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 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’tUnder
mention
FISA; but
Hamdi,
theequally true they
didn’t mention
and probably
didn’t realize they
President
clearly
were changing
thethis
Non-Detention
wins
dispute in Act — and
Hamdi was a U.S. Citizen.
my view.
Gathering foreign intelligence in wartime clearly
a “fundamental and accepted . . . Incident to
war.”
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. 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
Sadly,
language
individual
rights,this
and being
entrusted to the executive,
the decision
of the executive
conclusive. The
is sometimes
left is
out
application of this remark will be perceived by adverting
Law the department of
to theof
actConstitutional
of congress for establishing
foreign
affairs. This officer, as his duties were
casebooks.
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.)
Textual Source of the President’s
Authority Over Foreign Affairs
Where in the
“TheConstitution
executive do
Power
shall
be
we find a
vested
President
of the
grantinofaforeign
affairs
United
States
America.”
power
to theof
President?
- 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.
The Framer’s Understanding
of “Executive Power”
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
The Framer’s
Understanding
described “the celebrated Montesquieu”
the “oracle who is always
consulted
ofas“Executive
Power”
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.
The Framer’s Understanding
of “Executive Power”
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).
Professor Quincy Wright
In addition to teaching at
Chicago, Harvard, and Virginia,
need Prof.
of concentration
Wright served as:of power
“The
for the
successful
conduct of foreign affairs was
President, American Political
dwelt upon
in the
works of John Locke,
Science
Association
Montesquieu,
and International
Blackstone,
the political
President,
Political
Association;
Bibles ofScience
the constitutional
fathers.”
Quincy Wright,
President, American Society of
The Control of American Foreign Relations 363 (1922).
International Law.
Professor Quincy Wright
I first became
“The need interested
of concentration
of
power
for
the
in this
successful conduct of foreign affairs was
subject
whileof John Locke,
dwelt upon
in the works
attending
a lecturethe political
Montesquieu,
and Blackstone,
Bibles ofby
theProfessor
constitutional
fathers.”
Wright
Quincy Wright,
in 1966.
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
How do
we know
the(April 1790)
Memorandum
to President
Washington

Founding Fathers
“The transaction of business with foreign
accepted
theory
of
nations
is executivethis
altogether;
it belongs,
then“Executive
to the head of that
department , except
Power”?
as to such portions of it as are specially
submitted to the Senate. Exceptions are to
be construed strictly.”
Thomas Jefferson
How do
we know
the(April 1790)
Memorandum
to President
Washington

Founding Fathers
“The transaction of business with foreign
accepted
theory
of
nations
is executivethis
altogether;
it belongs,
then“Executive
to the head of that
department , except
Power”?
as to such portions of it as are specially
submitted to the Senate. Exceptions are to
be construed strictly.”
Because they
told us so.
Thomas Jefferson
Memorandum to President Washington (April 1790)
“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 ….
Thomas Jefferson
Memorandum to President Washington (April 1790)
“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
James
Madison
is
which it would be necessary to send persons in the Diplomatic line,
often
the to the grade of the first—His opinion
and Consuls;
andcalled
with respect
the and Mr. Jefferson’s—to wit—that they
coincides“Father
with Mr.of
Jay’s
have no Constitutional
Constitution.”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 John
impolitic
to draw
Jay
was it into a precedent, their powers extending
no farther than to an approbation or disapprobation of the person
America’s
first all the rest being Executive and
nominated
by the President,
Justice.
vested inChief
the President
by the Constitution.”
- 4 Diaries of George Washington 122 (Regents’ Ed. 1925).
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).
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).
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
Thus,(19early
February Congresses
1804)
clearly
shared
this
view
The Constitution has made the Executive the organ for
that
policy
was nations….
a
managing
ourforeign
intercourse
with foreign
From the presidential
origin of the present
government to this day .
responsibility
. . it has been the uniform opinion and practice that
under
the
Constitution.
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
And (19
let’s
not1804)
forget the
February
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.
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
“The pre-eminent
responsibility
of the President for the
formulation
and conduct
of American
foreign policy
prevailed
in all three
branches
is clear
andabout
unalterable.
He has,
as Alexander
until
the time
of the
Hamilton defined it, all powers in international
debate over the Vietnam War.
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.”
SFRC Chairman J. William Fulbright
on Executive Preeminence in Foreign Policy (1959)
“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.’”
SFRC Chairman J. William Fulbright
on Executive Preeminence in Foreign Policy (1959)
“The pre-eminent responsibility
the
Note Senator of
Fulbright
President for the formulation
and
acknowledges
President
over policy
the making
conduct of Americancontrol
foreign
is of
well as its
clear and unalterable.foreign
He policy
has,asas
implementation.
