[House Report 109-384]
[From the U.S. Government Publishing Office]



109th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     109-384
_______________________________________________________________________

                                     

 
  REQUESTING THE PRESIDENT AND DIRECTING THE SECRETARY OF DEFENSE TO 
    TRANSMIT TO THE HOUSE OF REPRESENTATIVES ALL INFORMATION IN THE 
POSSESSION OF THE PRESIDENT OR THE SECRETARY OF DEFENSE RELATING TO THE 
COLLECTION OF INTELLIGENCE INFORMATION PERTAINING TO PERSONS INSIDE THE 
UNITED STATES WITHOUT OBTAINING COURT-ORDERED WARRANTS AUTHORIZING THE 
COLLECTION OF SUCH INFORMATION AND RELATING TO THE POLICY OF THE UNITED 
 STATES WITH RESPECT TO THE GATHERING OF COUNTERTERRORISM INTELLIGENCE 
                        WITHIN THE UNITED STATES

                               __________

                             ADVERSE REPORT

                                 OF THE

                      COMMITTEE ON ARMED SERVICES

                        HOUSE OF REPRESENTATIVES

                                   ON

                              H. RES. 645

                                     



                                     

   March 7, 2006.--Referred to the House Calendar and ordered to be 
                                printed.
                   HOUSE COMMITTEE ON ARMED SERVICES
                       One Hundred Ninth Congress

                  DUNCAN HUNTER, California, Chairman
CURT WELDON, Pennsylvania            IKE SKELTON, Missouri
JOEL HEFLEY, Colorado                JOHN SPRATT, South Carolina
JIM SAXTON, New Jersey               SOLOMON P. ORTIZ, Texas
JOHN M. McHUGH, New York             LANE EVANS, Illinois
TERRY EVERETT, Alabama               GENE TAYLOR, Mississippi
ROSCOE G. BARTLETT, Maryland         NEIL ABERCROMBIE, Hawaii
HOWARD P. ``BUCK'' McKEON,           MARTY MEEHAN, Massachusetts
    California                       SILVESTRE REYES, Texas
MAC THORNBERRY, Texas                VIC SNYDER, Arkansas
JOHN N. HOSTETTLER, Indiana          ADAM SMITH, Washington
WALTER B. JONES, North Carolina      LORETTA SANCHEZ, California
JIM RYUN, Kansas                     MIKE McINTYRE, North Carolina
JIM GIBBONS, Nevada                  ELLEN O. TAUSCHER, California
ROBIN HAYES, North Carolina          ROBERT A. BRADY, Pennsylvania
KEN CALVERT, California              ROBERT ANDREWS, New Jersey
ROB SIMMONS, Connecticut             SUSAN A. DAVIS, California
JO ANN DAVIS, Virginia               JAMES R. LANGEVIN, Rhode Island
W. TODD AKIN, Missouri               STEVE ISRAEL, New York
J. RANDY FORBES, Virginia            RICK LARSEN, Washington
JEFF MILLER, Florida                 JIM COOPER, Tennessee
JOE WILSON, South Carolina           JIM MARSHALL, Georgia
FRANK A. LoBIONDO, New Jersey        KENDRICK B. MEEK, Florida
JEB BRADLEY, New Hampshire           MADELEINE Z. BORDALLO, Guam
MICHAEL TURNER, Ohio                 TIM RYAN, Ohio
JOHN KLINE, Minnesota                MARK UDALL, Colorado
CANDICE S. MILLER, Michigan          G.K. BUTTERFIELD, North Carolina
MIKE ROGERS, Alabama                 CYNTHIA McKINNEY, Georgia
TRENT FRANKS, Arizona                DAN BOREN, Oklahoma
BILL SHUSTER, Pennsylvania
THELMA DRAKE, Virginia
JOE SCHWARZ, Michigan
CATHY McMORRIS, Washington
MICHAEL CONAWAY, Texas
GEOFF DAVIS, Kentucky
                   Robert L. Simmons, Staff Director


                            C O N T E N T S

                              ----------                              
                                                                   Page
Purpose and Summary..............................................     1
Background.......................................................     2
Executive Communications.........................................     5
Legislative History..............................................    56
Committee Position...............................................    57
Communication from Another Committee.............................    57
Committee Cost Estimate..........................................    57
Oversight Findings...............................................    57
Constitutional Authority Statement...............................    58
Record Vote......................................................    58


109th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     109-384

======================================================================


  REQUESTING THE PRESIDENT AND DIRECTING THE SECRETARY OF DEFENSE TO 
    TRANSMIT TO THE HOUSE OF REPRESENTATIVES ALL INFORMATION IN THE 
POSSESSION OF THE PRESIDENT OR THE SECRETARY OF DEFENSE RELATING TO THE 
COLLECTION OF INTELLIGENCE INFORMATION PERTAINING TO PERSONS INSIDE THE 
UNITED STATES WITHOUT OBTAINING COURT-ORDERED WARRANTS AUTHORIZING THE 
COLLECTION OF SUCH INFORMATION AND RELATING TO THE POLICY OF THE UNITED 
 STATES WITH RESPECT TO THE GATHERING OF COUNTERTERRORISM INTELLIGENCE 
                        WITHIN THE UNITED STATES

                                _______
                                

   March 7, 2006.--Referred to the House Calendar and ordered to be 
                                printed

                                _______
                                

    Mr. Hunter, from the Committee on Armed Services, submitted the 
                               following

                             ADVERSE REPORT

                       [To accompany H. Res. 645]

  The Committee on Armed Services, to whom was referred the 
resolution (H. Res. 645) requesting the President and directing 
the Secretary of Defense to transmit to the House of 
Representatives all information in the possession of the 
President or the Secretary of Defense relating to the 
collection of intelligence information pertaining to persons 
inside the United States without obtaining court-ordered 
warrants authorizing the collection of such information and 
relating to the policy of the United States with respect to the 
gathering of counterterrorism intelligence within the United 
States, having considered the same, report unfavorably thereon 
without amendment and recommend that the resolution not be 
agreed to.

                          PURPOSE AND SUMMARY

    House Resolution 645, introduced on December 22, 2005, by 
Congressman Robert Wexler, requests the President and directs 
the Secretary of Defense to transmit to the House of 
Representatives not later than 14 days after the date of the 
adoption of the resolution all documents including telephone 
and electronic mail records, logs, calendars, minutes, memos, 
and records of internal discussions in their possession 
relating to two matters: (1) the legal authority upon which 
surveillance by the NSA or the DOD of persons inside the United 
States and the gathering of counterterrorism intelligence 
within the United States without obtaining court-ordered 
warrants is based; and (2) the scope of the activities 
undertaken by the DOD, the Counterintelligence Field Activity 
(CIFA), or any related agency with regards to Threat and Local 
Observation Notice (TALON) reports regarding the gathering of 
counterterrorism intelligence within the United States.
    Clause 7 of rule XIII of the Rules of the House of 
Representatives provides for a committee to report on a 
qualifying resolution of inquiry, such as H. Res. 645, within 
14 legislative days or a privileged motion to discharge the 
committee is in order. H. Res. 645 was referred to the Armed 
Services Committee on December 22, 2005.
    Under the rules and precedents of the House, a resolution 
of inquiry is one of the means by which the House may request 
information from the head of one of the executive departments. 
It is a simple resolution making a demand of the head of an 
executive department to furnish the House of Representatives 
with specific information in the possession of the executive 
branch. It is not used to request opinions or to require an 
investigation on a subject.

                               BACKGROUND

Background on request for legal authority regarding warrantless 
        intelligence by the NSA

    On December 16, 2005, the New York Times published an 
article which revealed that the President had authorized the 
NSA to collect electronic intelligence from communications 
involving at least one person within the United States without 
obtaining a warrant or court order.\1\ The next day the 
President confirmed the existence of a classified NSA terrorist 
surveillance program. The President stated that shortly after 
the September 11, 2001 attacks, he authorized the NSA 
``consistent with U.S. law and the Constitution to intercept 
the international communications of people with known links to 
al Qaeda and related terrorist organizations . . . to detect 
and prevent terrorist attacks against the United States. . . 
.'' \2\ The President emphasized that the surveillance program 
is ``crucial to our national security. . . .'' \3\ He also 
stated that the surveillance program is reviewed approximately 
every 45 days and that these reviews have included approval by 
the Attorney General and the Counsel to the President. Finally, 
the President noted that congressional leaders had been briefed 
on the surveillance activities more than a dozen times.
---------------------------------------------------------------------------
    \1\ James Risen and Eric Lichblau, ``Bush Lets U.S. Spy on Callers 
Without Courts,'' New York Times, December 16, 2005, p.A1.
    \2\ President's Radio Address, Dec. 17, 2005.
    \3\ Id.
---------------------------------------------------------------------------
    On December 19, 2005, Attorney General Alberto Gonzales and 
General Michael Hayden, Principal Deputy Director for National 
Intelligence (and former NSA Director) described unclassified 
aspects of the program at a press briefing. The Attorney 
General stated that the program involved ``intercepts of 
contents of communications where one . . . party to the 
communication is outside the United States'' and the government 
had ``a reasonable basis to conclude that one party to the 
communication is a member of al Qaeda, affiliated with al 
Qaeda, or a member of an organization affiliated with al Qaeda, 
or working in support of al Qaeda.'' \4\ General Hayden stated 
that the aim of the program is not ``to collect reams of 
intelligence, but to detect and warn and prevent [terrorist] 
attacks.'' \5\ On December 22, 2005, the Department of Justice 
Office of Legislative Affairs released a letter to the 
leadership of the congressional intelligence committees setting 
forth in greater detail the legal authority for the NSA 
activities. The letter asserted the NSA program is a lawful use 
of the President's powers as Commander in Chief and that 
Congress had supplemented the President's authority by passing 
the Authorization for Use of Military Force (AUMF), enacted on 
September 18, 2001 as a broad authorization for use of military 
force against al Qaeda.
---------------------------------------------------------------------------
    \4\ Press Release, White House, Press Briefing by Attorney General 
Alberto Gonzalez and General Michael Hayden, Principal Deputy Director 
for National Intelligence, Dec. 19, 2005.
    \5\ Id.
---------------------------------------------------------------------------
    The NSA program came under strict scrutiny after it was 
revealed.\6\ In addition, on December 30, 2005, the Justice 
Department announced it had opened a criminal investigation 
into the possible unauthorized disclosure of classified 
information regarding the NSA surveillance program.
---------------------------------------------------------------------------
    \6\ On January 5, 2006, the Congressional Research Service released 
a memorandum which questioned the President's legal authority to order 
warrantless electronic surveillance. On February 2, 2006, a group of 
fourteen law professors and former government sent a letter to 
congressional leaders concluding that the NSA program appeared on its 
face to violate existing law. In addition, at least two lawsuits have 
been filed challenging the NSA program.
---------------------------------------------------------------------------
    On January 19, 2006, Attorney General Gonzales transmitted 
a 42 page memorandum (``White Paper'') to the Chairman and 
Ranking Minority Member of the committee, detailing, in an 
unclassified form, the legal authorities supporting the NSA 
surveillance program.\7\ The White Paper again asserted that 
the NSA program is based on the President's inherent 
constitutional authority as Commander in Chief, supplemented by 
Congress in the AUMF, enacted on September 18, 2001. The White 
Paper contends that the NSA program is consistent with the 
Foreign Intelligence Surveillance Act (FISA) and is also 
consistent with privacy rights guaranteed by the Fourth 
Amendment. The DOJ White Paper also highlights the continuing 
threat posed by al Qaeda.\8\
---------------------------------------------------------------------------
    \7\ A copy of the White Paper is attached to this report as Exhibit 
1.
    \8\ The White Paper notes that al Qaeda's leadership has repeatedly 
threatened to attack the United States in the future. This threat was 
reinforced on January 19, 2006, when an audio message purportedly 
recorded by Osama bin Laden was broadcast by al Jazeera. According to 
media reports, CIA intelligence officers who analyzed the recording 
believed the voice on the audiotape is that of bin Laden. The al Qaeda 
leader allegedly said that the lack of al Qaeda attacks in the United 
States since September 11, 2001 is not related to any improved security 
measures adopted by the United States. According to a transcript of the 
audiotape, bin Laden warned of future attacks, stating ``the operations 
are under preparation and you will see them in your homes the minute 
they are through, with God's permission.''
---------------------------------------------------------------------------
    The most comprehensive description of the operational 
details of the NSA program was provided by General Hayden to 
the National Press Club on January 23, 2006. He stated that 
theprogram is narrowly targeted and focused. He indicated it does not 
intercept conversations where both parties to the conversation are 
located in the United States. One end of any call targeted under this 
program is always outside of the United States and with a party 
reasonably believed to be affiliated with al Qaeda. General Hayden 
argued that the speed of operations, the ruthlessness of the enemy, and 
the pace of modern communications have called on the NSA to do things 
in ways that have never been required before. He contended that 
although FISA includes an emergency provision allowing intercepts to 
begin without a warrant, FISA is still not adequate because even an 
emergency warrant requires pre-approval by the Attorney General.\9\ 
General Hayden stated that ``FISA's been a remarkably successful tool'' 
which the government uses aggressively, however, ``FISA does not give 
us the operational effect'' the NSA authorities provide.
---------------------------------------------------------------------------
    \9\ The emergency provision does not allow immediate surveillance. 
Pursuant to 50 U.S.C. Sec. 1805(f), an emergency order may not be 
obtained until the Attorney General reasonably determines that an 
emergency situation exists and the factual basis for issuance of an 
order under FISA exists. Thus, even though 72 hours of surveillance may 
be ordered without a court order, FISA still requires the Attorney 
General to determine in advance of the surveillance that all the 
requirements for a regular FISA application will be fully supported and 
will be approved by the court before an emergency authorization can be 
granted. This emergency review process by the Attorney General requires 
review by NSA lawyers, DOJ lawyers and finally by the Attorney General 
himself.
---------------------------------------------------------------------------
    In his State of the Union Address on January 31, 2006, 
President Bush declared, ``the enemy has not lost the desire or 
capability to attack us . . . the terrorist surveillance 
program has helped prevent terrorist attacks.''
    Attorney General Gonzales testified regarding this matter 
before the Senate Judiciary Committee on Monday, February 6, 
2006.
    Acting Assistant Attorney General for the Office of Legal 
Counsel Steven Bradbury and Assistant Attorney General for the 
Office of Legislative Affairs William Moschella briefed the 
committee on the NSA surveillance program and answered 
questions from the members of the committee on February 8, 
2006.
    The committee concluded that the DOD had substantially 
complied with the direction of H. Res. 645 to provide the House 
of Representatives with the legal authority for the NSA 
program. Therefore, the committee ordered the resolution to be 
reported adversely.

Background on request for information regarding the scope of activities 
        undertaken regarding the gathering of counterterrorism 
        intelligence within the United States

    On December 13, 2005, a report on the NBC Nightly News 
disclosed that the Department of Defense (DOD) improperly used 
a counterintelligence program designed to protect military 
facilities from terrorist attacks to collect information on 
domestic anti-war protestors. The report alleged that a DOD 
agency, the Counterintelligence Field Activity (CIFA), misused 
a reporting mechanism known as a Threat and Local Observation 
Notice (TALON) reporting system by including information 
regarding groups that did not pose a security threat to 
military facilities. On December 19, 2005, Dr. Stephen A. 
Cambone, the Under Secretary of Defense (Intelligence), wrote a 
letter to the Chairman and Ranking Member of the Committee, 
responding to the NBC report. Dr. Cambone indicated that he had 
initiated a review of the CIFA program and would review the 
TALON database to determine whether information had been 
improperly stored or used in the database. He further indicated 
that he would provide the results of that inquiry to the 
committee.
    On January 27, 2006, Robert Rogalski, Acting Deputy Under 
Secretary of Defense (Counterintelligence and Security), 
reported back to the Chairman and Ranking Minority Member of 
the Committee with additional information regarding these 
programs. Mr. Rogalski indicated that the review of the TALON 
system was ``nearly completed'' and that it had been determined 
that ``very small percentage'' of reports regarding 
demonstrations and ``anti-base'' activity not related to 
terrorist threats had been improperly included in the CIFA 
database. Mr. Rogalski acknowledged that while the purpose of 
the TALON program is ``to document suspicious incidents 
possibly linked to foreign terrorist threats to DoD 
resources,'' he added that ``some came to view the system as a 
means to report information about demonstrations and anti-base 
activity that would be of interest to field commanders from a 
force protection perspective.'' Mr. Rogalski indicated that 
CIFA has removed any TALON reports on demonstrations and anti-
base activity from the CIFA database and indicated there is an 
ongoing process to remove any other reports from the database 
that ``are no longer analytically significant.''
    Mr. Rogalski also indicated that the DOD will soon issue 
detailed guidance that will clarify the purpose of the CIFA 
database and the rules governing the collection and retention 
of the data in an effort to avoid any future improper use of 
intelligence information. He indicated the new guidance will 
include more detailed procedures to ensure compliance with the 
policy prohibiting the collection of intelligence by those 
programs that are not related to counterterrorism. He indicated 
the Dr. Cambone has directed all DOD counterintelligence and 
intelligence personnel to receive immediate refresher training 
concerning the laws and procedures governing the handling of 
information relating to U.S. persons.
    The Department of Defense provided a closed briefing to the 
committee on February 8, 2006 regarding this matter.
    The committee concluded that the DOD had substantially 
complied with the direction of H. Res. 645 to provide the scope 
of activities conducted undertaken with regard to TALON 
reports. Therefore the committee ordered the resolution to be 
reported adversely.

                        EXECUTIVE COMMUNICATIONS

                             Department of Justice,
                            Office of the Attorney General,
                                   Washington, DC, January 19, 2006
Hon. Duncan Hunter,
Chairman, Committee on Armed Services,
House of Representatives, Washington, D.C.
    Dear Mr. Chairman: As the President recently described, in 
response to the attacks of September 11th, he has authorized 
the National Security Agency (NSA) to intercept international 
communications into or out of the United States of persons 
linked to al Qaeda or an affiliated terrorist organization. The 
attached paper has been prepared by the Department of Justice 
to provide a detailed analysis of the legal basis for those NSA 
activities described by the President.
    As I have previously explained, these NSA activities are 
lawful in all respects. They represent a vital effort by the 
President to ensure that we have in place an early warning 
system to detect and prevent another catastrophic terrorist 
attack on America. In the ongoing armed conflict with al Qaeda 
and its allies, the President has the primary duty under the 
Constitution to protect the American people. The Constitution 
gives the President the full authority necessary to carry out 
that solemn duty, and he has made clear that he will use all 
authority available to him consistent with the law, to protect 
the Nation. The President's authority to approve these NSA 
activities is confirmed and supplemented by Congress in the 
Authorization for Use of Military Force (AUMF), enacted on 
September 18, 2001. As discussed in depth in the attached 
paper, the President's use of his constitutional authority, as 
supplemented by statue in the AUMF, is consistent with the 
foreign Intelligence Surveillance Act and is also fully 
protective of the civil liberties guaranteed by the Fourth 
Amendment.
    It is my hope that this paper will prove helpful to your 
understanding of the legal authorities underlying the NSA 
activities described by the President.
            Sincerely,
                                       Alberto R. Gonzales,
                                                  Attorney General.
    Enclosure.

 Legal Authorities Supporting the Activities of the National Security 
                   Agency Described by the President

    As the President has explained, since shortly after the 
attacks of September 11, 2001, he has authorized the National 
Security Agency (``NSA'') to intercept international 
communications into and out of the United States of persons 
linked to al Qaeda or related terrorist organizations. The 
purpose of these intercepts is to establish an early warning 
system to detect and prevent another catastrophic terrorist 
attack on the United States. This paper addresses, in an 
unclassified form, the legal basis for the NSA activities 
described by the President (``NSA activities'').


