29 December 2005
Department of Justice
Office of Legislative Affairs
Office of the Assistant
Washington, D.C. 20530
December 22, 2005
The Honorable Pat Roberts
Senate Select Committee on Intelligence
United States Senate
Washington, D.C. 20510
The Honorable John D. Rockefeller, IV
Senate Select Committee on Intelligence
United States Senate
Washington, D.C. 20510
The Honorable Peter Hoekstra
Permanent Select Committee
U.S. House of
Washington, D.C. 20515
The Honorable Jane Harman
Ranking Minority Member
Permanent Select Committee
U.S. House of
Washington, D.C. 20515
Dear Chairmen Roberts and
Hoekstra, Vice Chairman Rockefeller, and Ranking Member Harman:
As you know, in response to
unauthorized disclosures in the media, the President has described certain
activities of the National Security Agency ("NSA") that he has
authorized since shortly after September 11, 2001. As described by the
President, the NSA intercepts certain international communications into and out
of the United States
of people linked to al Qaeda or an affiliated terrorist organization. The
purpose of these intercepts is to establish an early warning system to detect
and prevent another catastrophic terrorist attack on the United States.
The President has made clear that he will use his constitutional and statutory
authorities to protect the American people from further terrorist attacks, and
the NSA activities the President described are part of that effort. Leaders of
the Congress were briefed on these activities more than a dozen times.
The purpose of this letter is to
provide an additional brief summary of the legal authority supporting the NSA
activities described by the President.
As an initial matter, I emphasize
a few points. The President stated that these activities are "crucial to
our national security." The President further explained that "the
unauthorized disclosure of this effort damages our national security and puts
our citizens at risk. Revealing classified information is illegal, alerts our
enemies, and endangers our country." These critical national security
activities remain classified. All United States laws and policies
governing the protection and nondisclosure of national security information,
including the information relating to the activities described by the
President, remain in full force and effect. The unauthorized disclosure of
classified information violates federal criminal law. The Government may
provide further classified briefings to the Congress on these activities in an
appropriate manner. Any such briefings will be conducted in a manner that will
not endanger national security.
Under Article II of the
Constitution, including in his capacity as Commander in Chief, the President
has the responsibility to protect the Nation from further attacks, and the
Constitution gives him all necessary authority to fulfill that duty. See,
e.g., Prize Cases, 67 U.S. (2 Black) 635, 668 (1863)
(stressing that if the Nation is invaded, "the President is not only
authorized but bound to resist by force .... without waiting for any special
legislative authority"); Campbell v. Clinton, 203 F.3d 19, 27 (D.C.
Cir. 2000) (Silberman, J. concurring) ("[T]he Prize
Cases ... stand for the proposition that the President has independent
authority to repel aggressive acts by third parties even without specific
congressional authorization, and courts may not review the level of force
selected."); id. at 40 (Tatel, J., concurring). The Congress recognized this
constitutional authority in the preamble to the Authorization for the Use of
Military Force ("AUMF") of September 18, 2001, 115 Stat. 224 (2001)
("[T]he President has authority under the Constitution to take action to
deter and prevent acts of international terrorism against the United
States."), and in the War Powers Resolution, see 50 U.S.C. § 1541(c)
("The constitutional powers of the President as Commander in Chief to
introduce United States Armed Forces into hostilities ... [extend to] a
national emergency created by attack upon the United States, its territories or
possessions, or its armed forces.").
This constitutional authority
includes the authority to order warrantless foreign
intelligence surveillance within the United States, as all federal appellate
courts, including at least four circuits, to have addressed the issue have
concluded. See, e.g., In re Sealed Case, 310
F.3d 717, 742 (FISA Ct.
of Review 20(2) ("[A]ll the other courts to have
decided the issue [have] held that the President did
have inherent authority to conduct warrantless
searches to obtain foreign intelligence information .... We take for granted
that the President does have that authority ....
"). The Supreme Court has said that warrants are generally required in the
context of purely domestic threats, but it expressly distinguished foreign
threats. See United States
v. United States District
Court, 407 U.S.
