The Federalist Society

The Federalist Society Online Debate Series


FISA
December 11, 2007

The Foreign Intelligence Service Act (FISA) of 1978 is a US federal law that prescribed what at the time were novel legislative restrictions on the President’s authority to order warrantless physical and electronic surveillance and collection of intelligence information between or among foreign powers. Many claimed the Terrorist Surveillance Program authorized by President Bush that came to light in 2005 violated these restrictions. In response to President Bush’s request that it clarify the law, Congress enacted the Protect America Act of 2007, which loosened those restrictions substantially, among other things authorizing wiretapping without a warrant when the target of surveillance is a foreign intelligence target located outside the United States. The Protect America Act is slated to expire in February 2008 unless Congress acts to reauthorize it. Some experts argue that it should be allowed to expire, as the Protect America Act unwisely and perhaps unconstitutionally loosened the 1978 FISA’s restrictions. Others argue that FISA itself unconstitutionally restricted the President’s authority to engage in surveillance pursuant to his inherent executive power to conduct foreign affairs and his authority as Commander in Chief. Bob Turner of the Center for National Security Law and Erwin Chemerinsky of Duke Law School debate the constitutional framework through which to understand these issues.

Bob Turner



 Bio

I start in this debate from the premise that the United States is governed by the “rule of law,” and no individual or institution is “above the law.” This applies to the President, and it also applies to Congress. And as someone who has studied the separation of constitutional foreign affairs powers for four decades, who worked in the Senate when the Foreign Intelligence Surveillance Act (FISA) was enacted in 1978, and who spent from 1981 to 1984 as the senior White House lawyer charged specifically with overseeing FISA and other intelligence laws, I agree that there has indeed been “lawbreaking” within our government in this dispute. But I believe most of that lawbreaking has been by Congress.

The Founding Fathers understood both from theory and practice that large deliberative assemblies could not be relied upon to keep secrets. As early as 1776, the Committee of Secret Correspondence unanimously concluded it could not inform the rest of the Continental Congress about a sensitive French covert operation assisting the American Revolution, because (as Benjamin Franklin put it) “We find by fatal experience that Congress consists of too many members to keep secrets.” In Federalist No. 64, John Jay explained that valuable foreign intelligence might be obtained “if the persons possessing it can be relieved from apprehensions of discovery.” Since many would not trust Congress to keep secrets, Jay explained, the Constitution had left the President “able to manage the business of intelligence in such a manner as prudence may suggest.”

Locke, Montesquieu, Blackstone, and many other theorists embraced by the Framers categorized what Locke described as the business of “war, peace, leagues and alliances” as a component of the “executive power” of government (Locke coined the term “federative power” but explained it belonged with the executive), because legislative bodies could not act with unity of plan, secrecy, or speed and dispatch.

That this was the understanding of the content of the “executive power” vested in the President by Article II, Section 1, of our Constitution is clear. In a June 1789 letter to Edmund Pendleton, James Madison explained “the Executive power being in general terms vested in the President, all powers of an Executive nature, not particularly taken away must belong to that department.” Less than a year later, also noting that the Constitution had vested the “executive power” in the President, Thomas Jefferson wrote that “the transaction of business with foreign nations” was “executive altogether” and thus belonged to the President save for those “exceptions” vested in the Senate, which were to be “construed strictly.”

Three days later, President Washington wrote in his diary that Madison and Chief Justice Jay shared Jefferson's view that the Senate had “no constitutional right to interfere” in diplomatic decisions save for its assigned constitutional negatives over treaties and nominations. Three years later, Alexander Hamilton took the same view. Congress began usurping presidential power over intelligence following the Vietnam War, which I will address later in this debate.



Erwin Chemerinsky



Erwin ChemerinskyBio

My concern with Professor Turner's thoughtful post is that it is unclear as to what issue he is discussing.  If the question is whether the President should be able to protect confidential information, no one would disagree.   If the issue is whether the President needs to be able to command American troops, no one disagrees.  But the quotations invoked by Professor Turner go no further than that. 

