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35–861 PDF 2007

CONSTITUTIONAL LIMITATIONS ON

DOMESTIC SURVEILLANCE

HEARING

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION,

CIVIL RIGHTS, AND CIVIL LIBERTIES

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

JUNE 7, 2007

Serial No. 110–45

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://judiciary.house.gov 

(II)

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

LINDA T. SA ́ NCHEZ, California 

STEVE COHEN, Tennessee 

HANK JOHNSON, Georgia 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

ARTUR DAVIS, Alabama 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

CHRIS CANNON, Utah 

RIC KELLER, Florida 

DARRELL ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio

PERRY APELBAUM, Staff Director and Chief Counsel 

JOSEPH GIBSON, Minority Chief Counsel 

SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES

JERROLD NADLER, New York, Chairman 

ARTUR DAVIS, Alabama 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

JOHN CONYERS, JR., Michigan 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

STEVE COHEN, Tennessee 

TRENT FRANKS, Arizona 

MIKE PENCE, Indiana 

DARRELL ISSA, California 

STEVE KING, Iowa 

JIM JORDAN, Ohio

DAVID LACHMANN, Chief of Staff 

PAUL B. TAYLOR, Minority Counsel 

(III)

C O N T E N T S 

JUNE 7, 2007

Page 

OPENING STATEMENT 

The Honorable Jerrold Nadler, a Representative in Congress from the State 

of New York, and Chairman, Subcommittee on the Constitution, Civil 

Rights, and Civil Liberties .................................................................................. 1

The Honorable Trent Franks, a Representative in Congress from the State 

of Arizona, and Ranking Member, Subcommittee on the Constitution, Civil 

Rights, and Civil Liberties .................................................................................. 3

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, Member, Subcommittee on the Constitution, Civil 

Rights, and Civil Liberties, and Chairman, Committee on the Judiciary ....... 4

The Honorable Darrell Issa, a Representative in Congress from the State 

of California, and Member, Subcommittee on the Constitution, Civil Rights, 

and Civil Liberties ............................................................................................... 5

WITNESSES 

Mr. Steven G. Bradbury, Principal Deputy Assistant Attorney General, Office 

of Legal Counsel, U.S. Department of Justice 

Oral Testimony ..................................................................................................... 7

Prepared Statement ............................................................................................. 10

Mr. Bruce Fein, The Lichfield Group, Inc. 

Oral Testimony ..................................................................................................... 20

Prepared Statement ............................................................................................. 21

Mr. Lee A. Casey, Partner, Baker Hostetler 

Oral Testimony ..................................................................................................... 43

Prepared Statement ............................................................................................. 44

Mr. Jameel Jaffer, Director, National Security Project, American Civil Liberties Union 

Oral Testimony ..................................................................................................... 48

Prepared Statement ............................................................................................. 50

Mr. Louis Fisher, American Law Division, Library of Congress 

Oral Testimony ..................................................................................................... 68

Prepared Statement ............................................................................................. 70

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Response from Brian A. Benczkowski, Principal Deputy Assisant Attorney 

General, U.S. Department of Justice, in response to post-hearing questions 

submitted by the Subcommittee ......................................................................... 96

U.S. Department of Justice document entitled ‘‘Legal Authorities Supporting 

the Activities of the National Security Agency Described by the President’’ .. 99

Letter from the Committee on the Judiciary, dated January 19, 2007, to 

the Honorable Alberto R. Gonzales, Attorney General of the United States, 

U.S. Department of Justice ................................................................................. 141

Letter from the Committee on the Judiciary, dated February 1, 2007, to 

the Honorable Alberto R. Gonzales, Attorney General of the United States, 

U.S. Department of Justice ................................................................................. 143

Page

IV

Letter from Richard A. Hertling, Acting Assistant Attorney General, U.S. 

Department of Justice, dated February 9, 2007, to the Honorable John 

Conyers, Jr., Chairman, Committee on the Judiciary ...................................... 146

Letter from the Committee on the Judiciary, dated May 17, 2007, to the 

Honorable Alberto R. Gonzales, Attorney General of the United States, 

U.S. Department of Justice ................................................................................. 148

(1)

CONSTITUTIONAL LIMITATIONS ON 

DOMESTIC SURVEILLANCE 

THURSDAY, JUNE 7, 2007

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON THE CONSTITUTION,

CIVIL RIGHTS, AND CIVIL LIBERTIES, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC.

The Subcommittee met, pursuant to notice, at 2:19 p.m., in Room 

2141, Rayburn House Office Building, the Honorable Jerrold Nadler (Chairman of the Subcommittee) presiding. 

Present: Representatives Nadler, Wasserman Schultz, Ellison, 

Conyers, Scott, Watt, Cohen, Franks, Pence, Issa, and King. 

Staff present: David Lachmann, Staff Director; Keenan Keller, 

Counsel; Kanya Bennett, Counsel; Burton Wides, Counsel; Heather 

Sawyer, Counsel; Susana Gutierrez, Professional Staff Member; 

and Paul Taylor, Minority Counsel. 

Mr. NADLER. Good afternoon. Today’s hearing will examine the 

constitutional limitations on domestic surveillance. 

The Chair recognizes himself for 5 minutes for an opening statement. 

Today the Subcommittee on the Constitution, Civil Rights and 

Civil Liberties begins a series of hearings entitled, ‘‘The Constitution in Crisis: The State of Civil Liberties in America.’’

Through these hearings, the Subcommittee will examine the 

Bush administration’s policies, actions and programs that I believe 

threaten America’s fundamental constitutional rights and civil liberties, and also we will hear proposals for potential legislative remedies. 

Today’s hearing specifically looks at one of the foundations of our 

fundamental liberties: the constitutional and statutory restrictions 

on the Government’s ability to spy on people. Both the fourth 

amendment and the Foreign Intelligence Surveillance Act were responses to abuses by governments that thought they were above 

the law. The right of the people to be secure in their persons, 

houses, papers and effects against unreasonable searches and seizures, as the fourth amendment puts it, is a core limitation on the 

Government that protects each of us. 

The framers of the Constitution understood this, and despite 

periodic lapses, so have most of our Nation’s leaders. Congress enacted FISA, the Foreign Intelligence Surveillance Act, in 1978, following the Church Committee’s report on surveillance abuses in 

the 1960’s and 1970’s. 

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The FISA reflects timeless understanding that the conduct of foreign intelligence activities is fundamentally different from domestic 

surveillance. It nonetheless also reflects one of our Nation’s founding principles that power, especially the power to invade people’s 

privacy, must never be exercised unchecked. 

We rejected monarchy in this country more than 200 years ago. 

That means that no President may become a law unto him-or herself, even aided by a Vice President. As with every part of Government, there must always be checks and balances. This President 

appears to have forgotten that fact. Not only has he asserted the 

right to violate the FISA Act, to go around the FISA court and the 

Wiretap Act, but he has concededly actually done so. 

Even more disturbing, he does not believe that in this and in 

other things he is accountable to the Congress, the courts or anyone else. This Committee created the FISA statute and the FISA 

court, yet the President believes this Committee and its Members 

are not entitled to know what he and that court are doing. The 

President also believes we are not entitled to know what he is 

doing or has been doing outside the confines of the FISA statute. 

Now we are told, as we have been in the past, that the President 

needs changes in the FISA statute. Why he needs changes in the 

FISA statute when he asserts the right to violate it as his whim, 

I don’t know. In any event, we have no way to evaluate his claim 

of necessity because he has also taken the position that we have 

no right to know what legal limits he has been observing in his 

conduct of surveillance or how he came to the legal rationale for 

those limits, if any. 

We have also been told that the President may at anytime resume warrantless surveillance, so past practices bear directly on 

possible future actions. Many have begun to conclude that the 

shroud of secrecy thrown over these activities has less to do with 

protecting us from terrorism and more to do with protecting the 

Administration from having its law-breaking exposed. The FISA 

statute is a criminal statute, and surveillance conducted in the 

name of Government without legal authorization is a crime. 

It is my fervent hope that no crime has been committed here, but 

the more secretive this Administration is, the more concerned I and 

many other Americans become that they are covering up crimes 

that they are committing in our name. I will not ask Mr. Bradbury 

to discuss the operational aspects of any of these programs. No one 

wants to expose sources and methods in a public forum, but I do 

expect honest and forthright answers concerning the legal justifications for the Administration’s actions. 

I want to welcome all of our witnesses and thank them for agreeing to appear before the Subcommittee today. I look forward to 

your testimony. 

Mr. ISSA. Mr. Chairman, parliamentary inquiry? 

Mr. NADLER. Would the gentleman state his parliamentary inquiry? 

Mr. ISSA. Isn’t it against the House Rules to allege a misconduct 

or illegal act of the President? And isn’t that grounds to have 

words taken down? And isn’t it inappropriate under House Rules 

and this Committee’s rules to make allegations of criminal conduct 

3

of the President or the Administration without that being part of 

an actual investigation? 

Mr. NADLER. The answer is, first of all, I don’t know if it is 

against the rules, but in any event, no one has made any allegations of criminal actions. I have said that many Americans, myself 

included, believe that criminal actions have occurred, but that is 

not an allegation. It is a statement that I believe that, and I hope 

it is not correct. That is what I said. 

Mr. ISSA. So you don’t know it to be true, but you simply believe 

it. You have no evidence of that, Mr. Chairman. Is that correct? 

Mr. NADLER. I think there is evidence. Whether the evidence is 

sufficient, I don’t know, and that is one of the reasons we are having this hearing, to get the facts. 

Mr. ISSA. Thank you, Mr. Chairman. 

Mr. NADLER. I would now recognize our distinguished Ranking 

minority Member, the gentleman from Arizona, Mr. Franks, for his 

opening statement. 

Mr. FRANKS. Thank you, Mr. Chairman. 

And I thank all of the panelists here for being here with us. 

Mr. Chairman, in 1968 when Congress enacted the first Federal 

wiretapping statute, it included in the legislation an explicit statement that, ‘‘nothing in this chapter shall limit the constitutional 

power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack, or 

to obtain foreign intelligence information deemed necessary to the 

security of the United States.’’

Justice Holmes wrote for a unanimous Supreme Court in 1909 

that, ‘‘when it comes to a decision by the head of the state upon 

a matter involving its life, public danger warrants a substitution of 

executive process for judicial process.’’

Perhaps one of the most essential functions of the President’s authority over foreign affairs and national defense is the collection of 

foreign intelligence. The President’s foreign affairs powers are not 

exercises in criminal prosecution to secure evidence for prosecuting 

terrorists in eventual court proceedings. Rather, it is a wartime 

program of a military nature that requires speed and agility. 

Critics of the NSA’s Terrorist Surveillance Program are fond of 

quoting Justice Jackson’s concurring opinion in the Steel Seizure

case, in which he wrote that when the President acts in defiance 

of ‘‘the expressed or implied will of Congress, his power is at its 

lowest ebb.’’

But the NSA program does not violate the will of Congress, and 

the same Justice Robert Jackson also wrote for a majority of the 

Supreme Court, ‘‘the President, both as commander-in-chief and as 

the Nation’s organ of foreign affairs has available intelligence services whose reports are not and ought not to be published to the 

world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the executive taken on information properly held secret.’’

The same Justice Jackson, as attorney general in the run-up to 

World War II, carried out warrantless electronic surveillance within the United States at the direction of President Franklin D. Roosevelt. More than 20 years after World War II, in Katz v. United 

States, the Supreme Court held that domestic wiretaps generally 

4

require a warrant and probable cause, but the Supreme Court in 

the same Katz decision expressly conceded the existence of inherent 

presidential power to act to defend against foreign threats. The 

court took pains to make it clear it was not speaking to, ‘‘a situation involving the national security,’’ as to which, and I quote 

again, ‘‘safeguards other than prior authorization by a magistrate’’ 

would satisfy any fourth amendment concern. 

