Constitutional Limitations On Domestic Surveillance: Hearing

CONSTITUTIONAL LIMITATIONS ON
DOMESTIC SURVEILLANCE
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION,

CIVIL RIGHTS, AND CIVIL LIBERTIES
OF THE
COMMITTEE ON THE JUDICIARY

HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
JUNE 7, 2007
Serial No. 11045

Printed for the use of the Committee on the Judiciary
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35861 PDF
2007
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COMMITTEE ON THE JUDICIARY

JOHN CONYERS, JR., Michigan, Chairman
HOWARD L. BERMAN, California
LAMAR SMITH, Texas
RICK BOUCHER, Virginia
F. JAMES SENSENBRENNER, JR.,
Wisconsin
JERROLD NADLER, New York
HOWARD COBLE, North Carolina
ROBERT C. SCOTT, Virginia
ELTON GALLEGLY, California
MELVIN L. WATT, North Carolina
BOB GOODLATTE, Virginia
ZOE LOFGREN, California
STEVE CHABOT, Ohio
SHEILA JACKSON LEE, Texas
DANIEL E. LUNGREN, California
MAXINE WATERS, California
CHRIS CANNON, Utah
MARTIN T. MEEHAN, Massachusetts
RIC KELLER, Florida
WILLIAM D. DELAHUNT, Massachusetts
DARRELL ISSA, California
ROBERT WEXLER, Florida
NCHEZ, California
MIKE PENCE, Indiana
LINDA T. SA
J. RANDY FORBES, Virginia
STEVE COHEN, Tennessee
STEVE KING, Iowa
HANK JOHNSON, Georgia
TOM FEENEY, Florida
LUIS V. GUTIERREZ, Illinois
TRENT FRANKS, Arizona
BRAD SHERMAN, California
LOUIE GOHMERT, Texas
TAMMY BALDWIN, Wisconsin
JIM JORDAN, Ohio
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota
PERRY APELBAUM, Staff Director and Chief Counsel
JOSEPH GIBSON, Minority Chief Counsel
SUBCOMMITTEE
ON THE
CONSTITUTION, CIVIL RIGHTS,
JERROLD NADLER,
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota
JOHN CONYERS, JR., Michigan
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
STEVE COHEN, Tennessee
AND
CIVIL LIBERTIES
New York, Chairman

TRENT FRANKS, Arizona
MIKE PENCE, Indiana
DARRELL ISSA, California
STEVE KING, Iowa
JIM JORDAN, Ohio
DAVID LACHMANN, Chief of Staff

PAUL B. TAYLOR, Minority Counsel
(II)
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CONTENTS
JUNE 7, 2007
Page
OPENING STATEMENT
The Honorable Jerrold Nadler, a Representative in Congress from the State
of New York, and Chairman, Subcommittee on the Constitution, Civil
Rights, and Civil Liberties ..................................................................................
The Honorable Trent Franks, a Representative in Congress from the State
of Arizona, and Ranking Member, Subcommittee on the Constitution, Civil
Rights, and Civil Liberties ..................................................................................
The Honorable John Conyers, Jr., a Representative in Congress from the
State of Michigan, Member, Subcommittee on the Constitution, Civil
Rights, and Civil Liberties, and Chairman, Committee on the Judiciary .......
The Honorable Darrell Issa, a Representative in Congress from the State
of California, and Member, Subcommittee on the Constitution, Civil Rights,
and Civil Liberties ...............................................................................................
1
3
4
5
WITNESSES
Mr. Steven G. Bradbury, Principal Deputy Assistant Attorney General, Office
of Legal Counsel, U.S. Department of Justice
Oral Testimony .....................................................................................................
Prepared Statement .............................................................................................
Mr. Bruce Fein, The Lichfield Group, Inc.
Oral Testimony .....................................................................................................
Mr. Lee A. Casey, Partner, Baker Hostetler
Oral Testimony .....................................................................................................
Mr. Jameel Jaffer, Director, National Security Project, American Civil Liberties Union
Oral Testimony .....................................................................................................
Mr. Louis Fisher, American Law Division, Library of Congress
Oral Testimony .....................................................................................................
7
10
20
21
43
44
48
50
68
70
APPENDIX
MATERIAL SUBMITTED
FOR THE
HEARING RECORD
Response from Brian A. Benczkowski, Principal Deputy Assisant Attorney

General, U.S. Department of Justice, in response to post-hearing questions
submitted by the Subcommittee .........................................................................
U.S. Department of Justice document entitled Legal Authorities Supporting
the Activities of the National Security Agency Described by the President ..
Letter from the Committee on the Judiciary, dated January 19, 2007, to
the Honorable Alberto R. Gonzales, Attorney General of the United States,
U.S. Department of Justice .................................................................................
Letter from the Committee on the Judiciary, dated February 1, 2007, to
the Honorable Alberto R. Gonzales, Attorney General of the United States,
96
99
141
143
(III)
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IV
Page
Letter from Richard A. Hertling, Acting Assistant Attorney General, U.S.