Alexander Hamilton defined it, all
powers in international affairs “which
the Constitution does not vest
elsewhere in clear terms.”
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
Remember,
the
Federalist
obtained,
if the persons
possessing
it can be relieved from
apprehensions
discovery.
will operate
Papers ofwere
by farThose
the apprehensions
most
on those persons whether they are actuated by mercenary or
for are many of both descriptions,
friendlyimportant
motives, andsource
there doubtless
who would
rely on the secrecy
of
the president, but who would
understanding
the
new
not confide in that of the senate, and still less in that of a large
Constitution
it was
popular
assembly. Thewhen
convention
have done will therefore in so
disposing of the power of making treaties, that although the
ratified. Madison’s Notes
president must in forming them act by the advice and consent of the
thewill
official
Journal
werethe business of
senate,and
yet he
be able
to manage
intelligence
in such manner
as prudence may
not published
for decades.
suggest.”
John Jay
Federalist No. 64
“There are cases where the most useful intelligence may be
obtained,
persons
possessing
it can be relieved from
In aif the
letter
to James
Madison
apprehensions
of discovery. 18,
Those1788,
apprehensions will operate
dated
November
on those persons whether they are actuated by mercenary or
Jefferson
praised
friendlyThomas
motives, and
there doubtless
are the
many of both descriptions,
who would
rely on the
secrecy
the president,
but who would
Federalist
Papers
as ofbeing,
“in
not confide
in that
of the senate,
and best
still less in that of a large
my
opinion,
the
popular assembly. The convention have done will therefore in so
commentary
the principles
disposing
of the power on
of making
treaties, that although the
president
must in forming which
them actever
by the
advice and consent of the
of government,
was
senate,written."
yet he will be able to manage the business of
intelligence in such manner as prudence may
suggest.”
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
wasaccount
no provision
for
“[T]he President
shall
specifically
for all
reporting secret expenditures “under
such expenditures of the said money as in his
injunction of secrecy,” and this was
judgment
mayofbethemade
public,inand
in spite
requirement
Art. also
I, § for the
amount9,ofofsuch
expenditures
the Constitution
that: as he may think it
advisable not to specify, and cause a regular
“a regular Statement and Account of
statement
account
thereof to be
laid before
the and
Receipts
and Expenditures
of all
Congress
annually…”
public
Money shall be published from
time to time. . .- 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. 1466 (1818).
Hughes-Ryan Amendment (1974)
But didn’t the
“To the extent
consistent with
all applicable authorities and
National
Security
duties, including those conferred by the Constitution upon the
executive and legislative branches of the Government, and to
Act
of 1947
provide
the extent
consistent
with due regard
for the protection from
unauthorized disclosure of classified information and
forrelating
congressional
information
to intelligence sources and methods, the
Director of Central Intelligence and the heads of all
departments,
agencies, and
other entities of the United
oversight
of
States involved in intelligence activities shall: (1) keep the . . .
[intelligence
committees] fully and currently informed of all
intelligence
intelligence activities.”
activities?
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.”
National Security Act of 1947, as amended, § 501; 50 U.S.C. § 413.
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
"Nothing contained
in this any
chapter. . .
upon the President
shall limit
the
constitutional
new
wiretap
powers, butpower of
the President
to take such measures
it is a congressional
as he deems necessary . . . to obtain
recognition, ten years
foreign intelligence information deemed
that the
essential before
to theFISA,
security
of the United
already had
States . .President
. .”
Title 18the
U.S.C. § 2511(3)
these powers under
Constitution.
Katz v. United States
U. S.1967
347 (1967)
Twice389
since
the
Supreme Court has had
an opportunity to declare
FOOTNOTE 23:
that foreign intelligence
“Whetherwiretaps
safeguards
other than prior
require
authorization
by acause”
magistrate
satisfy
“probable
andwould
a
the Fourth
Amendment
a situation
judicial
warrant,inand
involving
theitnational
security
twice
has refused
to dois a
question
so.not presented by this case.”
U.S. v. Truong Dinh Hung
3d, 4th,
5th, and
9th Circuit
629The
F.2d
908,
912-13
(1980)
Courts of Appeals have each
upheld a foreign intelligence
exception[Carter
to the Fourth
[T]he government
Administration] did not
seek a warrant
for the
Amendment,
andeavesdropping
each time the on Truong's
phone conversations
the
bugging
of his
Supreme Courtor
has
had
an
apartment.
