Staffing the Justice Department:

"The objective in staffing is never to assemble the best possible team. It is to assemble the best possible team that supports the president."

   -- an unnamed former Bush Administration official, explaining why the White House vetoed some of Deputy Attorney General James Comey's staff picks and why Comey himself "has erred too much on the side of neutrality and independence" to be named Attorney General if Bush is reelected. As quoted in Vanessa Blum, "For Next AG, Don't Look to Deputy," Legal Times, October 18, 2004.

Deputy Attorney General Stepping Down: Deputy AG James Comey has announced that he is resigning. The Deputy Attorney General is the #2 person at DOJ and has day-to-day control over the Department. My sense of things is that Comey was highly respected among the career lawyers at DOJ; his departure will be a loss for the Department.

Legal Analysis of the NSA Domestic Surveillance Program: Was the secret NSA surveillance program legal? Was it constitutional? Did it violate federal statutory law? It turns out these are hard questions, but I wanted to try my best to answer them. My answer is pretty tentative, but here it goes: Although it hinges somewhat on technical details we don't know, it seems that the program was probably constitutional but probably violated the federal law known as the Foreign Intelligence Surveillance Act. My answer is extra-cautious for two reasons. First, there is some wiggle room in FISA, depending on technical details we don't know of how the surveillance was done. Second, there is at least a colorable argument — if, I think in the end, an unpersuasive one — that the surveillance was authorized by the Authorization to Use Miltary Force as construed in the Hamdi opinion.

  This is a really long post, so let me tell you where I'm going. I'm going to start with the Fourth Amendment; then turn to FISA; next look to the Authorization to Use Military Force; and conclude by looking at claim that the surveillance was justified by the inherent authority of Article II. And before I start, let me be clear that nothing in this post is intended to express or reflect a normative take of whether the surveillance program is a good idea or a bad idea. In other words, I'm just trying to answer what the law is, not say what the law should be. If you think my analysis is wrong, please let me know in the comment section; I'd be delighted to post a correction.

  The Fourth Amendment. On the whole, I think there are some pretty decent arguments that this program did not violate the Fourth Amendment under existing precedent. There are a bunch of different arguments here, but let me focus on two: the border search exception and a national security exception. Neither is a slam dunk, by any means, but each are plausible arguments left open by the cases.

  The border search exception permits searches at the border of the United States "or its functional equivalent." United States v. Montoya De Hernandez, 473 U.S. 531, 538 (1985). The idea here is that the United States as a sovereign has a right to inspect stuff entering or exiting the country as a way of protecting its sovereign interests, and that the Fourth Amendment permits such searches. Courts have applied the border search exception in cases of PCs and computer hard drives; if you bring a computer into or out of the United States, the government can search your computer for contraband or other prohibited items at the airport or wherever you are entering or leaving the country. See, e.g., United States v. Ickes, 393 F.3d 501 (4th Cir. 2005) (Wilkinson, J.).

  As I understand it, all of the monitoring involved in the NSA program involved international calls (and international e-mails). That is, the NSA was intercepting communications in the U.S., but only communications going outside the U.S. or coming from abroad. I'm not aware of any cases applying the border search exception to raw data, as compared to the search of a physical device that stores data, so this is untested ground. At the same time, I don't know of a rationale in the caselaw for treating data differently than physical storage devices. The case law on the border search exception is phrased in pretty broad language, so it seems at least plausible that a border search exception could apply to monitoring at an ISP or telephone provider as the "functional equivalent of the border," much like airports are the functional equivalent of the border in the case of international airline travel. [UPDATE: A number of people have contacted me or left comments expressing skepticism about this argument. In response, let me point out the most persuasive case on point: United States v. Ramsey, holding that the border search exception applies to all international postal mail, permitting all international postal mail to be searched. Again, this isn't a slam dunk, but I think a plausible argument -- and with dicta that seems to say that mode of transportation is not relevant.]