Critics have portrayed the NSA’s Terrorist Surveillance Program 

as ‘‘domestic spying,’’ but that is not an accurate description of 

what we know at this classified program. As the Justice Department has explained, the President has authorized the NSA to intercept international communications into and out of the United 

States where there is a reasonable basis for believing that one of 

those persons is linked to al-Qaida or related terrorist organizations. The program only applies to communications where one 

party is located outside of the United States. 

Both before and after the enactment of FISA, all Federal appellate courts that had directly confronted this issue have found that 

the President is constitutionally empowered under article II to conduct warrantless electronic surveillance when the President deems 

it necessary to protect the Nation from foreign threats. Although 

critics now claim that Congress, when it enacted the FISA statute, 

somehow diminished the President’s authority under article II of 

the Constitution, the Foreign Intelligence Surveillance Court of Review, which is the most specialized tribunal as to FISA, has rejected that proposition. 

In 2002, the Court of Review stated that, ‘‘all courts who have 

decided the issue have held that the President did have the inherent authority to conduct warrantless searches to obtain foreign intelligence information. We take for granted that the President does 

have that authority, and assuming that is so, FISA could not encroach on the President’s constitutional power.’’

Congress can always find, Mr. Chairman, a way to cut funding 

for a program, but Congress may not invade the President’s central 

prerogatives. Those constitutional prerogatives were not changed 

when Congress enacted the FISA statute. 

As we face the jihadist threat in the world, the NSA surveillance 

program is one that is constitutional and vital to the safety and 

survival of this republic. Mr. Chairman, if we have empowered the 

President to hunt down and ferret out and kill terrorists, if as the 

President of the United States the Constitution empowers him to 

hunt down and ferret out and kill terrorists, surely he has the authority to listen to them on the telephone before he proceeds. 

With that, I look forward to hearing from our witnesses. Thank 

you. 

Mr. NADLER. Thank you. 

I now recognize the Chairman of the full Committee for a statement. 

Mr. CONYERS. Thank you, Subcommittee Chairman Nadler. I 

commend you and the Ranking Member because today’s hearing is 

an important first step that will enable us to learn what our Government is doing and whether their actions are grounded in law. 

I do hope we can begin to obtain clearer answers to these questions. The reason that I think that we will is the nature of the 

5

membership of the panel this afternoon. Most of them I am familiar with, and I think this is an excellent, excellent beginning. 

We have some questions. How was the Administration’s program 

of warrantless surveillance allowed to take effect? And when will 

this Administration begin to provide this Committee with the information so that we can do our job? And then how can we consider 

the Administration’s proposed legislative changes in the face of 

such a vacuum? 

I have much else to say, but I want to hear from the witnesses 

more than I want to tell you what I am asking. It will be included 

in my remarks, by unanimous consent. 

Mr. ISSA. Mr. Chairman? I seek to make an opening statement 

also. 

Mr. NADLER. [off-mike] witnesses, and we are going to have votes 

here soon. I would ask that other Members submit statements for 

the record. 

Mr. ISSA. I would be glad to submit primarily for the record, but 

just make a short correcting opening statement. 

Mr. NADLER. Okay. The Chairman took 11⁄2 minutes. 

Mr. ISSA. Thank you. I respect the senior Member of this Committee a great deal and will do the same. 

Mr. Chairman, both yourself, as Subcommittee Chairman, and 

the full Committee Chairman in your opening remarks made certain claims that I think deserve to be put on the record as part of 

the opening. 

First of all, the people who should be on the witness stand today 

are Speaker Nancy Pelosi, Ms. Jane Harman, and Chairman Sil 

Reyes. These three people throughout their periods of time, beginning with the now-speaker of the House, had direct and individual 

knowledge before, during and in the entire period of President 

Bush’s administration as to all efforts, not just those that went to 

FISA, but all efforts. 

In fact, this Administration, and I am a Member of the Select Intelligence Committee, and as I am sure the Chairman is very 

aware, we are fully briefed, and the Chair and Ranking Member 

of that Committee, particularly, are fully briefed as to everything, 

including the individual actions and executive orders of the President. 

So to say here today ‘‘we want to know what was going on,’’ I 

believe is less than fully genuine, unless we include the fact that 

we have Members, including the speaker of the House, who are 

fully informed and have that knowledge and have had it throughout. 

In closing, I would say that, yes, Heather Wilson has been pushing for the last 4 years to open up and reform FISA, but that is 

in response to individuals saying if you don’t have the authority, 

then let’s get you the authority to do it under the court. That is, 

in fact, what we should be doing here today. I would hope that 

FISA reform is on the Chairman’s agenda. 

I yield back. 

Mr. NADLER. I thank the gentleman. 

Let me simply observe that the gentleman as a Member of the 

Intelligence Committee may be briefed but this Committee is not 

briefed. 

6

Frankly, I care less about the Intelligence Committee than I do 

about this Committee. This Committee has jurisdiction over FISA. 

This Committee has jurisdiction over the fourth amendment. And 

this Committee has been refused information by the Administration. We have been offered that the Chairman and the Ranking 

Member will be briefed. That is not sufficient. Mr. Conyers and I 

have written to the Administration to that effect. 

We believe that under the Constitution and the laws, this Committee must be fully briefed, because otherwise we can’t legislate. 

Mr. ISSA. Mr. Chairman, I fully agree with you, but it is the 

Rules of the House that determine that. 

Mr. NADLER. The Rules of the House give us the jurisdiction, and 

therefore the right to be briefed. 

Mr. ISSA. And the speaker of the House could make that change. 

Thank you, Mr. Chairman. 

Mr. NADLER. In the interests of proceeding to our witnesses, and 

mindful of our busy schedules, I would ask that other Members, if 

any, submit their statements for the record. 

Without objection, all Members will have 5 legislative days to 

submit opening statements for inclusion in the record, to revise and 

extend their remarks, and to include additional materials in the 

record. 

Without objection, the Chair will be authorized to declare a recess of the hearing, which we will do if there is a vote. We do expect a vote during the hearing. I will declare a recess when there 

are 5 minutes left on the 15-minute vote. There will be two votes 

probably, so that means we should resume in 10 minutes or 12 

minutes. I would ask that Members return as soon as they can cast 

their votes on that second vote. 

As we ask questions of our witnesses, the Chair will recognize 

Members in the order of their seniority on the Subcommittee, alternating between majority and minority, provided that the Member 

is present when his or her turn arrives. Members who are not 

present when their turn begins will be recognized after the other 

Members have had the opportunity to ask their questions. The 

Chair reserves the right to accommodate a Member who is unavoidably late or only able to be with us a short time. 

I will now introduce our witnesses. 

Our first witness is Steven Bradbury, the principal deputy assistant attorney general for the Office of Legal Counsel of the U.S. Department of Justice. He received his undergraduate degree from 

Stanford University in 1980, his law degree from Michigan in 1988. 

He served as clerk to Judge James L. Buckley from New York on 

the U.S. Court of Appeals for the D.C. Circuit from 1990 to 1991, 

and Justice Clarence Thomas on the Supreme Court of the United 

States from 1992 to 1993. 

Our next witness is Bruce Fein. In the Department of Justice, he 

served as associate deputy attorney general, assistant director in 

the Office of Legal Policy, and special assistant to the assistant attorney general for antitrust. He is also the former general counsel 

at the Federal Communications Commission. Mr. Fein graduated 

Phi Beta Kappa from the University of California at Berkeley in 

1969, cum laude from Harvard Law School in 1972, and then 

7

clerked for United States District Judge Frank Kaufman in the 

District of Maryland. 

Lee Casey is a partner with the firm of Baker Hostetler. He 

served in the Justice Department in the Office of Legal Counsel 

from 1992 to 1993, and the Office of Legal Policy from 1986 to 

1990. From 1990 to 1992, Mr. Casey served as deputy associate 

general counsel at the U.S. Department of Energy. He earned his 

B.A. magna cum laude from Oakland University and his J.D. cum 

laude from the University of Michigan Law School. He clerked for 

Judge Alex Kozinski, then chief judge of the United States Claims 

Court. 

Jameel Jaffer is the director of the National Security Project for 

the American Civil Liberties Union Foundation, and has litigated 

several significant cases involving Government secrecy and national security. Mr. Jaffer is a graduate of Williams College, Cambridge University, and Harvard Law School. He was an editor of 

the Harvard Law Review from 1997 to 1999, and his writing has 

appeared in that journal as well as in the Journal of Transnational 

Law and Policy. After law school, Mr. Jaffer served as law clerk to 

the Honorable Amalya Kearse, United States Court of Appeals for 

the Second Circuit. 

Our final witness is Louis Fisher, specialist in constitutional law 

in the Library of Congress. Dr. Fisher worked for the Congressional 

Research Service from 1970 to 2006. Dr. Fisher received his Ph.D. 

from the New School for Social Research in 1969. Among his many 

publications are ‘‘Constitutional Conflicts Between Congress and 

the President,’’ and ‘‘Presidential War Power,’’ both quite relevant 

now. 

I am pleased to welcome all of you, and I thank you for your testimony. Your written statements will be made part of the record in 

its entirety. I would ask that you now summarize your testimony 

in 5 minutes or less each. 

To help you stay within that time limit, there is a timing light 

at your table in fact, too. When 1 minute remains, the light will 

switch from green to yellow, and then to red when the 5 minutes 

are up. 

Before we begin, I would ask to swear in our witnesses. If you 

could please stand and raise your right hand to take the oath. 

[Witnesses sworn.] 

Let the record reflect that each of the witnesses answered in the 

affirmative. 

We will begin with the first witness, Mr. Bradbury. 

TESTIMONY OF STEVEN BRADBURY, PRINCIPAL DEPUTY ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL, 

U.S. DEPARTMENT OF JUSTICE 

Mr. BRADBURY. Thank you, Chairman Nadler, Chairman Conyers, Ranking Member Franks and Members of the Subcommittee. 

It is an honor to appear before you today. 

In the wake of the attacks of 9/11, the President authorized the 

National Security Agency to establish an early warning system to 

detect and prevent further terrorist attacks against the United 

States. Under the Terrorist Surveillance Program, as described by 

the President, the NSA targeted for interception international comVerDate 0ct 09 2002 12:33 Oct 22, 2007 Jkt 000000 PO 00000 Frm 00011 Fmt 6633 Sfmt 6601 H:\WORK\CONST\060707\35861.000 HJUD1 PsN: 35861
8

munications into and out of the United States where there was 

probable cause to believe that at least one party to the communication was a member or agent of al-Qaida or an associated terrorist 

organization. 

Trained intelligence professionals made the decisions to target 

communications for interception subject to extensive reviews. Key 

Members of Congress were briefed on the program from its inception, and it was subsequently briefed to the full membership of 

both Intelligence Committees, which have conducted in-depth oversight of the program and all related intelligence activities. 

In the spring of 2005, well before the first press accounts disclosing the existence of the Terrorist Surveillance Program, the Administration began exploring options for seeking authorization for 

the program from the Foreign Intelligence Surveillance Court. On 

January 10, 2007, a judge of that court issued innovative and complex orders that ensure that the intelligence community can operate with the speed and agility necessary to protect the United 

States from al-Qaida. 

As a result of these orders, any electronic surveillance that was 

occurring as part of the Terrorist Surveillance Program is now subject to the approval of the FISA Court, and in light of that achievement, the President determined not to reauthorize the program. 

