Prof. Robert F. Turner Center for National Security Law University of Virginia School of Law

1. FISA vs. THE CONSTITUTION:Why the Foreign Intelligence Surveillance Actis Unconstitutional and How It Contributed tothe Success of the 9/11 Attacks Prof. Robert F. Turner Center for National Security Law University of Virginia School of Law

2. Two Distinct Issues • Statutory Issue — Did the 2001 AUMF authorize the President to collect foreign intelligence outside of FISA? • Constitutional Issues — Does the Constitution empower the President to collect foreign intelligence during wartime; and, if so, could Congress by statute deny that power to the President with FISA?

3. Two Distinct Issues The President wins if he prevails on either issue. The Justice Department has focused primarily on the statutory argument. I think by far the most important and interesting issue is the constitutional one.

4. The Statutory Issue Did the AUMF Authorize the Collection of Foreign Intelligence Outside FISA?

5. Effect of AUMF? • Justice Dep’t claims passage of AUMF on Sept. 18, 2001, authorized collection of foreign intelligence information outside of FISA. • Critics note AUMF made no mention of FISA and legislators say they did not believe they were changing FISA.

6. Authorization for Use of Military ForcePub. L. 107-40 (Sept. 18, 2001) “[T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

7. Authorization for Use of Military ForcePub. L. 107-40 (Sept. 18, 2001) This clearly authorized many actions beyond actually “using force” (shooting, bombing, firing missiles, etc.) against the enemy: • Transporting troops and supplies to combat zone; • Negotiating SOF agreements, overflight agreements, and the like; • Finding out where the enemy is located and discovering its plans; • Measures necessary to protect U.S. forces, population, and territory from further attacks. But the AUMF didn’t mentionany of these, and many in Congress likely didn’t think of them.

8. Supreme Court Interpretationof AUMF in Hamdi We hold that . . . Congress authorized the detention of combatants in the narrow circumstances alleged here . . . . We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the "necessary and appropriate force" Congress has authorized the President to use. - Hamdi v. Rumsfeld, Opinion of Justice O’Connor

9. Importance of IntelligenceCollection During Wartime • Had we not broken German and Japanese codes during WW II, we might be speaking German or Japanese today. At minimum, the war would have continued for years. • To “use force” against enemy, we must have intelligence on who and where they are. • Gathering intelligence on al Qaeda is FAR more important than detaining the few American citizens fighting with the enemy.

10. Non-Detention Act (1971) “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” 18 U.S.C. § 4001(a)

11. AUMF Issue: Conclusions • It may well be true that no one in Congress believed they were changing FISA and the AUMF didn’t mention FISA; but equally true they didn’t mention and probably didn’t realize they were changing the Non-Detention Act — and Hamdi was a U.S. Citizen. • Gathering foreign intelligence in wartime clearly a “fundamental and accepted . . . Incident to war.”

12. AUMF Issue: Conclusions • It may well be true that no one in Congress believed they were changing FISA and the AUMF didn’t mention FISA; but equally true they didn’t mention and probably didn’t realize they were changing the Non-Detention Act — and Hamdi was a U.S. Citizen. • Gathering foreign intelligence in wartime clearly a “fundamental and accepted . . . Incident to war.” Under Hamdi, the President clearly wins this dispute in my view.

13. The Constitutional Issues Does the Constitution empower the President to collect foreign intelligence? If so, could Congress limit that power by enacting FISA?

14. Correcting a Modern Myth How many times have we heard in recent months that in a democracy every governmental power must be “checked”; and, when President Bush claims he has “independent” Executive power Congress can’t control, he is claiming the powers of a monarch like King George III?

15. Correcting a Modern Myth How many times have we heard in recent months that in a democracy every governmental power must be “checked”; and, when President Bush claims he has “independent” Executive power Congress can’t control, he is claiming the powers of a monarch like King George III? ?

