Letter to the House Judiciary Commitee Regarding the Legality of the NSA’s Surveillance Program

The Honorable James Sensenbrenner, Jr.
Chairman, Judiciary Committee
United States House of Representative
Washington, DC 20515

Dear Chairman Sensenbrenner:

I appreciate your committee’s interest in my views as a constitutional scholar and as a professor of statutory interpretation regarding the legality of the electronic surveillance program conducted by the National Security Agency (“NSA”) at the direction of the President in the aftermath of the September 11, 2001 attacks. In this letter, I will address whether the President acted within his statutory authority, focusing on the interplay of the Foreign Intelligence Surveillance Act (“FISA”), Pub. L. 95-511, Title I, 92 Stat. 1796 (Oct. 25, 1978), codified as amended at 50 U.S.C. §§ 1801 et seq., and the Authorization for Use of Military Force (“AUMF”), Pub. L. 107-40, 115 Stat. 224 (2001). In so doing, I will respond to what I believe to be errors made in the Congressional Research Service’s (“CRS”) Memorandum concerning “Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information,” (“CRS Report”) 1 and in the letter to Congress signed by Curtis Bradley and 13 other “scholars of constitutional law and former governmental officials” (“Scholars’ Letter”). 2

As a preliminary matter, it is worth examining the scope of the surveillance operation. Because of the classified nature of the program, we do not know the intricate details of its application, but the public was given some insight into its operation at a press conference held at the White House on December 19, 2005. In this conference, Attorney General Alberto Gonzales stated 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, or working in support of al Qaeda.” 3 Critics have suggested that the scope of the program is overbroad, and has the potential to sweep in virtually every American citizen. 4

Yet this all-too-characteristic complaint appears hyperbolic in light of the only specific example of the actual (as opposed to conjectural) operation of the program—an example which came to light via a leak to the New York Times:

The program accelerated in early 2002 after the Central Intelligence Agency started capturing top Qaeda operatives overseas, including Abu Zubaydah, who was arrested in Pakistan in March 2002. The C.I.A. seized the terrorists’ computers, cellphones and personal phone directories, said the officials familiar with the program. The N.S.A. surveillance was intended to exploit those numbers and addresses as quickly as possible, they said. 5

While the Times suggests that this surveillance produced an expanding chain of investigation, this does not support the conclusion that a program monitoring the contacts of al Qaeda members or the contacts of al Qaeda co-conspirators—a program which the Times concedes was not used to monitor purely domestic communication—creates conditions where “no-one can feel certain of escaping its grasp.” This kind of overheated scare tactic looks more like a tagline intended for the fundraising letters of fringe advocacy groups than reasoned advice to Congress.

More important to the analysis of the scope of the program is the fact that the standard suggested by Attorney General Gonzales—that is, one focusing on communications where the executive has “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”—tracks reasonably well to the language of the President’s mandate from Congress. In the AUMF, 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 that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. 6

It is clear from this language that Congress did not merely intend to authorize the President to carry out military actions against members of al Qaeda, but those who aided and harbored al Qaeda as well. 7 This is consistent with the surveillance program, which targeted those individuals affiliated with al Qaeda or working in support of al Qaeda. In order to cast doubt on this consistency, the CRS misstates the standard articulated by Attorney General Gonzales, and thereby concludes “[t]o the extent that the President’s executive order authorizes surveillance of persons who are suspected of merely supporting Al Qaeda or affiliated terrorist organizations, it may be seen as overly broad.” 8 Of course, the CRS’s erroneous “merely supporting” standard is so amorphous that it could be overbroad. By contrast, the actual standard for electronic surveillance articulated by the Attorney General requires action—working in support of an organization whose sole purpose is the perpetuation of a criminal terrorist enterprise—and thereby imports one of the basic requirements found in the common criminal law definition of aiding and abetting. 9 While there may be some fine distinctions between individuals and terrorist organizations affiliated with or working in support of al Qaeda and those which specifically aid or harbor al Qaeda, it is a stretch to suggest that applying the standard actually articulated by the Attorney General risks overreaching the scope of authority granted to the President by the AUMF.

It is equally clear from the aforementioned text of the AUMF that Congress intended Presidential authority to address not only the retrospective attacks, but to prevent new attacks. In this regard, the authorization of military force was intended to address a continuing military threat whose battlefield regrettably includes United States territory. And yet, the CRS treats both the question of the location of the battlefield and the continuing nature of the threat to be a disputed question. See, id. (“It might be argued that the United States is part of the battlefield in the war against terrorism in more than just a metaphorical sense.… Under this view, the United States is under actual and continuing enemy attack.…”) (emphasis added; some emphasis in original).