Nevertheless, I do wish to emphasize that the President definitely had the authority to authorize the Terrorist Surveillance 

Program under acts of Congress and under the Constitution. As explained in greater detail in the Department of Justice’s January, 

2006 white paper, a copy of which I ask to be placed in the record, 

article II of the Constitution charges the President with the primary duty to protect the Nation from armed attack, and the Constitution grants the President the full authority necessary to carry 

out that duty. 

Thus, it is well-established that the President has constitutional 

authority to direct the use of electronic surveillance for the purpose 

of collecting foreign intelligence information, and this conclusion is 

even stronger when the surveillance is undertaken to prevent further attacks against and within the United States, particularly in 

the context of an ongoing congressionally authorized armed conflict. 

Furthermore, the authorization for the use of military force of 

September 18, 2001, as construed by the Supreme Court in Hamdi 

v. Rumsfeld, and confirmed by history and tradition, authorized the 

executive branch to conduct such surveillance. This conclusion 

holds notwithstanding the exclusive means provision of FISA because the AUMF is a statute authorizing the conduct of electronic 

surveillance within the meaning of section 109(a)(1) of FISA. 

At a minimum, interpreting FISA to prohibit the President from 

authorizing foreign intelligence surveillance against al-Qaida, a diffuse network of foreign terrorist enemies who have already successfully attacked the United States and have repeatedly vowed to do 

so again, would raise a serious question about the constitutionality 

of FISA. Statutes must be interpreted, if fairly possible, to avoid 

raising such constitutional concerns. FISA and the AUMF can fairly be read together to do just that. 

In any event, the Terrorist Surveillance Program is no longer 

operational. It is now imperative, in our view, that Congress and 

9

the executive branch cooperate to close critical gaps in our intelligence capabilities under FISA, while ensuring proper protections 

for the civil liberties of U.S. persons. FISA has been and continues 

to serve as the foundation for conducting electronic surveillance of 

foreign powers and their agents in the United States. 

The most serious problems with FISA stem from the fact that 

FISA defines the term ‘‘electronic surveillance’’ in a way that depends upon communications technology and practices as they existed in 1978. This technology-dependent approach has had dramatic, but unintended, consequences sweeping within the scope of 

FISA a wide range of communications intelligence activities that 

Congress originally intended to exclude. As a result, our intelligence capabilities have been hampered, and the intelligence community, the Department of Justice, and the FISA Court have had 

to expend precious resources on court supervision of intelligence activities that are directed at foreign persons overseas. 

To rectify these problems, the Administration has proposed comprehensive amendments to FISA that would make the statute technology-neutral, enhance the Government’s authority to secure assistance from private entities in conducting lawful foreign intelligence surveillance activities, and streamline the application and 

approval process before the FISA Court. Privacy and security are 

not mutually exclusive. By modernizing FISA, we can both provide 

the intelligence community with an enduring, agile and efficient 

means of collecting critical foreign intelligence information, and 

strengthen the privacy protection for U.S. persons in the United 

States. 

Again, Mr. Chairman, thank you for the opportunity to appear 

today to discuss these important issues. 

[The prepared statement of Mr. Bradbury follows:]

10

PREPARED STATEMENT OF STEVEN G. BRADBURY


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Mr. NADLER. Thank you very much. 

Mr. Fein? 

TESTIMONY OF BRUCE FEIN, THE LICHFIELD GROUP, INC. 

Mr. FEIN. Mr. Chairman and Members of the Subcommittee, I 

would like to underscore what I think are the most alarming elements of the Terrorist Surveillance Program that ought to concern 

the Subcommittee and the American people. 

First, I would like to address the issue of secrecy. If it were not 

for a leak to the New York Times and publication in December of 

2005, we probably would not have this hearing at present. There 

have also been indications from statements of the attorney general 

and others that there are secret surveillance programs that have 

been undisclosed to Congress as well. There is no ability to hold 

anyone accountable to a program that is unknown. 

Secrecy is the bane of democracy. As James Madison said, ‘‘Popular government without popular information is a tragedy, a farce, 

or both.’’ That seems to me a critical element of this Committee’s 

obligation is to know what in fact is transpiring, so an evaluation, 

certainly under the fourth amendment, can be made of its constitutionality. 

Secondly, the alarming statement of the Administration that 

FISA is unconstitutional, that article II trumps any ability of this 

Committee to place any restriction whatsoever on his ability to 

gather foreign intelligence is quite frightening. The Administration 

has been unable to dispute that their theory of article II would enable the President to break and enter homes, open mails, commit 

assassinations, do anything that he thinks is necessary to gather 

foreign intelligence no matter what restrictions this Committee has 

placed to honor and vindicate other constitutional values. 

It is true that the President has insisted he has not utilized his 

article II powers to the maximum extent possible, but he has certainly set a precedent that will lie around like a loaded weapon 

ready to be used the next time we have 9/11. I would like to recall 

a certain vignette from our own history. In 1765, the British Parliament enacted the Stamp Act, and that represented taxation 

without representation, and much furor and opposition. 

Later on when the Stamp Act was repealed, the Parliament nevertheless asserted in the Declaratory Act that Parliament would retain the power, although it eliminated the tariffs, with authority to 

tax without representation, and that was what sparked the American Revolution. Simply the fact that we have a President who 

says, I will not use my article II authority to break and enter your 

home without a warrant, should not be much comfort. 

I would like also to address the insinuation that FISA somehow 

crippled the President’s ability to gather foreign intelligence, which 

is a canard of the highest order. Ninety-nine percent of foreign intelligence gathered by the National Security Agency is outside of 

FISA because it targets an alien abroad. There is no reasonable expectation of privacy that Osama bin Laden has in a cave in Afghanistan that we will not spy on him. And FISA has no application in those circumstances. 

The kinds of issues that we are addressing with the Administration’s Terrorist Surveillance Program is when an American citizen 

21

on American soil is targeted for surveillance. There, it said we still 

can’t get a warrant. We have to utilize the President’s judgment 

alone as to whether or not there ought to be surveillance. 

Now, there is, however, one fix in the FISA program that does 

deserve correction, and I think Mr. Bradbury alluded to that. There 

is a definition of ‘‘electronic surveillance’’ that includes any communication that makes a route through the domestic communications 

systems of the United States. That doesn’t make any sense. The 

concern needs to be on the protection of privacy, reasonable expectations of privacy. Of course, that fix could have been made 5 years 

ago, right after 9/11, by simply changing the definition of ‘‘electronic surveillance’’ to exclude communications that simply happen 

by happenstance to have a domestic routing to it. 

Let me go back to the reason why we ought to be concerned 

about violations of FISA. As Justice Louis Brandeis said, ‘‘the right 

to be left alone is the most cherished right among civilized people.’’ 

When the citizenry understands that the President, on his authority alone, can spy on anyone, can leak information out that is derogatory or otherwise to punish dissidents or opposition to the incumbent leaders, there becomes a feeling of cowardliness, intimidation that silences and reduces the robustness of dialogue that is important to a democratic discourse. 

Moreover, it makes people feel anxious about being unorthodox. 

It reduces spontaneity. It inhibits much of what we cherish in the 

United States of America, the signature that the purpose and chief 

aim of Government is to make us free. That exception requires important Government interests to be asserted and proven before we 

limit that freedom. 

That is why, in my judgment, it is so important that we be very 

scrupulous in recognizing any exceptions to the ability of Congress 

to regulate the gathering of foreign intelligence or other intelligence information, and insist certainly that the fourth amendment be honored. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Fein follows:]

PREPARED STATEMENT OF BRUCE FEIN

Dear Mr. Chairman and Members of the Committee: 

I am pleased to share my views on the legality of the Bush administration’s programs to gather foreign intelligence in contravention of the Foreign Intelligence Surveillance Act of 1978 (FISA). My remarks will focus on the National Security Agency’s (NSA) domestic warrantless surveillance program that targets American citizens on American soil on the President’s say-so alone. But Delphic remarks by the 

Attorney General and other Bush administration officials indicate that other foreign 

intelligence spying programs are ongoing and generally unknown by either the Congress or the American people. But the Founding Fathers decried secret government. 

They recognized that sunshine is the best disinfectant; and, that secrecy breeds 

abuses and folly. Think of the three decades of illegalities by the Central Intelligence Agency and Federal Bureau of Investigation in opening mail and intercepting international telegraphs revealed by the Church Committee. Accordingly, 

Congress should insist that the respective intelligence committees of the House and 

Senate be fully and currently informed of every foreign intelligence collection program of the executive branch. 

WHY BE ALARMED ABOUT ILLEGAL SPYING PROGRAMS?

The signature idea of the American Revolution was the belief that the chief end 

of the state was to make persons free to develop their faculties and to pursue virtue 

and wisdom, not to aggrandize government or to build empires. The Founding FaVerDate 0ct 09 2002 12:33 Oct 22, 2007 Jkt 000000 PO 00000 Frm 00025 Fmt 6633 Sfmt 6621 H:\WORK\CONST\060707\35861.000 HJUD1 PsN: 35861
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thers believed that liberty should be the rule and that government intervention the 

exception based on a serious showing of need to protect a strong collective interest. 

They believed that the right to be left alone was the most cherished by civilized people; and, that a generalized fear of government harassment or retaliation would dull 

political debate and deter dissent. Accordingly, the Fourth Amendment was enshrined to prohibit government from unreasonable searches and seizures. The primary safeguard was the customary requirement of a particularized judicial warrant 

for a search premised on probable cause to believe evidence of crime would be discovered. History had taught that an unchecked executive would search to cow, to 

harass, or to oppress political opponents. The Fourth Amendment safeguards the 

right to be left alone for its own sake and to promote robust political discourse, the 

lifeblood of a democratic dispensation. 

Illegal searches are alarming because they subvert a fundamental individual liberty and frighten the public into submissiveness or silence. An indefinite number 

of citizens today are hesitant to criticize the Bush administration because fearful 

of retaliation. 

THE ILLEGALITY OF THE NSA’S DOMESTIC WARRANTLESS SURVEILLANCE PROGRAM

I have attached an article I authored for the Presidential Quarterly that elaborates on the flagrant illegality of the NSA’s domestic warrantless surveillance program that violates FISA; and, an article I authored for The Washington Times that 

examines former Deputy Attorney General James Comey’s testimony before the Senate Judiciary Committee last week. The gist of the articles is as follows:

• FISA is clearly a constitutional exercise of the congressional power to enact 

necessary and proper laws that reasonably regulate the exercise of an executive power;

• FISA leaves the vast majority of the executive’s power to gather foreign intelligence undisturbed, and does not aggrandize Congress at the expense of the 

executive;

• FISA was born of decades of spying abuses by an unchecked executive to harass or embarrass political opponents. It was not an exercise of congressional 

peevishness.

• The constitutional theory advanced by the Bush administration to justify the 

NSA’s warrantless spying program equally crowns the President with authority to open mail, break and enter homes, and kidnap for the purpose of interrogation on his say-so alone.

• Mr. Comey did not fix the FISA problem with the NSA’s warrantless surveillance program after he threatened to resign and President Bush informed 

him to do the right thing.

• Congress should enact a law that prohibits any expenditure of the United 

States to gather foreign intelligence except in conformity with FISA.

Based on the public record, it also would seem appropriate for this Committee to 

investigate whether criminal violations of FISA have been committed by the Bush 

administration and to urge the Department of Justice to appoint a special prosecutor to examine the matter. There is reason to suspect that high level officials, 

including President Bush himself, have knowingly violated FISA and continue to do 

so through the NSA’s domestic warrantless surveillance program. All of the legal 

arguments concocted by the Bush administration to defend the program have been 

facially preposterous. 

