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

Doug W. Kmiec
Pepperdine University School of Law

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

I believe there's a common objective between the president and the Congress, and of course that common objective is to prevent further attack. One of the things that was immediately recognized after 9/11, recognized by both the president and by the Congress, was that there were missed opportunities to unravel that plot through enhanced surveillance.

The Joint Independent Inquiry of the Select Intelligence Committee recognized that as well as recognize that there was a perception that FISA wasn't working because of its lengthy process. So there was a legal issue. Did the president have the authority to address that question?

The president's lawyers in the white house concluded that he did. The chair of the Senate Intelligence Committee concluded that he did. The attorney general in a eloquent statement to you on February 6th illustrated why he concluded that he did. And I affirm these conclusions as both constitutionally reasonable, practically justified and necessary.

Now, in my written testimony I give detailed support for that conclusion, but in a nutshell it is this. That Congress through FISA was seeking to address a political abuse of the use of surveillance it was important for them to address that abuse, they did, and it has been stopped. That Congress through FISA was taking up Justice Powell's suggestion in the Keith case that domestic security while needing to comply with the fourth amendment did not need to comply precisely in the same way it could be done through a specialized court and specialized determinations of particularity and probable cause.

But Congress also chose to launch into an area that is very difficult because there is authority in both Congress and the president with regard to issues of foreign intelligence. Griffin Bell cautioned the Congress on this score, and they responded to that caution with a number of provisions in FISA that basically anticipated the need for specialized legislation in the event of wartime, and I believe that specialized legislation has been passed in the form of the authorization for the use of military force, and that fully authorizes as the Supreme Court has held in Hamdi that the president can use all incidents of war to wage war successfully.

Now, I recognize that reasonable minds can differ on this question. Reasonable minds have been differing on this question since Madison and Hamilton had a debate about the neutrality policies of the United States. Justice Jackson himself disagreed with FDR on some questions with regard to foreign affairs authorities. Of course, this body disagreed to some degree with President Reagan in matters of Iran-Contra.

But the fact that these questions have been debated perennially since the time of our founding, certainly does not mean that these disagreements are illegal or that they call for the appointment of a special counsel. Such rhetoric it seems to me to be partisan, unnecessary, unfortunate and unwise.

The American poet, T.S. Elliot, observed that war is not life, it is a situation. It is a situation which can neither be ignored nor accepted. The war on terror cannot be ignored, and the prospect of further attack cannot be accepted.

So, I think the real constructive purpose of this hearing, Mr. Chairman, is not to have recriminations about legality or illegality because there is a genuine argument on both sides of that question, but rather to pursue the issue of what is the appropriate course as we go forward. And I know that legislation has been drafted for our consideration. And my sense with regard to that legislation is to give it a qualified affirmation. It is qualified as it must be because, of course, any legislation in this area must always maintain focus on the primary objective to prevent attack. And to the extent that it fails to accomplish that objective, it must be rejected.

But if it does in fact authorize a program warrant requirement that meets constitutional specifications, and I believe in many respects it does, then it is striking a more appropriate balance between the legislature and the executive, and I hope to answer your specific questions about the legislation in the questions that are to come.

Thank you, sir.