  The government would have a second argument in case a court doesn't accept the border search exception: the open question of whether there is a national security exception to the Fourth Amendment that permits the government to conduct searches and surveillance for foreign intelligence surveillance. Footnote 23 of Katz v. United States left this open, and Justice White's conccurrence in Katz expanded on this point:

Wiretapping to protect the security of the Nation has been authorized by successive Presidents. The present Administration would apparently save national security cases from restrictions against wiretapping. We should not require the warrant procedure and the magistrate's judgment if the President of the United States or his chief legal officer, the Attorney General, has considered the requirements of national security and authorized electronic surveillance as reasonable.

  The Supreme Court also left this question open in the so-called "Keith" case, United States v. United States District Court, in 1972. Justice Powell's opinion in the Keith case concluded that there was no national security exception to the Fourth Amendment for evidence collection involving domestic organizations, but expressly held open the possibility that such an exception existed for foreign intelligence collection:

Further, the instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country. The Attorney General's affidavit in this case states that the surveillances were "deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of Government." There is no evidence of any involvement, directly or indirectly, of a foreign power.

  The administration presumably takes the position that the President does have such power in cases involving foreign evidence collection, and that the NSA surveillance is such a case. The Supreme Court has never resolved the question, so it's an open constitutional issue. Nonetheless, between the border search exception and the open possibility of a national security exception, there are pretty decent arguments that the monitoring did not violate the Fourth Amendment. Maybe persuasive, maybe not, but certainly open and fair arguments under the case law.

  Foreign Intelligence Surveillance Act. Now let's turn to FISA, a 1978 law that Congress enacted in response to the Keith case. FISA goes beyond the Keith case, including foreign intelligence surveillance in its scope even though it was left open as a constututional question.

  Specifically, 50 U.S.C. 1809 prohibits "electronic surveillance" except as authorized by statutory law: "A person is guilty of an offense if he intentionally . . . engages in electronic surveillance under color of law except as authorized by statute." "Electronic surveillance" is defined in 50 U.S.C. 1801(f) to mean, in relevant part:

(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;
(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States. . . .

  A "United States person" is defined in 50 U.S.C. 1801(i) as "a citizen of the United States [or] an alien lawfully admitted for permanent residence." A "wire communication" is defined as a communication that is traveling by a wire; I don't know if "radio communication" is a defined term, but I assume it refers primary to satellite communications.

  Putting aside the AUMF and statutory exceptions for now, let's consider whether the NSA surveillance program violates the basic prohibition of 50 U.S.C. 1809 — intentionally conducting electronic surveillance. I think the answer is probably yes. If the surveillance tapped wire communications under 1801(f)(2), the case is pretty clear: the surveillance involved people in the U.S. and survillance in the U.S., and that's all that is required. If the surveillance involved radio communications (satellite communications, I'm guessing), that's a bit trickier. There is at least a little wiggle room in Section 1801(f)(1). For example, you could say that the border search exception eliminates Fourth Amendment protection, such that there was no reasonable expectation of privacy and therefore there would be no warrant required in an analogous criminal case. In that case, the tapping of the radio communication wouldn't count as "electronic surveillance." I don't think we know the details of how the communucations were obtained, so I think it's fair to say that the surveillance probably violated the basic proibition but it at least arguably depends on some of the technical details we don't know.

  Now, on to the exceptions. 50 U.S.C. 1802(a)(1) provides in relevant part:

Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that--

(A) the electronic surveillance is solely directed at--
(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801(a)(1), (2), or (3) of this title; or
(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801(a)(1), (2), or (3) of this title; [and]

(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party.

  Does this exception permit the monitoring? Note that (i) and (ii) are both dealing with "foreign power, as defined in (a)(1), (2), or (3) of this title." FISA's definition of "foreign power" appears in 50 U.S.C. 1801:

(1) a foreign government or any component thereof, whether or not recognized by the United States;
(2) a faction of a foreign nation or nations, not substantially composed of United States persons;
(3) an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments;
(4) a group engaged in international terrorism or activities in preparation therefor;
(5) a foreign-based political organization, not substantially composed of United States persons; or
(6) an entity that is directed and controlled by a foreign government or governments.

  So as I read the statutes, Congress was trying to give an exception for monitoring foreign governments (a1, a2, a3) but not terrorist groups (a4, a5, a6), so long as no citizens or lawful permanent resident aliens were being monitored. There are interesting questions of how that might have applied to Al Qaeda in Afghanistan, but I don't think we need to reach them. It's my understanding that the program monitored both citizens and non-citizens, so I don't see how the exception is applicable.

