< Return To Hearing
Professor Harold Hongju Koh
Statement of Harold Hongju Koh
Thank you, Mr. Chairman and Members of the Committee, for inviting me today.
I am Dean and Gerard C. & Bernice Latrobe Smith Professor of International Law at the Yale Law School, where I have taught since 1985 in the areas of international law, human rights, and the law of U.S. foreign relations.1 I appear first, to testify regarding the claimed legal authority for the Administration's National Security Agency (NSA) domestic surveillance program; second, to respond to the Administration's legal defense of the program, as set forth in several recent Justice Department documents and in the Attorney General's testimony before this Committee on February 6, 2006;2 and third, to comment on a draft bill entitled the "National Security Surveillance Act," which I received from this Committee's staff on February 24, 2006.
To state my conclusions briefly: I have served the United States government in both Republican and Democratic Administrations.3 I have also filed lawsuits against both Republican and Democratic administrations when I became convinced that their conduct violated the law.4 In my professional opinion, the ongoing NSA domestic surveillance program is blatantly illegal, whether or not -as its defenders claim--it is limited to international calls with one end in the United States.5
None of the program's defenders - including those who appear today-- has identified any convincing legal justification for conducting such a sweeping program without the legally required checks of congressional authorization and oversight and judicial review. My government service makes me fully sensitive to the ongoing threat from Al Qaeda and the need for law enforcement officials to be able to gather vital information before another terrorist attack occurs. Of course, in time of war, our Constitution recognizes the President as Commander-in-Chief. But the same Constitution requires that the Commander-in-Chief obey the Fourth Amendment, which guarantees that "[t]he 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 upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."6 By so saying, the Fourth Amendment requires that any government surveillance be reasonable, supported except in emergency situations by warrants issued by courts, and based upon specific probable cause. The current NSA surveillance program, as I understand it, violates all three constitutional standards.
For nearly thirty years, the Foreign Intelligence Surveillance Act of 1978 (FISA)7 has guaranteed compliance with these constitutional requirements by providing a comprehensive, exclusive statutory framework for electronic surveillance. Even as Commander-in-Chief, the President carries the solemn constitutional duty to "take Care that the Laws be faithfully executed."8 Yet apparently, the NSA has violated these statutory requirements repeatedly by carrying on a sustained program of secret, unreviewed, warrantless electronic surveillance of American citizens and residents. As Justice Paterson wrote two centuries ago in United States v. Smith: "[t]he president of the United States cannot control the statute, nor dispense with its execution, and still less can he authorize a person to do what law forbids."9
The NSA program's defenders cannot plausibly claim that the ongoing program follows the letter of the FISA. Instead, to justify this flouting of the FISA, they argue both that Congress authorized this program in the resolution authorizing force and offer a sweeping interpretation of unchecked Executive authority that cannot be squared with the vision of shared national security powers evident in our Constitution's text, structure and purpose. That vision of unchecked executive discretion would upset what Justice Robert Jackson in his famous concurrence in the Steel Seizure Case termed the "equilibrium established by our constitutional system."10 Taken seriously, the President's reading of the Constitution would render Congress a pointless rubberstamp, limited in an unending war on terror to enacting laws that the President can ignore at will and issuing blank checks that the President can redefine at will.
Of course, we can and should aggressively fight terrorism, but doing so outside the law is deeply counterproductive.11 The NSA program undermines, rather than enhances, our ability to combat terrorism through the criminal justice system. Under the ongoing NSA program, NSA analysts are increasingly caught between following superior orders and carrying out illegal electronic surveillance. The nation can scarcely afford to lose analysts that are on the front lines protecting our national security. Furthermore, because evidence collected under the NSA electronic surveillance program will almost surely be challenged as illegally obtained, such evidence may prove inadmissible in cases against alleged terrorists, giving them greater leverage in plea bargains and making it far more difficult to prosecute them criminally.