Attorney General Alberto Gonzales belatedly obtained a FISA warrant for the 

NSA’s spying but its terms have not been shared with Congress generally. Without 

disclosure, it is impossible for Congress to assess whether the warrant complies with 

FISA or whether the statute should be amended. I would urge Congress to prohibit 

the expenditure of any monies of the United States to execute a FISA warrant 

whose provisions have been withheld from the its respective House and Senate intelligence and judiciary committees despite the issuance and service of proper subpoenas. 

CONCLUSION

If Congress leaves the Bush administration’s illegal spying programs unrebuked, 

a precedent will have been established that will lie around like a loaded weapon 

ready for permanent use throughout the endless conflict with international terrorism. If Congress slumbers, free speech and association will be chilled; political 

dissent will be muffled; unorthodox or unconventional behavior will be discouraged 

or punished; and, the American people will become docile, a fatal weakness to demoVerDate 0ct 09 2002 12:33 Oct 22, 2007 Jkt 000000 PO 00000 Frm 00026 Fmt 6633 Sfmt 6621 H:\WORK\CONST\060707\35861.000 HJUD1 PsN: 35861
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cratic customs and institutions. If the constitutional oath means anything, it means 

that Members of Congress are obligated to check and to sanction clear and palpable 

executive branch abuses.

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Mr. NADLER. Thank you. 

Mr. Casey? 

TESTIMONY OF LEE A. CASEY, PARTNER, BAKER HOSTETLER 

Mr. CASEY. Thank you, Mr. Chairman. I appreciate the opportunity to appear today to discuss the constitutional limitations on 

domestic surveillance. 

Ironically, the most controversial surveillance over the past several years has not been domestic at all, but rather the international surveillance involved in the NSA’s Terrorist Surveillance 

Program. It is to the legal issues surrounding that program that 

I will address my remarks. 

I should make clear that I am speaking here on my own behalf. 

Let me begin by stating that I believe President Bush was fully 

within his constitutional and statutory authority when he authorized the TSP. The President’s critics have variously described this 

program as widespread, domestic and illegal. Based upon the published accounts, it is none of these things. Rather, it is a targeted 

program on the international communications of individuals engaged in an armed conflict with the United States and is fully consistent with FISA. 

In assessing the Administration’s actions here, it is important to 

highlight how narrow is the actual dispute over the NSA program. 

Few of the President’s critics claim that he should not have ordered 

the interception of al-Qaida’s global communications or that he 

needed the FISA Court’s permission to intercept al-Qaida communications abroad. It is only with respect to communications actually 

intercepted inside the United States or where the target is a 

United States person in the United States, that FISA is relevant 

at all to this national discussion. 

Since this program involves only international communications, 

where at least one party is an al-Qaida operative, it is not clear 

that any of these intercepts would properly fall within FISA’s 

terms. This is not the pervasive dragnet of American domestic communications about which so many of the President’s critics have 

fantasized. 

The Administration has properly refused to publicly articulate 

the full metes and bounds of the NSA program. Let us assume, 

however, that some of the intercepts are subject to FISA. As the 

Department of Justice correctly pointed out in its January 19, 

2006, memorandum, FISA permits electronic surveillance without 

an order if it is otherwise authorized by statute. The NSA program 

was so authorized. 

The September 18, 2001, authorization for the use of military 

force permits the President to use all necessary and appropriate 

force against those responsible for September 11, ‘‘in order to prevent any future acts of international terrorism against the United 

States.’’ The Supreme Court has already interpreted this grant to 

encompass all of the fundamental incidents of waging war. In 

Hamdi v. Rumsfeld, the court considered and rejected the argument, then being advanced with respect to the Non-Detention Act 

that the September 18 authorization permitted only those types of 

force not otherwise specifically forbidden by statute. 

44

The monitoring of enemy communications, whether or not within 

the United States, is as much a fundamental and accepted incident 

to war as is the detention of captured enemy combatants. Indeed, 

it is only through the collection and exploitation of intelligence that 

the September 18th authorization can be successfully implemented. 

Even in the absence of that law, however, the TSP would fall 

within the President’s inherent constitutional authority as chief executive and commander-in-chief. The U.S. Courts of Appeal that 

have considered the issue have upheld this authority. FISA’s own 

Foreign Intelligence Surveillance Court of Review has acknowledged it, noting that FISA itself could not encroach upon it. And 

the Supreme Court has carved the area of foreign intelligence collection out of its fourth amendment warrant jurisprudence. 

But if FISA were construed to prohibit, without judicial approval, 

the President’s decision to monitor enemy communications into and 

out of the United States in wartime, then the statute would be invalid. Wars cannot be fought without intelligence and requiring the 

President as commander-in-chief to obtain an order to intercept 

enemy communications would be no less unconstitutional than 

would requiring judicial oversight of target selection. It need not 

and should not be so interpreted. 

Thank you. 

[The prepared statement of Mr. Casey follows:]

PREPARED STATEMENT OF LEE A. CASEY

I appreciate the opportunity to appear today to discuss the ‘‘Constitutional Limitations on Domestic Surveillance.’’ Ironically, the most controversial surveillance over 

the past several years has not been ‘‘domestic’’ at all, but rather the international 

surveillance involved in the NSA’s Terrorist Surveillance Program (‘‘TSP’’), and it 

is to the legal issues surrounding that program that I will address my remarks. I 

should make clear that I am speaking here on my own behalf. 

Let me begin by stating that I believe President Bush was fully within his constitutional and statutory authority when he authorized the TSP, including his decision to permit the interception of al Qaeda communications into and out of the 

United States without first obtaining an order from the Foreign Intelligence Surveillance Act (‘‘FISA’’) Court. 

The President’s critics have variously described the NSA program as ‘‘widespread,’’ ‘‘domestic,’’ and ‘‘illegal.’’ It is none of these things. Rather, the program 

is limited, targeted on the international communications of individuals engaged in 

an armed conflict with the United States, and is fully consistent with FISA. First, 

in assessing the President’s actions here, it is important to highlight how narrow 

is the actual dispute over the NSA’s TSP. Few of the President’s critics claim that 

he should not have ordered the NSA to monitor al Qaeda’s communications on a 

global basis. Indeed, in the wake of the September 11, 2001 attacks, he would surely 

have been remiss in his duties had he not ordered this surveillance. Moreover, few 

of the President’s critics have had the temerity to claim that he was required to obtain the FISA Court’s permission to intercept and monitor al Qaeda communications 

outside of the United States. 

It is, in fact, only with respect to communications actually intercepted by the NSA 

within the United States, as opposed to by satellites or listening posts located 

abroad, or where the ‘‘target’’ of the intercept is an American citizen or resident 

alien, that FISA is relevant at all to this national discussion. Despite the rhetoric, 

FISA is not a comprehensive statute that requires the President to obtain a ‘‘warrant’’ to collect foreign intelligence. It is a narrow law that requires an ‘‘order’’ be 

obtained for ‘‘electronic surveillance’’ in only four circumstances:

(1) Where a United States person in the United States is the target of, rather 

than incidental to, the surveillance;

(2) Where the acquisition of the intelligence will be accomplished by devices located within the United States;

(3) Where the sender and all recipients of the relevant communication are 

present in the United States; or

45

(4) Where surveillance devices are used within the United States to collect communications other than wire or radio communications.

That being the case, based upon how the President, Attorney General, and General Hayden (former head of NSA), have described the NSA program, it is not at 

all clear that any of the intercepts would properly fall within FISA in the first instance. In that regard, the NSA program appears to have been:

(1) targeted at al Qaeda operatives and their associates—in other words, communications are intercepted and monitored based on an al Qaeda association; and

(2) directed only at international communications with an al Qaeda operative 

or associate on one end: As General Hayden made clear, ‘‘one end of any 

call targeted under this program is always outside the United States;’’ and

(3) the purpose is not to collect evidence for a criminal prosecution, but to identify and thwart additional attacks against the United States.

Whatever this program is, it is not the pervasive dragnet of American domestic 

communications about which so many of the Administration’s critics have fantasized. Moreover, unless some of these communications are intercepted in the United 

States, or the targeted al Qaeda operative happens also to be a ‘‘United States person,’’ FISA does not apply by its own terms. 

The Administration has properly refused to publicly articulate the full metes and 

bounds of the NSA program. For the sake of argument, however, let us assume that 

some of the communications intercepted as part of this program are intercepted 

within the United States, or that some of the targeted al Qaeda operatives are 

‘‘United States persons’’ within FISA’s meaning. (This would include American citizens, permanent resident aliens, and U.S. corporations. 50 U.S.C. § 1801(i)). The 

program remains lawful and constitutional. 

Indeed, the TSP clearly falls within the President’s inherent constitutional authority, under Article II, as Chief Executive and Commander-in-Chief. This authority has been consistently recognized and respected, with the exception of one District Court decision now on appeal, by the United States’ courts. Indeed, the United 

States Foreign Intelligence Surveillance Court of Review, established under FISA, 

has itself acknowledged this authority. In In re Sealed Case No. 02–001, where the 

Court of Review reversed an effort by the FISA trial court to reimpose a kind of 

‘‘wall’’ between intelligence gathering and law enforcement, despite Congress’ 

amendment of FISA as part of the Patriot Act, the Court also noted that: ‘‘all the 

other courts to have decided the issue, held that the President did have inherent 

authority to conduct warrantless searches to obtain foreign intelligence information.’’ 310 F.3d 717, 742 (FISA Ct. of Review 2002). It went on to state that ‘‘[w]e 

take for granted that the President does have that authority [to conduct warrantless 

surveillance for foreign intelligence purposes] and, assuming that is so, FISA could 

not encroach on the President’s constitutional power.’’ Id. 

Significantly, in this connection, the FISA Court of Review was discussing another 

important precedent, United States v. Truong, 629 F.2d 908 (4th Cir. 1980). This 

is, in fact, the leading case recognizing the President’s inherent power, as a function 

of his role in formulating and implementing U.S. foreign policy, to order warrantless 

electronic surveillance for foreign intelligence purposes. This power exists even 

when the surveillance is in the United States and directed at an American citizen. 

In Truong, the Carter Administration authorized warrantless wire-tapping of a resident alien and an American citizen, in the United States, in a successful effort to 

identify the source of classified documents being illegally transmitted to foreign government representatives. 

The defendants challenged their espionage convictions by arguing that this surveillance violated the Fourth Amendment guarantee against unreasonable searches 

and seizures and the attendant warrant requirement. In response, the Carter Administration stated without equivocation that: ‘‘In the area of foreign intelligence, 

the government contends, the President may authorize surveillance without seeking 

a judicial warrant because of his constitutional prerogatives in the area of foreign 

affairs.’’ Truong, 629 F.2d at 912. The United States Court of Appeals for the Fourth 

Circuit agreed, and ruled that the warrantless surveillance ordered in this case had 

been lawful. The court reasoned as follows:

For several reasons, the needs of the executive are so compelling in the 

area of foreign intelligence, unlike the area of domestic security, that a uniform warrant requirement would, following [United States v. United Stated 

District Court (Keith), 407 U.S. 297 (1972)], ‘‘unduly frustrate’’ the President in carrying out his foreign affairs responsibilities. First of all, attempts 

to counter foreign threats to the national security require the utmost 

46

stealth, speed, and secrecy. A warrant requirement would add a procedural 

hurdle that would reduce the flexibility of executive foreign intelligence initiatives, in some cases delay executive response to foreign intelligence 

threats, and increase the chance of leaks regarding sensitive executive operations. [Citations omitted.] 

