The NSA Surveillance Program and the Article II Argument:
In yesterday's Wall Street Journal, Professor Robert Turner advances the argument that the President's Article II authority trumps FISA, and that therefore the NSA surveillance program as we know it is probably legal. Although Article II is not my area of expertise, I have different instincts on these issues. I thought I would quote from Turner's piece paragraph-by-paragraph and explain my questions and why I tend to disagree. To be clear, I'm not intending my questions and comments to be the last word on any of these issues. Rather, I hope they'll help advance the conversation and sharpen the debate; if my instincts are wrong, I hope commenters or other bloggers will carefully explain why.

  I'll skip over the first part of Turner's piece, which is more historical argument than a legal one, and start in with the fourth paragraph:
For nearly 200 years it was understood by all three branches that intelligence collection--especially in wartime--was an exclusive presidential prerogative vested in the president by Article II, Section 1 of the Constitution. Washington, Madison, Jefferson, Hamilton, John Marshall and many others recognized that the grant of "executive power" to the president included control over intelligence gathering. It was not by chance that there was no provision for congressional oversight of intelligence matters in the National Security Act of 1947.
  I don't have a reason to doubt that, but I'm not sure how it's relevant: Attitudes changed after the Nixon presidency, and the issue is the legality of post-Nixon legislative restrictions on executive power.
Space does not permit a discussion here of the congressional lawbreaking that took place in the wake of the Vietnam War. It is enough to observe that the Constitution is the highest law of the land, and when Congress attempts to usurp powers granted to the president, its members betray their oath of office. In certain cases, such as the War Powers Resolution and the Foreign Intelligence Surveillance Act, it might well have crossed that line.
  I think everyone agrees that the Constitution reigns supreme. Of course, the question is whether and why a law like FISA might violate the Constitution.
Keep in mind that while the Carter administration asked Congress to enact the FISA statute in 1978, Attorney General Griffin Bell emphasized that the law "does not take away the power of the president under the Constitution." And in 1994, when the Clinton administration invited Congress to expand FISA to cover physical as well as electronic searches, the associate attorney general testified: "Our seeking legislation in no way should suggest that we do not believe we have inherent authority" under the Constitution. "We do," she concluded.
  I'm not sure of the context of Bell's comment — I couldn't find it on westlaw, and it doesn't come up on google. But I think it's important to note what Gorelick was and was not arguing. As I understand it, Gorelick wasn't claiming that Congress couldn't regulate the President's authority to conduct physical searches. As the transcript of her testimony at that time suggests, she was arguing that absent statutory regulation, the executive had that power (as several circuit courts had held). In other words, Gorelick was using the phrase "inherent authority" to mean "not needing Congressional authorization," rather than "unable to be subject to Congressional regulation." And of course, whether past DOJ officials have claimed this power is much less relevant than whether courts have agreed.
I'm not saying that what the president authorized was unquestionably lawful. The Supreme Court in the 1972 "Keith case" held that a warrant was required for national security wiretaps involving purely domestic targets, but expressly distinguished the case from one involving wiretapping "foreign powers" or their agents in this country. In the 1980 Truong case, the Fourth U.S. Circuit Court of Appeals upheld the warrantless surveillance of a foreign power, its agent or collaborators (including U.S. citizens) when the "primary purpose" of the intercepts was for "foreign intelligence" rather than law enforcement purposes. Every court of appeals that has considered the issue has upheld an inherent presidential power to conduct warrantless foreign intelligence searches; and in 2002 the U.S. Foreign Intelligence Surveillance Court of Review, created by the FISA statute, accepted that "the president does have that authority" and noted "FISA could not encroach on the president's constitutional power."
  There are two separate issues here, I think. With the exception of the 9 words of dicta from the 2002 FISA court decision, all of those precedents were dealing with the Fourth Amendment's warrant requirement. Specifically, the issue was whether the Fourth Amendment requires a warrant when the government engages in foreign intelligence surveillance. That's not the issue here, I think, as most people seem to be focused on FISA rather than the Fourth Amendment.

  As for the 9 words of dicta from In re Sealed Case — "FISA could not encroach on the president's constitutional power" — I find it hard to know what to make of it. In that case, the government was arguing that the statutory warrant requirement of FISA made monitoring pursuant to that requirement constitutionally reasonable. Was the court claiming that Congress could not impose a warrant requirement where a warrant would not required under the Fourth Amendment? That would reverse the usual role of the Fourth Amendment: it would transform the Fourth Amendment from a floor on privacy protections into a ceiling. Or is the Court merely saying that if FISA were repealed, the President's constitutional power from pre-FISA days would still exist? I'm not entirely sure, and unfortunately the opinion doesn't carefully explain it. If this phrase stands for the view that Article II powers trump FISA's restrictions, then I would certainly want more authority than that; Congress thought it was binding the executive when it passed FISA, and it would be news justifying more than 9 words of dicta if this weren't the case.
For constitutional purposes, the joint resolution passed with but a single dissenting vote by Congress on Sept. 14, 2001, was the equivalent of a formal declaration of war. The Supreme Court held in 1800 (Bas v. Tingy), and again in 1801 (Talbot v. Seamen), that Congress could formally authorize war by joint resolution without passing a formal declaration of war; and in the post-U.N. Charter era no state has issued a formal declaration of war. Such declarations, in fact, have become as much an anachronism as the power of Congress to issue letters of marque and reprisal (outlawed by treaty in 1856). Formal declarations were historically only required when a state was initiating an aggressive war, which today is unlawful.

