U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

1 

49–006 

" ! HOUSE OF REPRESENTATIVES 109TH CONGRESS

2nd Session 

REPORT

2006

109–384 

REQUESTING THE PRESIDENT AND DIRECTING THE 

SECRETARY OF DEFENSE TO TRANSMIT TO THE 

HOUSE OF REPRESENTATIVES ALL INFORMATION 

IN THE POSSESSION OF THE PRESIDENT OR THE 

SECRETARY OF DEFENSE RELATING TO THE COLLECTION OF INTELLIGENCE INFORMATION PERTAINING TO PERSONS INSIDE THE UNITED STATES 

WITHOUT OBTAINING COURT-ORDERED WARRANTS 

AUTHORIZING THE COLLECTION OF SUCH INFORMATION AND RELATING TO THE POLICY OF THE 

UNITED STATES WITH RESPECT TO THE GATHERING OF COUNTERTERRORISM INTELLIGENCE 

WITHIN THE UNITED STATES 

ADVERSE REPORT 

OF THE

COMMITTEE ON ARMED SERVICES 

HOUSE OF REPRESENTATIVES 

ON

H. RES. 645 

MARCH 7, 2006.—Referred to the House Calendar and ordered to be 

printed. 


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(II) 

HOUSE COMMITTEE ON ARMED SERVICES 

ONE HUNDRED NINTH CONGRESS

DUNCAN HUNTER, California, Chairman 

CURT WELDON, Pennsylvania 

JOEL HEFLEY, Colorado 

JIM SAXTON, New Jersey 

JOHN M. MCHUGH, New York 

TERRY EVERETT, Alabama 

ROSCOE G. BARTLETT, Maryland 

HOWARD P. ‘‘BUCK’’ MCKEON, California 

MAC THORNBERRY, Texas 

JOHN N. HOSTETTLER, Indiana 

WALTER B. JONES, North Carolina 

JIM RYUN, Kansas 

JIM GIBBONS, Nevada 

ROBIN HAYES, North Carolina 

KEN CALVERT, California 

ROB SIMMONS, Connecticut 

JO ANN DAVIS, Virginia 

W. TODD AKIN, Missouri 

J. RANDY FORBES, Virginia 

JEFF MILLER, Florida 

JOE WILSON, South Carolina 

FRANK A. LOBIONDO, New Jersey 

JEB BRADLEY, New Hampshire 

MICHAEL TURNER, Ohio 

JOHN KLINE, Minnesota 

CANDICE S. MILLER, Michigan 

MIKE ROGERS, Alabama 

TRENT FRANKS, Arizona 

BILL SHUSTER, Pennsylvania 

THELMA DRAKE, Virginia 

JOE SCHWARZ, Michigan 

CATHY MCMORRIS, Washington 

MICHAEL CONAWAY, Texas 

GEOFF DAVIS, Kentucky 

IKE SKELTON, Missouri 

JOHN SPRATT, South Carolina 

SOLOMON P. ORTIZ, Texas 

LANE EVANS, Illinois 

GENE TAYLOR, Mississippi 

NEIL ABERCROMBIE, Hawaii 

MARTY MEEHAN, Massachusetts 

SILVESTRE REYES, Texas 

VIC SNYDER, Arkansas 

ADAM SMITH, Washington 

LORETTA SANCHEZ, California 

MIKE MCINTYRE, North Carolina 

ELLEN O. TAUSCHER, California 

ROBERT A. BRADY, Pennsylvania 

ROBERT ANDREWS, New Jersey 

SUSAN A. DAVIS, California 

JAMES R. LANGEVIN, Rhode Island 

STEVE ISRAEL, New York 

RICK LARSEN, Washington 

JIM COOPER, Tennessee 

JIM MARSHALL, Georgia 

KENDRICK B. MEEK, Florida 

MADELEINE Z. BORDALLO, Guam 

TIM RYAN, Ohio 

MARK UDALL, Colorado 

G.K. BUTTERFIELD, North Carolina 

CYNTHIA MCKINNEY, Georgia 

DAN BOREN, Oklahoma 

ROBERT L. SIMMONS, Staff Director 


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C O N T E N T S 

Page 

Purpose and Summary ............................................................................................ 1 