                                SUMMARY


    On September 11, 2001, the al Qaeda terrorist network 
launched the deadliest foreign attack on American soil in 
history. Al Qaeda's leadership repeatedly has pledged to attack 
the United States again at a time of its choosing, and these 
terrorist organizations continue to pose a grave threat to the 
United States. In response to the September 11th attacks and 
the continuing threat, the President, with broad congressional 
approval, has acted to protect the Nation from another 
terrorist attack. In the immediate aftermath of September 11th, 
the President promised that ``[w]e will direct every resource 
at our command--every means of diplomacy, every tool of 
intelligence, every tool of law enforcement, every financial 
influence, and every weapon of war--to the destruction of and 
to the defeat of the global terrorist network.'' President Bush 
Address to a Joint Session of Congress (Sept. 20, 2001). The 
NSA activities are an indispensable aspect of this defense of 
the Nation. By targeting the international communications into 
and out of the United States of persons reasonably believed to 
be linked to al Qaeda, these activities provide the United 
States with an early warning system to help avert the next 
attack. For the following reasons, the NSA activities are 
lawful and consistent with civil liberties.
    The NSA activities are supported by the President's well-
recognized inherent constitutional authority as Commander in 
Chief and sole organ for the Nation in foreign affairs to 
conduct warrantless surveillance of enemy forces for 
intelligence purposes to detect and disrupt armed attacks on 
the United States. The President has the chief responsibility 
under the Constitution to protect America from attack, and the 
Constitution gives the President the authority necessary to 
fulfill that solemn responsibility. The President has made 
clear that he will exercise all authority available to him, 
consistent with the Constitution, to protect the people of the 
United States.
    In the specific context of the current armed conflict with 
al Qaeda and related terrorist organizations, Congress by 
statute has confirmed and supplemented the President's 
recognized authority under Article II of the Constitution to 
conduct such warrantless surveillance to prevent further 
catastrophic attacks on the homeland. In its first legislative 
response to the terrorist attacks of September 11th, Congress 
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'' of September 11th in order to prevent ``any 
future acts of international terrorism against the United 
States.'' Authorization for Use of Military Force, Pub. L. No. 
107-40, Sec. 2(a), 115 Stat. 224, 224 (Sept. 18, 2001) 
(reported as a note to 50 U.S.C.A. Sec. 1541) (``AUMF''). 
History conclusively demonstrates that warrantless 
communications intelligence targeted at the enemy in time of 
armed conflict is a traditional and fundamental incident of the 
use of military force authorized by the AUMF. The Supreme 
Court's interpretation of the AUMF in Hamdi v. Rumsfeld, 542 
U.S. 507 (2004), confirms that Congress in the AUMF gave its 
express approval to the military conflict against al Qaeda and 
its allies and thereby to the President's use of all 
traditional and accepted incidents of force in this current 
military conflicts including warrantless electronic 
surveillance to intercept enemy communications both at home and 
abroad. This understanding of the AUMF demonstrates Congress's 
support for the President's authority to protect the Nation 
and, at the same time, adheres to Justice O'Connor's admonition 
that ``a state of war is not a blank check for the President,'' 
Hamdi, 542 U.S. at 536 (plurality opinion), particularly in 
view of the narrow scope of the NSA activities.
    The AUMF places the President at the zenith of his powers 
in authorizing the NSA activities. Under the tripartite 
framework set forth by Justice Jackson in Youngstown Sheet & 
Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952) (Jackson, J., 
concurring), Presidential authority is analyzed to determine 
whether the President is acting in accordance with 
congressional authorization (category I), whether he acts in 
the absence of a grant or denial of authority by Congress 
(category II), or whether he uses his own authority under the 
Constitution to take actions incompatible with congressional 
measures (category III). Because of the broad authorization 
provided in the AUMF, the President's action here falls within 
category I of Justice Jackson's framework. Accordingly, the 
President's power in authorizing the NSA activities is at its 
height because he acted ``pursuant to an express or implied 
authorization of Congress,'' and his power ``includes all that 
he possesses in his own right plus all that Congress can 
delegate.'' Id. at 635.
    The NSA activities are consistent with the preexisting 
statutory framework generally applicable to the interception of 
communications in the United States--the Foreign Intelligence 
Surveillance Act (``FISA''), as amended, 50 U.S.C. 
Sec. Sec. 1801-1862 (2000 & Supp. II 2002), and relevant 
related provisions in chapter 119 of title 18.\1\ Although FISA 
generally requires judicial approval of electronic 
surveillance, FISA also contemplates that Congress may 
authorize such surveillance by a statute other than FISA. See 
50 U.S.C. Sec. 1809(a) (prohibiting any person from 
intentionally ``engag[ing] . . . in electronic surveillance 
under color of law except as authorized by statute''). The 
AUMF, as construed by the Supreme Court in Hamdi and as 
confirmed by the history and tradition of armed conflict, is 
just such a statute. Accordingly, electronic surveillance 
conducted by the President pursuant to the AUMF, including the 
NSA activities, is fully consistent with FISA and falls within 
category I of Justice Jackson's framework.
---------------------------------------------------------------------------
    \1\ Chapter 119 of title 18, which was enacted by Title III of the 
Omnibus Crime Control and Safe Streets Act of 1968, as amended, 18 
U.S.C. 2510-2521 (2000 & West Supp. 2005), is often referred to as 
``Title III.''
---------------------------------------------------------------------------
    Even if there were ambiguity about whether FISA, read 
together with the AUMF, permits the President to authorize the 
NSA activities, the canon of constitutional avoidance requires 
reading these statutes in harmony to overcome any restrictions 
in FISA and Title III, at least as they might otherwise apply 
to the congressionally authorized armed conflict with al Qaeda. 
Indeed, were FISA and Title III interpreted to impede the 
President's ability to use the traditional tool of electronic 
surveillance to detect and prevent future attacks by a declared 
enemy that has already struck at the homeland and is engaged in 
ongoing operations against the United States, the 
constitutionality of FISA, as applied to that situation, would 
be called into very serious doubt. In fact, if this difficult 
constitutional question had to be addressed, FISA would be 
unconstitutional as applied to this narrow context. 
Importantly, the FISA Court of Review itself recognized just 
three years ago that the President retains constitutional 
authority to conduct foreign surveillance apart from the FISA 
framework, and the President is certainly entitled, at a 
minimum, to rely on that judicial interpretation of the 
Constitution and FISA.
    Finally, the NSA activities fully comply with the 
requirements of the Fourth Amendment. The interception of 
communications described by the President falls within a well-
established exception to the warrant requirement and satisfies 
the Fourth Amendment's fundamental requirement of 
reasonableness. The NSA activities are thus constitutionally 
permissible and fully protective of civil liberties.


                               BACKGROUND


A. The attacks of September 11, 2001
    On September 11, 2001, the al Qaeda terrorist network 
launched a set of coordinated attacks along the East Coast of 
the United States. Four commercial jetliners, each carefully 
selected to be fully loaded with fuel for a transcontinental 
flight, were hijacked by al Qaeda operatives. Two of the 
jetliners were targeted at the Nation's financial center in New 
York and were deliberately flown into the Twin Towers of the 
World Trade Center. The third was targeted at the headquarters 
of the Nation's Armed Forces, the Pentagon. The fourth was 
apparently headed toward Washington, DC, when passengers 
struggled with the hijackers and the plane crashed in 
Shanksville, Pennsylvania. The intended target of this fourth 
jetliner was evidently the White House or the Capitol, strongly 
suggesting that its intended mission was to strike a 
decapitation blow on the Government of the United States--to 
kill the President, the Vice President, or Members of Congress. 
The attacks of September 11th resulted in approximately 3,000 
deaths--the highest single-day death toll from hostile foreign 
attacks in the Nation's history. These attacks shut down air 
travel in the United States, disrupted the Nation's financial 
markets and government operations, and caused billions of 
dollars in damage to the economy.
    On September 14, 2001, the President declared a national 
emergency ``by reason of the terrorist attacks at the World 
Trade Center, New York, New York, and the Pentagon, and the 
continuing and immediate threat of further attacks on the 
United States.'' Proclamation No. 7463, 66 Fed. Reg. 48,199 
(Sept. 14, 2001). The same day, Congress passed a joint 
resolution authorizing the President ``to use all necessary and 
appropriate force against those nations, organizations, or 
persons he determines planned, authorized, committed, or aided 
the terrorist attacks'' of September 11th, which the President 
signed on September 18th. AUMF Sec. 2(a). Congress also 
expressly acknowledged that the attacks rendered it ``necessary 
and appropriate'' for the United States to exercise its right 
``to protect United States citizens both at home and abroad,'' 
and in particular recognized that ``the President has authority 
under the Constitution to take action to deter and prevent acts 
of international terrorism against the United States.'' Id. 
pmbl. Congress emphasized that the attacks ``continue to pose 
an unusual and extraordinary threat to the national security 
and foreign policy of the United States.'' Id. The United 
States also launched a large-scale military response, both at 
home and abroad. In the United States, combat air patrols were 
immediately established over major metropolitan areas and were 
maintained 24 hours a day until April 2002. The United States 
also immediately began plans for a military response directed 
at al Qaeda's base of operations in Afghanistan. Acting under 
his constitutional authority as Commander in Chief, and with 
the support of Congress, the President dispatched forces to 
Afghanistan and, with the assistance of the Northern Alliance, 
toppled the Taliban regime.
    As the President made explicit in his Military Order of 
November 13, 2001, authorizing the use of military commissions 
to try terrorists, the attacks of September 11th ``created a 
state of armed conflict.'' Military Order Sec. l(a), 66 Fed. 
Reg. 57,833 (Nov. 13, 2001). Indeed, shortly after the attacks, 
NATO--for the first time in its 46-year history--invoked 
article 5 of the North Atlantic Treaty, which provides that an 
``armed attack against one or more of [the parties] shall be 
considered an attack against them all.'' North Atlantic Treaty, 
Apr. 4, 1949, art. 5, 63 Stat. 2241, 2244, 34 U.N.T.S. 243, 
246; see also Statement by NATO Secretary General Lord 
Robertson (Oct. 2, 2001), available at http://www.nato.int/
docu/speech/2001/s011002a.htm (``[I]t has now been determined 
that the attack against the United States on 11 September was 
directed from abroad and shall therefore be regarded as an 
action covered by Article 5 of the Washington Treaty. . . .''). 
The President also determined in his Military Order that al 
Qaeda and related terrorists organizations ``possess both the 
capability and the intention to undertake further terrorist 
attacks against the United States that, if not detected and 
prevented, will cause mass deaths, mass injuries, and massive 
destruction of property, and may place at risk the continuity 
of the operations of the United States Government,'' and 
concluded that ``an extraordinary emergency exists for national 
defense purposes.'' Military Order, Sec. l(c), (g), 66 Fed. 
Reg. at 57,833-34.
B. The NSA activities
    Against this unfolding background of events in the fall of 
2001, there was substantial concern that al Qaeda and its 
allies were preparing to carry out another attack within the 
United States. Al Qaeda had demonstrated its ability to 
introduce agents into the United States undetected and to 
perpetrate devastating attacks, and it was suspected that 
additional agents were likely already in position within the 
Nation's borders. As the President has explained, unlike a 
conventional enemy, al Qaeda has infiltrated ``our cities and 
communities and communicated from here in America to plot and 
plan with bin Laden's lieutenants in Afghanistan, Pakistan and 
elsewhere.'' Press Conference of President Bush (Dec. 19, 
2005), available at http://www.whitehouse.gov/news/releases/
2005/12/20051219-2.html (``President's Press Conference''). To 
this day, finding al Qaeda sleeper agents in the United States 
remains one of the paramount concerns in the War on Terror. As 
the President has explained, ``[t]he terrorists want to strike 
America again, and they hope to inflict even more damage than 
they did on September the 11th.'' Id.
    The President has acknowledged that, to counter this 
threat, he has authorized the NSA to intercept international 
communications into and out of the United States of persons 
linked to al Qaeda or related terrorist organizations. The same 
day, the Attorney General elaborated and explained that in 
order to intercept a communication, there must be ``a 
reasonable basis to conclude that one party to the 
communication is a member of al Qaeda, affiliated with al 
Qaeda, or a member of an organization affiliated with al 
Qaeda.'' Press Briefing by Attorney General Alberto Gonzales 
and General Michael Hayden, Principal Deputy Director for 
National Intelligence, available at http://www.whitehouse.gov/
news/releases/2005/12/20051219-1.html (Dec. 19, 2005) 
(statement of Attorney General Gonzales). The purpose of these 
intercepts is to establish an early warning system to detect 
and prevent another catastrophic terrorist attack on the United 
States. The President has stated that the NSA activities 
``ha[ve] been effective in disrupting the enemy, while 
safeguarding our civil liberties.'' President's Press 
Conference.
    The President has explained that the NSA activities are 
``critical'' to the national security of the United States. Id. 
Confronting al Qaeda ``is not simply a matter of [domestic] law 
enforcement''--we must defend the country against an enemy that 
declared war against the United States. Id. To ``effectively 
detect enemies hiding in our midst and prevent them from 
striking us again . . . we must be able to act fast and to 
detect conversations [made by individuals linked to al Qaeda] 
so we can prevent new attacks.'' Id. The President pointed out 
that ``a two-minute phone conversation between somebody linked 
to al Qaeda here and an operative overseas could lead directly 
to the loss of thousands of lives.'' Id. The NSA activities are 
intended to help ``connect the dots'' between potential 
terrorists. Id. In addition, the Nation is facing ``a different 
era, a different war . . . people are changing phone numbers . 
. . and they're moving quick[ly].'' Id. As the President 
explained, the NSA activities ``enable[] us to move faster and 
quicker. And that's important. We've got to be fast on our 
feet, quick to detect and prevent.'' Id. ``This is an enemy 
that is quick and it's lethal. And sometimes we have to move 
very, very quickly.'' Id. FISA, by contrast, is better suited 
``for long-term monitoring.'' Id.
    As the President has explained, the NSA activities are 
``carefully reviewed approximately every 45 days to ensure that 
[they are] being used properly.'' Id. These activities are 
reviewed for legality by the Department of Justice and are 
monitored by the General Counsel and Inspector General of the 
NSA to ensure that civil liberties are being protected. Id. 
Leaders in Congress from both parties have been briefed more 
than a dozen times on the NSA activities.
C. The continuing threat posed by al Qaeda
    Before the September 11th attacks, al Qaeda had promised to 
attack the United States. In 1998, Osama bin Laden declared a 
``religious'' war against the United States and urged that it 
was the moral obligation of all Muslims to kill U.S. civilians 
and military personnel. See Statement of Osama bin Laden, Ayman 
al-Zawahiri, et al., Fatwah Urging Jihad Against Americans, 
published in Al-Quds al-'Arabi (Feb. 23, 1998) (``To kill the 
Americans and their allies--civilians and military--is an 
individual duty for every Muslim who can do it in any country 
in which it is possible to do it, in order to liberate the al-
Aqsa Mosque and the holy mosque from their grip, and in order 
for their armies to move out of all the lands of Islam, 
defeated and unable to threaten any Muslim.''). Al Qaeda 
carried out those threats with a vengeance; they attacked the 
U.S.S. Cole in Yemen, the United States Embassy in Nairobi, and 
finally the United States itself in the September 11th attacks.
    It is clear that al Qaeda is not content with the damage it 
wrought on September 11th. As recently as December 7, 2005, 
Ayman al-Zawahiri professed that al Qaeda ``is spreading, 
growing, and becoming stronger,'' and that al Qaeda is ``waging 
a great historic battle in Iraq, Afghanistan, Palestine, and 
even in the Crusaders' own homes.'' Ayman al-Zawahiri, 
videotape released on Al-Jazeera television network (Dec. 7, 
2005). Indeed, since September 11th, al Qaeda leaders have 
repeatedly promised to deliver another, even more devastating 
attack on America. See, e.g., Osama bin Laden, videotape 
released on Al-Jazeera television network (Oct. 24, 2004) 
(warning United States citizens of further attacks and 
asserting that ``your security is in your own hands''); Osama 
bin Laden, videotape released on Al-Jazeera television network 
(Oct. 18, 2003) (``We, God willing, will continue to fight you 
and will continue martyrdom operations inside and outside the 
United States. . . .''); Ayman Al-Zawahiri, videotape released 
on the Al-Jazeera television network (Oct. 9, 2002) (``I 
promise you [addressing the `citizens of the United States'] 
that the Islamic youth are preparing for you what will fill 
your hearts with horror''). Given that al Qaeda's leaders have 
repeatedly made good on their threats and that al Qaeda has 
demonstrated its ability to insert foreign agents into the 
United States to execute attacks, it is clear that the threat 
continues. Indeed, since September 11th, al Qaeda has staged 
several large-scale attacks around the world, including in 
Indonesia, Madrid, and London, killing hundreds of innocent 
people.


                                ANALYSIS


I. The President has inherent constitutional authority to order 
        warrantless foreign intelligence surveillance
    As Congress expressly recognized in the AUMF, ``the 
President has authority under the Constitution to take action 
to deter and prevent acts of international terrorism against 
the United States,'' AUMF pmbl., especially in the context of 
the current conflict. Article II of the Constitution vests in 
the President all executive power of the United States, 
including the power to act as Commander in Chief of the Armed 
Forces, see U.S. Const. art. II, Sec. 2, and authority over the 
conduct of the Nation's foreign affairs. As the Supreme Court 
has explained, ``[t]he President is the sole organ of the 
nation in its external relations, and its sole representative 
with foreign nations.'' United States v. Curtiss-Wright Export 
Corp., 299 U.S. 304, 319 (1936) (internal quotation marks and 
citations omitted). In this way, the Constitution grants the 
President inherent power to protect the Nation from foreign 
attack, see, e.g., The Prize Cases, 67 U.S. (2 Black) 635, 668 
(1863), and to protect national security information, see, 
e.g., Department of the Navy v. Egan, 484 U.S. 518, 527 (1988).
    To carry out these responsibilities, the President must 
have authority to gather information necessary for the 
execution of his office. The Founders, after all, intended the 
federal Government to be clothed with all authority necessary 
to protect the Nation. See, e.g., The Federalist No. 23, at 147 
(Alexander Hamilton) (Jacob E. Cooke ed. 1961) (explaining that 
the federal Government will be ``cloathed with all the powers 
requisite to the complete execution of its trust''); id. No. 
41, at 269 (James Madison) (``Security against foreign danger 
is one of the primitive objects of civil society. . . . The 
powers requisite for attaining it must be effectually confided 
to the federal councils.''). Because of the structural 
advantages of the Executive Branch, the Founders also intended 
that the President would have the primary responsibility and 
necessary authority as Commander in Chief and Chief Executive 
to protect the Nation and to conduct the Nation's foreign 
affairs. See, e.g., The Federalist No. 70, at 471-72 (Alexander 
Hamilton); see also Johnson v. Eisentrager, 339 U.S. 763, 788 
(1950) (``this [constitutional] grant of war power includes all 
that is necessary and proper for carrying these powers into 
execution'') (citation omitted). Thus, it has been long 
recognized that the President has the authority to use 
secretive means to collect intelligence necessary for the 
conduct of foreign affairs and military campaigns. See, e.g., 
Chicago & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 
111 (1948) (``The President, both as Commander-in-Chief and as 
the Nation's organ for foreign affairs, has available 
intelligence services whose reports are not and ought not to be 
published to the world.''); Curtiss-Wright, 299 U.S. at 320 
(``He has his confidential sources of information. He has his 
agents in the form of diplomatic, consular and other 
officials.''); Totten v. United States, 92 U.S. 105, 106 (1876) 
(President ``was undoubtedly authorized during the war, as 
commander-in-chief . . . to employ secret agents to enter the 
rebel lines and obtain information respecting the strength, 
resources, and movements of the enemy'').
    In reliance on these principles, a consistent understanding 
has developed that the President has inherent constitutional 
authority to conduct warrantless searches and surveillance 
within the United States for foreign intelligence purposes. 
Wiretaps for such purposes thus have been authorized by 
Presidents at least since the administration of Franklin 
Roosevelt in 1940. See, e.g., United States v. United States 
District Court, 444 F.2d 651, 669-71 (6th Cir. 1971) 
(reproducing as an appendix memoranda from Presidents 
Roosevelt, Truman, and Johnson). In a Memorandum to Attorney 
General Jackson, President Roosevelt wrote on May 21, 1940:

          You are, therefore, authorized and directed in such 
        cases as you may approve, after investigation of the 
        need in each case, to authorize the necessary 
        investigation agents that they are at liberty to secure 
        information by listening devices directed to the 
        conversation or other communications of persons 
        suspected of subversive activities against the 
        Government of the United States, including suspected 
        spies. You are requested furthermore to limit these 
        investigations so conducted to a minimum and limit them 
        insofar as possible to aliens.

