[House Hearing, 110 Congress]
[From the U.S. Government Printing Office]

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                               BEFORE THE


                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION


                              JUNE 7, 2007


                           Serial No. 110-45


         Printed for the use of the Committee on the Judiciary

      Available via the World Wide Web: http://judiciary.house.gov

35-861                      WASHINGTON : 2007
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                       COMMITTEE ON THE JUDICIARY

                 JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California         LAMAR SMITH, Texas
RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr., 
JERROLD NADLER, New York                 Wisconsin
ROBERT C. SCOTT, Virginia            HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
MAXINE WATERS, California            DANIEL E. LUNGREN, California
MARTIN T. MEEHAN, Massachusetts      CHRIS CANNON, Utah
WILLIAM D. DELAHUNT, Massachusetts   RIC KELLER, Florida
ROBERT WEXLER, Florida               DARRELL ISSA, California
LINDA T. SANCHEZ, California         MIKE PENCE, Indiana
STEVE COHEN, Tennessee               J. RANDY FORBES, Virginia
HANK JOHNSON, Georgia                STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois          TOM FEENEY, Florida
BRAD SHERMAN, California             TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin             LOUIE GOHMERT, Texas
ANTHONY D. WEINER, New York          JIM JORDAN, Ohio
ADAM B. SCHIFF, California

            Perry Apelbaum, Staff Director and Chief Counsel
                 Joseph Gibson, Minority Chief Counsel

  Subcommittee on the Constitution, Civil Rights, and Civil Liberties

                   JERROLD NADLER, New York, Chairman

ARTUR DAVIS, Alabama                 TRENT FRANKS, Arizona
KEITH ELLISON, Minnesota             DARRELL ISSA, California
JOHN CONYERS, Jr., Michigan          STEVE KING, Iowa
ROBERT C. SCOTT, Virginia            JIM JORDAN, Ohio
MELVIN L. WATT, North Carolina
STEVE COHEN, Tennessee

                     David Lachmann, Chief of Staff

                    Paul B. Taylor, Minority Counsel

                            C O N T E N T S


                              JUNE 7, 2007


                           OPENING STATEMENT

The Honorable Jerrold Nadler, a Representative in Congress from 
  the State of New York, and Chairman, Subcommittee on the 
  Constitution, Civil Rights, and Civil Liberties................     1
The Honorable Trent Franks, a Representative in Congress from the 
  State of Arizona, and Ranking Member, Subcommittee on the 
  Constitution, Civil Rights, and Civil Liberties................     3
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, Member, Subcommittee on the 
  Constitution, Civil Rights, and Civil Liberties, and Chairman, 
  Committee on the Judiciary.....................................     4
The Honorable Darrell Issa, a Representative in Congress from the 
  State of California, and Member, Subcommittee on the 
  Constitution, Civil Rights, and Civil Liberties................     5


Mr. Steven G. Bradbury, Principal Deputy Assistant Attorney 
  General, Office of Legal Counsel, U.S. Department of Justice
  Oral Testimony.................................................     7
  Prepared Statement.............................................    10
Mr. Bruce Fein, The Lichfield Group, Inc.
  Oral Testimony.................................................    20
  Prepared Statement.............................................    21
Mr. Lee A. Casey, Partner, Baker Hostetler
  Oral Testimony.................................................    43
  Prepared Statement.............................................    44
Mr. Jameel Jaffer, Director, National Security Project, American 
  Civil Liberties Union
  Oral Testimony.................................................    48
  Prepared Statement.............................................    50
Mr. Louis Fisher, American Law Division, Library of Congress
  Oral Testimony.................................................    68
  Prepared Statement.............................................    70

               Material Submitted for the Hearing Record

Response from Brian A. Benczkowski, Principal Deputy Assisant 
  Attorney General, U.S. Department of Justice, in response to 
  post-hearing questions submitted by the Subcommittee...........    96
U.S. Department of Justice document entitled ``Legal Authorities 
  Supporting the Activities of the National Security Agency 
  Described by the President''...................................    99
Letter from the Committee on the Judiciary, dated January 19, 
  2007, to the Honorable Alberto R. Gonzales, Attorney General of 
  the United States, U.S. Department of Justice..................   141
Letter from the Committee on the Judiciary, dated February 1, 
  2007, to the Honorable Alberto R. Gonzales, Attorney General of 
  the United States, U.S. Department of Justice..................   143
Letter from Richard A. Hertling, Acting Assistant Attorney 
  General, U.S. Department of Justice, dated February 9, 2007, to 
  the Honorable John Conyers, Jr., Chairman, Committee on the 
  Judiciary......................................................   146
Letter from the Committee on the Judiciary, dated May 17, 2007, 
  to the Honorable Alberto R. Gonzales, Attorney General of the 
  United States, U.S. Department of Justice......................   148



