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COPYRIGHT 2008 Stanford Law School
INTRODUCTION
I. THE NSA CONTROVERSY A. The Foreign Intelligence Surveillance Act B. The NSA Program II. THE PRECURSOR TO THE FDR PRECEDENT: NARDONE I AND II A. The 1934 Communications Act B. FDR's Thirst for Intelligence C. Nardone I D. Nardone II III. FDR's DEFIANCE OF CONGRESS AND THE SUPREME COURT A. Attorney General Jackson's Wiretapping Prohibition Under Nardone and the 1934 Communications Act B. FDR Secretly Resurrects Wiretapping by Confidential Memorandum C. The (Uninformed) Debate over Wiretapping in Congress, Courts, and Executive Branch Continues D. FDR Solidifies Wiretapping as Government Policy IV. ESCAPING THE PAST: LEARNING FROM THE BUSH AND FDR ADMINISTRATIONS A. The FDR Precedent and Executive Branch Lawbreaking B. Why the FDR Defense Ultimately Fails C. Lessons for the Future CONCLUSION APPENDIX: MEMORANDUM FROM FDR
INTRODUCTION
This Article explains why the legal case for the recently disclosed National Security Agency surveillance program turns out to be stronger than what the Administration has advanced. In defending its action, the Administration overlooked the details surrounding one of the most important periods of presidentially imposed surveillance in wartime--President Franklin Delano Roosevelt's (FDR) wiretapping and his secret end-run around both the wiretapping prohibition enacted by Congress and decisions of the United States Supreme Court. In our view, the argument does not quite carry the day, but it is a much heftier one than those that the Administration has put forth to date to justify its NSA program. The secret history, moreover, serves as a powerful new backdrop against which to view today's controversy.
In general, we believe that compliance with executive branch precedent is a critical element in assessing the legality of a President's actions during a time of armed conflict. In the crucible of legal questions surrounding war and peace, few judicial precedents will provide concrete answers. Instead, courts will tend to invoke the political question doctrine or other prudential canons to stay silent; and even in those cases where they reach the merits, courts will generally follow a minimalist path. (1) For these and other reasons, the ways in which past Presidents have acted will often be a more useful guide in assessing the legality of a particular program, as Presidents face pressures on security unimaginable to any other actor outside or inside government. At the same time as Presidents realize these pressures, they are under an oath to the Constitution, and so the ways in which they balance constitutional governance and security threats can and should inform practice today. As Justice Frankfurter put it in Youngstown:
[A] systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on 'executive Power' vested in the President by [Section] 1 of Art. II. (2)
So it is fitting that a good measure of the contemporary debate over the legality of the NSA program has centered around the surveillance orders of past Presidents. The Administration's defense, in two white papers, (3) emphasized its fidelity to the past:
Wiretaps for such purposes thus have been authorized by Presidents at least since the administration of Franklin Roosevelt in 1940. See, e.g., United States v. United States District Court, 444 F.2d 651, 669-71 (6th Cir. 1971) (reproducing as an appendix memoranda from Presidents Roosevelt, Truman, and Johnson). In a Memorandum to Attorney General Jackson, President Roosevelt wrote on May 21, 1940: You are, therefore, authorized and directed in such cases as you may approve, after investigation of the need in each case, to authorize the necessary investigat[ing] agents that they are at liberty to secure information by listening devices directed to the conversation or other communications of persons suspected of subversive activities against the Government of the United States, including suspected spies. You are requested furthermore to limit these investigations so conducted to a minimum and limit them insofar as possible to aliens. President Truman approved a memorandum drafted by Attorney General Tom Clark in which the Attorney General advised that "it is as necessary as it was in 1940 to take the investigative measures" authorized by President Roosevelt to conduct electronic surveillance "in cases vitally affecting the domestic security." (4)
This executive branch precedent defense at first glance looks rather convincing. (Leave aside the white paper's mangling of the facts, such as claiming that Attorney General Clark drafted the Truman Memo about FDR when it actually was controversial Federal Bureau of Investigation (FBI) Director J. Edgar Hoover.) As constitutional scholars pointed out rather quickly in response to the white papers, the problem is that FDR was acting before Congress had occupied the field with respect to electronic surveillance, whereas President Bush was defying Congress's wishes. (5) The 1978 Foreign Intelligence Surveillance Act (FISA), these critics argued, said it was the "exclusive" means of carrying out surveillance (6)--which makes it quite different than FDR's order, an order that supposedly operated without any statutory constraint.