Id. at 670 (appendix A). President Truman approved a memorandum 
drafted by Attorney General Tom Clark in which the Attorney 
General advised that ``it is as necessary as it was in 1940 to 
take the investigative measures'' authorized by President 
Roosevelt to conduct electronic surveillance ``in cases vitally 
affecting the domestic security.'' Id. Indeed, while FISA was 
being debated during the Carter Administration, Attorney 
General Griffin Bell testified that ``the current bill 
recognizes no inherent power of the President to conduct 
electronic surveillance, and I want to interpolate here to say 
that this does not take away the power [of] the President under 
the Constitution.'' Foreign Intelligence Electronic 
Surveillance Act of 1978: Hearings on H.R. 5764, H.R. 9745, 
H.R. 7308, and H.R. 5632 Before the Subcomm. on Legislation of 
the House Comm. on Intelligence, 95th Cong., 2d Sess. 15 (1978) 
(emphasis added); see also Katz v. United States, 389 U.S. 347, 
363 (1967) (White, J., concurring) (``Wiretapping to protect 
the security of the Nation has been authorized by successive 
Presidents.''); cf. Amending the Foreign Intelligence 
Surveillance Act: Hearings Before the House Permanent Select 
Comm. on Intelligence, 103d Cong. 2d Sess. 61 (1994) (statement 
of Deputy Attorney General Jamie S. Gorelick) (``[T]he 
Department of Justice believes, and the case law supports, that 
the President has inherent authority to conduct warrantless 
physical searches for foreign intelligence purposes. . . .'').
    The courts uniformly have approved this longstanding 
Executive Branch practice. Indeed, every federal appellate 
court to rule on the question has concluded that, even in 
peacetime, the President has inherent constitutional authority, 
consistent with the Fourth Amendment, to conduct searches for 
foreign intelligence purposes without securing a judicial 
warrant. See In re Sealed Case, 310 F.3d 717, 742 (Foreign 
Intel. Surv. Ct. of Rev. 2002) (``[A]ll the other courts to 
have decided the issue [have] held that the President did have 
inherent authority to conduct warrantless searches to obtain 
foreign intelligence information. . . . We take for granted 
that the President does have that authority and, assuming that 
is so, FISA could not encroach on the President's 
constitutional power.'') (emphasis added); accord, e.g., United 
States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980); 
United States v. Butenko, 494 F.2d 593 (3d Cir. 1974) (en 
banc); United States v. Brown, 484 F.2d 418 (5th Cir. 1973). 
But cf. Zweibon v. Mitchell, 516 F.2d 594 (D.C. Cir. 1975) (en 
banc) (dictum in plurality opinion suggesting that a warrant 
would be required even in a foreign intelligence 
investigation).
    In United States v. United States District Court, 407 U.S. 
297 (1972) (the ``Keith'' case), the Supreme Court concluded 
that the Fourth Amendment's warrant requirement applies to 
investigations of wholly domestic threats to security--such as 
domestic political violence and other crimes. But the Court in 
the Keith case made clear that it was not addressing the 
President's authority to conduct foreign intelligence 
surveillance without a warrant and that it was expressly 
reserving that question: ``[T]he instant case requires no 
judgment on the scope of the President's surveillance power 
with respect to the activities of foreign powers, within or 
without this country.'' Id. at 308; see also Id. at 321-22 & 
n.20 (``We have not addressed, and express no opinion as to, 
the issues which may be involved with respect to activities of 
foreign powers or their agents.''). That Keith does not apply 
in the context of protecting against a foreign attack has been 
confirmed by the lower courts. After Keith, each of the three 
courts of appeals that have squarely considered the question 
have concluded--expressly taking the Supreme Court's decision 
into account--that the President has inherent authority to 
conduct warrantless surveillance in the foreign intelligence 
context. See, e.g., Truong Dinh Hung, 629 F.2d at 913-14; 
Butenko, 494 F.2d at 603; Brown, 484 F.2d 425-26.
    From a constitutional standpoint, foreign intelligence 
surveillance such as the NSA activities differs fundamentally 
from the domestic security surveillance at issue in Keith. As 
the Fourth Circuit observed, the President has uniquely strong 
constitutional powers in matters pertaining to foreign affairs 
and national security. ``Perhaps most crucially, the executive 
branch not only has superior expertise in the area of foreign 
intelligence, it is also constitutionally designated as the 
pre-eminent authority in foreign affairs.'' Truong, 629 F.2d at 
914; see id. at 913 (noting that ``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 . . . unduly frustrate the President in 
carrying out his foreign affairs responsibilities''); cf. Haig 
v. Agee, 453 U.S. 280, 292 (1981) (``Matters intimately related 
to foreign policy and national security are rarely proper 
subjects for judicial intervention.''). \2\
---------------------------------------------------------------------------
    \2\ Keith made clear that one of the significant concerns driving 
the Court's conclusion in the domestic security context was the 
inevitable connection between perceived threats to domestic security 
and political dissent. As the Court explained: ``Fourth Amendment 
protections become the more necessary when the targets of official 
surveillance may be those suspected of unorthodoxy in their political 
beliefs. The danger to political dissent is acute where the Government 
attempts to act under so vague a concept as the power to protect 
`domestic security.' '' Keith, 407 U.S. at 314; see also id. at 320 
(``Security surveillances are especially sensitive because of the 
inherent vagueness of the domestic security concept, the necessarily 
broad and continuing nature of intelligence gathering, and the 
temptation to utilize such surveillances to oversee political 
dissent.''). Surveillance of domestic groups raises a First Amendment 
concern that generally is not present when the subjects of the 
surveillance are foreign powers or their agents.
---------------------------------------------------------------------------
    The present circumstances that support recognition of the 
President's inherent constitutional authority to conduct the 
NSA activities are considerably stronger than were the 
circumstances at issue in the earlier courts of appeals cases 
that recognized this power. All of the cases described above 
addressed inherent executive authority under the foreign 
affairs power to conduct surveillance in a peacetime context. 
The courts in these cases therefore had no occasion even to 
consider the fundamental authority of the President, as 
Commander in Chief, to gather intelligence in the context of an 
ongoing armed conflict in which the United States already had 
suffered massive civilian casualties and in which the 
intelligence gathering efforts at issue were specifically 
designed to thwart further armed attacks. Indeed, intelligence 
gathering is particularly important in the current conflict, in 
which the enemy attacks largely through clandestine activities 
and which, as Congress recognized, ``pose[s] an unusual and 
extraordinary threat,'' AUMF pmbl.
    Among the President's most basic constitutional duties is 
the duty to protect the Nation from armed attack. The 
Constitution gives him all necessary authority to fulfill that 
responsibility. The courts thus have long acknowledged the 
President's inherent authority to take action to protect 
Americans abroad, see, e.g., Durand v. Hollins, 8 F. Cas. 111, 
112 (C.C.S.D.N.Y. 1860) (No. 4186), and to protect the Nation 
from attack, see, e.g., The Prize Cases, 67 U.S. at 668. See 
generally Ex parte Quirin, 317 U.S. 1, 28 (1942) (recognizing 
that the President has authority under the Constitution ``to 
direct the performance of those functions which may 
constitutionally be performed by the military arm of the nation 
in time of war,'' including ``important incident[s] to the 
conduct of war,'' such as ``the adoption of measures by the 
military command . . . to repel and defeat the enemy''). As the 
Supreme Court emphasized in the Prize Cases, if the Nation is 
invaded, the President is ``bound to resist force by force''; 
``[h]e must determine what degree of force the crisis demands'' 
and need not await congressional sanction to do so. The Prize 
Cases, 67 U.S. at 670; see also Campbell v. Clinton, 203 F.3d 
19, 27 (D.C. Cir. 2000) (Silberman, J., concurring) (``[T]he 
Prize Cases . . . stand for the proposition that the President 
has independent authority to repel aggressive acts by third 
parties even without specific congressional authorization, and 
courts may not review the level of force selected.''); id. at 
40 (Tatel, J., concurring) (``[T]he President, as commander in 
chief, possesses emergency authority to use military force to 
defend the nation from attack without obtaining prior 
congressional approval.''). Indeed, ``in virtue of his rank as 
head of the forces, [the President] has certain powers and 
duties with which Congress cannot interfere.'' Training of 
British Flying Students in the United States, 40 Op. Att'y Gen. 
58, 61 (1941) (Attorney General Robert H. Jackson) (internal 
quotation marks omitted). In exercising his constitutional 
powers, the President has wide discretion, consistent with the 
Constitution, over the methods of gathering intelligence about 
the Nation's enemies in a time of armed conflict.
II. The AUMF confirms and supplements the President's inherent power to 
        use warrantless surveillance against the enemy in the current 
        armed conflict
    In the Authorization for Use of Military Force enacted in 
the wake of September 11th, Congress confirms and supplements 
the President's constitutional authority to protect the Nation, 
including through electronic surveillance, in the context of 
the current post-September 11th armed conflict with al Qaeda 
and its allies. The broad language of the AUMF affords the 
President, at a minimum, discretion to employ the traditional 
incidents of the use of military force. The history of the 
President's use of warrantless surveillance during armed 
conflicts demonstrates that the NSA surveillance described by 
the President is a fundamental incident of the use of military 
force that is necessarily included in the AUMF.
            A. The text and purpose of the AUMF authorize the NSA 
                    activities
    On September 14, 2001, in its first legislative response to 
the attacks of September 11th, Congress gave its express 
approval to the President's military campaign against al Qaeda 
and, in the process, confirmed the well-accepted understanding 
of the President's Article II powers. See AUMF Sec. 2(a). \3\ 
In the preamble to the AUMF, Congress stated that ``the 
President has authority under the Constitution to take action 
to deter and prevent acts of international terrorism against 
the United States,'' AUMF pmbl., and thereby acknowledged the 
President's inherent constitutional authority to defend the 
United States. This clause ``constitutes an extraordinarily 
sweeping recognition of independent presidential constitutional 
power to employ the war power to combat terrorism.'' Michael 
Stokes Paulsen, Youngstown Goes to War, 19 Const. Comment. 215, 
252 (2002). This striking recognition of presidential authority 
cannot be discounted as the product of excitement in the 
immediate aftermath of September 11th, for the same terms were 
repeated by Congress more than a year later in the 
Authorization for Use of Military Force Against Iraq Resolution 
of 2002. Pub. L. No. 107-243, pmbl., 116 Stat. 1498, 1500 (Oct. 
16, 2002) (``[T]he President has authority under the 
Constitution to take action in order to deter and prevent acts 
of international terrorism against the United States . . . 
.''). In the context of the conflict with al Qaeda and related 
terrorist organizations, therefore, Congress has acknowledged a 
broad executive authority to ``deter and prevent'' further 
attacks against the United States.
---------------------------------------------------------------------------
    \3\ America's military response began before the attacks of 
September 11th had been completed. See The 9/11 Commission Report 20 
(2004). Combat air patrols were established and authorized ``to engage 
inbound aircraft if they could verify that the aircraft was hijacked.'' 
Id. at 42.
---------------------------------------------------------------------------
    The AUMF passed by Congress on September 14, 2001, does not 
lend itself to a narrow reading. Its expansive language 
authorizes the President ``to use all necessary and appropriate 
force against those nations, organizations, or persons he 
determines planned, authorized, committed, or aided the 
terrorist attacks that occurred on September 11, 2001.'' AUMF 
Sec. 2(a) (emphases added). In the field of foreign affairs, 
and particularly that of war powers and national security, 
congressional enactments are to be broadly construed where they 
indicate support for authority long asserted and exercised by 
the Executive Branch. See, e.g., Haig v. Agee, 453 U.S. 280, 
293-303 (1981); United States ex rel. Knauff v. Shaughnessy, 
338 U.S. 537, 543-45 (1950); cf. Loving v. United States, 517 
U.S. 748, 772 (1996) (noting that the usual ``limitations on 
delegation [of congressional powers] do not apply'' to 
authorizations linked to the Commander in Chief power); Dames & 
Moore v. Regan, 453 U.S. 654, 678-82 (1981) (even where there 
is no express statutory authorization for executive action, 
legislation in related field may be construed to indicate 
congressional acquiescence in that action). Although Congress's 
war powers under Article I, Section 8 of the Constitution 
empower Congress to legislate regarding the raising, 
regulation, and material support of the Armed Forces and 
related matters, rather than the prosecution of military 
campaigns, the AUMF indicates Congress's endorsement of the 
President's use of his constitutional war powers. This 
authorization transforms the struggle against al Qaeda and 
related terrorist organizations from what Justice Jackson 
called ``a zone of twilight,'' in which the President and the 
Congress may have concurrent powers whose ``distribution is 
uncertain,'' Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 
579, 637 (1952) (Jackson, J., concurring), into a situation in 
which the President's authority is at its maximum because ``it 
includes all that he possesses in his own right plus all that 
Congress can delegate,'' id. at 635. With regard to these 
fundamental tools of warfare--and, as demonstrated below, 
warrantless electronic surveillance against the declared enemy 
is one such tool--the AUMF places the President's authority at 
its zenith under Youngstown.
    It is also clear that the AUMF confirms and supports the 
President's use of those traditional incidents of military 
force against the enemy, wherever they may be--on United States 
soil or abroad. The nature of the September 11th attacks--
launched on United States soil by foreign agents secreted in 
the United States--necessitates such authority, and the text of 
the AUMF confirms it. The operative terms of the AUMF state 
that the President is authorized to use force ``in order to 
prevent any future acts of international terrorism against the 
United States,'' id., an objective which, given the recent 
attacks within the Nation's borders and the continuing use of 
air defense throughout the country at the time Congress acted, 
undoubtedly contemplated the possibility of military action 
within the United States. The preamble, moreover, recites that 
the United States should exercise its rights ``to protect 
United States citizens both at home and abroad.'' Id. pmbl. 
(emphasis added). To take action against those linked to the 
September 11th attacks involves taking action against 
individuals within the United States. The United States had 
been attacked on its own soil--not by aircraft launched from 
carriers several hundred miles away, but by enemy agents who 
had resided in the United States for months. A crucial 
responsibility of the President--charged by the AUMF and the 
Constitution--was and is to identify and attack those enemies, 
especially if they were in the United States, ready to strike 
against the Nation.
    The text of the AUMF demonstrates in an additional way that 
Congress authorized the President to conduct warrantless 
electronic surveillance against the enemy. The terms of the 
AUMF not only authorized the President to ``use all necessary 
and appropriate force'' against those responsible for the 
September 11th attacks; it also authorized the President to 
``determine[]'' the persons or groups responsible for those 
attacks and to take all actions necessary to prevent further 
attacks. AUMF Sec. 2(a) (``the President is authorized 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 11th, 2001, or harbored such organizations or 
persons'') (emphasis added). Of vital importance to the use of 
force against the enemy is locating the enemy and identifying 
its plans of attack. And of vital importance to identifying the 
enemy and detecting possible future plots was the authority to 
intercept communications to or from the United States of 
persons with links to al Qaeda or related terrorist 
organizations. Given that the agents who carried out the 
initial attacks resided in the United States and had 
successfully blended into American society and disguised their 
identities and intentions until they were ready to strike, the 
necessity of using the most effective intelligence gathering 
tools against such an enemy, including electronic surveillance, 
was patent. Indeed, Congress recognized that the enemy in this 
conflict poses an ``unusual and extraordinary threat.'' AUMF 
pmbl.
    The Supreme Court's interpretation of the scope of the AUMF 
in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), strongly supports 
this reading of the AUMF. In Hamdi, five members of the Court 
found that the AUMF authorized the detention of an American 
within the United States, notwithstanding a statute that 
prohibits the detention of U.S. citizens ``except pursuant to 
an Act of Congress,'' 18 U.S.C. 4001(a). See Hamdi, 542 U.S. at 
519 (plurality opinion); id. at 587 (Thomas, J., dissenting). 
Drawing on historical materials and ``longstanding law-of-war 
principles,'' id. at 518-21, a plurality of the Court concluded 
that detention of combatants who fought against the United 
States as part of an organization ``known to have supported'' 
al Qaeda ``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.'' Id. at 518; see 
also id. at 587 (Thomas, J., dissenting) (agreeing with the 
plurality that the joint resolution authorized the President to 
``detain those arrayed against our troops''); accord Quirin, 
317 U.S. at 26-29, 38 (recognizing the President's authority to 
capture and try agents of the enemy in the United States even 
if they had never ``entered the theatre or zone of active 
military operations''). Thus, even though the AUMF does not say 
anything expressly about detention, the Court nevertheless 
found that it satisfied section 4001(a)'s requirement that 
detention be congressionally authorized.
    The conclusion of five Justices in Hamdi that the AUMF 
incorporates fundamental ``incidents'' of the use of military 
force makes clear that the absence of any specific reference to 
signals intelligence activities in the resolution is 
immaterial. See Hamdi, 542 U.S. at 519 (``[I]t is of no moment 
that the AUMF does not use specific language of detention.'') 
(plurality opinion). Indeed, given the circumstances in which 
the AUMF was adopted, it is hardly surprising that Congress 
chose to speak about the President's authority in general 
terms. The purpose of the AUMF was for Congress to sanction and 
support the military response to the devastating terrorist 
attacks that had occurred just three days earlier. Congress 
evidently thought it neither necessary nor appropriate to 
attempt to catalog every specific aspect of the use of the 
forces it was authorizing and every potential preexisting 
statutory limitation on the Executive Branch. Rather than 
engage in that difficult and impractical exercise, Congress 
authorized the President, in general but intentionally broad 
terms, to use the traditional and fundamental incidents of war 
and to determine how best to identify and engage the enemy in 
the current armed conflict. Congress's judgment to proceed in 
this manner was unassailable, for, as the Supreme Court has 
recognized, even in normal times involving no major national 
security crisis, ``Congress cannot anticipate and legislate 
with regard to every possible action the President may find it 
necessary to take.'' Dames & Moore, 453 U.S. at 678. Indeed, 
Congress often has enacted authorizations to use military force 
using general authorizing language that does not purport to 
catalogue in detail the specific powers the President may 
employ. The need for Congress to speak broadly in recognizing 
and augmenting the President's core constitutional powers over 
foreign affairs and military campaigns is of course 
significantly heightened in times of national emergency. See 
Zemel v. Rusk, 381 U.S. 1, 17 (1965) (``[B]ecause of the 
changeable and explosive nature of contemporary international 
relations . . . Congress--in giving the Executive authority 
over matters of foreign affairs--must of necessity paint with a 
brush broader than that it customarily wields in domestic 
areas.'').
    Hamdi thus establishes the proposition that the AUMF 
``clearly and unmistakably'' authorizes the President to take 
actions against al Qaeda and related organizations that amount 
to ``fundamental incident[s] of waging war.'' Hamdi, 542 U.S. 
at 519 (plurality opinion); see also id. at 587 (Thomas, J., 
dissenting). In other words, ``[t]he clear inference is that 
the AUMF authorizes what the laws of war permit.'' Curtis A. 
Bradley & Jack L. Goldsmith, Congressional Authorization and 
the War on Terrorism, 118 Harv. L. Rev. 2048, 2092 (2005) 
(emphasis added). Congress is presumed to be aware of the 
Supreme Court's precedents. Indeed, Congress recently enacted 
legislation in response to the Court's decision in Rasul v. 
Bush, 542 U.S. 466 (2004)--which was issued the same day as the 
Hamdi decision--removing habeas corpus jurisdiction over claims 
filed on behalf of confined enemy combatants held at Guantanamo 
Bay. Congress, however, has not expressed any disapproval of 
the Supreme Court's commonsense and plain-meaning 
interpretation of the AUMF in Hamdi.\4\
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    \4\ This understanding of the AUMF is consistent with Justice 
O'Connor's admonition that ``a state of war is not a blank check for 
the President,'' Hamdi, 542 U.S. at 536 (plurality opinion). In 
addition to constituting a fundamental and accepted incident of the use 
of military force, the NSA activities are consistent with the law of 
armed conflict principle that the use of force be necessary and 
proportional. See Dieter Fleck, The Handbook of Humanitarian Law in 
Armed Conflicts 115 (1995). The NSA activities are proportional because 
they are minimally invasive and narrow in scope, targeting only the 
international communications of persons reasonably believed to be 
linked to al Qaeda, and are designed to protect the Nation from a 
devastating attack.
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            B. Warrantless electronic surveillance aimed at 
                    intercepting enemy communications has long been 
                    recognized as a fundamental incident of the use of 
                    military force
    The history of warfare--including the consistent practice 
of Presidents since the earliest days of the Republic--
demonstrates that warrantless intelligence surveillance against 
the enemy is a fundamental incident of the use of military 
force, and this history confirms the statutory authority 
provided by the AUMF. Electronic surveillance is a fundamental 
tool of war that must be included in any natural reading of the 
AUMF's authorization to use ``all necessary and appropriate 
force.''
    As one author has explained:

         It is essential in warfare for a belligerent to be as 
        fully informed as possible about the enemy--his 
        strength, his weaknesses, measures taken by him and 
        measures contemplated by him. This applies not only to 
        military matters, but . . . anything which bears on and 
        is material to his ability to wage the war in which he 
        is engaged. The laws of war recognize and sanction this 
        aspect of warfare.

