Surveillance of Our Enemies During Wartime? I’m Shocked!

Reading Glenn Greenwald’s lead essay, “The Digital Surveillance State: Vast, Secret, and Dangerous,” I could not help but recall a visit to my great aunt a quarter century ago. She showed me a shoe box of old World War I letters sent home from the front in France by my grandfather, who was then serving as an ambulance driver in the American Expeditionary Force. The letters — from a U.S. soldier home to his mother and sister — had been cut up by U.S. military censors like paper dolls, lest they inadvertently fall into enemy hands and unwittingly reveal some minor tactical detail about … the ambulance corps! I’ve not confirmed it yet, but I seriously doubt that the censors obtained a warrant before intercepting my grandfather’s letters or taking the scissors to them.

Nor did they need to. Contrary to popular perception, fed by erroneous claims from the law professoriate and punditry, the Fourth Amendment does not require a warrant before any search or seizure can be undertaken. It simply requires that the search or seizure be “reasonable,” and while warrants are the peacetime norm for “reasonableness” (and even then, there are exceptions), they are not the norm in wartime. This most basic fact of war seems entirely lost on Greenwald.

Not once in his article does Greenwald even acknowledge that we are at war with a global enemy bent on destroying us. He does refer to 9/11 as an “attack,” but later describes it as a “trauma,” as if it were some multi-car highway accident that overloaded the local emergency rooms. Most tellingly, he describes Congress’s efforts to kick U.S. surveillance into high gear after the 9/11 attack as “knee-jerk,” and bemoans the fact that our surveillance efforts have not abated “even as we approach almost a full decade of emotional and temporal distance from that event.” Greenwald seems not to understand that the trigger date for a reduction in wartime surveillance efforts should be the conclusion of the war, not its onset! I will be more than happy to join Mr. Greenwald in expressing concern about our surveillance efforts if they are still in place ten years (or even one or two years) after the war ends, but I’d like to see us first defeat the enemy who would destroy us before unilaterally dismantling our efforts in the single most important front of this asymmetrical war.

Greenwald’s extremely flawed (and dangerous) mindset discolors the rest of his analysis, and I want to focus on his legal claims. They are numerous, but they all tee off a single contention, that the Bush administration’s surveillance efforts were “lawless,” and that when they were disclosed, Congress “legalized” them rather than repudiating them. The evidence for the “lawless” charge? Two federal district court judges (Judge Anna Diggs Taylor and Judge Vaughn Walker — yes, the same Vaughn Walker that just held California’s traditional marriage law unconstitutional) and an appellate court judge (Judge Ronald Gilman, writing in dissent!) have said so.

Judge Taylor’s laughably simplistic and erroneous decision has already been reversed on appeal, and Judge Walker’s is pending appeal, with the Obama administration vigorously challenging its holding. But even if that holding is upheld, it stands simply for the proposition that the surveillance program violated the Foreign Intelligence Surveillance Act (“FISA”). It does not resolve the following much more difficult questions: 1) whether the Authorization for the Use of Military Force (“AUMF”), Pub. L. No. 107-40, § 2(a), 115 Stat. 224, 224 (Sept. 18, 2001), passed by Congress one week after 9/11, gave authority to the President beyond that conveyed in FISA; and if it did not, 2) whether Congress’s attempt with FISA to curtail the President’s Commander-in-Chief powers, if applied in wartime, is constitutional.

On the former, the Supreme Court has already held that another federal statute — the Anti-Detention Act of 1971 — was superseded by the AUMF because detention of enemy combatants is a well-established incident of military authority in time of war. See Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004). Surely surveillance of enemy communications, which is what the NSA Surveillance program targeted, equally qualifies as a well-established incident of military authority in time of war.

But even absent the authority granted by Congress to the President under the AUMF, the President has authority of his own directly from Article II of the Constitution, authority that cannot be restricted by an Act of Congress. The open question is whether the ability to conduct surveillance of enemy communications during time of war, even if one end of those communications is within the borders of the United States, is part of the President’s constitutional authority. Existing Supreme Court precedent in analogous contexts strongly suggests that it is, and an intermediate appellate court decision dealing specifically with FISA expressly so states.