Department of Justice, dated February 9, 2007, to the Honorable John
Conyers, Jr., Chairman, Committee on the Judiciary ......................................
Letter from the Committee on the Judiciary, dated May 17, 2007, to the
Honorable Alberto R. Gonzales, Attorney General of the United States,
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CONSTITUTIONAL LIMITATIONS ON
DOMESTIC SURVEILLANCE
THURSDAY, JUNE 7, 2007
HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE ON THE CONSTITUTION,
CIVIL RIGHTS, AND CIVIL LIBERTIES,
COMMITTEE ON THE JUDICIARY,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:19 p.m., in Room
2141, Rayburn House Office Building, the Honorable Jerrold Nadler (Chairman of the Subcommittee) presiding.
Present: Representatives Nadler, Wasserman Schultz, Ellison,
Conyers, Scott, Watt, Cohen, Franks, Pence, Issa, and King.
Staff present: David Lachmann, Staff Director; Keenan Keller,
Counsel; Kanya Bennett, Counsel; Burton Wides, Counsel; Heather
Sawyer, Counsel; Susana Gutierrez, Professional Staff Member;
and Paul Taylor, Minority Counsel.
Mr. NADLER. Good afternoon. Todays hearing will examine the
constitutional limitations on domestic surveillance.
The Chair recognizes himself for 5 minutes for an opening statement.
Today the Subcommittee on the Constitution, Civil Rights and
Civil Liberties begins a series of hearings entitled, The Constitution in Crisis: The State of Civil Liberties in America.
Through these hearings, the Subcommittee will examine the
Bush administrations policies, actions and programs that I believe
threaten Americas fundamental constitutional rights and civil liberties, and also we will hear proposals for potential legislative remedies.
Todays hearing specifically looks at one of the foundations of our
fundamental liberties: the constitutional and statutory restrictions
on the Governments ability to spy on people. Both the fourth
amendment and the Foreign Intelligence Surveillance Act were responses to abuses by governments that thought they were above
the law. The right of the people to be secure in their persons,
houses, papers and effects against unreasonable searches and seizures, as the fourth amendment puts it, is a core limitation on the
Government that protects each of us.
The framers of the Constitution understood this, and despite
periodic lapses, so have most of our Nations leaders. Congress enacted FISA, the Foreign Intelligence Surveillance Act, in 1978, following the Church Committees report on surveillance abuses in
the 1960s and 1970s.
(1)
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The FISA reflects timeless understanding that the conduct of foreign intelligence activities is fundamentally different from domestic
surveillance. It nonetheless also reflects one of our Nations founding principles that power, especially the power to invade peoples
privacy, must never be exercised unchecked.
We rejected monarchy in this country more than 200 years ago.
That means that no President may become a law unto him-or herself, even aided by a Vice President. As with every part of Government, there must always be checks and balances. This President
appears to have forgotten that fact. Not only has he asserted the
right to violate the FISA Act, to go around the FISA court and the
Wiretap Act, but he has concededly actually done so.
Even more disturbing, he does not believe that in this and in
other things he is accountable to the Congress, the courts or anyone else. This Committee created the FISA statute and the FISA
court, yet the President believes this Committee and its Members
are not entitled to know what he and that court are doing. The
President also believes we are not entitled to know what he is
doing or has been doing outside the confines of the FISA statute.
Now we are told, as we have been in the past, that the President
needs changes in the FISA statute. Why he needs changes in the
FISA statute when he asserts the right to violate it as his whim,
I dont know. In any event, we have no way to evaluate his claim
of necessity because he has also taken the position that we have
no right to know what legal limits he has been observing in his
conduct of surveillance or how he came to the legal rationale for
those limits, if any.
We have also been told that the President may at anytime resume warrantless surveillance, so past practices bear directly on
possible future actions. Many have begun to conclude that the
shroud of secrecy thrown over these activities has less to do with
protecting us from terrorism and more to do with protecting the
Administration from having its law-breaking exposed. The FISA
statute is a criminal statute, and surveillance conducted in the
name of Government without legal authorization is a crime.
It is my fervent hope that no crime has been committed here, but
the more secretive this Administration is, the more concerned I and
many other Americans become that they are covering up crimes
that they are committing in our name. I will not ask Mr. Bradbury
to discuss the operational aspects of any of these programs. No one
wants to expose sources and methods in a public forum, but I do
expect honest and forthright answers concerning the legal justifications for the Administrations actions.
I want to welcome all of our witnesses and thank them for agreeing to appear before the Subcommittee today. I look forward to
your testimony.
Mr. ISSA. Mr. Chairman, parliamentary inquiry?
Mr. NADLER. Would the gentleman state his parliamentary inquiry?
Mr. ISSA. Isnt it against the House Rules to allege a misconduct
or illegal act of the President? And isnt that grounds to have
words taken down? And isnt it inappropriate under House Rules
and this Committees rules to make allegations of criminal conduct
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of the President or the Administration without that being part of
an actual investigation?
Mr. NADLER. The answer is, first of all, I dont know if it is
against the rules, but in any event, no one has made any allegations of criminal actions. I have said that many Americans, myself
included, believe that criminal actions have occurred, but that is
not an allegation. It is a statement that I believe that, and I hope
it is not correct. That is what I said.
Mr. ISSA. So you dont know it to be true, but you simply believe
it. You have no evidence of that, Mr. Chairman. Is that correct?
Mr. NADLER. I think there is evidence. Whether the evidence is
sufficient, I dont know, and that is one of the reasons we are having this hearing, to get the facts.
Mr. ISSA. Thank you, Mr. Chairman.
Mr. NADLER. I would now recognize our distinguished Ranking
minority Member, the gentleman from Arizona, Mr. Franks, for his
opening statement.
Mr. FRANKS. Thank you, Mr. Chairman.
And I thank all of the panelists here for being here with us.
Mr. Chairman, in 1968 when Congress enacted the first Federal
wiretapping statute, it included in the legislation an explicit statement that, nothing in this chapter shall limit the constitutional
power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack, or
to obtain foreign intelligence information deemed necessary to the
security of the United States.
Justice Holmes wrote for a unanimous Supreme Court in 1909
that, when it comes to a decision by the head of the state upon
a matter involving its life, public danger warrants a substitution of
executive process for judicial process.
Perhaps one of the most essential functions of the Presidents authority over foreign affairs and national defense is the collection of
foreign intelligence. The Presidents foreign affairs powers are not
exercises in criminal prosecution to secure evidence for prosecuting
terrorists in eventual court proceedings. Rather, it is a wartime
program of a military nature that requires speed and agility.
Critics of the NSAs Terrorist Surveillance Program are fond of
quoting Justice Jacksons concurring opinion in the Steel Seizure
case, in which he wrote that when the President acts in defiance
of the expressed or implied will of Congress, his power is at its
lowest ebb.
But the NSA program does not violate the will of Congress, and
the same Justice Robert Jackson also wrote for a majority of the
Supreme Court, the President, both as commander-in-chief and as
the Nations organ of foreign affairs has available intelligence services whose reports are not and ought not to be published to the
world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the executive taken on information properly held secret.
The same Justice Jackson, as attorney general in the run-up to
World War II, carried out warrantless electronic surveillance within the United States at the direction of President Franklin D. Roosevelt. More than 20 years after World War II, in Katz v. United
States, the Supreme Court held that domestic wiretaps generally
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require a warrant and probable cause, but the Supreme Court in
the same Katz decision expressly conceded the existence of inherent
presidential power to act to defend against foreign threats. The
court took pains to make it clear it was not speaking to, a situation involving the national security, as to which, and I quote
again, safeguards other than prior authorization by a magistrate
would satisfy any fourth amendment concern.
Critics have portrayed the NSAs Terrorist Surveillance Program
as domestic spying, but that is not an accurate description of
what we know at this classified program. As the Justice Department has explained, the President has authorized the NSA to intercept international communications into and out of the United
States where there is a reasonable basis for believing that one of
those persons is linked to al-Qaida or related terrorist organizations. The program only applies to communications where one
party is located outside of the United States.
Both before and after the enactment of FISA, all Federal appellate courts that had directly confronted this issue have found that
the President is constitutionally empowered under article II to conduct warrantless electronic surveillance when the President deems
it necessary to protect the Nation from foreign threats. Although
critics now claim that Congress, when it enacted the FISA statute,
somehow diminished the Presidents authority under article II of
the Constitution, the Foreign Intelligence Surveillance Court of Review, which is the most specialized tribunal as to FISA, has rejected that proposition.
In 2002, the Court of Review stated that, all courts who have
decided the issue have held that the President did have the inherent authority to conduct warrantless searches to obtain foreign intelligence information. We take for granted that the President does
have that authority, and assuming that is so, FISA could not encroach on the Presidents constitutional power.
Congress can always find, Mr. Chairman, a way to cut funding
for a program, but Congress may not invade the Presidents central
prerogatives. Those constitutional prerogatives were not changed
when Congress enacted the FISA statute.
As we face the jihadist threat in the world, the NSA surveillance
program is one that is constitutional and vital to the safety and
survival of this republic. Mr. Chairman, if we have empowered the
President to hunt down and ferret out and kill terrorists, if as the
President of the United States the Constitution empowers him to
hunt down and ferret out and kill terrorists, surely he has the authority to listen to them on the telephone before he proceeds.
With that, I look forward to hearing from our witnesses. Thank
you.
Mr. NADLER. Thank you.
I now recognize the Chairman of the full Committee for a statement.
Mr. CONYERS. Thank you, Subcommittee Chairman Nadler. I
commend you and the Ranking Member because todays hearing is
an important first step that will enable us to learn what our Government is doing and whether their actions are grounded in law.
I do hope we can begin to obtain clearer answers to these questions. The reason that I think that we will is the nature of the
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membership of the panel this afternoon. Most of them I am familiar with, and I think this is an excellent, excellent beginning.
We have some questions. How was the Administrations program
of warrantless surveillance allowed to take effect? And when will
this Administration begin to provide this Committee with the information so that we can do our job? And then how can we consider
the Administrations proposed legislative changes in the face of
such a vacuum?
I have much else to say, but I want to hear from the witnesses
more than I want to tell you what I am asking. It will be included
in my remarks, by unanimous consent.
Mr. ISSA. Mr. Chairman? I seek to make an opening statement
also.
Mr. NADLER. [off-mike] witnesses, and we are going to have votes
here soon. I would ask that other Members submit statements for
the record.
Mr. ISSA. I would be glad to submit primarily for the record, but
just make a short correcting opening statement.
Mr. NADLER. Okay. The Chairman took 112 minutes.
Mr. ISSA. Thank you. I respect the senior Member of this Committee a great deal and will do the same.
Mr. Chairman, both yourself, as Subcommittee Chairman, and
the full Committee Chairman in your opening remarks made certain claims that I think deserve to be put on the record as part of
the opening.
First of all, the people who should be on the witness stand today
are Speaker Nancy Pelosi, Ms. Jane Harman, and Chairman Sil
Reyes. These three people throughout their periods of time, beginning with the now-speaker of the House, had direct and individual
knowledge before, during and in the entire period of President
Bushs administration as to all efforts, not just those that went to
FISA, but all efforts.
In fact, this Administration, and I am a Member of the Select Intelligence Committee, and as I am sure the Chairman is very
aware, we are fully briefed, and the Chair and Ranking Member
of that Committee, particularly, are fully briefed as to everything,
including the individual actions and executive orders of the President.
So to say here today we want to know what was going on, I
believe is less than fully genuine, unless we include the fact that
we have Members, including the speaker of the House, who are
fully informed and have that knowledge and have had it throughout.
In closing, I would say that, yes, Heather Wilson has been pushing for the last 4 years to open up and reform FISA, but that is
in response to individuals saying if you dont have the authority,
then lets get you the authority to do it under the court. That is,
in fact, what we should be doing here today. I would hope that
FISA reform is on the Chairmans agenda.
I yield back.
Mr. NADLER. I thank the gentleman.
Let me simply observe that the gentleman as a Member of the
Intelligence Committee may be briefed but this Committee is not
briefed.
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Frankly, I care less about the Intelligence Committee than I do
about this Committee. This Committee has jurisdiction over FISA.
This Committee has jurisdiction over the fourth amendment. And
this Committee has been refused information by the Administration. We have been offered that the Chairman and the Ranking
Member will be briefed. That is not sufficient. Mr. Conyers and I
have written to the Administration to that effect.
We believe that under the Constitution and the laws, this Committee must be fully briefed, because otherwise we cant legislate.
Mr. ISSA. Mr. Chairman, I fully agree with you, but it is the
Rules of the House that determine that.
Mr. NADLER. The Rules of the House give us the jurisdiction, and
therefore the right to be briefed.
Mr. ISSA. And the speaker of the House could make that change.
Thank you, Mr. Chairman.
Mr. NADLER. In the interests of proceeding to our witnesses, and
mindful of our busy schedules, I would ask that other Members, if
any, submit their statements for the record.
Without objection, all Members will have 5 legislative days to
submit opening statements for inclusion in the record, to revise and
extend their remarks, and to include additional materials in the
record.
Without objection, the Chair will be authorized to declare a recess of the hearing, which we will do if there is a vote. We do expect a vote during the hearing. I will declare a recess when there
are 5 minutes left on the 15-minute vote. There will be two votes
probably, so that means we should resume in 10 minutes or 12
minutes. I would ask that Members return as soon as they can cast
their votes on that second vote.
As we ask questions of our witnesses, the Chair will recognize
Members in the order of their seniority on the Subcommittee, alternating between majority and minority, provided that the Member
is present when his or her turn arrives. Members who are not
present when their turn begins will be recognized after the other
Members have had the opportunity to ask their questions. The
Chair reserves the right to accommodate a Member who is unavoidably late or only able to be with us a short time.
I will now introduce our witnesses.
Our first witness is Steven Bradbury, the principal deputy assistant attorney general for the Office of Legal Counsel of the U.S. Department of Justice. He received his undergraduate degree from
Stanford University in 1980, his law degree from Michigan in 1988.
He served as clerk to Judge James L. Buckley from New York on
the U.S. Court of Appeals for the D.C. Circuit from 1990 to 1991,
and Justice Clarence Thomas on the Supreme Court of the United
States from 1992 to 1993.
Our next witness is Bruce Fein. In the Department of Justice, he
served as associate deputy attorney general, assistant director in
the Office of Legal Policy, and special assistant to the assistant attorney general for antitrust. He is also the former general counsel
at the Federal Communications Commission. Mr. Fein graduated
Phi Beta Kappa from the University of California at Berkeley in
1969, cum laude from Harvard Law School in 1972, and then
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clerked for United States District Judge Frank Kaufman in the
District of Maryland.
Lee Casey is a partner with the firm of Baker Hostetler. He
served in the Justice Department in the Office of Legal Counsel
from 1992 to 1993, and the Office of Legal Policy from 1986 to
1990. From 1990 to 1992, Mr. Casey served as deputy associate
general counsel at the U.S. Department of Energy. He earned his
B.A. magna cum laude from Oakland University and his J.D. cum
laude from the University of Michigan Law School. He clerked for
Judge Alex Kozinski, then chief judge of the United States Claims
Court.
Jameel Jaffer is the director of the National Security Project for
the American Civil Liberties Union Foundation, and has litigated
several significant cases involving Government secrecy and national security. Mr. Jaffer is a graduate of Williams College, Cambridge University, and Harvard Law School. He was an editor of
the Harvard Law Review from 1997 to 1999, and his writing has
appeared in that journal as well as in the Journal of Transnational
Law and Policy. After law school, Mr. Jaffer served as law clerk to
the Honorable Amalya Kearse, United States Court of Appeals for
the Second Circuit.
Our final witness is Louis Fisher, specialist in constitutional law
in the Library of Congress. Dr. Fisher worked for the Congressional
Research Service from 1970 to 2006. Dr. Fisher received his Ph.D.
from the New School for Social Research in 1969. Among his many
publications are Constitutional Conflicts Between Congress and
the President, and Presidential War Power, both quite relevant
now.
I am pleased to welcome all of you, and I thank you for your testimony. Your written statements will be made part of the record in
its entirety. I would ask that you now summarize your testimony
in 5 minutes or less each.
To help you stay within that time limit, there is a timing light
at your table in fact, too. When 1 minute remains, the light will
switch from green to yellow, and then to red when the 5 minutes
are up.
Before we begin, I would ask to swear in our witnesses. If you
could please stand and raise your right hand to take the oath.
[Witnesses sworn.]
Let the record reflect that each of the witnesses answered in the
affirmative.
We will begin with the first witness, Mr. Bradbury.
TESTIMONY OF STEVEN BRADBURY, PRINCIPAL DEPUTY ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL,
U.S. DEPARTMENT OF JUSTICE
Mr. BRADBURY. Thank you, Chairman Nadler, Chairman Conyers, Ranking Member Franks and Members of the Subcommittee.
It is an honor to appear before you today.
In the wake of the attacks of 9/11, the President authorized the
National Security Agency to establish an early warning system to
detect and prevent further terrorist attacks against the United
States. Under the Terrorist Surveillance Program, as described by
the President, the NSA targeted for interception international com-
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munications into and out of the United States where there was
probable cause to believe that at least one party to the communication was a member or agent of al-Qaida or an associated terrorist
organization.
Trained intelligence professionals made the decisions to target
communications for interception subject to extensive reviews. Key
Members of Congress were briefed on the program from its inception, and it was subsequently briefed to the full membership of
both Intelligence Committees, which have conducted in-depth oversight of the program and all related intelligence activities.
In the spring of 2005, well before the first press accounts disclosing the existence of the Terrorist Surveillance Program, the Administration began exploring options for seeking authorization for
the program from the Foreign Intelligence Surveillance Court. On
January 10, 2007, a judge of that court issued innovative and complex orders that ensure that the intelligence community can operate with the speed and agility necessary to protect the United
States from al-Qaida.
As a result of these orders, any electronic surveillance that was
occurring as part of the Terrorist Surveillance Program is now subject to the approval of the FISA Court, and in light of that achievement, the President determined not to reauthorize the program.
Nevertheless, I do wish to emphasize that the President definitely had the authority to authorize the Terrorist Surveillance
Program under acts of Congress and under the Constitution. As explained in greater detail in the Department of Justices January,
2006 white paper, a copy of which I ask to be placed in the record,
article II of the Constitution charges the President with the primary duty to protect the Nation from armed attack, and the Constitution grants the President the full authority necessary to carry
out that duty.
Thus, it is well-established that the President has constitutional
authority to direct the use of electronic surveillance for the purpose
of collecting foreign intelligence information, and this conclusion is
even stronger when the surveillance is undertaken to prevent further attacks against and within the United States, particularly in
the context of an ongoing congressionally authorized armed conflict.
Furthermore, the authorization for the use of military force of
September 18, 2001, as construed by the Supreme Court in Hamdi
v. Rumsfeld, and confirmed by history and tradition, authorized the
executive branch to conduct such surveillance. This conclusion
holds notwithstanding the exclusive means provision of FISA because the AUMF is a statute authorizing the conduct of electronic
surveillance within the meaning of section 109(a)(1) of FISA.
At a minimum, interpreting FISA to prohibit the President from
authorizing foreign intelligence surveillance against al-Qaida, a diffuse network of foreign terrorist enemies who have already successfully attacked the United States and have repeatedly vowed to do
so again, would raise a serious question about the constitutionality
of FISA. Statutes must be interpreted, if fairly possible, to avoid
raising such constitutional concerns. FISA and the AUMF can fairly be read together to do just that.
In any event, the Terrorist Surveillance Program is no longer
operational. It is now imperative, in our view, that Congress and
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the executive branch cooperate to close critical gaps in our intelligence capabilities under FISA, while ensuring proper protections
for the civil liberties of U.S. persons. FISA has been and continues
to serve as the foundation for conducting electronic surveillance of
foreign powers and their agents in the United States.
The most serious problems with FISA stem from the fact that
FISA defines the term electronic surveillance in a way that depends upon communications technology and practices as they existed in 1978. This technology-dependent approach has had dramatic, but unintended, consequences sweeping within the scope of
FISA a wide range of communications intelligence activities that
Congress originally intended to exclude. As a result, our intelligence capabilities have been hampered, and the intelligence community, the Department of Justice, and the FISA Court have had
to expend precious resources on court supervision of intelligence activities that are directed at foreign persons overseas.
To rectify these problems, the Administration has proposed comprehensive amendments to FISA that would make the statute technology-neutral, enhance the Governments authority to secure assistance from private entities in conducting lawful foreign intelligence surveillance activities, and streamline the application and
approval process before the FISA Court. Privacy and security are
not mutually exclusive. By modernizing FISA, we can both provide
the intelligence community with an enduring, agile and efficient
means of collecting critical foreign intelligence information, and
strengthen the privacy protection for U.S. persons in the United
States.
Again, Mr. Chairman, thank you for the opportunity to appear
today to discuss these important issues.
[The prepared statement of Mr. Bradbury follows:]
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OF
STEVEN G. BRADBURY
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PREPARED STATEMENT
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20
Mr. NADLER. Thank you very much.
Mr. Fein?
TESTIMONY OF BRUCE FEIN, THE LICHFIELD GROUP, INC.
Mr. FEIN. Mr. Chairman and Members of the Subcommittee, I

