Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information

Congressional research reportJan 5, 2006

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Presidential Authority to Conduct Warrantless

Electronic Surveillance to Gather Foreign

Intelligence Information

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Legislative Attorney

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Legislative Attorney

January 5, 2006

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R40888

CRS Report for Congress

Prepared for Members and Committees of Congress

Presidential Authority to Conduct Warrantless Electronic Surveillance

Summary

The Revelations in December 2005 that President Bush had authorized the National Security

Agency (NSA) to collect signals intelligence from communications involving U.S. persons within

the United States, without obtaining a warrant or court order, raised numerous questions

regarding the President’s authority to order warrantless electronic surveillance. President Bush

stated that he believes his order to be fully supported by the Constitution and the laws of the

United States, and Attorney General Gonzales clarified that the Administration based its authority

both on inherent presidential powers and the joint resolution authorizing the use of “all necessary

and appropriate force” to engage militarily those responsible for the terrorist attacks of September

11, 2001 (“AUMF”). Although the resolution does not expressly specify what it authorizes as

“necessary and appropriate force,” the Administration discerned the intent of Congress to provide

the statutory authority necessary to take virtually any action reasonably calculated to prevent a

terrorist attack, including by overriding at least some statutory prohibitions that contain

exceptions for conduct that is “otherwise authorized by statute.” Specifically, the Administration

asserts that a part of the Foreign Intelligence Surveillance Act (FISA) that punishes those who

conduct “electronic surveillance under color of law except as authorized by statute” does not bar

the NSA surveillance at issue because the AUMF is just such a statute. On December 22, 2005,

the Department of Justice Office of Legislative Affairs released a letter to certain members of the

House and Senate intelligence committees setting forth in somewhat greater detail the

Administration’s position with regard to the legal authority supporting the NSA activities

described by the President.

This report lays out a general framework for analyzing the constitutional and statutory issues

raised by the NSA electronic surveillance activity. It then outlines the legal framework regulating

electronic surveillance by the government, explores ambiguities in those statutes that could

provide exceptions for the NSA intelligence-gathering operation at issue, and addresses the

arguments that the President possesses inherent authority to order the operations or that Congress

has provided such authority.

This report supersedes CRS memorandum product WD00002, Presidential Authority to Conduct

Warrantless Electronic Surveillance to Gather Foreign Intelligence Information, by (name redacte

d) and (name redacted).

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Contents

Constitutional Separation of Powers............................................................................................3

Background: Government Surveillance .......................................................................................6

The Fourth Amendment ........................................................................................................6

The Origin of Wiretap Warrants.............................................................................................7

Intelligence Surveillance .......................................................................................................7

Surveillance for Foreign Intelligence Purposes .................................................................... 11

Electronic Surveillance: The Current Statutory Framework ....................................................... 12

Title III ............................................................................................................................... 13

FISA................................................................................................................................... 15

Electronic Surveillance Under FISA.................................................................................... 17

FISA Exceptions to Requirement for Court Order.......................................................... 20

The Administration’s Position ................................................................................................... 23

The President’s Inherent Authority to Conduct Intelligence Surveillance ............................. 24

The Authorization to Use Military Force ............................................................................. 29

The Use of Force........................................................................................................... 30

The Domestic Sphere versus Military Operations .......................................................... 32

Are the NSA Electronic Surveillances Consistent with FISA and Title III? .......................... 33

Conclusion................................................................................................................................ 38

Contacts

Author Contact Information ...................................................................................................... 39

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ecent media revelations that the President authorized the National Security Agency (NSA)

to collect signals intelligence1 from communications involving U.S. persons within the

United States, without obtaining a warrant or court order,2 raise numerous questions

regarding the President’s authority to order warrantless electronic surveillance. Little information

is currently known about the full extent of the NSA domestic surveillance, which was revealed by

the New York Times in December, 2005, but allegedly began after the President issued a secret

order in 2002. Attorney General Alberto Gonzales laid out some of its parameters, telling

reporters that it involves “intercepts of contents of communications where one ... party to the

communication is outside the United States” and the government has “a reasonable basis to

conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda,

or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda.”3 The

aim of the program, according to Principal Deputy Director for National Intelligence General

Michael Hayden, is not “to collect reams of intelligence, but to detect and warn and prevent

[terrorist] attacks.”4

The President has stated that he believes his order to be fully supported by the Constitution and

the laws of the United States,5 and the Attorney General clarified that the Administration bases its

authority both on inherent presidential powers and the joint resolution authorizing the use of “all

necessary and appropriate force” to engage militarily those responsible for the terrorist attacks of

“Signals intelligence” is defined in the DEPARTMENT OF DEFENSE DICTIONARY OF MILITARY AND ASSOCIATED TERMS,

Joint Publication 1-02 (April 12, 2001), as follows:

1. A category of intelligence comprising either individually or in combination all communications

intelligence, electronic intelligence, and foreign instrumentation signals intelligence, however

transmitted. 2. Intelligence derived from communications, electronic, and foreign instrumentation

signals. Also called SIGINT. . . .

Id. at 390 (cross-references omitted). “Communications intelligence” is defined as “Technical information and

intelligence derived from foreign communications by other than the intended recipients. Also called COMINT.” Id. at

84. “Electronic intelligence” is defined as “Technical and geolocation intelligence derived from foreign noncommunications electromagnetic radiations emanating from other than nuclear detonations or radioactive sources. Also

called ELINT.... ” Id. at 140 (cross-references omitted). “Foreign instrumentation signals intelligence” is defined as:

Technical information and intelligence derived from the intercept of foreign electromagnetic

emissions associated with the testing and operational deployment of non-US aerospace, surface,

and subsurface systems. Foreign instrumentation signals intelligence is a subcategory of signals

intelligence. Foreign instrumentation signals include but are not limited to telemetry, beaconry,

electronic interrogators, and video data links. Also called FISINT. . . .

Id. at 167 (cross-references omitted).

James Risen and Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. TIMES, Dec. 16, 2005, at 1, 22

(citing anonymous government officials to report that the executive order, which allows some warrantless

eavesdropping on persons inside the United States, “is based on classified legal opinions that assert that the president

has broad powers to order such searches, derived in part from the September 2001 Congressional resolution authorizing

him to wage war on Al Qaeda and other terrorist groups”).

See Press Release, White House, Press Briefing by Attorney General Alberto Gonzales and General Michael Hayden,

Principal Deputy Director for National Intelligence (Dec. 19, 2005) (hereinafter Gonzales Press Conference), available

at http://www.whitehouse.gov/news/releases/2005/12/20051219-1.html. The Attorney General emphasized that his

discussion addressed the legal underpinnings only for those operational aspects that have already been disclosed by the

President, explaining that “the program remains highly classified; there are many operational aspects of the program

that have still not been disclosed and we want to protect that because those aspects of the program are very, very

important to protect the national security of this country.” Id.

Id.(describing the program as more “aggressive” than traditional electronic surveillance under FISA, but also as “less

intrusive”).

President Bush’s Radio Address of December 17, 2005, excerpted in ‘A Vital Tool,’ USA TODAY, December 19,

2005, at A12.

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September 11, 2001 (“AUMF”). 6 Although the resolution does not expressly specify what it

authorizes as “necessary and appropriate force,” the Administration discerns the intent of

Congress to provide the statutory authority necessary take virtually any action reasonably

calculated to prevent a terrorist attack, including by overriding at least some statutory prohibitions

that contain exceptions for conduct that is “otherwise authorized by statute.” Specifically, the

Administration asserts that a part of the Foreign Intelligence Surveillance Act (FISA)7 that

punishes those who conduct “electronic surveillance under color of law except as authorized by

statute”8 does not bar the NSA surveillance at issue because the AUMF is just such a statute.9 On

December 22, 2005, the Department of Justice Office of Legislative Affairs released a letter to

certain members of the House and Senate intelligence committees setting forth in somewhat

greater detail the Administration’s position with regard to the legal authority supporting the NSA

activities described by the President. 10

The Administration’s views have been the subject of debate. Critics challenge the notion that

federal statutes regarding government eavesdropping may be bypassed by executive order, or that

such laws were implicitly superceded by Congress’s authorization to use military force. Others,

however, have expressed the view that established wiretap procedures are too cumbersome and

slow to be effective in the war against terrorism, and that the threat of terrorism justifies

extraordinary measures the President deems appropriate, and some agree that Congress

authorized the measures when it authorized the use of military force.

This memorandum lays out a general framework for analyzing the constitutional and statutory

issues raised by the NSA electronic surveillance activity. It then outlines the legal framework

regulating electronic surveillance by the government, explores ambiguities in those statutes that

could provide exceptions for the NSA intelligence-gathering operation at issue, and addresses the

arguments that the President possesses inherent authority to order the operations or that Congress

has provided such authority.

Authorization for Use of Military Force (“the AUMF”), P.L. 107-40, 115 Stat. 224 (2001). Attorney General

Gonzales explained

Justice O’Connor ... said, it was clear and unmistakable that the Congress had authorized the

detention of an American citizen captured on the battlefield as an enemy combatant for the

remainder—the duration of the hostilities. So even though the authorization to use force did not

mention the word, ‘detention,’ she felt that detention of enemy soldiers captured on the battlefield

was a fundamental incident of waging war, and therefore, had been authorized by Congress when

they used the words, ‘authorize the President to use all necessary and appropriate force.’

For the same reason, we believe signals intelligence is even more a fundamental incident of war,

and we believe has been authorized by the Congress. And even though signals intelligence is not

mentioned in the authorization to use force, we believe that the Court would apply the same

reasoning to recognize the authorization by Congress to engage in this kind of electronic

surveillance.

Gonzales Press Conference, supra note 3.

P.L. 95-511, Title I, 92 Stat. 1796 (Oct. 25, 1978), codified as amended at 50 U.S.C. §§ 1801 et seq.

50 U.S.C. § 1809 (emphasis added).

See Gonzales Press Conference, supra note 3.

Letter from Assistant Attorney General William E. Moschella to Chairman Roberts and Vice Chairman Rockefeller

of the Senate Select Committee on Intelligence and Chairman Hoekstra and Ranking Minority Member Harman of the

House Permanent Select Committee on Intelligence (Dec. 22, 2005) (hereinafter “OLA Letter”).

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Constitutional Separation of Powers

Foreign intelligence collection is not among Congress’s powers enumerated in Article I of the

Constitution, nor is it expressly mentioned in Article II as a responsibility of the President. Yet it

is difficult to imagine that the Framers intended to reserve foreign intelligence collection to the

states or to deny the authority to the federal government altogether. It is more likely that the

power to collect intelligence resides somewhere within the domain of foreign affairs and war

powers, both of which areas are inhabited to some degree by the President together with the

Congress.11

The Steel Seizure Case12 is frequently cited as providing a framework for the courts to decide the

extent of the President’s authority, particularly in matters involving national security. In that

Korean War-era case, the Supreme Court declared unconstitutional a presidential order seizing

control of steel mills that had ceased production due to a labor dispute, an action justified by

President Truman on the basis of wartime exigencies and his role as Commander-in-Chief, 13

despite the fact that Congress had considered but rejected earlier legislation that would have

authorized the measure,14 and that other statutory means were available to address the steel

shortage. 15 The Court remarked that

It is clear that if the President had authority to issue the order he did, it must be found in

some provision of the Constitution. And it is not claimed that express constitutional language

grants this power to the President. The contention is that presidential power should be

implied from the aggregate of his powers under the Constitution. Particular reliance is placed

on provisions in Article II which say that ‘The executive Power shall be vested in a President

... ’; that ‘he shall take Care that the Laws be faithfully executed’; and that he ‘shall be

Commander in Chief of the Army and Navy of the United States.’

The order cannot properly be sustained as an exercise of the President’s military power as

Commander in Chief of the Armed Forces. The Government attempts to do so by citing a

number of cases upholding broad powers in military commanders engaged in day-to-day

The Constitution specifically gives to Congress the power to “provide for the common Defence,” U.S. CONST. Art. I,

§ 8, cl. 1; to “declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and

Water,” id. § 8, cl. 11; “To raise and support Armies,” and “To provide and maintain a Navy,” id. § 8, cls. 12-13; “To

make Rules for the Government and Regulation of the land and naval Forces,” id. § 8, cl. 14, “To declare War,” id. § 8,

cl. 1; and to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and

all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer

thereof,” id. § 8, cl. 18. The President is responsible for “tak[ing] Care that the Laws [are] faithfully executed,” Art. II,

§ 3, and serves as the Commander-in-Chief of the Army and Navy, id. § 2, cl. 1.

Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952).

Id. at 582 (explaining the government’s position that the order to seize the steel mills “was made on findings of the

President that his action was necessary to avert a national catastrophe which would inevitably result from a stoppage of

steel production, and that in meeting this grave emergency the President was acting within the aggregate of his

constitutional powers as the Nation’s Chief Executive and the Commander in Chief of the Armed Forces of the United

States.”).

Id. at 586 (noting that “[w]hen the Taft-Hartley Act was under consideration in 1947, Congress rejected an

amendment which would have authorized such governmental seizures in cases of emergency”).

Id. at 585. The Court took notice of two statutes that would have allowed for the seizure of personal and real property

under certain circumstances, but noted that they had not been relied upon and the relevant conditions had not been met.

In particular, the Court dismissed the government’s reference to the seizure provisions of § 201 (b) of the Defense

Production Act, which the government had apparently not invoked because it was “‘much too cumbersome, involved,

and time-consuming for the crisis which was at hand.’” Id. at 586.

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fighting in a theater of war. Such cases need not concern us here. Even though ‘theater of

war’ be an expanding concept, we cannot with faithfulness to our constitutional system hold

that the Commander in Chief of the Armed Forces has the ultimate power as such to take

possession of private property in order to keep labor disputes from stopping production. This

is a job for the Nation’s lawmakers, not for its military authorities.16

The Court also rejected the argument that past similar assertions of authority by presidents

bolstered the executive claims of constitutional power:

It is said that other Presidents without congressional authority have taken possession of

private business enterprises in order to settle labor disputes. But even if this be true,

Congress has not thereby lost its exclusive constitutional authority to make laws necessary

and proper to carry out the powers vested by the Constitution ‘in the Government of the

United States, or any Department or Officer thereof.’17

The Steel Seizure Case is not remembered as much for the majority opinion as it is for the

concurring opinion of Justice Robert Jackson, who took a more nuanced view and laid out what is

commonly regarded as the seminal explication of separation-of-powers matters between Congress

and the President. Justice Jackson set forth the following oft-cited formula:

1. When the President acts pursuant to an express or implied authorization of Congress, his

authority is at its maximum, for it includes all that he possesses in his own right plus all that

Congress can delegate.... A seizure executed by the President pursuant to an Act of Congress

would be supported by the strongest of presumptions and the widest latitude of judicial

interpretation, and the burden of persuasion would rest heavily upon any who might attack it.

2. When the President acts in absence of either a congressional grant or denial of authority,

he can only rely upon his own independent powers, but there is a zone of twilight in which

he and Congress may have concurrent authority, or in which its distribution is uncertain.

Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a

practical matter, enable, if not invite, measures on independent presidential responsibility. In

this area, any actual test of power is likely to depend on the imperatives of events and

contemporary imponderables rather than on abstract theories of law.

