FISA vs. THE CONSTITUTION: Why the Foreign Intelligence Surveillance Act is Unconstitutional and How It Contributed to the Success of the 9/11 Attacks.

FISA vs. THE CONSTITUTION: Why the Foreign Intelligence Surveillance Act is Unconstitutional and How It Contributed to the Success of the 9/11 Attacks Prof. Robert F. Turner Center for National Security Law University of Virginia School of Law

Two Distinct Issues Statutory Issue — Did the 2001 AUMF authorize the President to collect foreign intelligence outside of FISA? Constitutional Issues — Does the Constitution empower the President to collect foreign intelligence during wartime; and, if so, could Congress by statute deny that power to the President with FISA?

Two Distinct Issues The President wins if he prevails on either issue. The Justice Department has focused primarily on the statutory argument. I think by far the most important and interesting issue is the constitutional one.

the Collection of Foreign Intelligence Outside FISA?
The Statutory Issue Did the AUMF Authorize the Collection of Foreign Intelligence Outside FISA?

Effect of AUMF? Justice Dep’t claims passage of AUMF on Sept. 18, 2001, authorized collection of foreign intelligence information outside of FISA. Critics note AUMF made no mention of FISA and legislators say they did not believe they were changing FISA.

Authorization for Use of Military Force Pub. L. 107-40 (Sept. 18, 2001)
“[T]he 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.”

Authorization for Use of Military Force Pub. L. 107-40 (Sept. 18, 2001)
This clearly authorized many actions beyond actually “using force” (shooting, bombing, firing missiles, etc.) against the enemy: Transporting troops and supplies to combat zone; Negotiating SOF agreements, overflight agreements, and the like; Finding out where the enemy is located and discovering its plans; Measures necessary to protect U.S. forces, population, and territory from further attacks. But the AUMF didn’t mention any of these, and many in Congress likely didn’t think of them.

Supreme Court Interpretation of AUMF in Hamdi
We hold that Congress authorized the detention of combatants in the narrow circumstances alleged here 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. - Hamdi v. Rumsfeld, Opinion of Justice O’Connor

Importance of Intelligence Collection During Wartime
Had we not broken German and Japanese codes during WW II, we might be speaking German or Japanese today. At minimum, the war would have continued for years. To “use force” against enemy, we must have intelligence on who and where they are. Gathering intelligence on al Qaeda is FAR more important than detaining the few American citizens fighting with the enemy.

Non-Detention Act (1971) “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” 18 U.S.C. § 4001(a)

AUMF Issue: Conclusions
It may well be true that no one in Congress believed they were changing FISA and the AUMF didn’t mention FISA; but equally true they didn’t mention and probably didn’t realize they were changing the Non-Detention Act — and Hamdi was a U.S. Citizen. Gathering foreign intelligence in wartime clearly a “fundamental and accepted Incident to war.”

AUMF Issue: Conclusions
It may well be true that no one in Congress believed they were changing FISA and the AUMF didn’t mention FISA; but equally true they didn’t mention and probably didn’t realize they were changing the Non-Detention Act — and Hamdi was a U.S. Citizen. Gathering foreign intelligence in wartime clearly a “fundamental and accepted Incident to war.” Under Hamdi, the President clearly wins this dispute in my view.

The Constitutional Issues
Does the Constitution empower the President to collect foreign intelligence? If so, could Congress limit that power by enacting FISA?

Correcting a Modern Myth
How many times have we heard in recent months that in a democracy every governmental power must be “checked”; and, when President Bush claims he has “independent” Executive power Congress can’t control, he is claiming the powers of a monarch like King George III?

Correcting a Modern Myth
How many times have we heard in recent months that in a democracy every governmental power must be “checked”; and, when President Bush claims he has “independent” Executive power Congress can’t control, he is claiming the powers of a monarch like King George III? ?

Have we forgotten Marbury v. Madison?

Does the President Have Any “Unchecked” Powers. Marbury v
Does the President Have Any “Unchecked” Powers? Marbury v. Madison (Marshall, C.J.) “By the constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience [W]hatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. ”

Does the President Have Any “Unchecked” Powers? Marbury v. Madison (Marshall, C.J.) “The subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive. The application of this remark will be perceived by adverting to the act of congress for establishing the department of foreign affairs. This officer, as his duties were prescribed by that act, is to conform precisely to the will of the president The acts of such an officer, as an officer, can never be examinable by the courts.” -Marbury v. Madison (Marshall, C.J.)

Does the President Have Any “Unchecked” Powers? Marbury v. Madison (Marshall, C.J.) “The subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive. The application of this remark will be perceived by adverting to the act of congress for establishing the department of foreign affairs. This officer, as his duties were prescribed by that act, is to conform precisely to the will of the president The acts of such an officer, as an officer, can never be examinable by the courts.” -Marbury v. Madison (Marshall, C.J.) Sadly, this language is sometimes left out of Constitutional Law casebooks.

Textual Source of the President’s Authority Over Foreign Affairs
Where in the Constitution do we find a grant of foreign affairs power to the President? “The executive Power shall be vested in a President of the United States of America.” - U.S. Const., Art. II, Sec. 1.