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

I am pleased to share my views on the legality of the Bush administrations programs to gather foreign intelligence in contravention of the Foreign Intelligence Surveillance Act of 1978 (FISA). My remarks will focus on the National Security Agencys (NSA) domestic warrantless surveillance program that targets American citizens on American soil on the Presidents say-so alone. But Delphic remarks by the
Attorney General and other Bush administration officials indicate that other foreign
intelligence spying programs are ongoing and generally unknown by either the Congress or the American people. But the Founding Fathers decried secret government.
They recognized that sunshine is the best disinfectant; and, that secrecy breeds
abuses and folly. Think of the three decades of illegalities by the Central Intelligence Agency and Federal Bureau of Investigation in opening mail and intercepting international telegraphs revealed by the Church Committee. Accordingly,
Congress should insist that the respective intelligence committees of the House and
Senate be fully and currently informed of every foreign intelligence collection program of the executive branch.
WHY BE ALARMED ABOUT ILLEGAL SPYING PROGRAMS?
The signature idea of the American Revolution was the belief that the chief end
of the state was to make persons free to develop their faculties and to pursue virtue
and wisdom, not to aggrandize government or to build empires. The Founding Fa-
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thers believed that liberty should be the rule and that government intervention the
exception based on a serious showing of need to protect a strong collective interest.
They believed that the right to be left alone was the most cherished by civilized people; and, that a generalized fear of government harassment or retaliation would dull
political debate and deter dissent. Accordingly, the Fourth Amendment was enshrined to prohibit government from unreasonable searches and seizures. The primary safeguard was the customary requirement of a particularized judicial warrant
for a search premised on probable cause to believe evidence of crime would be discovered. History had taught that an unchecked executive would search to cow, to
harass, or to oppress political opponents. The Fourth Amendment safeguards the
right to be left alone for its own sake and to promote robust political discourse, the
lifeblood of a democratic dispensation.
Illegal searches are alarming because they subvert a fundamental individual liberty and frighten the public into submissiveness or silence. An indefinite number
of citizens today are hesitant to criticize the Bush administration because fearful
of retaliation.
THE ILLEGALITY OF THE NSAS DOMESTIC WARRANTLESS SURVEILLANCE PROGRAM
I have attached an article I authored for the Presidential Quarterly that elaborates on the flagrant illegality of the NSAs domestic warrantless surveillance program that violates FISA; and, an article I authored for The Washington Times that
examines former Deputy Attorney General James Comeys testimony before the Senate Judiciary Committee last week. The gist of the articles is as follows:
FISA is clearly a constitutional exercise of the congressional power to enact
necessary and proper laws that reasonably regulate the exercise of an executive power;
FISA leaves the vast majority of the executives power to gather foreign intelligence undisturbed, and does not aggrandize Congress at the expense of the
executive;
FISA was born of decades of spying abuses by an unchecked executive to harass or embarrass political opponents. It was not an exercise of congressional
peevishness.
The constitutional theory advanced by the Bush administration to justify the
NSAs warrantless spying program equally crowns the President with authority to open mail, break and enter homes, and kidnap for the purpose of interrogation on his say-so alone.
Mr. Comey did not fix the FISA problem with the NSAs warrantless surveillance program after he threatened to resign and President Bush informed
him to do the right thing.
Congress should enact a law that prohibits any expenditure of the United
States to gather foreign intelligence except in conformity with FISA.
Based on the public record, it also would seem appropriate for this Committee to
investigate whether criminal violations of FISA have been committed by the Bush
administration and to urge the Department of Justice to appoint a special prosecutor to examine the matter. There is reason to suspect that high level officials,
including President Bush himself, have knowingly violated FISA and continue to do
so through the NSAs domestic warrantless surveillance program. All of the legal
arguments concocted by the Bush administration to defend the program have been
facially preposterous.
Attorney General Alberto Gonzales belatedly obtained a FISA warrant for the
NSAs spying but its terms have not been shared with Congress generally. Without
disclosure, it is impossible for Congress to assess whether the warrant complies with
FISA or whether the statute should be amended. I would urge Congress to prohibit
the expenditure of any monies of the United States to execute a FISA warrant
whose provisions have been withheld from the its respective House and Senate intelligence and judiciary committees despite the issuance and service of proper subpoenas.
CONCLUSION
If Congress leaves the Bush administrations illegal spying programs unrebuked,