More importantly, the executive possesses unparalleled expertise to make 

the decision whether to conduct foreign intelligence surveillance, whereas 

the judiciary is largely inexperienced in making the delicate and complex 

decisions that lie behind foreign intelligence surveillance. . . . 

Perhaps most crucially, the executive branch not only has superior expertise in the area of foreign intelligence, it is also constitutionally designated 

as the preeminent authority in foreign affairs. [Citations omitted]. The 

President and his deputies are charged by the Constitution with the conduct of the foreign policy of the United States in times of war and peace. 

[Citations omitted.] Just as the separation of powers in Keith forced the executive to recognize a judicial role when the President conducts domestic 

surveillance, [citations omitted] so the separation of powers requires us to 

acknowledge the principal responsibility of the President for foreign affairs 

and concomitantly for foreign intelligence surveillance.

Truong, 629 F.2d at 913–14. 

FISA was, of course, enacted shortly before the decision in Truong was announced, and the court did not, therefore, address the law’s impact as part of its 

holding. Neither has the Supreme Court considered whether, or to what extent, 

FISA may have trenched upon the President’s constitutional authority. This, however, is the question we are left with. President Bush did not invent this authority, 

as some critics have implied, nor has he asserted more power than his predecessors 

have claimed. As explained by the Justice Department in its January 19, 2006, 

Memorandum (pp. 7–8, 16–17), various forms of warrantless electronic surveillance 

have been utilized since the Civil War. Presidents Franklin D. Roosevelt and Harry 

S. Truman authorized, without judicial participation, the use of wiretaps as a means 

of obtaining intelligence against the United States’ enemies, as did President Woodrow Wilson. See Exec. Order No. 2604 (Apr. 28, 1917). Both the Carter and Clinton 

Administrations also affirmed the President’s inherent constitutional authority to 

conduct warrantless surveillance and/or searches for foreign intelligence purposes. 

See January 19 DOJ Memorandum, p. 8. 

As to the question whether Congress exceeded its authority in enacting FISA, the 

answer depends very much on how that law is interpreted and applied. The interplay between the Executive and Congress is, in the best of circumstances, complex 

and shifting. As a general proposition, Congress is entitled to legislate on any number of matters that may impact how the President discharges his constitutional role. 

The test is whether Congress has ‘‘impede[d] the President’s ability to perform his 

constitutional duty.’’ Morrison v. Olson, 487 U.S. 654, 691, 695–96 (1988) (appointment of independent counsel by special judicial body, and imposition of a removal 

for cause requirement, did not impermissibly impede the President’s authority, 

where there were a number of other means by which the officials activities could 

be supervised). If FISA were construed to prohibit the President, without judicial 

approval, from monitoring enemy communications into and out of the United States 

during wartime, then the statute could fairly be said to impede the President’s exercise of his constitutional authority and would, to that extent, be invalid. It need not, 

and should not, be so interpreted. 

In this connection, it should also be noted that the Executive Branch secures one 

very valuable advantage when it does obtain an order pursuant to FISA’s provisions—the evidence collected pursuant to such an order will almost certainly be admissible in a later criminal proceeding. See, e.g., United States v. Squillacote, 221 

F.3d 542, 553–54 (4th Cir. 2000), cert. denied, 532 U.S. 971 (2001). At the same 

time, hard choices are often necessary during an armed conflict. If the President determines that the process established in FISA is insufficiently protective of national 

security, as he has done with respect to the NSA program, and he is prepared to 

risk having intelligence information secured without a FISA order later ruled inadmissible in court (as the Truong Court suggested was a possibility in certain circumstances, 629 F.2d at 915), then he is fully entitled to rely on his constitutional 

authority alone. To the extent that Congress sought to forbid such reliance, and to 

foreclose the President’s right to order the interception, without a FISA order, of 

enemy communications in wartime, it exceeded its constitutional authority. 

In any case, assessment of the TSP’s legality need not go so far. As the Department of Justice correctly pointed out in its memorandum of January 19, 2006, 

‘‘Legal Authorities Supporting the Activities of the National Security Agency DeVerDate 0ct 09 2002 12:33 Oct 22, 2007 Jkt 000000 PO 00000 Frm 00050 Fmt 6633 Sfmt 6621 H:\WORK\CONST\060707\35861.000 HJUD1 PsN: 35861
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scribed by the President,’’ FISA itself provides that electronic surveillance otherwise 

subject to the statute can lawfully be accomplished without a FISA order if it is ‘‘authorized by statute.’’ 50 U.S.C. § 1809(a)(1). The surveillance of al Qaeda, in the 

United States or anywhere else in the world, has been authorized by statute—in the 

form of the September 18, 2001 Authorization for the Use of Military Force. 50 

U.S.C. § 1541 note. 

That statute specifically authorized 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 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.’’ (Emphasis added). 

This is a broad grant. There are, of course, many who argue that the September 

18 Authorization was not broad enough to permit the NSA program because it did 

not specifically reference electronic surveillance or FISA. Significantly, however, an 

identical argument was advanced with respect to the capture and detention of certain al Qaeda and Taliban operatives under the ‘‘Non-detention Act,’’ 18 U.S.C. 

§ 4001(a). That law forbids the detention of American citizens save as authorized by 

act of Congress and specifically provides that: ‘‘[n]o citizen shall be imprisoned or 

otherwise detained by the United States except pursuant to an Act of Congress.’’ It 

should go without saying that the Non-detention Act, and the principle it seeks to 

implement, are as important to our system of ordered liberty as is FISA. 

Nevertheless, in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), the Supreme Court correctly interpreted the September 18, 2001 Authorization for the Use of Military 

Force to authorize the President to detain American citizens, consistent with 18 

U.S.C. § 4001(a), because that authorization must be interpreted to permit all of the 

normal incidents of war. As explained by Justice O’Connor in her plurality opinion 

(which commanded a majority of 5 votes on this point), the detention of captured 

enemies ‘‘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.’’ 542 U.S. at 518. 

Surely, the monitoring of enemy communications, whether into or out of the 

United States, is also such a ‘‘fundamental and accepted’’ incident to war. That is 

how wars are fought; that is how wars have always been fought; and it is especially 

how this war must be fought. Only through the collection and exploitation of intelligence can the purpose of Congress’ September 18, 2001, Authorization—‘‘to prevent 

any future acts of international terrorism against the United States’’—be achieved. 

For his part, the President has not claimed the right to surveil the American population in general, but only enemy agents as they communicate into and out of the 

United States. 

This type of intelligence gathering has been a critical part of warfare since the 

first man with a spear crept to the edge of his enemy’s camp listening for voices 

in the night. As George Washington explained to an American agent during the War 

for Independence, the ‘‘necessity of procuring good intelligence, is apparent and need 

not be further urged. All that remains for me to add is, that you keep the whole 

matter as secret as possible. For upon secrecy, success depends in most Enterprizes 

of the kind, and for want of it, they are generally defeated.’’ CIA v. Sims, 471 U.S. 

172 n.16 (1984) (quoting letter from George Washington to Colonel Elias Dayton, 

July 26, 1777). In ordering this surveillance the President acted fully in accordance 

with an express congressional authorization, at the very zenith of his powers as outlined in Justice Jackson’s concurrence in Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952). 

For those who claim that the September 18, 2001, Authorization cannot be read 

to have amended FISA; it did not. FISA remains intact, just as the Non-detention 

Act remains intact. The September 18, 2001 Authorization works with these laws, 

not against them. Of course, had Congress formally declared war, under FISA section 111 (50 U.S.C. § 1811), the entire statute would have been suspended for 15 

days. During that period, the President would have been free to target anyone and 

everyone’s electronic communications, not merely those of known al Qaeda 

operatives. This program is much more limited. 

Obviously, there are those who disagree with this analysis. There are few questions of either constitutional or statutory interpretation that cannot be debated, and 

debated in good faith. Arguing about what the Constitution’s Framers or Congress 

meant on any particular occasion is how many of us in the legal profession earn 

our livings. However, claims that the President or his Administration have acted 

unlawfully, or beyond his constitutional authority, are groundless. 

This is especially the case in view of the fact that there has been no suggestion 

that the President has misused or abused any of the information obtained from the 

48

NSA program. By all accounts, it has been utilized in carrying out Congress’ instructions in the September 18, 2001, Authorization—‘‘to prevent any future acts of 

international terrorism against the United States.’’ Individual Senators, and members of this Committee of both parties, may well honestly believe that this law did 

not authorize the President to use any incident of force that is otherwise prohibited 

by statute, and their opinions must be respected. However, the Supreme Court disagreed only two years ago in the Hamdi case. That case supports the President’s 

position with respect to the NSA program. 

For a more complete statement of my views, please see Andrew C. McCarthy, 

David B. Rivkin, Jr. & Lee A. Casey, NSA’s Warrantless Surveillance Program: 

Legal, Constitutional and Necessary, which is available at: http://www.fed-soc.org/

doclib/20070522lterroristsurveillance.pdf 

Thank you, and I would be pleased to answer any questions the Committee may 

have.

Mr. NADLER. Thank you. 

Mr. Jaffer? 

TESTIMONY OF JAMEEL JAFFER, DIRECTOR, NATIONAL 

SECURITY PROJECT, AMERICAN CIVIL LIBERTIES UNION 

Mr. JAFFER. Thank you, Chairman Nadler. 

Chairman Nadler, Ranking Member Franks, thank you for inviting me to testify today about surveillance conducted by the NSA, 

and authorized by the President in violation of statutory and constitutional law. 

The ACLU is grateful for your efforts to determine the scope of 

the NSA’s unlawful activities and for your efforts to ensure that 

statutory and constitutional limits on the President’s power are 

being honored. 

I testify today as director of the ACLU’s National Security 

Project and as counsel to the plaintiffs in ACLU v. NSA. In early 

2006, soon after the NSA’s warrantless surveillance activities became public, the ACLU sued on behalf of a coalition of journalists, 

scholars, defense attorneys and national nonprofit organizations to 

challenge the NSA’s warrantless surveillance activities inside the 

Nation’s borders. 

The lawsuit alleges that the NSA’s activities violate FISA, which 

requires that intelligence surveillance inside the U.S. be conducted 

with judicial oversight. The suit also alleges that the NSA’s activities violate the constitutional principle of separation of powers, as 

well as the First and fourth amendments. In August of 2006, the 

U.S. District Court for the Eastern District of Michigan agreed 

with us on all counts, but the Government has appealed this ruling 

to the Sixth Circuit. The appeal has now been argued and we are 

awaiting the court’s decision. 

Because my time before the Subcommittee is limited, I would 

like to summarize my main concerns about the NSA’s activities 

very briefly. I would also like to suggest next steps for this Subcommittee and the Congress. 

The first thing I would like to stress is that the NSA’s 

warrantless surveillance activities are illegal. With narrow exceptions, FISA prohibits the executive branch from intercepting the 

contents of emails and telephone calls without first obtaining judicial authorization for the surveillance. This prohibition applies 

whenever the communications are acquired inside the U.S. It also 

applies whenever the person targeted by the surveillance is a U.S. 

citizen or resident. To intentionally violate FISA is a crime. 

49

In its legal papers and in public statements, the Administration 

has contended that Congress implicitly amended FISA and authorized the NSA’s warrantless surveillance activities when it passed 

the AUMF in 2001. This is a specious argument. The AUMF makes 

no mention of domestic surveillance and Senator Daschle has said 

that in drafting the AUMF, Congress rejected proposals that would 

have expanded the President’s authority to act within the U.S. 

