United States Senate Committee on the Judiciary
"Wartime Executive Power and the NSA's Surveillance Authority II"
February 28, 2006

Harold Hongju Koh
Yale Law School

Thank you, Mr. Chairman, and members of the committee.

In my career I've had the privilege of serving our government in both republican and democratic administrations, and I've also sued both republican and democratic administrations when I thought their conduct was unlawful. In my professional opinion, the NSA domestic surveillance program is as blatantly illegal a program as I've seen, and my reasons are given not just in my written testimony but also in two letters that were sent to you by myself and a number of constitutional law scholars and former government officials, as well as in the ABA taskforce report, for which I served as an adviser.

Now, I say this fully aware of the ongoing threat from al Qaeda and the need for law enforcement officials to gather vital information. And, 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 requires that any government surveillance be reasonable, statutorily authorized, supported except in emergencies by court ordered warrants, and based on probable cause.

The current NSA program is blatantly illegal because it lacks all of these standards, and the Supreme Court has never upheld such a sweeping, unchecked power of government to invade the privacy of Americans without individualized suspicion, congressional authorization or judicial oversight.

For nearly 30 years the FISA, the Foreign Intelligence Surveillance Act, has provided a comprehensive, constitutional, and using its words, exclusive framework for electronic surveillance. Under FISA executive officials can conduct electronic surveillance of Americans, but they can do so without a warrant for only three days, or in case of wartime, for 15 days, after a declaration of war.

After that they must either go to the special court for an order, or come to Congress for an amendment, or stand in violation of the criminal law. This was based on a simple logic. Before the president launches an extended domestic spying program his lawyers must get approval from someone who does not work for him, yet that's precisely what has happened here, what has not happened here.

Now, of course, I agree with Director Woolsey that we can and should aggressively fight terrorism, but fighting terrorism outside the law is deeply counter-productive. Under the ongoing program NSA analysts are increasingly caught between following orders and carrying out electronic surveillance that's facially illegal, and moreover evidence collected under the program will almost surely be challenged and it may prove inadmissible, making it far more difficult to prosecute terrorists.

With respect, none of the program's defenders has identified any convincing defense for conducting such a sweeping program without congressional authorization and oversight and judicial review.

And in my testimony I review and reject those defenses, including the extraordinary claim that you here in Congress enacted the use of force resolution to repeal the FISA which had in fact criminalized unauthorized, indefinite, warrantless, domestic wire tapping 23 years earlier.

Most fundamentally, my testimony rejects the radical view of unchecked executive authority that's offered by some of my fellow witnesses. That unilateral vision offends the vision of shared national security power that's central to what Justice Jackson called the equilibrium established by our constitutional system. Read literally, the president's reading of the constitution would turn this body into a pointless rubber stamp whose limited role in the war on terror would be enacting laws that the president could ignore at will and issuing blank checks that the president can redefine at will.

Finally, Mr. Chairman, I've had a chance to look at the proposed bill to refine and amend the FISA. I don't think it will improve the situation. First, as you say, it is radically premature. Congress simply does not have enough information to conduct such a broad revision at this time. Second, remember that the president has refused for four years to operate within the FISA framework. Unless the president acknowledges that he must obey the FISA amendments, and agrees to operate within it, any new congressional action will be equally meaningless.

And, third, the proposal pre-authorizes programs, not particular searches, and a result it gives a general warrant to a significant number of unreasonable searches and seizures. This resembles the statutory version of the British general warrant that was used in the 1700s by the King. But it's precisely because English law did not protect our privacy that our colonial ancestor said that even when the president in wartime is our commander-in-chief, we have a right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, and no warrant shall issue except on probable cause, and that persons are things to be seen being stated with particularity.

In summary, Mr. Chairman, for four years our government has been conducting an illegal program and now wants to rewrite the constitution to say that that program is lawful. This committee should reject those claims.

Thank you.