a precedent will have been established that will lie around like a loaded weapon
ready for permanent use throughout the endless conflict with international terrorism. If Congress slumbers, free speech and association will be chilled; political
dissent will be muffled; unorthodox or unconventional behavior will be discouraged
or punished; and, the American people will become docile, a fatal weakness to demo-
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cratic customs and institutions. If the constitutional oath means anything, it means
that Members of Congress are obligated to check and to sanction clear and palpable
executive branch abuses.
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ATTACHMENTS
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43
Mr. Casey?
TESTIMONY OF LEE A. CASEY, PARTNER, BAKER HOSTETLER
Mr. CASEY. Thank you, Mr. Chairman. I appreciate the opportunity to appear today to discuss the constitutional limitations on
domestic surveillance.
Ironically, the most controversial surveillance over the past several years has not been domestic at all, but rather the international surveillance involved in the NSAs Terrorist Surveillance
Program. It is to the legal issues surrounding that program that
I will address my remarks.
I should make clear that I am speaking here on my own behalf.
Let me begin by stating that I believe President Bush was fully
within his constitutional and statutory authority when he authorized the TSP. The Presidents critics have variously described this
program as widespread, domestic and illegal. Based upon the published accounts, it is none of these things. Rather, it is a targeted
program on the international communications of individuals engaged in an armed conflict with the United States and is fully consistent with FISA.
In assessing the Administrations actions here, it is important to
highlight how narrow is the actual dispute over the NSA program.
Few of the Presidents critics claim that he should not have ordered
the interception of al-Qaidas global communications or that he
needed the FISA Courts permission to intercept al-Qaida communications abroad. It is only with respect to communications actually
intercepted inside the United States or where the target is a
United States person in the United States, that FISA is relevant
at all to this national discussion.
Since this program involves only international communications,
where at least one party is an al-Qaida operative, it is not clear
that any of these intercepts would properly fall within FISAs
terms. This is not the pervasive dragnet of American domestic communications about which so many of the Presidents critics have
fantasized.
The Administration has properly refused to publicly articulate
the full metes and bounds of the NSA program. Let us assume,
however, that some of the intercepts are subject to FISA. As the
Department of Justice correctly pointed out in its January 19,
2006, memorandum, FISA permits electronic surveillance without
an order if it is otherwise authorized by statute. The NSA program
was so authorized.
The September 18, 2001, authorization for the use of military
force permits the President to use all necessary and appropriate
force against those responsible for September 11, in order to prevent any future acts of international terrorism against the United
States. The Supreme Court has already interpreted this grant to
encompass all of the fundamental incidents of waging war. In
Hamdi v. Rumsfeld, the court considered and rejected the argument, then being advanced with respect to the Non-Detention Act
that the September 18 authorization permitted only those types of
force not otherwise specifically forbidden by statute.
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The monitoring of enemy communications, whether or not within
the United States, is as much a fundamental and accepted incident
to war as is the detention of captured enemy combatants. Indeed,
it is only through the collection and exploitation of intelligence that
the September 18th authorization can be successfully implemented.
Even in the absence of that law, however, the TSP would fall
within the Presidents inherent constitutional authority as chief executive and commander-in-chief. The U.S. Courts of Appeal that
have considered the issue have upheld this authority. FISAs own
Foreign Intelligence Surveillance Court of Review has acknowledged it, noting that FISA itself could not encroach upon it. And
the Supreme Court has carved the area of foreign intelligence collection out of its fourth amendment warrant jurisprudence.
But if FISA were construed to prohibit, without judicial approval,
the Presidents decision to monitor enemy communications into and
out of the United States in wartime, then the statute would be invalid. Wars cannot be fought without intelligence and requiring the
President as commander-in-chief to obtain an order to intercept
enemy communications would be no less unconstitutional than
would requiring judicial oversight of target selection. It need not
and should not be so interpreted.
Thank you.
[The prepared statement of Mr. Casey follows:]
PREPARED STATEMENT
OF
LEE A. CASEY
I appreciate the opportunity to appear today to discuss the Constitutional Limitations on Domestic Surveillance. Ironically, the most controversial surveillance over
the past several years has not been domestic at all, but rather the international
surveillance involved in the NSAs Terrorist Surveillance Program (TSP), and it
is to the legal issues surrounding that program that I will address my remarks. I
should make clear that I am speaking here on my own behalf.
Let me begin by stating that I believe President Bush was fully within his constitutional and statutory authority when he authorized the TSP, including his decision to permit the interception of al Qaeda communications into and out of the
United States without first obtaining an order from the Foreign Intelligence Surveillance Act (FISA) Court.
The Presidents critics have variously described the NSA program as widespread, domestic, and illegal. It is none of these things. Rather, the program
is limited, targeted on the international communications of individuals engaged in
an armed conflict with the United States, and is fully consistent with FISA. First,
in assessing the Presidents actions here, it is important to highlight how narrow
is the actual dispute over the NSAs TSP. Few of the Presidents critics claim that
he should not have ordered the NSA to monitor al Qaedas communications on a
global basis. Indeed, in the wake of the September 11, 2001 attacks, he would surely
have been remiss in his duties had he not ordered this surveillance. Moreover, few
of the Presidents critics have had the temerity to claim that he was required to obtain the FISA Courts permission to intercept and monitor al Qaeda communications
outside of the United States.
It is, in fact, only with respect to communications actually intercepted by the NSA
within the United States, as opposed to by satellites or listening posts located
abroad, or where the target of the intercept is an American citizen or resident
alien, that FISA is relevant at all to this national discussion. Despite the rhetoric,
FISA is not a comprehensive statute that requires the President to obtain a warrant to collect foreign intelligence. It is a narrow law that requires an order be
obtained for electronic surveillance in only four circumstances:
(1) Where a United States person in the United States is the target of, rather
than incidental to, the surveillance;
(2) Where the acquisition of the intelligence will be accomplished by devices located within the United States;
(3) Where the sender and all recipients of the relevant communication are
present in the United States; or
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(4) Where surveillance devices are used within the United States to collect communications other than wire or radio communications.
That being the case, based upon how the President, Attorney General, and General Hayden (former head of NSA), have described the NSA program, it is not at
all clear that any of the intercepts would properly fall within FISA in the first instance. In that regard, the NSA program appears to have been:
(1) targeted at al Qaeda operatives and their associatesin other words, communications are intercepted and monitored based on an al Qaeda association; and
(2) directed only at international communications with an al Qaeda operative
or associate on one end: As General Hayden made clear, one end of any
call targeted under this program is always outside the United States; and
(3) the purpose is not to collect evidence for a criminal prosecution, but to identify and thwart additional attacks against the United States.
Whatever this program is, it is not the pervasive dragnet of American domestic
communications about which so many of the Administrations critics have fantasized. Moreover, unless some of these communications are intercepted in the United
States, or the targeted al Qaeda operative happens also to be a United States person, FISA does not apply by its own terms.
The Administration has properly refused to publicly articulate the full metes and
bounds of the NSA program. For the sake of argument, however, let us assume that
some of the communications intercepted as part of this program are intercepted
within the United States, or that some of the targeted al Qaeda operatives are
United States persons within FISAs meaning. (This would include American citizens, permanent resident aliens, and U.S. corporations. 50 U.S.C. 1801(i)). The
program remains lawful and constitutional.
Indeed, the TSP clearly falls within the Presidents inherent constitutional authority, under Article II, as Chief Executive and Commander-in-Chief. This authority has been consistently recognized and respected, with the exception of one District Court decision now on appeal, by the United States courts. Indeed, the United
States Foreign Intelligence Surveillance Court of Review, established under FISA,
has itself acknowledged this authority. In In re Sealed Case No. 02001, where the
Court of Review reversed an effort by the FISA trial court to reimpose a kind of
wall between intelligence gathering and law enforcement, despite Congress
amendment of FISA as part of the Patriot Act, the Court also noted that: all the
other courts to have decided the issue, held that the President did have inherent
authority to conduct warrantless searches to obtain foreign intelligence information. 310 F.3d 717, 742 (FISA Ct. of Review 2002). It went on to state that [w]e
take for granted that the President does have that authority [to conduct warrantless
surveillance for foreign intelligence purposes] and, assuming that is so, FISA could
not encroach on the Presidents constitutional power. Id.
Significantly, in this connection, the FISA Court of Review was discussing another
important precedent, United States v. Truong, 629 F.2d 908 (4th Cir. 1980). This
is, in fact, the leading case recognizing the Presidents inherent power, as a function
of his role in formulating and implementing U.S. foreign policy, to order warrantless
electronic surveillance for foreign intelligence purposes. This power exists even
when the surveillance is in the United States and directed at an American citizen.
In Truong, the Carter Administration authorized warrantless wire-tapping of a resident alien and an American citizen, in the United States, in a successful effort to
identify the source of classified documents being illegally transmitted to foreign government representatives.
The defendants challenged their espionage convictions by arguing that this surveillance violated the Fourth Amendment guarantee against unreasonable searches
and seizures and the attendant warrant requirement. In response, the Carter Administration stated without equivocation that: In the area of foreign intelligence,
the government contends, the President may authorize surveillance without seeking
a judicial warrant because of his constitutional prerogatives in the area of foreign
affairs. Truong, 629 F.2d at 912. The United States Court of Appeals for the Fourth
Circuit agreed, and ruled that the warrantless surveillance ordered in this case had
been lawful. The court reasoned as follows:
For several reasons, the needs of the executive are so compelling in the
area of foreign intelligence, unlike the area of domestic security, that a uniform warrant requirement would, following [United States v. United Stated
District Court (Keith), 407 U.S. 297 (1972)], unduly frustrate the President in carrying out his foreign affairs responsibilities. First of all, attempts
to counter foreign threats to the national security require the utmost
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stealth, speed, and secrecy. A warrant requirement would add a procedural
hurdle that would reduce the flexibility of executive foreign intelligence initiatives, in some cases delay executive response to foreign intelligence
threats, and increase the chance of leaks regarding sensitive executive operations. [Citations omitted.]
More importantly, the executive possesses unparalleled expertise to make
the decision whether to conduct foreign intelligence surveillance, whereas
the judiciary is largely inexperienced in making the delicate and complex
decisions that lie behind foreign intelligence surveillance. . . .
Perhaps most crucially, the executive branch not only has superior expertise in the area of foreign intelligence, it is also constitutionally designated
as the preeminent authority in foreign affairs. [Citations omitted]. The
President and his deputies are charged by the Constitution with the conduct of the foreign policy of the United States in times of war and peace.
[Citations omitted.] Just as the separation of powers in Keith forced the executive to recognize a judicial role when the President conducts domestic
surveillance, [citations omitted] so the separation of powers requires us to
acknowledge the principal responsibility of the President for foreign affairs
and concomitantly for foreign intelligence surveillance.
Truong, 629 F.2d at 91314.
FISA was, of course, enacted shortly before the decision in Truong was announced, and the court did not, therefore, address the laws impact as part of its
holding. Neither has the Supreme Court considered whether, or to what extent,
FISA may have trenched upon the Presidents constitutional authority. This, however, is the question we are left with. President Bush did not invent this authority,
as some critics have implied, nor has he asserted more power than his predecessors
have claimed. As explained by the Justice Department in its January 19, 2006,
Memorandum (pp. 78, 1617), various forms of warrantless electronic surveillance
have been utilized since the Civil War. Presidents Franklin D. Roosevelt and Harry
S. Truman authorized, without judicial participation, the use of wiretaps as a means
of obtaining intelligence against the United States enemies, as did President Woodrow Wilson. See Exec. Order No. 2604 (Apr. 28, 1917). Both the Carter and Clinton
Administrations also affirmed the Presidents inherent constitutional authority to
conduct warrantless surveillance and/or searches for foreign intelligence purposes.
See January 19 DOJ Memorandum, p. 8.
As to the question whether Congress exceeded its authority in enacting FISA, the
answer depends very much on how that law is interpreted and applied. The interplay between the Executive and Congress is, in the best of circumstances, complex
and shifting. As a general proposition, Congress is entitled to legislate on any number of matters that may impact how the President discharges his constitutional role.
The test is whether Congress has impede[d] the Presidents ability to perform his
constitutional duty. Morrison v. Olson, 487 U.S. 654, 691, 69596 (1988) (appointment of independent counsel by special judicial body, and imposition of a removal
for cause requirement, did not impermissibly impede the Presidents authority,
where there were a number of other means by which the officials activities could
be supervised). If FISA were construed to prohibit the President, without judicial
approval, from monitoring enemy communications into and out of the United States
during wartime, then the statute could fairly be said to impede the Presidents exercise of his constitutional authority and would, to that extent, be invalid. It need not,
and should not, be so interpreted.
In this connection, it should also be noted that the Executive Branch secures one
very valuable advantage when it does obtain an order pursuant to FISAs provisionsthe evidence collected pursuant to such an order will almost certainly be admissible in a later criminal proceeding. See, e.g., United States v. Squillacote, 221
F.3d 542, 55354 (4th Cir. 2000), cert. denied, 532 U.S. 971 (2001). At the same
time, hard choices are often necessary during an armed conflict. If the President determines that the process established in FISA is insufficiently protective of national
security, as he has done with respect to the NSA program, and he is prepared to
risk having intelligence information secured without a FISA order later ruled inadmissible in court (as the Truong Court suggested was a possibility in certain circumstances, 629 F.2d at 915), then he is fully entitled to rely on his constitutional
authority alone. To the extent that Congress sought to forbid such reliance, and to
foreclose the Presidents right to order the interception, without a FISA order, of
enemy communications in wartime, it exceeded its constitutional authority.
In any case, assessment of the TSPs legality need not go so far. As the Department of Justice correctly pointed out in its memorandum of January 19, 2006,
Legal Authorities Supporting the Activities of the National Security Agency De-
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scribed by the President, FISA itself provides that electronic surveillance otherwise
subject to the statute can lawfully be accomplished without a FISA order if it is authorized by statute. 50 U.S.C. 1809(a)(1). The surveillance of al Qaeda, in the
United States or anywhere else in the world, has been authorized by statutein the
form of the September 18, 2001 Authorization for the Use of Military Force. 50
U.S.C. 1541 note.
That statute specifically authorized the President to use all necessary and appropriate force against those nations, organizations, or persons he determines planned,
authorized, committed, or aided the terrorist attacks that occurred on September 11,
2001, or harbored such organizations or persons, in order to prevent any future acts
of international terrorism against the United States by such nations, organizations
or persons. (Emphasis added).
This is a broad grant. There are, of course, many who argue that the September
18 Authorization was not broad enough to permit the NSA program because it did
not specifically reference electronic surveillance or FISA. Significantly, however, an
identical argument was advanced with respect to the capture and detention of certain al Qaeda and Taliban operatives under the Non-detention Act, 18 U.S.C.
4001(a). That law forbids the detention of American citizens save as authorized by
act of Congress and specifically provides that: [n]o citizen shall be imprisoned or
otherwise detained by the United States except pursuant to an Act of Congress. It
should go without saying that the Non-detention Act, and the principle it seeks to
implement, are as important to our system of ordered liberty as is FISA.
Nevertheless, in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), the Supreme Court correctly interpreted the September 18, 2001 Authorization for the Use of Military
Force to authorize the President to detain American citizens, consistent with 18
U.S.C. 4001(a), because that authorization must be interpreted to permit all of the
normal incidents of war. As explained by Justice OConnor in her plurality opinion
(which commanded a majority of 5 votes on this point), the detention of captured
enemies is so fundamental and accepted an incident to war as to be an exercise
of the necessary and appropriate force Congress has authorized the President to
use. 542 U.S. at 518.
Surely, the monitoring of enemy communications, whether into or out of the
United States, is also such a fundamental and accepted incident to war. That is
how wars are fought; that is how wars have always been fought; and it is especially
how this war must be fought. Only through the collection and exploitation of intelligence can the purpose of Congress September 18, 2001, Authorizationto prevent
any future acts of international terrorism against the United Statesbe achieved.
For his part, the President has not claimed the right to surveil the American population in general, but only enemy agents as they communicate into and out of the
United States.
This type of intelligence gathering has been a critical part of warfare since the
first man with a spear crept to the edge of his enemys camp listening for voices
in the night. As George Washington explained to an American agent during the War
for Independence, the necessity of procuring good intelligence, is apparent and need
not be further urged. All that remains for me to add is, that you keep the whole
matter as secret as possible. For upon secrecy, success depends in most Enterprizes
of the kind, and for want of it, they are generally defeated. CIA v. Sims, 471 U.S.
172 n.16 (1984) (quoting letter from George Washington to Colonel Elias Dayton,
July 26, 1777). In ordering this surveillance the President acted fully in accordance
with an express congressional authorization, at the very zenith of his powers as outlined in Justice Jacksons concurrence in Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579 (1952).
For those who claim that the September 18, 2001, Authorization cannot be read
to have amended FISA; it did not. FISA remains intact, just as the Non-detention
Act remains intact. The September 18, 2001 Authorization works with these laws,
not against them. Of course, had Congress formally declared war, under FISA section 111 (50 U.S.C. 1811), the entire statute would have been suspended for 15
days. During that period, the President would have been free to target anyone and
everyones electronic communications, not merely those of known al Qaeda
operatives. This program is much more limited.
Obviously, there are those who disagree with this analysis. There are few questions of either constitutional or statutory interpretation that cannot be debated, and
debated in good faith. Arguing about what the Constitutions Framers or Congress
meant on any particular occasion is how many of us in the legal profession earn
our livings. However, claims that the President or his Administration have acted
unlawfully, or beyond his constitutional authority, are groundless.
This is especially the case in view of the fact that there has been no suggestion
that the President has misused or abused any of the information obtained from the
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NSA program. By all accounts, it has been utilized in carrying out Congress instructions in the September 18, 2001, Authorizationto prevent any future acts of
international terrorism against the United States. Individual Senators, and members of this Committee of both parties, may well honestly believe that this law did
not authorize the President to use any incident of force that is otherwise prohibited
by statute, and their opinions must be respected. However, the Supreme Court disagreed only two years ago in the Hamdi case. That case supports the Presidents
position with respect to the NSA program.
For a more complete statement of my views, please see Andrew C. McCarthy,
David B. Rivkin, Jr. & Lee A. Casey, NSAs Warrantless Surveillance Program:
Legal, Constitutional and Necessary, which is available at: http://www.fed-soc.org/
doclib/20070522lterroristsurveillance.pdf
Thank you, and I would be pleased to answer any questions the Committee may
have.