Textual Source of the President’s Authority Over Foreign Affairs
“The executive Power shall be vested in a President of the United States of America.” - U.S. Const., Art. II, Sec. 1.

The Framer’s Understanding of “Executive Power”
Locke, Montesquieu, Blackstone, and other theorists of the time included within the “executive” power the control over foreign affairs.

Thomas Jefferson described “Locke’s little book on government” as being “perfect, so far as it goes ” Locke, Montesquieu, Blackstone, and other theorists of the time included within the “executive” power the control over foreign affairs.

In Federalist No. 47, James Madison described “the celebrated Montesquieu” as the “oracle who is always consulted and cited” on separation-of-powers issues. Locke, Montesquieu, Blackstone, and other theorists of the time included within the “executive” power the control over foreign affairs.

Blackstone’s Commentaries were the most popular law volumes in colonial libraries and were repeatedly cited with approval during the Philadelphia Convention. Locke, Montesquieu, Blackstone, and other theorists of the time included within the “executive” power the control over foreign affairs.

Professor Quincy Wright
“The need of concentration of power for the successful conduct of foreign affairs was dwelt upon in the works of John Locke, Montesquieu, and Blackstone, the political Bibles of the constitutional fathers.” Quincy Wright, The Control of American Foreign Relations 363 (1922).

In addition to teaching at Chicago, Harvard, and Virginia, Prof. Wright served as: President, American Political Science Association President, International Political Science Association; President, American Society of International Law. “The need of concentration of power for the successful conduct of foreign affairs was dwelt upon in the works of John Locke, Montesquieu, and Blackstone, the political Bibles of the constitutional fathers.” Quincy Wright, The Control of American Foreign Relations 363 (1922).

I first became interested in this subject while attending a lecture by Professor Wright in 1966. “The need of concentration of power for the successful conduct of foreign affairs was dwelt upon in the works of John Locke, Montesquieu, and Blackstone, the political Bibles of the constitutional fathers.” Quincy Wright, The Control of American Foreign Relations 363 (1922).

Prof. William Goldsmith on Blackstone’s Influence
“The Commentaries present a Monarch who possesses close to absolute power in the realm of foreign policy as well as Commander in Chief of the Armed Forces, and who has the theoretical right at least to veto a provision of the Parliament [T]he Founding Fathers were obviously greatly influenced by Blackstone’s definition of executive powers, and gave their democratic monarch many of the same responsibilities. 1 William M. Goldsmith, The Growth of Presidential Power 56 (1974).

Prof. Corwin on Executive Prerogative
“The fact is that what the Framers had in mind was the ‘balanced constitution’ of Locke, Montesquieu, and Blackstone, which carried with it the idea of a divided initiative in the matter of legislation and a broad range of autonomous executive power or ‘prerogative.’” Edward S. Corwin, The President: Office and Powers 14-15 (4th Rev. ed. 1957) (emphasis in original).

Prof. Lou Henkin on “Executive Power”
“The executive power was not defined because it was well understood by the Framers raised on Locke, Montesquieu and Blackstone.” - Foreign Affairs and the Constitution 43 (1972).

Thomas Jefferson Memorandum to President Washington (April 1790)
How do we know the Founding Fathers accepted this theory of “Executive Power”? “The transaction of business with foreign nations is executive altogether; it belongs, then to the head of that department , except as to such portions of it as are specially submitted to the Senate. Exceptions are to be construed strictly.”

How do we know the Founding Fathers accepted this theory of “Executive Power”? Because they told us so. “The transaction of business with foreign nations is executive altogether; it belongs, then to the head of that department , except as to such portions of it as are specially submitted to the Senate. Exceptions are to be construed strictly.”

“The Constitution …. has declared that ‘the Executive power shall be vested in the President,’ submitting only special articles of it to a negative by the Senate ….

“The transaction of business with foreign nations is executive altogether; it belongs, then to the head of that department , except as to such portions of it as are specially submitted to the Senate. Exceptions are to be construed strictly.”

Washington, Madison, and Chief Justice Jay on the Scope of “Executive Power” (1790)
“Tuesday, 27th [April 1790]. Had some conversation with Mr. Madison on the propriety of consulting the Senate on the places to which it would be necessary to send persons in the Diplomatic line, and Consuls; and with respect to the grade of the first—His opinion coincides with Mr. Jay’s and Mr. Jefferson’s—to wit—that they have no Constitutional right to interfere with either, and that it might be impolitic to draw it into a precedent, their powers extending no farther than to an approbation or disapprobation of the person nominated by the President, all the rest being Executive and vested in the President by the Constitution.” - 4 Diaries of George Washington 122 (Regents’ Ed. 1925).

Washington, Madison, and Chief Justice Jay on Scope of “Executive Power” (1790)
“Tuesday, 27th [April 1790]. Had some conversation with Mr. Madison on the propriety of consulting the Senate on the places to which it would be necessary to send persons in the Diplomatic line, and Consuls; and with respect to the grade of the first—His opinion coincides with Mr. Jay’s and Mr. Jefferson’s—to wit—that they have no Constitutional right to interfere with either, and that it might be impolitic to draw it into a precedent, their powers extending no farther than to an approbation or disapprobation of the person nominated by the President, all the rest being Executive and vested in the President by the Constitution.” - 4 Diaries of George Washington 122 (Regents’ Ed. 1925). James Madison is often called the “Father of the Constitution.”