297,308 (1972). As Justice Byron White recognized almost 40 years ago,
Presidents have long exercised the authority to conduct warrantless
surveillance for national security purposes, and a warrant is unnecessary
"if the President of the United
States or his chief legal officer, the
Attorney General, has considered the requirements of national security and
authorized electronic surveillance as reasonable." Katz v. United
States, 389 U.S.
347,363-64 (1967) (White, J., concurring).
The President's constitutional
authority to direct the NSA to conduct the activities he described is
supplemented by statutory authority under the AUMF. The AUMF authorizes the
President "to use all necessary and appropriate force against those nations,
organizations, or persons he determines planned, authorized, committed, or
aided the terrorist attacks of September 11, 2001, ... in order to prevent any
future acts of international terrorism against the United States." § 2(a). The AUMF
clearly contemplates action within the United States, see also id. pmbl. (the
attacks of September 11 "render it both necessary and appropriate that the
United States exercise its
rights to self-defense and to protect United States citizens both at home
and abroad"). The AUMF cannot be read as limited to authorizing the use of
force against Afghanistan,
as some have argued. Indeed, those who directly "committed" the
attacks of September 11 resided in the United States for months before
those attacks. The reality of the September 11 plot demonstrates that the
authorization of force covers activities both on foreign soil and in America.
v. Rumsfeld, 542 U.S.
507 (2004), the Supreme Court addressed the scope of the AUMF. At least five
Justices concluded that the AUMF authorized the President to detain a U.S. citizen in the United States because
"detention to prevent a combatant's return to the battlefield is a
fundamental incident of waging war" and is
therefore included in the "necessary and appropriate force" authorized
by the Congress. Id.
at 518-19 (plurality opinion of O'Connor, J.); see id. at 587 (Thomas, J., dissenting). These five Justices
concluded that the AUMF "clearly and unmistakably authorize[s]" the
"fundamental incident[s] of waging war." Id. at 518-19 (plurality opinion); see
id. at 587 (Thomas, J., dissenting).
targeted at the enemy is a fundamental incident of the use of military force.
Indeed, throughout history, signals intelligence has formed a critical part of
waging war. In the Civil War, each side tapped the telegraph lines of the
other. In the World Wars, the United
States intercepted telegrams into and out of
the country. The AUMF cannot be read to exclude this long-recognized and
essential authority to conduct communications intelligence targeted at the
enemy. We cannot fight a war blind. Because communications intelligence
activities constitute, to use the language of Hamdi, a fundamental incident of waging war, the AUMF clearly
and unmistakably authorizes such activities directed against the
communications of our enemy. Accordingly, the President's
"authority is at its maximum." Youngstown Sheet & Tube
v. Sawyer, 343 U.S. 579,
635 (1952) (Jackson, J., concurring); see Dames & Moore v. Regan,
453 U.S. 654, 668 (1981); cf.
Youngstown, 343 U.S. at 585 (noting the absence of
a statute "from which [the asserted authority] c[ould] be fairly implied").
The President's authorization of
targeted electronic surveillance by the NSA is also consistent with the Foreign
Intelligence Surveillance Act ("FISA"). Section 2511 (2)(f) of title 18 provides, as relevant here, that the
procedures of FISA and two chapters of title 18 "shall be the exclusive
means by which electronic surveillance ... may be conducted." Section 109
of FISA, in turn, makes it unlawful to conduct electronic surveillance,
"except as authorized by statute." 50 U.S.C. § 1809(a)(1). Importantly, section 109's exception for electronic
surveillance "authorized by statute" is broad, especially considered
in the context of surrounding provisions. See 18 U.S.C. § 2511 (1)
("Except as otherwise specifically provided in this chapter any
person who -- (a) intentionally intercepts ... any wire, oral, or electronic communication ... shall be punished ....") (emphasis added); id. § 2511 (2)(e)
(providing a defense to liability to individuals "conduct[ing] electronic surveillance, ... as authorized by that
Act [FISA]") (emphasis added).