Mr. Jaffer?
TESTIMONY OF JAMEEL JAFFER, DIRECTOR, NATIONAL
SECURITY PROJECT, AMERICAN CIVIL LIBERTIES UNION
Mr. JAFFER. Thank you, Chairman Nadler.

Chairman Nadler, Ranking Member Franks, thank you for inviting me to testify today about surveillance conducted by the NSA,
and authorized by the President in violation of statutory and constitutional law.
The ACLU is grateful for your efforts to determine the scope of
the NSAs unlawful activities and for your efforts to ensure that
statutory and constitutional limits on the Presidents power are
being honored.
I testify today as director of the ACLUs National Security
Project and as counsel to the plaintiffs in ACLU v. NSA. In early
2006, soon after the NSAs warrantless surveillance activities became public, the ACLU sued on behalf of a coalition of journalists,
scholars, defense attorneys and national nonprofit organizations to
challenge the NSAs warrantless surveillance activities inside the
Nations borders.
The lawsuit alleges that the NSAs activities violate FISA, which
requires that intelligence surveillance inside the U.S. be conducted
with judicial oversight. The suit also alleges that the NSAs activities violate the constitutional principle of separation of powers, as
well as the First and fourth amendments. In August of 2006, the
U.S. District Court for the Eastern District of Michigan agreed
with us on all counts, but the Government has appealed this ruling
to the Sixth Circuit. The appeal has now been argued and we are
awaiting the courts decision.
Because my time before the Subcommittee is limited, I would
like to summarize my main concerns about the NSAs activities
very briefly. I would also like to suggest next steps for this Subcommittee and the Congress.
The first thing I would like to stress is that the NSAs
warrantless surveillance activities are illegal. With narrow exceptions, FISA prohibits the executive branch from intercepting the
contents of emails and telephone calls without first obtaining judicial authorization for the surveillance. This prohibition applies
whenever the communications are acquired inside the U.S. It also
applies whenever the person targeted by the surveillance is a U.S.
citizen or resident. To intentionally violate FISA is a crime.
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In its legal papers and in public statements, the Administration
has contended that Congress implicitly amended FISA and authorized the NSAs warrantless surveillance activities when it passed
the AUMF in 2001. This is a specious argument. The AUMF makes
no mention of domestic surveillance and Senator Daschle has said
that in drafting the AUMF, Congress rejected proposals that would
have expanded the Presidents authority to act within the U.S.
The Administration has also argued that the President possesses
the authority as commander-in-chief to disregard FISA and the
fourth amendments warrant requirements, but this argumentthe
argument that the President is above the lawis one that the Supreme Court has rejected repeatedly and forcefully. Under the Constitution, the President and Congress share authority in the fields
of war and foreign affairs. While the President surely has authority
to act in these fields, Congress has the power to regulate the Presidents authority, and this is precisely what Congress did when it
enacted FISA.
In violating FISA, the President broke the law. To the extent his
actions were intentional, and they appear to have been, his actions
were criminal. With this in mind, it is absolutely imperative that
this Congress demand transparency about the Administrations
surveillance activities, both past and ongoing. The ACLU is concerned that though the NSA surveillance activities were disclosed
more than a year ago, Congress has not issued subpoenas demanding that the Administration explain the nature and scope of its activities.
It has not issued subpoenas demanding that the Administration
disclose the legal opinions on which it has relied. It has not issued
subpoenas to the telecommuncations corporations that facilitated
the Administrations unlawful activities. And it has not issued subpoenas to determine how the fruits of unlawful surveillance have
been used. Congress needs this information and it should demand
that this information be disclosed immediately.
Congress should also demand information about the Administrations ongoing surveillance activities. The President has expressly
claimed the authority to disregard FISA in the future. For all we
know, he may be disregarding it now. Congress should find out.
Congress should also demand transparency about any surveillance activities that are being conducted on the authority of orders
issued by a FISA judge in January of this year. The Administrations public statements about those orders suggest that the orders
may be programmatic and categorical, rather than individualized
as FISA and the fourth amendment require.
Congress obligation, of course, is not simply to examine the Administrations unlawful activities, but to ensure that those activities do not continue. To this end, Congress should use this appropriations and authorization cycle to prohibit the use of funds to engage in electronic surveillance that does not comply with FISA or
that is conducted on the basis of programmatic orders, rather than
individualized and particularized warrants.
Congress has a critical role to play in ensuring that the rights
of innocent U.S. citizens and residents are protected now and in
the future.
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Thank you again for holding this hearing. I look forward to your
questions.
[The prepared statement of Mr. Jaffer follows:]
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68
And Mr. Fisher?
TESTIMONY OF LOUIS FISHER, AMERICAN LAW DIVISION,
LIBRARY OF CONGRESS
Mr. FISHER. Thank you, Mr. Chairman. I was encouraged at the