  (Aside: Remember back in 2003 when a copy of the Administration's "Domestic Security Enhancement Act" — sometimes dubbed "Patriot II" — was leaked to the press? Section 501 of that Act would have made "providing material support" to a terrorist group an automatic ground for terminating citizenship. This is just a guess, but I wonder if the thinking was that this would make the NSA warrantless monitoring program legal under FISA. An individual who made regular contact with Al Qaeda could be giving them material support, and the individual would then no longer be a United States person and could then be legally subject to monitoring. Just speculation, but it might explain the thinking behind the legislative proposal. Anyway, back to our regularly scheduled programming.)

  Authorization to Use Military Force. The next question is whether the Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224, justified the monitoring. The authorizaton states in relevant part:

AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.
(a) IN GENERAL.--That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

  I assume that the Administration's claim is that the AUMF counts as a "statute" that authorizes the surveillance: 50 U.S.C. 1809 states that "A person is guilty of an offense if he intentionally . . . engages in electronic surveillance under color of law except as authorized by statute," so if the AUMF authorized the electronic surveillance, then the NSA program didn't violate FISA.

  The Supreme Court considered the legal effect of the AUMF in Hamdi v. Rumsfeld. Yaser Hamdi was being held as an enemy combatant, and claimed that his detention violated 18 U.S.C. 4001. Section 4001(a) states that "[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." Given Justice Thomas's very broad reading of the AUMF in his dissent, I think the key interpretation is that of Justice O'Connor's plurality opinion, joined by Chief Justice Rehnquist, Justice Kennedy, and Justice Breyer. Justice O'Connor concluded that the the AUMF was "an act of Congress" that authorized Hamdi's detention, such that the detention did not violate 4001(a):

  The AUMF authorizes the President to use "all necessary and appropriate force" against "nations, organizations, or persons" associated with the September 11, 2001, terrorist attacks. 115 Stat. 224. There can be no doubt that individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network responsible for those attacks, are individuals Congress sought to target in passing the AUMF. We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the "necessary and appropriate force" Congress has authorized the President to use.
  The capture and detention of lawful combatants and the capture, detention, and trial of unlawful combatants, by "universal agreement and practice," are "important incident[s] of war." Ex parte Quirin, 317 U. S., at 28. The purpose of detention is to prevent captured individuals from returning to the field of battle and taking up arms once again. . . .
   . . .
  In light of these principles, it is of no moment that the AUMF does not use specific language of detention. Because detention to prevent a combatant's return to the battlefield is a fundamental incident of waging war, in permitting the use of "necessary and appropriate force," Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here.
   . . .
  Hamdi contends that the AUMF does not authorize indefinite or perpetual detention. Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized. Further, we understand Congress' grant of authority for the use of "necessary and appropriate force" to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles.
  . . .
  The United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who "engaged in an armed conflict against the United States." If the record establishes that United States troops are still involved in active combat in Afghanistan, those detentions are part of the exercise of "necessary and appropriate force," and therefore are authorized by the AUMF.

  So does the AUMF authorize the surveillance? As often happens when you're trying to draw guidance from an O'Connor opinion, it's not entirely clear. Under her opinion, the key question is whether the act is "so fundamental and accepted an incident to war" that it falls within the authorization. But that depends on the level of generality you chose to use to define "the act." Is "the act" spying on the enemy? In that case, perhaps it is a fundamental incident to war. Or is "the act" conducting U.S. domestic surveillance of U.S. citizens? In that case, the answer is no, it's not a fundamental incident to war.

  In the end, my best sense is that the AUMF doesn't extend to this. I have three reasons. First, O'Connor's opinion says the following about detention for interrogation: "Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized." It seems to me that surveillance and wiretapping is pretty similar to interrogation: the point of both is getting information about your enemy. Second, it doesn't seem like wiretapping counts as a "use of force." If you read the text of the AUMF, it doesn't seem to me that it authorizes wiretapping. Finally, note that Congress passed the Patriot Act about a month after passing the AUMF; if Congress had intended the AUMF to give the president wide authority to conduct domestic surveillance against Al Qaeda, I don't think they would have spent so much time amending FISA for terrorism investigations. So at bottom, I think the AUMF probably didn't authorize this, although the Hamdi case gives some colorable (if ultimately unpersuasive) arguments that it might.