Morris Greenspan, The Modern Law of Land Warfare 325 (1959) 
(emphases added); see also Memorandum for Members of the House 
Permanent Select Comm. on Intel., from Jeffrey H. Smith, Re: 
Legal Authorities Regarding Warrantless Surveillance of U.S. 
Persons 6 (Jan. 3, 2006) (``Certainly, the collection of 
intelligence is understood to be necessary to the execution of 
the war.''). Similarly, article 24 of the Hague Regulations of 
1907 expressly states that ``the employment of measures 
necessary for obtaining information about the enemy and the 
country [is] considered permissible.'' See also L. Oppenheim, 
International Law vol. II Sec. 159 (7th ed. 1952) (``War cannot 
be waged without all kinds of information, about the forces and 
the intentions of the enemy . . . . To obtain the necessary 
information, it has always been considered lawful to employ 
spies . . . .''); Joseph R. Baker & Henry G. Crocker, The Laws 
of Land Warfare 197 (1919) (``Every belligerent has a right . . 
. to discover the signals of the enemy and . . . to seek to 
procure information regarding the enemy through the aid of 
secret agents.''); cf. J.M. Spaight, War Rights on Land 205 
(1911) (``[E]very nation employs spies; were a nation so 
quixotic as to refrain from doing so, it might as well sheathe 
its sword for ever. . . . Spies . . . are indispensably 
necessary to a general; and, other things being equal, that 
commander will be victorious who has the best secret 
service.'') (internal quotation marks omitted).
    In accordance with these well-established principles, the 
Supreme Court has consistently recognized the President's 
authority to conduct intelligence activities. See, e.g., Totten 
v. United States, 92 U.S. 105, 106 (1876) (recognizing 
President's authority to hire spies); Tenet v. Doe, 544 U.S. 1 
(2005) (reaffirming Totten and counseling against judicial 
interference with such matters); see also Chicago & S. Air 
Lines v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948) (``The 
President, both as Commander-in-Chief and as the Nation's organ 
for foreign affairs, has available intelligence services whose 
reports neither are not and ought not to be published to the 
world.''); United States v. Curtiss-Wright Export Corp., 299 
U.S. 304, 320 (1936) (The President ``has his confidential 
sources of information. He has his agents in the form of 
diplomatic, consular, and other officials.''). Chief Justice 
John Marshall even described the gathering of intelligence as a 
military duty. See Tatum v. Laird, 444 F.2d 947, 952-53 (D.C. 
Cir. 1971) (``As Chief Justice John Marshall said of 
Washington, `A general must be governed by his intelligence and 
must regulate his measures by his information. It is his duty 
to obtain correct information . . . .' '') (quoting Foreword, 
U.S. Army Basic Field Manual, Vol. X, circa 1938), rev'd on 
other grounds, 408 U.S. 1 (1972).
    The United States, furthermore, has a long history of 
wartime surveillance--a history that can be traced to George 
Washington, who ``was a master of military espionage'' and 
``made frequent and effective use of secret intelligence in the 
second half of the eighteenth century.'' Rhodri Jeffreys-Jones, 
Cloak and Dollar: A History of American Secret Intelligence 11 
(2002); see generally id. at 11-23 (recounting Washington's use 
of intelligence); see also Haig v. Agee, 471 U.S. 159, 172 n.16 
(1981) (quoting General Washington's letter to an agent 
embarking upon an intelligence mission in 1777: ``The necessity 
of procuring good intelligence, is apparent and need not be 
further urged.''). As President in 1790, Washington obtained 
from Congress a ``secret fund'' to deal with foreign dangers 
and to be spent at his discretion. Jeffreys-Jones, supra, at 
22. The fund, which remained in use until the creation of the 
Central Intelligence Agency in the mid-twentieth century and 
gained ``longstanding acceptance within our constitutional 
structure,'' Halperin v. CIA, 629 F.2d 144, 158-59 (D.C. Cir. 
1980), was used ``for all purposes to which a secret service 
fund should or could be applied for the public benefit,'' 
including ``for persons sent publicly and secretly to search 
for important information, political or commercial,'' id. at 
159 (quoting Statement of Senator John Forsyth, Cong. Debates 
295 (Feb. 25, 1831)). See also Totten, 92 U.S. at 107 (refusing 
to examine payments from this fund lest the publicity make a 
``secret service'' ``impossible'').
    The interception of communications, in particular, has long 
been accepted as a fundamental method for conducting wartime 
surveillance. See, e.g., Greenspan, supra, at 326 (accepted and 
customary means for gathering intelligence ``include air 
reconnaissance and photography; ground reconnaissance; 
observation of enemy positions; interception of enemy messages, 
wireless and other; examination of captured documents; . . . 
and interrogation of prisoners and civilian inhabitants'') 
(emphasis added). Indeed, since its independence, the United 
States has intercepted communications for wartime intelligence 
purposes and, if necessary, has done so within its own borders. 
During the Revolutionary War, for example, George Washington 
received and used to his advantage reports from American 
intelligence agents on British military strength, British 
strategic intentions, and British estimates of American 
strength. See Jeffreys-Jones, supra, at 13. One source of 
Washington's intelligence was intercepted British mail. See 
Central Intelligence Agency, Intelligence in the War of 
Independence 31, 32 (1997). In fact, Washington himself 
proposed that one of his Generals ``contrive a means of opening 
[British letters] without breaking the seals, take copies of 
the contents, and then let them go on.'' Id. at 32 (``From that 
point on, Washington was privy to British intelligence pouches 
between New York and Canada.''); see generally Final Report of 
the Select Committee to Study Governmental Operations with 
respect to Intelligence Activities (the ``Church Committee''), 
S. Rep. No. 94-755, at Book VI, 9-17 (Apr. 23, 1976) 
(describing Washington's intelligence activities).
    More specifically, warrantless electronic surveillance of 
wartime communications has been conducted in the United States 
since electronic communications have existed, i.e., since at 
least the Civil War, when ``[t]elegraph wiretapping was common, 
and an important intelligence source for both sides.'' G.J.A. 
O'Toole, The Encyclopedia of American Intelligence and 
Espionage 498 (1988). Confederate General J.E.B. Stuart even 
``had his own personal wiretapper travel along with him in the 
field'' to intercept military telegraphic communications. 
Samuel Dash, et al., The Eavesdroppers 23 (1971); see also 
O'Toole, supra, at 121, 385-88, 496-98 (discussing Civil War 
surveillance methods such as wiretaps, reconnaissance balloons, 
semaphore interception, and cryptanalysis). Similarly, there 
was extensive use of electronic surveillance during the 
Spanish-American War. See Bruce W. Bidwell, History of the 
Military Intelligence Division, Department of the Army General 
Staff: 1775-1941, at 62 (1986). When an American expeditionary 
force crossed into northern Mexico to confront the forces of 
Pancho Villa in 1916, the Army ``frequently intercepted 
messages of the regime in Mexico City or the forces contesting 
its rule.'' David Alvarez, Secret Messages 6-7 (2000). Shortly 
after Congress declared war on Germany in World War I, 
President Wilson (citing only his constitutional powers and the 
joint resolution declaring war) ordered the censorship of 
messages sent outside the United States via submarine cables, 
telegraph, and telephone lines. See Exec. Order No. 2604 (Apr. 
28, 1917). During that war, wireless telegraphy ``enabled each 
belligerent to tap the messages of the enemy.'' Bidwell, supra, 
at 165 (quoting statement of Col. W. Nicolai, former head of 
the Secret Service of the High Command of the German Army, in 
W. Nicolai, The German Secret Service 21 (1924)).
    As noted in Part I, on May 21, 1940, President Roosevelt 
authorized warrantless electronic surveillance of persons 
suspected of subversive activities, including spying, against 
the United States. In addition, on December 8, 1941, the day 
after the attack on Pearl Harbor, President Roosevelt gave the 
Director of the FBI ``temporary powers to direct all news 
censorship and to control all other telecommunications traffic 
in and out of the United States.'' Jack A. Gottschalk, 
``Consistent with Security''. . . . A History of American 
Military Press Censorship, 5 Comm. & L. 35, 39 (1983) (emphasis 
added). See Memorandum for the Secretaries of War, Navy, State, 
and Treasury, the Postmaster General, and the Federal 
Communications Commission from Franklin D. Roosevelt (Dec. 8, 
1941). President Roosevelt soon supplanted that temporary 
regime by establishing an office for conducting such electronic 
surveillance in accordance with the War Powers Act of 1941. See 
Pub. L. No. 77-354, Sec. 303, 55 Stat. 838, 840-41 (Dec. 18, 
1941); Gottschalk, 5 Comm. & L. at 40. The President's order 
gave the Government of the United States access to 
``communications by mail, cable, radio, or other means of 
transmission passing between the United States and any foreign 
country.'' Id. See also Exec. Order No. 8985, Sec. 1, 6 Fed. 
Reg. 6625, 6625 (Dec. 19, 1941). In addition, the United States 
systematically listened surreptitiously to electronic 
communications as part of the war effort. See Dash, 
Eavesdroppers, at 30. During World War II, signals intelligence 
assisted in, among other things, the destruction of the German 
U-boat fleet by the Allied naval forces, see id. at 27, and the 
war against Japan, see O'Toole, supra, at 32, 323-24. In 
general, signals intelligence ``helped to shorten the war by 
perhaps two years, reduce the loss of life, and make inevitable 
an eventual Allied victory.'' Carl Boyd, American Command of 
the Sea Through Carriers, Codes, and the Silent Service: World 
War II and Beyond, 27 (1995); see also Alvarez, supra, at 1 
(``There can be little doubt that signals intelligence 
contributed significantly to the military defeat of the 
Axis.''). Significantly, not only was wiretapping in World War 
II used ``extensively by military intelligence and secret 
service personnel in combat areas abroad,'' but also ``by the 
FBI and secret service in this country.'' Dash, supra, at 30.
    In light of the long history of prior wartime practice, the 
NSA activities fit squarely within the sweeping terms of the 
AUMF. The use of signals intelligence to identify and pinpoint 
the enemy is a traditional component of wartime military 
operations--or, to use the terminology of Hamdi, a 
``fundamental and accepted . . . incident to war,'' 542 U.S. at 
518 (plurality opinion)--employed to defeat the enemy and to 
prevent enemy attacks in the United States. Here, as in other 
conflicts, the enemy may use public communications networks, 
and some of the enemy may already be in the United States. 
Although those factors may be present in this conflict to a 
greater degree than in the past, neither is novel. Certainly, 
both factors were well known at the time Congress enacted the 
AUMF. Wartime interception of international communications made 
by the enemy thus should be understood, no less than the 
wartime detention at issue in Hamdi, as one of the basic 
methods of engaging and defeating the enemy that Congress 
authorized in approving ``all necessary and appropriate force'' 
that the President would need to defend the Nation. AUMF 
Sec. 2(a) (emphasis added).
    Accordingly, the President has the authority to conduct 
warrantless electronic surveillance against the declared enemy 
of the United States in a time of armed conflict. That 
authority derives from the Constitution, and is reinforced by 
the text and purpose of the AUMF, the nature of the threat 
posed by al Qaeda that Congress authorized the President to 
repel, and the long-established understanding that electronic 
surveillance is a fundamental incident of the use of military 
force. The President's power in authorizing the NSA activities 
is at its zenith because he has acted ``pursuant to an express 
or implied authorization of Congress.'' Youngstown, 343 U.S. at 
635 (Jackson, J., concurring).
III. The NSA activities are consistent with the foreign intelligence 
        surveillance act
    The President's exercise of his constitutional authority to 
conduct warrantless wartime electronic surveillance of the 
enemy, as confirmed and supplemented by statute in the AUMF, is 
fully consistent with the requirements of the Foreign 
Intelligence Surveillance Act (``FISA'').\5\ FISA is a 
critically important tool in the War on Terror. The United 
States makes full use of the authorities available under FISA 
to gather foreign intelligence information, including 
authorities to intercept communications, conduct physical 
searches, and install and use pen registers and trap and trace 
devices. While FISA establishes certain procedures that must be 
followed for these authorities to be used (procedures that 
usually involve applying for and obtaining an order from a 
special court), FISA also expressly contemplates that a later 
legislative enactment could authorize electronic surveillance 
outside the procedures set forth in FISA itself. The AUMF 
constitutes precisely such an enactment. To the extent there is 
any ambiguity on this point, the canon of constitutional 
avoidance requires that such ambiguity be resolved in favor of 
the President's authority to conduct the communications 
intelligence activities he has described. Finally, if FISA 
could not be read to allow the President to authorize the NSA 
activities during the current congressionally authorized armed 
conflict with al Qaeda, FISA would be unconstitutional as 
applied in this narrow context.
---------------------------------------------------------------------------
    \5\ To avoid revealing details about the operation of the program, 
it is assumed for purposes of this paper that the activities described 
by the President constitute ``electronic surveillance,'' as defined by 
FISA, 50 U.S.C. Sec. 1801(f).
---------------------------------------------------------------------------
            A. The requirements of FISA
    FISA was enacted in 1978 to regulate ``electronic 
surveillance,'' particularly when conducted to obtain ``foreign 
intelligence information,'' as those terms are defined in 
section 101 of FISA, 50 U.S.C. Sec. 1801. As a general matter, 
the statute requires that the Attorney General approve an 
application for an order from a special court composed of 
Article III judges and created by FISA--the Foreign 
Intelligence Surveillance Court (``FISC''). See 50 U.S.C. 
Sec. Sec. 1803-1804. The application must demonstrate, among 
other things, that there is probable cause to believe that the 
target is a foreign power or an agent of a foreign power. See 
id. Sec. 1805(a)(3)(A). It must also contain a certification 
from the Assistant to the President for National Security 
Affairs or an officer of the United States appointed by the 
President with the advice and consent of the Senate and having 
responsibilities in the area of national security or defense 
that the information sought is foreign intelligence information 
and cannot reasonably be obtained by normal investigative 
means. See id. Sec. 1804(a)(7). FISA further requires the 
Government to state the means that it proposes to use to obtain 
the information and the basis for its belief that the 
facilities at which the surveillance will be directed are being 
used or are about to be used by a foreign power or an agent of 
a foreign power. See id. Sec. 1804(a)(4), (a)(8).
    FISA was the first congressional measure that sought to 
impose restrictions on the Executive Branch's authority to 
engage in electronic surveillance for foreign intelligence 
purposes, an authority that, as noted above, had been 
repeatedly recognized by the federal courts. See Americo R. 
Cinquegrana, The Walls (and Wires) Have Ears: The Background 
and First Ten Years of the Foreign Intelligence Surveillance 
Act of 1978, 137 U. Penn. L. Rev. 793, 810 (1989) (stating that 
the ``status of the President's inherent authority'' to conduct 
surveillance ``formed the core of subsequent legislative 
deliberations'' leading to the enactment of FISA). To that end, 
FISA modified a provision in Title III that previously had 
disclaimed any intent to have laws governing wiretapping 
interfere with the President's constitutional authority to 
gather foreign intelligence. Prior to the passage of FISA, 
section 2511(3) of title 18 had stated that ``[n]othing 
contained in this chapter or in section 605 of the 
Communications Act of 1934 . . . 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 other hostile acts of a foreign power, to obtain 
foreign intelligence information deemed essential to the 
security of the United States, or to protect national security 
information against foreign intelligence activities.'' 18 
U.S.C. Sec. 2511(3) (1970). FISA replaced that provision with 
an important, though more limited, preservation of authority 
for the President. See Pub. L. No. 95-511, Sec. 201(b), (c), 92 
Stat. 1783, 1797 (1978), codified at 18 U.S.C. Sec. 2511(2)(f) 
(West Supp. 2005) (carving out from statutory regulation only 
the acquisition of intelligence information from 
``international or foreign communications'' and ``foreign 
intelligence activities . . . involving a foreign electronic 
communications system'' as long as they are accomplished 
``utilizing a means other than electronic surveillance as 
defined in section 101'' of FISA). Congress also defined 
``electronic surveillance,'' 50 U.S.C. Sec. 1801(f), carefully 
and somewhat narrowly.\6\
---------------------------------------------------------------------------
    \6\ FISA's legislative history reveals that these provisions were 
intended to exclude certain intelligence activities conducted by the 
National Security Agency from the coverage of FISA. According to the 
report of the Senate Judiciary Committee on FISA, ``this provision 
[referencing what became the first part of section 2511(2)(f)] is 
designed to make clear that the legislation does not deal with 
international signals intelligence activities as currently engaged in 
by the National Security Agency and electronic surveillance conducted 
outside the United States.'' S. Rep. No. 95-604, at 64 (1978), 
reprinted in 1978 U.S.C.C.A.N. 3904, 3965. The legislative history also 
makes clear that the definition of ``electronic surveillance'' was 
crafted for the same reason. See id. at 33-34, 1978 U.S.C.C.A.N. at 
3934-36. FISA thereby ``adopts the view expressed by the Attorney 
General during the hearings that enacting statutory controls to 
regulate the National Security Agency and the surveillance of Americans 
abroad raises problems best left to separate legislation.'' Id. at 64, 
1978 U.S.C.C.A.N. at 3965. Such legislation placing limitations on 
traditional NSA activities was drafted, but never passed. See National 
Intelligence Reorganization and Reform Act of 1978: Hearings Before the 
Senate Select Committee on Intelligence, 95th Cong., 2d Sess. 999-1007 
(1978) (text of unenacted legislation). And Congress understood that 
the NSA surveillance that it intended categorically to exclude from 
FISA could include the monitoring of international communications into 
or out of the United States of U.S. citizens. The report specifically 
referred to the Church Committee report for its description of the 
NSA's activities, S. Rep. No. 95-604, at 64 n.63, 1978 U.S.C.C.A.N. at 
3965-66 n.63, which stated that ``the NSA intercepts messages passing 
over international lines of communication, some of which have one 
terminal within the United States. Traveling over these lines of 
communication, especially those with one terminal in the United States, 
are messages of Americans. . . .'' S. Rep. 94-755, at Book II, 308 
(1976). Congress's understanding in the legislative history of FISA 
that such communications could be intercepted outside FISA procedures 
is notable.
---------------------------------------------------------------------------
    In addition, Congress addressed, to some degree, the manner 
in which FISA might apply after a formal declaration of war by 
expressly allowing warrantless surveillance for a period of 
fifteen days following such a declaration. Section 111 of FISA 
allows the President to ``authorize electronic surveillance 
without a court order under this subchapter to acquire foreign 
intelligence information for a period not to exceed fifteen 
calendar days following a declaration of war by the Congress.'' 
50 U.S.C. Sec. 1811.
    The legislative history of FISA shows that Congress 
understood it was legislating on fragile constitutional ground 
and was pressing or even exceeding constitutional limits in 
regulating the President's authority in the field of foreign 
intelligence. The final House Conference Report, for example, 
recognized that the statute's restrictions might well 
impermissibly infringe on the President's constitutional 
powers. That report includes the extraordinary acknowledgment 
that ``[t]he conferees agree that the establishment by this act 
of exclusive means by which the President may conduct 
electronic surveillance does not foreclose a different decision 
by the Supreme Court.'' H.R. Conf. Rep. No. 95-1720, at 35, 
reprinted in 1978 U.S.C.C.A.N. 4048, 4064. But, invoking 
Justice Jackson's concurrence in the Steel Seizure case, the 
Conference Report explained that Congress intended in FISA to 
exert whatever power Congress constitutionally had over the 
subject matter to restrict foreign intelligence surveillance 
and to leave the President solely with whatever inherent 
constitutional authority he might be able to invoke against 
Congress's express wishes. Id. The Report thus explains that 
``[t]he intent of the conferees is to apply the standard set 
forth in Justice Jackson's concurring opinion in the Steel 
Seizure Case: `When a President takes measures incompatible 
with the express or implied will of Congress, his power is at 
the lowest ebb, for then he can rely only upon his own 
constitutional power minus any constitutional power of Congress 
over the matter.' '' Id. (quoting Youngstown Sheet & Tube Co. 
v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring)); 
see also S. Rep. No. 95-604, at 64, reprinted in 1978 
U.S.C.C.A.N. at 3966 (same); see generally Elizabeth B. Bazen 
et al., Congressional Research Service, Re: Presidential 
Authority to Conduct Warrantless Electronic Surveillance to 
Gather Foreign Intelligence Information 28-29 (Jan. 5, 2006). 
It is significant, however, that Congress did not decide 
conclusively to continue to push the boundaries of its 
constitutional authority in wartime. Instead, Congress reserved 
the question of the appropriate procedures to regulate 
electronic surveillance in time of war, and established a 
fifteen-day period during which the President would be 
permitted to engage in electronic surveillance without 
complying with FISA's express procedures and during which 
Congress would have the opportunity to revisit the issue. See 
50 U.S.C. Sec. 1811; H.R. Conf. Rep. No. 95-1720, at 34, 
reprinted in 1978 U.S.C.C.A.N. at 4063 (noting that the purpose 
of the fifteen-day period following a declaration of war in 