start of Chairman Conyers saying that this might be the first step
in exploring issues. There are so many questions that we know
very little about, and I hope to see a succession of hearings.
My statement starts with a little bit of the history back in the
1960s and 1970s where the Administration was conducting domestic surveillance, and they were conducting it under the same
grounds that we talk about today, under the inherent power of the
President to take certain actions to protect the American people.
That theory of inherent power was litigated in the Keith case,
and both at the District Court level and the Sixth Court level and
the Supreme Court level, the court said you dont have that power;
you are talking about a power that King George III had, and that
is why we had a Declaration of Independence, and that is why we
had a war of independence, and that is why we have the fourth
amendment. All of this led to the FISA statute in 1978, including
a very important judicial check.
The Administration defends the Terrorist Surveillance Program
on statutory grounds and constitutional grounds. The statutory
ground, namely the Authorization of Use of Military Force, I dont
think was ever persuasive. If Congress ever wanted to change FISA
or amend it, it does it the way it normally does. It has changed
FISA many times. You bring it up. You know what you are talking
about. You dont change a law by implication, which is what the
argument would be with the AUMF.
As far as the constitutional argument, I would just take one sentence from the January 2006 OLC report, where it said that the
policies of the NSA program, are supported by the Presidents
well-recognized inherent constitutional authority as commander-inchief and the sole organ for the nation in foreign affairs.
Well-recognized? Maybe it is well-recognized among certain attorneys in the Administration, but it is not well-recognized in the
courts. It is not well-recognized in Congress. It is not well-recognized in the academic community.
Inherent? We are all familiar with express powers and implied
powers. Those are drawn from the Constitution. The danger with
inherent powers is that you dont know where they are being
drawn from. Inherent power is an invitation to act outside the law.
The claim of inherent powers for the President weakens Congress,
weakens the rule of law, weakens democratic government, weakens
the system of checks and balances.
Commander-in-chief? You cant take three words from article II
and pretend that that is an argument. It is just three words, and
you have to understand that commander-in-chief in the context of
article I, what that gives to Congress, and other provisions in the
Constitution, including the first and fourth amendments.
Sole organ? I hope whenever you see that word sole organ in
legal analysis you will be suspect about the credibility and honesty
of the analysis, because it comes from a speech that John Marshall
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gave when he was a Member of the House in 1800, and nothing
in John Marshalls statement ever, ever implied anything to do
with plenary, exclusive, independent or extra-constitutional presidential powers. It is a misuse of that statement and it is a misuse
of where it was later distorted in the 1936 Curtiss-Wright decision.
I talk about briefings and consultations. They are very constructive if you are getting briefed about a program that is legal. If you
are getting briefed about a program that is illegal, you are just getting briefed about an illegal program. The briefings do not help
that.
The gang of eight I think was the wrong procedure. The gang
of eight is for covert actions. The terrorist surveillance program is
not a covert action. What happens when Members of Congress are
briefed and you tell the Member that we are briefing you, but you
cannot talk to anyone else? You cannot talk with staff who have
clearances, et cetera. The executive branch doesnt control Congress. You control yourself. You have to protect your own powers
and prerogatives and institutions.
I think the same principle would apply to the FISA Court. I
think the fact that you would brief two chief judges in a row, I
think was not a good procedure. I think the court knows that Congress by statute provided for a judicial check, and you cannot brief
one judge. I think all 11 members of the court should have been
briefed, and then they decide what to do. And lastly on briefings,
I think the briefings should apply to the Judiciary Committees.
You have a special Committee jurisdiction to protect the integrity
of FISA.
And last, I just ended on what does legal means today because
if you hear the Administration say that this is legal, this is authorized, this has been reauthorized, they are not talking about law
created by Congress. They are talking about law created by the executive branch. Up to now, we have said that law is made by parliamentary deliberations and that the President is under the law,
not above the law. So we have a different system and I think one
that deserves that very close scrutiny by Congress.
Thank you.
[The prepared statement of Mr. Fisher follows:]
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I recognize myself for 5 minutes.
Mr. Bradbury?
Mr. BRADBURY. Yes, sir.
Mr. NADLER. [off-mike] 15-day opening window to act during
times of war. Was the TSP or any other surveillance program outside the scope of FISA in place prior to the authorization for the
use of military force?
Mr. BRADBURY. No.
Mr. NADLER. Okay.
Mr. BRADBURY. It began in October of 2001.
Mr. NADLER. And when was the legal opinion for this authority
issued?
Mr. BRADBURY. The President was advised that it was lawful before the program began.
Mr. NADLER. After the authorization, at what point after the expiration of the 15 days did the President revert to his authority
under FISA?
Mr. BRADBURY. I am not sure I understand the question. The 15
days, Mr. Nadler, does not apply. It applies only when there is a
declaration of war. Section 111 of FISA
Mr. NADLER. So you are not explaining the 15-day
Mr. BRADBURY. That is correct. I would say, and I will try to be
brief, that the 15-day provision in section 111 of FISA in our view
does not say you only get 15 days
Mr. NADLER. You dont have to get a warrant for 15 days.
Mr. BRADBURY. But it does not purport to mean that Congress
made a judgment that you only need 15 days of authority during
time of war to commence surveillance.
Mr. NADLER. No, the expectation when that was passed was that
you have 15 days to go to Congress if you thought you needed more
authority to act without warrants.
Mr. BRADBURY. And in our view, the authorization for the use of
military force was an act of Congress that did give that authority.
Mr. NADLER. Which gives the President limitless authority?
Mr. BRADBURY. Not limitless.
Mr. NADLER. But authority to act without warrants?
Mr. BRADBURY. All necessary and appropriate authority to repel
the threat, and to prevent attack.
Mr. NADLER. And that means that as long as we are fighting the
war on terror, the President can have surveillance of Americans he
believes to be in communication with al-Qaida in the United States
without getting warrants from a FISA Court?
Mr. BRADBURY. It does not mean that.
Mr. NADLER. What does it mean?
Mr. BRADBURY. The authorization is still in effect and does still
give authority to the President, but anything the President does
has to be consistent with the Constitution; has to be consistent
with
Mr. NADLER. But under your interpretation of the Constitutions
inherent article II powers, he can wiretap people without a warrant
from the FISA Court.
Mr. BRADBURY. It all depends on the circumstances at a given
time. The fourth amendment has very real application here. Any
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surveillance has to be reasonable under the fourth amendment.
That takes into account all the conditions and circumstances at the
time, and the nature of the surveillance that you are talking about.
For example, Mr. Chairman, if the President wanted to reauthorize the Terrorist Surveillance Program today, my view is it would
require a new legal analysis, a new judgment based on all the current circumstances.
Mr. NADLER. Okay. And he has done that 45 times?
Mr. BRADBURY. I dont know about the exact number. It was
every 45 days, approximately.
Mr. NADLER. I am sorryevery 45 days he has done it.
When was the first discussion after 9/11 with members of the department about undertaking electronic surveillance outside FISA?
Mr. BRADBURY. Again, our view is that the surveillance of this
program is consistent with FISA, Mr. Chairman.
Mr. NADLER. No, I think what you have said is that your view
is that under the Presidents inherent power and under AUMF, it
supersedes FISA, not that it is consistent with FISA.
Mr. BRADBURY. I think there have been some rather extravagant
claims about what our argument is. Our argument is primarily
that you need to read the authorization for the use of force consistent with FISA to harmonize them. There is a provision in FISA
that says
Mr. NADLER. Wait a minute. That doesnt make any sense. FISA
says you can wiretap people in the United States with a warrant.
I have always understood you to say that under the AUMF and
under the Presidents inherent power, you dont need to obey that
provision of FISA. Correct?
Mr. BRADBURY. I am sorry. FISA doesnt say with a warrant.
FISA orders are not necessarily warrants.
Mr. NADLER. Excuse me. You need a FISA order. Never mind the
nomenclature, you need a FISA order. Your claim is that under the
AUMF and under inherent power of the President, you dont need
a FISA order.
Mr. BRADBURY. FISA says except as otherwise authorized by
statute. AUMF is a statute.
Mr. NADLER. Correct. And AUMF being a statute, your interpretation is that AUMF supersedes FISA.
Mr. BRADBURY. No, it doesnt supersede FISA. FISA says except
as otherwise authorized by statute, so it is consistent with FISA.
Mr. NADLER. All right. We are playing word games.
Mr. BRADBURY. I think it is very fundamental.
Mr. NADLER. We are playing word games.
Your claim is that under the AUMF, AUMF authorizes the surveillance without a FISA order and that that is consistent with
FISA.
Mr. BRADBURY. Correct.
Mr. NADLER. Okay. I would say that that means it supersedes
FISA. It doesnt matter.
In an October 2001 OLC opinion regarding presidential power,
referred to in the August 2002 so-called torture memo, was that
October 2001 opinion part of the consideration by the department
of the legality of electronic surveillance?
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Mr. BRADBURY. I am not sure of the exact opinion that you are
referring to. I would say there are opinions from the office regarding this program.
Mr. NADLER. The Congress has repeatedly asked for copies of the
OLC opinion. Will you furnish copies of those opinions to the Committee?
Mr. BRADBURY. No, Mr. Chairman.
Mr. NADLER. Why not?
Mr. BRADBURY. Because those reflect the internal confidential
legal advice of the executive branch. Those are deliberative
Mr. NADLER. What privilege are you asserting?
Mr. BRADBURY. I am not asserting a privilege.
Mr. NADLER. Then how can you not give it to the Committee
upon request? Either you assert a privilege or you give it to us, one
or the other.
Mr. BRADBURY. No. Mr. Chairman, we respond to all requests
from the Committee. If the Committee makes a request for the document, we
Mr. NADLER. We have made such a request.
Mr. BRADBURY. And I believe we responded and explained
Mr. NADLER. By saying you wont give it to us.
Mr. BRADBURY [continuing]. That the confidentiality interests of
the department
But we have done something that is rather extraordinary, and
that is we prepared in January of 2006 a very extensive white
paper for the purpose of explaining to the Congress and to
Mr. NADLER. That is very nice, but it doesnt give us what we
requested, which is those legal opinions. Unless you are asserting
a privilege, there is no alternative. What privilege are you asserting?
Mr. BRADBURY. We are citing the confidentiality interests that
the executive branch has in internal confidential deliberative advice of the executive branch.
Mr. NADLER. So that is executive privilege you are asserting.
Mr. BRADBURY. I dont assert executive privilege, Mr. Chairman.
The President asserts executive privilege.
Mr. NADLER. So you just stated that the President exerted executive privilege, then.
Mr. BRADBURY. I stated that there are important confidentiality
interests with respect to internal advice, and those
Mr. NADLER. Isnt that the issue of executive privilege?
Mr. BRADBURY. No, it isnt. Those are the types of interests that
would support if necessary an assertion of executive privilege by
the President. That is something we like to try to avoid, and we
have not done that here.
Mr. NADLER. So you are saying you wont give to Congress the
requested documents because they deserve executive privilege
which you havent yet asserted.
Mr. BRADBURY. They do partake of the confidentiality interests
of the executive branch. That is an interest that could support an
assertion of executive privilege.
Mr. NADLER. All right. Let me stop playing this game. Has any
part of the October 2001 OLC opinion been withdrawn, modified or
clarified in any way since then? If so, what are the changes?
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Mr. BRADBURY. I am not going to discuss the internal legal deliberations of the department.
Mr. NADLER. Did the Department of Justice Office of Legal Counsel issue an opinion or more than one opinion concerning electronic
surveillance?
Mr. BRADBURY. The Department of Justice Office of Legal Counsel has reviewed the legality of the program and has reviewed it
more than once.
Mr. NADLER. Are any part of such opinions currently classified?
Mr. BRADBURY. All such opinions are currently classified.
Mr. NADLER. Okay. I see my time has expired. Thank you.
Mr. BRADBURY. Thank you.
Mr. NADLER. We have 6 minutes. The Ranking Member is correct. I will violate what I said before. We will recess for 6 minutes
to go and vote, and we will resume.
Please, there are two votes. I ask the Members as soon as you
can catch the second vote, please return here. Please return here
and we will resume in about 12 minutes.
Thank you.
[Recess.]
Mr. NADLER. The Committee will come back to order.
I would normally ask the Ranking Member to ask questions, but
we will come back to him since he is not here yet.
In accordance with the policy, I will now recognize the distinguished Chairman of the full Committee, the gentleman from
Michigan, Mr. Conyers, for 5 minutes.
Mr. CONYERS. Thank you, Mr. Chairman.
I wanted to thank Mr. Fein, Mr. Jaffer and Dr. Fisher for their
very excellent explanations of the statutory and constitutional
basis of why we are here today.
And so, do any of you have any reason to believe that the Administration can deny the Committee access to executive branch opinions about the legality of the TSP program or its current revisions?
Mr. FEIN. I think not, Mr. Conyers. Let me elaborate.
Mr. CONYERS. Please.
Mr. FEIN. There is certainly an exceptionally compelling interest
in the Congress in determining whether or not perhaps a criminal
violation of FISA has occurred since 9/11. The statute makes criminal only those things that are done intentionally. It is a vital interest for this Committee, therefore, to know what legal advice was
being given to those in authority to order the National Security
Agency to circumvent FISA.
Moreover, I think the history of executive privilege shows that it
would hardly be a crippling of the executive branch to require the
disclosure of this kind of communication to the Congress. It has
been done regularly with regard to Supreme Court nominees or
even lower court nominees, where it was thought important in examining the philosophy of a nominee, what kind of advice was
given the solicitor general or otherwise.
I can recall in my own experience serving as counsel on the IranContra Committee that President Reagan had given authority for
the national security advisers to give blow-by-blow accounts as to
the advice concerning the sale of arms to Iran and the diversion of
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funds to the so-called Contras. That testimony was forthcoming.
It did nothing to cripple the executive branch.
The main argument that is advanced, I think, by Mr. Bradbury
or tacitly, is, well, if this is disclosed in this compelling interest
where you need to determine whether a crime has been committed,
no one will be candid in their legal opinions. History, I think, discredits that.
The last thing I would say is at least the prevailing Supreme
Court opinion on this issue indirectly, U.S. v. Nixon, which says
even presidential communications can be forced to be disclosed in
the context of a criminal investigation conducted by a grand jury,