The Administration has also argued that the President possesses 

the authority as commander-in-chief to disregard FISA and the 

fourth amendment’s warrant requirements, but this argument—the 

argument that the President is above the law—is one that the Supreme Court has rejected repeatedly and forcefully. Under the Constitution, the President and Congress share authority in the fields 

of war and foreign affairs. While the President surely has authority 

to act in these fields, Congress has the power to regulate the President’s authority, and this is precisely what Congress did when it 

enacted FISA. 

In violating FISA, the President broke the law. To the extent his 

actions were intentional, and they appear to have been, his actions 

were criminal. With this in mind, it is absolutely imperative that 

this Congress demand transparency about the Administration’s 

surveillance activities, both past and ongoing. The ACLU is concerned that though the NSA surveillance activities were disclosed 

more than a year ago, Congress has not issued subpoenas demanding that the Administration explain the nature and scope of its activities. 

It has not issued subpoenas demanding that the Administration 

disclose the legal opinions on which it has relied. It has not issued 

subpoenas to the telecommuncations corporations that facilitated 

the Administration’s unlawful activities. And it has not issued subpoenas to determine how the fruits of unlawful surveillance have 

been used. Congress needs this information and it should demand 

that this information be disclosed immediately. 

Congress should also demand information about the Administration’s ongoing surveillance activities. The President has expressly 

claimed the authority to disregard FISA in the future. For all we 

know, he may be disregarding it now. Congress should find out. 

Congress should also demand transparency about any surveillance activities that are being conducted on the authority of orders 

issued by a FISA judge in January of this year. The Administration’s public statements about those orders suggest that the orders 

may be programmatic and categorical, rather than individualized 

as FISA and the fourth amendment require. 

Congress’ obligation, of course, is not simply to examine the Administration’s unlawful activities, but to ensure that those activities do not continue. To this end, Congress should use this appropriations and authorization cycle to prohibit the use of funds to engage in electronic surveillance that does not comply with FISA or 

that is conducted on the basis of programmatic orders, rather than 

individualized and particularized warrants. 

Congress has a critical role to play in ensuring that the rights 

of innocent U.S. citizens and residents are protected now and in 

the future. 

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Thank you again for holding this hearing. I look forward to your 

questions. 

[The prepared statement of Mr. Jaffer follows:]

PREPARED STATEMENT OF JAMEEL JAFFER


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Mr. NADLER. Thank you. 

And Mr. Fisher? 

TESTIMONY OF LOUIS FISHER, AMERICAN LAW DIVISION, 

LIBRARY OF CONGRESS 

Mr. FISHER. Thank you, Mr. Chairman. I was encouraged at the 

start of Chairman Conyers saying that this might be the first step 

in exploring issues. There are so many questions that we know 

very little about, and I hope to see a succession of hearings. 

My statement starts with a little bit of the history back in the 

1960’s and 1970’s where the Administration was conducting domestic surveillance, and they were conducting it under the same 

grounds that we talk about today, under the inherent power of the 

President to take certain actions to protect the American people. 

That theory of inherent power was litigated in the Keith case, 

and both at the District Court level and the Sixth Court level and 

the Supreme Court level, the court said you don’t have that power; 

you are talking about a power that King George III had, and that 

is why we had a Declaration of Independence, and that is why we 

had a war of independence, and that is why we have the fourth 

amendment. All of this led to the FISA statute in 1978, including 

a very important judicial check. 

The Administration defends the Terrorist Surveillance Program 

on statutory grounds and constitutional grounds. The statutory 

ground, namely the Authorization of Use of Military Force, I don’t 

think was ever persuasive. If Congress ever wanted to change FISA 

or amend it, it does it the way it normally does. It has changed 

FISA many times. You bring it up. You know what you are talking 

about. You don’t change a law by implication, which is what the 

argument would be with the AUMF. 

As far as the constitutional argument, I would just take one sentence from the January 2006 OLC report, where it said that the 

policies of the NSA program, ‘‘are supported by the President’s 

well-recognized inherent constitutional authority as commander-inchief and the sole organ for the nation in foreign affairs.’’

Well-recognized? Maybe it is well-recognized among certain attorneys in the Administration, but it is not well-recognized in the 

courts. It is not well-recognized in Congress. It is not well-recognized in the academic community. 

Inherent? We are all familiar with express powers and implied 

powers. Those are drawn from the Constitution. The danger with 

inherent powers is that you don’t know where they are being 

drawn from. Inherent power is an invitation to act outside the law. 

The claim of inherent powers for the President weakens Congress, 

weakens the rule of law, weakens democratic government, weakens 

the system of checks and balances. 

Commander-in-chief? You can’t take three words from article II 

and pretend that that is an argument. It is just three words, and 

you have to understand that commander-in-chief in the context of 

article I, what that gives to Congress, and other provisions in the 

Constitution, including the first and fourth amendments. 

Sole organ? I hope whenever you see that word ‘‘sole organ’’ in 

legal analysis you will be suspect about the credibility and honesty 

of the analysis, because it comes from a speech that John Marshall 

69

gave when he was a Member of the House in 1800, and nothing 

in John Marshall’s statement ever, ever implied anything to do 

with plenary, exclusive, independent or extra-constitutional presidential powers. It is a misuse of that statement and it is a misuse 

of where it was later distorted in the 1936 Curtiss-Wright decision. 

I talk about briefings and consultations. They are very constructive if you are getting briefed about a program that is legal. If you 

are getting briefed about a program that is illegal, you are just getting briefed about an illegal program. The briefings do not help 

that. 

The ‘‘gang of eight’’ I think was the wrong procedure. The ‘‘gang 

of eight’’ is for covert actions. The terrorist surveillance program is 

not a covert action. What happens when Members of Congress are 

briefed and you tell the Member that we are briefing you, but you 

cannot talk to anyone else? You cannot talk with staff who have 

clearances, et cetera. The executive branch doesn’t control Congress. You control yourself. You have to protect your own powers 

and prerogatives and institutions. 

I think the same principle would apply to the FISA Court. I 

think the fact that you would brief two chief judges in a row, I 

think was not a good procedure. I think the court knows that Congress by statute provided for a judicial check, and you cannot brief 

one judge. I think all 11 members of the court should have been 

briefed, and then they decide what to do. And lastly on briefings, 

I think the briefings should apply to the Judiciary Committees. 

You have a special Committee jurisdiction to protect the integrity 

of FISA. 

And last, I just ended on what does ‘‘legal’’ means today because 

if you hear the Administration say that this is legal, this is authorized, this has been reauthorized, they are not talking about law 

created by Congress. They are talking about law created by the executive branch. Up to now, we have said that law is made by parliamentary deliberations and that the President is under the law, 

not above the law. So we have a different system and I think one 

that deserves that very close scrutiny by Congress. 

Thank you. 

[The prepared statement of Mr. Fisher follows:]

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PREPARED STATEMENT OF LOUIS FISHER


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Mr. NADLER. Thank you. 

I recognize myself for 5 minutes. 

Mr. Bradbury? 

Mr. BRADBURY. Yes, sir. 

Mr. NADLER. [off-mike] 15-day opening window to act during 

times of war. Was the TSP or any other surveillance program outside the scope of FISA in place prior to the authorization for the 

use of military force? 

Mr. BRADBURY. No. 

Mr. NADLER. Okay. 

Mr. BRADBURY. It began in October of 2001. 

Mr. NADLER. And when was the legal opinion for this authority 

issued? 

Mr. BRADBURY. The President was advised that it was lawful before the program began. 

Mr. NADLER. After the authorization, at what point after the expiration of the 15 days did the President revert to his authority 

under FISA? 

Mr. BRADBURY. I am not sure I understand the question. The 15 

days, Mr. Nadler, does not apply. It applies only when there is a 

declaration of war. Section 111 of FISA——

Mr. NADLER. So you are not explaining the 15-day——

Mr. BRADBURY. That is correct. I would say, and I will try to be 

brief, that the 15-day provision in section 111 of FISA in our view 

does not say you only get 15 days——

Mr. NADLER. You don’t have to get a warrant for 15 days. 

Mr. BRADBURY. But it does not purport to mean that Congress 

made a judgment that you only need 15 days of authority during 

time of war to commence surveillance. 

Mr. NADLER. No, the expectation when that was passed was that 

you have 15 days to go to Congress if you thought you needed more 

authority to act without warrants. 

Mr. BRADBURY. And in our view, the authorization for the use of 

military force was an act of Congress that did give that authority. 

Mr. NADLER. Which gives the President limitless authority? 

Mr. BRADBURY. Not limitless. 

Mr. NADLER. But authority to act without warrants? 

Mr. BRADBURY. All necessary and appropriate authority to repel 

the threat, and to prevent attack. 

Mr. NADLER. And that means that as long as we are fighting the 

war on terror, the President can have surveillance of Americans he 

believes to be in communication with al-Qaida in the United States 

without getting warrants from a FISA Court? 

Mr. BRADBURY. It does not mean that. 

Mr. NADLER. What does it mean? 

Mr. BRADBURY. The authorization is still in effect and does still 

give authority to the President, but anything the President does 

has to be consistent with the Constitution; has to be consistent 

with——

Mr. NADLER. But under your interpretation of the Constitution’s 

inherent article II powers, he can wiretap people without a warrant 

from the FISA Court. 

Mr. BRADBURY. It all depends on the circumstances at a given 

time. The fourth amendment has very real application here. Any 

85

surveillance has to be reasonable under the fourth amendment. 

That takes into account all the conditions and circumstances at the 

time, and the nature of the surveillance that you are talking about. 

For example, Mr. Chairman, if the President wanted to reauthorize the Terrorist Surveillance Program today, my view is it would 

require a new legal analysis, a new judgment based on all the current circumstances. 

Mr. NADLER. Okay. And he has done that 45 times? 

Mr. BRADBURY. I don’t know about the exact number. It was 

every 45 days, approximately. 

Mr. NADLER. I am sorry—every 45 days he has done it. 

When was the first discussion after 9/11 with members of the department about undertaking electronic surveillance outside FISA? 

Mr. BRADBURY. Again, our view is that the surveillance of this 

program is consistent with FISA, Mr. Chairman. 

Mr. NADLER. No, I think what you have said is that your view 

is that under the President’s inherent power and under AUMF, it 

supersedes FISA, not that it is consistent with FISA. 

Mr. BRADBURY. I think there have been some rather extravagant 

claims about what our argument is. Our argument is primarily 

that you need to read the authorization for the use of force consistent with FISA to harmonize them. There is a provision in FISA 

that says——

Mr. NADLER. Wait a minute. That doesn’t make any sense. FISA 

says you can wiretap people in the United States with a warrant. 

I have always understood you to say that under the AUMF and 

under the President’s inherent power, you don’t need to obey that 

provision of FISA. Correct? 

Mr. BRADBURY. I am sorry. FISA doesn’t say ‘‘with a warrant.’’ 

FISA orders are not necessarily warrants. 

Mr. NADLER. Excuse me. You need a FISA order. Never mind the 

nomenclature, you need a FISA order. Your claim is that under the 

AUMF and under inherent power of the President, you don’t need 

a FISA order. 

Mr. BRADBURY. FISA says ‘‘except as otherwise authorized by 

statute.’’ AUMF is a statute. 

Mr. NADLER. Correct. And AUMF being a statute, your interpretation is that AUMF supersedes FISA. 

Mr. BRADBURY. No, it doesn’t supersede FISA. FISA says ‘‘except 

as otherwise authorized by statute,’’ so it is consistent with FISA. 

Mr. NADLER. All right. We are playing word games. 

Mr. BRADBURY. I think it is very fundamental. 

Mr. NADLER. We are playing word games. 

Your claim is that under the AUMF, AUMF authorizes the surveillance without a FISA order and that that is consistent with 

FISA. 