16. Have we forgottenMarbury v. Madison?

17. Does the President Have Any “Unchecked” Powers?Marbury v. Madison (Marshall, C.J.) “By the constitution of the United 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 in his political character, and to his own conscience. . . . [W]hatever 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. ”

18. Does the President Have Any “Unchecked” Powers?Marbury v. Madison (Marshall, C.J.) “The subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive. The application of this remark will be perceived by adverting to the act of congress for establishing the department of foreign affairs. This officer, as his duties were prescribed by that act, is to conform precisely to the will of the president. . . . The acts of such an officer, as an officer, can never be examinable by the courts.” -Marbury v. Madison (Marshall, C.J.)

19. Does the President Have Any “Unchecked” Powers?Marbury v. Madison (Marshall, C.J.) “The subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive. The application of this remark will be perceived by adverting to the act of congress for establishing the department of foreign affairs. This officer, as his duties were prescribed by that act, is to conform precisely to the will of the president. . . . The acts of such an officer, as an officer, can never be examinable by the courts.” -Marbury v. Madison (Marshall, C.J.) Sadly, this language is sometimes left out of Constitutional Law casebooks.

20. Textual Source of the President’sAuthority Over Foreign Affairs Where in the Constitution do we find a grant of foreign affairs power to the President? “The executive Power shall be vested in a President of the United States of America.” - U.S. Const., Art. II, Sec. 1.

21. Textual Source of the President’sAuthority Over Foreign Affairs “The executive Power shall be vested in a President of the United States of America.” - U.S. Const., Art. II, Sec. 1.

22. The Framer’s Understandingof “Executive Power” Locke, Montesquieu, Blackstone, and other theorists of the time included within the “executive” power the control over foreign affairs.

23. The Framer’s Understandingof “Executive Power” Thomas Jefferson described “Locke’s little book on government” as being “perfect, so far as it goes . . . .” Locke, Montesquieu, Blackstone, and other theorists of the time included within the “executive” power the control over foreign affairs.

24. The Framer’s Understandingof “Executive Power” In Federalist No. 47, James Madison described “the celebrated Montesquieu” as the “oracle who is always consulted and cited” on separation-of-powers issues. Locke, Montesquieu, Blackstone, and other theorists of the time included within the “executive” power the control over foreign affairs.

25. The Framer’s Understandingof “Executive Power” Blackstone’s Commentaries were the most popular law volumes in colonial libraries and were repeatedly cited with approval during the Philadelphia Convention. Locke, Montesquieu, Blackstone, and other theorists of the time included within the “executive” power the control over foreign affairs.

26. Professor Quincy Wright “The need of concentration of power for the successful conduct of foreign affairs was dwelt upon in the works of John Locke, Montesquieu, and Blackstone, the political Bibles of the constitutional fathers.” Quincy Wright, The Control of American Foreign Relations 363 (1922).

27. Professor Quincy Wright • In addition to teaching at Chicago, Harvard, and Virginia, Prof. Wright served as: • President, American Political Science Association • President, International Political Science Association; • President, American Society of International Law. “The need of concentration of power for the successful conduct of foreign affairs was dwelt upon in the works of John Locke, Montesquieu, and Blackstone, the political Bibles of the constitutional fathers.” Quincy Wright, The Control of American Foreign Relations 363 (1922).

28. Professor Quincy Wright I first became interested in this subject while attending a lecture by Professor Wright in 1966. “The need of concentration of power for the successful conduct of foreign affairs was dwelt upon in the works of John Locke, Montesquieu, and Blackstone, the political Bibles of the constitutional fathers.” Quincy Wright, The Control of American Foreign Relations 363 (1922).

29. Prof. William Goldsmithon Blackstone’s Influence “The Commentaries presenta Monarch who possesses close to absolute power in the realm of foreign policy as well as Commander in Chief of the Armed Forces, and who has the theoretical right at least to veto a provision of the Parliament. . . . [T]he Founding Fathers . . . were obviously greatly influenced by Blackstone’s definition of executive powers, and gave their democratic monarch many of the same responsibilities. 1 William M. Goldsmith, The Growth of Presidential Power 56 (1974).

