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

Ken Gormley
Associate Professor of Constitutional Law
Duquesne University School of Law

Thank you very much. Chairman Specter and members of the committee, it's a great privilege to testify today.

And as Senator Specter said, I have had the good fortune of studying the issue of presidential power, and specifically the steel seizure case, often described as the granddaddy of the cases dealing with presidential power, especially on American soil. And my written testimony contains a lengthy summary of that.

Let me just summarize the problems I do see with the current Bush administration's secret surveillance program, acknowledging that I believe it flows from good faith efforts to wage a crucial war on terror. Then I'd like to talk about solutions.

Justice Jackson, as you know, declared in his famous concurrence in that case that presidential power is at the high point of the theatre of war abroad. It's at its low ebb on American turf, especially when the president has acted without constitutional or congressional support. Applying that president, I see four problems with the current surveillance program.

Nothing, first, in the text of the Constitution specifically gives the president power to conduct such secret warrantless surveillance on the domestic front, even in times of emergency.

Second, the administration specifically bypasses an act of Congress that, in creating the FISA court, that directly deals with precisely these sorts of surveillance efforts with respect to citizens of the United States and residents.

Third, the president's power -- and this is important -- the president's power is further diminished because the program directly collides with rights of American persons under the Bill of Rights, specifically the Fourth Amendment. And this collision, I should point out, potentially puts President Bush's power even at a lower point than President Truman's in the steel seizure case.

And fourth, this is interesting, if you adapt the steel seizure test and apply it to Congress, you discover that, unlike the president, Congress is at its zenith of power here. Congress has the power to establish inferior courts under Article I, which it has done in establishing the FISA court. It has the power to enact laws to ensure that Fourth Amendment rights and Bill of Rights protections are safeguarded, as it has done since the 1960s with wiretap laws. So Congress is at its high point here. The president is at low ebb.

So how does this committee give the president the tools he needs to fight the war on terror while still making sure that no constitutional shortcuts are taken?

Here's a very quick summary.

First, the existing FISA statute I believe should be used as a starting point. It works. It's been in place for 28 years. It's the best framework for any new legislation.

Second, a mechanism has to be created for judicial review. Congressional oversight is important, yes. And I have proposed a form of that in my written comments, that any secret surveillance legislation that makes it impossible to test the constitutionality of the program in the courts will end up violating the separation of powers doctrine as well as the Fourth Amendment. Probable cause by definition includes the participation of neutral and detached judges. So it's key that the FISA court be included in the process, albeit to make sure it operates in a highly secure fashion.

Third, a mechanism just be created to allow standing for aggrieved parties so that a valid case or controversy can be created in the courts. As you know, this is very complicated stuff. I've attempted to spell out some suggestions in my written testimony. I think there are ways to accomplish standing legitimately. My proposal would put the intelligence committees of Congress in the role of inter-mediator in order to permit valid cases and controversies to be presented to the courts without jeopardizing national security.

And fourth, the United States Supreme Court must possess the final power of review. All roads have to lead to the Supreme Court here. Even Congress can't write the Supreme Court of Article III.

And fifth, the intake valve in what's funneled into the FISA court has to remain extremely narrow. Any new legislation has to be fine-tuned carefully. When it comes to surveillance of American citizens in secret, this should be a rare thing, to be limited to cases where there is an awfully good reason to believe there's someone linked to terrorism on the other end of the communication. I think that still needs some tweaking.

Let me just end by saying, Mr. Chairman, there is no question in my mind that President Bush and his advisers and the attorney general are doing everything humanly possible to do the right thing for our country here, just as Harry Truman did in 1952 in the steel seizure case. He thought it was essential to seize those steel mills in order to protect American troops in the field of battle.

President Bush confronts a world quite different than any other previous president. This is serious business. There should be no finger pointing here. At the same time, this Congress has clearly defined powers under the Constitution. It has a duty to our system of government to ensure that these are now disemboweled or diminished in any way by any other branch of government however well intentioned.

Some of the draft legislation I believe is a positive step in that direction. This is not about right or wrong, Mr. Chairman, it's about attempting to find some common constitutional ground among equally well-intentioned public officials and branches of government, and I pray that we as a nation are still capable of doing that. Thank you for the privilege of testifying.