section 111 of FISA was to ``allow time for consideration of 
any amendment to this act that may be appropriate during a 
wartime emergency'').
            B. FISA contemplates and allows surveillance authorized 
                    ``by statute''
    Congress did not attempt through FISA to prohibit the 
Executive Branch from using electronic surveillance. Instead, 
Congress acted to bring the exercise of that power under more 
stringent congressional control. See, e.g., H. Conf. Rep. No. 
95-1720, at 32, reprinted in 1978 U.S.C.C.A.N. 4048, 4064. 
Congress therefore enacted a regime intended to supplant the 
President's reliance on his own constitutional authority. 
Consistent with this overriding purpose of bringing the use of 
electronic surveillance under congressional control and with 
the commonsense notion that the Congress that enacted FISA 
could not bind future Congresses, FISA expressly contemplates 
that the Executive Branch may conduct electronic surveillance 
outside FISA's express procedures if and when a subsequent 
statute authorizes such surveillance.
    Thus, section 109 of FISA prohibits any person from 
intentionally ``engag[ing] . . . in electronic surveillance 
under color of law except as authorized by statute.'' 50 U.S.C. 
Sec. 1809(a)(1) (emphasis added). Because FISA's prohibitory 
provision broadly exempts surveillance ``authorized by 
statute,'' the provision demonstrates that Congress did not 
attempt to regulate through FISA electronic surveillance 
authorized by Congress through a subsequent enactment. The use 
of the term ``statute'' here is significant because it strongly 
suggests that any subsequent authorizing statute, not merely 
one that amends FISA itself, could legitimately authorize 
surveillance outside FISA's standard procedural requirements. 
Compare 18 U.S.C. Sec. 2511(1) (``Except as otherwise 
specifically provided in this chapter any person who--(a) 
intentionally intercepts . . . any wire, oral, or electronic 
communication[] . . . shall be punished. . . .'') (emphasis 
added); id. Sec. 2511(2)(e) (providing a defense to liability 
to individuals ``conduct[ing] electronic surveillance, . . . as 
authorized by that Act [FISA]'') (emphasis added). In enacting 
FISA, therefore, Congress contemplated the possibility that the 
President might be permitted to conduct electronic surveillance 
pursuant to a later-enacted statute that did not incorporate 
all of the procedural requirements set forth in FISA or that 
did not expressly amend FISA itself.
    To be sure, the scope of this exception is rendered less 
clear by the conforming amendments that FISA made to chapter 
119 of title 18--the portion of the criminal code that provides 
the mechanism for obtaining wiretaps for law enforcement 
purposes. Before FISA was enacted, chapter 119 made it a 
criminal offense for any person to intercept a communication 
except as specifically provided in that chapter. See 18 U.S.C. 
Sec. 2511(1)(a), (4)(a). Section 201(b) of FISA amended that 
chapter to provide an exception from criminal liability for 
activities conducted pursuant to FISA. Specifically, FISA added 
18 U.S.C. Sec. 2511(2)(e), which provides that it is not 
unlawful for ``an officer, employee, or agent of the United 
States . . . to conduct electronic surveillance, as defined in 
section 101 of the Foreign Intelligence Surveillance Act of 
1978, as authorized by that Act.'' Id. Sec. 2511(2)(e). 
Similarly, section 201(b) of FISA amended chapter 119 to 
provide that ``procedures in this chapter [or chapter 121 
(addressing access to stored wire and electronic communications 
and customer records)] and the Foreign Intelligence 
Surveillance Act of 1978 shall be the exclusive means by which 
electronic surveillance, as defined in section 101 of such Act, 
and the interception of domestic wire, oral, and electronic 
communications may be conducted.'' Id. Sec. 2511(2)(f) (West 
Supp. 2005).\7\
---------------------------------------------------------------------------
    \7\ The bracketed portion was added in 1986 amendments to section 
2511(2)(f). See Pub. L. No. 99-508 Sec. 101(b)(3), 100 Stat. 1848, 
1850.
---------------------------------------------------------------------------
    The amendments that section 201(b) of FISA made to title 18 
are fully consistent, however, with the conclusion that FISA 
contemplates that a subsequent statute could authorize 
electronic surveillance outside FISA's express procedural 
requirements. Section 2511(2)(e) of title 18, which provides 
that it is ``not unlawful'' for an officer of the United States 
to conduct electronic surveillance ``as authorized by'' FISA, 
is best understood as a safe-harbor provision. Because of 
section 109, the protection offered by section 2511(2)(e) for 
surveillance ``authorized by'' FISA extends to surveillance 
that is authorized by any other statute and therefore excepted 
from the prohibition of section 109. In any event, the purpose 
of section 2511(2)(e) is merely to make explicit what would 
already have been implicit--that those authorized by statute to 
engage in particular surveillance do not act unlawfully when 
they conduct such surveillance. Thus, even if that provision 
had not been enacted, an officer conducting surveillance 
authorized by statute (whether FISA or some other law) could 
not reasonably have been thought to be violating Title III. 
Similarly, section 2511(2)(e) cannot be read to require a 
result that would be manifestly unreasonable--exposing a 
federal officer to criminal liability for engaging in 
surveillance authorized by statute, merely because the 
authorizing statute happens not to be FISA itself.
    Nor could 18 U.S.C. Sec. 2511(2)(f), which provides that 
the ``procedures in this chapter . . . and the Foreign 
Intelligence Surveillance Act of 1978 shall be the exclusive 
means by which electronic surveillance . . . may be 
conducted,'' have been intended to trump the commonsense 
approach of section 109 and preclude a subsequent Congress from 
authorizing the President to engage in electronic surveillance 
through a statute other than FISA, using procedures other than 
those outlined in FISA or chapter 119 of title 18. The 
legislative history of section 2511(2)(f) clearly indicates an 
intent to prevent the President from engaging in surveillance 
except as authorized by Congress, see H.R. Conf. Rep. No. 95-
1720, at 32, reprinted in 1978 U.S.C.C.A.N. 4048, 4064, which 
explains why section 2511(2)(f) set forth all then-existing 
statutory restrictions on electronic surveillance. Section 
2511(2)(f)'s reference to ``exclusive means'' reflected the 
state of statutory authority for electronic surveillance in 
1978 and cautioned the President not to engage in electronic 
surveillance outside congressionally sanctioned parameters. It 
is implausible to think that, in attempting to limit the 
President's authority, Congress also limited its own future 
authority by barring subsequent Congresses from authorizing the 
Executive to engage in surveillance in ways not specifically 
enumerated in FISA or chapter 119, or by requiring a subsequent 
Congress specifically to amend FISA and section 2511(2)(f). 
There would be a serious question as to whether the Ninety-
Fifth Congress could have so tied the hands of its successors. 
See, e.g., Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 135 (1810) 
(noting that ``one legislature cannot abridge the powers of a 
succeeding legislature''); Reichelderfer v. Quinn, 287 U.S. 
315, 318 (1932) (``[T]he will of a particular Congress . . . 
does not impose itself upon those to follow in succeeding 
years''); Lockhart v. United States, 126 S. Ct. 699, 703 (2005) 
(Scalia, J., concurring) (collecting precedent); 1 W. 
Blackstone, Commentaries on the Laws of England 90 (1765) 
(``Acts of parliament derogatory from the power of subsequent 
parliaments bind not''). In the absence of a clear statement to 
the contrary, it cannot be presumed that Congress attempted to 
abnegate its own authority in such a way.
    Far from a clear statement of congressional intent to bind 
itself, there are indications that section 2511(2)(f) cannot be 
interpreted as requiring that all electronic surveillance and 
domestic interception be conducted under FISA's enumerated 
procedures or those of chapter 119 of title 18 until and unless 
those provisions are repealed or amended. Even when section 
2511(2)(f) was enacted (and no subsequent authorizing statute 
existed), it could not reasonably be read to preclude all 
electronic surveillance conducted outside the procedures of 
FISA or chapter 119 of title 18. In 1978, use of a pen register 
or trap and trace device constituted electronic surveillance as 
defined by FISA. See 50 U.S.C. Sec. Sec. 1801(f), (n). Title I 
of FISA provided procedures for obtaining court authorization 
for the use of pen registers to obtain foreign intelligence 
information. But the Supreme Court had, just prior to the 
enactment of FISA, held that chapter 119 of title 18 did not 
govern the use of pen registers. See United States v. New York 
Tel. Co., 434 U.S. 159, 165-68 (1977). Thus, if section 
2511(2)(f) were to be read to permit of no exceptions, the use 
of pen registers for purposes other than to collect foreign 
intelligence information would have been unlawful because such 
use would not have been authorized by the ``exclusive'' 
procedures of section 2511(2)(f), i.e., FISA and chapter 119. 
But no court has held that pen registers could not be 
authorized outside the foreign intelligence context. Indeed, 
FISA appears to have recognized this issue by providing a 
defense to liability for any official who engages in electronic 
surveillance under a search warrant or court order. See 50 
U.S.C. Sec. 1809(b). (The practice when FISA was enacted was 
for law enforcement officers to obtain search warrants under 
the Federal Rules of Criminal Procedure authorizing the 
installation and use of pen registers. See S. 1667, A Bill to 
Amend Title 18, United States Code, with Respect to the 
Interception of Certain Communications, Other Forms of 
Surveillance, and for Other Purposes: Hearing Before the 
Subcomm. On Patents, Copyrights and Trademarks of the Senate 
Comm. on the Judiciary, 99th Cong. 57 (1985) (prepared 
statement of James Knapp, Deputy Assistant Attorney General, 
Criminal Division)).\8\
---------------------------------------------------------------------------
    \8\ Alternatively, section 109(b) may be read to constitute a 
``procedure'' in FISA or to incorporate procedures from sources other 
than FISA (such as the Federal Rules of Criminal Procedure or state 
court procedures), and in that way to satisfy section 2511(2)(f). But 
if section 109(b)'s defense can be so read, section 109(a) should also 
be read to constitute a procedure or incorporate procedures not 
expressly enumerated in FISA.
---------------------------------------------------------------------------
    In addition, section 2511(2)(a)(ii) authorizes 
telecommunications providers to assist officers of the 
Government engaged in electronic surveillance when the Attorney 
General certifies that ``no warrant or court order is required 
by law [and] that all statutory requirements have been met.'' 
18 U.S.C. Sec. 2511(2)(a)(ii).\9\ If the Attorney General can 
certify, in good faith, that the requirements of a subsequent 
statute authorizing electronic surveillance are met, service 
providers are affirmatively and expressly authorized to assist 
the Government. Although FISA does allow the Government to 
proceed without a court order in several situations, see 50 
U.S.C. Sec. 1805(f) (emergencies); id. Sec. 1802 (certain 
communications between foreign governments), this provision 
specifically lists only Title III's emergency provision but 
speaks generally to Attorney General certification. That 
reference to Attorney General certification is consistent with 
the historical practice in which Presidents have delegated to 
the Attorney General authority to approve warrantless 
surveillance for foreign intelligence purposes. See, e.g., 
United States v. United States District Court, 444 F.2d 651, 
669-71 (6th Cir. 1971) (reproducing as an appendix memoranda 
from Presidents Roosevelt, Truman, and Johnson). Section 
2511(2)(a)(ii) thus suggests that telecommunications providers 
can be authorized to assist with warrantless electronic 
surveillance when such surveillance is authorized by law 
outside FISA.
---------------------------------------------------------------------------
    \9\ Section 2511(2)(a)(ii) states: ``Notwithstanding any other law, 
providers of wire or electronic communication service, . . . are 
authorized by law to provide information, facilities, or technical 
assistance to persons authorized by law to intercept . . . 
communications or to conduct electronic surveillance, as defined [by 
FISA], if such provider . . . has been provided with . . . a 
certification in writing by [specified persons proceeding under Title 
III's emergency provision] or the Attorney General of the United States 
that no warrant or court order is required by law, that all statutory 
requirements have been met, and that the specific assistance is 
required.''
---------------------------------------------------------------------------
    In sum, by expressly and broadly excepting from its 
prohibition electronic surveillance undertaken ``as authorized 
by statute,'' section 109 of FISA permits an exception to the 
``procedures'' of FISA referred to in 18 U.S.C. Sec. 2511(2)(f) 
where authorized by another statute, even if the other 
authorizing statute does not specifically amend section 
2511(2)(f).
            C. The AUMF is a ``statute'' authorizing surveillance 
                    outside the confines of FISA
    The AUMF qualifies as a ``statute'' authorizing electronic 
surveillance within the meaning of section 109 of FISA.
    First, because the term ``statute'' historically has been 
given broad meaning, the phrase ``authorized by statute'' in 
section 109 of FISA must be read to include joint resolutions 
such as the AUMF. See American Fed'n of Labor v. Watson, 327 
U.S. 582, 592-93 (1946) (finding the term ``statute'' as used 
in 28 U.S.C. Sec. 380 to mean ``a compendious summary of 
various enactments, by whatever method they may be adopted, to 
which a State gives her sanction''); Black's Law Dictionary 
1410 (6th ed. 1990) (defining ``statute'' broadly to include 
any ``formal written enactment of a legislative body,'' and 
stating that the term is used ``to designate the legislatively 
created laws in contradistinction to court decided or unwritten 
laws''). It is thus of no significance to this analysis that 
the AUMF was enacted as a joint resolution rather than a bill. 
See, e.g., Ann Arbor R.R. Co. v. United States, 281 U.S. 658, 
666 (1930) (joint resolutions are to be construed by applying 
``the rules applicable to legislation in general''); United 
States ex rel. Levey v. Stockslager, 129 U.S. 470, 475 (1889) 
(joint resolution had ``all the characteristics and effects'' 
of statute that it suspended); Padilla ex rel. Newman v. Bush, 
233 F. Supp. 2d 564, 598 (S.D.N.Y. 2002) (in analyzing the 
AUMF, finding that there is ``no relevant constitutional 
difference between a bill and a joint resolution''), rev'd sub 
nom. on other grounds, Rumsfeld v. Padilla, 352 F.3d 695 (2d 
Cir. 2003), rev'd, 542 U.S. 426 (2004); see also Letter for the 
Hon. John Conyers, Jr., U.S. House of Representatives, from 
Prof. Laurence H. Tribe at 3 (Jan. 6, 2006) (term ``statute'' 
in section 109 of FISA ``of course encompasses a joint 
resolution presented to and signed by the President'').
    Second, the longstanding history of communications 
intelligence as a fundamental incident of the use of force and 
the Supreme Court's decision in Hamdi v. Rumsfeld strongly 
suggest that the AUMF satisfies the requirement of section 109 
of FISA for statutory authorization of electronic surveillance. 
As explained above, it is not necessary to demarcate the outer 
limits of the AUMF to conclude that it encompasses electronic 
surveillance targeted at the enemy. Just as a majority of the 
Court concluded in Hamdi that the AUMF authorizes detention of 
U.S. citizens who are enemy combatants without expressly 
mentioning the President's long-recognized power to detain, so 
too does it authorize the use of electronic surveillance 
without specifically mentioning the President's equally long-
recognized power to engage in communications intelligence 
targeted at the enemy. And just as the AUMF satisfies the 
requirement in 18 U.S.C. Sec. 4001(a) that no U.S. citizen be 
detained ``except pursuant to an Act of Congress,'' so too does 
it satisfy section 109's requirement for statutory 
authorization of electronic surveillance.\10\ In authorizing 
the President's use of force in response to the September 11th 
attacks, Congress did not need to comb through the United 
States Code looking for those restrictions that it had placed 
on national security operations during times of peace and 
designate with specificity each traditional tool of military 
force that it sought to authorize the President to use. There 
is no historical precedent for such a requirement: 
authorizations to use military force traditionally have been 
couched in general language. Indeed, prior administrations have 
interpreted joint resolutions declaring war and authorizing the 
use of military force to authorize expansive collection of 
communications into and out of the United States.\11\
---------------------------------------------------------------------------
    \10\ It might be argued that Congress dealt more comprehensively 
with electronic surveillance in FISA than it did with detention in 18 
U.S.C. Sec. 4001(a). Thus, although Congress prohibited detention 
``except pursuant to an Act of Congress,'' it combined the analogous 
prohibition in FISA (section 109(a)) with section 2511(2)(f)'s 
exclusivity provision. See Letter to the Hon. Bill Frist, Majority 
Leader, U.S. Senate, from Professor Curtis A. Bradley et al. at 5 n.6 
(Jan. 9, 2006) (noting that section 4001(a) does not ``attempt[] to 
create an exclusive mechanism for detention''). On closer examination, 
however, it is evident that Congress has regulated detention far more 
meticulously than these arguments suggest. Detention is the topic of 
much of the Criminal Code, as well as a variety of other statutes, 
including those providing for civil commitment of the mentally ill and 
confinement of alien terrorists. The existence of these statutes and 
accompanying extensive procedural safeguards, combined with the 
substantial constitutional issues inherent in detention, see, e.g., 
Hamdi, 542 U.S. at 574-75 (Scalia, J., dissenting), refute any such 
argument.
    \11\ As noted above, in intercepting communications, President 
Wilson relied on his constitutional authority and the joint resolution 
declaring war and authorizing the use of military force, which, as 
relevant here, provided ``that the President [is] authorized and 
directed to employ the entire naval and military forces of the United 
States and the resources of the Government to carry on war against the 
Imperial German Government; and to bring the conflict to a successful 
termination all of the resources of the country are hereby pledged by 
the Congress of the United States.'' Joint Resolution of Apr. 6, 1917, 
ch. 1, 40 Stat. 1. The authorization did not explicitly mention 
interception of communications.
---------------------------------------------------------------------------
    Moreover, crucial to the Framers' decision to vest the 
President with primary constitutional authority to defend the 
Nation from foreign attack is the fact that the Executive can 
act quickly, decisively, and flexibly as needed. For Congress 
to have a role in that process, it must be able to act with 
similar speed, either to lend its support to, or to signal its 
disagreement with, proposed military action. Yet the need for 
prompt decisionmaking in the wake of a devastating attack on 
the United States is fundamentally inconsistent with the notion 
that to do so Congress must legislate at a level of detail more 
in keeping with a peacetime budget reconciliation bill. In 
emergency situations, Congress must be able to use broad 
language that effectively sanctions the President's use of the 
core incidents of military force. That is precisely what 
Congress did when it passed the AUMF on September 14, 2001--
just three days after the deadly attacks on America. The 
Capitol had been evacuated on September 11th, and Congress was 
meeting in scattered locations. As an account emerged of who 
might be responsible for these attacks, Congress acted quickly 
to authorize the President to use ``all necessary and 
appropriate force'' against the enemy that he determines was 
involved in the September 11th attacks. Under these 
circumstances, it would be unreasonable and wholly impractical 
to demand that Congress specifically amend FISA in order to 
assist the President in defending the Nation. Such specificity 
would also have been self-defeating because it would have 
apprised our adversaries of some of our most sensitive methods 
of intelligence gathering.\12\
---------------------------------------------------------------------------
    \12\ Some have suggested that the Administration declined to seek a 
specific amendment to FISA allowing the NSA activities ``because it was 
advised that Congress would reject such an amendment,'' Letter to the 
Hon. Bill Frist, Majority Leader, U.S. Senate, from Professor Curtis A. 
Bradley et al. 4 & n.4 (Jan. 9, 2005), and they have quoted in support 
of that assertion the Attorney General's statement that certain Members 
of Congress advised the Administration that legislative relief ``would 
be difficult, if not impossible.'' Id. at 4 n.4. As the Attorney 
General subsequently indicated, however, the difficulty with such 
specific legislation was that it could not be enacted ``without 
compromising the program.'' See Remarks by Homeland Security Secretary 
Chertoff and Attorney General Gonzales on the USA PATRIOT Act (Dec. 21, 
2005), available at http://www.dhs.gov/dhspublic/display?content=5285.
---------------------------------------------------------------------------
    Section 111 of FISA, 50 U.S.C. Sec. 1811, which authorizes 
the President, ``[n]otwithstanding any other law,'' to conduct 
``electronic surveillance without a court order under this 
subchapter to acquire foreign intelligence information for a 
period not to exceed fifteen calendar days following a 
declaration of war by Congress,'' does not require a different 
reading of the AUMF. See also id. Sec. 1844 (same provision for 
pen registers); id. Sec. 1829 (same provision for physical 
searches). Section 111 cannot reasonably be read as Congress's 
final word on electronic surveillance during wartime, thus 
permanently limiting the President in all circumstances to a 
mere fifteen days of warrantless military intelligence 
gathering targeted at the enemy following a declaration of war. 
Rather, section 111 represents Congress's recognition that it 
would likely have to return to the subject and provide 
additional authorization to conduct warrantless electronic 
surveillance outside FISA during time of war. The Conference 
Report explicitly stated the conferees' ``inten[t] that this 
[fifteen-day] period will allow time for consideration of any 
amendment to this act that may be appropriate during a wartime 