3. When the President takes measures incompatible with the expressed or implied will of

Congress, his power is at its lowest ebb, for then he can rely only upon his own

constitutional powers minus any constitutional powers of Congress over the matter. Courts

can sustain exclusive Presidential control in such a case only by disabling the Congress from

acting upon the subject. Presidential claim to a power at once so conclusive and preclusive

must be scrutinized with caution, for what is at stake is the equilibrium established by our

constitutional system.18

To ascertain where in this framework the President’s claimed authority might fall appears to

require a determination of the Congress’s will and an assessment of how the Constitution

allocates the asserted power between the President and Congress, if at all. If the Constitution

forbids the conduct, then the court has a duty to find the conduct invalid, even if the President and

Congress have acted in concert. In the absence of a constitutional bar, Congress’s support matters,

except in the rare case where the President alone is entrusted with the specific power in question.

Id. at 587.

Id. at 589.

Id. at 637-38 (Jackson, J., concurring) (footnotes and citations omitted).

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In other words, under this view, the President may sometimes have the effective power to take

unilateral action in the absence of any action on the part of Congress to indicate its will, but this

should not be taken to mean that the President possesses the inherent authority to exercise full

authority in a particular field without Congress’s ability to encroach.

William Rehnquist, at the time an Associate Justice of the Supreme Court, took the opportunity in

Dames & Moore v. Regan19 to refine Justice Jackson’s formula with respect to the cases falling

within the second classification, the “zone of twilight in which he and Congress may have

concurrent authority, or in which its distribution is uncertain.”20

In such a case the analysis becomes more complicated, and the validity of the President’s

action, at least so far as separation-of-powers principles are concerned, hinges on a

consideration of all the circumstances which might shed light on the views of the Legislative

Branch toward such action, including “congressional inertia, indifference or quiescence.”21

[I]t is doubtless the case that executive action in any particular instance falls, not neatly in

one of three pigeonholes, but rather at some point along a spectrum running from explicit

congressional authorization to explicit congressional prohibition. This is particularly true as

respects cases such as the one before us, involving responses to international crises the

nature of which Congress can hardly have been expected to anticipate in any detail.22

In Dames & Moore, petitioners had challenged President Carter’s executive order establishing

regulations to further compliance with the terms of an executive agreement he had entered into

for the purpose of ending the hostage crisis with Iran. The orders, among other things, directed

that legal recourse for breaches of contract with Iran and other causes of action must be pursued

before a special tribunal established by the Algiers Accords. President Carter relied largely on the

International Economic Emergency Powers Act (IEEPA), 23 which provided explicit support for

most of the measures taken, but could not be read to authorize actions affecting the suspension of

claims in U.S. courts. The Carter Administration also cited the broad language of the Hostage

Act, which states that “the President shall use such means, not amounting to acts of war, as he

may think necessary and proper to obtain or effectuate the release” of the hostages.24 Justice

Rehnquist wrote for the majority

Although we have declined to conclude that the IEEPA or the Hostage Act directly

authorizes the President’s suspension of claims for the reasons noted, we cannot ignore the

general tenor of Congress’ legislation in this area in trying to determine whether the

President is acting alone or at least with the acceptance of Congress. As we have noted,

Congress cannot anticipate and legislate with regard to every possible action the President

may find it necessary to take or every possible situation in which he might act. Such failure

of Congress specifically to delegate authority does not, “especially ... in the areas of foreign

policy and national security,” imply “congressional disapproval” of action taken by the

Executive. On the contrary, the enactment of legislation closely related to the question of the

President’s authority in a particular case which evinces legislative intent to accord the

President broad discretion may be considered to “invite” “measures on independent

453 U.S. 668 (1981) (citing Youngstown at 637).

Id. at 668-69.

Id.

Id. at 669.

P.L. 95-223, 91 Stat. 1626, codified as amended at 50 U.S.C. §§ 1701 et.seq.

Id at 676 (citing the Hostage Act, 22 U. S. C. § 1732).

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presidential responsibility.” At least this is so where there is no contrary indication of

legislative intent and when, as here, there is a history of congressional acquiescence in

conduct of the sort engaged in by the President.25

The Court remarked that Congress’s implicit approval of the longstanding presidential practice of

settling international claims by executive agreement was critical to its holding that the challenged

actions were not in conflict with acts of Congress. 26 The Court cited Justice Frankfurter’s

concurrence in Youngstown stating that “a systematic, unbroken, executive practice, long pursued

to the knowledge of the Congress and never before questioned ... may be treated as a gloss on

‘Executive Power’ vested in the President by § 1 of Art. II.”27 Finally, the Court stressed that its

holding was narrow:

We do not decide that the President possesses plenary power to settle claims, even as against

foreign governmental entities.... But where, as here, the settlement of claims has been

determined to be a necessary incident to the resolution of a major foreign policy dispute

between our country and another, and where, as here, we can conclude that Congress

acquiesced in the President’s action, we are not prepared to say that the President lacks the

power to settle such claims.28

A review of the history of intelligence collection and its regulation by Congress suggests that the

two political branches have never quite achieved a meeting of the minds regarding their

respective powers. Presidents have long contended that the ability to conduct surveillance for

intelligence purposes is a purely executive function, and have tended to make broad assertions of

authority while resisting efforts on the part of Congress or the courts to impose restrictions.

Congress has asserted itself with respect to domestic surveillance, but has largely left matters

involving overseas surveillance to executive self-regulation, subject to congressional oversight

and willingness to provide funds. 29

Background: Government Surveillance

Investigations for the purpose of gathering foreign intelligence give rise to a tension between the

Government’s legitimate national security interests and the protection of privacy interests and

First Amendment rights.

The Fourth Amendment

The Fourth Amendment to the Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but

Id. at 678-79 (internal citations omitted).

Id. at 680 (citing the International Claims Settlement Act of 1949, 64 Stat. 13, codified as amended at 22 U.S.C. §

1621 et seq. (1976 ed. and Supp. IV)).

Id at 686 (citing Youngstown at 610-611(Frankfurter, J., concurring)).

Id. at 688.

For background on the evolution of U.S. intelligence operations, see CRS Report RL32500, Proposals for

Intelligence Reorganization, 1949-2004, by (name redacted).

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upon probable cause, supported by Oath or affirmation, and particularly describing the place

to be searched, and the persons or things to be seized.

While the right against unreasonable searches and seizures was originally applied only to tangible

things, Supreme Court jurisprudence eventually expanded the contours of the Fourth Amendment

to cover intangible items such as conversations. As communications technology has advanced, the

technology for intrusion into private conversations has kept pace, as have government efforts to

exploit such technology for law enforcement and intelligence purposes. At the same time, the

Court has expanded its interpretation of the scope of the Fourth Amendment with respect to such

techniques, and Congress has legislated both to protect privacy and to enable the government to

pursue its legitimate interests in enforcing the law and gathering foreign intelligence information.

Yet the precise boundaries of what the Constitution allows, as well as what it requires, are not

fully demarcated, and the relevant statutes are not entirely free from ambiguity.

The Origin of Wiretap Warrants

In Katz v. United States,30 the Court held for the first time that the protections of the Fourth

Amendment extend to circumstances involving electronic surveillance of oral communications

without physical intrusion.31 In response, Congress enacted Title III of the Omnibus Crime

Control and Safe Streets Act of 1968 (“Title III”)32 to provide for search warrants to authorize

electronic surveillance for law enforcement purposes, but prohibiting such surveillance in other

instances not authorized by law. The Katz Court noted that its holding did not extend to cases

involving national security, and Congress did not then attempt to regulate national security

surveillance. Title III, as originally enacted, contained an exception. It stated that

Nothing contained in this chapter or in section 605 of the Communications Act ... shall limit

the constitutional power of the President to take such measures as he deems necessary to

protect the Nation against actual or potential attack or other hostile acts of a foreign power,

to obtain foreign intelligence information deemed essential to the security of the United

States, or to protect national security information against foreign intelligence activities.... 33

Intelligence Surveillance

Several years later, the Supreme Court addressed electronic surveillance for domestic intelligence

purposes. In United States v. United States District Court, 407 U.S. 297 (1972) (the Keith case),

the United States sought a writ of mandamus to compel a district judge to vacate an order

directing the United States to fully disclose electronically monitored conversations. The Sixth

Katz v. United States, 389 U.S. 347, 353 (1967), overruling Olmstead v. United States, 277 U.S. 438 (1928).

Id. at 359 n.23.

Pub. L. 90-351, 82 Stat. 211, codified as amended at 18 U.S.C. §§ 2510 et seq. For more background see CRS Report

98-326, Privacy: An Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping, by (name

redacted) and (name redacted).

82 Stat. 214, formerly codified at 18 U.S.C. § 2511(3). The Supreme Court interpreted this provision not as a

conferral or recognition of executive authority, but rather, an indication that Congress had “left presidential powers

where it found them.” United States v. United States District Court, 407 U.S. 297, 303 (1972). The Senate Judiciary

Committee noted, however, that the “highly controversial disclaimer has often been cited as evidence of a

congressional ratification of the president’s inherent constitutional power to engage in electronic surveillance in order

to obtain foreign intelligence information essential to the national security.” S. REP. NO. 95-604(I), at 6-7 (1978).

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Circuit refused to grant the writ,34 and the Supreme Court granted certiorari and affirmed the

lower court decision. The Supreme Court regarded Katz as “implicitly recogniz[ing] that the

broad and unsuspected governmental incursions into conversational privacy which electronic

surveillance entails necessitate the application of Fourth Amendment safeguards.”35 Mr. Justice

Powell, writing for the Keith Court, framed the matter before the Court as follows:

The issue before us is an important one for the people of our country and their Government.

It involves the delicate question of the President’s power, acting through the Attorney

General, to authorize electronic surveillance in internal security matters without prior judicial

approval. Successive Presidents for more than one-quarter of a century have authorized such

surveillance in varying degrees, without guidance from the Congress or a definitive decision

of this Court. This case brings the issue here for the first time. Its resolution is a matter of

national concern, requiring sensitivity both to the Government’s right to protect itself from

unlawful subversion and attack and to the citizen’s right to be secure in his privacy against

unreasonable Government intrusion.36

The Court held that, in the case of intelligence gathering involving domestic security surveillance,

prior judicial approval was required to satisfy the Fourth Amendment. 37 Justice Powell

emphasized that the case before it “require[d] no judgment on the scope of the President’s

surveillance power with respect to the activities of foreign powers, within or without the

country.”38 The Court expressed no opinion as to “the issues which may be involved with respect

to activities of foreign powers or their agents,”39 but invited Congress to establish statutory

444 F. 2d 651.

United States v. United States District Court, 407 U.S. 297, 313-14 (1972).

407 U.S. at 299.

Id. at 313-14, 317, 319-20. Thus, the Court stated,

“These Fourth Amendment freedoms cannot properly be guaranteed if domestic security

surveillances may be conducted solely within the discretion of the Executive Branch.... The

Government argues the special circumstances applicable to domestic security surveillances

necessitate a further exception to the warrant requirement. It is urged that the requirement of prior

judicial review would obstruct the President in the discharge of his constitutional duty to protect

domestic security.... ”

Id. at 317-18. The Government also argued that such surveillances were for intelligence gathering purposes; that the

courts “as a practical matter would have neither the knowledge nor the techniques to determine whether there was

probable cause to believe that surveillance was necessary to protect national security;” and that disclosure to a

magistrate and court personnel of information involved in the domestic security surveillances “would create serious

potential dangers to the national security and to the lives of informants and agents” due to the increased risk of leaks.

Id. at 318-19. The Court found that “these contentions on behalf of a complete exemption from the warrant

requirement, when urged on behalf of the President and the national security in its domestic implications, merit the

most careful consideration,” but concluded that a case had not been made for a departure from Fourth Amendment

standards. Id. at 319-20. Justice Powell also observed that, National security cases ... often reflect a convergence of

First and Fourth Amendment values not present in cases of “ordinary” crime. Though the investigative duty of the

executive may be stronger in such cases, so also is there greater jeopardy to constitutionally protected speech.

“Historically the struggle for freedom of speech and press in England was bound up with the issue of the scope of the

search and seizure power,” Marcus v. Search Warrant, 367 U.S. 717, 724 (1961).... Fourth Amendment protections

become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their

political beliefs. The danger to political dissent is acute where the Government attempts to act under so vague a concept

as the power to protect “domestic security.” ... Id. at 313-14.

Id. at 308.

Id. at 321-22. The Keith Court also stated, “Further, the instant case requires no judgment on the scope of the

President’s surveillance power with respect to the activities of foreign powers within or without this country.” Id. at

308.

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guidelines. 40 Thus, at least insofar as domestic surveillance is concerned, the Court has

recognized that Congress has a role in establishing rules in matters that touch on national security.

Court of appeals decisions following Keith met more squarely the issue of warrantless electronic

surveillance in the context of foreign intelligence gathering. In United States v. Brown,41 while

affirming Brown’s conviction for a firearm violation, the Fifth Circuit upheld the legality of a

warrantless wiretap authorized by the Attorney General for foreign intelligence purposes where

the conversation of Brown, an American citizen, was incidentally overheard. 42 The Third Circuit,

in United States v. Butenko,43 in affirming the district court’s denial of an espionage defendant’s

application for disclosure of wiretap records, concluded that warrantless electronic surveillance

was lawful, violating neither Section 605 of the Communications Act44 nor the Fourth

Amendment, if its primary purpose was to gather foreign intelligence information.45

We recognize that domestic surveillance may involve different policy and practical

considerations from the surveillance of “ordinary crime.” The gathering of security intelligence is

often long range and involves the interrelation of various sources and types of information. The

exact targets of such surveillance may be more difficult to identify than in surveillance operations

against many types of crime specified in Title III [of the Omnibus Crime Control and Safe Streets

Act, 18 U.S.C. § 2510 et seq.]. Often, too, the emphasis of domestic intelligence gathering is on the

prevention of unlawful activity or the enhancement of the Government’s preparedness for some

possible future crisis or emergency. Thus, the focus of domestic surveillance may be less precise

than that directed against more conventional types of crimes. Given these potential distinctions

between Title III criminal surveillances and those involving domestic security, Congress may wish

to consider protective standards for the latter which differ from those already prescribed for

specified crimes in Title III. Different standards may be compatible with the Fourth Amendment if

they are reasonable both in relation to the legitimate need of Government for intelligence

information and the protected rights of our citizens. For the warrant application may vary according

to the governmental interest to be enforced and the nature of citizen rights deserving protection.... It

may be that Congress, for example, would judge that the application and affidavit showing

probable cause need not follow the exact requirements of § 2518 but should allege other

circumstances more appropriate to domestic security cases; that the request for prior court

authorization could, in sensitive cases, be made to any member of a specially designated court ... ;

and that the time and reporting requirements need not be so strict as those in § 2518. The above

paragraph does not, of course, attempt to guide the congressional judgment but rather to delineate

the present scope of our own opinion. We do not attempt to detail the precise standards for

domestic security warrants any more than our decision in Katz sought to set the refined

requirements for the specified criminal surveillances which now constitute Title III. We do hold,

however, that prior judicial approval is required for the type of domestic surveillance involved in

this case and that such approval may be made in accordance with such reasonable standards as the

Congress may prescribe.

407 U.S. at 323-24 (emphasis added). Some of the structural elements mentioned here appear to foreshadow the

structure Congress chose to establish for electronic surveillance to gather foreign intelligence information in FISA.