I thought that we were discussing whether the President has the authority to order warrantless electronic eavesdropping of conversations involving American citizens while in the United States.  This violates the Fourth Amendment and the Foreign Intelligence Surveillance Act.  Not one of the quotations provided by Professor Turner even indirectly concern the authority of the President to authorize warrantless electronic eavesdropping.  Nor do I think that useful answers to this question are likely to come from those living at the late 18th century or earlier. 

The Foreign Intelligence Surveillance Act is clear that all electronic eavesdropping must be done either in accord with its provisions or those of Title III of the Omnibus Crime Control Act.   The Fourth Amendment generally requires that searches, including eavesdropping, be done with warrants based on probable cause.  The President has no authority to violate the Act or the Fourth Amendment, even for the sake of national security.  Indeed, the President's claim of power to do so is chilling.  If the President can engage in warrantless electronic eavesdropping, could the President authorize warrantless searches of homes and people?   If the President can violate FISA and the Fourth Amendment, why not the First Amendment?  In fact, why couldn't the President cancel the elections mandated by Articles I and II of the Constitution? 

Professor Turner seems to be saying that the President has unchecked and uncheckable power to engage in electronic eavesdropping.  Otherwise, it is not clear what he means when he argues that Congress has violated the Constitution.   Power that cannot be checked simply cannot be reconciled with a country committing to living under the rule of law.



Bob Turner



 Bio

Professor Chemerinsky has helpfully identified a core point of disagreement - can there be “unchecked and uncheckable power” in a government “under the rule of law”? Obviously, the people may amend the Constitution at any time, providing an ultimate “check” on government. But until that happens, the key issues here are: (1) Does the U.S. Constitution vest in the President discretionary foreign affairs powers that are not subject to control by statute; and, (2) if so, is the collection of foreign intelligence information among those powers?

In my first post, I noted that Washington, Jefferson, and all three Federalist authors agreed Congress has “no constitutional right to interfere” in diplomacy save for certain narrowly-construed exceptions. In Marbury v. Madison, Chief Justice Marshall observed that the Constitution has invested “certain important political powers” that “respect the nation” in the exclusive discretion of the President, declaring: “whatever 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.” To illustrate these powers, Marshall mentioned the business of the State Department.

In the landmark 1936 Curtiss-Wright case, the Supreme Court noted “federal power over external affairs in origin and essential character [is] different from that over internal affairs,” emphasized that “participation in the exercise of the power is significantly limited,” and reaffirmed: “Into the field of negotiation the Senate cannot intrude, and Congress itself is powerless to invade it.” Just last year, the Supreme Court in Hamdan affirmed Chief Justice Chase's observation in the 1866 Milligan case that “neither can the President, in war more than in peace, intrude upon the proper authority of Congress, nor Congress upon the proper authority of the President . . . . Congress cannot direct the conduct of campaigns . . . .”

Obviously, there are constitutional limits on the powers of Congress in foreign affairs. The question is whether foreign intelligence collection belongs in this category. When Congress first appropriated funds for foreign intercourse (including for employing spies), the statute provided: “[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 . . . .” In an 1818 House debate, the legendary Henry Clay acknowledged that it would be improper for Congress to inquire into expenditures from this account.

When Congress enacted the first wiretap statute in 1968, it expressly excluded foreign intelligence wiretaps, acknowledging “the constitutional power of the President to take such measures as he deems necessary . . . to obtain foreign intelligence information . . . .” One year later, Foreign Relations Committee Chairman J. William Fulbright conceded at Cornell Law School: “The pre-eminent responsibility of the President for the formulation and conduct of American foreign policy is clear and unalterable.”

As I will discuss later, the courts have consistently affirmed the President's constitutional power to authorize warrantless foreign intelligence electronic surveillance.



Erwin Chemerinsky



Erwin ChemerinskyBio

If I understand Professor Turner's position correctly, it is that the President has inherent power to intercept any communications so long as it is claimed that it is for foreign intelligence or national security purposes.   Moreover, his position is that Congress cannot constitutionally limit this.  This would include interception of communications between those in the United States and those in foreign countries (as has been done by the National Security Agency.)   But I don't see why his position would stop there.  I assume that if it was for purposes of foreign intelligence gathering and for the sake of national security, the President would have the ability to intercept communications occurring entirely within the United States.   In fact, I don't see why his position would be limited to electronic intelligence gathering.   His position would say that for the sake of foreign intelligence and national security gathering the President could authorize searches of people's homes and persons without a warrant.  I cannot imagine any reason why electronic searches would be different from physical searches. 