To put the Department of Justice's (DOJ) critics' claim into constitutional law jargon, FDR was acting in Youngstown Zone 2--the "twilight zone"--where his powers were greater. President Bush, by contrast, was acting in Zone 3--the Zone of Prohibition--where his powers were at their nadir. So, for example, as perhaps the most sophisticated analyst of the NSA controversy, David Kris (who formerly handled such issues for DOJ), summarized: "The DOJ whitepaper contains an extensive discussion of [previous presidential action] that I am more or less prepared to accept for present purposes. The constitutional question presented here, however, is whether the President retains such authority in the face of Congressional efforts to restrict it." (7) Professor Walter Dellinger, a former head of the Office of Legal Counsel, has similarly argued that the Bush Administration crated a "vast expansion" of presidential powers by confusing Zones 2 and 3 in the NSA program:
It is said by the defenders of what the President did that Presidents going back to Lincoln have authorized eavesdropping (Johnson, Roosevelt, others) authorized wiretapping in the national security interest. I'm perfectly willing to accept that as part of the inherent power of the President ... when there is no law one way or the other and it is in the national security interest.... What of course is amazing about the argument that that is a precedent is that those actions all preceded a decision by Congress to enact into law the Foreign Intelligence Surveillance Act which said here's how you do it and if you don't do it this way it is a felony. (8)
As a result of such claims--that during the FDR Administration there was "no law one way or the other"--the FDR precedent defense has rapidly lost its steam and the Administration has largely abandoned reference to it.
The problem is that this criticism of the DOJ White Paper is wrong. The true facts surrounding FDR's activity will undoubtedly provide ammunition to those defending the Administration in today's controversy. They will show that FDR's wiretapping policy was far closer to today's wiretapping program than what the Administration has thus far argued. Then, as now, Congress regulated electronic surveillance. The Supreme Court of the United States had taken expansive views of that statute to bar certain forms of electronic surveillance. Then, as now, the President--acting on the advice of certain advisors--adopted a dubious statutory interpretation in order to conduct the surveillance anyway, and defy the Supreme Court. Then, as now, senior advisors, including an Attorney General of the United States, warned that such surveillance was illegal. And then, as now, some Administration officials lobbied Congress for additional surveillance powers at the very same time as they were conducting that very surveillance in secret. The Attorney General at the time, Robert Jackson, would write that "[t]he only case that I recall in which [FDR] declined to abide by a decision of the Supreme Court was its decision that federal law enforcement officers could not legally tap wires." (9)
The upshot is that today's surveillance program, in many key respects, looks strikingly similar to the one blessed by FDR. Both programs, in essence, have defied congressionally enacted law. For those who believe that the actions of one of our country's greatest Presidents-FDR--create an unwritten pattern and practice that informs constitutional interpretation, this precedent should loom large in debates about Executive Power to conduct such surveillance.
At the same time, we believe that the FDR precedent should not be overread. Ultimately, it does not do enough to convince us of the legality of today's program. Instead of trying to distinguish the two programs, we believe that the facts reveal that both programs were illegal. We further believe that great Presidents make mistakes, and FDR was not immune to them, even (or especially) in this area. (10) And we further believe that one of the key conditions for a "super-stare decisis" rule for executive branch precedent, open acquiescence by the other branches of government, something that Frankfurter himself mentioned, has not been met.
Nevertheless, we believe that these conclusions are debatable, and that the FDR precedent deserves widespread debate, instead of the inattention it has received thus far. FDR, after all, took a tendentious statutory interpretation, informed both by his view on the balance between security and law as well as his robust views of executive power. The question should then become how much weight to afford the precedent in evaluating today's controversy. The FDR precedent is also a helpful reminder that mistakes can be made by Presidents of any political party, and that it is too facile to call the current NSA controversy something that could only be concocted in a Republican Administration.
Part I briefly describes the current NSA controversy. Part II discusses the history of FDR's surveillance program, and in particular the remarkable Nardone case, which went up to the Supreme Court two different times and which led the Court to conclude that the 1934 Communications Act prohibited wiretapping. (11) Part III details the post-Nardone activity by FDR, including his decision to defy the Supreme Court and Congress in deputizing the FBI to engage in surveillance. The secret history is at times rich--replete with backroom deals between FBI Director J. Edgar Hoover and FDR, and a bypass of the Attorney General himself, the legendary Robert Jackson, who believed that the Government was acting illegally. Part IV discusses how the FDR precedent serves as a better defense of the NSA program than the current one offered by the Administration. This Part also discusses our views as to why this better defense ultimately does not succeed in defending today's program.
