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

Robert F. Turner
Associate Director
Center for National Security Law
University of Virginia

Thank you, Mr. Chairman, it's an honor to be here. I hope that our question period will provide an opportunity to talk both about the power of the purse and also about the statutory authorization. I think a case can be made that the AUMF did authorize these intercepts, but that's -- I've got five minutes, so let me focus on the more important issues.

I share the view that no one, including the president, is above the law. But I would emphasize when we're talking about law that the constitution comes first, as the chairman did in his opening remarks. Chief Justice John Marshall told us in Marbury, "An act of the legislature repugnant to the constitution is void." I think there's a place for FISA, but the bill needs to include a recognition of the president's independent constitutional power to act in this area, as Attorney General Griffin Bell mentioned during the Carter administration when he testified before the Senate in 1978.

During these hearings it's been suggested that unchecked presidential power is incompatible with democratic governance. Once again I would call your attention to Marbury v. Madison, where Chief Justice Marshall noted, "By the Constitution of the Untied States, the president is invested with certain important political powers, in the exercise of which he is to use his own discretion and is accountable only to his country and his political character and to his conscience."

"Whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists and can exist no power to control that discretion." At the core of executive discretion, I submit, is the control of foreign intelligence during wartime. As John Jay noted in Federalist 64, the convention have done well in so dividing the treaty powers that, quote, "The president will be able to manage the business of intelligence as prudence might suggest."

When the founding fathers vested the executive power in the president in Article 2, Section 1, they gave the general control of foreign intercourse to the president, subject only to narrowly construed negatives or checks vested in the Senate or Congress. As I document in my written statement, George Washington, James Madison, Thomas Jefferson, John Jay, Alexander Hamilton and John Marshall all specifically referred to the executive power grant as the reason for the president's control in this area.

As Jefferson put it in 1790, quote, "The transaction of business with foreign nations is executive altogether." And the need for secrecy was central to the decision to vest not only foreign intelligence but also the negotiation of treaties exclusively in the president.

As the Supreme Court noted in the landmark 1936 Curtiss-Wright decision, "Into the field of negotiation the Senate cannot intrude and Congress itself is powerless to invade it." Sadly, since Vietnam, senators have too often breached this barrier. In my prepared (rendition ?) of the Fifth Amendment, similarly the Keith case has been greatly misunderstood. Like Justice Black in Douglas, Justice Powell for the unanimous court in Keith, repeatedly emphasized the case involved internal threats from domestic organizations, in this case the Black Panthers. And he noted that -- we think this -- the court took no position on the president's power with respect to foreign powers within or without this country.

I would add that the argument that FISA was enacted in response to an invitation from the Supreme Court is simply not accurate. What Justice Powell said was, given those potential distinctions between title 3 -- that is, Title 3 of the '68 Crime Control and Safe Streets Act -- criminal surveillance and those involving the domestic security, that is, groups like the Black Panthers, Congress may with to consider protective standards for the latter -- that is, domestic security -- which differ from those in Title 2.

The court made no suggestion that Congress should put any constraints on foreign intelligence gathering. And the courts have clearly sided with the president, as have all the presidents. In 2002 the Foreign Intelligence Surveillance Court noted that every court that had considered the issue had held the president did have inherent authority under the Constitution to conduct warrantless searches to obtain foreign intelligence. And the court went on to say, we take it for granted the president does have that authority, and assuming that is so, FISA could not take away that presidential power.

Finally, Mr. Chairman, I would note that FISA has done serious harm to this nation. Coleen Rowley was Time's Woman of the Year because she complained that the FBI would not even request a FISA warrant. In fact I'm sure, as you know, the reason the FBI would not request a FISA warrant was because Congress had failed to consider the possibility of a lone wolf terrorist like Zacharias Moussaoui, and the statute made it clearly illegal to get a warrant to look at his laptop.

FISA was amended in 2004 to fix that.

General Michael Hayden, a former head of NSA, has said that if this program had been legal back before 9/11 it might have prevented those attacks. But it made -- it prohibited the China program. We've heard a lot of talk about risk avoidance culture in the intelligence community. Go back. I followed the church hearings. I was here at the time. Look at the fact you've made felony penalties for intelligence agents to step over the line, even if they do so with presidential authority. So, with that I thank you, senator.