Unfortunately, for reasons detailed below, the proposed National Security Surveillance Act (NSSA) would not improve the situation. Instead of subjecting the legality of the ongoing program to meaningful congressional oversight and contemporaneous judicial review, the proposed law would simply amend the 1978 Foreign Intelligence Surveillance Act to increase the authority of the President to conduct surveillance, based on a showing of "probable cause" that the entire surveillance program -- not any particular act of surveillance -- will intercept communications of a foreign power or agent thereof, or anyone who has ever communicated with a foreign agent. While perhaps legalizing a small number of reasonable searches and seizures, the proposed statute would make matters far worse, by giving the Congress' blanket pre-authorization to a large number of unreasonable searches and seizures. To enact the draft legislation, which ratifies an illegal ongoing program without demanding first a full congressional review of what is now being done and more executive accountability going forward, would provide neither the congressional oversight nor the judicial review that this program needs to restore our confidence in our constitutional checks and balances. Most fundamentally, unless the President agrees to operate within the terms of any FISA amendments, the new congressional action would be meaningless.
We must not forget the historical events that led to enactment of the 1978 FISA statute. When American ships were attacked in the Gulf of Tonkin in 1964, President Johnson asked Congress for a broad resolution that gave him broad freedom to conduct a controversial undeclared war in Indochina; that war traumatized our country and triggered a powerful antiwar movement.12 It soon came to light that to support the war effort, three government agencies--the FBI, the CIA, and the NSA - had wiretapped thousands of innocent Americans suspected of committing subversive activities against the U.S. government.13
To end these abuses, Congress passed, and President Carter signed, the Foreign Intelligence Surveillance Act of 1978 (FISA), which makes it a crime for anyone to wiretap Americans in the United States without a warrant or a court order.14 The law makes it clear that the FISA (and specified provisions of the federal criminal code that govern criminal wiretaps) "shall be the exclusive means by which electronic surveillance . . . and the interception of domestic wire communications may be conducted."15 In an emergency, where the Attorney General believes that surveillance must begin before he can get a court order, FISA permits the wiretap to begin immediately, but only so long as the government seeks a warrant from the special FISA court within 72 hours.16 Drafted with wartime in mind, the FISA permits the Attorney General to authorize warrantless electronic surveillance in the United States for only 15 days after a declaration of war, to give Congress time to pass new laws to give the President any new wiretap authority he may need to deal with the wartime emergency.17 In short, FISA was based on simple, sensible reasoning: before the President invades our privacy, his lawyers must get approval from someone who does not work for him: either members of Congress must pass an amendment to FISA, or members of the independent Foreign Intelligence Surveillance Court must approve a particular warrant.
For almost thirty years, the FISA scheme worked to protect our rights as American citizens to privacy, while still allowing our government to engage in necessary foreign surveillance. From 1979 to 2004, the FISC approved nearly 19,000 warrants and rejected only five.18 Even since September 11, officials of the Bush Administration officials have obtained thousands of warrants approved by the special FISA court.19 During the last few years, the President was asked several times whether judicial permission is required for any government spying on American citizens; on each occasion, he answered in the affirmative.20 And last January, when Alberto Gonzales was being confirmed as Attorney General, Senator Russ Feingold asked whether he believed the President could violate existing criminal laws and spy on U.S. citizens without a warrant. Mr. Gonzales answered that it was impossible to answer such a "hypothetical question" but that it was "not the policy or the agenda of this president" to authorize actions that conflict with existing law.21
Given this background, as of three months ago, the law seemed crystal clear. If executive officials wanted to wiretap or conduct electronic surveillance of Americans, they could do so without a warrant, but only for three days, or for fifteen days after a declaration of war. After that, they must either go to the special FISA court for an order to approve the surveillance, come to Congress seeking wartime amendments to FISA, or be in violation of the criminal law.
And so we were all stunned to learn in December 2005 that despite this settled law, the Executive Branch has in fact been secretly spying on large numbers of Americans for four years and eavesdropping on "large volumes of telephone calls, e-mail messages, and other Internet traffic inside the United States."22 Despite the clear requirements of the FISA law, the President had apparently launched this eavesdropping program without ever seeking a search warrant. Nor did the Administration ever seek new laws that would authorize such domestic intelligence gathering.23 Moreover, we learned that President Bush has personally authorized this eavesdropping program more than three dozen times since October 2001, at times over the objections of high senior officials in his own Justice Department.24
Although the program's details continue to remain hidden from public view, we now know that intelligence officials apparently persuaded officials of major telecommunications companies to let the NSA monitor communication activity through "electronic backdoors."25 Recent Justice Department documents and statements appear to acknowledge: (1) that the NSA engages in such surveillance without judicial approval, and apparently without the substantive showings that FISA requires--e.g., that the target subject is an "agent of a foreign power;" 26(2) that the NSA determines on its own which phone calls and emails to monitor, without seeking prior approval from the White House, the Justice Department, or any court before it starts monitoring any specific email or phone line; (3) that no lawyer or prosecutor reviews any records before the NSA starts to listen in on a line; 27 and (4) that despite the Administration's assurances, we have no way of knowing that searches will be strictly limited to people who have made contact with Al Qaeda.