                         THURSDAY, JUNE 7, 2007

                  House of Representatives,
                 Subcommittee on the Constitution, 
                 Civil Rights, and Civil Liberties,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 2:19 p.m., in 
Room 2141, Rayburn House Office Building, the Honorable Jerrold 
Nadler (Chairman of the Subcommittee) presiding.
    Present: Representatives Nadler, Wasserman Schultz, 
Ellison, Conyers, Scott, Watt, Cohen, Franks, Pence, Issa, and 
    Staff present: David Lachmann, Staff Director; Keenan 
Keller, Counsel; Kanya Bennett, Counsel; Burton Wides, Counsel; 
Heather Sawyer, Counsel; Susana Gutierrez, Professional Staff 
Member; and Paul Taylor, Minority Counsel.
    Mr. Nadler. Good afternoon. Today's hearing will examine 
the constitutional limitations on domestic surveillance.
    The Chair recognizes himself for 5 minutes for an opening 
    Today the Subcommittee on the Constitution, Civil Rights 
and Civil Liberties begins a series of hearings entitled, ``The 
Constitution in Crisis: The State of Civil Liberties in 
    Through these hearings, the Subcommittee will examine the 
Bush administration's policies, actions and programs that I 
believe threaten America's fundamental constitutional rights 
and civil liberties, and also we will hear proposals for 
potential legislative remedies.
    Today's hearing specifically looks at one of the 
foundations of our fundamental liberties: the constitutional 
and statutory restrictions on the Government's ability to spy 
on people. Both the fourth amendment and the Foreign 
Intelligence Surveillance Act were responses to abuses by 
governments that thought they were above the law. The right of 
the people to be secure in their persons, houses, papers and 
effects against unreasonable searches and seizures, as the 
fourth amendment puts it, is a core limitation on the 
Government that protects each of us.
    The framers of the Constitution understood this, and 
despite periodic lapses, so have most of our Nation's leaders. 
Congress enacted FISA, the Foreign Intelligence Surveillance 
Act, in 1978, following the Church Committee's report on 
surveillance abuses in the 1960's and 1970's.
    The FISA reflects timeless understanding that the conduct 
of foreign intelligence activities is fundamentally different 
from domestic surveillance. It nonetheless also reflects one of 
our Nation's founding principles that power, especially the 
power to invade people's privacy, must never be exercised 
    We rejected monarchy in this country more than 200 years 
ago. That means that no President may become a law unto him-or 
herself, even aided by a Vice President. As with every part of 
Government, there must always be checks and balances. This 
President appears to have forgotten that fact. Not only has he 
asserted the right to violate the FISA Act, to go around the 
FISA court and the Wiretap Act, but he has concededly actually 
done so.
    Even more disturbing, he does not believe that in this and 
in other things he is accountable to the Congress, the courts 
or anyone else. This Committee created the FISA statute and the 
FISA court, yet the President believes this Committee and its 
Members are not entitled to know what he and that court are 
doing. The President also believes we are not entitled to know 
what he is doing or has been doing outside the confines of the 
FISA statute.
    Now we are told, as we have been in the past, that the 
President needs changes in the FISA statute. Why he needs 
changes in the FISA statute when he asserts the right to 
violate it as his whim, I don't know. In any event, we have no 
way to evaluate his claim of necessity because he has also 
taken the position that we have no right to know what legal 
limits he has been observing in his conduct of surveillance or 
how he came to the legal rationale for those limits, if any.
    We have also been told that the President may at anytime 
resume warrantless surveillance, so past practices bear 
directly on possible future actions. Many have begun to 
conclude that the shroud of secrecy thrown over these 
activities has less to do with protecting us from terrorism and 
more to do with protecting the Administration from having its 
law-breaking exposed. The FISA statute is a criminal statute, 
and surveillance conducted in the name of Government without 
legal authorization is a crime.
    It is my fervent hope that no crime has been committed 
here, but the more secretive this Administration is, the more 
concerned I and many other Americans become that they are 
covering up crimes that they are committing in our name. I will 
not ask Mr. Bradbury to discuss the operational aspects of any 
of these programs. No one wants to expose sources and methods 
in a public forum, but I do expect honest and forthright 
answers concerning the legal justifications for the 
Administration's actions.
    I want to welcome all of our witnesses and thank them for 
agreeing to appear before the Subcommittee today. I look 
forward to your testimony.
    Mr. Issa. Mr. Chairman, parliamentary inquiry?
    Mr. Nadler. Would the gentleman state his parliamentary 
    Mr. Issa. Isn't it against the House Rules to allege a 
misconduct or illegal act of the President? And isn't that 
grounds to have words taken down? And isn't it inappropriate 
under House Rules and this Committee's rules to make 
allegations of criminal conduct of the President or the 
Administration without that being part of an actual 
    Mr. Nadler. The answer is, first of all, I don't know if it 
is against the rules, but in any event, no one has made any 
allegations of criminal actions. I have said that many 
Americans, myself included, believe that criminal actions have 
occurred, but that is not an allegation. It is a statement that 
I believe that, and I hope it is not correct. That is what I 
    Mr. Issa. So you don't know it to be true, but you simply 
believe it. You have no evidence of that, Mr. Chairman. Is that 
    Mr. Nadler. I think there is evidence. Whether the evidence 
is sufficient, I don't know, and that is one of the reasons we 
are having this hearing, to get the facts.
    Mr. Issa. Thank you, Mr. Chairman.
    Mr. Nadler. I would now recognize our distinguished Ranking 
minority Member, the gentleman from Arizona, Mr. Franks, for 
his opening statement.
    Mr. Franks. Thank you, Mr. Chairman.
    And I thank all of the panelists here for being here with 
    Mr. Chairman, in 1968 when Congress enacted the first 
Federal wiretapping statute, it included in the legislation an 
explicit statement that, ``nothing in this chapter shall limit 
the constitutional power of the President to take such measures 
as he deems necessary to protect the Nation against actual or 
potential attack, or to obtain foreign intelligence information 
deemed necessary to the security of the United States.''
    Justice Holmes wrote for a unanimous Supreme Court in 1909 
that, ``when it comes to a decision by the head of the state 
upon a matter involving its life, public danger warrants a 
substitution of executive process for judicial process.''
    Perhaps one of the most essential functions of the 
President's authority over foreign affairs and national defense 
is the collection of foreign intelligence. The President's 
foreign affairs powers are not exercises in criminal 
prosecution to secure evidence for prosecuting terrorists in 
eventual court proceedings. Rather, it is a wartime program of 
a military nature that requires speed and agility.
    Critics of the NSA's Terrorist Surveillance Program are 
fond of quoting Justice Jackson's concurring opinion in the 
Steel Seizure case, in which he wrote that when the President 
acts in defiance of ``the expressed or implied will of 
Congress, his power is at its lowest ebb.''
    But the NSA program does not violate the will of Congress, 
and the same Justice Robert Jackson also wrote for a majority 
of the Supreme Court, ``the President, both as commander-in-
chief and as the Nation's organ of foreign affairs has 
available intelligence services whose reports are not and ought 
not to be published to the world. It would be intolerable that 
courts, without the relevant information, should review and 
perhaps nullify actions of the executive taken on information 
properly held secret.''
    The same Justice Jackson, as attorney general in the run-up 
to World War II, carried out warrantless electronic 
surveillance within the United States at the direction of 
President Franklin D. Roosevelt. More than 20 years after World 
War II, in Katz v. United States, the Supreme Court held that 
domestic wiretaps generally require a warrant and probable 
cause, but the Supreme Court in the same Katz decision 
expressly conceded the existence of inherent presidential power 
to act to defend against foreign threats. The court took pains 
to make it clear it was not speaking to, ``a situation 
involving the national security,'' as to which, and I quote 
again, ``safeguards other than prior authorization by a 
magistrate'' would satisfy any fourth amendment concern.
    Critics have portrayed the NSA's Terrorist Surveillance 
Program as ``domestic spying,'' but that is not an accurate 
description of what we know at this classified program. As the 
Justice Department has explained, the President has authorized 
the NSA to intercept international communications into and out 
of the United States where there is a reasonable basis for 
believing that one of those persons is linked to al-Qaida or 
related terrorist organizations. The program only applies to 
communications where one party is located outside of the United 
    Both before and after the enactment of FISA, all Federal 
appellate courts that had directly confronted this issue have 
found that the President is constitutionally empowered under 
article II to conduct warrantless electronic surveillance when 
the President deems it necessary to protect the Nation from 
foreign threats. Although critics now claim that Congress, when 
it enacted the FISA statute, somehow diminished the President's 
authority under article II of the Constitution, the Foreign 
Intelligence Surveillance Court of Review, which is the most 
specialized tribunal as to FISA, has rejected that proposition.
    In 2002, the Court of Review stated that, ``all courts who 
have decided the issue have held that the President did have 
the 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.''
    Congress can always find, Mr. Chairman, a way to cut 
funding for a program, but Congress may not invade the 
President's central prerogatives. Those constitutional 
prerogatives were not changed when Congress enacted the FISA 
    As we face the jihadist threat in the world, the NSA 
surveillance program is one that is constitutional and vital to 
the safety and survival of this republic. Mr. Chairman, if we 
have empowered the President to hunt down and ferret out and 
kill terrorists, if as the President of the United States the 
Constitution empowers him to hunt down and ferret out and kill 
terrorists, surely he has the authority to listen to them on 
the telephone before he proceeds.
    With that, I look forward to hearing from our witnesses. 
Thank you.
    Mr. Nadler. Thank you.
    I now recognize the Chairman of the full Committee for a 
    Mr. Conyers. Thank you, Subcommittee Chairman Nadler. I 
commend you and the Ranking Member because today's hearing is 
an important first step that will enable us to learn what our 
Government is doing and whether their actions are grounded in 
    I do hope we can begin to obtain clearer answers to these 
questions. The reason that I think that we will is the nature 
of the membership of the panel this afternoon. Most of them I 
am familiar with, and I think this is an excellent, excellent 
    We have some questions. How was the Administration's 
program of warrantless surveillance allowed to take effect? And 
when will this Administration begin to provide this Committee 
with the information so that we can do our job? And then how 
can we consider the Administration's proposed legislative 
changes in the face of such a vacuum?
    I have much else to say, but I want to hear from the 
witnesses more than I want to tell you what I am asking. It 
will be included in my remarks, by unanimous consent.
    Mr. Issa. Mr. Chairman? I seek to make an opening statement 
    Mr. Nadler. [off-mike] witnesses, and we are going to have 
votes here soon. I would ask that other Members submit 
statements for the record.
    Mr. Issa. I would be glad to submit primarily for the 
record, but just make a short correcting opening statement.
    Mr. Nadler. Okay. The Chairman took 1\1/2\ minutes.
    Mr. Issa. Thank you. I respect the senior Member of this 
Committee a great deal and will do the same.
    Mr. Chairman, both yourself, as Subcommittee Chairman, and 
the full Committee Chairman in your opening remarks made 
certain claims that I think deserve to be put on the record as 
part of the opening.
    First of all, the people who should be on the witness stand 
today are Speaker Nancy Pelosi, Ms. Jane Harman, and Chairman 
Sil Reyes. These three people throughout their periods of time, 
beginning with the now-speaker of the House, had direct and 
individual knowledge before, during and in the entire period of 
President Bush's administration as to all efforts, not just 
those that went to FISA, but all efforts.
    In fact, this Administration, and I am a Member of the 
Select Intelligence Committee, and as I am sure the Chairman is 
very aware, we are fully briefed, and the Chair and Ranking 
Member of that Committee, particularly, are fully briefed as to 
everything, including the individual actions and executive 
orders of the President.
    So to say here today ``we want to know what was going on,'' 
I believe is less than fully genuine, unless we include the 
fact that we have Members, including the speaker of the House, 
who are fully informed and have that knowledge and have had it 
    In closing, I would say that, yes, Heather Wilson has been 
pushing for the last 4 years to open up and reform FISA, but 
that is in response to individuals saying if you don't have the 
authority, then let's get you the authority to do it under the 
court. That is, in fact, what we should be doing here today. I 
would hope that FISA reform is on the Chairman's agenda.
    I yield back.
    Mr. Nadler. I thank the gentleman.
    Let me simply observe that the gentleman as a Member of the 
Intelligence Committee may be briefed but this Committee is not 
    Frankly, I care less about the Intelligence Committee than 
I do about this Committee. This Committee has jurisdiction over 
FISA. This Committee has jurisdiction over the fourth 
amendment. And this Committee has been refused information by 
the Administration. We have been offered that the Chairman and 
the Ranking Member will be briefed. That is not sufficient. Mr. 
Conyers and I have written to the Administration to that 
    We believe that under the Constitution and the laws, this 
Committee must be fully briefed, because otherwise we can't 
    Mr. Issa. Mr. Chairman, I fully agree with you, but it is 
the Rules of the House that determine that.
    Mr. Nadler. The Rules of the House give us the 
jurisdiction, and therefore the right to be briefed.
    Mr. Issa. And the speaker of the House could make that 
change. Thank you, Mr. Chairman.
    Mr. Nadler. In the interests of proceeding to our 
witnesses, and mindful of our busy schedules, I would ask that 
other Members, if any, submit their statements for the record.
    Without objection, all Members will have 5 legislative days 
to submit opening statements for inclusion in the record, to 
revise and extend their remarks, and to include additional 
materials in the record.
    Without objection, the Chair will be authorized to declare 
a recess of the hearing, which we will do if there is a vote. 
We do expect a vote during the hearing. I will declare a recess 
when there are 5 minutes left on the 15-minute vote. There will 
be two votes probably, so that means we should resume in 10 
minutes or 12 minutes. I would ask that Members return as soon 
as they can cast their votes on that second vote.
    As we ask questions of our witnesses, the Chair will 
recognize Members in the order of their seniority on the 
Subcommittee, alternating between majority and minority, 
provided that the Member is present when his or her turn 
arrives. Members who are not present when their turn begins 
will be recognized after the other Members have had the 
opportunity to ask their questions. The Chair reserves the 
right to accommodate a Member who is unavoidably late or only 
able to be with us a short time.
    I will now introduce our witnesses.
    Our first witness is Steven Bradbury, the principal deputy 
assistant attorney general for the Office of Legal Counsel of 
the U.S. Department of Justice. He received his undergraduate 
degree from Stanford University in 1980, his law degree from 
Michigan in 1988. He served as clerk to Judge James L. Buckley 
from New York on the U.S. Court of Appeals for the D.C. Circuit 
from 1990 to 1991, and Justice Clarence Thomas on the Supreme 
Court of the United States from 1992 to 1993.
    Our next witness is Bruce Fein. In the Department of 
Justice, he served as associate deputy attorney general, 
assistant director in the Office of Legal Policy, and special 
assistant to the assistant attorney general for antitrust. He 
is also the former general counsel at the Federal 
Communications Commission. Mr. Fein graduated Phi Beta Kappa 
from the University of California at Berkeley in 1969, cum 
laude from Harvard Law School in 1972, and then clerked for 
United States District Judge Frank Kaufman in the District of 
    Lee Casey is a partner with the firm of Baker Hostetler. He 
served in the Justice Department in the Office of Legal Counsel 
from 1992 to 1993, and the Office of Legal Policy from 1986 to 
1990. From 1990 to 1992, Mr. Casey served as deputy associate 
general counsel at the U.S. Department of Energy. He earned his 
B.A. magna cum laude from Oakland University and his J.D. cum 
laude from the University of Michigan Law School. He clerked 
for Judge Alex Kozinski, then chief judge of the United States 
Claims Court.
    Jameel Jaffer is the director of the National Security 
Project for the American Civil Liberties Union Foundation, and 
has litigated several significant cases involving Government 
secrecy and national security. Mr. Jaffer is a graduate of 
Williams College, Cambridge University, and Harvard Law School. 
He was an editor of the Harvard Law Review from 1997 to 1999, 
and his writing has appeared in that journal as well as in the 
Journal of Transnational Law and Policy. After law school, Mr. 
Jaffer served as law clerk to the Honorable Amalya Kearse, 
United States Court of Appeals for the Second Circuit.
    Our final witness is Louis Fisher, specialist in 
constitutional law in the Library of Congress. Dr. Fisher 
worked for the Congressional Research Service from 1970 to 
2006. Dr. Fisher received his Ph.D. from the New School for 
Social Research in 1969. Among his many publications are 
``Constitutional Conflicts Between Congress and the 
President,'' and ``Presidential War Power,'' both quite 
relevant now.
    I am pleased to welcome all of you, and I thank you for 
your testimony. Your written statements will be made part of 
the record in its entirety. I would ask that you now summarize 
your testimony in 5 minutes or less each.
    To help you stay within that time limit, there is a timing 
light at your table in fact, too. When 1 minute remains, the 
light will switch from green to yellow, and then to red when 
the 5 minutes are up.
    Before we begin, I would ask to swear in our witnesses. If 
you could please stand and raise your right hand to take the 
    [Witnesses sworn.]
    Let the record reflect that each of the witnesses answered 
in the affirmative.
    We will begin with the first witness, Mr. Bradbury.