Instead,
relied to
upon
a “foreign
opportunity
butitrefused
grant
intelligence”
cert. exception to the Fourth
Amendment's warrant requirement. In the area
of foreign
the government
contends,
Nointelligence,
Court of Appeals
has ever
the President
authorize surveillance without
held tomay
the contrary.
seeking a judicial warrant because of his
constitutional prerogatives in the area of foreign
affairs. . . .
U.S. v. Truong Dinh Hung
different
times(1980)
629Thus,
F.2dsix908,
912-13
since 1967 the Supreme
Court has had an
[T]he government [Carter Administration] did not seek a
opportunity
to require
warrant for
the eavesdropping
on Truong's phone
conversations
or the bugging
of his apartment. Instead, it
warrants
and probable
relied upon a “foreign intelligence” exception to the
cause forwarrant
foreign
Fourth Amendment's
requirement. In the area of
foreign intelligence,
the government
intelligence
searchescontends,
and the
President may authorize surveillance without seeking a
seizures,
and
sixconstitutional
different prerogatives in
judicial warrant
because
of his
the area of foreign affairs. . . .
times it has refused to do
so.
U.S. v. Truong Dinh Hung
629 F.2d 908, 912-13 (1980)
“[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. . . .
U.S. v. Truong Dinh Hung
629 F.2d 908, 912-13 (1980)
“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.”
Keith Case
U.S. v. U.S. District Court, 407 U.S. 297 (1972)
The unanimous opinion in Keith
was issued
by Justice
“[T]he instant
case requires
noPowell.
judgment on the scope of
the President's surveillance power with respect to the
We know from his biographer that
activities of foreign powers, within or without this
Justice
country.
. . . Powell shared the ABA
position that there was a foreign
“We emphasize, before concluding this opinion, the scope
exception
of ourintelligence
decision. As
stated to
at the
the outset, this case
Fourth
Amendment’s
warrantof national security.
involves
only the
domestic aspects
requirement
(an ABA
We have
not addressed,
andposition
express no opinion as to,
that was
not changed
last
the issues
which
may beuntil
involved
with respect to
activities
of foreign powers or their agents.”
year).
Keith Case
U.S. v. U.S. District Court, 407 U.S. 297 (1972)
“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. . . .
Atty. Gen. Griffin Bell
(Carter Admin.) to HPSCI (1978)

“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.”
Atty. Gen. Griffin Bell
(Carter Admin.) to HPSCI (1978)
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 14-15 (emphasis added).
Atty. Gen. Griffin Bell
(Carter
Admin.)
to HPSCI
(1978)
In other
words,
General
It simply, Bell
in mytold
view,the
is Congress
not necessary
to state
that FISA
was
that power
. . . . It is
unconstitutional,
but it
in the Constitution,
would
still
work
because
whatever it is. The
Jimmy
Carter was willing
President,
by offering
this legislation,
is with it.
to comply
agreeing to follow the
Foreign Intelligence Electronic Surveillance,
Hearings Before the Subcommittee on Legislation
statutory procedure.
of the Permanent Select Committee on
Intelligence, House of Representatives, January
10, 1978 at 14-15 (emphasis added).
Atty. Gen. Griffin Bell
(Carter Admin.) to HPSCI (1978)
Obviously, Carter could not
It simply, in my view, is
bind future Presidents to
not necessary to state
surrender their independent
that power . . . . It is
constitutional powers; and
in the Constitution,
equally clearly, the Constitution
whatever it is. The
can not be amended by
President, by offering
agreement between a sitting
this legislation, is
President and Congress.
agreeing to follow the
Foreign Intelligence Electronic Surveillance,
Hearings Before the Subcommittee on Legislation
statutory procedure.
of the Permanent Select Committee on
Intelligence, House of Representatives, January
10, 1978 at 14-15 (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.
Foreign Intelligence Surveillance
Court
of
Review
(2002)
All five federal appellate courts
to decide the issue have held
“The Truong court, as did all the other courts to
the President has independent
have decided the issue, held that the
constitutional power to
President did have inherent authority to
authorize warrantless electronic
conduct warrantless searches to obtain
surveillance for foreign
foreign intelligence information. . . . We take for
intelligence purposes.
granted that the President does have that
authority and, assuming that is so, FISA could
not encroach on the President’s
constitutional power.
Foreign Intelligence Surveillance
Court of Review (2002)
The Appellate court
“The Truong
court, as did all
theFISA
other courts to
established
by
have decided the issue, held that the
hasdidunanimously
President
have inherent authority to
conduct
warrantless
searches
to obtain
declared
that
FISA
foreign intelligence information. . . . We take for
could
deprive
thethat
granted
that the not
President
does have
authority
and, assuming
is so, FISA could
President
ofthat
that
not encroach on the President’s
constitutional
power.