Washington, Madison, and Chief Justice Jay on Scope of “Executive Power” (1790)
“Tuesday, 27th [April 1790]. Had some conversation with Mr. Madison on the propriety of consulting the Senate on the places to which it would be necessary to send persons in the Diplomatic line, and Consuls; and with respect to the grade of the first—His opinion coincides with Mr. Jay’s and Mr. Jefferson’s—to wit—that they have no Constitutional right to interfere with either, and that it might be impolitic to draw it into a precedent, their powers extending no farther than to an approbation or disapprobation of the person nominated by the President, all the rest being Executive and vested in the President by the Constitution.” - 4 Diaries of George Washington 122 (Regents’ Ed. 1925). John Jay was America’s first Chief Justice.

Alexander Hamilton on “Executive Power” (1793)
“[A]s the participation of the Senate in the making of treaties, and the power of the Legislature to declare war, are exceptions out of the general “executive power” vested in the President, they are to be construed strictly, and ought to be extended no further than is essential to their execution.” 15 The Papers of Alexander Hamilton 39 (Harold C. Syrett ed., 1969).

First President (also President of Constitutional Convention)
Supporters of Idea that the “Executive Power” Clause Gave President Control of Foreign Affairs First President (also President of Constitutional Convention) First and Third Chief Justices Heads of both political parties (G.W. & T.J.) All three authors of the Federalist Papers Congress (as we will see).

First President (also President of Constitutional Convention)
Supporters of Idea that the “Executive Power” Clause Gave President Control of Foreign Affairs First President (also President of Constitutional Convention) First and Third Chief Justices Heads of both political parties (G.W. & T.J.) All three authors of the Federalist Papers Congress (as we will see). Yet modern casebooks seldom even mention this clause as a possible source of presidential power.

Thomas Jefferson on Appropriations letter to Secretary of the Treasury Albert Gallatin (19 February 1804) The Constitution has made the Executive the organ for managing our intercourse with foreign nations…. From the origin of the present government to this day it has been the uniform opinion and practice that the whole foreign fund was placed by the Legislature on the footing of a contingent fund, in which they undertake no specifications, but leave the whole to the discretion of the President. - 11 Writings of Thomas Jefferson 5, 9, 10 (Mem. ed. 1903).

Thomas Jefferson on Appropriations letter to Secretary of the Treasury Albert Gallatin (19 February 1804) Thus, early Congresses clearly shared this view that foreign policy was a presidential responsibility under the Constitution. The Constitution has made the Executive the organ for managing our intercourse with foreign nations…. From the origin of the present government to this day it has been the uniform opinion and practice that the whole foreign fund was placed by the Legislature on the footing of a contingent fund, in which they undertake no specifications, but leave the whole to the discretion of the President. - 11 Writings of Thomas Jefferson 5, 9, 10 (Mem. ed. 1903).

And let’s not forget the Supreme Court . . . .
Thomas Jefferson on Appropriations letter to Secretary of the Treasury Albert Gallatin (19 February 1804) And let’s not forget the Supreme Court The Constitution has made the Executive the organ for managing our intercourse with foreign nations…. From the origin of the present government to this day it has been the uniform opinion and practice that the whole foreign fund was placed by the Legislature on the footing of a contingent fund, in which they undertake no specifications, but leave the whole to the discretion of the President. - 11 Writings of Thomas Jefferson 5, 9, 10 (Mem. ed. 1903).

United States v. Curtiss-Wright Export Corp
United States v. Curtiss-Wright Export Corp. on Limits to Congressional Power “Not only, as we have shown, is the federal power over external affairs in origin and essential character different from that over internal affairs, but participation in the exercise of the power is significantly limited. In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it.”

SFRC Chairman J. William Fulbright on Executive Preeminence in Foreign Policy (1959)
This broad consensus prevailed in all three branches until about the time of the debate over the Vietnam War. “The pre-eminent responsibility of the President for the formulation and conduct of American foreign policy is clear and unalterable. He has, as Alexander Hamilton defined it, all powers in international affairs “which the Constitution does not vest elsewhere in clear terms.” He possesses sole authority to communicate and negotiate with foreign powers. He controls the external aspects of the Nation’s power, which can be moved by his will alone — the armed forces, the diplomatic corps, the Central Intelligence Agency, and all of the vast executive apparatus.”

“The pre-eminent responsibility of the President for the formulation and conduct of American foreign policy is clear and unalterable. He has, as Alexander Hamilton defined it, all powers in international affairs ‘which the Constitution does not vest elsewhere in clear terms.’”

“The pre-eminent responsibility of the President for the formulation and conduct of American foreign policy is clear and unalterable. He has, as Alexander Hamilton defined it, all powers in international affairs “which the Constitution does not vest elsewhere in clear terms.” Note Senator Fulbright acknowledges President control over the making of foreign policy as well as its implementation.

