Listening to the Enemy - The legal ground on which the president stands

In early September 2002, just before the first anniversary of the September 11 terrorist attacks, a group of lawyers gathered in a heavily protected, windowless room in the Department of Justice building in Washington. There were three federal appeals-court judges, Laurence Silberman, Edward Leavy, and Ralph Guy. There was Theodore Olson, the U.S. solicitor general. There was Larry Thompson, the deputy attorney general. And there was John Yoo, the Justice official who had closely studied questions of war powers and presidential authority. Rounding out the group were a few other department staffers, one official from the FBI, and David Addington, Vice President Cheney’s top lawyer.

The purpose of the meeting was to argue a case whose details remain so classified that they are known by only a few people, but whose outcome, a decision known as In re: Sealed Case, has become one of the key documents in the hottest argument in Washington today: the fight over what President Bush calls the “terrorist surveillance” of persons with known al-Qaeda connections, and what the president’s opponents call “domestic spying.”

The three judges made up what is known as the FISA Court of Review. It was created in 1978 by the now-famous Foreign Intelligence Surveillance Act. The act required that the president go to the so-called FISA Court to seek a warrant for surveillance in top-secret foreign-intelligence cases. For any disputed decisions that might arise, Congress also created the Court of Review, a sort of super-secret appeals court.

But in all the years between 1978 and 2002, there had never been occasion for the Court of Review to actually meet. Not until Sealed Case, and the three-way collision between the executive, legislative, and judicial branches that it involved. Today, a look at the circumstances of the case provides not only an insight into the administration’s rationale for the secret, warrantless surveillance program but also important clues to the mystery of how the whole thing got started in the first place.

The conflict began with the passage of the Patriot Act in October 2001. The act tore down the “wall” that had arisen in the Justice Department that blocked intelligence officials and criminal investigators from working together and sharing information. That wall had been cemented by a set of internal department guidelines written in 1995, in which then–attorney general Janet Reno outlined the department’s constricted surveillance procedures.

The Patriot Act was designed to fix that problem. But a month after the act was passed, when the Justice Department submitted surveillance requests to the FISA Court under the new, looser standards passed by Congress, the FISA Court in effect rejected the Patriot Act, and instead reaffirmed the old 1995 Clinton-era standard.

A standoff ensued. In early 2002, the Justice Department adopted new surveillance procedures based on the Patriot Act. In March 2002, the department informed the FISA Court that it would use those new standards in surveillance applications. In May, the FISA Court said, in effect, not so fast, and ordered modifications in the procedures. Among other things, the FISA Court ordered that “law enforcement officials shall not make recommendations to intelligence officials concerning the initiation, operation, continuation or expansion of FISA searches or surveillances” — a reasonable facsimile of the old wall. The FISA Court also ordered that the Justice Department include certain staffers in all surveillance debates, an order that quickly became known in the Justice Department as the “chaperone requirement.”

The Justice Department resisted, and in July 2002 filed a surveillance application — the details are still a secret — using its new procedures, without the FISA Court’s mandated changes. The Court approved the application but insisted that the modifications be made according to the court’s dictates. And then, in August, the FISA Court took the extraordinary step of making its decision public, accusing the Justice Department of habitually misrepresenting evidence and misleading the court. That’s when the department decided to take the matter to the Court of Review, leading to the September 2002 session in that secure room in department headquarters.

“We’re here today,” Theodore Olson said as the secret In re: Sealed Case court argument began, “because the Foreign Intelligence Surveillance Court’s May 17th order . . . has perpetuated a serious and increasingly destructive barrier which has hamstrung the president and his subordinates” in their work to protect “the United States and its citizens from attack and from international terrorism.” The FISA Court’s ruling, Olson continued, was “inexplicable.”

Olson and the judges went back and forth over the history of the wall. Nobody really knew how it first came into being; the judges later said its origin was “shrouded in historical mist.” They went over what Congress intended when it passed the Patriot Act. And they went over the question of whether the FISA Court had the power to tell the president how to conduct investigations.