484 F.2d 418 (5th Cir. 1973), cert. denied, 415 U.S. 960 (1974).

Id. at 426.

494 F.2d 593 (3rd Cir. 1974), cert. denied sub nom. Ivanov v. United States, 419 U.S. 881 (1974).

P.L. 73-416, Title VII, § 705, formerly Title VI, § 605, 48 Stat. 1103, codified as amended at 47 U.S.C. § 605

(providing that except as authorized in Title III, “no person not being authorized by the sender shall intercept any

communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such

intercepted communication to any person”).

494 F.2d at 602, 604, and 608. However, it would be unlawful if the interception were conducted on a domestic

group for law enforcement purposes. Id. at 606.

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The Ninth Circuit, in United States v. Buck,46 affirmed the conviction of a defendant found guilty

of furnishing false information in connection with the acquisition of ammunition and making a

false statement with respect to information required to be kept by a licensed firearm dealer. In

responding to Buck’s contention on appeal that it was reversible error for the district court to fail

to articulate the test it applied in ruling, after an in camera inspection, that the contents of one

wiretap did not have to be disclosed to the appellant because it was expressly authorized by the

Attorney General and lawful for purposes of gathering foreign intelligence, the Ninth Circuit

stated that “[f]oreign security wiretaps” were “a recognized exception to the general warrant

requirement and disclosure of wiretaps not involving illegal surveillance was within the trial

court’s discretion.” The court found a determination that the surveillance was reasonable was

implicit in the lower court’s conclusion. 47

In its plurality decision in Zweibon v. Mitchell,48 a case involving a suit for damages brought by

16 members of the Jewish Defense League against Attorney General John Mitchell and nine FBI

special agents and employees for electronic surveillance of their telephone calls without a

warrant, the District of Columbia Circuit took a somewhat different view. The surveillance was

authorized by the President, acting through the Attorney General, as an exercise of his authority

relating to the nation’s foreign affairs and was asserted to be essential to protect the nation and its

citizens against hostile acts of a foreign power and to obtain foreign intelligence information

deemed essential to the security of the United States. The D.C. Circuit, in a plurality decision,

held that a warrant was constitutionally required in such a case involving a wiretap of a domestic

organization that was not an agent of a foreign power or working in collaboration with a foreign

power posing a national security threat.49 The court further held that the appellants were entitled

to the liquidated damages recovery provided in Title III unless appellees on remand establish an

affirmative defense of good faith. 50 While its holding was limited to the facts before it, the

plurality also noted that “an analysis of the policies implicated by foreign security surveillance

indicates that, absent exigent circumstances, all warrantless electronic surveillance is

unreasonable and therefore unconstitutional.” 51

548 F.2d 871 (9th Cir. 1977), cert. denied, 439 U.S. 890 (1977).

Id. at 875-76.

516 F.2d 594 (D.C. Cir. 1975), cert. denied, 425 U.S. 944 (1976).

516 F.2d at 650-55.

Id. at 659-73.

Id. at 613-14. In the context of the its broad dictum, the court did not clarify what “exigent circumstances” might

entail. The court explained its understanding of the distinction between “domestic” and “foreign” as follows:

Throughout this opinion, “internal security” and “domestic security” will refer to threats to the

structure or existence of the Government which originate directly from domestic organizations

which are neither agents of nor acting in collaboration with foreign powers, and “internal security”

or “domestic security” surveillance will refer to surveillance which is predicated on such threats.

“Foreign security” will refer to threats to the structure or existence of the Government which

emanate either directly or indirectly from a foreign power, and a “foreign security” surveillance

will refer to surveillance which is predicated on such threats. A surveillance is a foreign security

surveillance regardless of the stimulus that provoked the foreign power; thus the surveillance in this

case will be treated as a foreign security surveillance even though the Soviet threats were provoked

by actions of a hostile domestic organization. We believe such treatment is required by the limited

holding of the Supreme Court in Keith. “National security” will generally be used interchangeably

with “foreign security,” except where the context makes it clear that it refers to both “foreign

security” and “internal security.”

Id. at 614 n.42 (internal citations omitted).

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Surveillance for Foreign Intelligence Purposes

The Foreign Intelligence Surveillance Act of 1978 (FISA)52 sought to strike a balance between

national security interests and civil liberties. The legislation was a response both to the Senate

Select Committee to Study Government Operations with Respect to Intelligence Activities

(hereinafter the Church Committee) revelations of past abuses of electronic surveillance for

national security purposes and to the somewhat uncertain state of the law on the issue. The

Church Committee found that every President since Franklin D. Roosevelt had both asserted the

authority to authorize warrantless electronic surveillance and had utilized that authority.53

Concerns over abuses of such authority provided impetus to the passage of the legislation. As the

Senate Judiciary Committee noted in its statement of the need for legislation:

The need for such statutory safeguards has become apparent in recent years. This legislation

is in large measure a response to the revelations that warrantless electronic surveillance in

the name of national security has been seriously abused.... While the number of illegal or

improper national security taps and bugs conducted during the Nixon administration may

have exceeded those in previous administrations, the surveillances were regrettably by no

means atypical. In summarizing its conclusion that surveillance was “often conducted by

illegal or improper means,” the Church committee wrote:

Since the 1930’s, intelligence agencies have frequently wiretapped and bugged American

citizens without the benefit of judicial warrant ..... past subjects of these surveillances have

included a United States Congressman, Congressional staff member, journalists and

newsmen, and numerous individuals and groups who engaged in no criminal activity and

who posed no genuine threat to the national security, such as two White House domestic

affairs advisers and an anti-Vietnam War protest group. (Vol. 2, p.12)

****

The application of vague and elastic standards for wiretapping and bugging has resulted in

electronic surveillances which, by any objective measure, were improper and seriously

infringed the Fourth Amendment rights of both the targets and those with whom the targets

communicated. The inherently intrusive nature of electronic surveillance, moreover, has

enabled the Government to generate vast amounts of information—unrelated to any

legitimate government interest—about the personal and political lives of American citizens.

The collection of this type of information has, in turn, raised the danger of its use for partisan

political and other improper ends by senior administration officials. (Vol. 3, p. 32.)54

The Senate Judiciary Committee also focused on the potentially chilling effect of warrantless

electronic surveillance upon the exercise of First Amendment rights:

P.L. 95-511, Title I, 92 Stat. 1796 (Oct. 25, 1978), codified as amended at 50 U.S.C. §§ 1801 et seq.

See S. REP. NO. 95-604(I), at 7, 1978 U.S.C.C.A.N. 3904, 3908. The Senate Judiciary Committee report’s

“Background” section traces in some detail the history of Executive Branch wiretap practice from the 1930’s (after the

Supreme Court in Olmstead held that the Fourth Amendment did not apply to “intangible” conversations and therefore

no warrant was necessary) to the time of the consideration of FISA. See id. at 9-15, 1978 U.S.C.C.A.N. at 3911-16.

Olmstead was overruled by Katz, see supra note 30 and accompanying text. The report of the House Permanent Select

Committee on Intelligence, in its “Background” section, also provides a detailed recitation on the subject in H. REP.

NO. 95-1283 at 15-21.

Id. at 7-8, 1978 U.S.C.C.A.N. at 3909.

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Also formidable—although incalculable—is the “chilling effect” which warrantless

electronic surveillance may have on the constitutional rights of those who were not targets of

the surveillance, but who perceived themselves, whether reasonably or unreasonably, as

potential targets. Our Bill of Rights is concerned not only with direct infringements on

constitutional rights, but also with government activities which effectively inhibit the

exercise of these rights. The exercise of political freedom depends in large measure on

citizens’ understanding that they will be able to be publicly active and dissent from official

policy, within lawful limits, without having to sacrifice the expectation of privacy that they

rightfully hold. Arbitrary or uncontrolled use of warrantless electronic surveillance can

violate that understanding and impair that public confidence so necessary to an uninhibited

political life.55

The Senate Judiciary Committee stated that the bill was “designed ... to curb the practice by

which the Executive Branch may conduct warrantless electronic surveillance on its own unilateral

determination that national security justifies it,” while permitting the legitimate use of electronic

surveillance to obtain foreign intelligence information. Echoing the Church Committee, the

Senate Judiciary Committee recognized that electronic surveillance has enabled intelligence

agencies to obtain valuable and vital information relevant to their legitimate intelligence missions

which would have been difficult to acquire by other means.56

Electronic Surveillance: The Current Statutory

Framework

The interception of wire, oral, or electronic communications57 is regulated by Title III of the

Omnibus Crime Control and Safe Streets Act of 1968 (“Title III”), as amended.58 Government

surveillance for criminal law enforcement is permitted under certain circumstances and in

accordance with the procedures set forth in Title III. Government surveillance for the gathering of

foreign intelligence information is covered by FISA. These statutes are relevant to the analysis of

the legality of the reported NSA surveillance to the extent that their provisions are meant to cover

such surveillance, prohibit it, or explicitly exempt it from requirements therein. If Congress meant

for FISA to occupy the entire field of electronic surveillance of the type that is being conducted

pursuant to the President’s executive order, then the operation may fall under the third tier of

Justice Jackson’s formula, in which the President’s “power is at its lowest ebb” and a court could

sustain it only by “disabling the Congress from acting upon the subject.”59 In other words, if

FISA, together with Title III, were found to occupy the field, then for a court to sustain the

President’s authorization of electronic surveillance to acquire foreign intelligence information

outside the FISA framework, FISA would have to be considered an unconstitutional

encroachment on inherent presidential authority. If, on the other hand, FISA leaves room for the

Id. at 8, 1978 U.S.C.C.A.N. at 3909-10.

Id. at 8-9, 1978 U.S.C.C.A.N. at 3910.

For definitions of “wire communications,” “oral communications,” and “electronic communications,” see 18 U.S.C.

§ 2510(1), (2), and (12). The latter includes, with certain exceptions, the transfer of any signs, signals, writing, images,

sounds, data, or intelligence of any nature transmitted in whole or in part by wire, radio, electromagnetic,

photoelectronic or photooptical system affecting interstate or foreign commerce.

Pub. L. 90-351, 82 Stat. 211, codified as amended at 18 U.S.C. §§ 2510 et seq.

Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 637-38 (1952) (Jackson, J., concurring). See supra notes

10 et seq., and accompanying text.

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NSA surveillance outside its strictures, then the claimed power might fall into the first or second

categories, as either condoned by Congress (expressly or implicitly), or simply left untouched.

Title III

Title III provides the means for the Attorney General and designated assistants to seek a court

order authorizing a wiretap or similar electronic surveillance to investigate certain crimes

(18 U.S.C. § 2516). Most other interceptions of electronic communications are prohibited unless

the activity falls under an explicit exception. Under 18 U.S.C. § 2511, any person who

“intentionally intercepts ... any wire, oral, or electronic communication” or “intentionally uses ...

any electronic, mechanical, or other device [that transmits a signal over wire or radio frequencies,

or is connected with interstate or foreign commerce] to intercept any oral communication,”

without the consent of at least one party to the conversation, is subject to punishment or liability

for civil damages. The statute also prohibits the intentional disclosure of the contents of an

intercepted communication. It prohibits attempts to engage in the prohibited conduct as well as

solicitation of other persons to carry out such activity.

Certain exceptions in Title III apply to federal employees and other persons “acting under color of

law,”60 including exceptions for foreign intelligence acquisition. Section 2511 excepts officers,

employees, and agents of the United States who, in the normal course of their official duty,

conduct electronic surveillance pursuant to FISA (18 U.S.C. § 2511(2)(e)). Furthermore,

Congress emphasized in § 1511(2)(f) that

Nothing contained in [chapters 119 (Title III), 121 (stored wire or electronic surveillance or

access to transactional records) or 206 (pen registers and trap and trace devices) of title 18,

U.S. Code], or section 705 of the Communications Act of 1934,61 shall be deemed to affect

the acquisition by the United States Government of foreign intelligence information from

international or foreign communications, or foreign intelligence activities conducted in

accordance with otherwise applicable Federal law involving a foreign electronic

communications system, utilizing a means other than electronic surveillance as defined in

section 101 of the Foreign Intelligence Surveillance Act of 1978, and procedures in this

chapter [119] or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be

the exclusive means by which electronic surveillance, as defined in section 101 of such Act,

and the interception of domestic wire, oral, and electronic communications may be

conducted.62

Title III also contains some exceptions for private parties, including communications service providers with respect

to activity incident to the provision of such service (§ 2511(2)(a)), and for activity related to equipment maintenance

and repair, prevention of fraud or unauthorized access, and protection from unlawful interference (§ 2511(2)(g)-(h)).

Listening to broadcasts and electronic communications that are available to the general public and not encrypted, such

as police band radio, is not prohibited (§ 2511(2)(g)).

47 U.S.C. § 605 (“[N]o person receiving, assisting in receiving, transmitting, or assisting in transmitting, any

interstate or foreign communication by wire or radio shall divulge or publish the existence, contents, substance,

purport, effect, or meaning thereof, except through authorized channels of transmission or reception.... ”).

18 U.S.C. § 2511(2)(f), added by the Foreign Intelligence Surveillance Act of 1978 (FISA), § 201(b), P.L. 95-511, 92

Stat. 1783. Prior to this amendment, the section read:

Nothing contained in this chapter, or section 605 [now 705] of the Communications Act of 1934,

shall be deemed to affect the acquisition by the United States Government of foreign intelligence

information from international or foreign communications by means other than electronic

surveillance as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, and

procedures in this chapter and the Foreign Intelligence Surveillance Act of 1978 shall be the

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Title III does not define “international or foreign communications” or “domestic.” It is unclear

under the language of this section whether communications that originate outside the United

States but are received within U.S. territory, or vice versa, were intended to be treated as foreign,

international or domestic. Recourse to the plain meaning of the words provides some

illumination. Webster’s New Collegiate Dictionary (1977), in pertinent part, defines

“international” to mean “affecting or involving two or more nations” or “of or relating to one

whose activities extend across national boundaries.” Therefore, “international communications”

might be viewed as referring to communications which extend across national boundaries or

which involve two or more nations. “Foreign” is defined therein, in pertinent part, as “situated

outside a place or country; esp situated outside one’s own country.” Thus, “foreign

communications” might be interpreted as referring to communications taking place wholly

outside the United States. “Domestic” is defined, in pertinent part, in Webster’s to mean “of,

relating to, or carried on within one and esp. one’s own country.” Therefore, “domestic

communications” may be defined as communications carried on within the United States.

The phrase “utilizing a means other than electronic surveillance [under FISA]” could be

interpreted as modifying only the clause immediately before it or as modifying the previous

clause as well. If it is read not to pertain to the clause regarding acquisition of intelligence from

foreign or international communications, then Title III and the other named statutes would not

affect the interception of foreign and international communications, whether they are acquired

through electronic surveillance within the meaning of FISA or through other means. The

legislative history does not support such a reading, however, for two reasons. First, the second

clause, relating to intelligence activities involving foreign electronic communications systems,63S.

REP. NO. 99-541, at 18 (1986). “Proposed chapter 121” refers to FISA. was inserted into the law

in 1986 between the first clause and the modifying phrase.64 It is thus clear that the modifier

initially applied to the first clause, and nothing in the legislative history suggests that Congress

intended to effect such a radical change as exempting any electronic surveillance involving

communications covered by FISA from the procedures required therein. Second, this conclusion

is bolstered by the last sentence of the subsection, which specifies that the methods authorized in

(...continued)

exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the

interception of wire and oral communications may be conducted.