    Mr. Bradbury. Thank you, Chairman Nadler, Chairman Conyers, 
Ranking Member Franks and Members of the Subcommittee. It is an 
honor to appear before you today.
    In the wake of the attacks of 9/11, the President 
authorized the National Security Agency to establish an early 
warning system to detect and prevent further terrorist attacks 
against the United States. Under the Terrorist Surveillance 
Program, as described by the President, the NSA targeted for 
interception international communications into and out of the 
United States where there was probable cause to believe that at 
least one party to the communication was a member or agent of 
al-Qaida or an associated terrorist organization.
    Trained intelligence professionals made the decisions to 
target communications for interception subject to extensive 
reviews. Key Members of Congress were briefed on the program 
from its inception, and it was subsequently briefed to the full 
membership of both Intelligence Committees, which have 
conducted in-depth oversight of the program and all related 
intelligence activities.
    In the spring of 2005, well before the first press accounts 
disclosing the existence of the Terrorist Surveillance Program, 
the Administration began exploring options for seeking 
authorization for the program from the Foreign Intelligence 
Surveillance Court. On January 10, 2007, a judge of that court 
issued innovative and complex orders that ensure that the 
intelligence community can operate with the speed and agility 
necessary to protect the United States from al-Qaida.
    As a result of these orders, any electronic surveillance 
that was occurring as part of the Terrorist Surveillance 
Program is now subject to the approval of the FISA Court, and 
in light of that achievement, the President determined not to 
reauthorize the program.
    Nevertheless, I do wish to emphasize that the President 
definitely had the authority to authorize the Terrorist 
Surveillance Program under acts of Congress and under the 
Constitution. As explained in greater detail in the Department 
of Justice's January, 2006 white paper, a copy of which I ask 
to be placed in the record, article II of the Constitution 
charges the President with the primary duty to protect the 
Nation from armed attack, and the Constitution grants the 
President the full authority necessary to carry out that duty.
    Thus, it is well-established that the President has 
constitutional authority to direct the use of electronic 
surveillance for the purpose of collecting foreign intelligence 
information, and this conclusion is even stronger when the 
surveillance is undertaken to prevent further attacks against 
and within the United States, particularly in the context of an 
ongoing congressionally authorized armed conflict.
    Furthermore, the authorization for the use of military 
force of September 18, 2001, as construed by the Supreme Court 
in Hamdi v. Rumsfeld, and confirmed by history and tradition, 
authorized the executive branch to conduct such surveillance. 
This conclusion holds notwithstanding the exclusive means 
provision of FISA because the AUMF is a statute authorizing the 
conduct of electronic surveillance within the meaning of 
section 109(a)(1) of FISA.
    At a minimum, interpreting FISA to prohibit the President 
from authorizing foreign intelligence surveillance against al-
Qaida, a diffuse network of foreign terrorist enemies who have 
already successfully attacked the United States and have 
repeatedly vowed to do so again, would raise a serious question 
about the constitutionality of FISA. Statutes must be 
interpreted, if fairly possible, to avoid raising such 
constitutional concerns. FISA and the AUMF can fairly be read 
together to do just that.
    In any event, the Terrorist Surveillance Program is no 
longer operational. It is now imperative, in our view, that 
Congress and the executive branch cooperate to close critical 
gaps in our intelligence capabilities under FISA, while 
ensuring proper protections for the civil liberties of U.S. 
persons. FISA has been and continues to serve as the foundation 
for conducting electronic surveillance of foreign powers and 
their agents in the United States.
    The most serious problems with FISA stem from the fact that 
FISA defines the term ``electronic surveillance'' in a way that 
depends upon communications technology and practices as they 
existed in 1978. This technology-dependent approach has had 
dramatic, but unintended, consequences sweeping within the 
scope of FISA a wide range of communications intelligence 
activities that Congress originally intended to exclude. As a 
result, our intelligence capabilities have been hampered, and 
the intelligence community, the Department of Justice, and the 
FISA Court have had to expend precious resources on court 
supervision of intelligence activities that are directed at 
foreign persons overseas.
    To rectify these problems, the Administration has proposed 
comprehensive amendments to FISA that would make the statute 
technology-neutral, enhance the Government's authority to 
secure assistance from private entities in conducting lawful 
foreign intelligence surveillance activities, and streamline 
the application and approval process before the FISA Court. 
Privacy and security are not mutually exclusive. By modernizing 
FISA, we can both provide the intelligence community with an 
enduring, agile and efficient means of collecting critical 
foreign intelligence information, and strengthen the privacy 
protection for U.S. persons in the United States.
    Again, Mr. Chairman, thank you for the opportunity to 
appear today to discuss these important issues.
    [The prepared statement of Mr. Bradbury follows:]
                Prepared Statement of Steven G. Bradbury

    Mr. Nadler. Thank you very much.
    Mr. Fein?


    Mr. Fein. Mr. Chairman and Members of the Subcommittee, I 
would like to underscore what I think are the most alarming 
elements of the Terrorist Surveillance Program that ought to 
concern the Subcommittee and the American people.
    First, I would like to address the issue of secrecy. If it 
were not for a leak to the New York Times and publication in 
December of 2005, we probably would not have this hearing at 
present. There have also been indications from statements of 
the attorney general and others that there are secret 
surveillance programs that have been undisclosed to Congress as 
well. There is no ability to hold anyone accountable to a 
program that is unknown.
    Secrecy is the bane of democracy. As James Madison said, 
``Popular government without popular information is a tragedy, 
a farce, or both.'' That seems to me a critical element of this 
Committee's obligation is to know what in fact is transpiring, 
so an evaluation, certainly under the fourth amendment, can be 
made of its constitutionality.
    Secondly, the alarming statement of the Administration that 
FISA is unconstitutional, that article II trumps any ability of 
this Committee to place any restriction whatsoever on his 
ability to gather foreign intelligence is quite frightening. 
The Administration has been unable to dispute that their theory 
of article II would enable the President to break and enter 
homes, open mails, commit assassinations, do anything that he 
thinks is necessary to gather foreign intelligence no matter 
what restrictions this Committee has placed to honor and 
vindicate other constitutional values.
    It is true that the President has insisted he has not 
utilized his article II powers to the maximum extent possible, 
but he has certainly set a precedent that will lie around like 
a loaded weapon ready to be used the next time we have 9/11. I 
would like to recall a certain vignette from our own history. 
In 1765, the British Parliament enacted the Stamp Act, and that 
represented taxation without representation, and much furor and 
    Later on when the Stamp Act was repealed, the Parliament 
nevertheless asserted in the Declaratory Act that Parliament 
would retain the power, although it eliminated the tariffs, 
with authority to tax without representation, and that was what 
sparked the American Revolution. Simply the fact that we have a 
President who says, I will not use my article II authority to 
break and enter your home without a warrant, should not be much 
    I would like also to address the insinuation that FISA 
somehow crippled the President's ability to gather foreign 
intelligence, which is a canard of the highest order. Ninety-
nine percent of foreign intelligence gathered by the National 
Security Agency is outside of FISA because it targets an alien 
abroad. There is no reasonable expectation of privacy that 
Osama bin Laden has in a cave in Afghanistan that we will not 
spy on him. And FISA has no application in those circumstances.
    The kinds of issues that we are addressing with the 
Administration's Terrorist Surveillance Program is when an 
American citizen on American soil is targeted for surveillance. 
There, it said we still can't get a warrant. We have to utilize 
the President's judgment alone as to whether or not there ought 
to be surveillance.
    Now, there is, however, one fix in the FISA program that 
does deserve correction, and I think Mr. Bradbury alluded to 
that. There is a definition of ``electronic surveillance'' that 
includes any communication that makes a route through the 
domestic communications systems of the United States. That 
doesn't make any sense. The concern needs to be on the 
protection of privacy, reasonable expectations of privacy. Of 
course, that fix could have been made 5 years ago, right after 
9/11, by simply changing the definition of ``electronic 
surveillance'' to exclude communications that simply happen by 
happenstance to have a domestic routing to it.
    Let me go back to the reason why we ought to be concerned 
about violations of FISA. As Justice Louis Brandeis said, ``the 
right to be left alone is the most cherished right among 
civilized people.'' When the citizenry understands that the 
President, on his authority alone, can spy on anyone, can leak 
information out that is derogatory or otherwise to punish 
dissidents or opposition to the incumbent leaders, there 
becomes a feeling of cowardliness, intimidation that silences 
and reduces the robustness of dialogue that is important to a 
democratic discourse.
    Moreover, it makes people feel anxious about being 
unorthodox. It reduces spontaneity. It inhibits much of what we 
cherish in the United States of America, the signature that the 
purpose and chief aim of Government is to make us free. That 
exception requires important Government interests to be 
asserted and proven before we limit that freedom.
    That is why, in my judgment, it is so important that we be 
very scrupulous in recognizing any exceptions to the ability of 
Congress to regulate the gathering of foreign intelligence or 
other intelligence information, and insist certainly that the 
fourth amendment be honored.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Fein follows:]

                    Prepared Statement of Bruce Fein

Dear Mr. Chairman and Members of the Committee:
    I am pleased to share my views on the legality of the Bush 
administration's programs to gather foreign intelligence in 
contravention of the Foreign Intelligence Surveillance Act of 1978 
(FISA). My remarks will focus on the National Security Agency's (NSA) 
domestic warrantless surveillance program that targets American 
citizens on American soil on the President's say-so alone. But Delphic 
remarks by the Attorney General and other Bush administration officials 
indicate that other foreign intelligence spying programs are ongoing 
and generally unknown by either the Congress or the American people. 
But the Founding Fathers decried secret government. They recognized 
that sunshine is the best disinfectant; and, that secrecy breeds abuses 
and folly. Think of the three decades of illegalities by the Central 
Intelligence Agency and Federal Bureau of Investigation in opening mail 
and intercepting international telegraphs revealed by the Church 
Committee. Accordingly, Congress should insist that the respective 
intelligence committees of the House and Senate be fully and currently 
informed of every foreign intelligence collection program of the 
executive branch.


    The signature idea of the American Revolution was the belief that 
the chief end of the state was to make persons free to develop their 
faculties and to pursue virtue and wisdom, not to aggrandize government 
or to build empires. The Founding Fathers believed that liberty should 
be the rule and that government intervention the exception based on a 
serious showing of need to protect a strong collective interest. They 
believed that the right to be left alone was the most cherished by 
civilized people; and, that a generalized fear of government harassment 
or retaliation would dull political debate and deter dissent. 
Accordingly, the Fourth Amendment was enshrined to prohibit government 
from unreasonable searches and seizures. The primary safeguard was the 
customary requirement of a particularized judicial warrant for a search 
premised on probable cause to believe evidence of crime would be 
discovered. History had taught that an unchecked executive would search 
to cow, to harass, or to oppress political opponents. The Fourth 
Amendment safeguards the right to be left alone for its own sake and to 
promote robust political discourse, the lifeblood of a democratic 
    Illegal searches are alarming because they subvert a fundamental 
individual liberty and frighten the public into submissiveness or 
silence. An indefinite number of citizens today are hesitant to 
criticize the Bush administration because fearful of retaliation.


    I have attached an article I authored for the Presidential 
Quarterly that elaborates on the flagrant illegality of the NSA's 
domestic warrantless surveillance program that violates FISA; and, an 
article I authored for The Washington Times that examines former Deputy 
Attorney General James Comey's testimony before the Senate Judiciary 
Committee last week. The gist of the articles is as follows:

          FISA is clearly a constitutional exercise of the 
        congressional power to enact necessary and proper laws that 
        reasonably regulate the exercise of an executive power;

          FISA leaves the vast majority of the executive's 
        power to gather foreign intelligence undisturbed, and does not 
        aggrandize Congress at the expense of the executive;

          FISA was born of decades of spying abuses by an 
        unchecked executive to harass or embarrass political opponents. 
        It was not an exercise of congressional peevishness.

          The constitutional theory advanced by the Bush 
        administration to justify the NSA's warrantless spying program 
        equally crowns the President with authority to open mail, break 
        and enter homes, and kidnap for the purpose of interrogation on 
        his say-so alone.

          Mr. Comey did not fix the FISA problem with the NSA's 
        warrantless surveillance program after he threatened to resign 
        and President Bush informed him to do the right thing.