  Article II. The final argument is that Article II of the Constitution gives the President inherent authority to conduct such monitoring. The Administration introduced this theory in a supplemental brief filed in the FISA Court of Review:

  The President Has Inherent Authoritv to Conduct Warrantless Electronic Surveillance to Protect National Security from Foreign Threats.

  In considering the constitutionality of the amended FISA, it is important to understand that FISA is not required by the Constitution. Rather, the Constitution vests in the President inherent authority to conduct warrantless intelligence surveillance (electronic or otherwise) of foreign powers or their agents, and Congress cannot by statute extinguish that constitutional authority. Both before and after the enactment of FISA, courts have recognized the President's inherent authority to conduct foreign intelligence surveillance. See, e.g., Butenko, 494 F.2d at 608 (grounding exception to warrant requirement in the President's Commander-in-chief and foreign-affairs powers; noting that the country's self-defense needs weigh on the side of reasonableness); Truong, 629 F.2d at 914 (citing the President's foreign affairs power as justifying an exception to the warrant requirement); cf. United States v. United States District Court (Keith), 407 U.S. 297, 308 (1972)(reserving the question whether the President's foreign-affairs powers justify exception from warrant requirement).

  So the argument, as I understand it, is that Congress has no power to legislate in a way that inteferes with the President's Commander-in-Chief power, a judgment made, I suppose, by the President himself.

  I have been unable to find any caselaw in support of this argument. Further, the argument has no support from the cases cited in the government's brief. In all three of those cases — Butenko, Truong, and Keith - the Courts were talking about whether the President's interest in conducting foreign intelligence monitoring creates an exception to the Warrant Requirement of the Fourth Amendment. In other words, the issue in those case was whether the Constitution bars warrantless surveillance absent Congressional action, not whether Congressional prohibitons in this area cannot bind the Executive branch.

  Consider the citation to the Butenko case. Here is the relevant section, from 494 F.2d at 608:

  Both executive authority in the foreign affairs area and society's interest in privacy are of significance, and are equally worthy of judicial concern.
  . . .
  The importance of the President's responsibilities in the foreign affairs field requires the judicial branch to act with the utmost care when asked to place limitations on the President's powers in that area. As Commander-in-Chief, the President must guard the country from foreign aggression, sabotage, and espionage. Obligated to conduct this nation's foreign affairs, he must be aware of the posture of foreign nations toward the United States, the intelligence activities of foreign countries aimed at uncovering American secrets, and the policy positions of foreign states on a broad range of international issues.
  To be sure, in the course of such wiretapping conversations of alien officials and agents, and perhaps of American citizens, will be overheard and to that extent, their privacy infringed. But the Fourth Amendment proscribes only 'unreasonable' searches and seizures. And balanced against this country's self-defense needs, we cannot say that the district court erred in concluding that the electronic surveillance here did not trench upon Ivanov's Fourth Amendment rights.

  As I read this analysis, it is entirely focused on the Fourth Amendment, and specifically whether the President's Commander in Chief power should trigger a relaxed Fourth Amendment standard. That seems quite different from a claim that Article II makes Congressional regulation inoperative. The same goes for the citation to Truong, 629 F.2d at 914. In the course of discussing whether the Courts should require a warant for foreig intelligence surveillance, the court tried to balance the ability of courts to regulate intelligence surveillance with the strong governmentg interest:

  Perhaps most crucially, the executive branch not only has superior expertise in the area of foreign intelligence, it is also constitutionally designated as the pre-eminent authority in foreign affairs. The President and his deputies are charged by the constitution with the conduct of the foreign policy of the United States in times of war and peace. Just as the separation of powers in Keith forced the executive to recognize a judicial role when the President conducts domestic security surveillance, so the separation of powers requires us to acknowledge the principal responsibility of the President for foreign affairs and concomitantly for foreign intelligence surveillance.
In sum, because of the need of the executive branch for flexibility, its practical experience, and its constitutional competence, the courts should not require the executive to secure a warrant each time it conducts foreign intelligence surveillance.