The Electronic Communications Privacy Act, P.L. 99-508, § 101(c)(1)(A), substituted “wire, oral, or electronic

communication” for “wire or oral communications.” P.L. 99-508, § 101(b)(3), added the references to “chapter 121,”

which deals with stored wire and electronic communications and access to transactional records. That subsection also

substituted “foreign communications, or foreign intelligence activities conducted in accordance with otherwise

applicable Federal law involving a foreign electronic communications system, utilizing a means” for “foreign

communications by a means.”

The statute does not explain whether “involving a foreign electronic communications system” encompasses only

communications that are transmitted and received without ever traversing U.S. wires, cables, or broadcasting

equipment, or whether a communication carried primarily by a U.S. carrier that is at any point routed through a nonU.S. communication system “involves” the foreign system. Either way, the interception would have to be carried out

pursuant to “otherwise applicable Federal law.”

According to the Senate Judiciary Committee, the language was meant

to clarify that nothing in chapter 119 as amended or in proposed chapter 121 affects existing legal

authority for U.S. Government foreign intelligence activities involving foreign electronic

communications systems. The provision neither enhances nor diminishes existing authority for such

activities; it simply preserves the status quo. It does not provide authority for the conduct of any

intelligence activity.

Electronic Communications Privacy Act of 1986 § 101(b)(3), P.L. 99-508, 100 Stat. 1848 (1986).

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FISA and the other statutes are to be the exclusive methods by which the federal government is

authorized to intercept electronic communications. Whether given communications are covered

by the exclusivity language would require an examination of the definitions of covered

communications in Title III and in FISA.65

As originally enacted, § 2511 contained what appeared to be a much broader exception for

national security intercepts. It excluded from the coverage of Title III surveillance carried out

pursuant to the “constitutional power of the President to take such measures as he deems

necessary to protect the Nation against actual or potential attack ... , [and] to obtain foreign

intelligence information deemed essential to the security of the United States.... 66 Congress

repealed this language when it enacted FISA, and inserted § 2511(2)(f), supra, to make the

requirements of Title III or FISA the exclusive means to authorize electronic surveillance within

the United States, and to “put[] to rest the notion that Congress recognizes an inherent

Presidential power to conduct such surveillances in the United States outside of the procedures

contained in chapters 119 and 120 [of title 18, U.S. Code].”67 Subsection (2)(f) was intended to

clarify that the prohibition does not cover NSA operations (as they were then being conducted)

and other surveillance overseas, including that which targets U.S. persons.68

FISA

The Foreign Intelligence Surveillance Act (FISA) provides a framework for the use of “electronic

surveillance,” as defined in the Act,69 and other investigative methods70 to acquire foreign

See infra section defining “electronic surveillance.”

82 Stat. 214, formerly codified at 18 U.S.C. § 2511(3). The Supreme Court interpreted this provision not as a

conferral or recognition of executive authority, but rather, as an indication that Congress had “left presidential powers

where it found them.” United States v. United States District Court, 407 U.S. 297, 303 (1972). The Senate Judiciary

Committee noted, however, that the “highly controversial disclaimer has often been cited as evidence of a

congressional ratification of the president’s inherent constitutional power to engage in electronic surveillance in order

to obtain foreign intelligence information essential to the national security.” S. REP. NO. 95-604(I), at 6-7 (1978).

S. REP. NO. 95-604(I), at 64 (1978). Further, the Committee stated, “[a]s to methods of acquisition which come within

the definition of ‘electronic surveillance’ in this bill, the Congress has declared that this statute, not any claimed

presidential power, controls.” Id. (emphasis added). The reference to chapter 120 of Title 18, U.S.C., in the report

language quoted in the text above is to the foreign intelligence provisions in S. 1566, which became FISA. The Senate

version of the measure would have included the foreign intelligence surveillance provisions as a new chapter 120 of

Title 18, U.S. Code.

The Senate Judiciary Committee explained that the provision was designed “to make clear the legislation does not

deal with international signals intelligence activities as currently engaged in by the National Security Agency and

electronic surveillance conducted outside the United States.” S. REP. NO. 95-604(I), at 64 (1978). The Senate Select

Committee on Intelligence echoed this understanding. S. REP. NO. 95-701, at 71 (1978). While legislation then pending

that would have regulated these types of operations was not enacted (S. 2525, 95th Cong.), Congress established

oversight over such intelligence activities through a review of relevant executive branch procedures and regulations by

the House and Senate Intelligence Committees. See S. REP. NO. 99-541, at 18 (1986) (“As in the past, the Senate

expects that any relevant changes in these procedures and regulations will be provided to the Senate and House

Intelligence Committees prior to their taking effect.”). The President is also required to report “illegal intelligence

activity” to the intelligence committees, 50 U.S.C. § 413(b). “Illegal intelligence activity” is undefined, but legislative

history suggests it includes activities that violate the Constitution, statutes, or Executive orders. See S. REP. NO. 102-85,

at 31 (1991) (explaining that the definition of “illegal intelligence activity” was not changed from the previous version

of § 413).

See discussion of the scope of “electronic surveillance” under FISA in the next section of this memorandum, infra.

FISA also authorizes the use for foreign intelligence purposes of physical searches, 50 U.S.C. § 1821 et seq.; pen

registers and trap and trace devices, 50 U.S.C. § 1842 et seq.; and orders for production of business records or any

tangible thing “for an investigation to obtain foreign intelligence information not concerning a United States person or

(continued...)

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intelligence information.71 In pertinent part, FISA provides a means by which the government can

obtain approval to conduct electronic surveillance of a foreign power or its agents without first

meeting the more stringent standard in Title III that applies to criminal investigations. While Title

III requires a showing of probable cause that a proposed target has committed, is committing, or

is about to commit a crime, FISA requires a showing of probable cause to believe that the target is

a foreign power or an agent of a foreign power.

In the aftermath of the September 11, 2001, terrorist attacks on the United States, Congress

amended FISA so that it no longer requires a certification that the (primary) purpose of a search

or surveillance is to gather foreign intelligence information.72 As amended by the USA PATRIOT

Act, 73 FISA requires that a “significant purpose” of the investigation be the collection of foreign

intelligence information, which has been interpreted to expand the types of investigations that

may be permitted to include those in which the primary purpose may be to investigate criminal

activity, as long as there is at least a measurable purpose related to foreign intelligence

gathering. 74 Congress later enacted a measure that removed, for a time, 75 the requirement for the

(...continued)

to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a

United States person is not conducted solely upon the basis of activities protected by the first amendment to the

Constitution.”

“Foreign intelligence information” is defined in FISA, 50 U.S.C. § 1801(e), to mean:

(1) information that relates to, and if concerning a United States person is necessary to, the ability

of the United States to protect against—

(A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a

foreign power;

(B) sabotage or international terrorism by a foreign power or an agent of a foreign power; or

or by an agent of a foreign power; or

(2) information with respect to a foreign power or foreign territory that relates to, and if concerning

a United States person is necessary to—

(A) the national defense or the security of the United States; or

(B) the conduct of the foreign affairs of the United States.

See CRS Report RL30465, The Foreign Intelligence Surveillance Act: An Overview of the Statutory Framework and

U.S. Foreign Intelligence Surveillance Court and U.S. Foreign Intelligence Surveillance Court of Review Decisions.

“Foreign intelligence information” is defined in 50 U.S.C. § 1801(e) to mean:

(1) information that relates to, and if concerning a United States person is necessary to, the ability

of the United States to protect against—

(A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a

foreign power;

(B) sabotage or international terrorism by a foreign power or an agent of a foreign power; or

by an agent of a foreign power; or

(2) information with respect to a foreign power or foreign territory that relates to, and if concerning

a United States person is necessary to—

(A) the national defense or the security of the United States; or

(B) the conduct of the foreign affairs of the United States.

P.L. 107-56 § 218.

See In re Sealed Case, 310 F.3d 717, 735 (U.S. Foreign Intell. Surveillance Ct. Rev. 2002) (“The addition of the

word ‘significant’ to section 1804(a)(7)(B) imposed a requirement that the government have a measurable foreign

intelligence purpose, other than just criminal prosecution of even foreign intelligence crimes.”).

This amendment, added by section 6001 of the Intelligence Reform and Terrorism Prevention Act, P.L. 108-458, 118

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government to show that the intended target, if a non-U.S. person, is associated with a foreign

power.76

Electronic Surveillance Under FISA

Whether FISA applies to the electronic surveillances at issue turns in large part on the definition

of “electronic surveillance” under FISA. To constitute “electronic surveillance” under FISA, the

surveillance must fall within one of four categories set forth in 50 U.S.C. § 1801(f), FISA. These

include:

(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents

of any wire or radio communication sent by or intended to be received by a particular, known

United States person77 who is in the United States, if the contents are acquired by

intentionally targeting that United States person, under circumstances in which a person has

a reasonable expectation of privacy and a warrant would be required for law enforcement

purposes;

(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents

of any wire communication to or from a person in the United States, without the consent of

any party thereto, if such acquisition occurs in the United States, but does not include the

acquisition of those communications of computer trespassers that would be permissible

under section 2511(2)(i) of Title 18;

(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of

the contents of any radio communication, under circumstances in which a person has a

reasonable expectation of privacy and a warrant would be required for law enforcement

purposes, and if both the sender and all intended recipients are located within the United

States; or

(4) the installation or use of an electronic, mechanical, or other surveillance device in the

United States for monitoring to acquire information, other than from a wire or radio

(...continued)

Stat. 3742 (2004), is subject to the sunset provision of the USA PATRIOT Act. See CRS Report RL32186, USA

PATRIOT Act Sunset: Provisions That Were to Expire on December 31, 2005, by (name redacted).

See CRS Report RS22011, Intelligence Reform and Terrorism Prevention Act of 2004: “Lone Wolf” Amendment to

the Foreign Intelligence Surveillance Act (FISA), by (name redacted) and (name redacted).

“United States person” is defined in 50 U.S.C. § 1801(i) to mean:

(i) “United States person” means a citizen of the United States, an alien lawfully admitted for

permanent residence (as defined in section 1101(a)(20) of Title 8), an unincorporated association a

substantial number of members of which are citizens of the United States or aliens lawfully

admitted for permanent residence, or a corporation which is incorporated in the United States, but

does not include a corporation or an association which is a foreign power, as defined in subsection

(a)(1), (2), or (3) of this section.

Under the definition of “foreign power” in 50 U.S.C. § 1801(a), the foreign powers defined in subsections 1801(a)(1),

(2), or (3) are either foreign governments or components thereof, factions of a foreign nation or foreign nations which

are not substantially composed of U.S. persons, or entities openly acknowledged by a foreign government or

governments to be directed and controlled by that government or those governments. These three subsections of the

“foreign power” definition do not include international terrorist organizations. See infra note 87 for the full definition

of “foreign power” under 50 U.S.C. § 1801(a).

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communication, under circumstances in which a person has a reasonable expectation of

privacy and a warrant would be required for law enforcement purposes. 78

The legislative history of the Act suggests that some electronic surveillance by the National

Security Agency involving communications taking place entirely overseas, even involving U.S.

persons, was not intended to be covered.79 At the same time, FISA was clearly meant to cover

some communications even if one party to the communication is overseas. The interception of

wire or radio communications sent by or intended to be received by a targeted United States

person80 in the United States is covered under 50 U.S.C. § 1801(f)(1). The interception of

With respect to the ability of FISA to keep pace with the rapidly changing level of communications technology, it is

possible that 50 U.S.C. § 1801(f)(3) and (4) may provide some or all of the needed statutory flexibility. See, e.g., S.

REP. NO. 95-604(I) at 34-35, 1978 U.S.C.C.A.N. at 3936, discussing the congressional intent that subsection 1801(f)(4)

was intended to be “broadly inclusive, because the effect of including a particular means of surveillance is not to

prohibit it but to subject it to judicial oversight.” Thus, it was intended to include “the installation of beepers and

‘transponders,’ if a warrant would be required in the ordinary criminal context.... It could also include miniaturized

television cameras and other sophisticated devices not aimed merely at communications.” Id. See United States v.

Andonian, 735 F. Supp. 1469, 1473 (C.D. Cal. 1990), aff’d and remanded on other grounds, 29 F.3d 634 (9th Cir.

1994), cert. denied, 513 U.S. 1128 (1995).

For example, in discussing the definition of “electronic surveillance,” in H.R. 7308, the House Permanent Select

Committee on Intelligence stated,

Therefore, this bill does not afford protections to U.S. persons who are abroad, nor does it regulate

the acquisition of the contents of international communications of U.S. persons who are in the

United States, where the contents are acquired unintentionally. The committee does not believe that

this bill is the appropriate vehicle for addressing this area. The standards and procedures for

overseas surveillance may have to be different than those provided in this bill for electronic

surveillance within the United States or targeted against U.S. persons who are in the United States.

The fact that this bill does not bring the overseas surveillance and activities of the U.S. intelligence

community within its purview, however, should not be viewed as congressional authorization of

such activities as they affect the privacy interests of Americans. The committee merely recognizes

at this point that such overseas surveillance activities are not covered by this bill. In any case, the

requirements of the fourth amendment would, of course, continue to apply to this type of

communications intelligence activity.

H.REPT. 95-1283(I), at 50-51 (June 5, 1978). The House passed H.R. 7308, amended (Roll No. 737), 124 Cong. Rec.

28427 (Sept. 7, 1978). Then the House passed S. 1566, having stricken all but the enacting clause of S. 1566 and

having inserted in lieu thereof the text of S. 7308. H.R. 7308 was laid on the table, 124 Cong. Rec. 28427-28432 (Sept.

7, 1978).

The House Permanent Select Committee on Intelligence described the import of “intentionally targeting” in the

context of subsection (1) of the definition of “electronic surveillance” as follows:

Paragraph (1) protects U.S. persons who are located in the United States from being targeted in

their domestic or international communications without a court order no matter where the

surveillance is being carried out. The paragraph covers the acquisition of the contents of a wire or

radio communication of a U.S. person by intentionally targeting that particular, known U.S. person,

provided that the person is located within the United States. Thus, for example, any watchlisting

activities of the National Security Agency conducted in the future, directed against the international

communications of particular U.S. persons who are in the United States, would require a court

order under this provision.

Only acquisition of the contents of those wire or radio communications made with a reasonable

expectation of privacy where a warrant would be required for law enforcement purposes is covered

by paragraph (1). It is the committee’s intent that acquisition of the contents of a wire

communication, without the consent of any party thereto, would clearly be included.

The term “intentionally targeting” a particular, known U.S. person who is in the United States

includes the deliberate use of a surveillance device to monitor a specific channel of communication

which would not be surveilled but for the purpose of acquiring information about a party who is a

particular, named U.S. person located within the United States. It also includes the deliberate use of

surveillance techniques which can monitor numerous channels of communication among numerous

(continued...)

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international wire81 communications to or from any person (whether or not a U.S. person) within

the United States without the consent of at least one party is covered under § 1801(f)(2), where

the communications are acquired within the United States. The interception of a radio

communication is covered under § 1801(f)(3) if all parties to it are located within the United

States, unless there is no reasonable expectation of privacy and a warrant would not be required

under Title III, even if the interception is acquired by using a device located outside of the United

States. The interception of wire, oral, or electronic communications that is not included within the

definition of “electronic surveillance” for the purposes of FISA may nevertheless be prohibited by

or subject to a warrant requirement pursuant to 18 U.S.C. § 2511 (Title III).

