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

Robert Levy, Esq.
Senior Fellow in Constitutional Studies
CATO Institute

Mr. Chairman and members, thank you very much for inviting me to testify.

I'd like to discuss four legal questions related to the surveillance program, and first, do NSA warrantless domestic wire taps necessarily violate fourth amendment protections against unreasonable searches? My answer to that is, no, they do not, not necessarily. There are numerous exceptions to the warrant requirement, including high pursuit, search incident to arrest, stop and frisk and others. And as for national security, that's an open issue as to whether there's an exception.

Under the Keith case in 1972 the court indicated that it was plausible that the administration could conduct some types of warrantless wire taps without violating the fourth amendment if a foreign power were involved.

The second question though, what about the FISA statute? Doesn't the NSA program violate its express terms? My answer to that question is, yes, the text is unambiguous, a person is guilty of an offence, if he intentionally engages in electronic surveillance except as authorized by statute.

Now, to be sure, FISA was drafted to deal with peace time intelligence, but that does not mean that it's inapplicable in the post-9/11 war on terror. In fact, Congress expressly contemplated warrantless wire taps during wartime and limited them to the first 15 days after war declared. And, furthermore, FISA was amended by the Patriot Act, passing in response to 9/11, and signed by President Bush. So, if 9/11 triggered wartime, as the administration has repeatedly argued, then the amended FISA statute is clearly a wartime statute.

The third question. Does the authorization for use of military force provide the statutory approval that FISA requires? Answer, no, it does not. A settled canon of statutory interpretation is that specific provisions supersede general provisions. When FISA forbids electronic surveillance without a court order, except for 15 days, while the AUMF permits necessary and appropriate force, it seems to me quite simply bizarre to argue that electronic surveillance is thereby authorized without a warrant.

Now, Congress in passing the AUMF did not intend to make compliance with FISA optional. In fact, Congress was simultaneously relaxing selected surveillance provisions via the Patriot Act. To my knowledge, not a single member of Congress among the 518 members who supported, who voted for the AUMF, now claims that his vote changed domestic wire tapping rules.

Fourth question, and most difficult. Do the president's inherent wartime powers allow him to ignore FISA? My answer is, no. Now, that's not to say that the president is powerless to order warrantless wartime surveillance. For example, intercepting enemy communications on the battlefield is clearly an incident of his war power, but warrantless wire tapping of Americans inside the United States who may have nothing to do with al Qaeda does not qualify as incidental wartime authority.

The president's war powers are broad, but they are not boundless, and indeed, they are not exclusive. The power to grant pardons, for example, is exclusive. Congress could not make an exception for persons convicted of, let us say, child abuse. But war powers are not exclusive, they are shared between the president and Congress. It is Congress, not the president, that's constitutionally authorized to declare war, suspend habeas, to find and punish offences against the law of nations, make rules concerning captures on land and water.

The real question is not whether the president has some inherent authority to conduct warrantless surveillance. He does. The tougher question is to determine the scope of his authority in the face of Congress's concurrent powers. In the key Supreme Court case, as you know, is Justice Jackson's concurrence in Youngstown Sheet and Tube v Sawyer. Clearly, the NSA surveillance program belongs in Youngstown's third category in which the president has acted in the face of an express statutory prohibition.

In my view, he has over-reached. The executive branch may be justified in taking measures that in pre-9/11 times could be seen as infringements of civil liberties, but the president cannot in the face of an express prohibition by Congress unilaterally set the rules, execute the rules and eliminate oversight by the other branches. In short, the NSA surveillance program under current law is illegal.

Now, in the 20 seconds remaining I'd like to comment on Director Woolsey's statement that the battlefield is here at home. Calls from the actual battlefield, Afghanistan, or anywhere else outside the United States, can be monitored under current rules under FISA as long as the target is not a U.S. person in the U.S. So, to suggest that calls can't be monitored is a mistake. A call from France or the U.K. cannot be construed as battlefield related unless the term "battlefield" has no geographic limits. And, indeed, if France is part of the battlefield, why not Nebraska? The same logic that argues for warrantless surveillance of foreign communications would permit warrantless surveillance of domestic communications as well.

Thank you, Mr. Chairman.