The Legal Justifications For Domestic Surveillance: A Summary

Late last week, the Department of Justice released two memos authored by Lawfare's own Jack Goldsmith back when he was the head of the Office of Legal Counsel ("OLC") in the Bush Administration. The memos provide the most comprehensive legal analysis to date of the surveillance program codenamed STELLAR WIND, which President Bush initiated in October 2001 to intercept terrorist communications within the United States. What follows is the CliffNotes version: a brief, yet thorough summary of the memos' contents. Both memos are well worth reading in full. (N.B.: Jack Goldsmith played no role in the editing of this post.) The first memo, dated May 6, 2004, begins with an extensive—and extensively redacted—history of STELLAR WIND, from its inception in the wake of the September 11, 2001, terrorist attacks to its periodic reauthorization and occasional modification to reflect the evolving methods for tracking terrorist threats. The heart of the memo is its substantive legal analysis, beginning with a brief and completely redacted portion on the applicability of Executive Order 12,333. The memo then turns to analysis of the content collection portion of STELLAR WIND under the Foreign Intelligence Surveillance Act ("FISA") and title III of the Omnibus Crime Control and Safe Streets Act of 1968. Although FISA declares that it is "the exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted," the memo explains that reading FISA to prohibit STELLAR WIND would render FISA unconstitutional as applied in those circumstances as an "impermissible infringement" on the President's inherent constitutional authority as Commander in Chief to conduct warrantless electronic surveillance for foreign intelligence purposes. Instead, statutes should be read where "fairly possible" to avoid an unconstitutional congressional encroachment on executive power. One must also read FISA in conjunction with the 2001 Authorization for Use of Military Force ("AUMF"), which authorizes the President "to use all necessary and appropriate force"—including signals intelligence activities—to destroy al-Qaeda and affiliated organizations, "effectively exempt[ing]" surveillance targeting those groups from the requirements of FISA. The memo relies on the circumstances under which Congress passed the AUMF and preambulatory language in the AUMF as further evidence that Congress, when passing the law, "certainly contemplated the possibility of military action within the United States." In a footnote, the memo notes that similar analysis has been used to justify the government's policies concerning detention of enemy combatants. While acknowledging that Congress subsequently amended FISA in the PATRIOT Act, potentially indicating that the AUMF did not alter FISA, the memo contends that the FISA amendments reflect a more general need to update FISA, while the AUMF only applies in a narrow context—the conflict against al-Qaeda—and so "eliminates the restrictions of FISA solely for that category of foreign intelligence surveillance cases." Even if the AUMF cannot be read so broadly, the memo argues in the alternative that the congressional authorization "creates sufficient ambiguity concerning the application of FISA that it justifies" reading FISA so as not to conflict with STELLAR WIND under the canon of constitutional avoidance. Returning to the President's inherent authority to conduct foreign intelligence surveillance, the memo next examines whether the Fourth Amendment prohibition against "unreasonable searches and seizures" imposes a warrant requirement on such surveillance. A number of Supreme Court cases have declined to require warrants "when the government faces an increased need to be able to react swiftly and flexibly, or when there are interests in public safety at stake beyond the interests in law enforcement," instead looking to the "reasonableness" of the search in question. Given the particularly sensitive and fluid nature of foreign intelligence, as well as the Executive Branch's expertise in the area of national security, it is no surprise, says the memo, that "every federal court that has ruled on the question has concluded that, even in peacetime, the President has inherent constitutional authority, consistent with the Fourth Amendment, to conduct searches for foreign intelligence purposes without securing a judicial warrant." The President's authority is only enhanced in the context of STELLAR WIND, which is part of an ongoing armed conflict. Although the President has inherent constitutional authority to conduct such surveillance, the question remains whether Congress may impose restrictions on that authority through FISA. Using Justice Jackson's framework in the Steel Seizure Case, the memo classifies this question as falling under "category III," that is, where Congress has expressly restricted the President's constitutional authority as Commander in Chief. Court decisions and prior OLC opinions have assigned the President "the preeminent role in handling the foreign affairs" of the United States, based in the Vesting Clause of Article II of the Constitution. Some aspects of the President's foreign affairs power are solely placed in the Executive Branch, such that Congress may not interfere by legislation. Is foreign intelligence surveillance one such area? While the memo calls this a "difficult question," it notes that none of Congress's enumerated powers in Article I, Section 8 of the Constitution clearly provide the legislature with the authority to act in this area. In fact, at FISA's inception there was considerable doubt as to its constitutionality. Even if FISA's restrictions are generally constitutional, the memo goes on to explain that they are unconstitutional as applied to STELLAR WIND, which is founded not only in the President's role as Chief Executive and "sole organ for the Nation in foreign affairs" under the Vesting Clause, but also in his role as Commander in Chief in an ongoing armed conflict. In summarizing the above discussion, the memo concludes that

[W]hen the Nation has been thrust into an armed conflict by a foreign attack on the United States and the President determines in his role as Commander in Chief and sole organ for the Nation in foreign affairs that it is essential for defense against a further foreign attack to use the signals intelligence capabilities of the Department of Defense within the United States, he has inherent constitutional authority to direct electronic surveillance without a warrant to intercept the suspected communications of the enemy—an authority that Congress cannot curtail.

The memo next includes a nearly entirely redacted discussion of the legality of STELLAR WIND's telephony metadata program—which collects the phone numbers of the calling and called parties, date, time, and duration of calls—followed by a four-page analysis of an issue so secret that even the subject of that discussion is redacted. Finally, the memo returns to the Fourth Amendment for a more comprehensive analysis of STELLAR WIND. While noting that there "may be a sound argument" that the Fourth Amendment does not apply at all to military operations like STELLAR WIND, the memo assumes for the sake of argument that STELLAR WIND is subject, in part, to the Fourth Amendment's "reasonableness" prong, even if, as previously outlined, the warrant requirement does not apply. The standard test for reasonableness finds a search constitutional when the nature of the government's interests in such a search outweighs the degree to which the search intrudes upon an individual's privacy. Under the Supreme Court's decision in Smith v. Maryland, the memo concludes that this test only applies to the content collection portion of STELLAR WIND, and not the metadata portion. In the case of the content collection, the relevant interests are, one the one hand, an individual's "substantial and constitutionally protected reasonable expectation of privacy that their telephone conversations will not be subject to governmental eavesdropping," and, on the other hand, "the most compelling interest possible—securing the Nation from foreign attack in the midst of an armed conflict." Relying on previous OLC opinions on this question, the memo concludes that the government's interest in preventing future attacks by al-Qaeda "is easily sufficient" to justify the interception of communications. Acknowledging that the nature of the government's interest may change over time, the memo finds it sufficient that the STELLAR WIND program is authorized for limited periods of time—usually 30 to 45 days—and the "justification for the program is regularly reexamined." Finally, it is important to the Fourth Amendment analysis that the program only targets "communications for which there is already a reasonable basis to think there is a terrorism connection." The much shorter second memo by Goldsmith, dated July 16, 2004, addresses itself specifically to the implications of the Supreme Court's ruling in Hamdi v. Rumsfeld in June 2004 for the earlier analysis. In particular, the Hamdi decision provided five votes—the plurality opinion plus Justice Thomas's dissent—in favor of a broad reading of the 2001 AUMF, finding that it authorized the detention of enemy combatants as a "'fundamental' and 'accepted' incident of waging war." The same logic applies to surveillance of enemy communications, the memo explains.