[House Hearing, 110 Congress]
[From the U.S. Government Printing Office]
CONSTITUTIONAL LIMITATIONS ON
SUBCOMMITTEE ON THE CONSTITUTION,
CIVIL RIGHTS, AND CIVIL LIBERTIES
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
JUNE 7, 2007
Serial No. 110-45
Printed for the use of the Committee on the Judiciary
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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
SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio
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
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota
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
DEBBIE WASSERMAN SCHULTZ, Florida MIKE PENCE, Indiana
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
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
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
CONSTITUTIONAL LIMITATIONS ON DOMESTIC SURVEILLANCE
THURSDAY, JUNE 7, 2007
House of Representatives,
Subcommittee on the Constitution,
Civil Rights, and Civil Liberties,
Committee on the Judiciary,
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
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
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
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
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.
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
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
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
Let the record reflect that each of the witnesses answered
in the affirmative.
We will begin with the first witness, Mr. Bradbury.
TESTIMONY OF STEVEN BRADBURY, PRINCIPAL DEPUTY ASSISTANT
ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL, U.S. DEPARTMENT OF
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
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.
TESTIMONY OF BRUCE FEIN, THE LICHFIELD GROUP, INC.
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
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
WHY BE ALARMED ABOUT ILLEGAL SPYING PROGRAMS?
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.
THE ILLEGALITY OF THE NSA'S DOMESTIC WARRANTLESS SURVEILLANCE PROGRAM
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.
TESTIMONY OF LEE A. CASEY, PARTNER, BAKER HOSTETLER
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
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
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
[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
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.
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.
TESTIMONY OF JAMEEL JAFFER, DIRECTOR, NATIONAL SECURITY
PROJECT, AMERICAN CIVIL LIBERTIES UNION
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
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
[The prepared statement of Mr. Jaffer follows:]
Prepared Statement of Jameel Jaffer
Mr. Nadler. Thank you.
And Mr. Fisher?
TESTIMONY OF LOUIS FISHER, AMERICAN LAW DIVISION, LIBRARY OF
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
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
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
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
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.
[The prepared statement of Mr. Fisher follows:]
Prepared Statement of Louis Fisher
Mr. Nadler. Thank you.
I recognize myself for 5 minutes.
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
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
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
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
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
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
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
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.
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
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
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
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
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
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
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
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
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