In the end, this Article shows that at a time when the nation faced new threats from frightening and unknown new movements and ideologies overseas, the President worried more than anything about what could happen if those movements placed cells inside the United States. FDR wanted to wiretap communications by these people and groups to protect the country, but the law--as interpreted by the Supreme Court--prohibited it. Civil liberties advocates fretted that these wiretapping powers could be abused. The President's advisors, including FBI Director J. Edgar Hoover, suggested doing it anyway. But his Attorney General, Jackson, had already gone on record saying that wiretapping was prohibited under order of Congress and the Supreme Court. The FDR episode as such provides a stronger basis for the current Administration's program than any it has advanced. In the end, however, instead of justifying the Administration's surveillance program, the FDR precedent counsels looking closely at the workings of the executive branch to develop internal checks on presidential overreach. The precedent reveals the relative frailty of both courts and Congress in national security disputes, and highlights the need to lace the concept of "separation of powers" into the Executive Branch.
I. THE NSA CONTROVERSY
The details surrounding the so-called "Terrorist Surveillance Program" have still not been released. According to Administration documents and news reports, however, it appears that sometime shortly after the September 11, 2001 attacks, the President authorized the electronic surveillance of United States persons in a way that did not require permission from the FISA court. This section first describes FISA and then moves to a discussion of the NSA program.
A. The Foreign Intelligence Surveillance Act
FISA was created in 1978 as part of Congress's overhaul of intelligence activities to govern domestic electronic surveillance of agents of foreign powers. (12) The Act mandates that the Chief Justice of the United States designate eleven district judges from seven of the United States judicial circuits to form a Foreign Intelligence Surveillance Court (FISC). (13) Of these, at least three judges must reside within twenty miles of Washington, D.C. (14) The judges of this court hear the government's applications for foreign intelligence surveillance in secret and determine whether the requested surveillance meets the requirements set forth in FISA. Once a judge of the FISA court has denied an application for surveillance, the government may not petition another judge of the same court for approval of the same application. (15)
In most cases, FISA requires that the government conduct domestic surveillance for foreign intelligence purposes only pursuant to judicial authorization. The standards for that authorization, however, do not comport with the Fourth Amendment's probable cause requirements for an ordinary warrant. Rather, FISA is more permissive in the type and scope of the searches it allows, requiring far less judicial supervision when the government collects intelligence about foreign powers domestically. (16)
In most circumstances, a federal agent seeking to use surveillance under FISA must, with the approval of the Attorney General, submit an ex parte application to the Foreign Intelligence Surveillance Court. (17) That application must state, among other things, (1) the identity or description of the target of surveillance, (2) the facts relied upon to justify the belief that the target is a foreign power (or agent thereof) and that each of the places to be targeted is used by or about to be used by a foreign power (or agent thereof), (3) detailed description of the type of information sought and the type of communications to be monitored, (4) that obtaining foreign intelligence information is "a significant purpose" of the surveillance, and (5) that such information cannot reasonably be obtained by alternative methods. (18)
An application for surveillance must also state the "minimization procedures" that will be utilized by the government. (19) "Minimization procedures" are, with certain exceptions, procedures adopted by the Attorney General and approved by the FISC which are "reasonably designed in light of the purpose and technique of the particular surveillance, to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information." (20)
In three circumstances, however, the government may proceed with surveillance for foreign intelligence purposes without a FISA court order. First, the President may authorize surveillance without approval from the FISC if the Attorney General certifies that the proposed surveillance is solely directed at intercepting communications transmitted by means used exclusively between foreign powers or directed at the acquisition of technical information (other than spoken communication) from property under the exclusive control of a foreign power. (21) In this case, the Attorney General must further certify that there is no substantial likelihood of the proposed surveillance obtaining communications to which a United States person is a party, and any authorized surveillance must be concluded within a one year time period. (22) Further, the Attorney General's certification must be sent to the FISC immediately and maintained there under security measures. (23)
Second, the government may carry out foreign intelligence surveillance without a FISA court order if the Attorney General reasonably determines that the factual basis for an order approving the surveillance exists and that an emergency situation requires foreign intelligence surveillance before a court order can be reasonably obtained. (24) Under this scenario, the Attorney General must immediately notify the FISC of his decision to authorize surveillance and seek a formal court order from a FISA judge within seventy-two hours. (25) If no court order is issued, the surveillance must end when the desired information is obtained, when the court denies the application, or at the end of seventy-two hours, whichever comes first. And if a judge does not approve the application, there are severe restrictions on how the obtained information may be used. (26)
Finally, under FISA, the Attorney General may authorize foreign intelligence surveillance without a court order for a period not to exceed fifteen days following a formal declaration of war by Congress. (27)
If a FISA judge approves a request for surveillance, the judge's order must specify the identity or description of the target of the surveillance and the nature and location of each facility to be placed under surveillance. (28) It must further specify the type of information sought, the types of communication to be monitored, the means by which surveillance will take place, whether physical entry will be utilized, and the period of time for which surveillance is approved. (29) The court's order may also, at the request of the government, direct that a specified communication or other common carrier aid the government with all information, facilities, or technical assistance necessary to carry out the surveillance secretly. (30) Moreover, the common carrier in question will be ordered to maintain any records of its surveillance or assistance under the Attorney General's approved security procedures. (31)
FISA also requires that certain statistics on the use of the Act's procedures be submitted to Congress, including the total number of applications for FISA orders and the total number of court orders issued for FISA surveillance. (32) In 1997 there were 748 FISA orders approved. In 2002 this figure increased to 932 orders. And in 2006, there were 2181 approved orders. (33) This represents almost a 200% increase in approved FISA orders between 1997 and 2006.