Some commentators have claimed that the NSA searching involves only computerized datamining that intercepts little or no communicative content, and hence does not constitute surveillance subject to the FISA or a "search" or "seizure" subject to the Fourth Amendment. But in fact the Attorney General himself has expressly rejected those claims by repeatedly stating that the NSA program involves "electronic surveillance," defined in FISA to mean the interception of the contents of telephone, wire, or e-mail communications that occur, at least in part, in the United States.29 In a press briefing held on December 19, 2005, Attorney General Gonzales also conceded that the NSA program intercepts the "contents of communications"30 and that the "surveillance that . . . the President announced on [December 17]" is the "kind" that "requires a court order before engaging in" it "unless otherwise authorized by statute or by Congress."31
On its face, the NSA Program blatantly violates the statutory FISA standards outlined above. By their own admission, the Administration's officials did not seek a warrant within three days of commencing the NSA Program, nor did they do so within fifteen days after the congressional resolution authorizing the use of force, nor have they done so in the nearly four years since. To this day, the Administration has yet to offer any convincing explanation why it could not have sought or obtained warrants from the special FISA court created for this purpose, which has approved tens of thousands of warrants over the years. Nor despite the many post hoc legal justifications that have been released since December, has the Administration yet to make public any contemporaneous legal opinion provided to the President upon which its decision to launch the NSA program was actually based.32
When the President acts in a field in which Congress has legislated so comprehensively, the acknowledged touchstone for constitutional analysis is Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure Case), in which the Supreme Court invalidated an attempted presidential takeover of the steel mills in the name of national security during the Korean War.33 In his landmark concurring opinion in that case, Justice Robert Jackson wrote: "Presidential powers are not fixed, but fluctuate, depending on their ... disjunction with those of Congress. When the President takes measures incompatible with the express or implied will of Congress, his power is at its lowest ebb, for then he can rely only on his own constitutional powers minus any constitutional powers of Congress over the matter."34
The FISA was enacted by Congress precisely to regulate the kind of surveillance that has occurred here. In response, the Justice Department asserts that the President may choose clandestinely to ignore the FISA. Youngstown thus requires us to ask whether the Constitution subjects the presidential power at issue in this case to the control of statutes passed by Congress with the assent of the President, or whether the Constitution confides that power exclusively in the President.
The Justice Department claims that the President has an implied exclusive executive authority over "the means and methods of engaging the enemy," including the conduct of "signals intelligence" during wartime.35 Yet nothing in the text of Article II of the Constitution recognizes an exclusive presidential power to conduct warrantless, unreviewed wiretapping, akin to the textual powers to appoint or pardon, to veto legislation, or to recognize foreign governments. Nor is it clear that the Fourth Amendment would allow a sustained program of unchecked warrantless wiretapping within the United States, even if expressly authorized by Congress and President acting together.36
As Justice Jackson wrote in Youngstown, "the Constitution did not contemplate that the title Commander in Chief of the Army and Navy will constitute him also Commander in Chief of the country, its industries and inhabitants."37 Congress undeniably has power "To make Rules for the Government and Regulation of the land and naval Forces" and to "make all Laws which shall be necessary and proper for carrying into Execution . . . all . . . Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."38 Under these authorities, Congress has enacted myriad statutes regulating the "means and methods of engaging the enemy," including most obviously, the Uniform Code of Military Justice and the recent, much-discussed statutes prohibiting the use of torture and cruel, inhuman, and degrading treatment.39 And whether or not the President as Commander in Chief may generally collect "signals intelligence" on the enemy abroad, no one denies that Congress may regulate electronic surveillance within the United States, as it has expressly done in FISA. Every Supreme Court decision to confront the question has rejected the claim that the President may invoke his Commander in Chief power to disregard an Act of Congress
In sum, under Youngstown's reasoning, given that "the President [has] take[n] measures incompatible with the express or implied will of Congress" as expressed in FISA, "his power is at its lowest ebb, for then he can rely only on his own constitutional powers minus any constitutional powers of Congress over the matter."42 Whether or not there are historical examples of the President engaging in warrantless wartime surveillance before the FISA was passed, it seems clear that he may not now constitutionally undertake such actions where Congress and the President have not just contemplated such behavior, but actually criminalized it.