Section 1811 of the FISA statute recognizes that during a period of authorized war the president must have some authority to engage in electronic surveillance "without a court order." The question is whether Congress had the power to limit such authorizations to a 15-day period, which I think highly doubtful. It would be akin to Congress telling the president during wartime that he could attack a particular enemy stronghold for a maximum of 15 days.
  What is the best case for the view that Congress cannot limit monitoring to 15 days? And is domestic surveillance really the same as attacking a particular enemy stronghold? It seems to me that you can analogize the surveillance program in different ways, depending in part on details we don't yet know, and I'm not sure the "enemy stronghold" analogy is the best. For example, I gather that some critics would say that limiting surveillance monitoring is more like blocking the President from seizing steel mills to avoid a wartime stoppage of much-needed steel production. The Supreme Court held that this power exceeded Article II in Youngstown Sheet & Tube v. Sawyer; why isn't this a better analogy? Does it matter how widespread the monitoring was? When it was conducted? How it was conducted?
America is at war with a dangerous enemy. Since 9/11, the president, our intelligence services and our military forces have done a truly extraordinary job--taking the war to our enemies and keeping them from conducting a single attack within this country (so far). But we are still very much at risk, and those who seek partisan political advantage by portraying efforts to monitor communications between suspected foreign terrorists and (often unknown) Americans as being akin to Nixon's "enemies lists" are serving neither their party nor their country. The leakers of this sensitive national security activity and their Capitol Hill supporters seem determined to guarantee al Qaeda a secure communications channel into this country so long as they remember to include one sympathetic permanent resident alien not previously identified by NSA or the FBI as a foreign agent on their distribution list.
  First of all, the motives of the leakers and people on Capitol Hill obviously aren't relevant to the legality of the NSA program. But even as a political argument, it seems really unfair; I am also very uncomfortable with the leaks here, but I don't know how we can lump the leakers together with unnamed "Capitol Hill supporters." I gather this was meant to be exagerrated for effect, but the idea that "Capitol Hill" opponents of the program "seem determined to guarantee al Qaeda a secure communications channel" under any circumstances is preposterous.
Ultimately, as the courts have noted, the test is whether the legitimate government interest involved--in this instance, discovering and preventing new terrorist attacks that may endanger tens of thousands of American lives--outweighs the privacy interests of individuals who are communicating with al Qaeda terrorists. And just as those of us who fly on airplanes have accepted intrusive government searches of our luggage and person without the slightest showing of probable cause, those of us who communicate (knowingly or otherwise) with foreign terrorists will have to accept the fact that Uncle Sam may be listening.
  But "the courts" in question were all deciding cases under the Fourth Amendment, right? "The test" mentioned here was the Fourth Amendment test, not the test for legality. I agree that the program probably passes Fourth Amendment muster; it's the prohibitions of FISA that are the issue.
Our Constitution is the supreme law, and it cannot be amended by a simple statute like the FISA law. Every modern president and every court of appeals that has considered this issue has upheld the independent power of the president to collect foreign intelligence without a warrant. The Supreme Court may ultimately clarify the competing claims; but until then, the president is right to continue monitoring the communications of our nation's declared enemies, even when they elect to communicate with people within our country.
  Again, I think this claim confuses two different powers: powers to conduct surveillance absent congressional authorization, and powers to conduct surveillance in the face of congressional prohibition.

  Finally, if the issue is how the Supreme Court would rule, I don't think there is much doubt as to what the Supreme Court would do with the Article II argument. I think you would probably get an 8-1 vote against an expansive reading of Article II powers, and it's really hard to see where the Administration could get 5 votes for the claim. That's my ballpark guess, at least. We may find out as early as this summer, too; if the Court grants cert in Padilla, which it probably will, there may be some interesting opportunities for opinions that shed more light on these issues.

  To be clear, I think the legality of the NSA surveillance program is a very difficult question, and it depends on details we mostly don't yet know. But in constrast to the difficult issues involving FISA and the AUMF, I don't see the Article II claim as a close one based on existing law. Am I wrong? If you think so, please consider leaving a comment explaining why. I am particularly interested in case citations and arguments based on existing legal authorities.