Additional Reading on the “Executive Power” Clause
34 Va. J. Int’l L. 903 (1994).

Executive Power and the “Business of Intelligence”
How do we know the Founding Fathers believed the President was given constitutional control over Intelligence?

John Jay Federalist No. 64 “There are cases where the most useful intelligence may be obtained, if the persons possessing it can be relieved from apprehensions of discovery. Those apprehensions will operate on those persons whether they are actuated by mercenary or friendly motives, and there doubtless are many of both descriptions, who would rely on the secrecy of the president, but who would not confide in that of the senate, and still less in that of a large popular assembly.

John Jay Federalist No. 64 “The convention have done will therefore in so disposing of the power of making treaties, that although the president must in forming them act by the advice and consent of the senate, yet he will be able to manage the business of intelligence in such manner as prudence may suggest.”

John Jay Federalist No. 64 “There are cases where the most useful intelligence may be obtained, if the persons possessing it can be relieved from apprehensions of discovery. Those apprehensions will operate on those persons whether they are actuated by mercenary or friendly motives, and there doubtless are many of both descriptions, who would rely on the secrecy of the president, but who would not confide in that of the senate, and still less in that of a large popular assembly. The convention have done will therefore in so disposing of the power of making treaties, that although the president must in forming them act by the advice and consent of the senate, yet he will be able to manage the business of intelligence in such manner as prudence may suggest.” Remember, the Federalist Papers were by far the most important source for understanding the new Constitution when it was ratified. Madison’s Notes and the official Journal were not published for decades.

John Jay Federalist No. 64 “There are cases where the most useful intelligence may be obtained, if the persons possessing it can be relieved from apprehensions of discovery. Those apprehensions will operate on those persons whether they are actuated by mercenary or friendly motives, and there doubtless are many of both descriptions, who would rely on the secrecy of the president, but who would not confide in that of the senate, and still less in that of a large popular assembly. The convention have done will therefore in so disposing of the power of making treaties, that although the president must in forming them act by the advice and consent of the senate, yet he will be able to manage the business of intelligence in such manner as prudence may suggest.” In a letter to James Madison dated November 18, 1788, Thomas Jefferson praised the Federalist Papers as being, “in my opinion, the best commentary on the principles of government, which ever was written."

First Appropriations Bill for Foreign Intercourse (1 July 1790)
“[T]he President shall account specifically for all such expenditures of the said money as in his judgment may be made public, and also for the amount of such expenditures as he may think it advisable not to specify, and cause a regular statement and account thereof to be laid before Congress annually…” - U.S. Statutes at Large, vol. 1, p. 129 (1790).

First Appropriations Bill for Foreign Intercourse (1 July 1790)
Note there was no provision for reporting secret expenditures “under injunction of secrecy,” and this was in spite of the requirement in Art. I, § 9, of the Constitution that: “a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time ” “[T]he President shall account specifically for all such expenditures of the said money as in his judgment may be made public, and also for the amount of such expenditures as he may think it advisable not to specify, and cause a regular statement and account thereof to be laid before Congress annually…” - U.S. Statutes at Large, vol. 1, p. 129 (1790).

Rep. Henry Clay (1818) “There was a contingent fund of $50,000 allowed to the President by law, which he was authorized to expend without rendering to Congress any account of it — it was confided to his discretion, and, if the compensation of the Commissioners had been made from that fund, it would not have been a proper subject for inquiry ” Rep. Forsyth added during the debate: “It was true the President might have taken it out of the secret service fund, and no inquiry would have been made about it ” —32 Annals of Cong (1818).

Hughes-Ryan Amendment (1974)
But didn’t the National Security Act of 1947 provide for congressional oversight of intelligence activities? “To the extent consistent with all applicable authorities and duties, including those conferred by the Constitution upon the executive and legislative branches of the Government, and to the extent consistent with due regard for the protection from unauthorized disclosure of classified information and information relating to intelligence sources and methods, the Director of Central Intelligence and the heads of all departments, agencies, and other entities of the United States involved in intelligence activities shall: (1) keep the [intelligence committees] fully and currently informed of all intelligence activities.” National Security Act of 1947, as amended, § 501; 50 U.S.C. § 413. the Director of Central Intelligence and the heads of all departments, agencies, and other entities of the United States involved in intelligence activities shall: (1) keep the [committees] fully and currently informed of all intelligence activities.”

Hughes-Ryan Amendment (1974)
“To the extent consistent with all applicable authorities and duties, including those conferred by the Constitution upon the executive and legislative branches of the Government, and to the extent consistent with due regard for the protection from unauthorized disclosure of classified information and information relating to intelligence sources and methods, the Director of Central Intelligence and the heads of all departments, agencies, and other entities of the United States involved in intelligence activities shall: (1) keep the [intelligence committees] fully and currently informed of all intelligence activities.” - National Security Act of 1947, as amended, § 501; 50 U.S.C. § 413.

Can Congress Take Away the President’s Constitutional Powers by Statute?

Article V of the Constitution Does Not Allow That
“The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof ”

Chief Justice John Marshall Marbury v. Madison (1803)
“[A]n act of the legislature, repugnant to the constitution, is void.”