In discussing the repeal in the conforming amendments to FISA of the “national security

disclaimer” in former 18 U.S.C. § 2511(3), and the addition of 18 U.S.C. § 2511(f) in the

conforming amendments in S. 1566, the Senate Judiciary Committee observed:

Specifically, this provision is designed to make clear that the legislation does not deal with

international signals intelligence activities as currently engaged in by the National Security

Agency82 and electronic surveillance conducted outside the United States. As to methods of

(...continued)

parties, where the techniques are designed to select out from among those communications the

communications to which a particular U.S. person located in the United States is a party, and where

the communications are selected either by name or by other information which would identify the

particular person and would select out his communications.

This paragraph does not apply to the acquisition of the contents of international or foreign

communications, where the contents are not acquired by intentionally targeting a particular known

U.S. person who is in the United States. . . .

H. REP. NO. 95-1283(I), at 50-51 (June 8, 1978) (emphasis in original).

“Wire communication” means “any communication while it is being carried by a wire, cable, or other like connection

furnished or operated by any person engaged as a common carrier in providing or operating such facilities for the

transmission of interstate or foreign communications.” 50 U.S.C. § 1801(l).

The legislative history of FISA reflects serious concerns about the past NSA abuses reflected in the Church

Committee reports. See, e.g., SUPPLEMENTARY DETAILED STAFF REPORTS ON INTELLIGENCE ACTIVITIES AND THE RIGHTS

OF AMERICANS, BOOK III, FINAL REPORT OF THE SELECT COMMITTEE TO STUDY GOVERNMENTAL OPERATIONS WITH

RESPECT TO INTELLIGENCE ACTIVITIES, UNITED STATES SENATE, S. REP. NO. 94-755, 94 Cong., 2d Sess., at 733-86

(1976), cited in S. REP. NO. 95-604(I) at 34 n. 39, 1978 U.S.C.C.A.N. at 3936. Some actions had been taken to address

some of these concerns by the President and the Attorney General near the time that FISA was being considered. The

decision not to cover NSA activities “as they were then being conducted” in FISA may, in part, have been an

acknowledgment of constraints that had been imposed upon some of these practices in E.O. 11905 (Feb. 18, 1976),

cited in S. REP. NO. 95-604(I) at 34 n. 40, 1978 U.S.C.C.A.N. at 3936; and in the “substantial safeguards [then]

currently embodied in classified Attorney General procedures, ” H. REP. NO. 95-1283 at 21. In addition, S. 2525 (95th

Cong.) was then pending, which, had it passed, would have addressed those areas excluded from FISA in separate

legislation. The House Permanent Select Committee also noted the value of congressional oversight in adding an

additional safeguard. Nevertheless, the Committee deemed these protections insufficient without the statutory structure

in FISA:

In the past several years, abuses of domestic national security surveillances have been disclosed.

This evidence alone should demonstrate the inappropriateness of relying solely on executive branch

discretion to safeguard civil liberties. This committee is well aware of the substantial safeguards

respecting foreign intelligence electronic surveillance currently embodied in classified Attorney

General procedures, but this committee is also aware that over the past thirty years there have been

significant changes in internal executive branch procedures, ant there is ample precedent for later

administrations or even the same administration loosening previous standards. Even the creation of

intelligence oversight committee should not be considered a sufficient safeguard, for in overseeing

classified procedures the committees respect their classification, and the result is that the standards

for and limitations on foreign intelligence surveillances may be hidden from public view. In such a

situation, the rest of the Congress and the American people need to be assured that the oversight is

(continued...)

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acquisition which come within the definition of ‘electronic surveillance’ in this bill, the

Congress has declared that this statute, not any claimed presidential power, controls.83

At the same time, the Committee signaled its intent to reserve its option to regulate U.S.

electronic surveillance operations that did not fall within the ambit of FISA:

The activities of the National Security Agency pose particularly difficult conceptual and

technical problems which are not dealt with in this legislation. Although many on the

committee are of the opinion that it is desirable to enact legislative safeguards for such

activity, the committee adopts the view expressed by the attorney general during the hearings

that enacting statutory controls to regulate the National Security Agency and the surveillance

of Americans abroad raises problems best left to separate legislation. This language insures

that certain electronic surveillance activities targeted against international communications

for foreign intelligence purposes will not be prohibited absolutely during the interim period

when these activities are not regulated by chapter 120 and charters for intelligence agencies

and legislation regulating international electronic surveillance have not yet been developed.84

FISA Exceptions to Requirement for Court Order

Three current provisions of FISA provide for some measure of electronic surveillance without a

court order to gather foreign intelligence information in specified circumstances, 50 U.S.C. §§

1802 (electronic surveillance of certain foreign powers without a court order upon Attorney

General certification);85 1805(f) (emergency authorization of electronic surveillance for up to 72

(...continued)

having its intended consequences–the safeguarding of civil liberties consistent with the needs of

national security. While oversight can be, and the committee intends it to be, an important adjunct

to control of intelligence activities, it cannot substitute for public laws, publicly debated and

adopted, which specify under what circumstances and under what restrictions electronic

surveillance for foreign intelligence purposes can be conducted.

Finally, the decision as to the standards governing when and how foreign intelligence electronic

surveillance should be conducted is and should be a political decision, in the best sense of the term,

because it involves the weighing of important public policy concerns–civil liberties and national

security. Such a political decision is one properly made by the political branches of Government

together, not adopted by one branch on its own and with no regard for the other. Under our

Constitution legislation is the embodiment of just such political decisions.

H. REP. NO. 95-1283, at 21-22.

S. REP. NO. 95-604(I) at 62-65, 1978 U.S.C.C.A.N. at 3964-66. See also S. REP. NO. 95-701 at 71-72, 1978

U.S.C.C.A.N. at 4040-41.

Id.

50 U.S.C. § 1802 provides:

(a) (1) Notwithstanding any other law, the President, through the Attorney General, may authorize

electronic surveillance without a court order under this subchapter to acquire foreign intelligence

information for periods of up to one year if the Attorney General certifies in writing under oath

that—

(A) the electronic surveillance is solely directed at—

(i) the acquisition of the contents of communications transmitted by means of

communications used exclusively between or among foreign powers, as defined in

section 1801(a)(1), (2), or (3) of this title; or

(ii) the acquisition of technical intelligence, other than the spoken communications

of individuals, from property or premises under the open and exclusive control of a

foreign power, as defined in section 1801(a)(1), (2), or (3) of this title;

(continued...)

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hours, while an order approving such surveillance is sought from a judge of the Foreign

Intelligence Surveillance Court (FISC));86 and 1811 (electronic surveillance without a court order

for 15 days following a declaration of war by the Congress).

(...continued)

(B) there is no substantial likelihood that the surveillance will acquire the contents of any

communication to which a United States person is a party; and

definition of minimization procedures under section 1801(h) of this title; and

if the Attorney General reports such minimization procedures and any changes thereto to the

House Permanent Select Committee on Intelligence and the Senate Select Committee on

Intelligence at least thirty days prior to their effective date, unless the Attorney General

determines immediate action is required and notifies the committees immediately of such

minimization procedures and the reason for their becoming effective immediately.

(2) An electronic surveillance authorized by this subsection may be conducted only in

accordance with the Attorney General’s certification and the minimization procedures adopted

by him. The Attorney General shall assess compliance with such procedures and shall report

such assessments to the House Permanent Select Committee on Intelligence and the Senate

Select Committee on Intelligence under the provisions of section 1808(a) of this title.

(3) The Attorney General shall immediately transmit under seal to the court established under

section 1803(a) of this title a copy of his certification. Such certification shall be maintained

under security measures established by the Chief Justice with the concurrence of the Attorney

General, in consultation with the Director of National Intelligence, and shall remain sealed

unless—

(A) an application for a court order with respect to the surveillance is made under

sections 1801(h)(4) and 1804 of this title; or

(B) the certification is necessary to determine the legality of the surveillance under

section 1806(f) of this title.

(4) With respect to electronic surveillance authorized by this subsection, the Attorney General

may direct a specified communication common carrier to—

(A) furnish all information, facilities, or technical assistance necessary to accomplish the

electronic surveillance in such a manner as will protect its secrecy and produce a

minimum of interference with the services that such carrier is providing its customers;

and

(B) maintain under security procedures approved by the Attorney General and the

Director of National Intelligence any records concerning the surveillance or the aid

furnished which such carrier wishes to retain.

The Government shall compensate, at the prevailing rate, such carrier for furnishing such aid.

(b) Applications for a court order under this subchapter are authorized if the President has, by

written authorization, empowered the Attorney General to approve applications to the court having

jurisdiction under section 1803 of this title, and a judge to whom an application is made may,

notwithstanding any other law, grant an order, in conformity with section 1805 of this title,

approving electronic surveillance of a foreign power or an agent of a foreign power for the purpose

of obtaining foreign intelligence information, except that the court shall not have jurisdiction to

grant any order approving electronic surveillance directed solely as described in paragraph (1)(A)

of subsection (a) of this section unless such surveillance may involve the acquisition of

communications of any United States person.

The emergency authorization provision in 50 U.S.C. § 1805(f) states:

(f) Emergency orders

Notwithstanding any other provision of this subchapter, when the Attorney General reasonably

determines that—

(1) an emergency situation exists with respect to the employment of electronic surveillance to

obtain foreign intelligence information before an order authorizing such surveillance can with

due diligence be obtained; and

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In particular, 50 U.S.C. § 1802 permits the Attorney General to order electronic surveillance

without a court order for up to one year to acquire foreign intelligence information for periods of

up to one year if the Attorney General certifies in writing under oath that the electronic

surveillance is solely directed at means of communications used exclusively between or among

foreign powers or on property or premises under the open and exclusive control of a foreign

power (the definition here does not include international terrorist organizations)87However, for

the purpose of § 1802, only subsections 1801(a)(1) through (3) are included. where “there is no

substantial likelihood that the surveillance will acquire the contents of any communication to

which a United States person is a party;” and minimization procedures are put in place.88 The

Attorney General is also required to report minimization procedures to the House Permanent

Select Committee on Intelligence and the Senate Select Committee on Intelligence 30 days in

advance. The 30-day requirement can be waived if the Attorney General determines immediate

action is required, in which case he is to notify the committees immediately of the minimization

procedures and the reason for the urgency. The FISA court is to receive a copy of the

certifications under seal.

(...continued)

(2) the factual basis for issuance of an order under this subchapter to approve such

surveillance exists;

he may authorize the emergency employment of electronic surveillance if a judge having

jurisdiction under section 1803 of this title is informed by the Attorney General or his designee at

the time of such authorization that the decision has been made to employ emergency electronic

surveillance and if an application in accordance with this subchapter is made to that judge as soon

as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance.

If the Attorney General authorizes such emergency employment of electronic surveillance, he shall

require that the minimization procedures required by this subchapter for the issuance of a judicial

order be followed. In the absence of a judicial order approving such electronic surveillance, the

surveillance shall terminate when the information sought is obtained, when the application for the

order is denied, or after the expiration of 72 hours from the time of authorization by the Attorney

General, whichever is earliest. In the event that such application for approval is denied, or in any

other case where the electronic surveillance is terminated and no order is issued approving the

surveillance, no information obtained or evidence derived from such surveillance shall be received

in evidence or otherwise disclosed in any trial, hearing, or other proceeding in or before any court,

grand jury, department, office, agency, regulatory body, legislative committee, or other authority of

the United States, a State, or political subdivision thereof, and no information concerning any

United States person acquired from such surveillance shall subsequently be used or disclosed in any

other manner by Federal officers or employees without the consent of such person, except with the

approval of the Attorney General if the information indicates a threat of death or serious bodily

harm to any person. A denial of the application made under this subsection may be reviewed as

provided in section 1803 of this title.

“Foreign power” for purposes of electronic surveillance under FISA is defined in 50 U.S.C. § 1801(a)(1) through (6)

as:

(1) a foreign government or any component thereof, whether or not recognized by the United

States;

(2) a faction of a foreign nation or nations, not substantially composed of United States persons;

(3) an entity that is openly acknowledged by a foreign government or governments to be directed

and controlled by such foreign government or governments;

(4) a group engaged in international terrorism or activities in preparation therefor;

(5) a foreign-based political organization, not substantially composed of United States persons; or

(6) an entity that is directed and controlled by a foreign government or governments.

“Minimization procedures” are specific procedures implemented with respect to a particular surveillance in order to

minimize the acquisition and retention, and prohibit the dissemination, of information concerning unconsenting U.S.

persons required to be protected. See 50 U.S.C. § 1801(h).

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The emergency authorization provision in 50 U.S.C. § 1805(f) authorizes the Attorney General to

issue emergency orders to permit electronic surveillance prior to obtaining a court order if the

Attorney General determines that emergency conditions make it impossible to obtain an order

with due diligence before the surveillance is begun. The Attorney General or his designee must

immediately inform a FISA judge and submit a proper application to that judge as soon as

practicable, but not more than 72 hours89 after the Attorney General authorizes such surveillance.

Minimization procedures must be followed. In the absence of a judicial order, the surveillance

must terminate when the information sought is obtained, when the application for the order is

denied, or after the expiration of 72 hours from the time the surveillance was authorized. No

information obtained or evidence derived from such surveillance may be used as evidence or

otherwise disclosed in any trial, hearing, or other government proceeding, and no information

concerning any U.S. person may be disclosed at all without that person’s consent except with the

Attorney General’s approval where the information indicates a threat of disaster or serious bodily

harm to any person.

Where Congress has passed a declaration of war, 50 U.S.C. § 1811 authorizes the Attorney

General to conduct electronic surveillance without a court order for fifteen calendar days

following a declaration of war by Congress. This provision does not appear to apply to the

AUMF, as that does not constitute a congressional declaration of war.90 Indeed, even if the

authorization were regarded as a declaration of war, the authority to conduct warrantless

electronic surveillance under 50 U.S.C. § 1811 would only extend to a maximum of 15 days

following its passage.91

The Administration’s Position

The Administration’s position, as set forth in the Office of Legislative Affairs letter to the leaders

of the House and Senate intelligence Committees, is that the President has the constitutional

authority to direct the NSA to conduct the activities he described, and that this inherent authority

is supplemented by statutory authority under the AUMF.92 The Administration interprets the

AUMF, based on its reading of the Supreme Court opinion in Hamdi,93 as authorizing the

President to conduct anywhere in the world, including within the United States, any activity that

can be characterized as a fundamental incident of waging war. It includes communications

intelligence among the fundamental incidents of waging war. The following sections analyze the

extent to which the President’s authority to conduct warrantless electronic surveillance is

Section 314(a)(2)(B) of P.L. 107-108, the Intelligence Authorization Act for FY2002, 115 Stat. 1402 (Dec. 28,

2001), H.Rept. 107-328, replaced 24 hours with 72 hours in each place that it appears in 50 U.S.C. § 1805(f).

For a discussion of declarations of war and authorizations for the use of military force, see CRS Report for Congress

CRS Report RL31133, Declarations of War and Authorizations for the Use of Military Force: Historical Background

and Legal Implications, by (name redacted) and (name redacted).

