Posted on 12/22/2005 7:01:42 PM PST by Peach
Edited on 12/22/2005 7:49:05 PM PST by Jim Robinson. [history]
U. S. Department of Justice
Office of Legislative Affairs
December 22, 2005
The Honorable Pat Roberts
Chairman
Senate Select Committee on Intelligence
United States Senate
Washington, D.C. 20510
The Honorable John D. Rockefeller, IV
Vice Chairman
Senate Select Committee on Intelligence
United States Senate
Washington, D.C. 20510
The Honorable Peter Hoekstra
Chairman
Permanent Select Committee on Intelligence
U.S. House of Representatives
Washington, D.C. 20515
The Honorable Jane Harman
Ranking Minority Member
Permanent Select Committee on Intelligence
U.S. House of Representatives
Washington, D.C. 20515
Dear Chairmen Roberts and Hoekstra. Vice Chairman Rockefeller, and Ranking Member Harman:
As you know, in response to unauthorized disclosures in the media, the President has described certain activities of the National Security Agency ("NSA") that he has authorized since shortly after September 11, 2001 . As described by the President, the NSA intercepts certain international communications into and out of the United States of people linked to al Qaeda or an affiliated terrorist organization. The purpose of these intercepts is to establish an early warning system to detect and prevent another catastrophic terrorist attack on the United States. The President has made clear that he will use his constitutional and statutory authorities to protect the American people from further terrorist attacks, and the NSA activities the President described are part of that effort. Leaders of the Congress were briefed on these activities more than a dozen times.
The purpose of this letter is to provide an additional brief summary of the legal authority supporting the NSA activities described by the President.
As an initial matter, I emphasize a few points. The President stated that these activities are crucial to our national security." The President further explained that "the unauthorized disclosure of this effort damages our national security and puts our citizens at risk. Revealing classified information is illegal, alerts our enemies, and endangers our country." These critical national security activities remain classified. All United States laws and policies governing the protection and nondisclosure of national security information. including the information relating to the
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activities described by the President, remain in full force and effect. The unauthorized disclosure of classified information violates federal criminal law. The Government may provide further classified briefings to the Congress on these activities in an appropriate manner. Any such briefings will be conducted in a manner that will not endanger national security.
Under Article II of the Constitution, including in his capacity as Commander in Chief, the President has the responsibility to protect the Nation from further attacks, and the Constitution gives him all necessary authority to fulfill that duty. See, e.g., Prize Cases, 67 U.S. (2 Black) 635, 668 (1863) (stressing that if the Nation is invaded, "the President is not only authorized but hound to resist by force . . . . without waiting for any special legislative authority"); Campbell v. Clinton, 203 F.3d 19,27 (D.C. Cir. 2000) (Silberman, J., concurring) ("[T]he Prize Cases . . . stand for the proposition that the President has independent authority to repel aggressive acts by third parties even without specific congressional authorization, and courts may not review the level of force selected."); id. at 40 (Tatel, J., concurring). The Congress recognized this constitutional authority in the preamble to the Authorization for the Use of Military Force ("AUMF") of September 18, 2001, 115 Stat. 224 (2001) ("[T]he President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States."), and in the War Powers Resolution, see 50 U.S.C. § 1541(c) ("The constitutional powers of the President as Commander in Chief to introduce United States Armed Forces into hostilities[] . . . [extend to] a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.").
This constitutional authority includes the authority to order warrantless foreign intelligence surveillance within the United States, as all federal appellate courts, including at least four circuits, to have addressed the issue have concluded. See, e.g., In re Sealed Case, 310 F.3d 7 17, 742 (FISA Ct. of Review 2002) ("[A]ll the other courts to have decided the issue [have] 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. . . ."). The Supreme Court has said that warrants are generally required in the context of purely domestic threats. but it expressly distinguished, foreign threats. See United States v. United States District Court, 407 U.S. 297, 308 (1972). As Justice Byron White recognized almost 40 years ago, Presidents have long exercised the authority to conduct warrantless surveillance for national security purposes, and a warrant is unnecessary "if the President of the United States or his chief legal officer, the Attorney General, has considered the requirements of national security and authorized electronic surveillance as reasonable." Katz v. United States, 389 U.S. 347, 363-64 (1967) (White, J., concurring).