Background .............................................................................................................. 2 

Executive Communications ..................................................................................... 5 

Legislative History .................................................................................................. 56 

Committee Position ................................................................................................. 57 

Communication from Another Committee ............................................................. 57 

Committee Cost Estimate ....................................................................................... 57 

Oversight Findings .................................................................................................. 57 

Constitutional Authority Statement ...................................................................... 58 

Record Vote .............................................................................................................. 58 


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bajohnson on PROD1PC72 with REPORTS
49–006 

109TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 109–384 

REQUESTING THE PRESIDENT AND DIRECTING THE SECRETARY OF DEFENSE TO TRANSMIT TO THE HOUSE OF REPRESENTATIVES ALL INFORMATION IN THE POSSESSION OF THE PRESIDENT OR THE SECRETARY 

OF DEFENSE RELATING TO THE COLLECTION OF INTELLIGENCE INFORMATION PERTAINING TO PERSONS INSIDE THE UNITED STATES WITHOUT OBTAINING COURT-ORDERED WARRANTS AUTHORIZING THE COLLECTION OF SUCH INFORMATION AND RELATING TO THE POLICY OF 

THE UNITED STATES WITH RESPECT TO THE GATHERING OF 

COUNTERTERRORISM INTELLIGENCE WITHIN THE UNITED STATES 

MARCH 7, 2006.—Referred to the House Calendar and ordered to be printed 

Mr. HUNTER, from the Committee on Armed Services, 

submitted the following 

ADVERSE REPORT 

[To accompany H. Res. 645] 

The Committee on Armed Services, to whom was referred the 

resolution (H. Res. 645) requesting the President and directing the 

Secretary of Defense to transmit to the House of Representatives 

all information in the possession of the President or the Secretary 

of Defense relating to the collection of intelligence information pertaining to persons inside the United States without obtaining 

court-ordered warrants authorizing the collection of such information and relating to the policy of the United States with respect to 

the gathering of counterterrorism intelligence within the United 

States, having considered the same, report unfavorably thereon 

without amendment and recommend that the resolution not be 

agreed to. 

PURPOSE AND SUMMARY

House Resolution 645, introduced on December 22, 2005, by Congressman Robert Wexler, requests the President and directs the 

Secretary of Defense to transmit to the House of Representatives 

not later than 14 days after the date of the adoption of the resolution all documents including telephone and electronic mail records, 

logs, calendars, minutes, memos, and records of internal discussions in their possession relating to two matters: (1) the legal authority upon which surveillance by the NSA or the DOD of persons 

inside the United States and the gathering of counterterrorism intelligence within the United States without obtaining court-ordered 

warrants is based; and (2) the scope of the activities undertaken by 


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1 James Risen and Eric Lichblau, ‘‘Bush Lets U.S. Spy on Callers Without Courts,’’ New York 

Times, December 16, 2005, p.A1. 2President’s Radio Address, Dec. 17, 2005. 3 Id. 

4Press Release, White House, Press Briefing by Attorney General Alberto Gonzalez and General Michael Hayden, Principal Deputy Director for National Intelligence, Dec. 19, 2005. 

the DOD, the Counterintelligence Field Activity (CIFA), or any related agency with regards to Threat and Local Observation Notice 

(TALON) reports regarding the gathering of counterterrorism intelligence within the United States. 

Clause 7 of rule XIII of the Rules of the House of Representatives 

provides for a committee to report on a qualifying resolution of inquiry, such as H. Res. 645, within 14 legislative days or a privileged motion to discharge the committee is in order. H. Res. 645 

was referred to the Armed Services Committee on December 22, 

2005. 