Suffice it to say, the enemy does not share the CRS’s sense of ambiguity as to whether there is a continuing war in which America is a battlefield. On January 19, 2006—two weeks after the date of the CRS memo Osama Bin Laden issued a new video message warning that al Qaeda is planning more attacks on the United States soil, and referenced the ongoing conflicts in Iraq and Afghanistan as part of al Qaeda’s larger offensive against the United States. 10 The CRS’s expression of blithe reservations concerning whether the zone of conflict includes United States territory after the attacks on September 11—the largest single foreign attack on US. Soil—and in the face of continuing threats specifically aimed at U.S. territory constitutes a grave error of both fact and judgment. Furthermore, contrary to the CRS’s “theory” of continuing conflict, the AUMF’s authorization is not contingent on the realization of additional “actual or
completed attacks” on U.S. soil, but plainly authorizes the President to act in advance to prevent such attacks.

Accordingly, the scope of the President’s electronic surveillance program as discussed by Attorney General Gonzales is consistent with the scope of the AUMF’s authorization of the use of force by the President. To the extent that critics believe that the surveillance program is too broad in scope, their complaint falls not solely with the President, but with Congress, who gave their clear authorization to conduct military activity extending beyond a closed group of hijackers or some narrow group of al Qaeda members.

Having examined the scope of the program, the next question is whether the AUMF provides a sufficient statutory basis of authority for the electronic surveillance program in light of the statutory restrictions found in FISA. A preliminary issue here is whether the AUMF’s language authorizing the President “to use all necessary and appropriate force” encompasses the electronic surveillance at issue. On this point, the CRS makes a key concession: “To be sure, there can be little doubt that Congress, in enacting the AUMF, contemplated that the armed forces would deploy their military intelligence assets in Afghanistan or wherever else the conventional aspect of the conflict might spread.…” 11 Given that this is a broadly-worded statute whose meaning has been disputed, this statement regarding legislative intent is telling. However, after clearly stating that Congress understood that the passage of the AUMF would entail the deployment of military intelligence—which must by its plain and accepted meaning include electronic surveillance—the CRS then reverses course, stating that “a presumption that the authorization extends to less conventional aspects of the conflict could unravel the fabric of Hamdi, especially where measures are taken within the United States.” 12

In Hamdi v. Rumsfeld, 13 the Supreme Court examined, inter alia, whether the AUMF, which does not specifically mention enemy combatants, nonetheless provides a statutory basis for the President to detain enemy combatants. The plurality opinion of the Court held that “the detention of individuals falling into the limited category we are considering… is so fundamental and accepted an incident of war as to be an exercise of the ’necessary and appropriate force’ Congress has authorized the President to use.” 14 The CRS apparently believes that “unraveling” is likely to occur because the Court “cited the Geneva Conventions and multiple authorities on the law of war to reach its conclusion
that the capture of combatants is an essential part of warfare,” and “the Administration has not pointed to any authority similar to those cited by the Hamdi plurality.” 15

Contrary to the CRS’s assertion, while the plurality cites to the Geneva Conventions elsewhere in its opinion, it does not cite to the Geneva Conventions to reach its conclusion regarding whether capture of enemy combatants constitutes a fundamental and accepted incident of warfare. In support of this conclusion, the Court actually cites to prior judicial opinions, a law review quoting a Nuremberg Military Tribunal opinion, and a Civil War Army field code, speaking respectively about the practice of detaining enemy combatants. 16 While the Administration made some general references to the historic practices of wiretapping for national security in a letter from the Justice Department to members of Congress issued prior to the CRS report, 17 the Memorandum of “Legal Authorities Supporting the Activities of the National Security Agency Described by the President” (“DOJ Memo”) 18 issued after the CRS Report provided ample citations to the kind of authority relied upon by the Court in Hamdi. The DOJ Memo cites to numerous cases acknowledging both the practice and authority of the President to conduct electronic surveillance to protect national security, particulary during time of war or armed conflict. 19 Furthermore, keeping to Hamdi’s express reasoning—that is, whether the contested category is a fundamental and accepted incident of war—the Memo recounts the widespread acceptance of the practices of electronic surveillance at wartime dating back to the Civil War. 20 Given the voluminous evidence establishing that signals intelligence is a fundamental and accepted an incident of war, the CRS’s concerns about Hamdi’s fabric “unraveling” are misplaced.