          Congress should enact a law that prohibits any 
        expenditure of the United States to gather foreign intelligence 
        except in conformity with FISA.

    Based on the public record, it also would seem appropriate for this 
Committee to investigate whether criminal violations of FISA have been 
committed by the Bush administration and to urge the Department of 
Justice to appoint a special prosecutor to examine the matter. There is 
reason to suspect that high level officials, including President Bush 
himself, have knowingly violated FISA and continue to do so through the 
NSA's domestic warrantless surveillance program. All of the legal 
arguments concocted by the Bush administration to defend the program 
have been facially preposterous.
    Attorney General Alberto Gonzales belatedly obtained a FISA warrant 
for the NSA's spying but its terms have not been shared with Congress 
generally. Without disclosure, it is impossible for Congress to assess 
whether the warrant complies with FISA or whether the statute should be 
amended. I would urge Congress to prohibit the expenditure of any 
monies of the United States to execute a FISA warrant whose provisions 
have been withheld from the its respective House and Senate 
intelligence and judiciary committees despite the issuance and service 
of proper subpoenas.


    If Congress leaves the Bush administration's illegal spying 
programs unrebuked, a precedent will have been established that will 
lie around like a loaded weapon ready for permanent use throughout the 
endless conflict with international terrorism. If Congress slumbers, 
free speech and association will be chilled; political dissent will be 
muffled; unorthodox or unconventional behavior will be discouraged or 
punished; and, the American people will become docile, a fatal weakness 
to democratic customs and institutions. If the constitutional oath 
means anything, it means that Members of Congress are obligated to 
check and to sanction clear and palpable executive branch abuses.


    Mr. Nadler. Thank you.
    Mr. Casey?


    Mr. Casey. Thank you, Mr. Chairman. I appreciate the 
opportunity to appear today to discuss the constitutional 
limitations on domestic surveillance.
    Ironically, the most controversial surveillance over the 
past several years has not been domestic at all, but rather the 
international surveillance involved in the NSA's Terrorist 
Surveillance Program. It is to the legal issues surrounding 
that program that I will address my remarks.
    I should make clear that I am speaking here on my own 
    Let me begin by stating that I believe President Bush was 
fully within his constitutional and statutory authority when he 
authorized the TSP. The President's critics have variously 
described this program as widespread, domestic and illegal. 
Based upon the published accounts, it is none of these things. 
Rather, it is a targeted program on the international 
communications of individuals engaged in an armed conflict with 
the United States and is fully consistent with FISA.
    In assessing the Administration's actions here, it is 
important to highlight how narrow is the actual dispute over 
the NSA program. Few of the President's critics claim that he 
should not have ordered the interception of al-Qaida's global 
communications or that he needed the FISA Court's permission to 
intercept al-Qaida communications abroad. It is only with 
respect to communications actually intercepted inside the 
United States or where the target is a United States person in 
the United States, that FISA is relevant at all to this 
national discussion.
    Since this program involves only international 
communications, where at least one party is an al-Qaida 
operative, it is not clear that any of these intercepts would 
properly fall within FISA's terms. This is not the pervasive 
dragnet of American domestic communications about which so many 
of the President's critics have fantasized.
    The Administration has properly refused to publicly 
articulate the full metes and bounds of the NSA program. Let us 
assume, however, that some of the intercepts are subject to 
FISA. As the Department of Justice correctly pointed out in its 
January 19, 2006, memorandum, FISA permits electronic 
surveillance without an order if it is otherwise authorized by 
statute. The NSA program was so authorized.
    The September 18, 2001, authorization for the use of 
military force permits the President to use all necessary and 
appropriate force against those responsible for September 11, 
``in order to prevent any future acts of international 
terrorism against the United States.'' The Supreme Court has 
already interpreted this grant to encompass all of the 
fundamental incidents of waging war. In Hamdi v. Rumsfeld, the 
court considered and rejected the argument, then being advanced 
with respect to the Non-Detention Act that the September 18 
authorization permitted only those types of force not otherwise 
specifically forbidden by statute.
    The monitoring of enemy communications, whether or not 
within the United States, is as much a fundamental and accepted 
incident to war as is the detention of captured enemy 
combatants. Indeed, it is only through the collection and 
exploitation of intelligence that the September 18th 
authorization can be successfully implemented.
    Even in the absence of that law, however, the TSP would 
fall within the President's inherent constitutional authority 
as chief executive and commander-in-chief. The U.S. Courts of 
Appeal that have considered the issue have upheld this 
authority. FISA's own Foreign Intelligence Surveillance Court 
of Review has acknowledged it, noting that FISA itself could 
not encroach upon it. And the Supreme Court has carved the area 
of foreign intelligence collection out of its fourth amendment 
warrant jurisprudence.
    But if FISA were construed to prohibit, without judicial 
approval, the President's decision to monitor enemy 
communications into and out of the United States in wartime, 
then the statute would be invalid. Wars cannot be fought 
without intelligence and requiring the President as commander-
in-chief to obtain an order to intercept enemy communications 
would be no less unconstitutional than would requiring judicial 
oversight of target selection. It need not and should not be so 
    Thank you.
    [The prepared statement of Mr. Casey follows:]

                   Prepared Statement of Lee A. Casey

    I appreciate the opportunity to appear today to discuss the 
``Constitutional Limitations on Domestic Surveillance.'' Ironically, 
the most controversial surveillance over the past several years has not 
been ``domestic'' at all, but rather the international surveillance 
involved in the NSA's Terrorist Surveillance Program (``TSP''), and it 
is to the legal issues surrounding that program that I will address my 
remarks. I should make clear that I am speaking here on my own behalf.
    Let me begin by stating that I believe President Bush was fully 
within his constitutional and statutory authority when he authorized 
the TSP, including his decision to permit the interception of al Qaeda 
communications into and out of the United States without first 
obtaining an order from the Foreign Intelligence Surveillance Act 
(``FISA'') Court.
    The President's critics have variously described the NSA program as 
``widespread,'' ``domestic,'' and ``illegal.'' It is none of these 
things. Rather, the program is limited, targeted on the international 
communications of individuals engaged in an armed conflict with the 
United States, and is fully consistent with FISA. First, in assessing 
the President's actions here, it is important to highlight how narrow 
is the actual dispute over the NSA's TSP. Few of the President's 
critics claim that he should not have ordered the NSA to monitor al 
Qaeda's communications on a global basis. Indeed, in the wake of the 
September 11, 2001 attacks, he would surely have been remiss in his 
duties had he not ordered this surveillance. Moreover, few of the 
President's critics have had the temerity to claim that he was required 
to obtain the FISA Court's permission to intercept and monitor al Qaeda 
communications outside of the United States.
    It is, in fact, only with respect to communications actually 
intercepted by the NSA within the United States, as opposed to by 
satellites or listening posts located abroad, or where the ``target'' 
of the intercept is an American citizen or resident alien, that FISA is 
relevant at all to this national discussion. Despite the rhetoric, FISA 
is not a comprehensive statute that requires the President to obtain a 
``warrant'' to collect foreign intelligence. It is a narrow law that 
requires an ``order'' be obtained for ``electronic surveillance'' in 
only four circumstances:

        (1)  Where a United States person in the United States is the 
        target of, rather than incidental to, the surveillance;

        (2)  Where the acquisition of the intelligence will be 
        accomplished by devices located within the United States;

        (3)  Where the sender and all recipients of the relevant 
        communication are present in the United States; or

        (4)  Where surveillance devices are used within the United 
        States to collect communications other than wire or radio 

    That being the case, based upon how the President, Attorney 
General, and General Hayden (former head of NSA), have described the 
NSA program, it is not at all clear that any of the intercepts would 
properly fall within FISA in the first instance. In that regard, the 
NSA program appears to have been:

        (1)  targeted at al Qaeda operatives and their associates--in 
        other words, communications are intercepted and monitored based 
        on an al Qaeda association; and

        (2)  directed only at international communications with an al 
        Qaeda operative or associate on one end: As General Hayden made 
        clear, ``one end of any call targeted under this program is 
        always outside the United States;'' and

        (3)  the purpose is not to collect evidence for a criminal 
        prosecution, but to identify and thwart additional attacks 
        against the United States.

    Whatever this program is, it is not the pervasive dragnet of 
American domestic communications about which so many of the 
Administration's critics have fantasized. Moreover, unless some of 
these communications are intercepted in the United States, or the 
targeted al Qaeda operative happens also to be a ``United States 
person,'' FISA does not apply by its own terms.
    The Administration has properly refused to publicly articulate the 
full metes and bounds of the NSA program. For the sake of argument, 
however, let us assume that some of the communications intercepted as 
part of this program are intercepted within the United States, or that 
some of the targeted al Qaeda operatives are ``United States persons'' 
within FISA's meaning. (This would include American citizens, permanent 
resident aliens, and U.S. corporations. 50 U.S.C. Sec. 1801(i)). The 
program remains lawful and constitutional.
    Indeed, the TSP clearly falls within the President's inherent 
constitutional authority, under Article II, as Chief Executive and 
Commander-in-Chief. This authority has been consistently recognized and 
respected, with the exception of one District Court decision now on 
appeal, by the United States' courts. Indeed, the United States Foreign 
Intelligence Surveillance Court of Review, established under FISA, has 
itself acknowledged this authority. In In re Sealed Case No. 02-001, 
where the Court of Review reversed an effort by the FISA trial court to 
reimpose a kind of ``wall'' between intelligence gathering and law 
enforcement, despite Congress' amendment of FISA as part of the Patriot 
Act, the Court also noted that: ``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.'' 310 F.3d 717, 742 (FISA Ct. of Review 2002). It went on 
to state that ``[w]e take for granted that the President does have that 
authority [to conduct warrantless surveillance for foreign intelligence 
purposes] and, assuming that is so, FISA could not encroach on the 
President's constitutional power.'' Id.
    Significantly, in this connection, the FISA Court of Review was 
discussing another important precedent, United States v. Truong, 629 
F.2d 908 (4th Cir. 1980). This is, in fact, the leading case 
recognizing the President's inherent power, as a function of his role 
in formulating and implementing U.S. foreign policy, to order 
warrantless electronic surveillance for foreign intelligence purposes. 
This power exists even when the surveillance is in the United States 
and directed at an American citizen. In Truong, the Carter 
Administration authorized warrantless wire-tapping of a resident alien 
and an American citizen, in the United States, in a successful effort 
to identify the source of classified documents being illegally 
transmitted to foreign government representatives.
    The defendants challenged their espionage convictions by arguing 
that this surveillance violated the Fourth Amendment guarantee against 
unreasonable searches and seizures and the attendant warrant 
requirement. In response, the Carter Administration stated without 
equivocation that: ``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.'' Truong, 629 F.2d at 912. The United 
States Court of Appeals for the Fourth Circuit agreed, and ruled that 
the warrantless surveillance ordered in this case had been lawful. The 
court reasoned as follows:

          For several reasons, the needs of the executive are so 
        compelling in the area of foreign intelligence, unlike the area 
        of domestic security, that a uniform warrant requirement would, 
        following [United States v. United Stated District Court 
        (Keith), 407 U.S. 297 (1972)], ``unduly frustrate'' the 
        President in carrying out his foreign affairs responsibilities. 
        First of all, attempts to counter foreign threats to the 
        national security require the utmost stealth, speed, and 
        secrecy. A warrant requirement would add a procedural hurdle 
        that would reduce the flexibility of executive foreign 
        intelligence initiatives, in some cases delay executive 
        response to foreign intelligence threats, and increase the 
        chance of leaks regarding sensitive executive operations. 
        [Citations omitted.]
          More importantly, the executive possesses unparalleled 
        expertise to make the decision whether to conduct foreign 
        intelligence surveillance, whereas the judiciary is largely 
        inexperienced in making the delicate and complex decisions that 
        lie behind foreign intelligence surveillance. . . .
          Perhaps most crucially, the executive branch not only has 
        superior expertise in the area of foreign intelligence, it is 
        also constitutionally designated as the preeminent authority in 
        foreign affairs. [Citations omitted]. The President and his 
        deputies are charged by the Constitution with the conduct of 
        the foreign policy of the United States in times of war and 
        peace. [Citations omitted.] Just as the separation of powers in 
        Keith forced the executive to recognize a judicial role when 
        the President conducts domestic surveillance, [citations 
        omitted] so the separation of powers requires us to acknowledge 
        the principal responsibility of the President for foreign 
        affairs and concomitantly for foreign intelligence 

Truong, 629 F.2d at 913-14.
    FISA was, of course, enacted shortly before the decision in Truong 
was announced, and the court did not, therefore, address the law's 
impact as part of its holding. Neither has the Supreme Court considered 
whether, or to what extent, FISA may have trenched upon the President's 
constitutional authority. This, however, is the question we are left 
with. President Bush did not invent this authority, as some critics 
have implied, nor has he asserted more power than his predecessors have 
claimed. As explained by the Justice Department in its January 19, 
2006, Memorandum (pp. 7-8, 16-17), various forms of warrantless 
electronic surveillance have been utilized since the Civil War. 
Presidents Franklin D. Roosevelt and Harry S. Truman authorized, 
without judicial participation, the use of wiretaps as a means of 
obtaining intelligence against the United States' enemies, as did 
President Woodrow Wilson. See Exec. Order No. 2604 (Apr. 28, 1917). 
Both the Carter and Clinton Administrations also affirmed the 
President's inherent constitutional authority to conduct warrantless 
surveillance and/or searches for foreign intelligence purposes. See 
January 19 DOJ Memorandum, p. 8.
    As to the question whether Congress exceeded its authority in 
enacting FISA, the answer depends very much on how that law is 
interpreted and applied. The interplay between the Executive and 
Congress is, in the best of circumstances, complex and shifting. As a 
general proposition, Congress is entitled to legislate on any number of 
matters that may impact how the President discharges his constitutional 
role. The test is whether Congress has ``impede[d] the President's 
ability to perform his constitutional duty.'' Morrison v. Olson, 487 
U.S. 654, 691, 695-96 (1988) (appointment of independent counsel by 
special judicial body, and imposition of a removal for cause 
requirement, did not impermissibly impede the President's authority, 
where there were a number of other means by which the officials 
activities could be supervised). If FISA were construed to prohibit the 
President, without judicial approval, from monitoring enemy 
communications into and out of the United States during wartime, then 
the statute could fairly be said to impede the President's exercise of 
his constitutional authority and would, to that extent, be invalid. It 
need not, and should not, be so interpreted.
    In this connection, it should also be noted that the Executive 
Branch secures one very valuable advantage when it does obtain an order 
pursuant to FISA's provisions--the evidence collected pursuant to such 
an order will almost certainly be admissible in a later criminal 
proceeding. See, e.g., United States v. Squillacote, 221 F.3d 542, 553-
54 (4th Cir. 2000), cert. denied, 532 U.S. 971 (2001). At the same 
time, hard choices are often necessary during an armed conflict. If the 
President determines that the process established in FISA is 
insufficiently protective of national security, as he has done with 
respect to the NSA program, and he is prepared to risk having 
intelligence information secured without a FISA order later ruled 
inadmissible in court (as the Truong Court suggested was a possibility 
in certain circumstances, 629 F.2d at 915), then he is fully entitled 
to rely on his constitutional authority alone. To the extent that 
Congress sought to forbid such reliance, and to foreclose the 
President's right to order the interception, without a FISA order, of 
enemy communications in wartime, it exceeded its constitutional 
    In any case, assessment of the TSP's legality need not go so far. 
As the Department of Justice correctly pointed out in its memorandum of 
January 19, 2006, ``Legal Authorities Supporting the Activities of the 
National Security Agency Described by the President,'' FISA itself 
provides that electronic surveillance otherwise subject to the statute 
can lawfully be accomplished without a FISA order if it is ``authorized 
by statute.'' 50 U.S.C. Sec. 1809(a)(1). The surveillance of al Qaeda, 
in the United States or anywhere else in the world, has been authorized 
by statute--in the form of the September 18, 2001 Authorization for the 
Use of Military Force. 50 U.S.C. Sec. 1541 note.
    That statute specifically authorized 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 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.'' (Emphasis added).
    This is a broad grant. There are, of course, many who argue that 
the September 18 Authorization was not broad enough to permit the NSA 
program because it did not specifically reference electronic 
surveillance or FISA. Significantly, however, an identical argument was 
advanced with respect to the capture and detention of certain al Qaeda 
and Taliban operatives under the ``Non-detention Act,'' 18 U.S.C. 
Sec. 4001(a). That law forbids the detention of American citizens save 
as authorized by act of Congress and specifically provides that: ``[n]o 
citizen shall be imprisoned or otherwise detained by the United States 
except pursuant to an Act of Congress.'' It should go without saying 
that the Non-detention Act, and the principle it seeks to implement, 
are as important to our system of ordered liberty as is FISA.
    Nevertheless, in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), the 
Supreme Court correctly interpreted the September 18, 2001 
Authorization for the Use of Military Force to authorize the President 
to detain American citizens, consistent with 18 U.S.C. Sec. 4001(a), 
because that authorization must be interpreted to permit all of the 
normal incidents of war. As explained by Justice O'Connor in her 
plurality opinion (which commanded a majority of 5 votes on this 
point), the detention of captured enemies ``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.'' 542 
U.S. at 518.
    Surely, the monitoring of enemy communications, whether into or out 
of the United States, is also such a ``fundamental and accepted'' 
incident to war. That is how wars are fought; that is how wars have 
always been fought; and it is especially how this war must be fought. 
Only through the collection and exploitation of intelligence can the 
purpose of Congress' September 18, 2001, Authorization--``to prevent 
any future acts of international terrorism against the United 
States''--be achieved. For his part, the President has not claimed the 
right to surveil the American population in general, but only enemy 
agents as they communicate into and out of the United States.
    This type of intelligence gathering has been a critical part of 
warfare since the first man with a spear crept to the edge of his 
enemy's camp listening for voices in the night. As George Washington 
explained to an American agent during the War for Independence, the 
``necessity of procuring good intelligence, is apparent and need not be 
further urged. All that remains for me to add is, that you keep the 
whole matter as secret as possible. For upon secrecy, success depends 
in most Enterprizes of the kind, and for want of it, they are generally 
defeated.'' CIA v. Sims, 471 U.S. 172 n.16 (1984) (quoting letter from 
George Washington to Colonel Elias Dayton, July 26, 1777). In ordering 
this surveillance the President acted fully in accordance with an 
express congressional authorization, at the very zenith of his powers 
as outlined in Justice Jackson's concurrence in Youngstown Sheet & Tube 
Co. v. Sawyer, 343 U.S. 579 (1952).
    For those who claim that the September 18, 2001, Authorization 
cannot be read to have amended FISA; it did not. FISA remains intact, 
just as the Non-detention Act remains intact. The September 18, 2001 
Authorization works with these laws, not against them. Of course, had 
Congress formally declared war, under FISA section 111 (50 U.S.C. 
Sec. 1811), the entire statute would have been suspended for 15 days. 
During that period, the President would have been free to target anyone 
and everyone's electronic communications, not merely those of known al 
Qaeda operatives. This program is much more limited.
    Obviously, there are those who disagree with this analysis. There 
are few questions of either constitutional or statutory interpretation 
that cannot be debated, and debated in good faith. Arguing about what 
the Constitution's Framers or Congress meant on any particular occasion 
is how many of us in the legal profession earn our livings. However, 
claims that the President or his Administration have acted unlawfully, 
or beyond his constitutional authority, are groundless.
    This is especially the case in view of the fact that there has been 
no suggestion that the President has misused or abused any of the 
information obtained from the NSA program. By all accounts, it has been 
utilized in carrying out Congress' instructions in the September 18, 
2001, Authorization--``to prevent any future acts of international 
terrorism against the United States.'' Individual Senators, and members 
of this Committee of both parties, may well honestly believe that this 
law did not authorize the President to use any incident of force that 
is otherwise prohibited by statute, and their opinions must be 
respected. However, the Supreme Court disagreed only two years ago in 
the Hamdi case. That case supports the President's position with 
respect to the NSA program.
    For a more complete statement of my views, please see Andrew C. 
McCarthy, David B. Rivkin, Jr. & Lee A. Casey, NSA's Warrantless 
Surveillance Program: Legal, Constitutional and Necessary, which is 
available at: http://www.fed-soc.org/doclib/
    Thank you, and I would be pleased to answer any questions the 
Committee may have.

    Mr. Nadler. Thank you.
    Mr. Jaffer?