The President's constitutional authority to direct the NSA to conduct the activities he described is supplemented by statutory authority under the AUMF. The AUMF authorizes the President "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks of September 11, 2001, . . . in order to prevent any future acts of international terrorism against the United States." § 2(a), The AUMF clearly contemplates action within the United States, See also id. pmbl. (the attacks of September 11 "render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad"). The AUMF cannot be read as limited to authorizing the use of force against Afghanistan, as some
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have argued. Indeed, those who directly "committed" the attacks of September 11 resided in the United States for months before those attacks. The reality of the September I 1 plot demonstrates that the authorization of force covers activities both on foreign soil and in America.
In Hamdi v. Rumsfeld, 542 U.S. 507 (2004), the Supreme Court addressed the scope of the AUMF. At least five Justices concluded that the AUMF authorized the President to detain a U.S. citizen in the United States because "detention to prevent a combatant's return to the battlefield is a fundamental incident of waging war" and is therefore included in the "necessary and appropriate force" authorized by the Congress. Id. at 518-19 (plurality opinion of O'Connor, J.); see id. at 587 (Thomas, J., dissenting). These five Justices concluded that the AUMF "clearly and unmistakably authorize[s]" the "fundamental incident[s] of waging war." Id. at 518-19 (plurality opinion); see id. at 587 (Thomas, J., dissenting).
Communications intelligence targeted at the enemy is a fundamental incident of the use of military force. Indeed, throughout history, signals intelligence has formed a critical part of waging war. In the Civil War, each side tapped the telegraph lines of the other. In the World Wars, the United States intercepted telegrams into and out of the country. The AUMF cannot be read to exclude this long-recognized and essential authority to conduct communications intelligence targeted at the enemy. We cannot fight a war blind. Because communications intelligence activities constitute, to use the language of Hamdi, a fundamental incident of waging war, the AUMF clearly and unmistakably authorizes such activities directed against the communications of our enemy. Accordingly, the President's "authority is at its maximum." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring); see Dames & Moore v. Regan, 453 U.S. 654, 668 (1981); cf: Youngstown, 343 U.S. at 585 (noting the absence of a statute "from which [the asserted authority] c[ould] be fairly implied").
The President's authorization of targeted electronic surveillance by the NSA is also consistent with the Foreign Intelligence Surveillance Act ("FISA"). Section 2511(2)(f) of title 18 provides, relevant here, that the procedures of FISA and two chapters of title 18 "shall be the as exclusive means by which electronic surveillance... may be conducted." Section 109 of FISA, in turn, makes it unlawful to conduct electronic surveillance, "except as authorized by statute." 50 U.S.C. 1809(a)(1). Importantly, section 109's exception for electronic surveillance "authorized by statute" is broad, especially considered in the context of surrounding provisions. See 18 U.S.C. § 2511(1) ("Except as otherwise specifically provided in this chapter any person who --(a) intentionally intercepts . . . any wire, oral, or electronic communication[] . . . shall be punished . . . .") (emphasis added); id. § 2511(2)(e) (providing a defense to liability to individuals "conduct[ing] electronic surveillance, . . . as authorized by that Act [FISA]") (emphasis added).
By expressly and broadly excepting from its prohibition electronic surveillance undertaken "as authorized by statute," section 109 of FISA permits an exception to the "procedures" of FISA referred to in 18 U.S.C. § 2511(2)(f) where authorized by another statute, even if the other authorizing statute does not specifically amend section 2511(2)(f). The AUMF satisfies section 109's requirement for statutory authorization of electronic surveillance, just as a majority of the Court in Hamdi concluded that it satisfies the requirement in 18 U.S.C. § 4001(a) that no U.S. citizen be detained by the United States "except pursuant to an Act of Congress." See Hamdi, 542
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U.S. at 519 (explaining that "it is of no moment that the AUMF does not use specific language of detention"); see id. at 587 (Thomas, J., dissenting).