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. . . .
National Treasury Employees Union v. Von Raab
489 U.S. 656, 666 (1989)
“[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. . . .”
National Treasury Employees Union v. Von Raab
489 U.S. 656, 666 (1989)
“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.
National Treasury Employees Union v. Von Raab
489 U.S. 656, 666 (1989)
“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 Higher Standard
for Surveillance
of
Terrorists?
Why require a higher standard
If
when we try to stop foreign
the government
has
a
legal
right
(e.g.,
a
terrorist attacks than we apply to
warrant)
to wiretap
mob figure
protect
Americanacitizens
when or drug
call alisten
white-collar
criminaland use in
dealer,they
it may
to, record,
for whom the FBI has a warrant?
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 Higher Standard
for Surveillance
of
Terrorists?
Why require a higher standard
If
I have testified before both the
when
we try Judiciary
to stop foreign
Senate
and
House
the government
has
a
legal
right
(e.g.,
a
terrorist
than
apply to
Committees
on attacks
this issue,
andwe
not
warrant)
to wiretap
acitizens
mob
protect
American
when or drug
a single
member
has said
the figure
they
call
alisten
white-collar
criminaland use in
dealer,
it may
to, record,
NSA Terrorist
Surveillance
foriswhom
the FBI hasorathat
warrant?
Program
“unreasonable”
court any statement made by another
it should be stopped. Their
American
communicates
with the
complaint iswho
that the
President
target
of thethe
warrant.
Their rights are
must “obey
law.”
“collateral damage” in this process.
Why Require Higher Standard
for Surveillance
of
Terrorists?
Why require a higher standard
Every Court of Appeals to
when we try to stop foreign
decide
the issue has
(along
with
If the
government
a
legal
right
(e.g.,
a
terrorist attacks than we apply to
Congress
statute aincitizens
1968)figure
warrant)
toby
wiretap
mob
protect
American
when or drug
has agree
thealisten
President
has
they
call
white-collar
criminaland use in
dealer,
it may
to, record,
for whom
the FBI
has a warrant?
obeyed
the law.
He is
court any statement made by another
authorized to collect foreign
American
who communicates with the
intelligence by the
target
of the itself.
warrant. Their rights are
Constitution
“collateral damage” in this process.
Why Require Higher Standard
for Surveillance
of
Terrorists?
Why require a higher standard
It is Congress
that
when we try to stop foreign
If the government
has
a
legal
right
(e.g.,
a
terrorist attacks than we apply to
has
repeatedly
warrant)
to wiretap
mob figure
protect
Americanacitizens
when or drug
broken
thealisten
law:to,the
they
call
white-collar
criminaland use in
dealer,
it may
record,
for whom the FBI has a warrant?
court
any law
statement
made by another
higher
of the
American
who communicates with the
U.S. Constitution.
target of the warrant. Their rights are
“collateral damage” in this process.
Why Require Higher Standard
for Surveillance
of
Terrorists?
Why require a higher standard
In sowhen
doing,
we try to stop foreign
If the government
has
a
legal
right
(e.g.,
a
terrorist attacks
than we apply to
Congress
has
warrant)
to wiretap
mob figure
protect
Americanacitizens
when or drug
endangered
our
they
call alisten
white-collar
criminaland use in
dealer,
it may
to, record,
for whom the FBI has a warrant?
court
any statement
made by another
security
and made
American
communicates with the
the 9/11who
attacks
target of the warrant. Their rights are
much
easier.
“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, 211-12 (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 the
properly
be sustained
as an exercise of the
Remember
Fifth
Amendment?
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
“No person
. . . be
deprived
of . . need
.
day-to-day
fighting inshall
a theater
of war.
Such cases
not
concern
us here. Even
though
of war’ beof
an expanding
property,
without
the‘theater
due process
concept,
wenor
cannot
with
faithfulness
to ourbe
constitutional
law;
shall
private
property
taken for system
hold that the Commander in Chief of the Armed Forces had the
public
without
justpossession
compensation.”
ultimate
poweruse
as such
to take
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 - 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.S. 579 (1952)
In his Youngstown concurrence, Justice Jackson
Does this really sound like
actually made reference to Curtiss-Wright, but
Justice
Jackson
believed
then
added
in footnote
2 to his opinion:
he was overturning
Curtiss-Wright as the
“That case [Curtiss-Wright] does not solve the
constitutional
present
controversy.paradigm
It recognized internal
for foreign
affairs
cases?
and external
affairs
as being
in separate
categories . . . .”
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) . . .