 2006 Professor of International Law Yale Law School Statement To The Senate Judiciary Committee regarding Wartime Executive Power and the National Security Agency’s Surveillance Authority http://law.yale.edu./outside/html/Public_Affairs/713/ HHKNSAtestfinal.pdf |
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Harold
Hongju Koh
Dean and Gerard C. & Bernice Latrobe Smith Professor of International Law Yale Law School Statement before the Senate Committee on the Judiciary regarding Wartime Executive Power and the National Security Agency’s Surveillance Authority February 28, 2006 Thank you, Mr. Chairman and
Members of the Committee, for inviting me today.
I am Dean and Gerard C. & Bernice Latrobe Smith Professor of International Law at the Yale Law School, where I have taught since 1985 in the areas of international law, human rights, and the law of U.S. foreign relations.1 I appear first, to testify regarding the claimed legal authority for the Administration's National Security Agency (NSA) domestic surveillance program; second, to respond to the Administration's legal defense of the program, as set forth in several recent Justice Department documents and in the Attorney General’s testimony before this Committee on February 6, 2006;2 and third, to comment on a draft bill entitled the “National Security Surveillance Act,” which I received from this Committee’s staff on February 24, 2006. To state my conclusions briefly: I have served the United States government in both Republican and Democratic Administrations.3 I have also filed lawsuits against both Republican and Democratic administrations when I became convinced that their conduct violated the law.4 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.5 1 A summary of my views
on
the constitutional law governing national security can be found, inter
alia, in HAROLD HONGJU KOH, THE NATIONAL SECURITY CONSTITUTION: SHARING
POWER AFTER THE IRANCONTRA AFFAIR (1990). A brief curriculum vitae is
attached as an appendix to this testimony. Although I sit on a law
school faculty as well as on the boards of numerous organizations, the
views expressed here are mine alone.
(return)
2 See, e.g., Prepared Statement of Hon. Alberto R. Gonzales, Att’y Gen. of the United States, Feb. 6, 2006, available at http://www.usdoj.gov/ag/speeches/2006/ag_speech_060206.html; U.S. Dep’t of Justice, Legal Authorities Supporting the Activities of the National Security Agency Described by the President (Jan. 19, 2006) [hereinafter DOJ White Paper] (setting forth, after the fact, the Department’s analysis of the legal basis for the terrorist surveillance program); Letter from William E. Moschella, Asst. Att’y Gen., Office of Legislative Affairs to Sen. Pat Roberts, Chairman, S. Select Comm. on Intelligence (Dec. 22, 2005) [hereinafter Moschella]. (return)
3 I served as an Attorney-Adviser at the Office of Legal Counsel of the U.S. Department of Justice from 1983-85, and as Assistant Secretary of State for Democracy, Human Rights and Labor from 1998-2001. (return)
4 I appeared as private counsel challenging U.S. government actions, inter alia, in Sale v. Haitian Centers Council, Inc., 509 U.S. 155 (1993) (interdiction of Haitian refugees); Cuban-American Bar Ass'n v. Christopher, 43 F.3d 1413 (11th Cir. 1995) (detention of Cuban refugees on Guantanamo). (return)
5 I believe that my opinion is widely shared in the legal community. To give just three examples, I direct the Committee’s attention first: to two detailed letters, which I co-signed, recently sent to Members of (return 5)
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.”6 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.