30. Prof. Corwinon Executive Prerogative “The fact is that what the Framers had in mind was . . . the ‘balanced constitution’ of Locke, Montesquieu, and Blackstone, which carried with it the idea of a divided initiative in the matter of legislation and a broad range of autonomous executive power or ‘prerogative.’” Edward S. Corwin, The President: Office and Powers 14-15 (4th Rev. ed. 1957) (emphasis in original).

31. Prof. Lou Henkinon “Executive Power” “The executive power . . . was not defined because it was well understood by the Framers raised on Locke, Montesquieu and Blackstone.” - Foreign Affairs and the Constitution 43 (1972).

32. Thomas JeffersonMemorandum to President Washington (April 1790) How do we know the Founding Fathers accepted this theory of “Executive Power”? • “The transaction of business with foreign nations is executive altogether; it belongs, then to the head of that department , except as to such portions of it as are specially submitted to the Senate. Exceptions are to be construed strictly.”

33. Thomas JeffersonMemorandum to President Washington (April 1790) How do we know the Founding Fathers accepted this theory of “Executive Power”? Because they told us so. • “The transaction of business with foreign nations is executive altogether; it belongs, then to the head of that department , except as to such portions of it as are specially submitted to the Senate. Exceptions are to be construed strictly.”

34. Thomas JeffersonMemorandum to President Washington (April 1790) “The Constitution …. has declared that ‘the Executive power shall be vested in the President,’ submitting only special articles of it to a negative by the Senate ….

35. Thomas JeffersonMemorandum to President Washington (April 1790) “The transaction of business with foreign nations is executive altogether; it belongs, then to the head of that department , except as to such portions of it as are specially submitted to the Senate. Exceptions are to be construed strictly.”

36. Washington, Madison, and Chief Justice Jay on the Scope of “Executive Power” (1790) “Tuesday, 27th [April 1790]. Had some conversation with Mr. Madison on the propriety of consulting the Senate on the places to which it would be necessary to send persons in the Diplomatic line, and Consuls; and with respect to the grade of the first—His opinion coincides with Mr. Jay’s and Mr. Jefferson’s—to wit—that they have no Constitutional right to interfere with either, and that it might be impolitic to draw it into a precedent, their powers extending no farther than to an approbation or disapprobation of the person nominated by the President, all the rest being Executive and vested in the President by the Constitution.” - 4 Diaries of George Washington 122 (Regents’ Ed. 1925).

37. Washington, Madison, and Chief Justice Jay on Scope of “Executive Power” (1790) “Tuesday, 27th [April 1790]. Had some conversation with Mr. Madison on the propriety of consulting the Senate on the places to which it would be necessary to send persons in the Diplomatic line, and Consuls; and with respect to the grade of the first—His opinion coincides with Mr. Jay’s and Mr. Jefferson’s—to wit—that they have no Constitutional right to interfere with either, and that it might be impolitic to draw it into a precedent, their powers extending no farther than to an approbation or disapprobation of the person nominated by the President, all the rest being Executive and vested in the President by the Constitution.” - 4 Diaries of George Washington 122 (Regents’ Ed. 1925). James Madison is often called the “Father of the Constitution.”

38. Washington, Madison, and Chief Justice Jay on Scope of “Executive Power” (1790) “Tuesday, 27th [April 1790]. Had some conversation with Mr. Madison on the propriety of consulting the Senate on the places to which it would be necessary to send persons in the Diplomatic line, and Consuls; and with respect to the grade of the first—His opinion coincides with Mr. Jay’s and Mr. Jefferson’s—to wit—that they have no Constitutional right to interfere with either, and that it might be impolitic to draw it into a precedent, their powers extending no farther than to an approbation or disapprobation of the person nominated by the President, all the rest being Executive and vested in the President by the Constitution.” - 4 Diaries of George Washington 122 (Regents’ Ed. 1925). John Jay was America’s first Chief Justice.

39. Alexander Hamiltonon “Executive Power” (1793) “[A]s the participation of the Senate in the making of treaties, and the power of the Legislature to declare war, are exceptions out of the general “executive power” vested in the President, they are to be construed strictly, and ought to be extended no further than is essential to their execution.” 15 The Papers of Alexander Hamilton 39 (Harold C. Syrett ed., 1969).