Prof. Quincy Wright on Congressional Foreign Policy Making
“Declarations of foreign policy may be made by Congress in the form of joint resolutions, but such resolutions are not binding on the President. They merely indicate a sentiment which he is free to follow or ignore. - The Control of American Foreign Relations 278 (1922).

Barenblatt v. United States 360 U.S. 109 (1959).
“Congress…cannot inquire into matters which are within the exclusive province of one of the other branches of the Government. Lacking the judicial power given to the Judiciary, it cannot inquire into matters that are exclusively the concern of the Judiciary. Neither can it supplant the Executive in what exclusively belongs to the executive.”

Omnibus Crime Control and Safe Streets Act of 1968
"Nothing contained in this chapter. . . shall limit the constitutional power of the President to take such measures as he deems necessary to obtain foreign intelligence information deemed essential to the security of the United States ” Title 18 U.S.C. § 2511(3)

1968 Omnibus Crime Control and Safe Streets Act
This does not confer upon the President any new wiretap powers, but it is a congressional recognition, ten years before FISA, that the President already had these powers under the Constitution. "Nothing contained in this chapter. . . shall limit the constitutional power of the President to take such measures as he deems necessary to obtain foreign intelligence information deemed essential to the security of the United States ” Title 18 U.S.C. § 2511(3)

Katz v. United States 389 U. S. 347 (1967)
Twice since 1967 the Supreme Court has had an opportunity to declare that foreign intelligence wiretaps require “probable cause” and a judicial warrant, and twice it has refused to do so. FOOTNOTE 23: “Whether safeguards other than prior authorization by a magistrate would satisfy the Fourth Amendment in a situation involving the national security is a question not presented by this case.”

U.S. v. Truong Dinh Hung 629 F.2d 908, 912-13 (1980)
The 3d, 4th, 5th, and 9th Circuit Courts of Appeals have each upheld a foreign intelligence exception to the Fourth Amendment, and each time the Supreme Court has had an opportunity but refused to grant cert. No Court of Appeals has ever held to the contrary. [T]he government [Carter Administration] did not seek a warrant for the eavesdropping on Truong's phone conversations or the bugging of his apartment. Instead, it relied upon a “foreign intelligence” exception to the Fourth Amendment's warrant requirement. In the area of foreign intelligence, the government contends, the President may authorize surveillance without seeking a judicial warrant because of his constitutional prerogatives in the area of foreign affairs

Thus, six different times since 1967 the Supreme Court has had an opportunity to require warrants and probable cause for foreign intelligence searches and seizures, and six different times it has refused to do so. [T]he government [Carter Administration] did not seek a warrant for the eavesdropping on Truong's phone conversations or the bugging of his apartment. Instead, it relied upon a “foreign intelligence” exception to the Fourth Amendment's warrant requirement. In the area of foreign intelligence, the government contends, the President may authorize surveillance without seeking a judicial warrant because of his constitutional prerogatives in the area of foreign affairs

“[T]he government [Carter Administration] did not seek a warrant for the eavesdropping on Truong's phone conversations or the bugging of his apartment. Instead, it relied upon a “foreign intelligence” exception to the Fourth Amendment's warrant requirement. In the area of foreign intelligence, the government contends, the President may authorize surveillance without seeking a judicial warrant because of his constitutional prerogatives in the area of foreign affairs

“The district court accepted the government's argument that there exists a foreign intelligence exception to the warrant requirement. We agree with the district court that the Executive Branch need not always obtain a warrant for foreign intelligence surveillance ”

Katz v. United States 389 U. S. 347 (1967)
FOOTNOTE 23: “Whether safeguards other than prior authorization by a magistrate would satisfy the Fourth Amendment in a situation involving the national security is a question not presented by this case.”

Keith Case U.S. v. U.S. District Court, 407 U.S. 297 (1972)
“[T]he 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 “We emphasize, before concluding this opinion, the scope of our decision. As stated at the outset, this case involves only the domestic aspects of national security. We have not addressed, and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents.”

The unanimous opinion in Keith was issued by Justice Powell. We know from his biographer that Justice Powell shared the ABA position that there was a foreign intelligence exception to the Fourth Amendment’s warrant requirement (an ABA position that was not changed until last year). “[T]he 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 “We emphasize, before concluding this opinion, the scope of our decision. As stated at the outset, this case involves only the domestic aspects of national security. We have not addressed, and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents.”

“Given these potential distinctions between Title III criminal surveillances and those involving the domestic security, Congress may wish to consider protective standards for the latter which differ from those already prescribed for specified crimes in Title III. Different standards may be compatible with the Fourth Amendment if they are reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens.”

Congress Misrepresented Supreme Court’s “Invitation”
The Supreme Court in Keith invited Congress to consider enacting new legislation governing warrants for domestic national security wiretaps. Instead, Congress decided to seize control over foreign intelligence activities (FISA).