  While the Court was recognizing the President's constitutional role, it was in a very specific context: balancing reasonableness in the context of Fourth Amendment law to determine whether the surveillance required a warrant. Again, this doesn't seem to go to whether Congress can impose binding statutory prohibitions beyond the Fourth Amendment.

  Conclusion. Anyway, that's my tentative take; I hope it's helpful. It's entirely possible that I goofed the analysis somewhere along the way; FISA, the AUMF, and Article II aren't my area of expertise, so we should consider this post a work in progress. I look forward to comments — civil and respectful, please.

  UPDATE: A lawyer I know who works in this area e-mails in additional thoughts:

  Of course you're right that Keith and Katz reserved the question whether the President may engage in warrantless surveillance of foreign-based threats to the national security. While the Supreme Court has never addressed the issue, a number of federal appellate courts, some of which you cite at the end of your post, answered that question in the affirmative in the years immediately after Keith. See, e.g., United States v. Brown, 484 F.2d 418 (5th Cir. 1973); United States v. Butenko, 494 F.2d 593 (3d Cir. 1974) (en banc); United States v. Buck, 548 F.2d 871 (9th Cir. 1977); United States v. Truong, 629 F.2d 908 (4th Cir. 1980). But see Zweibon v. Mitchell, 516 F.2d 594 (D.C. Cir. 1975).
  The interesting question is whether FISA somehow extinguishes this inherent Presidential power to conduct foreign-intelligence surveillance. There's a respectable argument that it does. FISA repealed Title III's reservation clause (18 USC 2511(3)), in which Congress expressly had forsworn any intent to regulate the collection of foreign intelligence. Given that repeal, we might be in Category Three from Justice Jackson's Steel Seizure concurrence — "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. Courts can sustain exclusive Presidential control in such a case only by disabling the Congress from acting upon the subject."

  If you're in the mood for more, check out posts on this from Marty Lederman and Daniel Solove.

A Few Additional Thoughts on NSA Surveillance: The NSA surveillance story has come at an awkward time for law profs; it's hard to follow the latest in this fast-moving story when you should be working through a pile of exams. But I wanted to respond to a few issues, even if only briefly.

  1. Some have asked me why I question whether the surveillance program violated FISA, given that Bush and Gonzales aren't arguing it didn't. They make the very fair argument that if the administration isn't defending the program on that ground, the program presumably does violate FISA. This is a decent point, but I think it's sensible to be cautious here. My thinking is that there may be strategic reasons why the administration isn't making this argument. Based on my research, an explanation of why the program may not violate FISA would require them to explain the technical details of how the program works, and they presumably wouldn't want to do that in public given that the program is classified. I don't know how likely this is, but it's certainly possible when you're dealing with a secretive agency like the NSA. So in the end, my take is the same as it was before: the program probably violated FISA, but it depends on some details we don't know.

  2. Sticking with that theme, I don't think we know a lot of important facts of how the program works. Questions that I would want to know: Was this surveillance intercepting satellite communications? Assuming that telecom satellites are in geosynchronous orbit, are the satellites over the U.S.? How do they route calls in and out of the United States? (There's a fun Fourth Amendment question: Assuming no border search exception or national security exception, does an individual have a Fourth Amendment reasonable expectation of privacy against intercepting their satellite communications in space? Does it matter whether the satellite orbits the earth outside the United States?) If the interceptions were on wires, not via satellite, then where, how, and by whom were the monitoring devices installed?

  3. A bit about the Fourth Amendment abroad. Some people have been assuming that Fourth Amendment rights are completely territorial, such that those outside the United States have no such rights. The Supreme Court hasn't said a lot about this question: it has said that if you have no voluntary contacts with the U.S. you have no Fourth Amendment rights, but that's about it. Lower courts have filled in more details. According to the lower court opinions, Fourth Amendment rights track the individual's connection to the United States, even if the person is abroad. For example, U.S. citizens retain Fourth Amendment rights abroad; if you're a U.S. citizen and you visit country X, the U.S. government generally can't search your home in country X without legal authorization.