By expressly and broadly excepting
from its prohibition electronic surveillance undertaken "as authorized by
statute," section 109 of FISA permits an exception to the
"procedures" of FISA referred to in 18 U.S.C. § 2511 (2)(f) where
authorized by another statute, even if the other authorizing statute does not
specifically amend section 2511 (2)(f). The AUMF satisfies section 109's
requirement for statutory authorization of electronic surveillance, just as a
majority of the Court in Hamdi concluded that
it satisfies the requirement in 18 U.S.C. §
4001(a) that no U.S. citizen be detained
by the United States "except pursuant to an Act of Congress." See Hamdi, 542 U.S. at 519 (explaining that
"it is of no moment that the AUMF does not use specific language of
detention"); see id. at 587 (Thomas, J.,
Some might suggest that FISA could
be read to require that a subsequent statutory authorization must come in the
form of an amendment to FISA itself. But under established principles of
statutory construction, the AUMF and FISA must be construed in harmony to avoid
any potential conflict between FISA and the President's Article II authority as
Commander in Chief. See, e.g., Zadvydas
v. Davis, 533 U.S. 678,689 (2001); INS v. St.
Cyr, 533 U.S.
289, 300 (2001). Accordingly, any ambiguity as to whether the AUMF is a
statute that satisfies the requirements of FISA and allows electronic
surveillance in the conflict with al Qaeda without complying with FISA
procedures must be resolved in favor of an interpretation that is consistent
with the President's long-recognized authority.
The NSA activities described by
the President are also consistent with the Fourth Amendment and the protection
of civil liberties. The Fourth Amendment's "central requirement is one of
reasonableness." Illinois v. McArthur, 531 U.S.
326, 330 (2001) (internal quotation marks omitted). For searches
conducted in the course of ordinary criminal law enforcement, reasonableness
generally requires securing a warrant. See Bd. of Educ.
v. Earls, 536 U.S.
822, 828 (2002). Outside the ordinary criminal law enforcement context,
however, the Supreme Court has, at times, dispensed with the warrant, instead
adjudging the reasonableness of a search under the totality of the
circumstances. See United States
v. Knights, 534 U.S.
112, 118 (2001). In particular, the Supreme Court has long recognized that
"special needs, beyond the normal need for law enforcement," can
justify departure from the usual warrant requirement. Vernonia
School Dist. 47J v. Acton, 515 U.S.
646, 653 (1995); see also City of Indianapolis
v. Edmond, 531 U.S. 32, 4142 (2000) (striking
down checkpoint where "primary purpose was to detect evidence of ordinary
Foreign intelligence collection,
especially in the midst of an armed conflict in which the adversary has already
launched catastrophic attacks within the United States, fits squarely within
the "special needs" exception to the warrant requirement. Foreign
intelligence collection undertaken to prevent further devastating attacks on
our Nation serves the highest government purpose through means other than
traditional law enforcement. See In re Sealed Case, 310 F.3d at 745; United
States v. Duggan, 743 F.2d 59,72 (2d Cir. 1984) (recognizing that the
Fourth Amendment implications of foreign intelligence surveillance are far
different from ordinary wiretapping. because they are not principally used for
Intercepting communications into
and out of the United States
of persons linked to al Qaeda in order to detect and prevent a catastrophic
attack is clearly reasonable. Reasonableness is
generally determined by "balancing the nature of the intrusion on the
individual's privacy against the promotion of legitimate governmental
interests." Earls, 536 U.S. at 829. There is
undeniably an important and legitimate privacy interest at stake with respect
to the activities described by the President. That must be balanced, however,
against the Government's compelling interest in the security of the Nation. See.
e.g., Haig v. Agee, 453 U.S. 280, 307
(1981) ("It is obvious and unarguable that no governmental interest is
more compelling than the security of the Nation.") (citation
and quotation marks omitted). The fact that the NSA activities are reviewed and
reauthorized approximately every 45 days to ensure that they continue to be necessary
and appropriate further demonstrates the reasonableness of these activities.
As explained above, the President
determined that it was necessary following September 11 to create an early
warning detection system. FISA could not have provided the speed and agility
required for the early warning detection system. In addition, any legislative
change, other than the AUMF, that the President might have sought specifically
to create such an early warning system would have been public and would have
tipped off our enemies concerning our intelligence limitations and
capabilities. Nevertheless, I want to stress that the United States
makes full use of FISA to address the terrorist threat, and FISA has proven to
be a very important tool, especially in longer-term investigations. In
addition, the United States
is constantly assessing all available legal options, taking full advantage of
any developments in the law.
We hope this information is
William E. Moschella
Assistant Attorney General