Under the rules and precedents of the House, a resolution of inquiry is one of the means by which the House may request information from the head of one of the executive departments. It is a 

simple resolution making a demand of the head of an executive department to furnish the House of Representatives with specific information in the possession of the executive branch. It is not used 

to request opinions or to require an investigation on a subject. 

BACKGROUND

Background on request for legal authority regarding warrantless intelligence by the NSA 

On December 16, 2005, the New York Times published an article 

which revealed that the President had authorized the NSA to collect electronic intelligence from communications involving at least 

one person within the United States without obtaining a warrant 

or court order.1 The next day the President confirmed the existence 

of a classified NSA terrorist surveillance program. The President 

stated that shortly after the September 11, 2001 attacks, he authorized the NSA ‘‘consistent with U.S. law and the Constitution 

to intercept the international communications of people with 

known links to al Qaeda and related terrorist organizations . . . to 

detect and prevent terrorist attacks against the United 

States....’’ 2 The President emphasized that the surveillance program is ‘‘crucial to our national security....’’ 3 He also stated 

that the surveillance program is reviewed approximately every 45 

days and that these reviews have included approval by the Attorney General and the Counsel to the President. Finally, the President noted that congressional leaders had been briefed on the surveillance activities more than a dozen times. 

On December 19, 2005, Attorney General Alberto Gonzales and 

General Michael Hayden, Principal Deputy Director for National 

Intelligence (and former NSA Director) described unclassified aspects of the program at a press briefing. The Attorney General 

stated that the program involved ‘‘intercepts of contents of communications where one . . . party to the communication is outside the 

United States’’ and the government had ‘‘a reasonable basis to conclude that one party to the communication is a member of al 

Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda.’’ 4 GenVerDate Aug 31 2005 01:31 Mar 11, 2006 Jkt 049006 PO 00000 Frm 00006 Fmt 6659 Sfmt 6602 E:\HR\OC\HR384.109 HR384

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5 Id. 

6On January 5, 2006, the Congressional Research Service released a memorandum which 

questioned the President’s legal authority to order warrantless electronic surveillance. On February 2, 2006, a group of fourteen law professors and former government sent a letter to congressional leaders concluding that the NSA program appeared on its face to violate existing law. 

In addition, at least two lawsuits have been filed challenging the NSA program. 7 A copy of the White Paper is attached to this report as Exhibit 1. 

8The White Paper notes that al Qaeda’s leadership has repeatedly threatened to attack the 

United States in the future. This threat was reinforced on January 19, 2006, when an audio 

message purportedly recorded by Osama bin Laden was broadcast by al Jazeera. According to 

media reports, CIA intelligence officers who analyzed the recording believed the voice on the 

audiotape is that of bin Laden. The al Qaeda leader allegedly said that the lack of al Qaeda 

attacks in the United States since September 11, 2001 is not related to any improved security 

measures adopted by the United States. According to a transcript of the audiotape, bin Laden 

warned of future attacks, stating ‘‘the operations are under preparation and you will see them 

in your homes the minute they are through, with God’s permission.’’

eral Hayden stated that the aim of the program is not ‘‘to collect 

reams of intelligence, but to detect and warn and prevent [terrorist] attacks.’’ 5 On December 22, 2005, the Department of Justice 

Office of Legislative Affairs released a letter to the leadership of 

the congressional intelligence committees setting forth in greater 

detail the legal authority for the NSA activities. The letter asserted 

the NSA program is a lawful use of the President’s powers as Commander in Chief and that Congress had supplemented the President’s authority by passing the Authorization for Use of Military 

Force (AUMF), enacted on September 18, 2001 as a broad authorization for use of military force against al Qaeda. 

The NSA program came under strict scrutiny after it was revealed.6 In addition, on December 30, 2005, the Justice Department announced it had opened a criminal investigation into the 

possible unauthorized disclosure of classified information regarding 

the NSA surveillance program. 