The answer was no, Olson said. “To the extent that the FISA Court is purporting to reorganize the executive branch, the so-called chaperone function, I don’t think Congress could constitutionally tell the executive or the attorney general that he could not talk to this subordinate without involving that subordinate,” Olson told the judges, “and I certainly don’t think the court can do so.”

The entire session lasted just a few hours, and the Justice Department waited for the Court of Review’s ruling. When it came, in November 2002, it was a slam-dunk win for the government.

In its opinion, the Court of Review said the FISA Court had, in effect, attempted to unilaterally impose the old 1995 rules. “In doing so, the FISA Court erred,” the ruling read. “It did not provide any constitutional basis for its action — we think there is none — and misconstrued the main statutory provision on which it relied.” The FISA Court, according to the ruling, “refus[ed] to consider the legal significance of the Patriot Act’s crucial amendments” and “may well have exceeded the constitutional bounds” governing the courts by asserting “authority to govern the internal organization and investigative procedures of the Department of Justice.”

And then the Court of Review did one more thing, something that has repercussions in today’s surveillance controversy. Not only could the FISA Court not tell the president how do to his work, the Court of Review said, but the president also had the “inherent authority” under the Constitution to conduct needed surveillance without obtaining any warrant — from the FISA Court or anyone else. Referring to an earlier case, known as Truong, which dealt with surveillance before FISA was passed, the Court of Review wrote: “The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. . . . 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.”

It was a clear and sweeping statement of executive authority. And what was most likely not known to the Court of Review at the time was that the administration had, in 2002, started a program in which it did exactly what the Court of Review said it had the power to do: order the surveillance of some international communications without a warrant.

Read today, In re: Sealed Case does more than simply outline the president’s authority. It also puts the administration’s warrantless-surveillance decision in some context. What was going on at the time the president made the decision to go ahead with the surveillance? Well, first Congress passed the Patriot Act, giving the administration new powers. Then the FISA Court refused to recognize those powers and attempted to impose outdated restrictions on the administration. Then the White House, faced with the FISA Court’s opposition — and with what administration officials believed were some inherent weaknesses in the FISA law — began to bypass the FISA Court in some cases. And then, in In re: Sealed Case, the administration received irrefutable legal support for its actions.

After the decision was handed down, the American Civil Liberties Union, which had submitted a brief in support of the FISA Court’s actions restricting the administration, asked the Supreme Court to review In re: Sealed Case. The justices declined to take any action. That is not the same as the Court’s upholding the ruling, but it does mean that the justices looked at the decision and chose not to intervene.

Today, the opinion stands as a bedrock statement of presidential power. And ironically, it came from a case that was not about whether the president had overstepped his bounds, but about whether the courts had overstepped their bounds. The Court of Review ruled strongly in favor of the president, and the Supreme Court declined to reconsider that decision. Reading the opinion, it’s no wonder that George W. Bush has so strongly defended the surveillance program. If the FISA Court of Review is right, he has the Constitution on his side.

In re: Sealed Case removed the Gorelick Wall, and mostly stands for the proposition that the Patriot Act is not required to obtain THAT (remove Gorelick Wall) effect. The case came up in discussion when the Senate failed to renew the USA PATRIOT Act, late last year.

The government makes two main arguments. The first, it must be noted, was not presented to the FISA court; indeed, insofar as we can determine it has never previously been advanced either before a court or Congress. That argument is that the supposed pre-Patriot Act limitation in FISA that restricts the governments intention to use foreign intelligence information in criminal prosecutions is an illusion; it finds no support in either the language of FISA or its legislative history. ...
Alternatively, the government contends that even if the primary purpose test was a legitimate construction of FISA prior to the passage of the Patriot Act, that Acts amendments to FISA eliminate that concept. And as a corollary, the government insists the FISA court's construction of the minimization procedures is far off the mark both because it is a misconstruction of those provisions per se, as well as an end run around the specific amendments in the Patriot Act designed to deal with the real issue underlying this case. The government, moreover, contends that the FISA courts restrictions, which the court described as minimization procedures, are so intrusive into the operation of the Department of Justice as to exceed the constitutional authority of Article III judges. ...
it is virtually impossible to read the 1978 FISA to exclude from its purpose the prosecution of foreign intelligence crimes, most importantly because, as we have noted, the definition of an agent of a foreign power if he or she is a U.S. person is grounded on criminal conduct.
It does not seem that FISA, at least as originally enacted, even contemplated that the FISA court would inquire into the governments purpose in seeking foreign intelligence information. ...
Nor does the legislative history cast doubt on the obvious reading of the statutory language that foreign intelligence information includes evidence of foreign intelligence crimes. To the contrary, the House Report explained:

[T]he term foreign intelligence information, especially as defined in subparagraphs (e)(1)(B) and (e)(1)(C), can include evidence of certain crimes relating to sabotage, international terrorism, or clandestine intelligence activities. With respect to information concerning U.S. persons, foreign intelligence information includes information necessary to protect against clandestine intelligence activities of foreign powers or their agents. Information about a spys espionage activities obviously is within this definition, and it is most likely at the same time evidence of criminal activities.

H.R. REP. NO. 95-1283 (hereinafter H. REP.) at 49 (1978) (emphasis added).
The government argues persuasively that arresting and prosecuting terrorist agents of, or spies for, a foreign power may well be the best technique to prevent them from successfully continuing their terrorist or espionage activity. The government might wish to surveil the agent for some period of time to discover other participants in a conspiracy or to uncover a foreign powers plans, but typically at some point the government would wish to apprehend the agent and it might be that only a prosecution would provide sufficient incentives for the agent to cooperate with the government. Indeed, the threat of prosecution might be sufficient to turn the agent. It would seem that the Congress actually anticipated the governments argument and explicitly approved it. The House Report said:

How this information may be used to protect against clandestine intelligence activities is not prescribed by the definition of foreign intelligence information, although, of course, how it is used may be affected by minimization procedures . . . . And no information acquired pursuant to this bill could be used for other than lawful purposes . . . . Obviously, use of foreign intelligence information as evidence in a criminal trial is one way the Government can lawfully protect against clandestine intelligence activities, sabotage, and international terrorism. The bill, therefore, explicitly recognizes that information which is evidence of crimes involving [these activities] can be sought, retained, and used pursuant to this bill.

Id. (emphasis added). The Senate Report is on all fours:

U.S. persons may be authorized targets, and the surveillance is part of an investigative process often designed to protect against the commission of serious crimes such as espionage, sabotage, assassination, kidnaping, and terrorist acts committed by or on behalf of foreign powers. Intelligence and criminal law enforcement tend to merge in this area. . . . [S]urveillances conducted under [FISA] need not stop once conclusive evidence of a crime is obtained, but instead may be extended longer where protective measures other than arrest and prosecution are more appropriate.

S. REP. NO. 95-701 (hereinafter S. REP.) at 10-11 (1978) (emphasis added).
Congress was concerned about the governments use of FISA surveillance to obtain information not truly intertwined with the governments efforts to protect against threats from foreign powers. Accordingly, the certification of purpose under section 1804(a)(7)(B) served to

prevent the practice of targeting, for example, a foreign power for electronic surveillance when the true purpose of the surveillance is to gather information about an individual for other than foreign intelligence purposes. It is also designed to make explicit that the sole purpose of such surveillance is to secure foreign intelligence information, as defined, and not to obtain some other type of information.

H. REP. at 76; see also S. REP. at 51. But Congress did not impose any restrictions on the governments use of the foreign intelligence information to prosecute agents of foreign powers for foreign intelligence crimes. Admittedly, the House, at least in one statement, noted that FISA surveillances are not primarily for the purpose of gathering evidence of a crime. They are to obtain foreign intelligence information, which when it concerns United States persons must be necessary to important national concerns. H. REP. at 36. That, however, was an observation, not a proscription. And the House as well as the Senate made clear that prosecution is one way to combat foreign intelligence crimes. See id.; S. REP. at 10- 11. ...
In sum, we think that the FISA as passed by Congress in 1978 clearly did not preclude or limit the governments use or proposed use of foreign intelligence information, which included evidence of certain kinds of criminal activity, in a criminal prosecution.
In Re: Sealed Case No. 02-001, 310 F.3d 717 (Foreign Int. Surv. Ct. Rev. 2002)
http://www.fas.org/irp/agency/doj/fisa/fiscr111802.html <- HTML
http://www.epic.org/privacy/terrorism/fisa/FISCR_opinion.pdf <- PDF
http://news.findlaw.com/cnn/docs/terrorism/fisa111802opn.pdf <- Alt. PDF