  The exact contours of Fourth Amendment rights abroad are pretty tricky, as it's not like the U.S. government can go to the District Court of Argentina to get a warrant. (In a few circuit cases involving joint U.S.-foreign investigations, for example, courts have said that the Fourth Amendment's reasonableness standard is satisfied if the search complies with the laws of the country where the search occurs. There are no cases on Fourth Amendment rights for searches in orbit, though.) But the key idea is that the Fourth Amendment issues are much less sensitive to the territorial question of where the search is occurring — with the notable exception of the border — than some people seem to be thinking. It's a different case on the statutory front, as the statutes have much clearer territorial bounds.

  Anyway, there's lots more ground to cover, but let me stick with that for now.

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.

Comey Tried to Limit NSA Surveillance Program: The New York Times has a fascinating article today about efforts by former Deputy Attorney General James Comey to limit or even block the NSA surveillance program back in 2004, when Comey was acting Attorney General:

  A top Justice Department official objected in 2004 to aspects of the National Security Agency's domestic surveillance program and refused to sign on to its continued use amid concerns about its legality and oversight, according to officials with knowledge of the tense internal debate. The concerns appear to have played a part in the temporary suspension of the secret program.
  The concerns prompted two of President Bush's most senior aides - Andrew H. Card Jr., his chief of staff, and Alberto R. Gonzales, then White House counsel and now attorney general - to make an emergency visit to a Washington hospital in March 2004 to discuss the program's future and try to win the needed approval from Attorney General John Ashcroft, who was hospitalized for gallbladder surgery, the officials said.
  The unusual meeting was prompted because Mr. Ashcroft's top deputy, James B. Comey, who was acting as attorney general in his absence, had indicated he was unwilling to give his approval to certifying central aspects of the program, as required under the White House procedures set up to oversee it.
  . . .
  . . . [I]n early 2004, about the time of the hospital visit, the White House suspended parts of the program for several months and moved ahead with more stringent requirements on the security agency on how the program was used, in part to guard against abuses.
  The concerns within the Justice Department appear to have led, at least in part, to the decision to suspend and revamp the program, officials said. The Justice Department then oversaw a secret audit of the surveillance program.

  I'm not surprised by this; I would imagine there was a great deal of internal disagreement among advisors as to the legality of the NSA program. I'm also not surprised that James Comey played an important role in objecting to the program. In October 2004, seven months after Comey's objection, a Legal Times story by Vanessa Blum disclosed the extent of the tension between Comey and the White House over the former's perceived "neutrality and independence." According to the Legal Times story, that independence took Comey out of the running for the Attorney General slot when Ashcroft stepped aside:

  There are a number of candidates who could be tapped to replace John Ashcroft as attorney general if President George W. Bush wins re-election. But perhaps the most obvious choice, Deputy AG James Comey, almost certainly will not be.
  Since his confirmation as the No. 2 Justice Department official in December 2003, sources close to the department say Comey has had a strained relationship with some of the president's top advisers . . . .
  . . .
  Earlier this year, after the disclosure of internal administration memos that seemed to condone the torture of suspected terrorists overseas, Comey pushed aggressively for the Justice Department's memos to be released to the media and for controversial legal analyses regarding the use of torture to be rewritten.
  In a deeply partisan administration that places a high premium on political loyalty, sources say Comey — a career prosecutor and a former U.S. Attorney for the Southern District of New York — is not viewed as a team player.
  "[Comey] has shown insufficient political savvy," says the former official. "The perception is that he has erred too much on the side of neutrality and independence."

  Instead of picking Comey to replace Ashcroft, the President selected Gonzales -- who as White House Counsel had already committed to the view that the NSA surveillance program was legal. (Of course, it's hard to say if the NSA program played an important role in the White House's thinking on the AG slot -- it may just be a reflection of broader dynamics and priorities rather than a cause of them. Still, it's interesting to speculate on how the pieces might fit together.)