Professor Turner's position would make the Patriot Act, and its greater authority for searches and eavesdropping, unnecessary.   By Professor Turner's view, the President already had all of the authority granted in the Patriot Act and more.  Indeed, under Professor Turner's view, the Foreign Intelligence Surveillance Act was unnecessary.  The President doesn't need warrants to engage in eavesdropping for foreign intelligence gathering purposes.   Actually, Professor Turner's position goes much further than that:  the restrictions on the President contained within the Patriot Act and FISA are unconstitutional. 

This is a radical view and one that cannot be justified based on quotations from the Framers about the need for the President to exercise control over foreign policy.   Nor does U.S. v. Curtiss-Wright Export Corp. provide support for actions by the President within the United States (whether eavesdropping or physical searches.)  The holding in Curtiss-Wright was simply that Congress could authorize the President to suspend arms sales to two warring nations in South America.  There is a broad dictum about the President's authority as to foreign policy, but even it does not speak to the ability of the President to act within the United States in violation of the Constitution and federal law. 

I am not an originalist and am very skeptical of quotations from over 200 years ago in deciding the scope of the President's power to engage in electronic eavesdropping.  But if anything seems clear about the Framers' intent, it is their deep distrust of unchecked executive power.  The Fourth Amendment was to ensure that searches be approved by a neutral judge and be based on probable cause.  There is no exception within it for searches for foreign intelligence gathering or for the sake of national security.  Nor should there be.  Procedures, such as the Foreign Intelligence Surveillance Court, can ensure that the executive can act to gather information, but in a way that complies with the Fourth.



Bob Turner



 Bio

Given the consistency with which their statements undermine his position, I think Prof. Chemerinsky is wise to try to direct the debate away from the Founding Fathers. I’ve only scratched the surface there, but am happy to also consider more recent evidence.

General Washington ordered the opening and reading of all mail from England to gather intelligence during the American Revolution. Lincoln authorized warrantless intercepts of telegraph messages during the Civil War, and Wilson and Roosevelt ordered warrantless monitoring of international cable traffic during the world wars. Every President from FDR to Carter authorized warrantless electronic surveillance for foreign intelligence purposes in the belief that there was a foreign intelligence exception to the Fourth Amendment.

David Truong was a Vietnamese national who had resided in America since 1965. The FBI suspected him of transmitting classified documents to Vietnamese diplomats in Paris. In 1977, Carter Administration Attorney General Griffin Bell authorized the warrantless bugging of Truong’s home and telephone for more than 250 days. The Fourth Circuit Court of Appeals noted that the Carter Administration “relied upon a ‘foreign intelligence’ exception to the Fourth Amendment’s warrant requirement.” It explained: “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.” Both the district court and the Fourth Circuit accepted that argument.

The Supreme Court has never decided the issue, but when it first held warrants were required for wiretaps in the 1967 Katz case it expressly excluded “national security” wiretaps from its holding. In its 1972 Keith case requiring a warrant for purely “domestic” national security wiretaps, it repeatedly emphasized that its holding did not apply to foreign intelligence wiretaps. Since then, in cases like Brown, Buck, Clay, and Butenko, every circuit court of appeals to decide the issue has upheld the constitutionality of warrantless foreign intelligence wiretaps – and in each case the Supreme Court has refused to grant certiorari.

Outside the scope of criminal law enforcement, the Supreme Court has recognized a variety of “special needs” exceptions to the Fourth Amendment’s probable cause and warrant requirements based on balancing the competing interests. In Haig v. Agee, it reaffirmed that “no governmental interest is more compelling than the security of the Nation.” These exceptions are generally “safety” related, and they include border searches, traffic sobriety checkpoints, and mandatory drug testing cases. In the 1989 Von Raab case, the Court reaffirmed “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. . . .” The Court quoted with approval Judge Friendly’s decision in the 1974 Edwards case upholding the constitutionality of airport passenger 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” under the Fourth Amendment.