For nearly thirty years, the Foreign Intelligence Surveillance Act of 1978 (FISA)7 has guaranteed compliance with these constitutional requirements by providing a comprehensive, exclusive statutory framework for electronic surveillance. Even as Commander in Chief, the President carries the solemn constitutional duty to “take Care that the Laws be faithfully executed.”8 Yet apparently, the NSA has violated these statutory requirements repeatedly by carrying on a sustained program of secret, 5(...Continued)
Congress. The first was signed by 20 members of the Constitution Project’s Liberty and Security Initiative, including, inter alia, David Cole, Professor of Law, Georgetown University; David Keene, Chairman, American Conservative Union; William Sessions, former FBI Director; and Patricia Wald, former Chief Judge of the U.S. Court of Appeals for the D.C. Circuit. See Statement of the Constitution Project’s Liberty and Security Initiative (Jan. 6, 2006), available at http://www.constitutionproject.org. The second was signed by fourteen constitutional law scholars and former government officials. See Letter from Beth Nolan, Curtis Bradley, David Cole, Geoffrey Stone, Harold Hongju Koh, Kathleen M. Sullivan, Laurence H. Tribe, Martin Lederman, Philip B. Heymann, Richard Epstein, Ronald Dworkin, Walter Dellinger, William S. Sessions, and William Van Alstyne to U.S. Congress (“On NSA Spying: A Letter To Congress”), available at http://www.nybooks.com/articles/18650; http://balkin.blogspot.com/FISA.DOJ.Reply.pdf. Second, to the Resolution of the ABA House of Delegates and Task Force Report of the ABA Task Force on Domestic Surveillance in the Fight Against Terrorism (to which I served as Special Advisor) dated Feb. 13, 2006, available at http://www.abanet.org/op/domsurv/ [hereinafter ABA Task Force Report] (resolving inter alia “that the American Bar Association opposes any future electronic surveillance inside the United States by any U.S. government agency for foreign intelligence purposes that does not comply with the provisions of the Foreign Intelligence Surveillance Act, 50 U.S.C. §§ 1801 et seq. (FISA), and urges the President, if he believes that FISA is inadequate to safeguard national security, to seek appropriate amendments or new legislation rather than acting without explicit statutory authorization.”). And third, to the similar conclusion reached by the Congressional Research Service. See ELIZABETH B. BAZAN & JENNIFER K. ELSEA, PRESIDENTIAL AUTHORITY TO CONDUCT WARRANTLESS ELECTRONIC SURVEILLANCE TO GATHER FOREIGN INTELLIGENCE INFORMATION (Jan. 5, 2006), available at http://www.fas.org/sgp/crs/intel/m010506.pdf (return)
(Note: This Bazan/Elsea CRS Report is available locally as CRS_Jan_5_2006_Bazan_Elsea.html . The ABA Task Force Report is available locally as aba_house302-0206.html. The letter "On NSA Spying: A Letter To Congress" is available locally as nyrb_scholars_letter_020906.html. Futher links in this document will refer to such local html versions where available. - dcm) 6 U.S. CONST. amend. IV. (return)
7 Act of Oct. 25, 1978, Pub. L. No. 95-511, 92 Stat. 1783. (return)
8 U.S. CONST. art. II, § 3.
unreviewed, warrantless electronic surveillance of American citizens and residents. As Justice Paterson wrote two centuries ago in United States v. Smith: “[t]he president of the United States cannot control the statute, nor dispense with its execution, and still less can he authorize a person to do what law forbids.”9 The NSA program’s defenders cannot plausibly claim that the ongoing program follows the letter of the FISA. Instead, to justify this flouting of the FISA, they argue both that Congress authorized this program in the resolution authorizing force and offer a sweeping interpretation of unchecked Executive authority that cannot be squared with the vision of shared national security powers evident in our Constitution’s text, structure and purpose. That vision of unchecked executive discretion would upset what Justice Robert Jackson in his famous concurrence in the Steel Seizure Case termed the “equilibrium established by our constitutional system.”10 Taken seriously, the President’s reading of the Constitution would render Congress a pointless rubberstamp, limited in an unending war on terror to enacting laws that the President can ignore at will and issuing blank checks that the President can redefine at will. Of course, we can and should aggressively fight terrorism, but doing so outside the law is deeply counterproductive.11 The NSA program undermines, rather than enhances, our ability to combat terrorism through the criminal justice system. Under the ongoing NSA program, NSA analysts are increasingly caught between following superior orders and carrying out illegal electronic surveillance. The nation can scarcely afford to lose analysts that are on the front lines protecting our national security. Furthermore, because evidence collected under the NSA electronic surveillance program will almost surely be challenged as illegally obtained, such evidence may prove inadmissible in cases against alleged terrorists, giving them greater leverage in plea bargains and making it far more difficult to prosecute them criminally. Unfortunately, for reasons detailed below, the proposed National Security Surveillance Act (NSSA) would not improve the situation. Instead of subjecting the legality of the ongoing program to meaningful congressional oversight and contemporaneous judicial review, the proposed law would simply amend the 1978 Foreign Intelligence Surveillance Act to increase the authority of the President to conduct surveillance, based on a showing of "probable cause" that the entire surveillance program -- not any particular act of surveillance -- will intercept communications of a foreign power or agent thereof, or anyone who has ever communicated with a foreign agent. While perhaps legalizing a small number of reasonable searches and seizures, the proposed statute would make matters far worse, by giving the Congress’s blanket preauthorization to a large number of unreasonable searches and seizures. To enact the draft 9
U.S. v. Smith, 27 F.