II. The Arguments Defending the NSA Program Cannot Withstand Scrutiny
Since the domestic spying program came to light, the Administration has launched a broad public campaign to defend its legality. Let me explain why none of these legal and policy arguments withstand scrutiny.
A. The 2001 Authorization for Use of Military Force (AUMF) Resolution Does Not Authorize Domestic Surveillance
The Administration claims that the Congress implicitly authorized the NSA surveillance plan when it voted for the Authorization to Use Military Force (AUMF) Resolution in September 2001.44 That law authorizes the President to use "all necessary and appropriate force" against "nations, organizations, or persons" associated with the terrorist attacks of September 11, 2001, in order to protect the nation from the recurrence of such attacks. But to read this law as the President's lawyers do would recreate the Gulf of Tonkin Resolution: a law construed after the fact to give him a blank check to engage in broad domestic activities, in this case wiretapping of Americans on U.S. soil without a warrant. To accept that reading, Congress would now have to conclude that in September 2001, it silently approved what 23 years earlier it had expressly criminalized!
Absent "overwhelming evidence" of an "irreconcilable conflict"--neither of which exist here--45 we cannot assume that Congress intended in the AUMF silently to repeal 18 U.S.C. § 2511(2)(f), which makes the FISA (and other specific criminal code provisions) "the exclusive means by which electronic surveillance...may be conducted." When first asked why the Administration had not sought to amend FISA to authorize the NSA spying program, Attorney General Gonzales acknowledged, "[w]e have had discussions with Congress in the past--certain members of Congress--as to whether or not FISA could be amended to allow us to adequately deal with this kind of threat, and we were advised that that would be difficult, if not impossible." 46 Yet remarkably, after candidly admitting that Congress would not have authorized the spying program, had it known about it, the Attorney General now argues that in fact, Congress silently authorized it four years earlier when it passed the AUMF, although that law nowhere mentions surveillance of any kind.
This argument does not pass the "straight face" test.47 In FISA, Congress not only specified the "exclusive means" for conducting domestic surveillance, but also specifically required that any domestic warrantless wiretapping be limited to fifteen days after a declaration of war.48 "[W]hen Congress did specifically address itself to a problem, as Congress did [here,] to find secreted in the interstices of legislation the very grant of power which Congress consciously withheld...is ...to disrespect the whole legislative process and the constitutional division of authority between President and Congress.49
Remarkably, in his testimony before this Committee, the Attorney General repeatedly invoked Hamdi v. Rumsfeld50-- in which the Supreme Court largely rejected the President's arguments--to support his reading of the AUMF. But in Hamdi, a plurality of the Court held only that the AUMF authorized as a "fundamental incident of waging war" the military detention of enemy combatants captured on the battlefield abroad who were "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" "for the duration of the particular conflict in which they were captured," in order to prevent them "from returning to the field of battle and taking up arms once again."51 But if, as the Hamdi plurality agreed, the AUMF does not authorize "indefinite detention [even of enemy combatants] for the purpose of interrogation," 52 why read the AUMF to authorize indefinite domestic wiretapping of American citizens who are not alleged to be enemy combatants, for the purpose of information-gathering? Indeed, while the AUMF was being debated, the Administration sought to have language inserted in it that would have authorized the use of military force domestically - which Congress rejected. 53 If the AUMF authorization were actually as broad as the Administration now claims, why should the Administration request and the Congress now bother to reenact the USA PATRIOT Act? No less than the FISA, the various investigative and preventive authorities of the USA PATRIOT Act could already be undertaken by the President unilaterally under the AUMF.