This provision originated in the House version of the bill, which would have allowed the President to authorize

electronic surveillance for periods up to a year during time of war declared by Congress. The conference substituted a

compromise provision authorizing electronic surveillance without a court order to acquire foreign intelligence

information for 15 days following a declaration of war. H.R. CONF. REP. NO. 95-1720, at 34 (1978). The 15-day period

was intended to “allow time for consideration of any amendment to [FISA] that may be appropriate during a wartime

emergency.” Id. The conferees also expressed their intent that “all other provisions of this act not pertaining to the court

order requirement shall remain in effect during this period.” Id.

OLA Letter, supra note 10, at 2.

Hamdi v. Rumsfeld, 542 U.S. 507 (2004).

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inherent, whether the AUMF authorizes the operations,94 and whether the NSA operations are

consistent with FISA and Title III.95

The President’s Inherent Authority to Conduct Intelligence

Surveillance

The statutory language in FISA and the legislative history of the bill that became FISA, S. 1566

(95th Cong.), reflect the Congress’s stated intention to circumscribe any claim of inherent

presidential authority to conduct electronic surveillance, as defined by the Act, to collect foreign

intelligence information, so that FISA would be the exclusive mechanism for the conduct of such

electronic surveillance. Thus, in the conforming amendments section of the legislation, the

previous language explicitly recognizing the President’s inherent authority was deleted from 18

U.S.C. § 2511(3), and the language of 18 U.S.C. § 2511(f) was added to Title III of the Omnibus

Crime Control and Safe Streets Act of 1968, as amended, which states, in part, that “procedures in

this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the

exclusive means by which electronic surveillance, as defined in section 101 of that Act, and the

interception of domestic wire, oral, and electronic communications may be conducted.”96 The

House amendments to the bill provided that the procedures in the bill and in 18 U.S.C., Chapter

119 (Title III), were to be the exclusive “statutory” means by which electronic surveillance as

defined in the bill and the interception of domestic wire and oral communications may be

conducted, while the Senate bill did not include the word “statutory.” The House Conference

Report, in accepting the Senate approach, stated, in part, that

The conferees agree that the establishment by this act of exclusive means by which the

President may conduct electronic surveillance does not foreclose a different decision by the

Supreme Court. The intent of the conferees is to apply the standard set forth in Justice

Jackson’s concurring opinion in the Steel Seizure case: “When a President takes measures

incompatible with the express or implied will of Congress, his power is at the lowest ebb, for

then he can rely only upon his own constitutional power minus any constitutional power of

Congress over the matter.” Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 637

(1952).97

In this language, the conferees acknowledge that the U.S. Supreme Court, as the final arbiter of

constitutional power, might reach a different conclusion. The Court has yet to rule on the matter.98

See OLA Letter, supra note 10, at 3 (“Because communications intelligence activities constitute, to use the language

of Hamdi, a fundamental incident of waging war, the AUMF clearly and unmistakably authorizes such activities

directed against the communications of our enemy.”).

We do not address the Administration’s argument that the NSA electronic surveillance at issue is compatible with the

Fourth Amendment. For analysis pertinent to that issue, see supra section on the Background of Government

Surveillance.

For further discussion of the pertinent provisions of Title III, see the discussion at notes 54 et seq. and accompanying

text.

H. CONF. REP. NO. 95-1720, at 35, 1978 U.S.C.C.A.N. at 4064 (Oct. 5, 1978); see also S. REP. NO. 95-604(I) at 6265, 1978 U.S.C.C.A.N. at 3964-66; S. REP. NO. 95-701 at 71-72, 1978 U.S.C.C.A.N. at 4040-41.

However, some lower court decisions provide significant support for the argument that the exclusivity provision

circumscribes the President’s use of inherent authority to engage in electronic surveillance to collect foreign

intelligence information outside the FISA structure. See, e.g., United States v. Andonian, 735 F. Supp. 1469 (C.D. Cal.

1990), aff’d and remanded on other grounds, 29 F.3d 634 (9th Cir. 1994), cert. denied, 513 U.S. 1128 (1995). The

Andonian court found that the exclusivity language in FISA

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The passage of FISA and the inclusion of such exclusivity language reflects Congress’s view of

its authority to cabin the President’s use of any inherent constitutional authority with respect to

warrantless electronic surveillance to gather foreign intelligence. The Senate Judiciary Committee

articulated its view with respect to congressional power to tailor the President’s use of an inherent

constitutional power:

The basis for this legislation is the understanding—concurred in by the Attorney General—

that even if the President has an “inherent” constitutional power to authorize warrantless

surveillance for foreign intelligence purposes, Congress has the power to regulate the

exercise of this authority by legislating a reasonable warrant procedure governing foreign

intelligence surveillance.99

(...continued)

reveals that Congress intended to sew up the perceived loopholes through which the President had

been able to avoid the warrant requirement. The exclusivity clause makes it impossible for the

President to ‘opt-out’ of the legislative scheme by retreating to his ‘inherent’ Executive sovereignty

over foreign affairs. At the time of the drafting of FISA, such a retreat would have meant

completely unfettered use of electronic surveillance in the foreign affairs arena, as the Supreme

Court had twice declined to hold such Executive action captive to the warrant requirement [citing

Keith, 407 U.S. 297, Katz, 389 U.S. at 358, n. 23, and S. REP. NO. 95-604[(I)] at 12-14, 1978

U.S.C.C.A.N. at 3913-16].... The exclusivity clause in 18 U.S.C. section 2511(2)(f) assures that the

President cannot avoid Congress’ limitations by resort to ‘inherent’ powers as had President

Truman at the time of the ‘Steel Seizure Case.’ Youngstown Sheet and Tube v. Sawyer, 343 U.S.

579 (1952).... The difficulty in the case was due to Congressional silence.... When the President

acts in absence of either a congressional grant or denial of authority, he can only rely upon his own

independent powers, but there is a zone of twilight in which he and Congress may have concurrent

authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or

acquiescence may sometimes, at least as a practical matter, enable, if not invite, measures on

independent presidential responsibility. In this area, any actual test of power is likely to depend on

the imperatives and events and contemporary imponderables rather than on abstract theories of

law.... To foreclose the arguments which piqued the Court in Youngstown, Congress denied the

President his inherent powers outright. Tethering executive reign, Congress deemed that the

provisions for gathering intelligence in FISA and Title III were ‘exclusive.’

Id. at 1474-76. Cf., United States v. Falvey, 540 F. Supp. 1306 (E.D.N.Y. 1982). The court stated that

FISA is the fifth legislative attempt since the Watergate era to bridle the Executive’s ‘inherent’

power. Congress believes that FISA has provided a ‘secure framework by which the Executive

Branch may conduct legitimate electronic surveillance for foreign intelligence purposes within the

context of this Nation’s commitment to privacy and individual rights.’ ... The Act received broad

support in Congress and from the then Attorney General Griffin Bell and President Carter.... When,

therefore, the President has, as his primary purpose, the accumulation of foreign intelligence

information, his exercise of Article II power to conduct foreign affairs is not constitutionally

hamstrung by the need to obtain prior judicial approval before engaging in wiretapping. While the

executive power to conduct foreign affairs exempts the President from the warrant requirement

when foreign surveillance is conducted, the President is not entirely free of the constraints of the

Fourth Amendment. The search and seizure resulting from the surveillance must still be reasonable.

With the enactment of FISA, ... Congress has fashioned a statute for foreign surveillance that fully

comports with the Fourth Amendment.

Id. at 1311-12. See United States v. Bin Laden, 126 F. Supp. 2d 264 (S.D.N.Y. 2000). The court noted that

All of the circuit cases finding a foreign intelligence exception [to the warrant requirement] arose

before the enactment of FISA (which sets forth procedures for foreign intelligence collection, see

50 U.S.C. § 1801 et seq.) and are probably now governed by that legislation. FISA only governs

foreign intelligence searches conducted within the United States. See 50 U.S.C. §§ 1801(f)(1-4),

1803(a), 1821(5), 1822(c).

Id. at 272 n. 8.

S. REP. NO. 95-604(I), at 16, 1978 U.S.C.C.A.N. at 3917. See also Attorney General Bell’s testimony with respect to

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On the other hand, the Administration asserts constitutional authority under Article II of the

Constitution, including his Commander-in-Chief authority, to order warrantless foreign

intelligence surveillance within the United States:

This constitutional authority to order warrantless foreign intelligence surveillance within the

United States, as all federal appellate courts, including at least four circuits, to have

addressed the issue have concluded. See, e.g., In re Sealed Case, 310 F.3d 717, 742 (FISA

Ct. of Review 2002) (“[A]ll the other courts to have decided the issue [have] held that the

President did have inherent authority to conduct warrantless searches to obtain foreign

intelligence information.... We take for granted that the President does have that authority....

”).100

The U.S. Foreign Intelligence Surveillance Court of Review (Court of Review) was created by

FISA, 50 U.S.C. § 1803, and has appellate review over denials of FISA applications by the

Foreign Intelligence Surveillance Court which was also established under that section. Denials of

such applications by the Court of Review may be appealed to the U.S. Supreme Court. The Court

of Review has decided only one published case, which is cited by the Administration above. The

case was not appealed to the U.S. Supreme Court. As the Court of Review is a court of appeals

and is the highest court with express authority over FISA to address the issue, its reference to

inherent constitutional authority for the President to conduct warrantless foreign intelligence

surveillance might be interpreted to carry considerable weight.

The Court of Review, in its opinion, make two references which appear pertinent to the

Administration’s position. The first statement, which is cited by the Administration, was made by

the Court of Review, in In re Sealed Case,101 in its discussion of the constitutionality of FISA and

its exploration of the underlying rationale of the “primary purpose” test as articulated in United

States v. Truong Dinh Hung,102 (which dealt with a pre-FISA surveillance). The Court of Review,

in this portion of its constitutional analysis, was considering whether the primary purpose of a

FISA electronic surveillance must be to gather foreign intelligence information in order for it to

pass constitutional muster. Truong saw such a standard as a constitutional minimum. In assessing

and rejecting the Truong approach, the Court of Review stated:

It will be recalled that the case that set forth the primary purpose test as constitutionally

required was Truong. The Fourth Circuit thought that Keith’s balancing standard implied the

adoption of the primary purpose test. We reiterate that Truong dealt with a pre-FISA

(...continued)

the Administration’s position, id. at 4, 1978 U.S.C.C.A.N. at 3905-06; S. REP. NO. 95-701, at 6-7, 1978 U.S.C.C.A.N.

at 3975. The need to comply with FISA for the collection of foreign intelligence information through electronic

surveillance is reiterated in E.O. 12333 (“United States Intelligence Activities” (December 4, 1981), as amended),

Section 2.5, dealing with Attorney General approval required for certain collection techniques:

2.5 Attorney General Approval. The Attorney General hereby is delegated the power to approve the

use for intelligence purposes, within the United States or against a United States person abroad, of

any technique for which a warrant would be required if undertaken for law enforcement purposes,

provided that such techniques shall not be undertaken unless the Attorney General has determined

in each case that there is probable cause to believe that the technique is directed against a foreign

power or an agent of a foreign power. Electronic surveillance, as defined in the Foreign Intelligence

Surveillance Act of 1978, shall be conducted in accordance with that Act, as well as this Order.

100

OLA Letter, supra note 10, at 2.

101

310 F.3d 717 (U.S. Foreign Intell. Surveillance Ct. Rev. 2002).

102

629 F.2d 908 (4th Cir. 1980).

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surveillance based on the President’s constitutional responsibility to conduct the foreign

affairs of the United States. 629 F.2d at 914. Although Truong suggested the line it drew was

a constitutional minimum that would apply to a FISA surveillance, see id. at 914 n. 4, it had

no occasion to consider the application of the statute carefully. The Truong court, as did all

the other courts to have decided the issue, held that the President did have inherent authority

to conduct warrantless searches to obtain foreign intelligence information. It was incumbent

upon the court, therefore, to determine the boundaries of that constitutional authority in the

case before it. We take for granted that the President does have that authority, and, assuming

that is so, FISA could not encroach on the President’s constitutional power. The question

before us is the reverse, does FISA amplify the President’s power by providing a mechanism

that at least approaches a classic warrant and which therefore supports the government’s

contention that FISA searches are constitutionally reasonable.103

While the Court of Review does not cite to the cases to which it is referring, its allusion to the

holdings of “all the other courts to have considered the issue,” appears to have been to cases

which pre-date FISA’s passage or which address pre-FISA surveillances.104 Such cases dealt with

a presidential assertion of inherent authority in the absence of congressional action to

circumscribe that authority. Where the Congress has exercised its constitutional authority in the

areas of foreign affairs and thereby has withdrawn electronic surveillance, as defined by FISA,

from the “zone of twilight,” between Executive and Legislative constitutional authorities, it might

be argued that the President’s asserted inherent authority to engage in warrantless electronic

surveillance was thereby limited. In the wake of FISA’s passage, the Court of Review’s reliance

on these pre-FISA cases or cases dealing with pre-FISA surveillances as a basis for its assumption

103

310 F.3d at 742 (emphasis added).

Id. at 742, n. 26; cf., United States v. Duggan, 743 F.2d 59, 71 (2d Cir. 1984) (“Prior to the enactment of FISA,

virtually every court that had addressed the issue had concluded that the President had the inherent power to conduct

warrantless electronic surveillance to collect foreign intelligence information, and that such surveillances constituted an

exception to the warrant requirement of the Fourth Amendment. See United States v. Truong Dinh Hung, 629 F.2d 908,

912-14 (4th Cir.1980), cert. denied,454 U.S. 1144 (1982); United States v. Buck, 548 F.2d 871, 875 (9th Cir.), cert.

denied, 434 U.S. 890 (1977); United States v. Butenko, 494 F.2d 593, 605 (3d Cir.) (en banc), cert. denied,419 U.S. 88

(1974); United States v. Brown, 484 F.2d 418, 426 (5th Cir. 1973), cert. denied, 415 U.S. 960 (1974). But see Zweibon

v. Mitchell, 516 F.2d 594, 633-51 (D.C. Cir. 1975) (dictum), cert. denied, 425 U.S. 944 (1976). The Supreme Court

specifically declined to address this issue in United States v. United States District Court, 407 U.S. 297, 308, 321-22

(1972) (hereinafter referred to as “Keith”), but it had made clear that the requirements of the Fourth Amendment may

change when differing governmental interests are at stake, see Camara v. Municipal Court, 387 U.S. 523 (1967), and it

observed in Keith that the governmental interests presented in national security investigations differ substantially from

those presented in traditional criminal investigations. 407 U.S. at 321-24, 92 S.Ct. at 2138-40.”); Truong Dinh Hung,

629 F.2d at 914 (“Perhaps most crucially, the executive branch not only has superior expertise in the area of foreign

intelligence, it is also constitutionally designated as the pre-eminent authority in foreign affairs. See First National Bank

v. Banco Nacional de Cuba, 406 U.S. 759, 765-68, 92 S.Ct. 1808, 1812-1814, 32 L.Ed.2d 466 (1972); Oetjen v. Central

Leather Co., 246 U.S. 297, 302, 38 S.Ct. 309, 310, 62 L.Ed. 726 (1918). 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. See United States

v. Curtiss-Wright Corp., 299 U.S. 304, 57 S.Ct. 216, 81 L.Ed. 255 (1936). Just as the separation of powers in Keith

forced the executive to recognize a judicial role when the President conducts domestic security surveillance, 407 U.S.

at 316-18, 92 S.Ct. at 2136-2137, so the separation of powers requires us to acknowledge the principal responsibility of

the President for foreign affairs and concomitantly for foreign intelligence surveillance. In sum, because of the need of

the executive branch for flexibility, its practical experience, and its constitutional competence, the courts should not

require the executive to secure a warrant each time it conducts foreign intelligence surveillance. Accord, United States

v. Butenko, 494 F.2d 593 (3 Cir.), cert. denied sub nom. Ivanov v. United States, 419 U.S. 881, 95 S.Ct. 147, 42

L.Ed.2d 121 (1974); United States v. Brown, 484 F.2d 418 (5 Cir. 1973), cert. denied, 415 U.S. 960, 94 S.Ct. 1490, 39

L.Ed.2d 575 (1974); United States v. Clay, 430 F.2d 165 (5 Cir. 1970), rev’d on other grounds, 403 U.S. 698, 91 S.Ct.