Atty. Gen. Griffin Bell (Carter Admin.) to HPSCI (1978)
“[C]landestine intelligence activities, by their very nature, must be conducted by the executive branch with the degree of secrecy that insulates them from the full scope of these review mechanisms. Such secrecy in intelligence operations is essential if we are to preserve our society, with all its freedoms, from foreign enemies

“The current bill recognizes no inherent power of the President to conduct electronic surveillance, and I want to interpolate here to say that this [FISA] does not take away the power [of] the President under the Constitution.”

It simply, in my view, is not necessary to state that power It is in the Constitution, whatever it is. The President, by offering this legislation, is agreeing to follow the statutory procedure. - Foreign Intelligence Electronic Surveillance, Hearings Before the Subcommittee on Legislation of the Permanent Select Committee on Intelligence, House of Representatives, January 10, 1978 at (emphasis added).

In other words, General Bell told the Congress that FISA was unconstitutional, but it would still work because Jimmy Carter was willing to comply with it. It simply, in my view, is not necessary to state that power It is in the Constitution, whatever it is. The President, by offering this legislation, is agreeing to follow the statutory procedure. Foreign Intelligence Electronic Surveillance, Hearings Before the Subcommittee on Legislation of the Permanent Select Committee on Intelligence, House of Representatives, January 10, 1978 at (emphasis added).

Obviously, Carter could not bind future Presidents to surrender their independent constitutional powers; and equally clearly, the Constitution can not be amended by agreement between a sitting President and Congress. It simply, in my view, is not necessary to state that power It is in the Constitution, whatever it is. The President, by offering this legislation, is agreeing to follow the statutory procedure. Foreign Intelligence Electronic Surveillance, Hearings Before the Subcommittee on Legislation of the Permanent Select Committee on Intelligence, House of Representatives, January 10, 1978 at (emphasis added).

Foreign Intelligence Surveillance Court of Review (2002)
“The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.

All five federal appellate courts to decide the issue have held the President has independent constitutional power to authorize warrantless electronic surveillance for foreign intelligence purposes. “The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.

The Appellate court established by FISA has unanimously declared that FISA could not deprive the President of that constitutional power. “The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.

FISA Hampered Efforts to Prevent 9/11

Gen. Michael Hayden Director, NSA (1999-2005)
“Had this program been in effect prior to 9/11, it is my professional judgment that we would have detected some of the 9/11 al Qaeda operatives in the United States, and we would have identified them as such.”

FBI Whistleblower Coleen Rowley
Named a Time “Person of the Year” in 2002 for scathing memo to FBI Dir. Robert Muller over failure of FBI Hq. lawyers to even request the FISA warrant she wanted to examine Moussaoui’s laptop. Congress and the media were outraged at the FBI.

FBI Whistleblower Coleen Rowley THE REST OF THE STORY
Rowley was clueless about FISA. She didn’t know Congress had failed to foresee the danger of a “lone wolf” terrorist like Moussaoui. FBI merely obeyed the law. FISA was amended in 2004 to permit surveillance of lone wolf terrorists.

FBI Whistleblower Coleen Rowley THE REST OF THE STORY
Rowley was clueless about FISA. Didn’t know Congress had failed to foresee danger of “lone wolf” terrorist like Moussaoui. FBI merely obeyed the law. FISA was amended in 2004 to permit surveillance of lone wolf terrorists.

Senator Spector’s FISA Bill S. 2453 (2006)
“Congress finds the following: For days before September 11, 2001, the Federal Bureau of Investigation suspected that confessed terrorist Zacarias Moussaoui was planning to hijack a commercial plane. The Federal Bureau of Investigation, however, could not meet the requirements to obtain an order under the Foreign Intelligence Surveillance Act of 1978 to search his laptop computer.”

The Fourth Amendment “The 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.”

The Fourth Amendment “The 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.” Applies equally in peace and war, but what is “reasonable” will depend on the nature of the threat.

Warrant and Probable Cause Not Always Necessary
The Supreme Court has repeatedly held that “special needs” in cases involving safety may make searches “reasonable” without probable cause or a warrant: Searching airline passengers (0.0004% chance will find a firearm); Border searches and highway stops near borders Traffic sobriety checkpoints; Safety inspections of factories and restaurants Drug tests of Customs agents and high school athletes.

National Treasury Employees Union v. Von Raab 489 U.S. 656, 666 (1989)
“While we have often emphasized, and reiterate today, that a search must be supported, as a general matter, by a warrant issued upon probable cause, , our decision in Railway Labor Executives reaffirms the longstanding principle that neither a warrant nor probable cause, nor, indeed, any measure of individualized suspicion, is an indispensable component of reasonableness in every circumstance

“[O]ur cases establish that where a Fourth Amendment intrusion serves special governmental needs, beyond the normal need for law enforcement, it is necessary to balance the individual's privacy expectations against the Government's interests to determine whether it is impractical to require a warrant or some level of individualized suspicion in the particular context.”

Haig v. Agee 453 U.S. 280 (1981) “It is "obvious and unarguable" that no governmental interest is more compelling than the security of the Nation ”

“The point is well illustrated also by the Federal Government's practice of requiring the search of all passengers seeking to board commercial airliners, as well as the search of their carry-on luggage, without any basis for suspecting any particular passenger of an untoward motive. Applying our precedents dealing with administrative searches, the lower courts that have considered the question have consistently concluded that such searches are reasonable under the Fourth Amendment.