which strongly suggests if the Congress is similarly investigating
that seriousness of wrongdoing in the executive branch, then even
presidential communications would be forth coming, a fortiori, legal
advice within the Justice Department.
Mr. CONYERS. Yes. Very good.
Dr. Fisher, adding to the same question, the notion that the
Chairman, myself, and the Ranking Member, Mr. Lamar Smith, we
could be briefed, but everybody else on the Committee shouldnt be
briefed. I dont get it. We are all cleared for top secret. What is the
difference?
Mr. FISHER. I dont understand the Administrations position. I
think you operate as a Committee. You have to legislate as a Committee. You dont do it by Chair and Ranking, so everyone on the
Committee is cleared and they have a need to know what it is in
case they have to legislate on it.
Mr. CONYERS. Exactly right.
Mr. Jaffer, what would you add to this discussion?
Mr. JAFFER. First, I think all of that is exactly right, Mr. Conyers. The only thing that I want to stress is to the extent that Government is relying on the AUMF, the authorization for use of military force, as authority for its actions, I think that that reliance is
completely misplaced. First, as I said earlier, there is no textual
basis for the argument that the AUMF was meant to authorize domestic surveillance.
Second, many Members of Congress have come out on both sides
of the aisle to say that they never meant to authorize domestic surveillance when they authorized the AUMF. And then finally, the
Administration has relied on Hamdi, the Supreme Courts decision
in Hamdi, but Hamdi involved the detention of enemy combatants
on the battlefield. That is a completely different situation than
what we are dealing with here, which is a program of surveillance
inside the United States directed at U.S. citizens and U.S. residents.
Mr. CONYERS. Exactly.
Dr. Fisher, finally?
Mr. FISHER. Yes, just to add to what Bruce Fein said about the
deliberative process, Mr. Bradbury is correct that there is much
going on inside the executive branch that is part of the deliberative
process, but you are not asking about the deliberative process. You
are asking for the final legal judgment to justify a program. As we
all know, OLC regularly publishes its opinions when there is a
question. After the New York Times story about the legality of it,
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you know, in January 2006, OLC quickly got out their 42-page
white paper.
So I dont understand any reason why a legal analysis, a final
legal analysis, not the interim one, the final one shouldnt be made
available to Congress and the public.
Mr. CONYERS. Chairman Nadler and I are still waiting for a response of any kind from the Attorney General Alberto Gonzales
about this subject matter since May 17th. In our generosity of spirit, we are going to give him 2 more weeks, and then, as somebody
said, it is about time process kicks in somewhere around here.
I now recognize for 5 minutes the distinguished Ranking Member
of the Subcommittee, Mr. Franks.
Mr. FRANKS. Thank you, Mr. Chairman.
Mr. Chairman, I might make just a couple of observations here
before I ask questions.
I think it was Mr. Fein that suggested that there were many
things unknown to Congress and certainly this program was known
but to a few Members of Congress. In my judgment, the correct
Members of Congress knew about it. This is the type of program
that because of the national security implications is important to
keep that from the general public. But for the New York Times, we
wouldnt know about this. I would only suggest to you that but for
the New York Times, perhaps terrorists wouldnt know about it either.
I also think Mr. Fein indicated that the NSA surveillance program would not reach someone like Osama bin Laden, that it
would not be relevant in that case in a cave somewhere in Tora
Bora or wherever it might be. But would that be unless he had a
cell phone or a working satellite phone? Certainly, something like
this could have profound implications in that regard. This is what
the whole idea is here is to intercept phone calls and conversations
just like that from those who are trying to maintain their secrecy.
I just wanted to point those two things out. Sometimes it seems important.
Mr. Bradbury, could I ask you, sir, ever since the Supreme Court
decided the Keith case, both before and after the enactment of
FISA all Federal appellate courts that have squarely confronted
the issue have found that the President is constitutionally empowered under article II to conduct warrantless electronic surveillance
when he deems it necessary to protect the Nation from external
threats.
The rationale was articulated by the Fifth Circuit Court in
United States v. Brown, decided a year after the Supreme Court
case of the Keith case. And this is their quote: Because of the
Presidents constitutional duty to act for the United States in the
field of foreign relations and his inherent power to protect national
security in the context of foreign affairs, we affirm that the President may constitutionally authorize warrantless wiretaps for the
purpose of gathering foreign intelligence. Restrictions upon the
Presidents power which are appropriate in cases of domestic security become artificial in the context of the international sphere.
This principle is buttressed by a thread that runs throughout the
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Federalist papers that the President must take care to safeguard
the nation from possible foreign encroachment, whether in its existence as a nation or in its intercourse with other nations.
To your knowledge, Mr. Bradbury, are there any higher judicial
precedents that directly hold otherwise?
Mr. BRADBURY. Not directly, no.
Mr. FRANKS. Can anyone on the panel suggest that there were
any court case or any higher judicial precedent that would hold
other than what I just read from the Supreme Court?
Mr. FEIN. Yes, I would.
Mr. FRANKS. Yes, sir?
Mr. FEIN. I would suggest that the separation of powers doctrine
announced by the United States Supreme Court in Youngstown
Sheet and Tube v. Sawyer made quite clear
Mr. FRANKS. Confronting this issue directly, Mr. Fein, not indirectly.
Mr. FEIN. They did not confront intelligence collection in that
particular direction, but certainly they announced a doctrine that
was equally applicable. They didnt say the doctrine of separation
of powers makes a difference depending upon whether you seize a
steel mill or whether you intercept foreign communications in violation of a Federal statute. The basis doctrine stays undisturbed.
Mr. FRANKS. Well, let me just for the fun of it, I am going to read
the courts language again so that we can be sure that indeed the
court did address foreign intelligence gathering, which is what the
subject of the case here is today.
We are not talking about steel mills, and I am not sure I have
time, but this is their language: Because of the Presidents constitutional duty to act for the United States in the field of foreign
relations and his inherent power to protect national security in the
context of foreign affairs, we affirm the President may constitutionally authorize warrantless wiretaps for the purpose of gathering foreign intelligence. I will stop there.
It seems very clear to me if there is no case that overturns that,
that the President is on strong footing. I am probably going to go
ahead and yield back here because I am about out of time, but
thank you all for coming.
I am going to ask unanimous consent to grant myself 30 seconds
to ask a question.
Number one, isnt it true that the Truong case that you quoted
dealt with developments prior to enactment of the FISA Act, number one?
And number two, isnt it true that the FISA Act deals not with
foreign intelligence, but with intelligence conducted in the United
States, and therefore what the Ranking Member was talking about
was not really on point, Mr. Fein?
Mr. FEIN. That is accurate.
Mr. FEIN. Moreover, the doctrine is very clear and accepted by
the United States Supreme Court that the Presidents powers inherent to gather foreign intelligence are reduced to the extent Congress makes a regulation. That is the clear teaching of Youngstown
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Sheet and Tube and Justice Jacksons concurring opinion which is
accepted as controlling law.
Mr. NADLER. I thank you. I just yielded myself 30 seconds with
unanimous consent. I am not getting recognized.
Mr. FRANKS. With unanimous consent, could I respond for 30 seconds?
Mr. NADLER. Well, yes, but before you do, I will ask Mr. Fisher,
who wanted to answer my question to answer my question, too,
and then I will yield to you.
Mr. FISHER. I just want to make the point that the Brown case
was 1973, and I think there is a big difference when Congress has
not acted.
Mr. NADLER. That predates FISA?
Mr. FISHER. That predates pre-FISA, there are certain cases that
recognize Congress hasnt spoken. Once Congress speaks in 1978,
I think the constitutional issue shifts.
Mr. BRADBURY. Mr. Chairman, may I make a point?
Mr. NADLER. Yes.
Mr. BRADBURY. It is absolutely correct that the courts of appeals
cases directly on-point dealt with conduct that occurred prior to the
enactment of FISA, including the Truong case. It was decided after
the enactment of FISA.
Mr. NADLER. A few days after.
Mr. BRADBURY. Yes, the Truong case in the Fourth Circuit. The
Truong case did focus on what the court viewed as the inappropriateness or the mismatch of having a judicial proceeding overseeing
the Presidents exercise of foreign intelligence authority. So it did
recognize a mismatch there.
I guess the other point I would make is that the Supreme Court
in the Keith case expresslyand I know Dr. Fisher referenced the
Keith caseincluded a footnote in that case in which it made clear
it was not addressing exercise of the Presidents authority with respect to foreign intelligence surveillance. FISA does deal with foreign intelligence.
Mr. NADLER. Within the United States.
Mr. BRADBURY. Well, it has a complicated definition of electronic
surveillance, It can encompass surveillance even when you are focusing on foreign persons overseas.
Mr. NADLER. Okay, we are abusing my 30 seconds now.
Mr. BRADBURY. Thank you.
Mr. NADLER. I will now grant the Ranking Member 1 minute,
with unanimous consent.
Mr. FRANKS. Mr. Chairman, I am not sure that I can improve on
Mr. Bradburys explanation, but I do think that a constitutional
ruling is not trumped by the statute in the first place, even if the
points were correct. Thank you.
I now yield to the gentleman from North Carolina for 5 minutes.
Mr. WATT. Thank you, Mr. Chairman.
In addition to the three witnesses that Mr. Conyers thanked, I
want to thank the other two also because I am appreciative to all
of you for being here to testify about something that there has been
a tug-of-war about for a long time, I suppose. And that is the whole
concept of who has power. I didnt deal with this concept very much
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before I came to Congress, but power is interesting, and most people dont concede power to anybody.
We do know that our Nation was founded on the concept of separation of powers to dilute and balance power. So I obviously and
unapologetically err on the side of balancing powers regardless of
who is asserting it. Otherwise, we have a dictatorial government in
some respects, which I take it may be what the President is asserting in this area, and in some areas he has gone in that direction,
too, but that is a subject of another day.
Mr. Bradbury, I note that you are the principal deputy assistant
attorney general. Did you hold that position under Mr. Ashcroft,
Attorney General Ashcroft also, or any position in the Justice Department?
Mr. BRADBURY. Yes, I did.
Mr. WATT. Okay.
Mr. Comey, former Deputy Attorney General Comey, testified before this Committee a couple of weeks ago in a different context,
about a meeting that took place in the hospital when Attorney
General Ashcroft was in the hospital, and testified that he, Deputy
Attorney General Comey, Attorney General Ashcroft, and FBI Director Robert Mueller concluded that the NSAs program did not
comply with the law.
Mr. Bradbury, would you affirm that or refute that that happened? Did Mr. Ashcroft take the position that some aspects of this
program did not comply with the law?
Mr. BRADBURY. Congressman, I am not in a position to confirm
the testimony that Mr. Comey gave.
Mr. WATT. I am not asking you to confirm the testimony. I am
asking you to confirm whether or not former Attorney General
Ashcroft expressed reservations, legal reservations about some aspects of the surveillance program.
Mr. BRADBURY. I think, Congressman, that the attorney general
has made it clear that
Mr. WATT. I would think a yes or no answer to that would suffice. I mean, I am happy to have you elaborate, but either he did
question some aspects of this or he didnt question them. That is
either yes or no, and then I am happy to have you explain. I am
not trying to cut you off, but I dont want you to rope-a-dope me
for 5 minutes explaining something that is not an answer, too.
Mr. BRADBURY. As I think we have tried to be clear and careful
about
Mr. WATT. Mr. Bradbury, did former Attorney General Ashcroft
express legal reservations about some aspects, whatever they
wereI am not even going to get into thatof this surveillance
program?
Mr. BRADBURY. Congressman, the attorney general has indicated
that, as you might expect with complicated national security matters, disagreements arose about aspects of intelligence activities,
the details of operations, and intelligence activities that are not
public, that remain highly classified.
Mr. WATT. I am not asking you to make anything public. I am
asking you, does that mean that the former attorney general had
some legal reservations about some aspect of the program, Mr.
Bradbury?
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Mr. BRADBURY. Well, all I will say is what the attorney general
has said, which is that disagreements arose. Disagreements were
addressed and resolved. However, those disagreements were not
about the particular activities that the President has publicly described, that we have termed the terrorist surveillance program.
Mr. WATT. Did former Attorney General Ashcroft refuse to sign
whatever this certification of legality that was presented to him at
the hospital, as far as you know, Mr. Bradbury?
Mr. BRADBURY. I am sorry. I am not at liberty to talk about internal disagreements or deliberations.
Mr. WATT. You are before this Committee. Are you asserting
some kind of privilege? What are you doing other than saying I
dont want to answer the question, Mr. Bradbury?
Mr. BRADBURY. I am referring to again, Congressman, to the interests that the department and the executive branch have in the
confidential internal advice and deliberations of the executive
branch.
Mr. WATT. Okay. Well, what effect, Mr. Fein, Mr. Fisher, would
a certification by the Department of Justice have on the legality of
an electronic surveillance program that violated the FISA statute?
Mr. NADLER. The gentlemans time has expired, but I will ask
the witnesses to answer the question briefly.
Mr. FEIN. The certification cannot make something that is illegal
legal, but I do think the question indicates the importance of a response by Mr. Bradbury, because insofar as you are examining in
good faith of the executive branch and operating outside FISA, you
need to know what advice was given within that branch.
It seems to me preposterous that this Committee, and you are
the representatives of the people, people who have a democracy
where openness is the rule, sunshine is the best disinfectant, are
kept unknowing as to exactly what was given advice in this highly
sensitive situation.
Mr. FISHER. Yes, I would say certification is just the last result.
All you know is that they certified it. You dont know why they certified it. So I think you have to get the legal reasoning down on
paper so that you know what was considered by the department in
authorizing this program.
Mr. WATT. Thank you, Mr. Chairman. I yield back.
And I thank all our witnesses.
submit to the Chair additional written questions for the witnesses,
which we will forward. And I ask the witnesses to respond as
promptly as you can, so that the answers may be part of the
record.
submit any additional materials for inclusion in the record.
With that, I thank the witnesses again.
I thank the Members.
And the hearing is adjourned.
Mr. BRADBURY. Thank you, Mr. Chairman.
[Whereupon, at 4:02 p.m., the Subcommittee was adjourned.]
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APPENDIX
MATERIAL SUBMITTED
FOR THE
HEARING RECORD
(95)
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RESPONSE FROM BRIAN A. BENCZKOWSKI, PRINCIPAL DEPUTY ASSISANT ATTORNEY