    Mr. Jaffer. Thank you, Chairman Nadler.
    Chairman Nadler, Ranking Member Franks, thank you for 
inviting me to testify today about surveillance conducted by 
the NSA, and authorized by the President in violation of 
statutory and constitutional law.
    The ACLU is grateful for your efforts to determine the 
scope of the NSA's unlawful activities and for your efforts to 
ensure that statutory and constitutional limits on the 
President's power are being honored.
    I testify today as director of the ACLU's National Security 
Project and as counsel to the plaintiffs in ACLU v. NSA. In 
early 2006, soon after the NSA's warrantless surveillance 
activities became public, the ACLU sued on behalf of a 
coalition of journalists, scholars, defense attorneys and 
national nonprofit organizations to challenge the NSA's 
warrantless surveillance activities inside the Nation's 
    The lawsuit alleges that the NSA's activities violate FISA, 
which requires that intelligence surveillance inside the U.S. 
be conducted with judicial oversight. The suit also alleges 
that the NSA's activities violate the constitutional principle 
of separation of powers, as well as the First and fourth 
amendments. In August of 2006, the U.S. District Court for the 
Eastern District of Michigan agreed with us on all counts, but 
the Government has appealed this ruling to the Sixth Circuit. 
The appeal has now been argued and we are awaiting the court's 
    Because my time before the Subcommittee is limited, I would 
like to summarize my main concerns about the NSA's activities 
very briefly. I would also like to suggest next steps for this 
Subcommittee and the Congress.
    The first thing I would like to stress is that the NSA's 
warrantless surveillance activities are illegal. With narrow 
exceptions, FISA prohibits the executive branch from 
intercepting the contents of emails and telephone calls without 
first obtaining judicial authorization for the surveillance. 
This prohibition applies whenever the communications are 
acquired inside the U.S. It also applies whenever the person 
targeted by the surveillance is a U.S. citizen or resident. To 
intentionally violate FISA is a crime.
    In its legal papers and in public statements, the 
Administration has contended that Congress implicitly amended 
FISA and authorized the NSA's warrantless surveillance 
activities when it passed the AUMF in 2001. This is a specious 
argument. The AUMF makes no mention of domestic surveillance 
and Senator Daschle has said that in drafting the AUMF, 
Congress rejected proposals that would have expanded the 
President's authority to act within the U.S.
    The Administration has also argued that the President 
possesses the authority as commander-in-chief to disregard FISA 
and the fourth amendment's warrant requirements, but this 
argument--the argument that the President is above the law--is 
one that the Supreme Court has rejected repeatedly and 
forcefully. Under the Constitution, the President and Congress 
share authority in the fields of war and foreign affairs. While 
the President surely has authority to act in these fields, 
Congress has the power to regulate the President's authority, 
and this is precisely what Congress did when it enacted FISA.
    In violating FISA, the President broke the law. To the 
extent his actions were intentional, and they appear to have 
been, his actions were criminal. With this in mind, it is 
absolutely imperative that this Congress demand transparency 
about the Administration's surveillance activities, both past 
and ongoing. The ACLU is concerned that though the NSA 
surveillance activities were disclosed more than a year ago, 
Congress has not issued subpoenas demanding that the 
Administration explain the nature and scope of its activities.
    It has not issued subpoenas demanding that the 
Administration disclose the legal opinions on which it has 
relied. It has not issued subpoenas to the telecommuncations 
corporations that facilitated the Administration's unlawful 
activities. And it has not issued subpoenas to determine how 
the fruits of unlawful surveillance have been used. Congress 
needs this information and it should demand that this 
information be disclosed immediately.
    Congress should also demand information about the 
Administration's ongoing surveillance activities. The President 
has expressly claimed the authority to disregard FISA in the 
future. For all we know, he may be disregarding it now. 
Congress should find out.
    Congress should also demand transparency about any 
surveillance activities that are being conducted on the 
authority of orders issued by a FISA judge in January of this 
year. The Administration's public statements about those orders 
suggest that the orders may be programmatic and categorical, 
rather than individualized as FISA and the fourth amendment 
    Congress' obligation, of course, is not simply to examine 
the Administration's unlawful activities, but to ensure that 
those activities do not continue. To this end, Congress should 
use this appropriations and authorization cycle to prohibit the 
use of funds to engage in electronic surveillance that does not 
comply with FISA or that is conducted on the basis of 
programmatic orders, rather than individualized and 
particularized warrants.
    Congress has a critical role to play in ensuring that the 
rights of innocent U.S. citizens and residents are protected 
now and in the future.
    Thank you again for holding this hearing. I look forward to 
your questions.
    [The prepared statement of Mr. Jaffer follows:]

                  Prepared Statement of Jameel Jaffer

    Mr. Nadler. Thank you.
    And Mr. Fisher?


    Mr. Fisher. Thank you, Mr. Chairman. I was encouraged at 
the start of Chairman Conyers saying that this might be the 
first step in exploring issues. There are so many questions 
that we know very little about, and I hope to see a succession 
of hearings.
    My statement starts with a little bit of the history back 
in the 1960's and 1970's where the Administration was 
conducting domestic surveillance, and they were conducting it 
under the same grounds that we talk about today, under the 
inherent power of the President to take certain actions to 
protect the American people.
    That theory of inherent power was litigated in the Keith 
case, and both at the District Court level and the Sixth Court 
level and the Supreme Court level, the court said you don't 
have that power; you are talking about a power that King George 
III had, and that is why we had a Declaration of Independence, 
and that is why we had a war of independence, and that is why 
we have the fourth amendment. All of this led to the FISA 
statute in 1978, including a very important judicial check.
    The Administration defends the Terrorist Surveillance 
Program on statutory grounds and constitutional grounds. The 
statutory ground, namely the Authorization of Use of Military 
Force, I don't think was ever persuasive. If Congress ever 
wanted to change FISA or amend it, it does it the way it 
normally does. It has changed FISA many times. You bring it up. 
You know what you are talking about. You don't change a law by 
implication, which is what the argument would be with the AUMF.
    As far as the constitutional argument, I would just take 
one sentence from the January 2006 OLC report, where it said 
that the policies of the NSA program, ``are supported by the 
President's well-recognized inherent constitutional authority 
as commander-in-chief and the sole organ for the nation in 
foreign affairs.''
    Well-recognized? Maybe it is well-recognized among certain 
attorneys in the Administration, but it is not well-recognized 
in the courts. It is not well-recognized in Congress. It is not 
well-recognized in the academic community.
    Inherent? We are all familiar with express powers and 
implied powers. Those are drawn from the Constitution. The 
danger with inherent powers is that you don't know where they 
are being drawn from. Inherent power is an invitation to act 
outside the law. The claim of inherent powers for the President 
weakens Congress, weakens the rule of law, weakens democratic 
government, weakens the system of checks and balances.
    Commander-in-chief? You can't take three words from article 
II and pretend that that is an argument. It is just three 
words, and you have to understand that commander-in-chief in 
the context of article I, what that gives to Congress, and 
other provisions in the Constitution, including the first and 
fourth amendments.
    Sole organ? I hope whenever you see that word ``sole 
organ'' in legal analysis you will be suspect about the 
credibility and honesty of the analysis, because it comes from 
a speech that John Marshall gave when he was a Member of the 
House in 1800, and nothing in John Marshall's statement ever, 
ever implied anything to do with plenary, exclusive, 
independent or extra-constitutional presidential powers. It is 
a misuse of that statement and it is a misuse of where it was 
later distorted in the 1936 Curtiss-Wright decision.
    I talk about briefings and consultations. They are very 
constructive if you are getting briefed about a program that is 
legal. If you are getting briefed about a program that is 
illegal, you are just getting briefed about an illegal program. 
The briefings do not help that.
    The ``gang of eight'' I think was the wrong procedure. The 
``gang of eight'' is for covert actions. The terrorist 
surveillance program is not a covert action. What happens when 
Members of Congress are briefed and you tell the Member that we 
are briefing you, but you cannot talk to anyone else? You 
cannot talk with staff who have clearances, et cetera. The 
executive branch doesn't control Congress. You control 
yourself. You have to protect your own powers and prerogatives 
and institutions.
    I think the same principle would apply to the FISA Court. I 
think the fact that you would brief two chief judges in a row, 
I think was not a good procedure. I think the court knows that 
Congress by statute provided for a judicial check, and you 
cannot brief one judge. I think all 11 members of the court 
should have been briefed, and then they decide what to do. And 
lastly on briefings, I think the briefings should apply to the 
Judiciary Committees. You have a special Committee jurisdiction 
to protect the integrity of FISA.
    And last, I just ended on what does ``legal'' means today 
because if you hear the Administration say that this is legal, 
this is authorized, this has been reauthorized, they are not 
talking about law created by Congress. They are talking about 
law created by the executive branch. Up to now, we have said 
that law is made by parliamentary deliberations and that the 
President is under the law, not above the law. So we have a 
different system and I think one that deserves that very close 
scrutiny by Congress.
    Thank you.
    [The prepared statement of Mr. Fisher follows:]