NSA Expanded Surveillance On Its Own -- But Connections to Later Program Doubtful: The New York Times is reporting that in the days following 9/11/01, the NSA stepped up its surveillance programs on its own without Presidential action:

  The National Security Agency acted on its own authority, without a formal directive from President Bush, to expand its domestic surveillance operations in the weeks after the Sept. 11 attacks, according to declassified documents released Tuesday.
  The N.S.A. operation prompted questions from a leading Democrat, Representative Nancy Pelosi of California, who said in an Oct. 11, 2001, letter to a top intelligence official that she was concerned about the agency's legal authority to expand its domestic operations, the documents showed. . . .
  The letter from Ms. Pelosi . . . suggested that the security agency, whose mission is to eavesdrop on foreign communications, moved immediately after the Sept. 11 attacks to identify terror suspects at home by loosening restrictions on domestic eavesdropping.

  The obvious question is, was this expansion directly related to the Bush Administration's warrantless surveillance program? I doubt it. It seems quite unlikely to me that the NSA would on its own accord engage in monitoring that needed the AUMF or rather novel Article II theories to justify it. Presumably the change was just some kind of expansion of monitoring or change in practice that the NSA thought fit within the bounds of FISA and the existing Executive Order. That's what this bit from the story suggests:

  Bush administration officials said on Tuesday that General Hayden, now the country's No. 2 intelligence official, had acted on the authority previously granted to the N.S.A., relying on an intelligence directive known as Executive Order 12333, issued by President Ronald Reagan in 1981. That order set guidelines for the collection of intelligence, including by the N.S.A.
  "He had authority under E.O. 12333 that had been given to him, and he briefed Congress on what he did under those authorities," said Judith A. Emmel, a spokeswoman for the Office of the Director of National Intelligence. "Beyond that, we can't get into details of what was done."

  We can't know for sure, but it seems like there probably isn't much of a story here. One would certainly hope that the NSA changed its surveillance practices somewhat in the days following 9/11. So long as the changes fit readily within the boundaries of preexisting law -- which seems to have been the case, as far as I can tell -- I don't see a problem here.

  Thanks to Eric Freedman for the link.

New Risen Book Sheds Light on NSA Surveillance Program: In the many debates we've had here at the VC about the NSA's domestic surveillance program, we've been stymied by the lack of facts about how the program works. James Risen's new book, State of War: State of War : The Secret History of the C.I.A. and the Bush Administration, was released just today, and it has lots of juicy new facts to ponder. Risen's civil libertarian views are front and center, so the tone isn't exactly balanced, but the new facts make it an incredible read.

  Risen's book answers a bunch of our questions about why the program was started, and what it does differently than past NSA surveillance programs. We don't yet have definitive answers to the legal questions, but we have a much sharper picture of the issues. Further, I suspect these disclosures may have an impact on the public opinion; at first blush, at least to me, the new facts seem to present the program in a somewhat more sympathetic light than have some previous reports.

  According to Risen, the key to the new program is a shift in telecommunications technology in recent decades that has made U.S. networks the carriers of lots of international telephone and e-mail traffic.

  In addition to handling telephone calls from, say, Los Angeles to New York, the switches also act as gateways into and out of the United States for international telecommunications. A large volume of purely international telephone calls — calls that do not begin or end in America — also now travel through switches based in the United States. Telephone calls from Asia to Europe, for example, may go through the United States-based switches. This so-called transit traffic has dramatically increased in recent years as the telephone network has become increasingly globalized. Computerized systems determine the most efficient routes for digital "packets" of electronic communications depending on the speed and congestion on the networks, not necessarily on the shortest line between two points. Such random global route selection means that the switches carrying calls from Cleveland to Chicago, for example, may also be carrying calls from Islamabad to Jakarta. In fact, it is now difficult to tell where the domestic telephone system ends and the international network begins.
  In the years before 9/11, the NSA apparently recognized that the remarkable growth in transit traffic was becoming a major issue that had never been addressed by FISA or the other 1970s-era rules and regulations governing the U.S. intelligence community. Now that foreign calls were being routed through switches that were physically on American soil, eavesdropping on those calls might be a violation of the regulations and laws restricting the NSA from spying inside the United States.
  But transit traffic also presented a major opportunity. If the NSA could gain access to the American switches, it could easily monitor millions of foreign telephone calls, and do so much more consistently and effectively than it could overseas, where it had to rely on spy satellites and listening stations to try to vacuum up telecommunications signals as they bounced through the air.