Having discussed why it is that the AUMF includes within it the authority to conduct electronic surveillance, the primary argument raised by both the CRS Report and the Scholars’ Letter against such an interpretation of the AUMF is that FISA provides the exclusive means for conducting the kind of electronic surveillance at issue. While federal law does state that the “procedures” outlined in FISA shall be the exclusive means by which electronic surveillance… may be conducted,” 21 FISA itself contains an exception for those who “engage[] in electronic surveillance under color of law… as authorized by statute.” 22 The AUMF fits clearly into the exception, and relieves the President and his agents of any statutory obligation to comply with the restrictions of FISA.

The CRS report, however, suggests that FISA’s exception is narrow. Specifically, the CRS states “the legislative history appears to reflect an intention that the phrase ’authorized by statute’ was a reference to chapter 119 of Title 18 of the U.S. Code (Title III) and to FISA itself, rather than having a broader meaning…” 23 This reading is erroneous, and violates the most fundamental principles of statutory interpretation.

The exception found in FISA is plain and unambiguous. The exception states in relevant part: “A person is guilty of an offense if he intentionally engages in electronic surveillance under color of law except as authorized by statute[.]” 24 A plain reading of the word “statute” simply does not PERMIT the narrow reading suggested by the CRS. Indeed, when Congress wanted to limit exceptions to specific chapters in the context of wiretapping, it did so. See, e.g., 18 U.S.C. § 2511 (“Except as otherwise provided in this chapter…”) (emphasis added). And yet, despite the clarity of exception—and without asserting even a hint of ambiguity—the CRS turns to legislative history to “clarify” an unambiguous statute. The Supreme Court has repeatedly stated that looking beyond the text where the text is clear violates the “cardinal canon” of statutory interpretation:

[I]n interpreting a statute a court should always turn first to one, cardinal canon before all others. We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then, this first canon is also the last: “judicial inquiry is complete.” 25

Accordingly, the CRS’s appeal to legislative history was both unnecessary, and legally erroneous. Furthermore, even if we were to indulge in the CRS’s frolic and detour through extrinsic evidence, it is worth noting that the legislative history cited by the CRS is less clear than the text. The key section of the Committee Report cited by the CRS states:

Since certain technical activities-such as the use of a pen register-fall within the definition of electronic surveillance under this title, but not within the definition of wire or oral communications under chapter 119 [of Title 18, U.S.C.], the bill provides an affirmative defense to law enforcement or [an] investigative officer who engages in such an activity for law enforcement purposes in the course of his official duties, pursuant to a search warrant or court order. 26

While it is possible that this language expresses the understanding of the committee that the exception should only apply to cases like the example listed, the language neither suggests nor requires this limitation. This is especially true when the legislative history is read not in isolation, but beside the actual language of the statutory exception. It is folly to assert that this ambiguous legislative history would be sufficient to wholly modify the clear statutory text.

The Scholars’ Letter suggests another reason against reading the AUMF as a statutory exception to FISA, arguing that adopting such a position “would require the conclusion that Congress implicitly and sub silentio repealed 18 U.S.C. § 2511(2)(f), the provision that identifies FISA and specific criminal code provisions as ’the exclusive means by which electronic surveillance… may be conducted.’” However, by the very terms of the FISA and § 2511, no repeal by implication occurs. Section 2511 states in fuller measure that the:

procedures in this chapter or chapter 121 or 206 of this title and the Foreign Intelligence Surveillance Act of 1978 [codified at 50 U.S.C. §§ 1801 et seq.] shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act [codified at 50 U.S.C. § 1801], and the interception of domestic wire, oral, and electronic communications may be conducted. 27

Accordingly, the procedures outlined in FISA (including as it must, according to § 2511’s plain terms, FISA’s express exemption from the regulatory scheme of electronic surveillance conducted according to statute) are the exclusive means by which electronic surveillance and the interception of domestic electronic communications may be conducted. There can be no repeal by implication where the allegedly “repealing” statute is contemplated, and indeed provided for, by the statute it is alleged to repeal. By incorporating the procedures of FISA, the exception found at 50 U.S.C. § 1809(a)(1) is as much a part of 18 U.S.C. § 2511(2)(f) as it would be if § 2511 included the phrase, “except as authorized by statute.” Simply put, “the predicate for finding an implied repeal is not present in this case, because the… provisions of the two statutes are not inconsistent [.]”28 Furthermore, because conflict is also a predicate for applying the canon that the specific controls the general, any appeal to that canon by the Scholars’ Letter must also fail where, as here, the statutes lend themselves to a harmonious reading.