On January 19, 2006, Attorney General Gonzales transmitted a 

42 page memorandum (‘‘White Paper’’) to the Chairman and Ranking Minority Member of the committee, detailing, in an unclassified 

form, the legal authorities supporting the NSA surveillance program.7 The White Paper again asserted that the NSA program is 

based on the President’s inherent constitutional authority as Commander in Chief, supplemented by Congress in the AUMF, enacted 

on September 18, 2001. The White Paper contends that the NSA 

program is consistent with the Foreign Intelligence Surveillance 

Act (FISA) and is also consistent with privacy rights guaranteed by 

the Fourth Amendment. The DOJ White Paper also highlights the 

continuing threat posed by al Qaeda.8

The most comprehensive description of the operational details of 

the NSA program was provided by General Hayden to the National 

Press Club on January 23, 2006. He stated that the program is 

narrowly targeted and focused. He indicated it does not intercept 

conversations where both parties to the conversation are located in 

the United States. One end of any call targeted under this program 

is always outside of the United States and with a party reasonably 

believed to be affiliated with al Qaeda. General Hayden argued 

that the speed of operations, the ruthlessness of the enemy, and 

the pace of modern communications have called on the NSA to do 

things in ways that have never been required before. He contended 

that although FISA includes an emergency provision allowing 

intercepts to begin without a warrant, FISA is still not adequate 

because even an emergency warrant requires pre-approval by the 


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9The emergency provision does not allow immediate surveillance. Pursuant to 50 U.S.C. 

§ 1805(f), an emergency order may not be obtained until the Attorney General reasonably determines that an emergency situation exists and the factual basis for issuance of an order under 

FISA exists. Thus, even though 72 hours of surveillance may be ordered without a court order, 

FISA still requires the Attorney General to determine in advance of the surveillance that all 

the requirements for a regular FISA application will be fully supported and will be approved 

by the court before an emergency authorization can be granted. This emergency review process 

by the Attorney General requires review by NSA lawyers, DOJ lawyers and finally by the Attorney General himself. 

Attorney General.9 General Hayden stated that ‘‘FISA’s been a remarkably successful tool’’ which the government uses aggressively, 

however, ‘‘FISA does not give us the operational effect’’ the NSA 

authorities provide. 

In his State of the Union Address on January 31, 2006, President 

Bush declared, ‘‘the enemy has not lost the desire or capability to 

attack us . . . the terrorist surveillance program has helped prevent terrorist attacks.’’ Attorney General Gonzales testified regarding this matter before 

the Senate Judiciary Committee on Monday, February 6, 2006. 

Acting Assistant Attorney General for the Office of Legal Counsel 

Steven Bradbury and Assistant Attorney General for the Office of 

Legislative Affairs William Moschella briefed the committee on the 

NSA surveillance program and answered questions from the members of the committee on February 8, 2006. 

The committee concluded that the DOD had substantially complied with the direction of H. Res. 645 to provide the House of Representatives with the legal authority for the NSA program. Therefore, the committee ordered the resolution to be reported adversely. 

Background on request for information regarding the scope of activities undertaken regarding the gathering of counterterrorism 

intelligence within the United States 

On December 13, 2005, a report on the NBC Nightly News disclosed that the Department of Defense (DOD) improperly used a 

counterintelligence program designed to protect military facilities 

from terrorist attacks to collect information on domestic anti-war 

protestors. The report alleged that a DOD agency, the Counterintelligence Field Activity (CIFA), misused a reporting mechanism 

known as a Threat and Local Observation Notice (TALON) reporting system by including information regarding groups that did not 

pose a security threat to military facilities. On December 19, 2005, 

Dr. Stephen A. Cambone, the Under Secretary of Defense (Intelligence), wrote a letter to the Chairman and Ranking Member of 

the Committee, responding to the NBC report. Dr. Cambone indicated that he had initiated a review of the CIFA program and 

would review the TALON database to determine whether information had been improperly stored or used in the database. He further indicated that he would provide the results of that inquiry to 

the committee. 

On January 27, 2006, Robert Rogalski, Acting Deputy Under Secretary of Defense (Counterintelligence and Security), reported back 

to the Chairman and Ranking Minority Member of the Committee 

with additional information regarding these programs. Mr. 