emergency.'' H.R. Conf. Rep. No. 95-1720, at 34, reprinted in 
1978 U.S.C.C.A.N. at 4063. Congress enacted section 111 so that 
the President could conduct warrantless surveillance while 
Congress considered supplemental wartime legislation.
    Nothing in the terms of section 111 disables Congress from 
authorizing such electronic surveillance as a traditional 
incident of war through a broad, conflict-specific 
authorization for the use of military force, such as the AUMF. 
Although the legislative history of section 111 indicates that 
in 1978 some Members of Congress believed that any such 
authorization would come in the form of a particularized 
amendment to FISA itself, section 111 does not require that 
result. Nor could the Ninety-Fifth Congress tie the hands of a 
subsequent Congress in this way, at least in the absence of far 
clearer statutory language expressly requiring that result. See 
supra, pp. 21-22; compare, e.g., War Powers Resolution, Sec. 8, 
50 U.S.C. Sec. 1547(a) (``Authority to introduce United States 
Armed Forces into hostilities . . . shall not be inferred . . . 
from any provision of law . . . unless such provision 
specifically authorizes [such] introduction . . . and states 
that it is intended to constitute specific statutory 
authorization within the meaning of this chapter.''); 10 U.S.C. 
Sec. 401 (stating that any other provision of law providing 
assistance to foreign countries to detect and clear landmines 
shall be subject to specific limitations and may be construed 
as superseding such limitations ``only if, and to the extent 
that, such provision specifically refers to this section and 
specifically identifies the provision of this section that is 
to be considered superseded or otherwise inapplicable''). An 
interpretation of section 111 that would disable Congress from 
authorizing broader electronic surveillance in that form can be 
reconciled neither with the purposes of section 111 nor with 
the well-established proposition that ``one legislature cannot 
abridge the powers of a succeeding legislature.'' Fletcher v. 
Peck, 10 U.S. (6 Cranch) at 135; see supra Part II.B. For these 
reasons, the better interpretation is that section 111 was not 
intended to, and did not, foreclose Congress from using the 
AUMF as the legal vehicle for supplementing the President's 
existing authority under FISA in the battle against al Qaeda.
    The contrary interpretation of section 111 also ignores the 
important differences between a formal declaration of war and a 
resolution such as the AUMF. As a historical matter, a formal 
declaration of war was no longer than a sentence, and thus 
Congress would not expect a declaration of war to outline the 
extent to which Congress authorized the President to engage in 
various incidents of waging war. Authorizations for the use of 
military force, by contrast, are typically more detailed and 
are made for the specific purpose of reciting the manner in 
which Congress has authorized the President to act. Thus, 
Congress could reasonably expect that an authorization for the 
use of military force would address the issue of wartime 
surveillance, while a declaration of war would not. Here, the 
AUMF declares that the Nation faces ``an unusual and 
extraordinary threat,'' acknowledges that ``the President has 
authority under the Constitution to take action to deter and 
prevent acts of international terrorism against the United 
States,'' and provides that the President is authorized ``to 
use all necessary and appropriate force'' against those ``he 
determines'' are linked to the September 11th attacks. AUMF 
pmbl., Sec. 2. This sweeping language goes far beyond the bare 
terms of a declaration of war. Compare, e.g., Act of Apr. 25, 
1898, ch. 189, 30 Stat. 364 (``First. That war be, and the same 
is hereby declared to exist . . . between the United States of 
America and the Kingdom of Spain.'').
    Although legislation that has included a declaration of war 
has often also included an authorization of the President to 
use force, these provisions are separate and need not be 
combined in a single statute. See, e.g., id. (``Second. That 
the President of the United States be, and he hereby is, 
directed and empowered to use the entire land and naval forces 
of the United States, and to call into the actual service of 
the United States the militia of the several states, to such 
extent as may be necessary to carry this Act into effect.'') 
(emphasis added). Moreover, declarations of war have legal 
significance independent of any additional authorization of 
force that might follow. See, e.g., Louis Henkin, Foreign 
Affairs and the U.S. Constitution 75 (2d ed. 1996) (explaining 
that a formal state of war has various legal effects, such as 
terminating diplomatic relations, and abrogating or suspending 
treaty obligations and international law rights and duties); 
see also id. at 370 n.65 (speculating that one reason to fight 
an undeclared war would be to ``avoid the traditional 
consequences of declared war on relations with third nations or 
even . . . belligerents'').
    In addition, section 111 does not cover the vast majority 
of modern military conflicts. The last declared war was World 
War II. Indeed, the most recent conflict prior to the passage 
of FISA, Vietnam, was fought without a formal declaration of 
war. In addition, the War Powers Resolution, enacted less than 
five years before FISA, clearly recognizes the distinctions 
between formal declarations of war and authorizations of force 
and demonstrates that, if Congress had wanted to include such 
authorizations in section 111, it knew how to do so. See, e.g., 
50 U.S.C. Sec. 1544(b) (attempting to impose certain 
consequences 60 days after reporting the initiation of 
hostilities to Congress ``unless the Congress . . . has 
declared war or has enacted a specific authorization for such 
use'' of military force) (emphasis added). It is possible that, 
in enacting section 111, Congress intended to make no provision 
for even the temporary use of electronic surveillance without a 
court order for what had become the legal regime for most 
military conflicts. A better reading, however, is that Congress 
assumed that such a default provision would be unnecessary 
because, if it had acted through an authorization for the use 
of military force, the more detailed provisions of that 
authorization would resolve the extent to which Congress would 
attempt to authorize, or withhold authorization for, the use of 
electronic surveillance.\13\
---------------------------------------------------------------------------
    \13\ Some have pointed to the specific amendments to FISA that 
Congress made shortly after September 11th in the USA PATRIOT Act, Pub. 
L. No. 107-56, Sec. Sec. 204, 218, 115 Stat. 272, 281, 291 (2001), to 
argue that Congress did not contemplate electronic surveillance outside 
the parameters of FISA. See Memorandum for Members of the House 
Permanent Select Comm. on Intel. from Jeffrey H. Smith, Re: Legal 
Authorities Regarding Warrantless Surveillance of U.S. Persons 6-7 
(Jan. 3, 2006). The USA PATRIOT Act amendments, however, do not justify 
giving the AUMF an unnaturally narrow reading. The USA PATRIOT Act 
amendments made important corrections in the general application of 
FISA; they were not intended to define the precise incidents of 
military force that would be available to the President in prosecuting 
the current armed conflict against al Qaeda and its allies. Many 
removed long-standing impediments to the effectiveness of FISA that had 
contributed to the maintenance of an unnecessary ``wall'' between 
foreign intelligence gathering and criminal law enforcement; others 
were technical clarifications. See In re Sealed Case, 310 F.3d 717, 
725-30 (Foreign Int. Surv. Ct. Rev. 2002). The ``wall'' had been 
identified as a significant problem hampering the Government's 
efficient use of foreign intelligence information well before the 
September 11th attacks and in contexts unrelated to terrorism. See, 
e.g., Final Report of the Attorney General's Review Team on the 
Handling of the Los Alamos National Laboratory Investigation 710, 729, 
732 (May 2000); General Accounting Office, FBI Intelligence 
Investigations: Coordination Within Justice on Counterintelligence 
Criminal Matters Is Limited (GAO-01-780) 3, 31 (July 2001). Finally, it 
is worth noting that Justice Souter made a similar argument in Hamdi 
that the USA PATRIOT Act all but compelled a narrow reading of the 
AUMF. See 542 U.S. at 551 (``It is very difficult to believe that the 
same Congress that carefully circumscribed Executive power over alien 
terrorists on home soil [in the USA PATRIOT Act] would not have meant 
to require the Government to justify clearly its detention of an 
American citizen held on home soil incommunicado.''). Only Justice 
Ginsburg joined this opinion, and the position was rejected by a 
majority of Justices.
    Nor do later amendments to FISA undermine the conclusion that the 
AUMF authorizes electronic surveillance outside the procedures of FISA. 
Three months after the enactment of the AUMF, Congress enacted certain 
``technical amendments'' to FISA which, inter alia, extended the time 
during which the Attorney General may issue an emergency authorization 
of electronic surveillance from 24 to 72 hours. See Intelligence 
Authorization Act for Fiscal Year 2002, Pub. L. No. 107-108, Sec. 314, 
115 Stat. 1394, 1402 (2001). These modifications to FISA do not in any 
way undermine Congress's previous authorization in the AUMF for the 
President to engage in electronic surveillance outside the parameters 
of FISA in the specific context of the armed conflict with al Qaeda.
---------------------------------------------------------------------------
    The broad text of the AUMF, the authoritative 
interpretation that the Supreme Court gave it in Hamdi, and the 
circumstances in which it was passed demonstrate that the AUMF 
is a statute authorizing electronic surveillance under section 
109 of FISA. When the President authorizes electronic 
surveillance against the enemy pursuant to the AUMF, he is 
therefore acting at the height of his authority under 
Youngstown, 343 U.S. at 637 (Jackson, J., concurring).
            D. The Canon of constitutional advoidance requires 
                    resolving in favor of the President's authority any 
                    ambiguity about whether FISA forbids the NSA 
                    activities
    As explained above, the AUMF fully authorizes the NSA 
activities. Because FISA contemplates the possibility that 
subsequent statutes could authorize electronic surveillance 
without requiring FISA's standard procedures, the NSA 
activities are also consistent with FISA and related provisions 
in title 18. Nevertheless, some might argue that sections 109 
and 111 of FISA, along with section 2511(2)(f)'s 
``exclusivity'' provision and section 2511(2)(e)'s liability 
exception for officers engaged in FISA-authorized surveillance, 
are best read to suggest that FISA requires that subsequent 
authorizing legislation specifically amend FISA in order to 
free the Executive from FISA's enumerated procedures. As 
detailed above, this is not the better reading of FISA. But 
even if these provisions were ambiguous, any doubt as to 
whether the AUMF and FISA should be understood to allow the 
President to make tactical military decisions to authorize 
surveillance outside the parameters of FISA must be resolved to 
avoid the serious constitutional questions that a contrary 
interpretation would raise.
    It is well established that the first task of any 
interpreter faced with a statute that may present an 
unconstitutional infringement on the powers of the President is 
to determine whether the statute may be construed to avoid the 
constitutional difficulty. ``[I]f an otherwise 
acceptableconstruction of a statute would raise serious constitutional 
problems, and where an alternative interpretation of the statute is 
`fairly possible,' we are obligated to construe the statute to avoid 
such problems.'' INS v. St. Cyr, 533 U.S. 289, 299-300 (2001) 
(citations omitted); Ashwander v. TVA, 297 U.S. 288, 345-48 (1936) 
(Brandeis, J., concurring). Moreover, the canon of constitutional 
avoidance has particular importance in the realm of national security, 
where the President's constitutional authority is at its highest. See 
Department of the Navy v. Egan, 484 U.S. 518, 527, 530 (1988); William 
N. Eskridge, Jr., Dynamic Statutory Interpretation 325 (1994) 
(describing ``[s]uper-strong rule against congressional interference 
with the President's authority over foreign affairs and national 
security''). Thus, courts and the Executive Branch typically construe a 
general statute, even one that is written in unqualified terms, to be 
implicitly limited so as not to infringe on the President's Commander 
in Chief powers.
    Reading FISA to prohibit the NSA activities would raise two 
serious constitutional questions, both of which must be avoided 
if possible: (1) whether the signals intelligence collection 
the President determined was necessary to undertake is such a 
core exercise of Commander in Chief control over the Armed 
Forces during armed conflict that Congress cannot interfere 
with it at all and (2) whether the particular restrictions 
imposed by FISA are such that their application would 
impermissibly impede the President's exercise of his 
constitutionally assigned duties as Commander in Chief. 
Constitutional avoidance principles require interpreting FISA, 
at least in the context of the military conflict authorized by 
the AUMF, to avoid these questions, if ``fairly possible.'' 
Even if Congress intended FISA to use the full extent of its 
constitutional authority to ``occupy the field'' of 
``electronic surveillance,'' as FISA used that term, during 
peacetime, the legislative history indicates that Congress had 
not reached a definitive conclusion about its regulation during 
wartime. See H.R. Conf. Rep. No. 95-1720, at 34, reprinted in 
1978 U.S.C.C.A.N. at 4063 (noting that the purpose of the 
fifteen-day period following a declaration of war in section 
111 of FISA was to ``allow time for consideration of any 
amendment to this act that may be appropriate during a wartime 
emergency''). Therefore, it is not clear that Congress, in 
fact, intended to test the limits of its constitutional 
authority in the context of wartime electronic surveillance.
    Whether Congress may interfere with the President's 
constitutional authority to collect foreign intelligence 
information through interception of communications reasonably 
believed to be linked to the enemy poses a difficult 
constitutional question. As explained in Part I, it had long 
been accepted at the time of FISA's enactment that the 
President has inherent constitutional authority to conduct 
warrantless electronic surveillance for foreign intelligence 
purposes. Congress recognized at the time that the enactment of 
a statute purporting to eliminate the President's ability, even 
during peacetime, to conduct warrantless electronic 
surveillance to collect foreign intelligence was near or 
perhaps beyond the limit of Congress's Article I powers. The 
NSA activities, however, involve signals intelligence performed 
in the midst of a congressionally authorized armed conflict 
undertaken to prevent further hostile attacks on the United 
States. The NSA activities lie at the very core of the 
Commander in Chief power, especially in light of the AUMF's 
explicit authorization for the President to take all necessary 
and appropriate military action to stop al Qaeda from striking 
again. The constitutional principles at stake here thus involve 
not merely the President's well-established inherent authority 
to conduct warrantless surveillance for foreign intelligence 
purposes during peacetime, but also the powers and duties 
expressly conferred on him as Commander in Chief by Article II.
    Even outside the context of wartime surveillance of the 
enemy, the source and scope of Congress's power to restrict the 
President's inherent authority to conduct foreign intelligence 
surveillance is unclear. As explained above, the President's 
role as sole organ for the Nation in foreign affairs has long 
been recognized as carrying with it preeminent authority in the 
field of national security and foreign intelligence. The source 
of this authority traces to the Vesting Clause of Article II, 
which states that ``[t]he executive Power shall be vested in a 
President of the United States of America.'' U.S. Const. art. 
II, Sec. 1. The Vesting Clause ``has long been held to confer 
on the President plenary authority to represent the United 
States and to pursue its interests outside the borders of the 
country, subject only to limits specifically set forth in the 
Constitution itself and to such statutory limitations as the 
Constitution permits Congress to impose by exercising one of 
its enumerated powers.'' The President's Compliance with the 
``Timely Notification'' Requirement of Section 501(b) of the 
National Security Act, 10 Op. O.L.C. 159, 160-61 (1986) 
(``Timely Notification Requirement Op.'').
    Moreover, it is clear that some presidential authorities in 
this context are beyond Congress's ability to regulate. For 
example, as the Supreme Court explained in Curtiss-Wright, the 
President ``makes treaties with the advice and consent of the 
Senate; but he alone negotiates. Into the field of negotiation 
the Senate cannot intrude; and Congress itself is powerless to 
invade it.'' 299 U.S. at 319. Similarly, President Washington 
established early in the history of the Republic the 
Executive's absolute authority to maintain the secrecy of 
negotiations with foreign powers, even against congressional 
efforts to secure information. See id. at 320-21. Recognizing 
presidential authority in this field, the Executive Branch has 
taken the position that ``congressional legislation authorizing 
extraterritorial diplomatic and intelligence activities is 
superfluous, and . . . statutes infringing the President's 
inherent Article II authority would be unconstitutional.'' 
Timely Notification Requirement Op., 10 Op. O.L.C. at 164.
    There are certainly constitutional limits on Congress's 
ability to interfere with the President's power to conduct 
foreign intelligence searches, consistent with the 
Constitution, within the United States. As explained above, 
intelligence gathering is at the heart of executive functions. 
Since the time of the Founding it has been recognized that 
matters requiring secrecy and intelligence in particular--are 
quintessentially executive functions. See, e.g., The Federalist 
No. 64, at 435 (John Jay) (Jacob E. Cooke ed. 1961) (``The 
convention have done well therefore in so disposing of the 
power of making treaties, that although the president must in 
forming them act by the advice and consent of the senate, yet 
he will be able to manage the business of intelligence in such 
manner as prudence may suggest.''); see also Timely 
Notification Requirement Op., 10 Op. O.L.C. at 165; cf. New 
York Times Co. v. United States, 403 U.S. 713, 729-30 (1971) 
(Stewart, J., concurring) (``[I]t is the constitutional duty of 
the Executive--as a matter of sovereign prerogative and not as 
a matter of law as the courts know law--through the 
promulgation and enforcement of executive regulations, to 
protect the confidentiality necessary to carry out its 
responsibilities in the field of international relations and 
national defense.'').
    Because Congress has rarely attempted to intrude in this 
area and because many of these questions are not susceptible to 
judicial review, there are few guideposts for determining 
exactly where the line defining the President's sphere of 
exclusive authority lies. Typically, if a statute is in danger 
of encroaching upon exclusive powers of the President, the 
courts apply the constitutional avoidance canon, if a 
construction avoiding the constitutional issue is ``fairly 
possible.'' See, e.g., Egan, 484 U.S. at 527, 530. The only 
court that squarely has addressed the relative powers of 
Congress and the President in this field suggested that the 
balance tips decidedly in the President's favor. The Foreign 
Intelligence Surveillance Court of Review recently noted that 
all courts to have addressed the issue of the President's 
inherent authority have ``held that the President did have 
inherent authority to conduct warrantless searches to obtain 
foreign intelligence information.'' In re Sealed Case, 310 F.3d 
717, 742 (Foreign Intel. Surv. Ct. of Rev. 2002). On the basis 
of that unbroken line of precedent, the court ``[took] for 
granted that the President does have that authority,'' and 
concluded that, ``assuming that is so, FISA could not encroach 
on the President's constitutional power.'' Id.\14\ Although the 
court did not provide extensive analysis, it is the only 
judicial statement on point, and it comes from the specialized 
appellate court created expressly to deal with foreign 
intelligence issues under FISA.
---------------------------------------------------------------------------
    \14\ In the past, other courts have declined to express a view on 
that issue one way or the other. See, e.g., Butenko, 494 F.2d at 601 
(``We do not intimate, at this time, any view whatsoever as the proper 
resolution of the possible clash of the constitutional powers of the 
President and Congress.'').
---------------------------------------------------------------------------
    But the NSA activities are not simply exercises of the 
President's general foreign affairs powers. Rather, they are 
primarily an exercise of the President's authority as Commander 
in Chief during an armed conflict that Congress expressly has 
authorized the President to pursue. The NSA activities, 
moreover, have been undertaken specifically to prevent a 
renewed attack at the hands of an enemy that has already 
inflicted the single deadliest foreign attack in the Nation's 
history. The core of the Commander in Chief power is the 
authority to direct the Armed Forces in conducting a military 
campaign. Thus, the Supreme Court has made clear that the 
``President alone'' is ``constitutionally invested with the 
entire charge of hostile operations.'' Hamilton v. Dillin, 88 
U.S. (21 Wall.) 73, 87 (1874); The Federalist No. 74, at 500 
(Alexander Hamilton). ``As commander-in-chief, [the President] 
is authorized to direct the movements of the naval and military 
forces placed by law at his command, and to employ them in the 
manner he may deem most effectual to harass and conquer and 
subdue the enemy.'' Fleming v. Page, 50 U.S. (9 How.) 603, 615 
(1850). As Chief Justice Chase explained in 1866, although 
Congress has authority to legislate to support the prosecution 
of a war, Congress may not ``interfere[ ] with the command of 
the forces and the conduct of campaigns. That power and duty 
belong to the President as commander-in-chief.'' Ex parte 
Milligan, 71 U.S. (4 Wall.) 2, 139 (1866) (Chase, C.J., 
concurring in judgment) (emphasis added).
    The Executive Branch uniformly has construed the Commander 
in Chief and foreign affairs powers to grant the President 
authority that is beyond the ability of Congress to regulate. 
In 1860, Attorney General Black concluded that an act of 
Congress, if intended to constrain the President's discretion 
in assigning duties to an officer in the army, would be 
unconstitutional:

          As commander-in-chief of the army it is your right to 
        decide according to your own judgment what officer 
        shall perform any particular duty, and as the supreme 
        executive magistrate you have the power of appointment. 
        Congress could not, if it would, take away from the 
        President, or in anywise diminish the authority 
        conferred upon him by the Constitution.

Memorial of Captain Meigs, 9 Op. Att'y Gen. 462, 468 (1860). 
Attorney General Black went on to explain that, in his view, 
the statute involved there could probably be read as simply 
providing ``a recommendation'' that the President could decline 
to follow at his discretion. Id. at 469-70.\15\
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    \15\ Executive practice recognizes, consistent with the 
Constitution, some congressional control over the Executive's decisions 
concerning the Armed Forces. See, e.g., U.S. Const. art. I, Sec. 8, cl. 
12 (granting Congress power ``to raise and support Armies''). But such 
examples have not involved congressional attempts to regulate the 
actual conduct of a military campaign, and there is no comparable 
textual support for such interference. For example, just before World 
War II, Attorney General Robert Jackson concluded that the Neutrality 
Act prohibited President Roosevelt from selling certain armed naval 
vessels and sending them to Great Britain. See Acquisition of Naval and 
Air Bases in Exchange for Over-Age Destroyers, 39 Op. Att'y Gen. 484, 
496 (1940). Jackson's apparent conclusion that Congress could control 
the President's ability to transfer war material does not imply 
acceptance of direct congressional regulation of the Commander in 
Chief's control of the means and methods of engaging the enemy in 
conflict. Similarly, in Youngstown Sheet & Tube Co. v. Sawyer, the 
Truman Administration readily conceded that, if Congress had prohibited 
the seizure of steel mills by statute, Congress's action would have 
been controlling. See Brief for Petitioner at 150, Youngstown, 343 U.S. 
579 (1952) (Nos. 744 and 745). This concession implies nothing 
concerning congressional control over the methods of engaging the 
enemy.
    Likewise, the fact that the Executive Branch has, at times, sought 
congressional ratification after taking unilateral action in a wartime 
emergency does not reflect a concession that the Executive lacks 
authority in this area. A decision to seek congressional support can be 
prompted by many motivations, including a desire for political support. 
In modern times, several administrations have sought congressional 
authorization for the use of military force while preserving the 
ability to assert the unconstitutionality of the War Powers Resolution. 
See, e.g., Statement on Signing the Resolution Authorizing the Use of 
Military Force Against Iraq, 1 Pub. Papers of George Bush 40 (1991) 
(``[M]y request for congressional support did not . . . constitute any 
change in the long-standing positions of the executive branch on either 
the President's constitutional authority to use the Armed Forces to 
defend vital U.S. interests or the constitutionality of the War Powers 
Resolution.''). Moreover, many actions for which congressional support 
has been sought--such as President Lincoln's action in raising an Army 
in 1861--quite likely fall primarily under Congress's core Article I 
powers.
---------------------------------------------------------------------------
    Supreme Court precedent does not support claims of 
congressional authority over core military decisions during 
armed conflicts. In particular, the two decisions of the 
Supreme Court that address a conflict between asserted wartime 
powers of the Commander in Chief and congressional legislation 
and that resolve the conflict in favor of Congress--Little v. 
Barreme, 6 U.S. (2 Cranch) 170 (1804), and Youngstown Sheet & 
Tube Co. v. Sawyer, 343 U.S. 579 (1952), are both 
distinguishable from the situation presented by the NSA 
activities in the conflict with al Qaeda. Neither supports the 
constitutionality of the restrictions in FISA as applied here.
    Barreme involved a suit brought to recover a ship seized by 
an officer of the U.S. Navy on the high seas during the so-
called ``Quasi War'' with France in 1799. The seizure had been 
based upon the officer's orders implementing an act of Congress 
suspending commerce between the United States and France and 
authorizing the seizure of American ships bound to a French 
port. The ship in question was suspected of sailing from a 
French port. The Supreme Court held that the orders given by 
the President could not authorize a seizure beyond the terms of 
the statute and therefore that the seizure of the ship not in 
fact bound to a French port was unlawful. See 6 U.S. at 177-78. 
Although some commentators have broadly characterized Barreme 
as standing for the proposition that Congress may restrict by 
statute the means by which the President can direct the 
Nation's Armed Forces to carry on a war, the Court's holding 
was limited in at least two significant ways. First, the 
operative section of the statute in question applied only to 
American merchant ships. See id. at 170 (quoting Act of 
February 9, 1799). Thus, the Court simply had no occasion to 
rule on whether, even in the limited and peculiar circumstances 
of the Quasi War, Congress could have placed some restriction 
on the orders the Commander in Chief could issue concerning 
direct engagements with enemy forces. Second, it is significant 
that the statute in Barreme was cast expressly, not as a 
limitation on the conduct of warfare by the President, but 
rather as regulation of a subject within the core of Congress's 
enumerated powers under Article I--the regulation of foreign 
commerce. See U.S. Const., art. I, Sec. 8, cl. 3. The basis of 
Congress's authority to act was therefore clearer in Barreme 
than it is here.
    Youngstown involved an effort by the President--in the face 
of a threatened work stoppage--to seize and to run steel mills. 
Congress had expressly considered the possibility of giving the 
President power to effect such a seizure during national 
emergencies. It rejected that option, however, instead 
providing different mechanisms for resolving labor disputes and 
mechanisms for seizing industries to ensure production vital to 
national defense.
    For the Court, the connection between the seizure and the 
core Commander in Chief function of commanding the Armed Forces 
was too attenuated. The Court pointed out that the case did not 
involve authority over ``day-to-day fighting in a theater of 
war.'' Id. at 587. Instead, it involved a dramatic extension of 
the President's authority over military operations to exercise 
control over an industry that was vital for producing equipment 
needed overseas. Justice Jackson's concurring opinion also 
reveals a concern for what might be termed foreign-to-domestic 
presidential bootstrapping. The United States became involved 
in the Korean conflict through President Truman's unilateral 
decision to commit troops to the defense of South Korea. The 
President then claimed authority, based upon this foreign 
conflict, to extend presidential control into vast sectors of 
the domestic economy. Justice Jackson expressed ``alarm[]'' at 
a theory under which ``a President whose conduct of foreign 
affairs is so largely uncontrolled, and often even is unknown, 
can vastly enlarge his mastery over the internal affairs of the 
country by his own commitment of the Nation's armed forces to 
some foreign venture.'' Id. at 642.
    Moreover, President Truman's action extended the 
President's authority into a field that the Constitution 
predominantly assigns to Congress. See id. at 588 (discussing 
Congress's commerce power and noting that ``[t]he Constitution 
does not subject this lawmaking power of Congress to 
presidential or military supervision or control''); see also 
id. at 643 (Jackson, J., concurring) (explaining that Congress 
is given express authority to `` `raise and support Armies' '' 
and `` `to provide and maintain a Navy' '') (quoting U.S. 
Const. art. I, Sec. 8, cls. 12, 13). Thus, Youngstown involved 
an assertion of executive power that not only stretched far 
beyond the President's core Commander in Chief functions, but 
that did so by intruding into areas where Congress had been 
given an express, and apparently dominant, role by the 
Constitution.\16\
---------------------------------------------------------------------------
    \16\ Youngstown does demonstrate that the mere fact that Executive 
action might be placed in Justice Jackson's category III does not 
obviate the need for further analysis. Justice Jackson's framework 
therefore recognizes that Congress might impermissibly interfere with 
the President's authority as Commander in Chief or to conduct the 
Nation's foreign affairs.
---------------------------------------------------------------------------
    The present situation differs dramatically. The exercise of 
executive authority involved in the NSA activities is not 
several steps removed from the actual conduct of a military 
campaign. As explained above, it is an essential part of the 
military campaign. Unlike the activities at issue in 
Youngstown, the NSA activities are directed at the enemy, and 
not at domestic activity that might incidentally aid the war 
effort. And assertion of executive authority here does not 
involve extending presidential power into areas reserved for 
Congress. Moreover, the theme that appeared most strongly in 
Justice Jackson's concurrence in Youngstown--the fear of 
presidential bootstrapping--does not apply in this context. 
Whereas President Truman had used his inherent constitutional 
authority to commit U.S. troops, here Congress expressly 
provided the President sweeping authority to use ``all 
necessary and appropriate force'' to protect the Nation from 
further attack. AUMF Sec. 2(a). There is thus no bootstrapping 
concern.
    Finally, Youngstown cannot be read to suggest that the 
President's authority for engaging the enemy is less extensive 
inside the United States than abroad. To the contrary, the 
extent of the President's Commander in Chief authority 
necessarily depends on where the enemy is found and where the 
battle is waged. In World War II, for example, the Supreme 
Court recognized that the President's authority as Commander in 
Chief, as supplemented by Congress, included the power to 
capture and try agents of the enemy in the United States, even 
if they never had ``entered the theatre or zone of active 
military operations.'' Quirin, 317 U.S. at 38.\17\ In the 
present conflict, unlike in the Korean War, the battlefield was 
brought to the United States in the most literal way, and the 
United States continues to face a threat of further attacks on 
its soil. In short, therefore, Youngstown does not support the 
view that Congress may constitutionally prohibit the President 
from authorizing the NSA activities.
---------------------------------------------------------------------------
    \17\ It had been recognized long before Youngstown that, in a 
large-scale conflict, the area of operations could readily extend to 
the continental United States, even when there are no major engagements 
of armed forces here. Thus, in the context of the trial of a German 
officer for spying in World War I, it was recognized that ``[w]ith the 
progress made in obtaining ways and means for devastation and 
destruction, the territory of the United States was certainly within 
the field of active operations'' during the war, particularly in the 
port of New York, and that a spy in the United States might easily have 
aided the ``hostile operation'' of U-boats off the coast. United States 
ex reI. Wessels v. McDonald, 265 F. 754, 764 (E.D.N.Y. 1920).
---------------------------------------------------------------------------
    The second serious constitutional question is whether the 
particular restrictions imposed by FISA would impermissibly 
hamper the President's exercise of his constitutionally 
assigned duties as Commander in Chief. The President has 
determined that the speed and agility required to carry out the 
NSA activities successfully could not have been achieved under 
FISA.\18\ Because the President also has determined that the 
NSA activities are necessary to the defense of the United 
States from a subsequent terrorist attack in the armed conflict 
with al Qaeda, FISA would impermissibly interfere with the 
President's most solemn constitutional obligation--to defend 
the United States against foreign attack.
---------------------------------------------------------------------------
    \18\ In order to avoid further compromising vital national security 
activities, a full explanation of the basis for the President's 
determination cannot be given in an unclassified document.
---------------------------------------------------------------------------
    Indeed, if an interpretation of FISA that allows the 
President to conduct the NSA activities were not ``fairly 
possible,'' FISA would be unconstitutional as applied in the 
context of this congressionally authorized armed conflict. In 
that event, FISA would purport to prohibit the President from 
undertaking actions necessary to fulfill his constitutional 
obligation to protect the Nation from foreign attack in the 
context of a congressionally authorized armed conflict with an 
enemy that has already staged the most deadly foreign attack in 
our Nation's history. A statute may not ``impede the 
President's ability to perform his constitutional duty,'' 
Morrison v. Olson, 487 U.S. 654, 691 (1988) (emphasis added); 
see also id. at 696-97, particularly not the President's most 
solemn constitutional obligation--the defense of the Nation. 
See also In re Sealed Case, 310 F.3d at 742 (explaining that 
``FISA could not encroach on the President's constitutional 
power'').
    Application of the avoidance canon would be especially 
appropriate here for several reasons beyond the acute 
constitutional crises that would otherwise result. First, as 
noted, Congress did not intend FISA to be the final word on 
electronic surveillance conducted during armed conflicts. 
Instead, Congress expected that it would revisit the subject in 
subsequent legislation. Whatever intent can be gleaned from 
FISA's text and legislative history to set forth a 
comprehensive scheme for regulating electronic surveillance 
during peacetime, that same intent simply does not extend to 
armed conflicts and declared wars.\19\ Second, FISA was enacted 
during the Cold War, not during active hostilities with an 
adversary whose mode of operation is to blend in with the 
civilian population until it is ready to strike. These changed 
circumstances have seriously altered the constitutional 
calculus, one that FISA's enactors had already recognized might 
suggest that the statute was unconstitutional. Third, certain 
technological changes have rendered FISA still more 
problematic. As discussed above, when FISA was enacted in 1978, 
Congress expressly declined to regulate through FISA certain 
signals intelligence activities conducted by the NSA. See 
supra, at pp. 18-19 & n.6.\20\ These same factors weigh heavily 
in favor of concluding that FISA would be unconstitutional as 
applied to the current conflict if the canon of constitutional 
avoidance could not be used to head off a collision between the 
Branches.
---------------------------------------------------------------------------
    \19\ FISA exempts the President from its procedures for fifteen 
days following a congressional declaration of war. See 50 U.S.C. 
Sec. 1811. If an adversary succeeded in a decapitation strike, 
preventing Congress from declaring war or passing subsequent 
authorizing legislation, it seems clear that FISA could not 
constitutionally continue to apply in such circumstances.
    \20\ Since FISA's enactment in 1978, the means of transmitting 
communications has undergone extensive transformation. In particular, 
many communications that would have been carried by wire are now 
transmitted through the air, and many communications that would have 
been carried by radio signals (including by satellite transmissions) 
are now transmitted by fiber optic cables. It is such technological 
advancements that have broadened FISA's reach, not any particularized 
congressional judgment that the NSA's traditional activities in 
intercepting such international communications should be subject to 
FISA's procedures. A full explanation of these technological changes 
would require a discussion of classified information.
---------------------------------------------------------------------------
    As explained above, FISA is best interpreted to allow a 
statute such as the AUMF to authorize electronic surveillance 
outside FISA's enumerated procedures. The strongest 
counterarguments to this conclusion are that various provisions 
in FISA and title 18, including section 111 of FISA and section 
2511(2)(f) of title 18, together require that subsequent 
legislation must reference or amend FISA in order to authorize 
electronic surveillance outside FISA's procedures and that 
interpreting the AUMF as a statute authorizing electronic 
surveillance outside FISA procedures amounts to a disfavored 
repeal by implication. At the very least, however, interpreting 
FISA to allow a subsequent statute such as the AUMF to 
authorize electronic surveillance without following FISA's 
express procedures is ``fairly possible,'' and that is all that 
is required for purposes of invoking constitutional avoidance. 
In the competition of competing canons, particularly in the 
context of an ongoing armed conflict, the constitutional 
avoidance canon carries much greater interpretative force.\21\
---------------------------------------------------------------------------
    \21\ If the text of FISA were clear that nothing other than an 
amendment to FISA could authorize additional electronic surveillance, 
the AUMF would impliedly repeal as much of FISA as would prevent the 
President from using ``all necessary and appropriate force'' in order 
to prevent al Qaeda and its allies from launching another terrorist 
attack against the United States. To be sure, repeals by implication 
are disfavored and are generally not found whenever two statutes are 
``capable of co-existence.'' Ruckelshaus v. Monsanto Co., 467 U.S. 986, 
1018 (1984). Under this standard, an implied repeal may be found where 
one statute would ``unduly interfere with'' the operation of another. 
Radzanower v. Touche Ross & Co., 426 U.S. 148, 156 (1976). The 
President's determination that electronic surveillance of al Qaeda 
outside the confines of FISA was ``necessary and appropriate'' would 
create a clear conflict between the AUMF and FISA. FISA's restrictions 
on the use of electronic surveillance would preclude the President from 
doing what the AUMF specifically authorized him to do: use all 
``necessary and appropriate force'' to prevent al Qaeda from carrying 
out future attacks against the United States. The ordinary restrictions 
in FISA cannot continue to apply if the AUMF is to have its full 
effect; those constraints would ``unduly interfere'' with the operation 
of the AUMF.
    Contrary to the recent suggestion made by several law professors 
and former government officials, the ordinary presumption against 
implied repeals is overcome here. Cf. Letter to the Hon. Bill Frist, 
Majority Leader, U.S. Senate, from Professor Curtis A. Bradley et al. 
at 4 (Jan. 9, 2006). First, like other canons of statutory 
construction, the canon against implied repeals is simply a presumption 
that may be rebutted by other factors, including conflicting canons. 
Connecticut National Bank v. Germain, 503 U.S. 249, 253 (1992); see 
also Chickasaw Nation v. United States, 534 U.S. 84, 94 (2001); Circuit 
City Stores, Inc. v. Adams, 532 U.S. 105, 115 (2001). Indeed, the 
Supreme Court has declined to apply the ordinary presumption against 
implied repeals where other canons apply and suggest the opposite 
result. See Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 765-66 
(1985). Moreover, Blackfeet suggests that where the presumption against 
implied repeals would conflict with other, more compelling interpretive 
imperatives, it simply does not apply at all. See 471 U.S. at 766. 
Here, in light of the constitutional avoidance canon, which imposes the 
overriding imperative to use the tools of statutory interpretation to 
avoid constitutional conflicts, the implied repeal canon either would 
not apply at all or would apply with significantly reduced force. 
Second, the AUMF was enacted during an acute national emergency, where 
the type of deliberation and detail normally required for application 
of the canon against implied repeals was neither practical nor 
warranted. As discussed above, in these circumstances, Congress cannot 
be expected to work through every potential implication of the U.S. 
Code and to define with particularity each of the traditional incidents 
of the use of force available to the President.
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IV. The NSA activities are consistent with the Fourth Amendment
    The Fourth Amendment prohibits ``unreasonable searches and 
seizures'' and directs that ``no Warrants shall issue, but upon 
probable cause, supported by Oath or affirmation, and 
particularly describing the place to be searched, and the 
persons or things to be seized.'' U.S. Const. amend. IV. The 
touchstone for review of government action under the Fourth 
Amendment is whether the search is ``reasonable.'' See, e.g., 
Vernonia Sch. Dist. v. Acton, 515 U.S. 646, 653 (1995).
    As noted above, see Part I, all of the federal courts of 
appeals to have addressed the issue have affirmed the 
President's inherent constitutional authority to collect 
foreign intelligence without a warrant. See In re Sealed Case, 
310 F.3d at 742. Properly understood, foreign intelligence 
collection in general, and the NSA activities in particular, 
fit within the ``special needs'' exception to the warrant 
requirement of the Fourth Amendment. Accordingly, the mere fact 
that no warrant is secured prior to the surveillance at issue 
in the NSA activities does not suffice to render the activities 
unreasonable. Instead, reasonableness in this context must be 
assessed under a general balancing approach, ``by assessing, on 
the one hand, the degree to which it intrudes upon an 
individual's privacy and, on the other, the degree to which it 
is needed for the promotion of legitimate governmental 
interests.'' United States v. Knights, 534 U.S. 112, 118-19 
(2001) (quoting Wyoming v. Houghton, 526 U.S. 295, 300 (1999)). 
The NSA activities are reasonable because the Government's 
interest, defending the Nation from another foreign attack in 
time of armed conflict, outweighs the individual privacy 
interests at stake, and because they seek to intercept only 
international communications where one party is linked to al 
Qaeda or an affiliated terrorist organization.
            A. The warrant requirement of the Fourth Amendment does not 
                    apply to the NSA activities
    In ``the criminal context,'' the Fourth Amendment 
reasonableness requirement ``usually requires a showing of 
probable cause'' and a warrant. Board of Educ. v. Earls, 536 
U.S. 822, 828 (2002). The requirement of a warrant supported by 
probable cause, however, is not universal. Rather, the Fourth 
Amendment's ``central requirement is one of reasonableness,'' 
and the rules the Court has developed to implement that 
requirement ``[s]ometimes . . . require warrants.'' Illinois v. 
McArthur, 531 U.S. 326, 330 (2001); see also, e.g., Earls, 536 
U.S. at 828 (noting that the probable cause standard ``is 
peculiarly related to criminal investigations and may be 
unsuited to determining the reasonableness of administrative 
searches where the Government seeks to prevent the development 
of hazardous conditions'') (internal quotation marks omitted).
    In particular, the Supreme Court repeatedly has made clear 
that in situations involving ``special needs'' that go beyond a 
routine interest in law enforcement, the warrant requirement is 
inapplicable. See Vernonia, 515 U.S. at 653 (there are 
circumstances ``when special needs, beyond the normal need for 
law enforcement, make the warrant and probable-cause 
requirement impracticable'') (quoting Griffin v. Wisconsin, 483 
U.S. 868, 873 (1987)); see also McArthur, 531 U.S. at 330 
(``When faced with special law enforcement needs, diminished 
expectations of privacy, minimal intrusions, or the like, the 
Court has found that certain general, or individual, 
circumstances may render a warrantless search or seizure 
reasonable.''). It is difficult to encapsulate in a nutshell 
all of the different circumstances the Court has found to 
qualify as ``special needs'' justifying warrantless searches. 
But one application in which the Court has found the warrant 
requirement inapplicable is in circumstances in which the 
Government faces an increased need to be able to react swiftly 
and flexibly, or when there are at stake interests in public 
safety beyond the interests in ordinary law enforcement. One 
important factor in establishing ``special needs'' is whether 
the Government is responding to an emergency that goes beyond 
the need for general crime control. See In re Sealed Case, 310 
F.3d at 745-46.
    Thus, the Court has permitted warrantless searches of 
property of students in public schools, see New Jersey v. 
T.L.O., 469 U.S. 325, 340 (1985) (noting that warrant 
requirement would ``unduly interfere with the maintenance of 
the swift and informal disciplinary procedures needed in the 
schools''), to screen athletes and students involved in 
extracurricular activities at public schools for drug use, see 
Vernonia, 515 U.S. at 654-55; Earls, 536 U.S. at 829-38, to 
conduct drug testing of railroad personnel involved in train 
accidents, see Skinner v. Railway Labor Executives' Ass'n, 489 
U.S. 602, 634 (1989), and to search probationers' homes, see 
Griffin, 483 U.S. 868. Many special needs doctrine and related 
cases have upheld suspicionless searches or seizures. See, 
e.g., Illinois v. Lidster, 540 U.S. 419, 427 (2004) (implicitly 
relying on special needs doctrine to uphold use of automobile 
checkpoint to obtain information about recent hit-and-run 
accident); Earls, 536 U.S. at 829-38 (suspicionless drug 
testing of public school students involved in extracurricular 
activities); Michigan Dep't of State Police v. Sitz, 496 U.S. 
444, 449-55 (1990) (road block to check all motorists for signs 
of drunken driving); United States v. Martinez-Fuerte, 428 U.S. 
543 (1976) (road block near the border to check vehicles for 
illegal immigrants); cf. In re Sealed Case, 310 F.3d at 745-46 
(noting that suspicionless searches and seizures in one sense 
are a greater encroachment on privacy than electronic 
surveillance under FISA because they are not based on any 
particular suspicion, but ``[o]n the other hand, wiretapping is 
a good deal more intrusive than an automobile stop accompanied 
by questioning''). To fall within the ``special needs'' 
exception to the warrant requirement, the purpose of the search 
must be distinguishable from ordinary general crime control. 
See, e.g., Ferguson v. Charleston, 532 U.S. 67 (2001); City of 
Indianapolis v. Edmond, 531 U.S. 32, 41 (2000).
    Foreign intelligence collection, especially in the midst of 
an armed conflict in which the adversary has already launched 
catastrophic attacks within the United States, fits squarely 
within the area of ``special needs, beyond the normal need for 
law enforcement'' where the Fourth Amendment's touchstone of 
reasonableness can be satisfied without resort to a warrant. 
Vernonia, 515 U.S. at 653. The Executive Branch has long 
maintained that collecting foreign intelligence is far removed 
from the ordinary criminal law enforcement action to which the 
warrant requirement is particularly suited. See, e.g., Amending 
the Foreign Intelligence Surveillance Act: Hearings Before the 
House Permanent Select Comm. on Intelligence, 103d Cong. 2d 
Sess. 62, 63 (1994) (statement of Deputy Attorney General Jamie 
S. Gorelick) (``[I]t is important to understand that the rules 
and methodology for criminal searches are inconsistent with the 
collection of foreign intelligence and would unduly frustrate 
the President in carrying out his foreign intelligence 
responsibilities. . . . [W]e believe that the warrant clause of 
the Fourth Amendment is inapplicable to such [foreign 
intelligence] searches.''); see also In re Sealed Case, 310 
F.3d 745. The object of foreign intelligence collection is 
securing information necessary to protect the national security 
from the hostile designs of foreign powers like al Qaeda and 
affiliated terrorist organizations, including the possibility 
of another foreign attack on the United States. In foreign 
intelligence investigations, moreover, the targets of 
surveillance often are agents of foreign powers, including 
international terrorist groups, who may be specially trained in 
concealing their activities and whose activities may be 
particularly difficult to detect. The Executive requires a 
greater degree of flexibility in this field to respond with 
speed and absolute secrecy to the ever-changing array of 
foreign threats faced by the Nation.\22\
---------------------------------------------------------------------------
    \22\ Even in the domestic context, the Supreme Court has recognized 
that there may be significant distinctions between wiretapping for 
ordinary law enforcement purposes and domestic national security 
surveillance. See United States v. United States District Court, 407 
U.S. 297, 322 (1972) (``Keith'') (explaining that ``the focus of 
domestic [security] surveillance may be less precise than that directed 
against more conventional types of crime'' because often ``the emphasis 
of domestic intelligence gathering is on the prevention of unlawful 
activity or the enhancement of the Government's preparedness for some 
possible future crisis or emergency''); see also United States v. 
Duggan, 743 F.2d 59, 72 (2d Cir. 1984) (reading Keith to recognize that 
``the governmental interests presented in national security 
investigations differ substantially from those presented in traditional 
criminal investigations''). Although the Court in Keith held that the 
Fourth Amendment's warrant requirement does apply to investigations of 
purely domestic threats to national security--such as domestic 
terrorism, it suggested that Congress consider establishing a lower 
standard for such warrants than that set forth in Title III. See id. at 
322-23 (advising that ``different standards'' from those applied to 
traditional law enforcement ``may be compatible with the Fourth 
Amendment if they are reasonable both in relation to the legitimate 
need of the Government for intelligence information and the protected 
rights of our citizens''). Keith's emphasis on the need for flexibility 
applies with even greater force to surveillance directed at foreign 
threats to national security. See S. Rep. No. 95-701, at 16 (``Far more 
than in domestic security matters, foreign counterintelligence 
investigations are `long range' and involve `` `the interrelation of 
various sources and types of information.' '') (quoting Keith, 407 U.S. 
at 322). And flexibility is particularly essential here, where the 
purpose of the NSA activities is to prevent another armed attack 
against the United States.
---------------------------------------------------------------------------
    In particular, the NSA activities are undertaken to prevent 
further devastating attacks on our Nation, and they serve the 
highest government purpose through means other than traditional 
law enforcement.\23\ The NSA activities are designed to enable 
the Government to act quickly and flexibly (and with secrecy) 
to find agents of al Qaeda and its affiliates--an international 
terrorist group which has already demonstrated a capability to 
infiltrate American communities without being detected--in time 
to disrupt future terrorist attacks against the United States. 
As explained by the Foreign Intelligence Surveillance Court of 
Review, the nature of the ``emergency'' posed by al Qaeda 
``takes the matter out of the realm of ordinary crime 
control.'' In re Sealed Case, 310 F.3d at 746. Thus, under the 
``special needs'' doctrine, no warrant is required by the 
Fourth Amendment for the NSA activities.
---------------------------------------------------------------------------
    \23\ This is not to say that traditional law enforcement has no 
role in protecting the Nation from attack. The NSA activities, however, 
are not directed at bringing criminals to justice but at detecting and 
preventing plots by a declared enemy of the United States to attack it 
again.
---------------------------------------------------------------------------
            B. The NSA activities are reasonable
    As the Supreme Court has emphasized repeatedly, ``[t]he 
touchstone of the Fourth Amendment is reasonableness, and the 
reasonableness of a search is determined by assessing, on the 
one hand, the degree to which it intrudes upon an individual's 
privacy and, on the other, the degree to which it is needed for 
the promotion of legitimate governmental interests.'' Knights, 
534 U.S. at 118-19 (quotation marks omitted); see also Earls, 
536 U.S. at 829. The Supreme Court has found a search 
reasonable when, under the totality of the circumstances, the 
importance of the governmental interests outweighs the nature 
and quality of the intrusion on the individual's Fourth 
Amendment interests. See Knights, 534 U.S. at 118-22. Under the 
standard balancing of interests analysis used for gauging 
reasonableness, the NSA activities are consistent with the 
Fourth Amendment.
    With respect to the individual privacy interests at stake, 
there can be no doubt that, as a general matter, interception 
of telephone communications implicates a significant privacy 
interest of the individual whose conversation is intercepted. 
The Supreme Court has made clear at least since Katz v. United 
States, 389 U.S. 347 (1967), that individuals have a 
substantial and constitutionally protected reasonable 
expectation of privacy that their telephone conversations will 
not be subject to governmental eavesdropping. Although the 
individual privacy interests at stake may be substantial, it is 
well recognized that a variety of governmental interests--
including routine law enforcement and foreign-intelligence 
gathering--can overcome those interests.
    On the other side of the scale here, the Government's 
interest in engaging in the NSA activities is the most 
compelling interest possible--securing the Nation from foreign 
attack in the midst of an armed conflict. One attack already 
has taken thousands of lives and placed the Nation in state of 
armed conflict. Defending the Nation from attack is perhaps the 
most important function of the federal Government--and one of 
the few express obligations of the federal Government enshrined 
in the Constitution. See U.S. Const. art. IV, Sec. 4 (``The 
United States shall guarantee to every State in this Union a 
Republican Form of Government, and shall protect each of them 
against Invasion. . . .'') (emphasis added); The Prize Cases, 
67 U.S. (2 Black) 635, 668 (1863) (``If war be made by invasion 
of a foreign nation, the President is not only authorized but 
bound to resist force by force.''). As the Supreme Court has 
declared, ``[i]t is `obvious and unarguable' that no 
governmental interest is more compelling than the security of 
the Nation.'' Haig v. Agee, 453 U.S. 280, 307 (1981).
    The Government's overwhelming interest in detecting and 
thwarting further al Qaeda attacks is easily sufficient to make 
reasonable the intrusion into privacy involved in intercepting 
one-end foreign communications where there is ``a reasonable 
basis to conclude that one party to the communication is a 
member of al Qaeda, affiliated with al Qaeda, or a member of an 
organization affiliated with al Qaeda.'' Press Briefing by 
Attorney General Alberto Gonzales and General Michael Hayden, 
Principal Deputy Director for National Intelligence, available 
at http://www.whitehouse.gov/news/releases/2005/12/20051219-
1.html (Dec. 19, 2005) (statement of Attorney General 
Gonzales); cf. Edmond, 531 U.S. at 44 (noting that ``the Fourth 
Amendment would almost certainly permit an appropriately 
tailored roadblock set up to thwart an imminent terrorist 
attack'' because ``[t]he exigencies created by th[at] 
scenario[] are far removed'' from ordinary law enforcement). 
The United States has already suffered one attack that killed 
thousands, disrupted the Nation's financial center for days, 
and successfully struck at the command and control center for 
the Nation's military. And the President has stated that the 
NSA activities are ``critical'' to our national security. Press 
Conference of President Bush (Dec. 19, 2005). To this day, 
finding al Qaeda sleeper agents in the United States remains 
one of the preeminent concerns of the war on terrorism. As the 
President has explained, ``[t]he terrorists want to strike 
America again, and they hope to inflict even more damage than 
they did on September 11th.'' Id.
    Of course, because the magnitude of the Government's 
interest here depends in part upon the threat posed by al 
Qaeda, it might be possible for the weight that interest 
carries in the balance to change over time. It is thus 
significant for the reasonableness of the NSA activities that 
the President has established a system under which he 
authorizes the surveillance only for a limited period, 
typically for 45 days. This process of reauthorization ensures 
a periodic review to evaluate whether the threat from al Qaeda 
remains sufficiently strong that the Government's interest in 
protecting the Nation and its citizens from foreign attack 
continues to outweigh the individual privacy interests at 
stake.
    Finally, as part of the balancing of interests to evaluate 
Fourth Amendment reasonableness, it is significant that the NSA 
activities are limited to intercepting international 
communications where there is a reasonable basis to conclude 
that one party to the communication is a member or agent of al 
Qaeda or an affiliated terrorist organization. This factor is 
relevant because the Supreme Court has indicated that in 
evaluating reasonableness, one should consider the ``efficacy 
of [the] means for addressing the problem.'' Vernonia, 515 U.S. 
at 663; see also Earls, 536 U.S. at 834 (``Finally, this Court 
must consider the nature and immediacy of the government's 
concerns and the efficacy of the Policy in meeting them.''). 
That consideration does not mean that reasonableness requires 
the ``least intrusive'' or most ``narrowly tailored'' means for 
obtaining information. To the contrary, the Supreme Court has 
repeatedly rejected such suggestions. See, e.g., Earls, 536 
U.S. at 837 (``[T]his Court has repeatedly stated that 
reasonableness under the Fourth Amendment does not require 
employing the least intrusive means, because the logic of such 
elaborate less-restrictive-alternative arguments could raise 
insuperable barriers to the exercise of virtually all search-
and-seizure powers.'') (internal quotation marks omitted); 
Vernonia, 515 U.S. at 663 (``We have repeatedly refused to 
declare that only the `least intrusive' search practicable can 
be reasonable under the Fourth Amendment.''). Nevertheless, the 
Court has indicated that some consideration of the efficacy of 
the search being implemented--that is, some measure of fit 
between the search and the desired objective--is relevant to 
the reasonableness analysis. The NSA activities are targeted to 
intercept international communications of persons reasonably 
believed to be members or agents of al Qaeda or an affiliated 
terrorist organization, a limitation which further strongly 
supports the reasonableness of the searches.
    In sum, the NSA activities are consistent with the Fourth 
Amendment because the warrant requirement does not apply in 
these circumstances, which involve both ``special needs'' 
beyond the need for ordinary law enforcement and the inherent 
authority of the President to conduct warrantless electronic 
surveillance to obtain foreign intelligence to protect our 
Nation from foreign armed attack. The touchstone of the Fourth 
Amendment is reasonableness, and the NSA activities are 
certainly reasonable, particularly taking into account the 
nature of the threat the Nation faces.