Erwin Chemerinsky



Erwin ChemerinskyBio

It has been a pleasure debating Professor Turner, though I confess that I find his position chilling:   The President has unchecked and uncheckable authority to intercept any communications (even within the United States) and even to order warrantless searches that violate the Fourth Amendment.   Under Professor Turner's position the Patriot Act and the Foreign Intelligence Surveillance Act were unnecessary.   No President has to go to any court for a warrant if it is for gathering national security information.  In fact, under Professor Turner's view, FISA is unconstitutional because it imposes limits on the President. 

No Supreme Court decision ever has recognized such authority.   In United States v. United States District Court (1972), the Court rejected the President's claim of authority to engage in warrantless eavesdropping for domestic security.   The Court left open the question of whether this would be allowed for foreign intelligence gathering.  The issue did not arise in Katz and was not decided there. 

Two questions are key.  First, is such uncheckable authority necessary for national security?   There is no evidence that compliance with the Foreign Intelligence Surveillance Act interferes with national security.  Second, is it desirable to give the President uncheckable authority to search or eavesdrop on anyone without needing to worry about the Fourth Amendment or federal law?   I believe that such unchecked power is inconsistent with the text of the Constitution (there is no clause in the Fourth Amendment allowing the President to violate it for national security), the structure of the Constitution (which is based on checks and balances), the framers' intent (they deeply distrusted executive power), and the need to prevent abuses of power that are inherent to unchecked authority. 

Professor Turner spends much of his time in this debate talking about what various framers wanted.   Above all, they wanted to reject a King, even as to foreign policy.  But that is exactly what Professor Turner wants to create by according the President uncheckable power to engage in searches and eavesdropping.



Bob Turner



 Bio

Professor Chemerinsky contends the framer’s “deeply distrusted executive power”; yet, in his classic Johns Hopkins treatise, The Creation of the Presidency (1922), Charles Thach noted the idea that “jealousy of kingship was a controlling force in the Federal Convention, is far, very far, from the truth.” Similarly, in The Control of American Foreign Relations (1922), Professor Quincy Wright observed: “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.” Professor Corwin added in The Presidency: Office and Powers (1957): “what the Framers had in mind” was “the ‘balanced constitution’ of Locke, Montesquieu, and Blackstone, which carried with it . . . a broad range of autonomous executive power or ‘prerogative’” in foreign affairs.

Of course Professor Chemerinsky is correct that the President may not violate the Fourth Amendment in war or peace. But the Fourth Amendment prohibits “unreasonable” searches and seizures. Monitoring enemy communications during authorized war is hardly “unreasonable” – every wartime president has done it. The Supreme Court has identified several “exceptions” to the Fourth Amendment’s warrant requirement, and all four courts of appeals to decide the issue have recognized the existence of a Fourth Amendment exception for foreign intelligence electronic surveillance – as has the unanimous appellate court established by FISA itself.

Ten years before FISA, Congress by statute recognized the president’s independent constitutional power in this area. It is true the Supreme Court has never officially affirmed such a power, but it has also never formally recognized the constitutionality of airport passenger searches. In both cases, there was no need to do so since all of the circuits to decide the issue agreed. The Supreme Court has had at least six opportunities to address this issue. Were the Constitution being violated, one might think it would have granted certiorari at least once.

Professor Chemerinsky seems shocked at the thought of unchecked presidential power over foreign affairs. I have shown that Federalists 64 recognized presidential discretion over foreign intelligence. Washington noted that Madison and Chief Justice Jay agreed with Jefferson that the Senate had “no constitutional right to interfere” in diplomatic matters beyond the narrowly-construed specific negatives entrusted to it. John Marshall in Marbury explained that “there exists, and can exist, no power to control” presidential discretion over foreign affairs. Curtiss-Wright reaffirmed the “plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations” in 1936.

Professor Chemerinsky seeks to dismiss this part of Curtiss-Wright as mere dicta, ignoring the reality that it has been relied upon as authority on numerous occasions by the Court. In the 1950 Eisentrager decision, for example, Justice Jackson cited Curtiss-Wright in concluding “the President is exclusively responsible” for the “conduct of diplomatic and foreign affairs . . . .” The Framers, two centuries of practice and the courts agree that warrantless foreign intelligence electronic surveillance is constitutional.