Rogalski indicated that the review of the TALON system was 

‘‘nearly completed’’ and that it had been determined that ‘‘very 

small percentage’’ of reports regarding demonstrations and ‘‘antibase’’ activity not related to terrorist threats had been improperly 


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included in the CIFA database. Mr. Rogalski acknowledged that 

while the purpose of the TALON program is ‘‘to document suspicious incidents possibly linked to foreign terrorist threats to DoD 

resources,’’ he added that ‘‘some came to view the system as a 

means to report information about demonstrations and anti-base 

activity that would be of interest to field commanders from a force 

protection perspective.’’ Mr. Rogalski indicated that CIFA has removed any TALON reports on demonstrations and anti-base activity from the CIFA database and indicated there is an ongoing process to remove any other reports from the database that ‘‘are no 

longer analytically significant.’’

Mr. Rogalski also indicated that the DOD will soon issue detailed 

guidance that will clarify the purpose of the CIFA database and the 

rules governing the collection and retention of the data in an effort 

to avoid any future improper use of intelligence information. He indicated the new guidance will include more detailed procedures to 

ensure compliance with the policy prohibiting the collection of intelligence by those programs that are not related to 

counterterrorism. He indicated the Dr. Cambone has directed all 

DOD counterintelligence and intelligence personnel to receive immediate refresher training concerning the laws and procedures governing the handling of information relating to U.S. persons. 

The Department of Defense provided a closed briefing to the committee on February 8, 2006 regarding this matter. 

The committee concluded that the DOD had substantially complied with the direction of H. Res. 645 to provide the scope of activities conducted undertaken with regard to TALON reports. 

Therefore the committee ordered the resolution to be reported adversely. 

EXECUTIVE COMMUNICATIONS

DEPARTMENT OF JUSTICE, 

OFFICE OF THE ATTORNEY GENERAL, 

Washington, DC, January 19, 2006 

Hon. DUNCAN HUNTER, 

Chairman, Committee on Armed Services, 

House of Representatives, Washington, D.C. 

DEAR MR. CHAIRMAN: As the President recently described, in response to the attacks of September 11th, he has authorized the National Security Agency (NSA) to intercept international communications into or out of the United States of persons linked to al 

Qaeda or an affiliated terrorist organization. The attached paper 

has been prepared by the Department of Justice to provide a detailed analysis of the legal basis for those NSA activities described 

by the President. 

As I have previously explained, these NSA activities are lawful 

in all respects. They represent a vital effort by the President to ensure that we have in place an early warning system to detect and 

prevent another catastrophic terrorist attack on America. In the 

ongoing armed conflict with al Qaeda and its allies, the President 

has the primary duty under the Constitution to protect the American people. The Constitution gives the President the full authority 

necessary to carry out that solemn duty, and he has made clear 

that he will use all authority available to him consistent with the 


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law, to protect the Nation. The President’s authority to approve 

these NSA activities is confirmed and supplemented by Congress in 

the Authorization for Use of Military Force (AUMF), enacted on 

September 18, 2001. As discussed in depth in the attached paper, 

the President’s use of his constitutional authority, as supplemented 

by statue in the AUMF, is consistent with the foreign Intelligence 

Surveillance Act and is also fully protective of the civil liberties 

guaranteed by the Fourth Amendment. 

It is my hope that this paper will prove helpful to your understanding of the legal authorities underlying the NSA activities described by the President. 

Sincerely, 

ALBERTO R. GONZALES, 

Attorney General. 

Enclosure. 

LEGAL AUTHORITIES SUPPORTING THE ACTIVITIES OF THE

NATIONAL SECURITY AGENCY DESCRIBED BY THE PRESIDENT

As the President has explained, since shortly after the 

attacks of September 11, 2001, he has authorized the National Security Agency (‘‘NSA’’) to intercept international 

communications into and out of the United States of persons linked to al Qaeda or related terrorist organizations. 