“As Judge Friendly explained in a leading case upholding such searches: "When the risk is the jeopardy to hundreds of human lives and millions of dollars of property inherent in the pirating or blowing up of a large airplane, that danger alone meets the test of reasonableness ”

The Risk is Even Greater in an al Qaeda Terrorist Attack
Rather than killing “hundreds,” thousands or even tens of thousands of lives may well be at risk; Rather than costing millions of dollars, 9/11 cost tens of billions in loses if not more.

Board of Education v. Earls 536 US 822 (2002)
“In the criminal context, reasonableness usually requires a showing of probable cause The probable-cause standard, however, ‘is peculiarly related to criminal investigations’ and may be unsuited to determining the reasonableness of administrative searches where the “Government seeks to prevent the development of hazardous conditions.”

Board of Education v. Earls 536 US 822 (2002)
“Therefore, in the context of safety and administrative regulations, a search unsupported by probable cause may be reasonable “when `special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.’”

Why Require Higher Standard for Surveillance of Terrorists?
If the government has a legal right (e.g., a warrant) to wiretap a mob figure or drug dealer, it may listen to, record, and use in court any statement made by another American who communicates with the target of the warrant. Her rights are essentially “collateral damage” in this process.

Why require a higher standard when we try to stop foreign terrorist attacks than we apply to protect American citizens when they call a white-collar criminal for whom the FBI has a warrant? If the government has a legal right (e.g., a warrant) to wiretap a mob figure or drug dealer, it may listen to, record, and use in court any statement made by another American who communicates with the target of the warrant. Their rights are “collateral damage” in this process.

Why require a higher standard when we try to stop foreign terrorist attacks than we apply to protect American citizens when they call a white-collar criminal for whom the FBI has a warrant? I have testified before both the Senate and House Judiciary Committees on this issue, and not a single member has said the NSA Terrorist Surveillance Program is “unreasonable” or that it should be stopped. Their complaint is that the President must “obey the law.” If the government has a legal right (e.g., a warrant) to wiretap a mob figure or drug dealer, it may listen to, record, and use in court any statement made by another American who communicates with the target of the warrant. Their rights are “collateral damage” in this process.

Why require a higher standard when we try to stop foreign terrorist attacks than we apply to protect American citizens when they call a white-collar criminal for whom the FBI has a warrant? Every Court of Appeals to decide the issue (along with Congress by statute in 1968) has agree the President has obeyed the law. He is authorized to collect foreign intelligence by the Constitution itself. If the government has a legal right (e.g., a warrant) to wiretap a mob figure or drug dealer, it may listen to, record, and use in court any statement made by another American who communicates with the target of the warrant. Their rights are “collateral damage” in this process.

It is Congress that has repeatedly broken the law: the higher law of the U.S. Constitution. Why require a higher standard when we try to stop foreign terrorist attacks than we apply to protect American citizens when they call a white-collar criminal for whom the FBI has a warrant? If the government has a legal right (e.g., a warrant) to wiretap a mob figure or drug dealer, it may listen to, record, and use in court any statement made by another American who communicates with the target of the warrant. Their rights are “collateral damage” in this process.

In so doing, Congress has endangered our security and made the 9/11 attacks much easier. Why require a higher standard when we try to stop foreign terrorist attacks than we apply to protect American citizens when they call a white-collar criminal for whom the FBI has a warrant? If the government has a legal right (e.g., a warrant) to wiretap a mob figure or drug dealer, it may listen to, record, and use in court any statement made by another American who communicates with the target of the warrant. Their rights are “collateral damage” in this process.

QUESTIONS

Youngstown vs Curtiss-Wright
Correcting another myth

Prof. Harold Koh On Youngstown and Curtiss-Wright The National Security Constitution 108, (1990) Jackson’s Youngstown concurrence squarely rejected the Curtiss-Wright vision . . . Although in the early years of the Republic, all three branches condoned a de facto transformation of the original National Security Constitution from a scheme of congressional primacy to one of executive primacy, they never rejected the concept of power sharing and institutional participation . . . In 1936, Curtiss-Wright’s dicta boldly asserted the alternative vision of unfettered presidential management. But even as the Cold War raged, the 1947 National Security Act, Youngstown, and finally the post-Vietnam era framework statutes (eg., War Powers Resolution) definitively rejected that vision as America’s constitutional model for dealing with the outside world. Vietnam (and Watergate, as well, to the extent that it arose from Vietnam) then taught that even in a nuclear age, America would not conduct globalism at the price of constitutionalism. It is therefore ironic that the Curtiss-Wright model should now resurface

Youngstown Sheet & Tube Co. v. Sawyer as a Domestic Affairs Case
[majority opinion by Justice Black] “The order cannot properly be sustained as an exercise of the President’s military power as Commander-in-Chief of the Armed Forces. The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though ‘theater of war’ be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces had the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation’s lawmakers, not for its military authorities.” 343 U.S. 579 (1952)

Youngstown Sheet & Tube Co. v. Sawyer as a Domestic Affairs Case
[majority opinion by Justice Black] “The order cannot properly be sustained as an exercise of the President’s military power as Commander-in-Chief of the Armed Forces. The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though ‘theater of war’ be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces had the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation’s lawmakers, not for its military authorities.” 343 U.S. 579 (1952) Remember the Fifth Amendment? “No person shall be deprived of property, without the due process of law; nor shall private property be taken for public use without just compensation.”