Some might suggest that FISA could be read to require that a subsequent statutory authorization must come in the form of an amendment to FISA itself. But under established principles of statutory construction, the AUMF and FISA must be construed in harmony to avoid any potential conflict between FISA and the President's Article II authority as Commander in Chief. See, e.g., Zadvydas v. Davis, 533 U.S. 678, 689 (2001); INS v. St. Cyr, 533 U.S. 289, 300 v. (2001). Accordingly. any ambiguity as to whether the AUMF is a statute that satisfies the requirements of FISA and allows electronic surveillance in the conflict with al Qaeda without complying with FISA procedures must be resolved in favor of a n interpretation that is consistent with the President's long-recognized authority.
The NSA activities described by the President are also consistent with the Fourth Amendment and the protection of civil liberties. The Fourth Amendment's "central requirement is one of reasonableness." Illinois v. McArthur, 531 U.S. 326, 330 (2001) (internal quotation marks omitted). For searches conducted in the course of ordinary criminal law enforcement, reasonableness generally requires securing a warrant. See Bd. of Educ, v. Earls, 536 U.S. 822, 828 (2002). Outside the ordinary criminal law enforcement context, however, the Supreme Court has, at times, dispensed with the warrant, instead adjudging the reasonableness of a search under the totality of the circumstances. See United States v. Knights, 534 U.S. 112, 118 (2001). In particular, the Supreme Court has long recognized that "special needs, beyond the normal need for law enforcement," can justify departure from the usual warrant requirement. Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 653 (1995); see also City of Indianapolis v. Edmond, 531 U.S. 32, 41-42 (2000) (striking down checkpoint where "primary purpose was to detect evidence of ordinary criminal wrongdoing").
Foreign intelligence collection, especially in the midst of an armed conflict in which the adversary has already launched catastrophic attacks within the United States, fits squarely within the "special needs" exception to the warrant requirement. Foreign intelligence collection undertaken to prevent further devastating attacks on our Nation serves the highest government purpose through means other than traditional law enforcement. See In re Sealed Case, 310 F.3d at 745; United States v. Duggan, 743 F.2d 59, 72 (2d Cir. 1984) (recognizing that the Fourth Amendment implications of foreign intelligence surveillance are far different from ordinary wiretapping, because they are not principally used for criminal prosecution).
Intercepting communications into and out of the United States of persons linked to al Qaeda in order to detect and prevent a catastrophic attack is clearly reasonable. Reasonableness is generally determined by "balancing the nature of the intrusion on the individual's privacy against the promotion of legitimate governmental interests." Earls, 536 U.S. at 829. There is undeniably an important and legitimate privacy interest at stake with respect to the activities described by the President. That must be balanced, however, against the Government's compelling interest in the security of the Nation. see, e.g., Haig v. Agee, 453 U.S. 280, 307 (1981) ("It is obvious and unarguable that no governmental interest is more compelling than the security of the Nation.") (citation and quotation marks omitted). The fact that the NSA activities are reviewed and
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reauthorized approximately every 45 days to ensure that they continue to be necessary and appropriate further demonstrates the reasonableness of these activities.
As explained above. the President determined that it was necessary following September 11 to create an early warning detection system. FISA could not have provided the speed and agility required for the early warning detection system. In addition, any legislative change, other than the AUMF, that the President might have sought specifically to create such an early warning system would have been public and would have tipped off our enemies concerning our intelligence limitations and capabilities. Nevertheless, I want to stress that the United States makes full use of FISA to address the terrorist threat, and FISA has proven to be a very important tool, especially in longer-term investigations. In addition, the United States is constantly assessing all available legal options, taking full advantage of any developments in the law.
We hope this information is helpful.
Sincerely,
William E. Moschella
Assistant Attorney General
Is there a lawyer in the house that can give us a summary on all this?
LOLOL. I'd love to have seen that. Thanks for the early morning laugh.
Will do!
Thank you for that much better link.
Now, will someone ping me when that geek lawyer, Jonathan Turkey, shows up on a talk show to explain his recent statements that the President has no such authority and has/is breaking the law?
Even though he's never met a camera he doesn't like, Professor Turkey just may be in hiding from the axe poised over his neck after he stuck his pencil-neck out on the chopping block.
To think that he's teaching law to our university students is despicable. To think that he's called an "expert" when introduced on a TV show is incomprehensible. To think that any president has no special powers during a war is just plain stupidity.