2068, 29 L.Ed.2d 810 (1971). Contra, Zweibon v. Mitchell, 516 F.2d 594 (D.C.Cir.1975) (dictum in plurality opinion

in case involving surveillance of domestic organization having an effect on foreign relations but acting neither as the

agent of nor in collaboration with a foreign power).”).

104

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of the continued vitality of the President’s inherent constitutional authority to authorize

warrantless electronic surveillance for the purpose of gathering foreign intelligence information

might be viewed as somewhat undercutting the persuasive force of the Court of Review’s

statement.

The second reference to the “President’s inherent constitutional authority” in In re Sealed Case is

in the conclusion to the opinion. Here the Court of Review makes an oblique reference to the

President’s inherent authority:

Even without taking into account the President’s inherent constitutional authority to conduct

warrantless foreign intelligence surveillance, we think the procedures and government

showings required under FISA, if they do not meet the minimum Fourth Amendment warrant

standards, certainly come close. We, therefore, believe firmly, applying the balancing test

drawn from Keith, that FISA as amended is constitutional because the surveillances it

authorizes are reasonable.105

The latter statement was made in support of the Court of Review’s conclusion that the procedures

for electronic surveillance to gather foreign intelligence information under FISA, as amended by

the USA PATRIOT Act, P.L. 107-56, were constitutionally sufficient under Fourth Amendment

standards, whether the court orders under FISA were viewed as warrants for Fourth Amendment

purposes or not. While not an explicit recognition of presidential inherent constitutional authority,

it might be argued that, when viewed in light of the earlier statement, some level of recognition of

that authority might also be inferred from this reference.

Both statements were made in a case in which the Court of Review upheld the constitutionality of

FISA, an act which, in express legislative language in its conforming amendments to Title III and

in its legislative history, was clearly intended to cabin any inherent presidential authority over

electronic surveillance within its sweep, and to provide an exclusive structure for the conduct of

such electronic surveillance. It might be argued that the adoption of one of two possible

interpretations of the statement would avoid internal inconsistency within the court’s decision.

One approach would be to interpret these statements by the Court of Review as referring to the

President’s inherent authority to conduct such surveillances outside the scope of “electronic

surveillance” under FISA. In essence, the court’s statements would then be seen as a reference to

presidential authority over those areas of NSA activities which were intentionally excluded from

FISA when it was enacted. Alternatively, it might be argued that the court’s statements may refer

to continuing exercise of inherent presidential authority within the FISA structure, which the

Court of Review found to be constitutional.

In light of the exclusivity language in Title III, 18 U.S.C. § 2511(2)(f) and the legislative history

of FISA, it might be argued that electronic surveillance pursuant to FISA is subject to the

statutory framework, and does not rely upon an assertion of Presidential inherent authority to

support it. Alternatively, it might be contended that, in enacting FISA, the Congress

circumscribed the manner in which the President might exercise his inherent constitutional

authority with respect to foreign intelligence electronic surveillance, rather than eliminating the

President’s authority.

As this discussion suggests, while the congressional intent to cabin the President’s exercise of any

inherent constitutional authority to engage in foreign intelligence electronic surveillance may be

105

310 F.3d at 746.

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clear from the exclusivity provision in FISA and from the legislative history of the measure, some

support may be drawn from the Court of Review’s decision in In re Sealed Case for the position

that the President continues to have the power to authorize warrantless electronic surveillance to

gather foreign intelligence outside the FISA framework. Whether such authority may exist only as

to those areas which were not addressed by FISA in its definition of “electronic surveillance” or is

of broader sweep appears to be a matter with respect to which there are differing views.

The Authorization to Use Military Force

In the aftermath of the September 11, 2001, attacks, Congress passed a joint resolution

authorizing the President to

use all necessary and appropriate force against those nations, organizations, or persons he

determines planned, authorized, committed, or aided the terrorist attacks 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.106

Pursuant to that authority, the President ordered U.S. armed forces to invade Afghanistan for the

purpose of rooting out Al Qaeda terrorists and toppling the Taliban government that had provided

them safe harbor.

The Administration regards the AUMF as providing the authority to conduct electronic

surveillance of the type reported in the press. 107 This conclusion, it argues, is supported by the

2004 Supreme Court decision in Hamdi v. Rumsfeld,108 in which the Supreme Court issued its

most thorough interpretation of the AUMF to date.109 In Hamdi, a plurality of the Court affirmed

the President’s power to detain a U.S. citizen as an “enemy combatant” as part of the necessary

force authorized by Congress in the AUMF, despite an earlier statute which provides that no U.S.

citizen may be detained except pursuant to an act of Congress. 110 However, the Court appears to

have relied on a more limited interpretation of the scope of the AUMF than that which the

Administration had asserted in its briefs, and, declaring that a “state of war is not a blank check

for the President when it comes to the rights of the Nation’s citizens,”111 the Court clarified that

notwithstanding the authorization, such detainees have some due process rights under the U.S.

Constitution.112

106

Authorization for Use of Military Force (“the AUMF”), P.L. 107-40, 115 Stat. 224 (2001). For a discussion of the

scant legislative history accompanying the AUMF, see CRS Report RS22357, Authorization for Use of Military Force

in Response to the 9/11 Attacks (P.L. 107-40): Legislative History, by (name redacted).

107

See OLA Letter, supra note 10.

108

542 U.S. 507 (2004).

109

See CRS Report RS21884, The Supreme Court 2003 Term: Summary and Analysis of Opinions Related to Detainees

in the War on Terrorism, by (name redacted).

110

18 U.S.C. § 4001(a). For more background and analysis of that statute, see CRS Report RL31724, Detention of

American Citizens as Enemy Combatants, by (name redacted); CRS Report RS22130, Detention of U.S. Citizens, by

(name redacted).

111

Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004).

112

Id. at 517 (2004).

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The Administration’s position would seem to rely on at least two assumptions. First, it appears to

require that the power to conduct electronic surveillance for intelligence purposes is an essential

aspect of the use of military force in the same way that the capture of enemy combatants on the

battlefield is a necessary incident to the conduct of military operations. Second, it appears to

consider the “battlefield” in the war on terrorism to extend beyond the area of traditional military

operations to include U.S. territory. Both assumptions have been the subject of debate.

The Use of Force

The government finds support in the Hamdi decision for its assertion that the AUMF implies

authority to conduct electronic surveillance operations as a necessary incident to the use of force.

This implied authority, it is urged, provides the statutory authority required to dispense with FISA

requirements in the same way the Hamdi court found the requirement in the Non-Detention Act

(18 U.S.C. § 4001(a)), which prohibits the detention of U.S. citizens except pursuant to an act of

Congress, to be satisfied by the AUMF.

There is reason, however, to limit Hamdi to actual military operations on the battlefield as that

concept is traditionally understood. Justice O’Connor wrote for the plurality that

we understand Congress’ grant of authority for the use of ‘necessary and appropriate force’

to include the authority to detain for the duration of the relevant conflict, and our

understanding is based on longstanding law-of-war principles. If the practical circumstances

of a given conflict are entirely unlike those of the conflicts that informed the development of

the law of war, that understanding may unravel.113

Hamdi may be limited to a confirmation that the authorization to employ military force against an

enemy army necessarily encompasses the authority to capture battlefield enemies, because such

captures are an essential aspect of fighting a battle. 114 International law does not permit the

intentional killing of civilians or soldiers who are hors de combat, preferring capture as the

method of neutralizing enemies on the battlefield.115 The capture of an enemy combatant is

arguably as much a use of force as killing or wounding one. Justice O’Connor wrote for the

plurality

There can be no doubt that individuals who fought against the United States in Afghanistan

as part of the Taliban, an organization known to have supported the al Qaeda terrorist

network responsible for those attacks, are individuals Congress sought to target in passing

the AUMF. We conclude that detention of individuals falling into the limited category we

are considering, for the duration of the particular conflict in which they were captured, is so

113

Hamdi at 520.

Padilla v. Hanft, another case involving an American citizen detained by the military as an “enemy combatant,”

could be read as an expansion of the detention authority to encompass persons arrested in the United States, far from

any battlefield. 423 F.3d 386 (4th Cir. 2005), petition for cert. filed, 74 USLW 3275 (Oct 25, 2005)(NO. 05-533). The

Fourth Circuit reversed a lower court’s finding that the detention was unlawful, but the appellate finding was based on

an understanding that the petitioner had taken up arms against American forces in Afghanistan prior to traveling to the

United States with the intent of carrying out acts of terrorism. Whether Hamdi would also extend to a person detained

as an enemy combatant based wholly on activity carried out within the United States has not been addressed by any

court.

115

See generally Department of the Army, FM 27-10, The Law of Land Warfare (1956).

114

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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.116

While the collection of intelligence is also an important facet of fighting a battle, it is not clear

that the collection of intelligence constitutes a use of force. The Hamdi plurality cited the Geneva

Conventions and multiple authorities on the law of war to reach its conclusion that the capture of

combatants is an essential part of warfare.117 The Administration has not pointed to any authority

similar to those cited by the Hamdi plurality to support its proposition that signals intelligence is a

fundamental aspect of combat. To be sure, there can be little doubt that Congress, in enacting the

AUMF, contemplated that the armed forces would deploy their military intelligence assets in

Afghanistan or wherever else the conventional aspect of the conflict might spread, but a

presumption that the authorization extends to less conventional aspects of the conflict could

unravel the fabric of Hamdi, especially where measures are taken within the United States. While

five Justices were willing to accept the government’s argument that the detention of enemy

combatants captured on the battlefield118 is a vital aspect of war-fighting, Justice Thomas alone

indicated his agreement with the government’s argument that wartime detention is also necessary

for intelligence purposes.119 Justice O’Connor agreed that the law of war supports detention of

enemy combatants to prevent their return to the battlefield, but agreed with the petitioner that

“indefinite detention for the purpose of interrogation is not authorized.”120

The boundaries of the authority available under this argument are difficult to discern. May any

statutory prohibition arguably touching on national security that applies “unless otherwise

authorized by statute” be set aside based on the AUMF? Presidential assertions of wartime power

have faltered for lack of express congressional approval, especially where civil liberties are

implicated. 121 A less expansive interpretation of the AUMF might dictate that “necessary and

116

Hamdi at 518. Justice Thomas agreed with this proposition, supplying the fifth vote. Id. at 587 (“Although the

President very well may have inherent authority to detain those arrayed against our troops, I agree with the plurality

that we need not decide that question because Congress has authorized the President to do so.”).

117

Hamdi at 518-19.

118

The Hamdi plurality limited its decision to “enemy combatants” as defined to mean “an individual who, it alleges,

was ‘part of or supporting forces hostile to the United States or coalition partners’ in Afghanistan and who ‘engaged in

an armed conflict against the United States’ there.” Hamdi at 516.

119

Id. at 595 (Thomas, J., dissenting) (“The Government seeks to further [its security] interest by detaining an enemy

soldier not only to prevent him from rejoining the ongoing fight. Rather, as the Government explains, detention can

serve to gather critical intelligence regarding the intentions and capabilities of our adversaries, a function that the

Government avers has become all the more important in the war on terrorism.”). Justice Scalia, with Justice Stevens,

recognized that the government’s security needs include the “need to obtain intelligence through interrogation,” but

declined to evaluate whether the need could be met within the criminal justice system, noting that such determinations

are “beyond ... the Court’s competence ... but ... not beyond Congress’s.” Id. at 577-78 (Scalia, J., dissenting).

120

Hamdi at 521. Justices Souter and Ginsberg, while accepting the government’s position that the AUMF could be

read to authorize actions consonant with the usages of war, rejected the assertion that such usages could be invoked to

justify the detention of a captive where the military’s actions are incompatible with the law of war. Id. at 549-50

(Souter, J., concurring in part and dissenting in part). Justices Scalia and Stevens would have found that a U.S. citizen

enjoys the full range of due process rights, the AUMF notwithstanding. Id. at 556 (Scalia, J., dissenting).

121

Compare Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952), Ex parte Endo, 323 U.S. 214 (1944)

(authority to detain U.S. citizen during war not authorized by implication), Ex parte Milligan, 71 U.S. (4 Wall.) 2

(1866) (civilian accused of violating the law of war in non-hostile territory could not be tried by military commission),

and Little v. Barreme, 6 U.S. (2 Cr.) 170 (1804) (where Congress had authorized as part of a limited war the seizure of

vessels bound to French ports, the President could not authorize the seizure of vessels coming from French ports) with

Ex parte Quirin, 317 U.S. 1, 26-27 (1942) (President’s order establishing military commissions to try enemy

combatants for violating the law of war was valid where Congress had recognized military commissions in statute),

Hirabayashi v. United States, 320 U.S. 81, 89-90 (1943) (discriminatory wartime curfew implemented by the executive

(continued...)

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appropriate force” must be read, if possible, to conform to the Constitution and Congress’s

understanding of what activity constitutes a use of force as opposed to an exercise of authority

within the domestic sphere.

The Domestic Sphere versus Military Operations

Although the lack of a formal declaration of war is not relevant to the existence of an armed

conflict and is arguably unnecessary for the President to invoke some war powers, it may be

argued that a formal declaration makes a difference in determining what law applies within the

United States, whether to aliens or citizens.122 For example, the Alien Enemy Act and the Trading

with the Enemy Act (TWEA),123 both of which regulate the domestic conduct of persons during a

war, expressly require a declared war and are not triggered simply by an authorization to use

force. 124 The Supreme Court long ago held that the President has no implied authority to

promulgate regulations permitting the capture of enemy property located in the United States

during hostilities short of a declared war, even where Congress had authorized a “limited” war.125

More pertinently, FISA contains an exception to its requirements for 15 days after a congressional

declaration of war.126 The inclusion of this exception strongly suggests that Congress intended for

FISA to apply even during wartime, unless Congress were to pass new legislation. The fact that

Congress amended FISA subsequent to September 11, 2001, in order to maximize its

effectiveness against the terrorist threat further bolsters the notion that FISA is intended to remain

fully applicable. To conclude otherwise would appear to require an assumption that Congress

intended the AUMF to authorize the President to conduct electronic surveillance, even against

American citizens not involved in combat, under fewer restrictions than would apply during a

declared war, notwithstanding FISA provisions strengthened to take such circumstances into

account. Even assuming, for argument’s sake, that the NSA operations are necessary to prevent

another terrorist attack, a presumption that Congress intended to authorize them does not

necessarily follow.