40. Supporters of Idea that the “Executive Power” Clause Gave President Control of Foreign Affairs • First President (also President of Constitutional Convention) • First and Third Chief Justices • Heads of both political parties (G.W. & T.J.) • All three authors of the Federalist Papers • Congress (as we will see).

41. Supporters of Idea that the “Executive Power” Clause Gave President Control of Foreign Affairs • First President (also President of Constitutional Convention) • First and Third Chief Justices • Heads of both political parties (G.W. & T.J.) • All three authors of the Federalist Papers • Congress (as we will see). Yet modern casebooks seldom even mention this clause as a possible source of presidential power.

42. Thomas Jefferson on Appropriationsletter to Secretary of the Treasury Albert Gallatin (19 February 1804) The Constitution has made the Executive the organ for managing our intercourse with foreign nations…. From the origin of the present government to this day . . . it has been the uniform opinion and practice that the whole foreign fund was placed by the Legislature on the footing of a contingent fund, in which they undertake no specifications, but leave the whole to the discretion of the President. - 11 Writings of Thomas Jefferson 5, 9, 10 (Mem. ed. 1903).

43. Thomas Jefferson on Appropriationsletter to Secretary of the Treasury Albert Gallatin (19 February 1804) The Constitution has made the Executive the organ for managing our intercourse with foreign nations…. From the origin of the present government to this day . . . it has been the uniform opinion and practice that the whole foreign fund was placed by the Legislature on the footing of a contingent fund, in which they undertake no specifications, but leave the whole to the discretion of the President. - 11 Writings of Thomas Jefferson 5, 9, 10 (Mem. ed. 1903).

44. Thomas Jefferson on Appropriationsletter to Secretary of the Treasury Albert Gallatin (19 February 1804) The Constitution has made the Executive the organ for managing our intercourse with foreign nations…. From the origin of the present government to this day . . . it has been the uniform opinion and practice that the whole foreign fund was placed by the Legislature on the footing of a contingent fund, in which they undertake no specifications, but leave the whole to the discretion of the President. - 11 Writings of Thomas Jefferson 5, 9, 10 (Mem. ed. 1903).

45. United States v. Curtiss-Wright Export Corp.on Limits to Congressional Power “Not only, as we have shown, is the federal power over external affairs in origin and essential character different from that over internal affairs, but participation in the exercise of the power is significantly limited. In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it.”

46. SFRC Chairman J. William Fulbrighton Executive Preeminence in Foreign Policy (1959) This broad consensus prevailed in all three branches until about the time of the debate over the Vietnam War. “The pre-eminent responsibility of the President for the formulation and conduct of American foreign policy is clear and unalterable.He has, as Alexander Hamilton defined it, all powers in international affairs “which the Constitution does not vest elsewhere in clear terms.”He possesses sole authority to communicate and negotiate with foreign powers. He controls the external aspects of the Nation’s power, which can be moved by his will alone — the armed forces, the diplomatic corps, the Central Intelligence Agency, and all of the vast executive apparatus.”

47. SFRC Chairman J. William Fulbrighton Executive Preeminence in Foreign Policy (1959) “The pre-eminent responsibility of the President for the formulation and conduct of American foreign policy is clear and unalterable.He has, as Alexander Hamilton defined it, all powers in international affairs ‘which the Constitution does not vest elsewhere in clear terms.’”

48. SFRC Chairman J. William Fulbrighton Executive Preeminence in Foreign Policy (1959) “The pre-eminent responsibility of the President for the formulation and conduct of American foreign policy is clear and unalterable.He has, as Alexander Hamilton defined it, all powers in international affairs “which the Constitution does not vest elsewhere in clear terms.” Note Senator Fulbright acknowledges President control over the making of foreign policy as well as its implementation.

49. Additional Readingon the “Executive Power” Clause 34 Va. J. Int’l L. 903 (1994).

50. Executive Power andthe “Business of Intelligence” How do we know the Founding Fathers believed the President was given constitutional control over Intelligence?