                   Prepared Statement of Louis Fisher

    Mr. Nadler. Thank you.
    I recognize myself for 5 minutes.
    Mr. Bradbury?
    Mr. Bradbury. Yes, sir.
    Mr. Nadler. [off-mike] 15-day opening window to act during 
times of war. Was the TSP or any other surveillance program 
outside the scope of FISA in place prior to the authorization 
for the use of military force?
    Mr. Bradbury. No.
    Mr. Nadler. Okay.
    Mr. Bradbury. It began in October of 2001.
    Mr. Nadler. And when was the legal opinion for this 
authority issued?
    Mr. Bradbury. The President was advised that it was lawful 
before the program began.
    Mr. Nadler. After the authorization, at what point after 
the expiration of the 15 days did the President revert to his 
authority under FISA?
    Mr. Bradbury. I am not sure I understand the question. The 
15 days, Mr. Nadler, does not apply. It applies only when there 
is a declaration of war. Section 111 of FISA----
    Mr. Nadler. So you are not explaining the 15-day----
    Mr. Bradbury. That is correct. I would say, and I will try 
to be brief, that the 15-day provision in section 111 of FISA 
in our view does not say you only get 15 days----
    Mr. Nadler. You don't have to get a warrant for 15 days.
    Mr. Bradbury. But it does not purport to mean that Congress 
made a judgment that you only need 15 days of authority during 
time of war to commence surveillance.
    Mr. Nadler. No, the expectation when that was passed was 
that you have 15 days to go to Congress if you thought you 
needed more authority to act without warrants.
    Mr. Bradbury. And in our view, the authorization for the 
use of military force was an act of Congress that did give that 
    Mr. Nadler. Which gives the President limitless authority?
    Mr. Bradbury. Not limitless.
    Mr. Nadler. But authority to act without warrants?
    Mr. Bradbury. All necessary and appropriate authority to 
repel the threat, and to prevent attack.
    Mr. Nadler. And that means that as long as we are fighting 
the war on terror, the President can have surveillance of 
Americans he believes to be in communication with al-Qaida in 
the United States without getting warrants from a FISA Court?
    Mr. Bradbury. It does not mean that.
    Mr. Nadler. What does it mean?
    Mr. Bradbury. The authorization is still in effect and does 
still give authority to the President, but anything the 
President does has to be consistent with the Constitution; has 
to be consistent with----
    Mr. Nadler. But under your interpretation of the 
Constitution's inherent article II powers, he can wiretap 
people without a warrant from the FISA Court.
    Mr. Bradbury. It all depends on the circumstances at a 
given time. The fourth amendment has very real application 
here. Any surveillance has to be reasonable under the fourth 
amendment. That takes into account all the conditions and 
circumstances at the time, and the nature of the surveillance 
that you are talking about.
    For example, Mr. Chairman, if the President wanted to 
reauthorize the Terrorist Surveillance Program today, my view 
is it would require a new legal analysis, a new judgment based 
on all the current circumstances.
    Mr. Nadler. Okay. And he has done that 45 times?
    Mr. Bradbury. I don't know about the exact number. It was 
every 45 days, approximately.
    Mr. Nadler. I am sorry--every 45 days he has done it.
    When was the first discussion after 9/11 with members of 
the department about undertaking electronic surveillance 
outside FISA?
    Mr. Bradbury. Again, our view is that the surveillance of 
this program is consistent with FISA, Mr. Chairman.
    Mr. Nadler. No, I think what you have said is that your 
view is that under the President's inherent power and under 
AUMF, it supersedes FISA, not that it is consistent with FISA.
    Mr. Bradbury. I think there have been some rather 
extravagant claims about what our argument is. Our argument is 
primarily that you need to read the authorization for the use 
of force consistent with FISA to harmonize them. There is a 
provision in FISA that says----
    Mr. Nadler. Wait a minute. That doesn't make any sense. 
FISA says you can wiretap people in the United States with a 
warrant. I have always understood you to say that under the 
AUMF and under the President's inherent power, you don't need 
to obey that provision of FISA. Correct?
    Mr. Bradbury. I am sorry. FISA doesn't say ``with a 
warrant.'' FISA orders are not necessarily warrants.
    Mr. Nadler. Excuse me. You need a FISA order. Never mind 
the nomenclature, you need a FISA order. Your claim is that 
under the AUMF and under inherent power of the President, you 
don't need a FISA order.
    Mr. Bradbury. FISA says ``except as otherwise authorized by 
statute.'' AUMF is a statute.
    Mr. Nadler. Correct. And AUMF being a statute, your 
interpretation is that AUMF supersedes FISA.
    Mr. Bradbury. No, it doesn't supersede FISA. FISA says 
``except as otherwise authorized by statute,'' so it is 
consistent with FISA.
    Mr. Nadler. All right. We are playing word games.
    Mr. Bradbury. I think it is very fundamental.
    Mr. Nadler. We are playing word games.
    Your claim is that under the AUMF, AUMF authorizes the 
surveillance without a FISA order and that that is consistent 
with FISA.
    Mr. Bradbury. Correct.
    Mr. Nadler. Okay. I would say that that means it supersedes 
FISA. It doesn't matter.
    In an October 2001 OLC opinion regarding presidential 
power, referred to in the August 2002 so-called ``torture 
memo,'' was that October 2001 opinion part of the consideration 
by the department of the legality of electronic surveillance?
    Mr. Bradbury. I am not sure of the exact opinion that you 
are referring to. I would say there are opinions from the 
office regarding this program.
    Mr. Nadler. The Congress has repeatedly asked for copies of 
the OLC opinion. Will you furnish copies of those opinions to 
the Committee?
    Mr. Bradbury. No, Mr. Chairman.
    Mr. Nadler. Why not?
    Mr. Bradbury. Because those reflect the internal 
confidential legal advice of the executive branch. Those are 
    Mr. Nadler. What privilege are you asserting?
    Mr. Bradbury. I am not asserting a privilege.
    Mr. Nadler. Then how can you not give it to the Committee 
upon request? Either you assert a privilege or you give it to 
us, one or the other.
    Mr. Bradbury. No. Mr. Chairman, we respond to all requests 
from the Committee. If the Committee makes a request for the 
document, we----
    Mr. Nadler. We have made such a request.
    Mr. Bradbury. And I believe we responded and explained----
    Mr. Nadler. By saying you won't give it to us.
    Mr. Bradbury [continuing]. That the confidentiality 
interests of the department----
    But we have done something that is rather extraordinary, 
and that is we prepared in January of 2006 a very extensive 
white paper for the purpose of explaining to the Congress and 
    Mr. Nadler. That is very nice, but it doesn't give us what 
we requested, which is those legal opinions. Unless you are 
asserting a privilege, there is no alternative. What privilege 
are you asserting?
    Mr. Bradbury. We are citing the confidentiality interests 
that the executive branch has in internal confidential 
deliberative advice of the executive branch.
    Mr. Nadler. So that is executive privilege you are 
    Mr. Bradbury. I don't assert executive privilege, Mr. 
Chairman. The President asserts executive privilege.
    Mr. Nadler. So you just stated that the President exerted 
executive privilege, then.
    Mr. Bradbury. I stated that there are important 
confidentiality interests with respect to internal advice, and 
    Mr. Nadler. Isn't that the issue of executive privilege?
    Mr. Bradbury. No, it isn't. Those are the types of 
interests that would support if necessary an assertion of 
executive privilege by the President. That is something we like 
to try to avoid, and we have not done that here.
    Mr. Nadler. So you are saying you won't give to Congress 
the requested documents because they deserve executive 
privilege which you haven't yet asserted.
    Mr. Bradbury. They do partake of the confidentiality 
interests of the executive branch. That is an interest that 
could support an assertion of executive privilege.
    Mr. Nadler. All right. Let me stop playing this game. Has 
any part of the October 2001 OLC opinion been withdrawn, 
modified or clarified in any way since then? If so, what are 
the changes?
    Mr. Bradbury. I am not going to discuss the internal legal 
deliberations of the department.
    Mr. Nadler. Did the Department of Justice Office of Legal 
Counsel issue an opinion or more than one opinion concerning 
electronic surveillance?
    Mr. Bradbury. The Department of Justice Office of Legal 
Counsel has reviewed the legality of the program and has 
reviewed it more than once.
    Mr. Nadler. Are any part of such opinions currently 
    Mr. Bradbury. All such opinions are currently classified.
    Mr. Nadler. Okay. I see my time has expired. Thank you.
    Mr. Bradbury. Thank you.
    Mr. Nadler. We have 6 minutes. The Ranking Member is 
correct. I will violate what I said before. We will recess for 
6 minutes to go and vote, and we will resume.
    Please, there are two votes. I ask the Members as soon as 
you can catch the second vote, please return here. Please 
return here and we will resume in about 12 minutes.
    Thank you.
    Mr. Nadler. The Committee will come back to order.
    I would normally ask the Ranking Member to ask questions, 
but we will come back to him since he is not here yet.
    In accordance with the policy, I will now recognize the 
distinguished Chairman of the full Committee, the gentleman 
from Michigan, Mr. Conyers, for 5 minutes.
    Mr. Conyers. Thank you, Mr. Chairman.
    I wanted to thank Mr. Fein, Mr. Jaffer and Dr. Fisher for 
their very excellent explanations of the statutory and 
constitutional basis of why we are here today.
    And so, do any of you have any reason to believe that the 
Administration can deny the Committee access to executive 
branch opinions about the legality of the TSP program or its 
current revisions?
    Mr. Fein. I think not, Mr. Conyers. Let me elaborate.
    Mr. Conyers. Please.
    Mr. Fein. There is certainly an exceptionally compelling 
interest in the Congress in determining whether or not perhaps 
a criminal violation of FISA has occurred since 9/11. The 
statute makes criminal only those things that are done 
intentionally. It is a vital interest for this Committee, 
therefore, to know what legal advice was being given to those 
in authority to order the National Security Agency to 
circumvent FISA.
    Moreover, I think the history of executive privilege shows 
that it would hardly be a crippling of the executive branch to 
require the disclosure of this kind of communication to the 
Congress. It has been done regularly with regard to Supreme 
Court nominees or even lower court nominees, where it was 
thought important in examining the philosophy of a nominee, 
what kind of advice was given the solicitor general or 
    I can recall in my own experience serving as counsel on the 
Iran-Contra Committee that President Reagan had given authority 
for the national security advisers to give blow-by-blow 
accounts as to the advice concerning the sale of arms to Iran 
and the diversion of funds to the so-called ``Contras.'' That 
testimony was forthcoming. It did nothing to cripple the 
executive branch.
    The main argument that is advanced, I think, by Mr. 
Bradbury or tacitly, is, well, if this is disclosed in this 
compelling interest where you need to determine whether a crime 
has been committed, no one will be candid in their legal 
opinions. History, I think, discredits that.
    The last thing I would say is at least the prevailing 
Supreme Court opinion on this issue indirectly, U.S. v. Nixon, 
which says even presidential communications can be forced to be 
disclosed in the context of a criminal investigation conducted 
by a grand jury, which strongly suggests if the Congress is 
similarly investigating that seriousness of wrongdoing in the 
executive branch, then even presidential communications would 
be forth coming, a fortiori, legal advice within the Justice 
    Mr. Conyers. Yes. Very good.
    Dr. Fisher, adding to the same question, the notion that 
the Chairman, myself, and the Ranking Member, Mr. Lamar Smith, 
we could be briefed, but everybody else on the Committee 
shouldn't be briefed. I don't get it. We are all cleared for 
top secret. What is the difference?
    Mr. Fisher. I don't understand the Administration's 
position. I think you operate as a Committee. You have to 
legislate as a Committee. You don't do it by Chair and Ranking, 
so everyone on the Committee is cleared and they have a need to 
know what it is in case they have to legislate on it.
    Mr. Conyers. Exactly right.
    Mr. Jaffer, what would you add to this discussion?
    Mr. Jaffer. First, I think all of that is exactly right, 
Mr. Conyers. The only thing that I want to stress is to the 
extent that Government is relying on the AUMF, the 
authorization for use of military force, as authority for its 
actions, I think that that reliance is completely misplaced. 
First, as I said earlier, there is no textual basis for the 
argument that the AUMF was meant to authorize domestic 
    Second, many Members of Congress have come out on both 
sides of the aisle to say that they never meant to authorize 
domestic surveillance when they authorized the AUMF. And then 
finally, the Administration has relied on Hamdi, the Supreme 
Court's decision in Hamdi, but Hamdi involved the detention of 
enemy combatants on the battlefield. That is a completely 
different situation than what we are dealing with here, which 
is a program of surveillance inside the United States directed 
at U.S. citizens and U.S. residents.
    Mr. Conyers. Exactly.
    Dr. Fisher, finally?
    Mr. Fisher. Yes, just to add to what Bruce Fein said about 
the deliberative process, Mr. Bradbury is correct that there is 
much going on inside the executive branch that is part of the 
deliberative process, but you are not asking about the 
deliberative process. You are asking for the final legal 
judgment to justify a program. As we all know, OLC regularly 
publishes its opinions when there is a question. After the New 
York Times story about the legality of it, you know, in January 
2006, OLC quickly got out their 42-page white paper.
    So I don't understand any reason why a legal analysis, a 
final legal analysis, not the interim one, the final one 
shouldn't be made available to Congress and the public.
    Mr. Conyers. Chairman Nadler and I are still waiting for a 
response of any kind from the Attorney General Alberto Gonzales 
about this subject matter since May 17th. In our generosity of 
spirit, we are going to give him 2 more weeks, and then, as 
somebody said, it is about time process kicks in somewhere 
around here.
    Thank you, Mr. Chairman.
    Mr. Nadler. Thank you.
    I now recognize for 5 minutes the distinguished Ranking 
Member of the Subcommittee, Mr. Franks.
    Mr. Franks. Thank you, Mr. Chairman.
    Mr. Chairman, I might make just a couple of observations 