Cas. 1192, 1230 (C.C.D.N.Y. 1806) (No. 16,342) (Paterson, J., Circuit
Justice).
(return)
10 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 638 (1952) (Jackson, J., concurring). (return)
11 The Administration claims that the very discussion of these matters before this Committee and elsewhere has compromised the NSA's ability to get its important job done. But if the Administration had only stayed within the four corners of the FISA and sought additional statutory authority as necessary, we would not be here discussing these important issues. (return)
legislation,
which ratifies an
illegal ongoing program without demanding first a full congressional
review of what is now being done and more executive accountability
going forward, would provide neither the congressional oversight nor
the judicial review that this program needs to restore our confidence
in our constitutional checks and balances. Most fundamentally, unless
the President agrees to operate within the terms of any FISA
amendments, the new congressional action would be meaningless.
I. THE ILLEGALITY OF THE ONGOING NSA DOMESTIC SURVEILLANCE PROGRAM We must not forget the historical events that led to enactment of the 1978 FISA statute. When American ships were attacked in the Gulf of Tonkin in 1964, President Johnson asked Congress for a broad resolution that gave him broad freedom to conduct a controversial undeclared war in Indochina; that war traumatized our country and triggered a powerful antiwar movement.12 It soon came to light that to support the war effort, three government agencies – the FBI, the CIA, and the NSA – had wiretapped thousands of innocent Americans suspected of committing subversive activities against the U.S. government.13 To end these abuses, Congress passed, and President Carter signed, the Foreign Intelligence Surveillance Act of 1978 (FISA), which makes it a crime for anyone to wiretap Americans in the United States without a warrant or a court order.14 The law makes it clear that the FISA (and specified provisions of the federal criminal code that govern criminal wiretaps) “shall be the exclusive means by which electronic surveillance . . . and the interception of domestic wire communications may be conducted.”15 In an emergency, where the Attorney General believes that surveillance must begin before he can get a court order, FISA permits the wiretap to begin immediately, but only so long as the government seeks a warrant from the special FISA court within seventy-two hours.16 Drafted with wartime in mind, the FISA permits the Attorney General to authorize warrantless electronic surveillance in the United States for only fifteen days after a 12
Joint Resolution of
Aug. 10,
1964, Pub. L. No. 88-408, 78 Stat. 384 (1964). Repealed by Act of Jan.
12, 1971, Pub. L. No. 91-672, § 12, 84 Stat. 2053 (1971).
(return)
13 To give just a few examples, the “Rockefeller Commission” investigation into CIA activities within the United States found that in 1972, the CIA examined some 2.3 million pieces of mail, and opened some 8,700 of them. Much of the mail examined and opened was selected based on “watch lists” the agency had developed. The Comm’n on CIA Activities within the United States: Report to the President 111-12 (1975), available at http://www.history-matters.com/archive/church/rockcomm/contents.htm (last visited Feb. 26, 2006). Under “Operation CHAOS,” the CIA gathered files on more than 7,000 US citizens, containing the names of more than 300,000 persons and organizations. Id. at 23. The Church Committee found that Presidents Johnson and Nixon had requested and received information on antiwar activists, political critics, and even members of Congress. The Committee also discovered that the FBI had engaged in virtually unsupervised electronic wiretapping, including bugs that were famously placed in the hotel rooms of the late civil rights leader Dr. Martin Luther King, Jr. Select Comm. to Study Gov't Operations with Respect to Intelligence: Final Report, S. Rep. No. 755, 94th Cong., 2d Sess. (1976). (return)
14 50 U.S.C. § 1809 (2000). (return)
(return)
16 50 U.S.C. § 1801. (West. 2004). Although the emergency wiretap period was originally only 24 hours, after September 11, 2001, the Bush Administration specifically requested and received the increase to 72 hours. See Pub. L. No. 107-108, 115 Stat. 1394 (2001). (return)
declaration of war, to give
Congress time to pass new laws to give the
President any new wiretap authority he may need to deal with the
wartime emergency.17
In short, FISA
was based on simple, sensible
reasoning: before the President invades our privacy, his lawyers must
get approval from someone who does not work for him: either members of
Congress must pass an amendment to FISA,
or members of the independent
Foreign Intelligence Surveillance Court must approve a particular
warrant.