Mr. BRADBURY. Correct. 

Mr. NADLER. Okay. I would say that that means it supersedes 

FISA. It doesn’t matter. 

In an October 2001 OLC opinion regarding presidential power, 

referred to in the August 2002 so-called ‘‘torture memo,’’ was that 

October 2001 opinion part of the consideration by the department 

of the legality of electronic surveillance? 

86

Mr. BRADBURY. I am not sure of the exact opinion that you are 

referring to. I would say there are opinions from the office regarding this program. 

Mr. NADLER. The Congress has repeatedly asked for copies of the 

OLC opinion. Will you furnish copies of those opinions to the Committee? 

Mr. BRADBURY. No, Mr. Chairman. 

Mr. NADLER. Why not? 

Mr. BRADBURY. Because those reflect the internal confidential 

legal advice of the executive branch. Those are deliberative——

Mr. NADLER. What privilege are you asserting? 

Mr. BRADBURY. I am not asserting a privilege. 

Mr. NADLER. Then how can you not give it to the Committee 

upon request? Either you assert a privilege or you give it to us, one 

or the other. 

Mr. BRADBURY. No. Mr. Chairman, we respond to all requests 

from the Committee. If the Committee makes a request for the document, we——

Mr. NADLER. We have made such a request. 

Mr. BRADBURY. And I believe we responded and explained——

Mr. NADLER. By saying you won’t give it to us. 

Mr. BRADBURY [continuing]. That the confidentiality interests of 

the department——

But we have done something that is rather extraordinary, and 

that is we prepared in January of 2006 a very extensive white 

paper for the purpose of explaining to the Congress and to——

Mr. NADLER. That is very nice, but it doesn’t give us what we 

requested, which is those legal opinions. Unless you are asserting 

a privilege, there is no alternative. What privilege are you asserting? 

Mr. BRADBURY. We are citing the confidentiality interests that 

the executive branch has in internal confidential deliberative advice of the executive branch. 

Mr. NADLER. So that is executive privilege you are asserting. 

Mr. BRADBURY. I don’t assert executive privilege, Mr. Chairman. 

The President asserts executive privilege. 

Mr. NADLER. So you just stated that the President exerted executive privilege, then. 

Mr. BRADBURY. I stated that there are important confidentiality 

interests with respect to internal advice, and those——

Mr. NADLER. Isn’t that the issue of executive privilege? 

Mr. BRADBURY. No, it isn’t. Those are the types of interests that 

would support if necessary an assertion of executive privilege by 

the President. That is something we like to try to avoid, and we 

have not done that here. 

Mr. NADLER. So you are saying you won’t give to Congress the 

requested documents because they deserve executive privilege 

which you haven’t yet asserted. 

Mr. BRADBURY. They do partake of the confidentiality interests 

of the executive branch. That is an interest that could support an 

assertion of executive privilege. 

Mr. NADLER. All right. Let me stop playing this game. Has any 

part of the October 2001 OLC opinion been withdrawn, modified or 

clarified in any way since then? If so, what are the changes? 

87

Mr. BRADBURY. I am not going to discuss the internal legal deliberations of the department. 

Mr. NADLER. Did the Department of Justice Office of Legal Counsel issue an opinion or more than one opinion concerning electronic 

surveillance? 

Mr. BRADBURY. The Department of Justice Office of Legal Counsel has reviewed the legality of the program and has reviewed it 

more than once. 

Mr. NADLER. Are any part of such opinions currently classified? 

Mr. BRADBURY. All such opinions are currently classified. 

Mr. NADLER. Okay. I see my time has expired. Thank you. 

Mr. BRADBURY. Thank you. 

Mr. NADLER. We have 6 minutes. The Ranking Member is correct. I will violate what I said before. We will recess for 6 minutes 

to go and vote, and we will resume. 

Please, there are two votes. I ask the Members as soon as you 

can catch the second vote, please return here. Please return here 

and we will resume in about 12 minutes. 

Thank you. 

[Recess.] 

Mr. NADLER. The Committee will come back to order. 

I would normally ask the Ranking Member to ask questions, but 

we will come back to him since he is not here yet. 

In accordance with the policy, I will now recognize the distinguished Chairman of the full Committee, the gentleman from 

Michigan, Mr. Conyers, for 5 minutes. 

Mr. CONYERS. Thank you, Mr. Chairman. 

I wanted to thank Mr. Fein, Mr. Jaffer and Dr. Fisher for their 

very excellent explanations of the statutory and constitutional 

basis of why we are here today. 

And so, do any of you have any reason to believe that the Administration can deny the Committee access to executive branch opinions about the legality of the TSP program or its current revisions? 

Mr. FEIN. I think not, Mr. Conyers. Let me elaborate. 

Mr. CONYERS. Please. 

Mr. FEIN. There is certainly an exceptionally compelling interest 

in the Congress in determining whether or not perhaps a criminal 

violation of FISA has occurred since 9/11. The statute makes criminal only those things that are done intentionally. It is a vital interest for this Committee, therefore, to know what legal advice was 

being given to those in authority to order the National Security 

Agency to circumvent FISA. 

Moreover, I think the history of executive privilege shows that it 

would hardly be a crippling of the executive branch to require the 

disclosure of this kind of communication to the Congress. It has 

been done regularly with regard to Supreme Court nominees or 

even lower court nominees, where it was thought important in examining the philosophy of a nominee, what kind of advice was 

given the solicitor general or otherwise. 

I can recall in my own experience serving as counsel on the IranContra Committee that President Reagan had given authority for 

the national security advisers to give blow-by-blow accounts as to 

the advice concerning the sale of arms to Iran and the diversion of 

88

funds to the so-called ‘‘Contras.’’ That testimony was forthcoming. 

It did nothing to cripple the executive branch. 

The main argument that is advanced, I think, by Mr. Bradbury 

or tacitly, is, well, if this is disclosed in this compelling interest 

where you need to determine whether a crime has been committed, 

no one will be candid in their legal opinions. History, I think, discredits that. 

The last thing I would say is at least the prevailing Supreme 

Court opinion on this issue indirectly, U.S. v. Nixon, which says 

even presidential communications can be forced to be disclosed in 

the context of a criminal investigation conducted by a grand jury, 

which strongly suggests if the Congress is similarly investigating 

that seriousness of wrongdoing in the executive branch, then even 

presidential communications would be forth coming, a fortiori, legal 

advice within the Justice Department. 

Mr. CONYERS. Yes. Very good. 

Dr. Fisher, adding to the same question, the notion that the 

Chairman, myself, and the Ranking Member, Mr. Lamar Smith, we 

could be briefed, but everybody else on the Committee shouldn’t be 

briefed. I don’t get it. We are all cleared for top secret. What is the 

difference? 

Mr. FISHER. I don’t understand the Administration’s position. I 

think you operate as a Committee. You have to legislate as a Committee. You don’t do it by Chair and Ranking, so everyone on the 

Committee is cleared and they have a need to know what it is in 

case they have to legislate on it. 

Mr. CONYERS. Exactly right. 

Mr. Jaffer, what would you add to this discussion? 

Mr. JAFFER. First, I think all of that is exactly right, Mr. Conyers. The only thing that I want to stress is to the extent that Government is relying on the AUMF, the authorization for use of military force, as authority for its actions, I think that that reliance is 

completely misplaced. First, as I said earlier, there is no textual 

basis for the argument that the AUMF was meant to authorize domestic surveillance. 

Second, many Members of Congress have come out on both sides 

of the aisle to say that they never meant to authorize domestic surveillance when they authorized the AUMF. And then finally, the 

Administration has relied on Hamdi, the Supreme Court’s decision 

in Hamdi, but Hamdi involved the detention of enemy combatants 

on the battlefield. That is a completely different situation than 

what we are dealing with here, which is a program of surveillance 

inside the United States directed at U.S. citizens and U.S. residents. 

Mr. CONYERS. Exactly. 

Dr. Fisher, finally? 

Mr. FISHER. Yes, just to add to what Bruce Fein said about the 

deliberative process, Mr. Bradbury is correct that there is much 

going on inside the executive branch that is part of the deliberative 

process, but you are not asking about the deliberative process. You 

are asking for the final legal judgment to justify a program. As we 

all know, OLC regularly publishes its opinions when there is a 

question. After the New York Times story about the legality of it, 

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you know, in January 2006, OLC quickly got out their 42-page 

white paper. 

So I don’t understand any reason why a legal analysis, a final 

legal analysis, not the interim one, the final one shouldn’t be made 

available to Congress and the public. 

Mr. CONYERS. Chairman Nadler and I are still waiting for a response of any kind from the Attorney General Alberto Gonzales 

about this subject matter since May 17th. In our generosity of spirit, we are going to give him 2 more weeks, and then, as somebody 

said, it is about time process kicks in somewhere around here. 

Thank you, Mr. Chairman. 

Mr. NADLER. Thank you. 

I now recognize for 5 minutes the distinguished Ranking Member 

of the Subcommittee, Mr. Franks. 

Mr. FRANKS. Thank you, Mr. Chairman. 

Mr. Chairman, I might make just a couple of observations here 

before I ask questions. 

I think it was Mr. Fein that suggested that there were many 

things unknown to Congress and certainly this program was known 

but to a few Members of Congress. In my judgment, the correct 

Members of Congress knew about it. This is the type of program 

that because of the national security implications is important to 

keep that from the general public. But for the New York Times, we 

wouldn’t know about this. I would only suggest to you that but for 

the New York Times, perhaps terrorists wouldn’t know about it either. 

I also think Mr. Fein indicated that the NSA surveillance program would not reach someone like Osama bin Laden, that it 

would not be relevant in that case in a cave somewhere in Tora 

Bora or wherever it might be. But would that be unless he had a 

cell phone or a working satellite phone? Certainly, something like 

this could have profound implications in that regard. This is what 

the whole idea is here is to intercept phone calls and conversations 

just like that from those who are trying to maintain their secrecy. 

I just wanted to point those two things out. Sometimes it seems important. 

Mr. Bradbury, could I ask you, sir, ever since the Supreme Court 

decided the Keith case, both before and after the enactment of 

FISA all Federal appellate courts that have squarely confronted 

the issue have found that the President is constitutionally empowered under article II to conduct warrantless electronic surveillance 

when he deems it necessary to protect the Nation from external 

threats. 

The rationale was articulated by the Fifth Circuit Court in 

United States v. Brown, decided a year after the Supreme Court 

case of the Keith case. And this is their quote: ‘‘Because of the 

President’s constitutional duty to act for the United States in the 

field of foreign relations and his inherent power to protect national 

security in the context of foreign affairs, we affirm that the President may constitutionally authorize warrantless wiretaps for the 

purpose of gathering foreign intelligence. Restrictions upon the 

President’s power which are appropriate in cases of domestic security become artificial in the context of the international sphere. 

This principle is buttressed by a thread that runs throughout the 

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Federalist papers that the President must take care to safeguard 

the nation from possible foreign encroachment, whether in its existence as a nation or in its intercourse with other nations.’’

To your knowledge, Mr. Bradbury, are there any higher judicial 

precedents that directly hold otherwise? 

Mr. BRADBURY. Not directly, no. 

Mr. FRANKS. Can anyone on the panel suggest that there were 

any court case or any higher judicial precedent that would hold 

other than what I just read from the Supreme Court? 

Mr. FEIN. Yes, I would. 

Mr. FRANKS. Yes, sir? 

Mr. FEIN. I would suggest that the separation of powers doctrine 

announced by the United States Supreme Court in Youngstown 

Sheet and Tube v. Sawyer made quite clear——

Mr. FRANKS. Confronting this issue directly, Mr. Fein, not indirectly. 