The purpose of these intercepts is to establish an early 

warning system to detect and prevent another catastrophic 

terrorist attack on the United States. This paper addresses, in an unclassified form, the legal basis for the NSA activities described by the President (‘‘NSA activities’’). 

SUMMARY

On September 11, 2001, the al Qaeda terrorist network 

launched the deadliest foreign attack on American soil in 

history. Al Qaeda’s leadership repeatedly has pledged to 

attack the United States again at a time of its choosing, 

and these terrorist organizations continue to pose a grave 

threat to the United States. In response to the September 

11th attacks and the continuing threat, the President, 

with broad congressional approval, has acted to protect the 

Nation from another terrorist attack. In the immediate 

aftermath of September 11th, the President promised that 

‘‘[w]e will direct every resource at our command—every 

means of diplomacy, every tool of intelligence, every tool of 

law enforcement, every financial influence, and every 

weapon of war—to the destruction of and to the defeat of 

the global terrorist network.’’ President Bush Address to a 

Joint Session of Congress (Sept. 20, 2001). The NSA activities are an indispensable aspect of this defense of the Nation. By targeting the international communications into 

and out of the United States of persons reasonably believed to be linked to al Qaeda, these activities provide the 

United States with an early warning system to help avert 

the next attack. For the following reasons, the NSA activities are lawful and consistent with civil liberties. 


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The NSA activities are supported by the President’s 

well-recognized inherent constitutional authority as Commander in Chief and sole organ for the Nation in foreign 

affairs to conduct warrantless surveillance of enemy forces 

for intelligence purposes to detect and disrupt armed attacks on the United States. The President has the chief responsibility under the Constitution to protect America 

from attack, and the Constitution gives the President the 

authority necessary to fulfill that solemn responsibility. 

The President has made clear that he will exercise all authority available to him, consistent with the Constitution, 

to protect the people of the United States. 

In the specific context of the current armed conflict with 

al Qaeda and related terrorist organizations, Congress by 

statute has confirmed and supplemented the President’s 

recognized authority under Article II of the Constitution to 

conduct such warrantless surveillance to prevent further 

catastrophic attacks on the homeland. In its first legislative response to the terrorist attacks of September 11th, 

Congress 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’’ of September 11th in order 

to prevent ‘‘any future acts of international terrorism 

against the United States.’’ Authorization for Use of Military Force, Pub. L. No. 107–40, § 2(a), 115 Stat. 224, 224 

(Sept. 18, 2001) (reported as a note to 50 U.S.C.A. § 1541) 

(‘‘AUMF’’). History conclusively demonstrates that 

warrantless communications intelligence targeted at the 

enemy in time of armed conflict is a traditional and fundamental incident of the use of military force authorized by 

the AUMF. The Supreme Court’s interpretation of the 

AUMF in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), confirms that Congress in the AUMF gave its express approval to the military conflict against al Qaeda and its allies and thereby to the President’s use of all traditional 

and accepted incidents of force in this current military conflicts including warrantless electronic surveillance to intercept enemy communications both at home and abroad. 

This understanding of the AUMF demonstrates Congress’s 

support for the President’s authority to protect the Nation 

and, at the same time, adheres to Justice O’Connor’s admonition that ‘‘a state of war is not a blank check for the 

President,’’ Hamdi, 542 U.S. at 536 (plurality opinion), 

particularly in view of the narrow scope of the NSA activities. 

The AUMF places the President at the zenith of his powers in authorizing the NSA activities. Under the tripartite 

framework set forth by Justice Jackson in Youngstown 

Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635–38 (1952) 

(Jackson, J., concurring), Presidential authority is analyzed to determine whether the President is acting in accordance with congressional authorization (category I), 

whether he acts in the absence of a grant or denial of authority by Congress (category II), or whether he uses his 


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1 Chapter 119 of title 18, which was enacted by Title III of the Omnibus Crime Control and 

Safe Streets Act of 1968, as amended, 18 U.S.C. 2510–2521 (2000 & West Supp. 2005), is often 

referred to as ‘‘Title III.’’

own authority under the Constitution to take actions incompatible with congressional measures (category III). Because of the broad authorization provided in the AUMF, 

the President’s action here falls within category I of Justice Jackson’s framework. Accordingly, the President’s 

power in authorizing the NSA activities is at its height because he acted ‘‘pursuant to an express or implied authorization of Congress,’’ and his power ‘‘includes all that he 

possesses in his own right plus all that Congress can delegate.’’ Id. at 635. 