  Reading over this part of Risen's book, it seems that most of the new surveillance program was not about domestic surveillance at all; most of it was about the surveillance of entirely international calls and e-mails that just happened to be routed through U.S. networks in the course of delivery. According to Risen, the program typically monitored about 7,000 individuals overseas at any given time, as compared to about about 500 people who were located in the United States. From an operational perspective, then, the big difference between prior NSA practices and the new program was that the NSA was using a back door into domestic privider switches in the U.S. to monitor communications that were mostly foreign to foreign.

  Okay, so now let's take a look at the legal questions again. Recall that FISA prohibits "electronic surveillance," defined in relevant part as follows by 50 U.S.C. 1801(f):

(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;
(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States. . . .

  As I read this language, monitoring communications both sent to and received by individuals located outside the United States is not prohibited by FISA. This surveillance is technically domestic — it occurs within the United States — but it does not involve monitoring "a person in the United States." So if I'm understanding things correctly — always a big "if" when you post after 2 am — most of the program did not violate FISA.

  Now here's the part I can't quite figure out. If most of the program dealt with international calls, and didn't violate FISA, why would the program be designed so that it also tapped the calls of 500 or so people in the United States? If the communications tapped were wire communications, then tapping those communications inside the United States seems to clearly violate FISA under 1801(f)(2). So it seems like there are two possibilities: either the communications were wire communications and the designers of the program thought that the 500 people tapped in the U.S. were of sufficient importance (potential terrorists cells, etc.) that they didn't want to cabin the program to deal exclusively with foreign-to-foreign calls, or else the communications were electronic communications and perhaps the monitoring didn't violate FISA. (Can anyone else tell based on Risen's excerpt whether the communications were wire or radio? Maybe it's just late, but I'm not sure.)

  Here's another puzzle to ponder. A few passages in the Risen book suggest that the legal concerns offered by those who leaked this story may be different from the legal concerns that I've been focusing on in my posts. For example, according to the book, "[s]everal government officials who know about the NSA operation have come forward to talk about it because they are deeply troubled by it, . . . [t]hey strongly believe that the president's secret order is in violation of the Fourth Amendment of the Constitution, which prohibits unreasonable searches." Other parts of the book seem Fourth Amendment-focused, as well.

  That seems somewhat odd to me, because, as I've explained before, my primary legal concerns are statutory, not constitutional. This raises a couple of different possibilities. For example, it may be that the program doesn't violate FISA after all, and the debate within government has really been about the Fourth Amendment. The concern within some government officials may be that scanning traffic en masse for phone numbers or e-mail addresses of even foreign calls may violate the Fourth Amendment rights of domestic people whose communications are scanned (even only in the passing way that any Internet wiretap must scan all traffic). That is consistent with Risen's claim that "Now that [foreign to] foreign calls were being routed through switches that were physically on American soil, eavesdropping on those calls might be a violation of the regulations and laws restricting the NSA from spying inside the United States." The "regulations and laws" don't seem to be FISA, as I believe FISA is implicated only when the person monitored is in the United States; could those "laws" be the Fourth Amendment? Are there other "regulations" that govern the NSA that might be implicated here? It's hard to tell. Of course, it's also possible that the Fourth Amendment concerns are a bit of a red herring: the claim may be a cover for other motives. Who knows.

  In any event, it's way late, and I'm probably not being very coherent at this hour. More pondering tomorrow. Thanks to Lee Tien for the tip.

Congressional Research Service Report on NSA Surveillance: The Congressional Research Service has published a report analyzing the DOJ letter sent to the Intelligence Committee on the NSA surveillance program. The CRS report is quite narrow. To condense its 44 pages into a sentence, it says that if you accept that the NSA program violated FISA, then the claims in DOJ's letter as to why the AUMF or Article II trump FISA are relatively weak. I agree; the CRS analysis is pretty similar to my initial post on the NSA program. The CRS report is appropriately cautious, too. It acknowledges that we don't have enough facts yet to analyze the legality of the program. I hope to post more on that, and some of my further ruminations on the NSA program, at some point over the next few days.