B. The NSA Program
On December 16, 2005, the New York Times revealed a wiretapping program authorized by the Bush Administration. According to the article, the Bush Administration's rationale for keeping the program classified was to ensure that terrorists not learn of the program. (34) Although the program remains among the most classified of government secrets, (35) it is now known that many in the Executive Branch, including FBI Director Robert S. Mueller III and then-Attorney General John Ashcroft, expressed considerable dissent about the legality of the program. (36)
The secrecy surrounding the program makes detailed legal analysis quite difficult. But some things can be said based on the existing public record. To briefly summarize that record: then-Attorney General Alberto Gonzales affirmed that the program authorizes warrantless interception of electronic data lines where the government "has a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda" and another party to the conversation is located "outside of the United States." (37) Formulated soon after September 11, 2001, the surveillance program was utilized in early 2002 when the CIA captured high-ranking al Qaeda operatives overseas and seized their computers, cellular telephones, and personal phone directories. However, in addition to eavesdropping on the phone numbers and e-mail messages of those operatives, the NSA also began to monitor others associated with these operatives, generating an ever-expanding web of surveillance.
Although most of the phone numbers and addresses were overseas, many were in the United States. Since 2002, the NSA has monitored the international phone calls and e-mail messages of hundreds, perhaps even thousands, of people inside the United States without warrants. (38) The names on the list are classified and the number of people the list contains is constantly fluctuating; at any given moment under this program the NSA eavesdrops on approximately five hundred people in the United States and an additional five to seven thousand people overseas. (39) Several officials, whose identities remain unknown due to the classified nature of the information, stated that the program enabled them to successfully uncover and thwart several terrorist plots, including a scheme to attack British pubs and train stations with fertilizer bombs and a plan by Iyman Faris, an al Qaeda supporter, to destroy the Brooklyn Bridge with blowtorches. (40) Nevertheless, the officials also stated that the majority of the people monitored by the NSA have never been charged with a crime. (41)
The Administration has claimed that, based on these revelations, the program is lawful. Evidently, the Administration believes that FISA is too cumbersome and that it needs to act more rapidly to approve surveillance. While we will defer consideration of this argument until Part IV, we briefly want to register our immediate disagreement with aspects of this claim. Our starting point is that the Constitution's text and structure generally presuppose legislative action unless such action is impossible due to an emergency. (42) The Administration's claim might therefore have worked on September 15, 2001, at a time when Congress might have found it difficult to act in time to authorize an immediate exception to FISA, but not scores of months after those attacks. Yet the Administration clung to this rationale for years after the immediate exigency had lapsed, at a time when Congress was fully capable of modifying FISA. (Of course, within 60 days of the 9-11 attacks Congress had already modified FISA in a number of respects in the much-debated USA PATRIOT Act. (43))
The Administration has also issued a separate defense of its action, invoking FDR's wiretapping. As the first page of this Article demonstrates, the Justice Department White Paper used FDR's action to buttress claims of "inherent" presidential power to wiretap. Claims of "inherent" power, however, fall flat given the fact that FISA has been enacted. The central issue in the legal dispute today is that FISA proclaims that it is the "exclusive" means of conducting electronic surveillance, and those procedures were defied. (44) The FDR precedent, as the Justice Department has cast it, bears only on executive action in the zone of Congressional silence (Youngstown Zone 2), not executive defiance of the law (Youngstown Zone 3). Due to this supposed discrepancy, the FDR defense has fallen like a load of bricks. But the facts turn out to show that FDR, like President Bush, was not operating in a statutory zone of silence. Instead, FDR was ordering a secret end-run around Congress and the courts.
II. THE PRECURSOR TO THE FDR PRECEDENT: NARDONE I AND II
A. The 1934 Communications Act
Since just about the time that the telegraph and telephone were invented, the government has been wiretapping them. But the extent of wiretapping has waxed and waned over various administrations. Officials eavesdropped on telegraph lines during the Civil War, (45) and the government took over operation of the phones in 1918 as a war time measure. (46) In 1924, Attorney General Harlan Fiske Stone, seeking...
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