Mr. FEIN. They did not confront intelligence collection in that 

particular direction, but certainly they announced a doctrine that 

was equally applicable. They didn’t say the doctrine of separation 

of powers makes a difference depending upon whether you seize a 

steel mill or whether you intercept foreign communications in violation of a Federal statute. The basis doctrine stays undisturbed. 

Mr. FRANKS. Well, let me just for the fun of it, I am going to read 

the court’s language again so that we can be sure that indeed the 

court did address foreign intelligence gathering, which is what the 

subject of the case here is today. 

We are not talking about steel mills, and I am not sure I have 

time, but this is their language: ‘‘Because of the President’s constitutional duty to act for the United States in the field of foreign 

relations and his inherent power to protect national security in the 

context of foreign affairs, we affirm the President may constitutionally authorize warrantless wiretaps for the purpose of gathering foreign intelligence.’’ I will stop there. 

It seems very clear to me if there is no case that overturns that, 

that the President is on strong footing. I am probably going to go 

ahead and yield back here because I am about out of time, but 

thank you all for coming. 

Mr. NADLER. I thank the gentleman. 

I am going to ask unanimous consent to grant myself 30 seconds 

to ask a question. 

Number one, isn’t it true that the Truong case that you quoted 

dealt with developments prior to enactment of the FISA Act, number one? 

And number two, isn’t it true that the FISA Act deals not with 

foreign intelligence, but with intelligence conducted in the United 

States, and therefore what the Ranking Member was talking about 

was not really on point, Mr. Fein? 

Mr. FEIN. That is accurate. 

Mr. NADLER. Thank you. 

Mr. FEIN. Moreover, the doctrine is very clear and accepted by 

the United States Supreme Court that the President’s powers inherent to gather foreign intelligence are reduced to the extent Congress makes a regulation. That is the clear teaching of Youngstown 

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Sheet and Tube and Justice Jackson’s concurring opinion which is 

accepted as controlling law. 

Mr. NADLER. I thank you. I just yielded myself 30 seconds with 

unanimous consent. I am not getting recognized. 

Mr. FRANKS. With unanimous consent, could I respond for 30 seconds? 

Mr. NADLER. Well, yes, but before you do, I will ask Mr. Fisher, 

who wanted to answer my question to answer my question, too, 

and then I will yield to you. 

Mr. FISHER. I just want to make the point that the Brown case 

was 1973, and I think there is a big difference when Congress has 

not acted. 

Mr. NADLER. That predates FISA? 

Mr. FISHER. That predates pre-FISA, there are certain cases that 

recognize Congress hasn’t spoken. Once Congress speaks in 1978, 

I think the constitutional issue shifts. 

Mr. BRADBURY. Mr. Chairman, may I make a point? 

Mr. NADLER. Yes. 

Mr. BRADBURY. It is absolutely correct that the courts of appeals 

cases directly on-point dealt with conduct that occurred prior to the 

enactment of FISA, including the Truong case. It was decided after 

the enactment of FISA. 

Mr. NADLER. A few days after. 

Mr. BRADBURY. Yes, the Truong case in the Fourth Circuit. The 

Truong case did focus on what the court viewed as the inappropriateness or the mismatch of having a judicial proceeding overseeing 

the President’s exercise of foreign intelligence authority. So it did 

recognize a mismatch there. 

I guess the other point I would make is that the Supreme Court 

in the Keith case expressly—and I know Dr. Fisher referenced the 

Keith case—included a footnote in that case in which it made clear 

it was not addressing exercise of the President’s authority with respect to foreign intelligence surveillance. FISA does deal with foreign intelligence. 

Mr. NADLER. Within the United States. 

Mr. BRADBURY. Well, it has a complicated definition of ‘‘electronic 

surveillance,’’ It can encompass surveillance even when you are focusing on foreign persons overseas. 

Mr. NADLER. Okay, we are abusing my 30 seconds now. 

Mr. BRADBURY. Thank you. 

Mr. NADLER. I will now grant the Ranking Member 1 minute, 

with unanimous consent. 

Mr. FRANKS. Mr. Chairman, I am not sure that I can improve on 

Mr. Bradbury’s explanation, but I do think that a constitutional 

ruling is not trumped by the statute in the first place, even if the 

points were correct. Thank you. 

Mr. NADLER. Thank you. 

I now yield to the gentleman from North Carolina for 5 minutes. 

Mr. WATT. Thank you, Mr. Chairman. 

In addition to the three witnesses that Mr. Conyers thanked, I 

want to thank the other two also because I am appreciative to all 

of you for being here to testify about something that there has been 

a tug-of-war about for a long time, I suppose. And that is the whole 

concept of who has power. I didn’t deal with this concept very much 

92

before I came to Congress, but power is interesting, and most people don’t concede power to anybody. 

We do know that our Nation was founded on the concept of separation of powers to dilute and balance power. So I obviously and 

unapologetically err on the side of balancing powers regardless of 

who is asserting it. Otherwise, we have a dictatorial government in 

some respects, which I take it may be what the President is asserting in this area, and in some areas he has gone in that direction, 

too, but that is a subject of another day. 

Mr. Bradbury, I note that you are the principal deputy assistant 

attorney general. Did you hold that position under Mr. Ashcroft, 

Attorney General Ashcroft also, or any position in the Justice Department? 

Mr. BRADBURY. Yes, I did. 

Mr. WATT. Okay. 

Mr. Comey, former Deputy Attorney General Comey, testified before this Committee a couple of weeks ago in a different context, 

about a meeting that took place in the hospital when Attorney 

General Ashcroft was in the hospital, and testified that he, Deputy 

Attorney General Comey, Attorney General Ashcroft, and FBI Director Robert Mueller concluded that the NSA’s program did not 

comply with the law. 

Mr. Bradbury, would you affirm that or refute that that happened? Did Mr. Ashcroft take the position that some aspects of this 

program did not comply with the law? 

Mr. BRADBURY. Congressman, I am not in a position to confirm 

the testimony that Mr. Comey gave. 

Mr. WATT. I am not asking you to confirm the testimony. I am 

asking you to confirm whether or not former Attorney General 

Ashcroft expressed reservations, legal reservations about some aspects of the surveillance program. 

Mr. BRADBURY. I think, Congressman, that the attorney general 

has made it clear that——

Mr. WATT. I would think a yes or no answer to that would suffice. I mean, I am happy to have you elaborate, but either he did 

question some aspects of this or he didn’t question them. That is 

either yes or no, and then I am happy to have you explain. I am 

not trying to cut you off, but I don’t want you to rope-a-dope me 

for 5 minutes explaining something that is not an answer, too. 

Mr. BRADBURY. As I think we have tried to be clear and careful 

about——

Mr. WATT. Mr. Bradbury, did former Attorney General Ashcroft 

express legal reservations about some aspects, whatever they 

were—I am not even going to get into that—of this surveillance 

program? 

Mr. BRADBURY. Congressman, the attorney general has indicated 

that, as you might expect with complicated national security matters, disagreements arose about aspects of intelligence activities, 

the details of operations, and intelligence activities that are not 

public, that remain highly classified. 

Mr. WATT. I am not asking you to make anything public. I am 

asking you, does that mean that the former attorney general had 

some legal reservations about some aspect of the program, Mr. 

Bradbury? 

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Mr. BRADBURY. Well, all I will say is what the attorney general 

has said, which is that disagreements arose. Disagreements were 

addressed and resolved. However, those disagreements were not 

about the particular activities that the President has publicly described, that we have termed the terrorist surveillance program. 

Mr. WATT. Did former Attorney General Ashcroft refuse to sign 

whatever this certification of legality that was presented to him at 

the hospital, as far as you know, Mr. Bradbury? 

Mr. BRADBURY. I am sorry. I am not at liberty to talk about internal disagreements or deliberations. 

Mr. WATT. You are before this Committee. Are you asserting 

some kind of privilege? What are you doing other than saying ‘‘I 

don’t want to answer the question,’’ Mr. Bradbury? 

Mr. BRADBURY. I am referring to again, Congressman, to the interests that the department and the executive branch have in the 

confidential internal advice and deliberations of the executive 

branch. 

Mr. WATT. Okay. Well, what effect, Mr. Fein, Mr. Fisher, would 

a certification by the Department of Justice have on the legality of 

an electronic surveillance program that violated the FISA statute? 

Mr. NADLER. The gentleman’s time has expired, but I will ask 

the witnesses to answer the question briefly. 

Mr. FEIN. The certification cannot make something that is illegal 

legal, but I do think the question indicates the importance of a response by Mr. Bradbury, because insofar as you are examining in 

good faith of the executive branch and operating outside FISA, you 

need to know what advice was given within that branch. 

It seems to me preposterous that this Committee, and you are 

the representatives of the people, people who have a democracy 

where openness is the rule, sunshine is the best disinfectant, are 

kept unknowing as to exactly what was given advice in this highly 

sensitive situation. 

Mr. FISHER. Yes, I would say certification is just the last result. 

All you know is that they certified it. You don’t know why they certified it. So I think you have to get the legal reasoning down on 

paper so that you know what was considered by the department in 

authorizing this program. 

Mr. WATT. Thank you, Mr. Chairman. I yield back. 

Mr. NADLER. I thank the gentleman. 

And I thank all our witnesses. 

Without objection, all Members will have 5 legislative days to 

submit to the Chair additional written questions for the witnesses, 

which we will forward. And I ask the witnesses to respond as 

promptly as you can, so that the answers may be part of the 

record. 

Without objection, all Members will have 5 legislative days to 

submit any additional materials for inclusion in the record. 

With that, I thank the witnesses again. 

I thank the Members. 

And the hearing is adjourned. 

Mr. BRADBURY. Thank you, Mr. Chairman. 

[Whereupon, at 4:02 p.m., the Subcommittee was adjourned.] 

(95)

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

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RESPONSE FROM BRIAN A. BENCZKOWSKI, PRINCIPAL DEPUTY ASSISANT ATTORNEY

GENERAL, U.S. DEPARTMENT OF JUSTICE, IN RESPONSE TO POST-HEARING QUESTIONS SUBMITTED BY THE SUBCOMMITTEE


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U.S. DEPARTMENT OF JUSTICE DOCUMENT ENTITLED ‘‘LEGAL AUTHORITIES SUPPORTING THE ACTIVITIES OF THE NATIONAL SECURITY AGENCY DESCRIBED BY THE

PRESIDENT’’


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LETTER FROM THE COMMITTEE ON THE JUDICIARY, DATED JANUARY 19, 2007, TO THE

HONORABLE ALBERTO R. GONZALES, ATTORNEY GENERAL OF THE UNITED STATES, 

U.S. DEPARTMENT OF JUSTICE


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LETTER FROM THE COMMITTEE ON THE JUDICIARY, DATED FEBRUARY 1, 2007, TO THE

HONORABLE ALBERTO R. GONZALES, ATTORNEY GENERAL OF THE UNITED STATES, 

U.S. DEPARTMENT OF JUSTICE


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LETTER FROM RICHARD A. HERTLING, ACTING ASSISTANT ATTORNEY GENERAL, U.S. 

DEPARTMENT OF JUSTICE, DATED FEBRUARY 9, 2007, TO THE HONORABLE JOHN

CONYERS, JR., CHAIRMAN, COMMITTEE ON THE JUDICIARY


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LETTER FROM THE COMMITTEE ON THE JUDICIARY, DATED MAY 17, 2007, TO THE

HONORABLE ALBERTO R. GONZALES, ATTORNEY GENERAL OF THE UNITED STATES, 

U.S. DEPARTMENT OF JUSTICE


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Æ


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