For almost thirty years, the FISA scheme worked to protect our rights as American citizens to privacy, while still allowing our government to engage in necessary foreign surveillance. From 1979 to 2004, the FISC approved nearly 19,000 warrants and rejected only five.18 Even since September 11, officials of the Bush Administration officials have obtained thousands of warrants approved by the special FISA court.19 During the last few years, the President was asked several times whether judicial permission is required for any government spying on American citizens; on each occasion, he answered in the affirmative.20 And last January, when Alberto Gonzales was being confirmed as Attorney General, Senator Russ Feingold asked whether he believed the President could violate existing criminal laws and spy on U.S. citizens without a warrant. Mr. Gonzales answered that it was impossible to answer such a “hypothetical question” but that it was "not the policy or the agenda of this president" to authorize actions that conflict with existing law.21 Given this background, as of three months ago, the law seemed crystal clear. If Executive officials wanted to wiretap or conduct electronic surveillance of Americans, they could do so without a warrant, but only for three days, or for fifteen days after a declaration of war. After that, they must either go to the special FISA court for an order 17 50 U.S.C. § 1811. The House version of the bill would have authorized the President to conduct warrantless electronic surveillance for one year after a declaration of war, but the Conference Committee expressly rejected that suggestion, reasoning that the 15-day “period will allow time for consideration of any amendment to this act that may be appropriate during a wartime emergency.” H.R. CONF. REP. NO. 95- 1720, at 34 (1978). “The conferees expect that such amendment would be reported with recommendations within 7 days and that each House would vote on the amendment within 7 days thereafter." Id. (return)
18 Annual reports of the FISA Court are available at http://www.fas.org/irp/agency/doj/fisa/#rept (last visited Feb. 26, 2006). (return)
19 Id. (return)
20 “[A]ny time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so.” President George W. Bush, Information Sharing, Patriot Act Vital to Homeland Security (April 20, 2004), available at http://www.whitehouse.gov/news/releases/2004/04/20040420-2.html; “[T]he government can’t move on wiretaps or roving wiretaps without getting a court order.” President George W. Bush, President’s Remarks at Ask President Bush Event (July 14, 2004), available at http://www.whitehouse.gov/news/releases/2004/07/20040714-11.html; “Law enforcement officers need a federal judge's permission to wiretap a foreign terrorist's phone, a federal judge's permission to track his calls, or a federal judge's permission to search his property. Officers must meet strict standards to use any of these tools. And these standards are fully consistent with the Constitution of the U.S.” President George W. Bush, President Discusses Patriot Act (June 9, 2005), available at http://www.whitehouse.gov/news/releases/2005/06/20050609-2.html. (return)
(return)
to
approve the surveillance,
come to Congress seeking wartime amendments to FISA, or be in violation
of the criminal law.
And so we were all stunned to learn in December, 2005 that despite this settled law, the Executive Branch has in fact been secretly spying on large numbers of Americans for four years and eavesdropping on "large volumes of telephone calls, e-mail messages, and other Internet traffic inside the United States."22 Despite the clear requirements of the FISA law, the President had apparently launched this eavesdropping program without ever seeking a search warrant. Nor did the Administration ever seek new laws that would authorize such domestic intelligence gathering.23 Moreover, we learned that President Bush has personally authorized this eavesdropping program more than three dozen times since October, 2001, at times over the objections of high senior officials in his own Justice Department.24 Although the program’s details continue to remain hidden from public view, we now know that intelligence officials apparently persuaded officials of major telecommunications companies to let the NSA monitor communication activity through “electronic backdoors.”25 Recent Justice Department documents and statements appear to acknowledge: (1) that the NSA engages in such surveillance without judicial approval, and apparently without the substantive showings that FISA requires, e.g., that the target subject is an "agent of a foreign power;"26(2) that the NSA determines on its own which phone calls and emails to monitor, without seeking prior approval from the White House, the Justice Department, or any court before it starts monitoring any specific email or phone line; (3) that no lawyer or prosecutor reviews any records before the NSA starts to listen in on a line;27 and (4) that despite the Administration’s assurances, we have no way of knowing that searches will be strictly limited to people who have made contact with al Qaeda. Some commentators have claimed that the NSA searching involves only computerized datamining that intercepts little or no communicative content, and hence 22 James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers without Courts, N.Y. TIMES, Dec. 16, 2005, at A1. (return)