GENERAL, U.S. DEPARTMENT OF JUSTICE, IN RESPONSE TO POST-HEARING QUESTIONS SUBMITTED BY THE SUBCOMMITTEE
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U.S. DEPARTMENT OF JUSTICE DOCUMENT ENTITLED LEGAL AUTHORITIES SUPPORTING THE ACTIVITIES OF THE NATIONAL SECURITY AGENCY DESCRIBED BY THE
PRESIDENT
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LETTER FROM THE COMMITTEE ON THE JUDICIARY, DATED JANUARY 19, 2007, TO THE
HONORABLE ALBERTO R. GONZALES, ATTORNEY GENERAL OF THE UNITED STATES,
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LETTER FROM THE COMMITTEE ON THE JUDICIARY, DATED FEBRUARY 1, 2007, TO THE
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LETTER FROM RICHARD A. HERTLING, ACTING ASSISTANT ATTORNEY GENERAL, U.S.

DEPARTMENT OF JUSTICE, DATED FEBRUARY 9, 2007, TO THE HONORABLE JOHN
CONYERS, JR., CHAIRMAN, COMMITTEE ON THE JUDICIARY
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LETTER FROM THE COMMITTEE ON THE JUDICIARY, DATED MAY 17, 2007, TO THE
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Constitutional Limitations On Domestic Surveillance: Hearing

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CONSTITUTIONAL LIMITATIONS ON

SUBCOMMITTEE ON THE CONSTITUTION,

COMMITTEE ON THE JUDICIARY

Serial No. 11045

For sale by the Superintendent of Documents, U.S. Government Printing Office

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COMMITTEE ON THE JUDICIARY

CONSTITUTION, CIVIL RIGHTS,

New York, Chairman

DAVID LACHMANN, Chief of Staff

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Response from Brian A. Benczkowski, Principal Deputy Assisant Attorney

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Letter from Richard A. Hertling, Acting Assistant Attorney General, U.S.

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Mr. FEIN. Mr. Chairman and Members of the Subcommittee, I