Here’s the ruling by the highest court to have considered the issue, directly on point: “We take for granted that the President does have [inherent authority to conduct warrantless searches to obtain foreign intelligence information], and, assuming that is so, FISA could not encroach on the President’s constitutional power.” In re Sealed Case, 310 F.3d 717 (U.S. Foreign Intell. Surveillance Ct. Rev. 2002) (emphasis added). As I elaborated upon in my 2006 testimony before the U.S. House of Representatives Permanent Select Committee on Intelligence, and again in my 2007 testimony before the U.S. Commission on Civil Rights, the point that the FISA Court of Review took for granted is well-grounded in Supreme Court precedent, in such cases as United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936) (“[t]he President is the sole organ of the nation in its external relations,” “and Congress itself is powerless to invade” the President’s constitutional authority in that realm), United States v. Reynolds, 345 U.S. 1, 10 (1953) (upholding government’s claim of privilege to prevent disclosure of classified information about military electronics equipment), and United States v. Ramsey, 431 U.S. 606 (1977) (upholding warrantless searches of mail at the border and even at a postal facility inside the border, as an exercise of inherent sovereign power).

Congress itself recognized in the AUMF that the President has inherent authority, when it noted that “the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States … .” AUMF, Preamble, PL 107-40, 115 Stat. 224 (Sept. 18, 2001) (emphasis added). The AUMF preamble also reflects the view of Congress prior to the adoption of FISA, when it expressly recognized 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… .” 82 Stat. 214, formerly codified at 18 U.S.C. § 2511(3) (emphasis added).

Every presidential administration since electronic surveillance technology was developed has taken the same view. Indeed, the notion that Congress cannot by mere statute truncate powers the President holds directly from the Constitution is a common feature of executive branch communications with the Congress. Two examples from a thorough and persuasive 2006 report from the Department of Justice entitled “Legal Authorities Supporting the Activities of the National Security Agency Described by the President” (“DOJ Report”), are particularly revealing. Griffin Bell, President Jimmy Carter’s Attorney General, testified during debate in Congress over the adoption of FISA that, although FISA did not recognize any inherent power of the President, it “does not take away the power [of] the President under the Constitution.” DOJ Report at 8 (citing Foreign Intelligence Electronic Surveillance Act of 1978: Hearings on H.R. 5764, H.R. 9745, H.R. 7308, and H.R. 5632 Before the Subcomm. on Legislation of the House Comm. on Intelligence, 95th Cong., 2d Sess. 15 (1978) (Statement of Attorney General Bell)). And President Clinton’s Deputy Attorney General, Jamie Gorelick, made a similar point while testifying before Congress when amendments to FISA were being considered in 1994: “[T]he Department of Justice believes, and the case law supports, that the President has inherent authority to conduct warrantless physical searches for foreign intelligence purposes … .” DOJ Report at 8 (citing “Amending the Foreign Intelligence Surveillance Act: Hearings Before the House Permanent Select Comm. On Intelligence, 103d Cong. 2d Sess. 61 (1994) (statement of Deputy Attorney General Jamie S. Gorelick)). An equally compelling historical analysis, elaborating on the longstanding recognition of presidential power in wartime, was published by Cato’s own Roger Pilon in the 2009 Chapman Law Review. I commend that work to Greenwald’s attention as well.

In his dissenting opinion in Terminiello v. Chicago, 337 U.S. 1, 37 (1949), Justice Robert Jackson famously warned of the “danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.” Nowhere is that warning more appropriate than in wartime, and arguably at no time in our nation’s history has it been more urgent than now.

Also from this issue

Lead Essay

  • In his lead essay, Glenn Greenwald argues that the digital surveillance state is out of control. It intercepts our phone calls, keeps track of our prescription drug use, monitors our email, and keeps tabs on us wherever we go. For all that, it doesn’t appear to be making us safer. Accountability has been lost, civil liberties are disappearing, and the public-private partnerships in this area of government action raise serious questions about the democratic process itself. It’s time we stood up to do something about it.

Response Essays

  • John Eastman argues that the U.S. Constitution grants the President the authority to conduct surveillance of national enemies during wartime, including electronic surveillance. The Foreign Intelligence Surveillance Act cannot properly encroach on this power, and in fact it does no such thing. Warrantless wiretaps are therefore both strategically appropriate and constitutional. The nation remains at war, and such measures will remain appropriate at least until the end of hostilities.

  • Paul Rosenzweig argues that Glenn Greenwald has underestimated the continued oversight function of Congress, the media, and public-interest watchdog groups. He adds that effectiveness — while difficult to measure — appears to have been reasonably good. He concludes that privacy and civil liberties advocates need to save their fire for genuinely abusive programs, not mere threats or possibilities of abuse

  • Julian Sanchez draws our attention to the wider picture: The surveillance state extends beyond one or another potentially objectionable program. Its roots are structural, in the ease with which data can be collected and analyzed today. It is and will continue to be very important to get the legal and technological architecture of surveillance right. Creating mechanisms and institutions that safeguard the innocent and prevent abuses of power is an enormous challenge. Even building an abuse-free surveillance state would not do, because we cannot guarantee that it will be managed only by benign administrators.