The Scholars’ Letter also relies heavily on 50 U.S.C. § 1811, which provides: “[n]otwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this title [50 USCS §§ 1801 et seq.] to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress,” 29 to argue that the AUMF could not have been intended to modify the requirements of FISA via its exception. The Scholars’ Letter suggests that this fifteen-day exception indicates that Congress anticipated the more formal step of a declared war, and that they provided this fifteen-day period so that Congress could consider further statutory authorization of warrantless surveillance. 30 The Scholars apparently conclude from this that Congress could not have intended the less formal AUMF to permit what the more formal declaration of war does not. Of course, the Scholars are correct in noting that a declaration of war is more formal, and carries with it constitutional significance. 31 But the question is not formality, but rather authority. Here, an authorization for the use of force in general, and the AUMF in particular, is broader than a more formal declaration of war, and contains within it the authority to conduct incidents of military force including electronic surveillance. While declarations of war may include authorizations for the use of military force (generally as a separate section of the declaration), there is no legal or constitutional requirement for such inclusion. The fifteen-day period would permit Congress to issue a formal declaration of war, and then to follow that declaration with a law, which could include an authorization for the use of force, to provide expanded statutory authorization for electronic surveillance. In the instant case, Congress opted not to indulge in the more formal declaration, but rather to grant the President expanded statutory authority to conduct military actions, which must include the incidents of such military actions-that is, military intelligence, and electronic surveillance. Accordingly, the 15-day provision is not sufficient to prohibit the AUMF from prevailing as an exception to FISA.

For the foregoing reasons, the AUMF and FISA can be read harmoniously. However, if for some reason a court finds that there is a conflict between the AUMF and FISA, then standard rules of statutory interpretation suggest that the AUMF must control. Specifically, the AUMF contains a savings clause, making clear that the statute does not intend to impair the operation of the War Powers Resolution. 32 The canon of expressio unius est exclusio alterius requires that, having created an express exception for a statute intended to limit Presidential power, Congress must expressly except FISA if they intend to exempt it from any potential conflict with the AUMF. They did not, and so the latter passed AUMF, which Congress understood to be broad enough to impair the operation of limits on Presidential power by means of the inclusion of the savings clause, must control if the statutes are seen as conflicting.

Finally, while somewhat outside the scope of this statutory review, it is worth noting that the argument that this entire dispute could have been avoided if the President would have just complied with the relatively easy requirements of FISA is misplaced. While changes were made to the requirements for obtaining a FISA warrant after 9/11, the process remains cumbersome, a fact that the 9/11 Commission noted:

Many agents in the field told us that although there is now less hesitancy in seeking approval for electronic surveillance under the Foreign Intelligence Surveillance Act, or FISA, the application process nonetheless continues to be long and slow. Requests for such approvals are overwhelming the ability of the system to process them and to conduct the surveillance. 33

The fact that the FISA process is not equipped to handle the new challenges posed by al Qaeda does not modify the statutory scheme, however it does undermine the argument that the current conflict was eminently avoidable, and solely of the President’s own making.

Accordingly, because FISA and the AUMF do not conflict, the President had broad statutory authority to conduct the surveillance in question. Time restricts me from commenting on the lingering Fourth Amendment questions, however I would be glad to do so if the committee would find it useful.

Very Truly Yours,

Robert Alt
Fellow in Legal and International Affairs
The John M. Ashbrook Center for Public Affairs at
Ashland University

1. Elizabeth B. Bazan and Jennifer K. Elsea, 30 Congressional Research Service Memorandum, “Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information,” (Jan. 5, 2006). Return to text.

2. Letter from Curtis Bradley, Richard and Marcy Horvitz Professor of Law, Duke University et al., to the Hon. Bill Frist, Majority Leader, U.S. Senate (Jan. 9, 2006). Return to text.

3. 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). Return to text.

4. See, e.g., Letter from Laurence Tribe, Carl M. Loeb University Professor, Harvard University, to the Hon. John Conyers, Jr., United States House of Representatives 2 (Jan. 6, 2006) (“Given the breadth and elasticity of the notions of ’affiliation’ and ’support,’ coupled with the loosely-knit network of groups that Al Qaeda is thought to have become, that definition casts so wide a net that no-one can feel certain of escaping its grasp.”). Return to text.

5. James Risen and Eric Lichtblau, Bush Lets US. Spy on Callers Without Courts, N.Y. Times, Dec. 16, 2005 Return to text.