Leni
Turley has obviously not researched this matter being too busy rushing to the nearest camera. LOL
The odious Muslim group CAIR files a freedom of information act to obtain NSA's spying files. Good luck with THAT!
http://freerepublic.com/focus/f-news/1545895/posts
http://www.freerepublic.com/focus/f-news/1545927/posts
Cases cited there are ...
Olmstead v. United States, 217 U.S. 438 (1928)
U.S. v. Butenko, 494 F.2d 593 (3d Cir. 1974) (en banc), cert. denied, 419 U.S. 881 (1974)
Ivanov v. United States (5th Cir., 1974) no citation found
Chagnon v. Bell, 642 F.2d. 1248, 1266 (DC Cir. 1980), cert. denied, 453 US 911 (1981)
Not cited in the FR link above, but a short and interesting read, especially Stewart's concurrance ...
Giordano v. United States, 394 U.S. 310 (1969)
One might suppose that all of this should be entirely clear to any careful reader of the Court's opinion in Alderman, Butenko, and Ivanov. Perhaps so, and perhaps, therefore, what I have said is quite unnecessary. But 10 years of experience here have taught me that the most carefully written opinions are not always carefully read - even by those most directly concerned.
One more ...
And I do know that no president in our nation's history has ever ceded authority to defend the country to any legislative body or any court of law.
Nor have they ever ceded it to NYT or any other self important news group.
God help us, this is WAY too many paragraphs (too difficult to get), and citing "ancient" US law (meaning: no longer applicable) for the general Congressmember or Joe American citizen.
What is it about Americans and laws more than 50 years old?
Does Levenworth use old sparkey or the firing squad?
Another suicidal national security leak
Media outlets are now racing each other to expose vital national security secrets to mass-murdering terrorists. US News & World Report just gave our enemies another tip: Don’t store your dirty bomb materials in a mosque.
The US has been monitoring for radioactive materials in US mosques, because if you want to kill a lot of people, the dirty bomb is your weapon of choice. All it takes is some uranium or radium in a truck full of dynamite. If the 9/11 terrorists had carried radioactive materials on board their four hijacked aircraft, we would now be digging bomb shelters in our gardens.
As a result of this criminal leak of a vital program, future terrorists will be sure to store their radioactive materials outside of mosques. Now we do not know where to look.
Thank you, mainstream media. You may kill us all yet, but you will defend the public’s right to know to the last man, woman and child in the United States.
It is past time to prosecute leakers and “journalists” to the full extent of the law. The US Constitution is not a suicide pact.
......................
The question is - WHEN WILL THE LEAKERS GO TO JAIL????
I hadn't seen those comments, and am still finding that I can be surprised at the depths to which the media will go.
Ping to #94, prairie and mo.
Yes, in fact the nuke/mosque story made it onto Special Report last night. Of course.
Were they appalled at the leak? I missed the news last night.
I love a lot of things that happen in our current American life but there isn't enough room on a FR home page to include the current and past and keep the thing from being a tome. FR is very much about what is happening right here, right now; plenty of places where we can learn those things. If you look at my posting history over a week, you'll see I go to a lot of threads on different topics.
I have always loved history and political science and respect what our founders knew and gave us. I was fortunate to be taught American history before the PC crowd took the heart and truth out of it. A lot of FReepers weren't so fortunate, so why not give our heritage a little exposure, says I.
I do understand what Winston Churchill experienced, whose country and world changed dramatically in his life time, and of whom even his contemporaries said he identified very much with the way of life that was departing. In my case, while I agree with God's wisdom, Proverbs 22:28 "Do not move the ancient boundary Which your fathers have set," I am very much a student of my day and love looking forward to what is coming. I believe what we are moving into now, as a nation, and around the world, is better than what we have had, and I am very glad to be living in this time.
What rules my life ... the very ancient, and living, Bible, and the very modern and timeless God who changes not. But current events do in large part shape us all.
It was Chris Wallace substituting for Hume. I never know how to read him nor whether to trust him. It wasn't discussed by the panel, just reported.
Personally, I thought Wallace took some delight in reporting it, but again, I dont' necessarily like him.
Thank you Jim, for this letter. Please keep it out in front as long as possible. It's the ammunition we need.
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