The NSA activities are consistent with the preexisting 

statutory framework generally applicable to the interception of communications in the United States—the Foreign 

Intelligence Surveillance Act (‘‘FISA’’), as amended, 50 

U.S.C. §§ 1801–1862 (2000 & Supp. II 2002), and relevant 

related provisions in chapter 119 of title 18.1 Although 

FISA generally requires judicial approval of electronic surveillance, FISA also contemplates that Congress may authorize such surveillance by a statute other than FISA. 

See 50 U.S.C. § 1809(a) (prohibiting any person from intentionally ‘‘engag[ing] . . . in electronic surveillance under 

color of law except as authorized by statute’’). The AUMF, 

as construed by the Supreme Court in Hamdi and as confirmed by the history and tradition of armed conflict, is 

just such a statute. Accordingly, electronic surveillance 

conducted by the President pursuant to the AUMF, including the NSA activities, is fully consistent with FISA and 

falls within category I of Justice Jackson’s framework. 

Even if there were ambiguity about whether FISA, read 

together with the AUMF, permits the President to authorize the NSA activities, the canon of constitutional avoidance requires reading these statutes in harmony to overcome any restrictions in FISA and Title III, at least as 

they might otherwise apply to the congressionally authorized armed conflict with al Qaeda. Indeed, were FISA and 

Title III interpreted to impede the President’s ability to 

use the traditional tool of electronic surveillance to detect 

and prevent future attacks by a declared enemy that has 

already struck at the homeland and is engaged in ongoing 

operations against the United States, the constitutionality 

of FISA, as applied to that situation, would be called into 

very serious doubt. In fact, if this difficult constitutional 

question had to be addressed, FISA would be unconstitutional as applied to this narrow context. Importantly, the 

FISA Court of Review itself recognized just three years ago 

that the President retains constitutional authority to conduct foreign surveillance apart from the FISA framework, 

and the President is certainly entitled, at a minimum, to 

rely on that judicial interpretation of the Constitution and 

FISA. 

Finally, the NSA activities fully comply with the requirements of the Fourth Amendment. The interception of comVerDate Aug 31 2005 01:31 Mar 11, 2006 Jkt 049006 PO 00000 Frm 00012 Fmt 6659 Sfmt 6969 E:\HR\OC\HR384.109 HR384

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munications described by the President falls within a wellestablished exception to the warrant requirement and satisfies the Fourth Amendment’s fundamental requirement 

of reasonableness. The NSA activities are thus constitutionally permissible and fully protective of civil liberties. 

BACKGROUND

A. The attacks of September 11, 2001 

On September 11, 2001, the al Qaeda terrorist network 

launched a set of coordinated attacks along the East Coast 

of the United States. Four commercial jetliners, each carefully selected to be fully loaded with fuel for a transcontinental flight, were hijacked by al Qaeda operatives. 

Two of the jetliners were targeted at the Nation’s financial 

center in New York and were deliberately flown into the 

Twin Towers of the World Trade Center. The third was 

targeted at the headquarters of the Nation’s Armed Forces, 

the Pentagon. The fourth was apparently headed toward 

Washington, DC, when passengers struggled with the hijackers and the plane crashed in Shanksville, Pennsylvania. The intended target of this fourth jetliner was evidently the White House or the Capitol, strongly suggesting 

that its intended mission was to strike a decapitation blow 

on the Government of the United States—to kill the President, the Vice President, or Members of Congress. The attacks of September 11th resulted in approximately 3,000 

deaths—the highest single-day death toll from hostile foreign attacks in the Nation’s history. These attacks shut 

down air travel in the United States, disrupted the Nation’s financial markets and government operations, and 

caused billions of dollars in damage to the economy. 