6. AUMF, § 2. Return to text.

7. See discussion concerning whether electronic surveillance constitutes military action for the purpose of the AUMF, infra at 4. Return to text.

8. CRS Report at 37 (emphasis added). Return to text.

9. See, e.g., US. v. Jenkins, 90 F.3d 814, 821 (3d Cir. 1996) (“To convict of aiding and abetting, the government must show that the defendant ’in some [way] associate[d] himself with the venture, that he participate[d] in it as in something that he wishe[d] to bring about, that he [sought] by his action to make it succeed.”) (emphasis added) (citation omitted)). Return to text.

10. See, e.g., Hassan M. Fattah, Abeer Allam, and Douglas Jehl, Bin Laden Warns of Attacks in US. But Offers Truce, N.Y. Times, January 20, 2006, at Al. Return to text.

11. CRS Report at 35 (emphasis added). Despite the CRS’s implicit suggestion that the military intelligence program would be limited to the area of conventional warfare, it is perfectly clear that if Congress contemplated the use of military intelligence assets in the battlefield, they would have to anticipate that wiretaps and signal intelligence would necessarily intercept communications between individuals in the United States and al Qaeda operatives. After all, the precipitating acts for the passage of the AUMF—the attacks on 9/11—were conducted by terrorist operatives in the United States. While Congress may not have anticipated the full scope of the operation, it strains credulity to suggest that Congress anticipated a complete firewall between areas of conventional military operation and the United States. Return to text.

12. Id. Return to text.

13. 542 U.S. 507 (2004). Return to text.

14. Id. at 518. Return to text.

15. CRS Report at 35 (citing Hamdi, 542 U.S. at 518-19). Return to text.

16. Hamdi, 542 U.S. at 518-19. Return to text.

17. Letter from William E. Moschella, Assistant Attorney General, United States Dept. of Justice, to The Hon. Pat Roberts, Chairman, Senate Select Committee on Intelligence, United States Senate et al., 2-3 (Dec. 22, 2005). Return to text.

18. U.S. Dept. of Justice, “Legal Authorities Supporting the Activities of the National Security Agency Described by the President,” (Jan. 19, 2006). Return to text.

19. DOJ Memo at 7-8. Return to text.

20. Id. at 7-8 (quoting United States v. United States District Court, 444 F.2d 651, 669-70 (6^th Cir. 1971) (reproducing as an appendix memoranda from Presidents Roosevelt, Truman, and Johnson); id. at 14-17 (quoting, inter alia, G.J.A. O’Toole, The Encyclopedia of American Intelligence and Espionage 498 (1988) (noting that as early as the Civil War, “telegraph wiretapping was common, and an important intelligence source for both sides”). Return to text.

21. 50 U.S.C. § 1809(a)(1). Return to text.

22. Id. (emphasis added) Return to text.

23. CRS Report at 40. Return to text.

24. 50 U.S.C. § 1809(a)(1) (emphasis added). Return to text.

25. Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253-54 (1992) (internal citations omitted). Return to text.

26. CRS Report at 40 (quoting The House Permanent Select Committee’s Report, H. Rep. No. 95-1283(I), at 96 (June 8, 1978)). Return to text.

27. 18 U.S.C. § 2511(2)(f). Return to text.

28. Hagen v. Utah, 510 U.S. 399, 416 (1994). Return to text.

29. 50 U.S.C. § 1811. Return to text.

30. Interestingly, in its analysis of the Fourth Amendment issues concerning the use of warrantless surveillance, the Scholars’ Letter does not consider that the fifteen-day exception must constitute a judgment by Congress that at least some warrantless surveillance in a time of war is constitutional. Because there is no recognized, exploding 15-day exigent circumstances exception to the Fourth Amendment in wartime, and because we must assume Congress did not intend to pass an unconstitutional law, it follows that they must have believed that warrantless surveillance in wartime does not per force violate the Fourth Amendment. Of course, this coordinate branch construction is not binding on the courts, but it does provide some additional support for the Administration’s position. Return to text.

31. See, e.g., U.S. Constitution, Art. I, § 8 (granting Congress the authority to declare war). Return to text.

32. See AUMF, § 2(b)(2) (Nothing in this resolution supercedes any requirement of the War Powers Resolution).Return to text.

33. National Commission on Terrorist Attacks Upon the United States, “Reforming Law Enforcement, Counterterrorism and Intelligence Collection in the United States,” Tenth Public Hearing (Apr. 10, 2004). Return to text.

Robert Alt is a Fellow in Legal and International Affairs at the Ashbrook Center.