B. We Have No Proof that The NSA Domestic Surveillance Program is Narrowly Aimed Only at Al Qaeda and its Associates.
At the Attorney General's December 19 press briefing, he noted that the four- year-old surveillance program applies narrowly only to "communications, back and forth, from within the United States to overseas with members of Al Qaeda." 54 In fact, there is mounting evidence that NSA has a second program that is a much broader operation that is violating the rights of uncounted innocent Americans.55 The New York Times reported that the NSA swept up thousands of e-mail messages and telephone calls to generate thousands of leads.56 The Washington Post recently reported that about 5000 "Americans in the past four years have had their conversations recorded or their e-mails read by intelligence analysts without court authority." Of those, "[f]ewer than 10 U.S. citizens or residents a year, according to an authoritative account, have aroused enough suspicion during warrantless eavesdropping to justify interception of their domestic calls."57
At the same press briefing, the Attorney General revised his remarks to say that the NSA will eavesdrop whenever "we . . . have 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."58 Under this reasoning, the NSA could conduct a secret, indefinite warrantless wiretap of phone calls and emails between two U.S. citizens living in the U.S., so long as one had once worshipped at a mosque that the Administration had concluded is in some way "supportive" of al-Qaeda. Yet in such a case, the total absence of congressional oversight and judicial review would leave those citizens' Fourth Amendment rights to privacy unprotected.59
C. We Have No Reason to Believe The NSA Program Would Have Prevented September 11
Another claim that cannot stand is that the attacks of September 11 could have been prevented if only the NSA Program had been in place. In fact, nothing in our law prevented American intelligence from listening to a call to or from the United States involving Al Qaeda before September 11, so long as they got the warrant duly required by the FISA. Indeed, as the 9/11 Commission Report amply showed, our government already had plenty of evidence before September 11 that attacks would occur. The Commission found that the failure of the government to register the significance of that evidence resulted not from any restriction (in FISA or any other law) on information gathering, but rather from restrictions on information-sharing within the government.60 In short, Administration officials did not miss the 9/11 plot because they took the few hours necessary to get a FISA warrant to eavesdrop on phone calls and e-mail messages. If anything, they missed the plot because existing procedures made them overlook information that was already in the system.
D. Giving Restricted Information to the "Gang of Eight" Did Not Substitute for Genuine Congressional Oversight or Judicial Review
Some have also argued that Congress was "effectively informed" of the NSA Program by classified briefings that were given to the "Gang of Eight," the chair and ranking members of both intelligence committees, the majority and minority leaders of the Senate, and the Speaker and minority leader of the House. But we know from Senator Rockefeller's handwritten - and unanswered - letter to Vice President Cheney of July 17, 2003, and from several others among the Eight, that several of the Members did not find the briefings sufficiently informative to perform their oversight duty; that some protested and had their protests ignored; and that all believed that they were strictly barred from discussing the briefings they were given with the full intelligence committees and committee staff.61
The law regarding intelligence oversight only allows briefings to be restricted to the Gang of Eight in the case of a covert operation in which a formal presidential finding has been issued; no one has said such a finding was issued here62 (and even had the NSA program been designated a covert operation by the President, that would not have cured its illegality under FISA). Failure to brief the full intelligence committees as required by the National Security Act of 1947 denied the Gang of Eight the assistance of committee staff who had the technical and legal expertise to evaluate the program and to prepare a classified portion of an intelligence bill approving, denying funding for, or regulating the program pursuant to the Congress's explicit constitutional power to appropriate funds and to Govern and Regulate the Armed Forces.63 By so limiting the briefing, the Executive effectively demanded that its co-equal branch of government accept a likely illegal program as a fait accompli.