Case below (reversed by "In Re: Sealed Case") ...
http://news.findlaw.com/cnn/docs/terrorism/fisa51702opn.pdf

Thought you might also like to have this short summary of all the major case law that shows conclusively that the Pesident's actions are 100% constitutional...

"However, because of the President's constitutional duty to act for the United States in the field of foreign relations, and his inherent power to protect national security in the context of foreign affairs, we reaffirm what we held in United States v. Clay, supra, that the President may constitutionally authorize warrantless wiretaps for the purpose of gathering foreign intelligence."

--United States v. Brown, 484 F.2d 418, 426 (1973)

"We agree with the district court that the Executive Branch need not always obtain a warrant for foreign intelligence surveillance."

--U.S. v. Truong Dinh Hung, 629 F.2d 908, 913 (1980)

"Prior to the enactment of FISA, virtually every court that had addressed the issue had concluded that the President had the inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information, and that such surveillances constituted an exception to the warrant requirement of the Fourth Amendment."

--United States v. Duggan, 743 F.2d 59 (1984)

"The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent [constitutional] authority to conduct warrantless searches to obtain foreign intelligence information."

--In re Sealed Case, 310, F3d. 717, 742 (2002)

Some other case law - are you going to try and claim this all DICTA!

"If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority." --The Amy Warwick (The "Prize Cases"), 67, U.S. 635, 668 (1862)

"The Founders in their wisdom made [the President] not only the Commander-in-Chief but also the guiding organ in the conduct of our foreign affairs," possessing "vast powers in relation to the outside world." Ludecke v. Watkins, 335 U.S. 160, 173 (1948).

Foreign affairs power the “exclusive power of the President as sole organ of the federal government in the field of international relations - a power which does not require as a basis for its exercise an act of Congress." United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936).

Protecting the national security is also Presidential domain. Harlow v. Fitzgerald, 457 U.S. 800, 812 n.19 (1982). The President's constitutional primacy flows from both his unique position in the constitutional structure, and from the specific grants of authority in Article II that make the President both the Chief Executive of the Nation and the Commander in Chief. See Nixon v. Fitzgerald, 457 U.S. 731, 749-50 (1982).

As Hamilton explained: "the circumstances which may affect the public safety are [not] reducible within certain determinate limits, . . . it must be admitted, as a necessary consequence that there can be no limitation of that authority which is to provide for the defense and protection of the community in any matter essential to its efficiency."

”The command and application of the public force . . . to maintain peace, and to resist foreign invasion" are executive powers. Application of Yamashita, 327 U.S. 1, 12 (1946). The authority to protect national security is not limited to actions necessary for "victories in the field." Id. The authority over national security "carries with it the inherent power to guard against the immediate renewal of the conflict." Id.

The President “has broad discretion in determining when the public emergency is such as to give rise to the necessity" for emergency measures. Kahanamoku, 327 U.S. at 336.

"[T]he President has independent authority to repel aggressive acts by third parties even without specific statutory authorization." Campbell v. Clinton, 203 F.3d 19 The Constitution gives the power to the President “to preserve order and insure the public safety . . . . when other branches of the government . . . functioning would itself threaten the public safety." Duncan v. Kahanamoku, 327 U.S. 304, 335 (1946) (Stone, C.J., concurring).

The courts have affirmed it is President’s constitutional responsibility to respond to that threat with whatever means are necessary. See, e.g., Prize Cases, 67 U.S. at 635.

The Supreme Court has made clear that it will not construe legislative powers so as to prevent the President "from accomplishing its constitutionally assigned functions." Nixon v. Administrator of General Servs., 433 U.S. 425, 443 (1977).

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