Youngstown Sheet & Tube Co. v. Sawyer - I (“Steel Seizure Case”) 343 U
Youngstown Sheet & Tube Co. v. Sawyer - I (“Steel Seizure Case”) 343 U.S. 579 (1952) In his Youngstown concurrence, Justice Jackson actually made reference to Curtiss-Wright, but then added in footnote 2 to his opinion: “That case [Curtiss-Wright] does not solve the present controversy. It recognized internal and external affairs as being in separate categories ”

Youngstown Sheet & Tube Co. v. Sawyer - I (“Steel Seizure Case”) 343 U
Youngstown Sheet & Tube Co. v. Sawyer - I (“Steel Seizure Case”) 343 U.S. 579 (1952) In his Youngstown concurrence, Justice Jackson actually made reference to Curtiss-Wright, but then added in footnote 2 to his opinion: “That case [Curtiss-Wright] does not solve the present controversy. It recognized internal and external affairs as being in separate categories ” Does this really sound like Justice Jackson believed he was overturning Curtiss-Wright as the constitutional paradigm for foreign affairs cases?

[Justice Jackson Concurring]
Youngstown Sheet & Tube Co. v. Sawyer - I (“Steel Seizure Case”) 343 U.S. 579 (1952) [Justice Jackson Concurring] [N]o doctrine that the Court could promulgate would seem to be more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often is even unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation’s armed forces to some foreign adventure That military powers of the Commander in Chief were not to supersede representative government of internal affairs seems obvious from the Constitution and from elementary American history Such a limitation [the Third Amendment] on the command power, written at a time when the militia rather than a standing army was contemplated as a military weapon of the Republic, underscores the Constitution’s policy that Congress, not the Executive, should control utilization of the war power as an instrument of domestic policy [continued on next slide . .]

Youngstown Sheet & Tube Co. v. Sawyer - II (“Steel Seizure Case”) 343 U.S. 579 (1952)
[. . . Continued from previous slide.] We should not use this occasion to circumscribe, much less to contract, the lawful role of the President as Commander in Chief. I should indulge the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society. But, when it is turned inward, not because of rebellion but because of a lawful economic struggle between industry and labor, it should have no such indulgence What the power of command may include I do not try to envision, but I think it is not a military prerogative, without support of law, to seize person or property because they are important or even essential for the military or naval establishment.

Prof. Louis Henkin On “Steel Seizure Case” as a Domestic Affairs Decision
Youngstown has not been considered a “foreign affairs case”. The President claimed to be acting within ‘the aggregate of his constitutional powers,’ but the majority of the Supreme Court did not treat the case as involving the reach of his foreign affairs power, and even the dissenting justices invoked only incidentally that power or the fact that the steel strike threatened important American foreign policy interests. Foreign Affairs and the Constitution 341 n.11.

Justice Rehnquist on the “Steel Seizure Case” Goldwater v. Carter 444 U.S. 996 (1979) (concurring, joined by Chief Justice Burger and two other members of the Court) The present case differs in several important respects from Youngstown cited by petitioners as authority both for reaching the merits of this dispute and for reversing the Court of Appeals. In Youngstown, private litigants brought a suit contesting the President’s authority under his war powers to seize the Nation’s steel industry, an action of profound and demonstrable domestic impact Moreover, as in Curtiss-Wright, the effect of this action, as far as we can tell, is “entirely external to the United States, and [falls] within the category of foreign affairs.”

Prof. Harold Koh on “Right Wing” Revisionism
Critics on the right, in contrast, argue that to preserve our activist foreign policy, we must revise constitutionalism, abandoning the Youngstown vision in favor of Curtiss-Wright. Yet because many of these same critics also espouse the constitutional jurisprudence of original intent, they are forced to engage in revisionist history to contend that the Framers did not originally draft the Constitution to promote congressional dominance in foreign affairs. See, e.g., Turner “Separation of Powers in Foreign Policy: The Theoretical Underpinnings,” 11 Geo. Mason U.L. Rev. 114, 116 (1988) [quotation omitted]. See also, J. Moore, Government under Law and Covert Operations (1980) . . .

FISA vs. THE CONSTITUTION: Why the Foreign Intelligence Surveillance Act is Unconstitutional and How It Contributed to the Success of the 9/11 Attacks.

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FISA vs. THE CONSTITUTION: Why the Foreign Intelligence Surveillance Act is Unconstitutional and How It Contributed to the Success of the 9/11 Attacks.

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Presentation on theme: "FISA vs. THE CONSTITUTION: Why the Foreign Intelligence Surveillance Act is Unconstitutional and How It Contributed to the Success of the 9/11 Attacks."— Presentation transcript:

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