Under the Intelligence Oversight Act, the Gang of Eight is to be used only for covert operations "in extraordinary circumstances affecting vital interests of the United States," not as a general substitute for the case-by-case independent judicial review for individual surveillance warrants based on probable cause required from the Foreign Intelligence Surveillance Court.64 The fact that a few Members have been given limited information about the NSA program does not constitute congressional oversight, much
E. All Other Administrations Since 1978 Have Obeyed the FISA
Finally, the Attorney General argued in his testimony to this Committee that many Presidents --dating back to George Washington, Woodrow Wilson and Franklin D. Roosevelt ---have all conducted various forms of wartime surveillance. Tellingly, he failed to mention the most important President, Richard Nixon, whose Vietnam-era surveillance of antiwar groups and political opponents led to FISA's enactment in the first place. Under questioning by Senator Feingold, the Attorney General essentially conceded that no other President has openly evaded the FISA after 1978.66 The fact that Presidents historically collected signals intelligence on the enemy during wartime when Congress did not regulate foreign intelligence gathering in no way exempts this President from now following FISA--which expressly requires that the statutory warrant process be followed more than 15 days after a declaration of war.
III. The proposed National Security Surveillance Act Should Not Be Adopted.
I have only had a short time to examine the staff proposal for a "National Security Surveillance Act," (NSSA) but my strong reaction is that its enactment would be entirely premature. It is the main job of this Committee, I believe, to investigate and determine whether the ongoing NSA program has violated the law for the last four years, and if so, to consider possible legislative remedies for those violations. At the same time, all members of the Congressional Intelligence Committees--not just the Gang of Eight--should now be "fully and currently" briefed on all operational details of the President's NSA program, as required by the National Security Act of 1947. If and when those committees have been fully briefed, they should immediately hold legislative hearings, with expert witnesses, to determine whether the ongoing NSA surveillance program can be brought into compliance with the existing FISA law. Only when these two parallel Committee processes -on the Judiciary side and the Intelligence side--have been completed, will the time be ripe for the two Committees to consider legislative proposals to amend the FISA, which was itself the product of several years of commission and committee studies, and extensive legislative hearings under two Presidential Administrations.
To proceed hastily to "quick-fix legislation"--without full investigation, subpoenas answered, legal opinions disclosed, facts fully aired, Members fully briefed and the public fully informed--would inevitably invite bad legislative process. How can Congress meaningfully legislate to repair the illegalities of the ongoing NSA surveillance program when only a tiny percentage of Congress has been briefed on how that program has actually operated? And how can Congress responsibly amend the mandate of the Foreign Intelligence Surveillance Court, when the Administration has made no showing that that court could not have handled the matters that the Executive Branch illegally avoided bringing to it?
The proposed bill would not improve the situation. Instead of subjecting the legality of the ongoing program to meaningful congressional oversight and contemporaneous judicial review, the proposed law would simply amend the 1978 FISA to increase the authority of the President to conduct surveillance based on a showing of "probable cause" that the entire surveillance program -- not any particular act of surveillance -- will intercept communications of a foreign power or agent thereof, or anyone who has ever communicated with a foreign agent.
Under FISA, the federal government may not engage in electronic surveillance targeted at a U.S. citizen or resident absent probable cause that the "target ... is a foreign power or agent of a foreign power.67 But under the proposed bill, the NSA need not show that either party to an intercepted phone call or e-mail has any connection to Al Qaeda or any other terrorist organization. Nor would the government need to show probable cause that either party to a call or e-mail is a foreign power, an agent of a foreign power, or even associated with a foreign power. Instead, the bill would permit domestic electronic surveillance targeted at U.S. persons based solely upon a showing of "probable cause" that the surveillance program as a whole -- not even the particular surveillance - "will intercept communications of the foreign power or agent of a foreign power specified in the application, or a person who has had communication with the foreign power or agent of a foreign power specified in the application."68
On its face, this language is stunningly broad. Almost every American who has ever stood in a visa line or traveled abroad and spoken to a foreign policeman "has had communication with the agent of a foreign power."69 If this bill became law, the NSA could wiretap virtually any U.S. person or resident almost indefinitely,70 without any
For example, this draft proposal would authorize the FISA Court to issue a general warrant whereby the NSA could conduct a program seizing all voice and e-mail communications traveling through a switch in New York City and sort through those communications as part of an "electronic surveillance program," the purpose of which is to collect foreign intelligence information concerning the activities of a religious order connected with a foreign power. The NSA would be authorized to sort through all the messages to obtain all those received by anyone who had ever had communications with any individuals who had ever been in contact with that religious order, or with any agent of any other foreign power. The NSA would then be free to listen to all such communications; to disseminate all such communications to any other intelligence agency; to keep all communications seized in its computers forever (whether listened to or not); to use the warrantless intercepts as evidence against the person; or to use the intercepts as a basis for getting a standard FISA warrant against that person.71
In short, the proposed bill would unwisely shift the focus of FISA from people to "programs," and allow entire programs to be authorized based upon a general showing of "consistency" with the Constitution.72 While perhaps legalizing a small number of reasonable searches and seizures, the proposed statute would make matters far worse, by giving Congress' blanket pre-authorization to a large number of unreasonable searches and seizures. The bill would do nothing to correct the blatant illegality of the ongoing program, and would potentially invite more of the same.