here before I ask questions.
    I think it was Mr. Fein that suggested that there were many 
things unknown to Congress and certainly this program was known 
but to a few Members of Congress. In my judgment, the correct 
Members of Congress knew about it. This is the type of program 
that because of the national security implications is important 
to keep that from the general public. But for the New York 
Times, we wouldn't know about this. I would only suggest to you 
that but for the New York Times, perhaps terrorists wouldn't 
know about it either.
    I also think Mr. Fein indicated that the NSA surveillance 
program would not reach someone like Osama bin Laden, that it 
would not be relevant in that case in a cave somewhere in Tora 
Bora or wherever it might be. But would that be unless he had a 
cell phone or a working satellite phone? Certainly, something 
like this could have profound implications in that regard. This 
is what the whole idea is here is to intercept phone calls and 
conversations just like that from those who are trying to 
maintain their secrecy. I just wanted to point those two things 
out. Sometimes it seems important.
    Mr. Bradbury, could I ask you, sir, ever since the Supreme 
Court decided the Keith case, both before and after the 
enactment of FISA all Federal appellate courts that have 
squarely confronted the issue have found that the President is 
constitutionally empowered under article II to conduct 
warrantless electronic surveillance when he deems it necessary 
to protect the Nation from external threats.
    The rationale was articulated by the Fifth Circuit Court in 
United States v. Brown, decided a year after the Supreme Court 
case of the Keith case. And this is their quote: ``Because of 
the President's constitutional duty to act for the United 
States in the field of foreign relations and his inherent power 
to protect national security in the context of foreign affairs, 
we affirm that the President may constitutionally authorize 
warrantless wiretaps for the purpose of gathering foreign 
intelligence. Restrictions upon the President's power which are 
appropriate in cases of domestic security become artificial in 
the context of the international sphere. This principle is 
buttressed by a thread that runs throughout the Federalist 
papers that the President must take care to safeguard the 
nation from possible foreign encroachment, whether in its 
existence as a nation or in its intercourse with other 
    To your knowledge, Mr. Bradbury, are there any higher 
judicial precedents that directly hold otherwise?
    Mr. Bradbury. Not directly, no.
    Mr. Franks. Can anyone on the panel suggest that there were 
any court case or any higher judicial precedent that would hold 
other than what I just read from the Supreme Court?
    Mr. Fein. Yes, I would.
    Mr. Franks. Yes, sir?
    Mr. Fein. I would suggest that the separation of powers 
doctrine announced by the United States Supreme Court in 
Youngstown Sheet and Tube v. Sawyer made quite clear----
    Mr. Franks. Confronting this issue directly, Mr. Fein, not 
    Mr. Fein. They did not confront intelligence collection in 
that particular direction, but certainly they announced a 
doctrine that was equally applicable. They didn't say the 
doctrine of separation of powers makes a difference depending 
upon whether you seize a steel mill or whether you intercept 
foreign communications in violation of a Federal statute. The 
basis doctrine stays undisturbed.
    Mr. Franks. Well, let me just for the fun of it, I am going 
to read the court's language again so that we can be sure that 
indeed the court did address foreign intelligence gathering, 
which is what the subject of the case here is today.
    We are not talking about steel mills, and I am not sure I 
have time, but this is their language: ``Because of the 
President's constitutional duty to act for the United States in 
the field of foreign relations and his inherent power to 
protect national security in the context of foreign affairs, we 
affirm the President may constitutionally authorize warrantless 
wiretaps for the purpose of gathering foreign intelligence.'' I 
will stop there.
    It seems very clear to me if there is no case that 
overturns that, that the President is on strong footing. I am 
probably going to go ahead and yield back here because I am 
about out of time, but thank you all for coming.
    Mr. Nadler. I thank the gentleman.
    I am going to ask unanimous consent to grant myself 30 
seconds to ask a question.
    Number one, isn't it true that the Truong case that you 
quoted dealt with developments prior to enactment of the FISA 
Act, number one?
    And number two, isn't it true that the FISA Act deals not 
with foreign intelligence, but with intelligence conducted in 
the United States, and therefore what the Ranking Member was 
talking about was not really on point, Mr. Fein?
    Mr. Fein. That is accurate.
    Mr. Nadler. Thank you.
    Mr. Fein. Moreover, the doctrine is very clear and accepted 
by the United States Supreme Court that the President's powers 
inherent to gather foreign intelligence are reduced to the 
extent Congress makes a regulation. That is the clear teaching 
of Youngstown Sheet and Tube and Justice Jackson's concurring 
opinion which is accepted as controlling law.
    Mr. Nadler. I thank you. I just yielded myself 30 seconds 
with unanimous consent. I am not getting recognized.
    Mr. Franks. With unanimous consent, could I respond for 30 
    Mr. Nadler. Well, yes, but before you do, I will ask Mr. 
Fisher, who wanted to answer my question to answer my question, 
too, and then I will yield to you.
    Mr. Fisher. I just want to make the point that the Brown 
case was 1973, and I think there is a big difference when 
Congress has not acted.
    Mr. Nadler. That predates FISA?
    Mr. Fisher. That predates pre-FISA, there are certain cases 
that recognize Congress hasn't spoken. Once Congress speaks in 
1978, I think the constitutional issue shifts.
    Mr. Bradbury. Mr. Chairman, may I make a point?
    Mr. Nadler. Yes.
    Mr. Bradbury. It is absolutely correct that the courts of 
appeals cases directly on-point dealt with conduct that 
occurred prior to the enactment of FISA, including the Truong 
case. It was decided after the enactment of FISA.
    Mr. Nadler. A few days after.
    Mr. Bradbury. Yes, the Truong case in the Fourth Circuit. 
The Truong case did focus on what the court viewed as the 
inappropriateness or the mismatch of having a judicial 
proceeding overseeing the President's exercise of foreign 
intelligence authority. So it did recognize a mismatch there.
    I guess the other point I would make is that the Supreme 
Court in the Keith case expressly--and I know Dr. Fisher 
referenced the Keith case--included a footnote in that case in 
which it made clear it was not addressing exercise of the 
President's authority with respect to foreign intelligence 
surveillance. FISA does deal with foreign intelligence.
    Mr. Nadler. Within the United States.
    Mr. Bradbury. Well, it has a complicated definition of 
``electronic surveillance,'' It can encompass surveillance even 
when you are focusing on foreign persons overseas.
    Mr. Nadler. Okay, we are abusing my 30 seconds now.
    Mr. Bradbury. Thank you.
    Mr. Nadler. I will now grant the Ranking Member 1 minute, 
with unanimous consent.
    Mr. Franks. Mr. Chairman, I am not sure that I can improve 
on Mr. Bradbury's explanation, but I do think that a 
constitutional ruling is not trumped by the statute in the 
first place, even if the points were correct. Thank you.
    Mr. Nadler. Thank you.
    I now yield to the gentleman from North Carolina for 5 
    Mr. Watt. Thank you, Mr. Chairman.
    In addition to the three witnesses that Mr. Conyers 
thanked, I want to thank the other two also because I am 
appreciative to all of you for being here to testify about 
something that there has been a tug-of-war about for a long 
time, I suppose. And that is the whole concept of who has 
power. I didn't deal with this concept very much before I came 
to Congress, but power is interesting, and most people don't 
concede power to anybody.
    We do know that our Nation was founded on the concept of 
separation of powers to dilute and balance power. So I 
obviously and unapologetically err on the side of balancing 
powers regardless of who is asserting it. Otherwise, we have a 
dictatorial government in some respects, which I take it may be 
what the President is asserting in this area, and in some areas 
he has gone in that direction, too, but that is a subject of 
another day.
    Mr. Bradbury, I note that you are the principal deputy 
assistant attorney general. Did you hold that position under 
Mr. Ashcroft, Attorney General Ashcroft also, or any position 
in the Justice Department?
    Mr. Bradbury. Yes, I did.
    Mr. Watt. Okay.
    Mr. Comey, former Deputy Attorney General Comey, testified 
before this Committee a couple of weeks ago in a different 
context, about a meeting that took place in the hospital when 
Attorney General Ashcroft was in the hospital, and testified 
that he, Deputy Attorney General Comey, Attorney General 
Ashcroft, and FBI Director Robert Mueller concluded that the 
NSA's program did not comply with the law.
    Mr. Bradbury, would you affirm that or refute that that 
happened? Did Mr. Ashcroft take the position that some aspects 
of this program did not comply with the law?
    Mr. Bradbury. Congressman, I am not in a position to 
confirm the testimony that Mr. Comey gave.
    Mr. Watt. I am not asking you to confirm the testimony. I 
am asking you to confirm whether or not former Attorney General 
Ashcroft expressed reservations, legal reservations about some 
aspects of the surveillance program.
    Mr. Bradbury. I think, Congressman, that the attorney 
general has made it clear that----
    Mr. Watt. I would think a yes or no answer to that would 
suffice. I mean, I am happy to have you elaborate, but either 
he did question some aspects of this or he didn't question 
them. That is either yes or no, and then I am happy to have you 
explain. I am not trying to cut you off, but I don't want you 
to rope-a-dope me for 5 minutes explaining something that is 
not an answer, too.
    Mr. Bradbury. As I think we have tried to be clear and 
careful about----
    Mr. Watt. Mr. Bradbury, did former Attorney General 
Ashcroft express legal reservations about some aspects, 
whatever they were--I am not even going to get into that--of 
this surveillance program?
    Mr. Bradbury. Congressman, the attorney general has 
indicated that, as you might expect with complicated national 
security matters, disagreements arose about aspects of 
intelligence activities, the details of operations, and 
intelligence activities that are not public, that remain highly 
    Mr. Watt. I am not asking you to make anything public. I am 
asking you, does that mean that the former attorney general had 
some legal reservations about some aspect of the program, Mr. 
    Mr. Bradbury. Well, all I will say is what the attorney 
general has said, which is that disagreements arose. 
Disagreements were addressed and resolved. However, those 
disagreements were not about the particular activities that the 
President has publicly described, that we have termed the 
terrorist surveillance program.
    Mr. Watt. Did former Attorney General Ashcroft refuse to 
sign whatever this certification of legality that was presented 
to him at the hospital, as far as you know, Mr. Bradbury?
    Mr. Bradbury. I am sorry. I am not at liberty to talk about 
internal disagreements or deliberations.
    Mr. Watt. You are before this Committee. Are you asserting 
some kind of privilege? What are you doing other than saying 
``I don't want to answer the question,'' Mr. Bradbury?
    Mr. Bradbury. I am referring to again, Congressman, to the 
interests that the department and the executive branch have in 
the confidential internal advice and deliberations of the 
executive branch.
    Mr. Watt. Okay. Well, what effect, Mr. Fein, Mr. Fisher, 
would a certification by the Department of Justice have on the 
legality of an electronic surveillance program that violated 
the FISA statute?
    Mr. Nadler. The gentleman's time has expired, but I will 
ask the witnesses to answer the question briefly.
    Mr. Fein. The certification cannot make something that is 
illegal legal, but I do think the question indicates the 
importance of a response by Mr. Bradbury, because insofar as 
you are examining in good faith of the executive branch and 
operating outside FISA, you need to know what advice was given 
within that branch.
    It seems to me preposterous that this Committee, and you 
are the representatives of the people, people who have a 
democracy where openness is the rule, sunshine is the best 
disinfectant, are kept unknowing as to exactly what was given 
advice in this highly sensitive situation.
    Mr. Fisher. Yes, I would say certification is just the last 
result. All you know is that they certified it. You don't know 
why they certified it. So I think you have to get the legal 
reasoning down on paper so that you know what was considered by 
the department in authorizing this program.
    Mr. Watt. Thank you, Mr. Chairman. I yield back.
    Mr. Nadler. I thank the gentleman.
    And I thank all our witnesses.
    Without objection, all Members will have 5 legislative days 
to submit to the Chair additional written questions for the 
witnesses, which we will forward. And I ask the witnesses to 
respond as promptly as you can, so that the answers may be part 
of the record.
    Without objection, all Members will have 5 legislative days 
to submit any additional materials for inclusion in the record.
    With that, I thank the witnesses again.
    I thank the Members.
    And the hearing is adjourned.
    Mr. Bradbury. Thank you, Mr. Chairman.
    [Whereupon, at 4:02 p.m., the Subcommittee was adjourned.]

                            A P P E N D I X


               Material Submitted for the Hearing Record

Response from Brian A. Benczkowski, Principal Deputy Assisant Attorney 
   General, U.S. Department of Justice, in response to post-hearing 
                questions submitted by the Subcommittee

   U.S. Department of Justice document entitled ``Legal Authorities 
Supporting the Activities of the National Security Agency Described by 
                            the President''

Letter from the Committee on the Judiciary, dated January 19, 2007, to 
   the Honorable Alberto R. Gonzales, Attorney General of the United 
                   States, U.S. Department of Justice

Letter from the Committee on the Judiciary, dated February 1, 2007, to 
   the Honorable Alberto R. Gonzales, Attorney General of the United 
                   States, U.S. Department of Justice

  Letter from Richard A. Hertling, Acting Assistant Attorney General, 
 U.S. Department of Justice, dated February 9, 2007, to the Honorable 
        John Conyers, Jr., Chairman, Committee on the Judiciary

Letter from the Committee on the Judiciary, dated May 17, 2007, to the 
 Honorable Alberto R. Gonzales, Attorney General of the United States, 
                       U.S. Department of Justice