23 Just six weeks after September 11, Congress passed the USA PATRIOT Act to expand the government’s powers to conduct surveillance of suspected terrorists. See Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, Pub. L. No. 107-56, 115 Stat. 272. Yet the Administration never asked for, nor did the Patriot Act include, any change to FISA’s requirement that courts give warrants before Americans in the United States can be wiretapped. (return)
24 Daniel Klaidman, et al., Palace Revolt, NEWSWEEK, Feb. 6, 2006, available at http://www.msnbc.msn.com/id/11079547/site/newsweek/. (return)
25 JAMES RISEN, STATE OF WAR: THE SECRET HISTORY OF THE CIA AND THE BUSH ADMINISTRATION 48-53 (2006). (return)
26 50 U.S.C. § 1805(a) (provision of FISA requiring that a subject be “the agent of a foreign power”). (return)
27 As Attorney General Gonzales said in his testimony before this Committee, “the program is triggered only when a career professional at the NSA has reasonable grounds to believe that one of the parties to a communication is a member or agent of al Qaeda or an affiliated terrorist organization.” Wartime Executive Power and the National Security Agency’s Surveillance Authority: Hearing Before the S. Comm. on the Judiciary, 109th Cong. (Feb. 6, 2006) (statement of Alberto Gonzales) [hereinafter NSA Hearing]. (return)
does
not constitute
surveillance subject to the FISA or a “search” or “seizure” subject to
the Fourth Amendment. But in fact the Attorney General himself has
expressly rejected those claims by repeatedly stating that the NSA
program involves "electronic surveillance," defined in FISA to mean the
interception of the contents of
telephone, wire, or email
communications that occur, at least in part, in the United States.28
In
a press
briefing held on December 19,
2005, Attorney General Gonzales
also conceded that the NSA program intercepts the “contents of
communications”29
and that the “surveillance that . . . the President
announced on [December 17]” is the “kind” that “requires a court order
before engaging in” it “unless otherwise authorized by statute or by
Congress.”30
On its face, the NSA Program blatantly violates the statutory FISA standards outlined above. By their own admission, the Administration’s officials did not seek a warrant within three days of commencing the NSA Program, nor did they do so within fifteen days after the congressional resolution authorizing the use of force, nor have they done so in the nearly four years since. To this day, the Administration has yet to offer any convincing explanation why it could not have sought or obtained warrants from the special FISA court created for this purpose, which has approved tens of thousands of warrants over the years. Nor despite the many post hoc legal justifications that have been released since December, has the Administration yet to make public any contemporaneous legal opinion provided to the President upon which its decision to launch the NSA program was actually based.31 When the President acts in a field in which Congress has legislated so comprehensively, the acknowledged touchstone for constitutional analysis is Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure Case), in which the Supreme Court invalidated an attempted presidential takeover of the steel mills in the name of national security during the Korean War.32 In his landmark concurring opinion in that case, Justice Robert Jackson wrote: “Presidential powers are not fixed, but fluctuate, depending on their … disjunction with those of Congress. When the President takes measures incompatible with the express or implied will of Congress, his power is at its lowest ebb, 28 Id.; 50 U.S.C. §§ 1801(f)(1)-(2), 1801(n). See also Moschella, supra note 2, at 4. (return)
29 See Press Release, White House, Press Briefing by Attorney General Alberto Gonzales and General Michael Hayden, Principal Deputy Director of National Intelligence (Dec. 19, 2005), at http://www.whitehouse.gov/news/releases/2005/12/print/20051219-1.html [hereinafter Gonzales-Hayden Press Briefing]. (return)
30 Id. (return)
31 See Wartime Executive Power and the NSA's Surveillance Authority: Hearing Before the S. Comm. on the Judiciary, 109th Cong. (2006) (Joint Statement of John M. Harmon, Asst. Att’y Gen., Office of Legal Counsel, Dep’t of Justice 1977-1981 and Larry L. Simms, Dep. Asst. Att’y. Gen., Office of Legal Counsel, Dep’t of Justice 1979-1985) (“Indeed, it is quite unclear from the Administration's various factual assertions whether any written legal advice was received by the President or his then Counsel, now the Attorney General, before the program was implemented.…Congress has a right to understand what advice the President acted upon in 2001 when the program was implemented….). (return)
32 343 U.S. 579 (1952). (return)
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for then he can rely only on his
own constitutional
powers minus any constitutional powers of Congress over the matter.”33