                               CONCLUSION


    For the foregoing reasons, the President--in light of the 
broad authority to use military force in response to the 
attacks of September 11th and to prevent further catastrophic 
attack expressly conferred on the President by the Constitution 
and confirmed and supplemented by Congress in the AUMF--has 
legal authority to authorize the NSA to conduct the signals 
intelligence activities he has described. Those activities are 
authorized by the Constitution and by statute, and they violate 
neither FISA nor the Fourth Amendment.
                                ------                                

               Department of Defense, Office of the
                 Under Secretary of Defense (Intelligence),
                                 Washington, DC, December 19, 2005.
Hon. Duncan Hunter,
Chairman, Committee on Armed Services,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: An NBC Nightly News segment aired on 
December 13th alleging that Department of Defense (DoD) 
entities are collecting information on American peace activists 
and monitoring protests against the Iraq war. The segment 
highlighted entries in the Department's Threat and Local 
Observation Notice (TALON) reporting system. I want to provide 
you some context not otherwise reported in the segment.
    The Department is authorized to conduct an integrated and 
cooperative counterintelligence (CI) and military law 
enforcement effort that protects its installations, property 
and people from threats of all kinds--both overseas and in the 
United States. In support of this effort, designated DoD 
organizations report unfiltered information provided by 
concerned citizens, DoD personnel charged with responsibilities 
for the security of DoD installations (e.g., gate guards) or 
other DoD personnel reporting suspicious activities. That 
information is merged with information from local, state and 
federal law enforcement and other intelligence, security and CI 
organizations and is used by analysts to assess potential 
threats to DoD interests.
    TALON is the place where DoD initially stores ``dots'' of 
information which if validated, might later be connected to 
avert an attack before it occurs. Under existing procedures, a 
``dot'' of information that is not validated as threatening 
must be removed from the TALON system in less than 90 days. If 
the ``dot'' is validated, the information is transferred to law 
enforcement.
    I have directed that the appropriate CI and military law 
enforcement organizations within the Department take several 
actions. A thorough review of the TALON reporting system is 
underway to ensure full compliance with DoD directives and U.S. 
laws. We will review those policies and procedures for proper 
application with respect to receipt and retention of 
information about U.S. persons. Finally, we will review the 
TALON database to determine whether information has been 
improperly used or stored in the database.
    I have directed that all Department CI and intelligence 
personnel receive immediate refresher training concerning the 
laws, policies and procedures that govern the responsibilities 
for handling information, especially information related to 
U.S. persons.
    My office is currently engaged in both formal and informal 
dialogue with members of your staff on this subject. We stand 
ready to answer questions you may have.
    I have sent a similar letter to the Committee's Ranking 
Member, the Honorable Ike Skelton.
            Sincerely,
                                        Stephen A. Cambone,
                                        Under Secretary of Defense.
                                ------                                

               Department of Defense, Office of the
                 Under Secretary of Defense (Intelligence),
                                  Washington, DC, January 27, 2006.
Hon. Duncan Hunter,
Chairman, Committee on Armed Services,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: In the Under Secretary of Defense for 
Intelligence letter of December 19, 2005, Dr. Stephen Cambone 
provided you some context not otherwise reported in an NBC News 
segment on the Department of Defense (DoD) TALON system. Dr. 
Cambone also advised that we would thoroughly review the TALON 
system. That review is nearly completed. I would like to update 
you on our results:
           DoD field commanders highly value the TALON 
        reporting program as a source of timely information 
        about possible foreign terrorist threats to their 
        personnel and facilities.
    The TALON reporting system is much like a capability to 
document information from a ``neighborhood watch'' program in 
which concerned citizens or DoD personnel report suspicious 
activities they believe may be linked to possible foreign 
terrorist activities to DoD counterintelligence, law 
enforcement or intelligence organizations. The focus of the 
effort was on possible foreign terrorist threats to the DoD and 
not on U.S. persons in the United States. The information that 
was reported to DoD security, law enforcement, 
counterintelligence or intelligence personnel was then briefed 
to local military command officials and laws enforcement as 
appropriate prior to being sent to the TALON reporting database 
at the Counterintelligence Field Activity (CIFA) for analysis. 
CIFA's role in the process is to maintain the database and 
conduct analysis.
           TALON reporting has led to a number of 
        investigations. Those include terrorism investigations, 
        most often conducted under the purview of the Joint 
        Terrorism Task Forces headed by FBI, and the reporting 
        has identified other criminal activities. The reporting 
        has also disclosed some patterns that have allowed the 
        Department to focus or change security procedures in 
        order to deter potential terrorist activities.
           Although the TALON reporting system was 
        intended to document suspicious incidents possibly 
        linked to foreign terrorist threats to DoD resources, 
        some came to view the system as a means to report 
        information about demonstrations and anti-base activity 
        that would be of interest to the field commanders from 
        a force protection prospective. A very small percentage 
        of these reports were submitted to the TALON/
        CORNERSTONE database.
           CIFA has removed the TALON reports on 
        demonstrations and anti-base activity from the 
        database. The process to remove other reports that are 
        no longer analytically significant is ongoing. All 
        TALON reports are now reviewed at CIFA upon receipt to 
        ensure compliance with the TALON reporting criteria.
           The DoD organizations involved in the TALON 
        reporting system were following multiple rule sets 
        regarding the collection and retention of this 
        information. The Department will soon issue detailed 
        guidance that clarifies the purpose of the database, 
        the rules governing the collection and retention of the 
        data and more detailed procedures to be followed. The 
        database will then be reviewed again to ensure 
        compliance.
    Dr. Cambone also directed that all Department 
counterintelligence and intelligence personnel receive 
immediate refresher training concerning the laws, policies and 
procedures that govern the responsibilities for handling 
information, especially information related to U.S. persons. 
The refresher training is underway and should be completed by 
January 31, 2006.
    This review clearly indicates that TALON is an important 
and valuable tool, and that we have room for improvement. We 
will continue our analysis of findings from this review to 
determine precisely what we need to do to improve and will 
provide you with additional information.
    There is nothing more important to the U.S. military than 
the trust and good will of the American people. The DoD values 
that trust and good will and consequently views with the 
greatest concern any potential violation of the strict DoD 
policy governing the protection of civil liberties. Our new 
guidance will reflect that concern and protect that trust.
    My office continues to be engaged in formal and informal 
dialogue with members of your staff on this subject. These 
discussions have been positive and productive. I look forward 
to an opportunity to brief your committee on these complex and 
overlapping issues. I have sent a similar letter to the 
Committee's Ranking Member, the Honorable Ike Skelton.
            Sincerely,
                               Robert W. Rogaliski,
                          Deputy Under Secretary of Defense
                                (Counterintelligence and Security).
                                ------                                


                          LEGISLATIVE HISTORY

    As noted above, H. Res. 645 was introduced on December 22, 
2005, and referred to the Committee on Armed Services.
    On March 1, 2006, the Committee on Armed Services held a 
mark-up session to consider H. Res. 645. After general 
discussion of the resolution, Ranking Member Skelton offered an 
amendment requesting the President and requiring the Secretary 
of Defense to provide to the House of Representatives 
classified information on the results of the NSA surveillance 
program. The amendment failed on a record vote of 21 ayes to 32 
noes. The committee reported adversely the resolution by voice 
vote, a quorum being present.

                           COMMITTEE POSITION

    On March 1, 2006, the Committee on Armed Services met in 
open session and reported adversely the resolution H. Res. 645 
to the House by voice vote, a quorum being present.

                  COMMUNICATION FROM ANOTHER COMMITTEE

                          House of Representatives,
                Permanent Select Committee on Intelligence,
                                   Washington, DC, February 8, 2006
Hon. Duncan Hunter,
Chairman, Committee on Armed Services,
House of Representatives, Washington, DC
    Dear Mr. Chairman: As you move forward to markup House 
Resolution 645, the resolution of inquiry offered by Mr. Wexler 
on the Terrorist Surveillance Program (TSP), I want to offer 
some concerns/considerations.
    The specific techniques and measures employed in this 
program are rightfully and highly classified. In fact, only a 
handful of Members of Congress are fully read into the details 
of these precious sources and methods. I am vitally concerned 
that, were the Administration to be forced to comply with the 
resolution's requests for specific information (logs, memos, 
telephone and electronic mail records, etc.) related to the TSP 
program, there could be a serious compromise of vital national 
security information and the terrorists targeted by this 
program would be given the warning necessary to thwart our 
intelligence efforts against them.
    There has been a great deal of hue and cry on many fronts 
about the process for overseeing this program, hence this 
resolution of inquiry. I can assure you, however, that House 
Leadership and those of us on the Intelligence Committee who 
are properly charged under House rules with exclusively 
overseeing these focused and limited Intelligence Community 
efforts have been fully and currently informed of all aspects 
of the program. We have been and are given ample opportunity to 
question the process, the operational aspects, and the legality 
of the program. I see no need for directing the President or 
the Secretary of Defense to produce information that is already 
properly provided to the Congress.
            Sincerely,
                                           Peter Hoekstra, Chairman
                                ------                                


                        COMMITTEE COST ESTIMATE

    Pursuant to clause 3(d) of rule XIII of the Rules of the 
House of Representatives, the committee estimates the costs of 
implementing the resolution would be minimal. The Congressional 
Budget Office did not provide a cost estimate for the 
resolution.

                           OVERSIGHT FINDINGS

    With respect to clause 3(c)(1) of rule XIII of the Rules of 
the House of Representatives, the committee reports that the 
findings and recommendations of the committee, based on 
oversight activities pursuant to clause 2(b)(1) of rule X, are 
incorporated in the descriptive portions of this report.
    With respect to clause 3(c)(2) of rule XIII of the Rules of 
the House of Representatives and section 308(a)(1) of the 
Congressional Budget Act of 1974, this legislation does not 
include any new spending or credit authority, nor does it 
provide for any increase or decrease in tax revenues or 
expenditures.
    With respect to clause 3(c)(4) of rule XIII of the Rules of 
the House of Representatives, performance goals and objectives 
can not be explained, because the resolution does not require 
any new funding.

                   CONSTITUTIONAL AUTHORITY STATEMENT

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the committee finds that the rule 
does not apply because H. Res. 645 is not a bill or joint 
resolution that may be enacted into law.

                              RECORD VOTE

    In accordance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, record and voice votes were taken 
with respect to the committee's consideration of H. Res. 645.


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