Erwin Chemerinsky



Erwin ChemerinskyBio

Professor Turner never denies the breadth of his position. Under it, the President has the power to authorize warrantless wiretaps of any conversation and warrantless searches of any person or any home in the name of national security. In fact, any attempt by Congress to limit this is unconstitutional. Indeed, Professor Turner's position means that the Foreign Intelligence Surveillance Act is unconstitutional in requiring the President to get a warrant from the Foreign Intelligence Surveillance Court for searches for foreign intelligence information. No Supreme Court decision ever has even hinted at this.

What arguments does Professor Turner make for such a broad, uncheckable presidential power? First, he says that the framers wanted the President to have broad power in foreign affairs. But even assuming that the framers' views should control today, the framers' were not considering whether the President's foreign affairs power justifies otherwise unconstitutional actions within the United States, such as electronic surveillance of American citizens while in this country. The cases he cites -- Curtiss Wright and Eisentrager -- both involved actions outside of the United States.

Second, he says that the Fourth Amendment only prohibits unreasonable searches. But the Supreme Court has emphasized the importance of the warrant requirement and the Foreign Intelligence Surveillance Act requires one (although it allows for wiretapping followed by a warrant in certain circumstances). He says that the police can engage in searches at airports. But there is an enormous difference from airport searches, where people consent to searches, by going through metal detectors, and electronic eavesdropping where there is no consent.

History shows the grave dangers of power that cannot be checked. The experience of the Bush presidency confirms this. The key flaw in Professor Turner's argument is that he never explains why the President needs the authority for warrantless electronic eavesdropping and why the FISA procedures are not adequate to strike the proper balance between civil liberties and national security.

I'll let Bob have the final word.  



Bob Turner



Bio

Professor Chemerinsky is correct that I am asserting that the Constitution grants the President extraordinarily broad powers. (For the record, I believed FISA was unconstitutional when I first read it as a Senate staffer thirty years ago.) While our immediate topic is the NSA Terrorist Surveillance Program (TSP) that in each instance involves a communication with a foreign national outside this country known or believed to be a terrorist, the President’s foreign affairs powers go beyond that. Even if one party to the communication is inside the United States, these are international communications involving agents of foreign powers and thus they come within the scope of the President’s foreign affairs and war powers.

If we are talking about national security electronic surveillance of a purely domestic target (an American with no clear ties to a foreign power), the unanimous 1972 Keith case clearly requires a judicial warrant. But, particularly during a period of congressionally authorized war, the President’s power to protect the nation from foreign powers and their agents in this country is indeed broad. If the President had reason to believe that al Qaeda operatives had hijacked an airplane with 100 innocent passengers aboard and was planning on crashing it into the U.S. Capitol or a crowded Super Bowl stadium, he has the power to order that the plane be shot down without giving the terrorists (or their innocent victims) a day in court before a federal judge. If he has reason to believe that a nuclear device has been smuggled into Washington, DC, and is being driven to the Capitol Building, he may order that roads be blocked and vehicles searched without first awaiting new legislation or a judicial hearing. He may not violate the Constitution, but in this context such searches would not be “unreasonable.”

Is there a chance of abuse? Certainly. But any egregious abuse would soon become public, as even if all of the operators conspired to maintain secrecy there are approximately 100 employees in the NSA Office of Inspector General monitoring such operations.

People may avoid some warrantless government searches by refusing to fly or electing not to enter a congressional office building to exercise their constitutional right to petition their government for redress of grievances.

Presumably they could avoid other lawful searches by not using telephones or riding in automobiles. The searches would nevertheless be unconstitutional if they were “unreasonable.” But the Supreme Court has repeatedly upheld warrantless searches and seizures in non-law-enforcement settings where the governmental interest outweighs the privacy interests.

Why does the President need this power? As the Framers repeatedly recognized, he must be able to act with “speed and dispatch” to protect the nation. The average FISA application is two inches thick and takes days to prepare when we may only have minutes to prevent an attack. FISA prevented the FBI from examining Moussaoui’s laptop, and General Hayden says it kept NSA from discovering the 9/11 hijackers. By usurping presidential constitutional powers, Congress is the lawbreaker.



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