(...continued)

branch could be enforced against U.S. citizen where Congress had expressly provided for such enforcement) and

Korematsu v. United States, 323 U.S. 214 (1944) (same). The Administration cites the Prize Cases, 67 U.S. (2 Black)

635, 668 (1863), for the proposition that “the President has the responsibility to protect the Nation from further attacks,

and the Constitution gives him all necessary authority to fulfill that duty.” OLA Letter, supra note 10, at 2. The Prize

Cases have generally been interpreted as supporting an assertion of inherent presidential power to thwart an attack. See

CONSTITUTION ANNOTATED, S. REP. NO. 108-17, at 328-29. It may, however, be significant that the naval blockade

there at issue was instituted prior to Congress’s having had the opportunity to take action rather than in the face of a

statutory prohibition against such action, and was quickly ratified by Congress. See id. at 461-62. Given the Court’s

tendency to treat the latter question as one calling for judicial avoidance based on the “political question” doctrine, id.

at 329, it is possible that the question may never reach a fuller exegesis. However, the area has been characterized by

concessions between the President and Congress with respect to the scope of authority of each. See id., id. at 473-75.

122

See Youngstown, 343 U.S. at 645 (Jackson, J., concurring) (noting that separation-of-powers concerns are

“heightened when the Commander-in-Chief’s powers are exercised in the domestic sphere”).

123

50 U.S. App. § 1 et seq.

124

See generally CRS Report RL31133, Declarations of War and Authorizations for the Use of Military Force:

Historical Background and Legal Implications, by (name redacted) and (name redacted) (identifying statutes

effective only during declared wars or during hostilities).

125

See Brown v. United States, 12 U.S. (8 Cranch) 110 (1814); Little v. Barreme, 6 U.S. (2 Cr.) 170 (1804).

126

50 U.S.C. § 1811. The legislative history indicates that the 15-day period was intended to “allow time for

consideration of any amendment to this act that may be appropriate during a wartime emergency.” H.R. CONF. REP. NO.

95-1720, at 34 (1978).

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It might be argued that the United States is part of the battlefield in the war against terrorism in

more than just a metaphorical sense. Proponents of this point of view would argue that the AUMF

to authorizes the use of force anywhere in the world, 127 including the territory of the United

States, against any persons determined by the President to have “planned, authorized, committed,

or aided the terrorist attacks” or “harbored such organizations or persons.” Under this view, the

United States is under actual and continuing enemy attack, and the President has the authority to

conduct electronic surveillance in the same way the armed forces gather intelligence about the

military operations of enemy forces, even if no actual combat is taking place. After all,

intelligence efforts are aimed at identifying an attack before it occurs. If electronic surveillance is

considered to be a use of force, the AUMF would seem to limit it to those who “planned,

authorized, committed, aided” the Sept. 11 attacks or who “harbored such ... persons.” To the

extent that the President’s executive order authorizes surveillance of persons who are suspected of

merely supporting Al Qaeda or affiliated terrorist organizations, it may be seen as being overly

broad.

Are the NSA Electronic Surveillances Consistent with FISA and

Title III?

Having concluded that the AUMF authorizes the NSA activity, the Administration finds that the

activity meets FISA requirements as well. Although the Administration appears to accept the

premise that the surveillance is “electronic surveillance” within the meaning of FISA, it argues

that it is excused from following the required procedures because section 109 of FISA128 exempts

from criminal liability those who conduct electronic surveillance without following the FISA

procedures where such surveillance is “authorized by statute.”

Subsection (a) of section 109 of FISA provides criminal sanctions129 for a person who

intentionally “engages in electronic surveillance under color of law except as authorized by

statute;” or who “discloses or uses information obtained under color of law by electronic

surveillance, knowing or having reason to know that the information was obtained through

electronic surveillance not authorized by statute.” Under subsection (b), it is a defense to a

prosecution under subsection (a) that the defendant was a law enforcement or investigative officer

engaged in the course of his official duties and the electronic surveillance was authorized by and

conducted pursuant to a search warrant or court order of a court of competent jurisdiction. Under

subsection (d), there is federal jurisdiction over an offense under this section if the person

committing the offense was an officer or employee of the United States at the time the offense

was committed.130

127

See Khalid v. Bush, 355 F.Supp.2d 311, 320 (D. D.C. 2005) (noting that “the AUMF does not place geographic

parameters on the President’s authority to wage this war against terrorists”).

128

50 U.S.C. § 1809(a)(1).

129

Subsection (c) provides, “An offense described in this section is punishable by a fine of not more than $10,000 or

imprisonment for not more than five years, or both.” In light of the general fines provision in 18 U.S.C. § 3571, the

maximum fine would appear to be $250,000 for an individual defendant, and $500,000 for an institutional defendant.”

130

Under 50 U.S.C. § 1810, an aggrieved person, other than a foreign power or an agent of a foreign power, as defined

in 50 U.S.C. § 1801(a) or (b)(1)(A), who has been subjected to electronic surveillance or about whom information

obtained by electronic surveillance of that person has been disclosed or used in violation of 50 U.S.C. § 1809 may

bring an action against any person who committed that violation for actual and punitive damages, plus reasonable

attorney’s fees and other reasonably incurred investigation and litigation costs. Actual damages may not be less than

liquidated damages of $1,000 or $100 per day for each day of the violation, whichever is greater.

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The language of this section was drawn by the conferees from the House version of the measure,

with modifications taken from the Senate version.131 The House Conference Report, H. CONF.

REP. 95-1720, at 33, 1978 U.S.C.C.A.N. at 4062, adopted the House version of these provisions,

with amendments to include the Senate provision regarding disclosure or use of information

obtained under color of law by electronic surveillance, knowing or having reason to know that the

information was obtained through electronic surveillance not authorized by statute. The House

Conference Committee described its actions as follows:

The Senate bill provided, by conforming amendment to title 18, United States Code, for

criminal penalties for any person who, under color of law, willfully engages in electronic

surveillance except as provided in this bill; for any person who willfully discloses, or

endeavors to disclose to any other person information obtained under color of law by

electronic surveillance, knowing or having reason to know that the information was obtained

through unlawful electronic surveillance; and for any person who willfully uses, or

endeavors to use, information obtained through unlawful electronic surveillance.

The House amendments provided for separate criminal penalties in this act, rather than by

conforming amendment to title 18, for any person who intentionally engages in electronic

surveillance under color of law except as authorized by statute. A defense was provided for a

defendant who was a law enforcement or investigative officer engaged in the course of his

official duties and the electronic surveillance was authorized by and conducted pursuant to a

search warrant or court order of a court of competent jurisdiction.

The conference substitute adopts the House provision modified to add the Senate criminal

penalty for any person who discloses or uses information obtained under color of law by

electronic surveillance, knowing or having reason to know that the information was obtained

through electronic surveillance not authorized by statute. The conferees agree that the

criminal penalties for intelligence agents under this Act should be essentially the same as for

law enforcement officers under title 18.132

131

The Senate Judiciary Committee, in S. REP. NO. 95-604(I), at 61, 1978 U.S.C.C.A.N. at 3962-3963; see also,

pertinent portion of the Senate Select Committee on Intelligence’s S. REP. NO. 95-701, at 68-69, 1978 U.S.C.C.A.N. at

4037-4038, described the Senate version of this provision, which would have provided conforming amendments to

Title 18 of the U.S. Code:

[Section 4(a)(1) and (2) are] ... designed to establish the same criminal penalties for violations of

[FISA, conceived in the Senate bill as a new chapter 120 of Title 18, U.S. Code] as apply to

violations of chapter 119 [of Title 18, U.S.C.]. As amended, these sections will make it a criminal

offense to engage in electronic surveillance except as otherwise specifically provided in chapters

119 and 120. This amendment also provides, however, that “with respect to techniques used by law

enforcement officers” which do not involve the actual interception of wire or oral communications,

yet do fall within the literal definition of electronic surveillance in Chapter 120 [FISA]—such as

the use of a pen register—the procedures of chapter 120 do not apply. In such cases criminal

penalties will not attach simply because the government fails to follow the procedures in chapter

120 (such penalties may, of course, attach if the surveillance is commenced without a search

warrant or in violation of a court order.) In all cases involving electronic surveillance for the

purpose of obtaining foreign intelligence information, however, the prohibitions of 18 U.S.C. 2511

would apply.

(a)(3), (4), (5), and (6). These amendments make clear that the prohibitions in chapter 119

concerning disclosure and use of information, obtained through the interception of wire or oral

communications in sections 2511(1)(c) and (d), also apply to disclosure and use of information

obtained through electronic surveillance as defined in chapter 120.

The statute calls for a fine of not more than $10,000 or imprisonment for not more than five years,

or both, for each violation.

132

The House Intelligence Committee discussed the meaning of “intentionally” in the context of Section 109(a)(2) of

(continued...)

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The Administration appears to rely upon the Authorization to Use Military Force (AUMF), P.L.

107-40, 115 Stat. 224 (2001), in arguing that the NSA electronic surveillances at issue are

“authorized by statute,” as that phrase is used in 50 U.S.C. § 1809(a). The FISA bill as passed

included the House version of Section 109(a)(1) of the measure, while Section 109(a)(2) was

drawn from the Senate passed bill. The House Permanent Select Committee’s Report, H. Rep.

No. 95-1283(I), at 96 (June 8, 1978), sheds some light on the intended meaning of Section

109(a)(1) of H.R. 7308 (95th Cong.) which became 50 U.S.C. § 1809(a)(1):

Section 109(a)(1) carries forward the criminal provisions of chapter 119 [of Title 18, U.S.C.]

and makes it a criminal offense for officers or employees of the United States to intentionally

engage in electronic surveillance under color of law except as specifically authorized in

chapter 119 of title III [of the Omnibus Crime Control and Safe Streets Act of 1968] and this

title. Since certain technical activities—such as the use of a pen register—fall within the

definition of electronic surveillance under this title, but not within the definition of wire or

oral communications under chapter 119 [of Title 18, U.S.C.], the bill provides an affirmative

defense to a law enforcement or investigative officer who engages in such an activity for law

enforcement purposes in the course of his official duties, pursuant to a search warrant or

court order.

The House Permanent Select Committee on Intelligence also noted that, “[o]ne of the important

purposes of the bill is to afford security to intelligence personnel so that if they act in accordance

with the statute and the court order, they will be insulated from liability; it is not to afford them

immunity when they intentionally violate the law.”

Thus, the legislative history appears to reflect an intention that the phrase “authorized by statute”

was a reference to chapter 119 of Title 18 of the U.S. Code (Title III) and to FISA itself, rather

than having a broader meaning, in which case a clear indication of Congress’s intent to amend or

repeal it might be necessary before a court would interpret a later statute as superceding it.

Nevertheless, without taking into account the legislative history, the phrase might be seen as

having a more expansive application. This broader view appears to have been taken by the

Administration in its position regarding the authority provided by the AUMF.

Next, the Administration turns to the wiretap prohibition contained in Title III, which contains an

exception for surveillance carried out pursuant to FISA. Pointing out that the exception in section

109 is broad in comparison to the exception in 18 U.S.C. § 2511, whose prohibition applies

“except as otherwise specifically provided in this chapter,” the Administration appears to

conclude that the broader FISA exception subsumes the narrower exception in Title III, at least

with respect to national security wiretaps. It cites two of the specific exceptions in Title III. First,

18 U.S.C. 2511(2)(e) provides a defense to criminal liability to government agents who “conduct

electronic surveillance, as defined in section 101 of [FISA], as authorized by that Act.” The

Administration appears to interpret “as authorized by [FISA]” to include activity exempt from the

FISA prohibition by virtue of its being authorized by other statute. Under this interpretation,

(...continued)

the House bill, which was replaced by the Senate language. However, as the legislative language was written, the word

“intentionally” applied to both Section 109(a)(1) and Section 109(a)(2). The House Report, H. REP. NO. 95-1283, at 97,

emphasized that “intentionally” as used in this section was “intended to reflect the most strict standard for criminal

culpability. What is proscribed is an intentional violation of an order or one of the specified provisions, not just

intentional conduct. The Government would have to provide beyond a reasonable doubt both that the conduct engaged

in was in fact a violation, and that it was engaged in with a conscious objective or desire to commit a violation.... ”

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subsection 2511(2)(e) should be read to exempt electronic surveillance “as authorized by FISA or

any other statute.”

Similar analysis leads the Administration to conclude that the Title III exclusivity provision in 18

U.S.C. § 2511(2)(f) poses no impediment. Section 2511(2)(f), which exempts U.S. foreign

intelligence activities not covered by FISA, also provides that the procedures in Title III and FISA

“shall be the exclusive means by which electronic surveillance, as defined in section 101 of

[FISA], and the interception of domestic wire, oral, and electronic communications may be

conducted.” The Administration argues that

By expressly and broadly excepting from its prohibition electronic surveillance undertaken

“as authorized by statute,” section 109 of FISA permits an exception to the “procedures” of

FISA referred to in 18 U.S.C. § 2511(2)(f) where authorized by another statute, even if the

other authorizing statute does not specifically amend section 2511(2)(f).133

In other words, it appears, the FISA “procedures” described in Title III (in 18 U.S.C. § 2511(2)(f))

can include any other procedures authorized, expressly or implicitly, by any other statute, because

these would not be prohibited by FISA section 109. This reading would seem to make the

exclusivity provision meaningless, a construction not ordinarily favored by courts. It may be

questioned whether Congress actually intended for the exception to the criminal prohibition in

FISA to negate the more specific requirements in Title III and its exclusivity provision.

The Administration continues

Some might suggest that FISA could be read to require that a subsequent statutory

authorization must come in the form of an amendment to FISA itself. But under established

principles of statutory construction, the AUMF and FISA must be construed in harmony to

avoid any potential conflict between FISA and the President’s Article II authority as

Commander in Chief. Accordingly, any ambiguity as to whether the AUMF is a statute that

satisfies the requirements of FISA and allows electronic surveillance in the conflict with al

Qaeda without complying with FISA procedures must be resolved in favor of an

interpretation that is consistent with the President’s long-recognized authority.134

It is unclear how FISA and the AUMF are seen to collide. Principles of statutory construction

generally provide guidance for interpreting Congress’s intent with respect to a statute where the

text is ambiguous or a plain reading leads to anomalous results; and where possible, a statute that

might be read in such a way as to violate the Constitution is to be construed to avoid the violation.

However, such principles are only to be applied where there is a genuine ambiguity or conflict

between two statutes,135 and where there is some possible reading that might avoid a conflict.

133

OLA Letter, supra note 10, at 3.

134

Id. at 4 (citing INS v. Cyr, 533 U.S. 289, 300 v. (2001) (holding that “if an otherwise acceptable construction of a

statute would raise serious constitutional problems, and where an alternative interpretation of the statute is ‘fairly

possible,’ we are obligated to construe the statute to avoid such problems”) (internal citation omitted); Zadvydas v.

Davis, 533 U.S. 678, 689 (2001) (noting that a “‘cardinal principle’ of statutory interpretation [is] that when an Act of

Congress raises ‘a serious doubt’ as to its constitutionality, ‘this Court will first ascertain whether a construction of the

statute is fairly possible by which the question may be avoided’”) (citations omitted)). Both cited cases involved due

process implications rather than whether a statute violated the principle of separation of powers by encroaching on

presidential powers.

135

See, e.g, Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1018 (1984) (“Where two statutes are capable of coexistence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each

as effective” (internal quotation marks omitted)).

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