The NSA surveillance program is blatantly illegal because it permits wiretapping within the United States without any of the safeguards for electronic surveillance presumptively required by the Fourth Amendment or FISA --statutory authorization, individualized probable cause, or a warrant or other order issued by a judge or magistrate. The Supreme Court has never upheld such a sweeping, unchecked power of government to invade the privacy of Americans without individualized suspicion or congressional or judicial oversight. None of the defenses offered by the Administration explain why it refused to follow the time-tested warrant requirements of the FISA Court. If the Administration felt that FISA was insufficient for its present-day needs, it should have sought a legislative amendment--as Congress expressly contemplated when it enacted the wartime wiretap provision in FISA. Instead, the Administration conducted a covert end-run around FISA, and when that end-run came to light, it claimed incorrectly that its actions were legal.
As Justice Jackson noted, "power to legislate . . . belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers."73 Congress should now investigate, fully inform itself of the facts, and legislate a remedy to this illegal episode. For reasons I have explained, it would be premature and unwise to enact the draft National Security Surveillance Act bill. Convening prompt, full-scale hearings, perhaps in joint session with the Intelligence Committees, would give this body time to consider a number of thoughtful legislative proposals, including those put forward by the ABA's Task Force on Domestic Surveillance.74
In recent months, some have asked why they should care if the NSA illegally monitors domestic emails and phone calls. Why shouldn't the government have a right to rummage through our communications, if it helps them to find information that warns them of terrorist attacks? In response, I ask whether they have heard of the British "general warrant" of the 1700s. Under the general warrant, British authorities could break into any shop or place suspected of containing evidence of potential enemies of the state.75 I remind them that it was precisely because English law did not sufficiently protect the right of personal privacy that our ancestors in the new American colonies forbade general warrants and demanded specific warrants. Even while recognizing the President as our Commander in Chief, they adopted a Fourth Amendment to the Constitution that ensured that "[t]he 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 upon probable cause, ...particularly describing the place to be searched, and the persons or things to be seized."
As a former government official and law dean, I oppose the domestice spying program because it violates our right, as the people, to be secure against unreasonable searches and seizures. The fact some of the many searches now ongoing might be reasonable responses to terrorism cannot justify the uncounted unreasonable searches being undertaken. Nor can a government sworn to protect the Constitution and laws of the United States ever justify flouting the constitutional amendments and laws that were set up precisely to protect our hard-won human rights.
Thank you. I stand ready to answer any qeustions the Committee may have.
I can state categorically that the subject of warrantless wiretaps of American citizens never came up. I did not and never would have supported giving authority to the president for such wiretaps. I am also confident that the 98 senators who voted in favor of authorization of force against al Qaeda did not believe that they were also voting for warrantless domestic surveillance....Literally minutes before the Senate cast its vote, the administration sought to add the words "in the United States and" after "appropriate force" in the agreed-upon text. This last-minute change would have given the president broad authority to exercise expansive powers not just overseas...but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused....The Bush administration now argues those powers were inherently contained in the resolution adopted by Congress -- but at the time, the administration clearly felt they weren't or it wouldn't have tried to insert the additional language.
Tom Daschle, Power We Didn't Grant, WASH. POST, Dec. 23, 2005, A21. See also 147 CONG. REC. H5675 (daily ed. Sept. 14, 2001) (statement of Rep. Jackson) ("I am not voting 'Yes' on September 14, 2001, for an open-ended Tonkin Gulf-type Resolution. . . . I'm not willing to give President Bush carte blanche authority to fight terrorism.")