The FISA was enacted by Congress precisely to regulate the kind of surveillance that has occurred here. In response, the Justice Department asserts that the President may choose clandestinely to ignore the FISA. Youngstown thus requires us to ask whether the Constitution subjects the presidential power at issue in this case to the control of statutes passed by Congress with the assent of the President, or whether the Constitution confides that power exclusively in the President. The Justice Department claims that the President has an implied exclusive executive authority over “the means and methods of engaging the enemy,” including the conduct of “signals intelligence” during wartime.34 Yet nothing in the text of Article II of the Constitution recognizes an exclusive presidential power to conduct warrantless, unreviewed wiretapping, akin to the textual powers to appoint or pardon, to veto legislation, or to recognize foreign governments. Nor is it clear that the Fourth Amendment would allow a sustained program of unchecked warrantless wiretapping within the United States, even if expressly authorized by Congress and President acting together.35 As Justice Jackson wrote in Youngstown, “the Constitution did not contemplate that the title Commander in Chief of the Army and Navy will constitute him also Commander in Chief of the country, its industries and inhabitants.”36 Congress undeniably has power “To make Rules for the Government and Regulation of the land and naval Forces” and to “make all Laws which shall be necessary and proper for carrying into Execution . . . all . . . Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”37 Under these authorities, Congress has enacted myriad statutes regulating the “means and methods of engaging the enemy,” including most obviously, the Uniform Code of Military Justice and the recent, much-discussed statutes prohibiting the use of torture and cruel, inhuman, and degrading treatment.38 And whether or not the President as Commander in Chief may generally collect "signals intelligence" on the enemy abroad, no one denies that Congress may regulate electronic surveillance within the United States, as it has expressly done in FISA. Every Supreme Court decision to confront the question has rejected the claim that the President may invoke his Commander in Chief power to disregard an Act of Congress designed specifically to restrain executive conduct in a particular field.39 If anything, 33 Id. (emphasis added). In Dames & Moore v. Regan, 453 U.S. 654 (1981), the entire Supreme Court embraced Justice Jackson’s view as “bringing together as much combination of analysis and common sense as there is in this area.” Id. at 661 (Rehnquist, C.J.). (return)
34 DOJ White Paper, supra note 2, at 6-10, 28-36. (return)
35 See United States v. U.S. Dist. Court (Keith), 407 U.S. 297, 321-25 (1972). (return)
36 Youngstown, 343 U.S. 579, 643-44 (Jackson, J., concurring). (return)
37 U.S. CONST. art. I, § 8, cl. 14; cl. 18. (return)
38 18 U.S.C. §§ 2340-2340A (torture); Pub. L. No. 109-148, Div. A, tit. X, § 1003, 119 Stat. 2739-2740 (2005) (cruel, inhuman, and degrading treatment). (return)
39 Indeed, the relevant precedents are all to the contrary. See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 535-36 (2004) (rejecting the President’s claim that courts may not inquire into the factual basis for detention of Top
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such claim of presidential power
deserves even less deference when
Fourth Amendment values and a criminal statutory prohibition are at
stake.40
In sum, under Youngstown’s reasoning, given that “the President [has] take[n] measures incompatible with the express or implied will of Congress” as expressed in FISA, “his power is at its lowest ebb, for then he can rely only on his own constitutional powers minus any constitutional powers of Congress over the matter.”41 Whether or not there are historical examples of the President engaging in warrantless wartime surveillance before the FISA was passed, it seems clear that he may not now constitutionally undertake such actions where Congress and the President have not just contemplated such behavior, but actually criminalized it. II. THE ARGUMENTS DEFENDING THE NSA PROGRAM CANNOT WITHSTAND SCRUTINY Since the domestic spying program came to light, the Administration has launched a broad public campaign to defend its legality. Let me explain why none of these legal and policy arguments withstand scrutiny. A.
The 2001 Authorization for Use of Military Force (AUMF)
Resolution Does Not Authorize Domestic Surveillance
The Administration claims that the Congress implicitly authorized the NSA surveillance plan when it voted for the Authorization to Use Military Force (AUMF) 39 (...Continued) a U.S. citizen “enemy combatant,” reasoning that “[w]hatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.”); Rasul v. Bush, 542 U.S. 466 (2004) (rejecting the President’s claim that it would be an unconstitutional interference with the President’s Commander in Chief power to interpret the habeas corpus statute to encompass actions filed on behalf of Guantanamo detainees); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 586 (1952) (invalidating the President’s seizure of the steel mills where Congress had previously “rejected an amendment which would have authorized such governmental seizures in cases of emergency.”); Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866) (holding that the Executive had violated the Habeas Corpus Act by failing to discharge from military custody a petitioner charged, inter alia, with violation of the laws of war); Little v. Barreme, 6 U.S. (2 Cranch) 170 (1804) (invalidating a presidential seizu |