On September 14, 2001, the President declared a national emergency ‘‘by reason of the terrorist attacks at the 

World Trade Center, New York, New York, and the Pentagon, and the continuing and immediate threat of further 

attacks on the United States.’’ Proclamation No. 7463, 66 

Fed. Reg. 48,199 (Sept. 14, 2001). The same day, Congress 

passed a joint resolution authorizing the President ‘‘to use 

all necessary and appropriate force against those nations, 

organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks’’ of September 11th, which the President signed on September 

18th. AUMF § 2(a). Congress also expressly acknowledged 

that the attacks rendered it ‘‘necessary and appropriate’’

for the United States to exercise its right ‘‘to protect 

United States citizens both at home and abroad,’’ and in 

particular recognized that ‘‘the President has authority 

under the Constitution to take action to deter and prevent 

acts of international terrorism against the United States.’’ Id. pmbl. Congress emphasized that the attacks ‘‘continue 

to pose an unusual and extraordinary threat to the national security and foreign policy of the United States.’’ Id. The United States also launched a large-scale military response, both at home and abroad. In the United States, 


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combat air patrols were immediately established over 

major metropolitan areas and were maintained 24 hours a 

day until April 2002. The United States also immediately 

began plans for a military response directed at al Qaeda’s 

base of operations in Afghanistan. Acting under his constitutional authority as Commander in Chief, and with the 

support of Congress, the President dispatched forces to Afghanistan and, with the assistance of the Northern Alliance, toppled the Taliban regime. 

As the President made explicit in his Military Order of 

November 13, 2001, authorizing the use of military commissions to try terrorists, the attacks of September 11th 

‘‘created a state of armed conflict.’’ Military Order § l(a), 66 

Fed. Reg. 57,833 (Nov. 13, 2001). Indeed, shortly after the 

attacks, NATO—for the first time in its 46-year history— invoked article 5 of the North Atlantic Treaty, which provides that an ‘‘armed attack against one or more of [the 

parties] shall be considered an attack against them all.’’ North Atlantic Treaty, Apr. 4, 1949, art. 5, 63 Stat. 2241, 

2244, 34 U.N.T.S. 243, 246; see also Statement by NATO 

Secretary General Lord Robertson (Oct. 2, 2001), available 

at http://www.nato.int/docu/speech/2001/s011002a.htm 

(‘‘[I]t has now been determined that the attack against the 

United States on 11 September was directed from abroad 

and shall therefore be regarded as an action covered by Article 5 of the Washington Treaty....’’). The President 

also determined in his Military Order that al Qaeda and 

related terrorists organizations ‘‘possess both the capability and the intention to undertake further terrorist attacks against the United States that, if not detected and 

prevented, will cause mass deaths, mass injuries, and massive destruction of property, and may place at risk the continuity of the operations of the United States Government,’’ and concluded that ‘‘an extraordinary emergency 

exists for national defense purposes.’’ Military Order, § l(c), 

(g), 66 Fed. Reg. at 57,833–34. 

B. The NSA activities 

Against this unfolding background of events in the fall 

of 2001, there was substantial concern that al Qaeda and 

its allies were preparing to carry out another attack within 

the United States. Al Qaeda had demonstrated its ability 

to introduce agents into the United States undetected and 

to perpetrate devastating attacks, and it was suspected 

that additional agents were likely already in position within the Nation’s borders. As the President has explained, 

unlike a conventional enemy, al Qaeda has infiltrated ‘‘our 

cities and communities and communicated from here in 

America to plot and plan with bin Laden’s lieutenants in 

Afghanistan, Pakistan and elsewhere.’’ Press Conference of 

President Bush (Dec. 19, 2005), available at http:// 

www.whitehouse.gov/news/releases/2005/12/20051219- 

2.html (‘‘President’s Press Conference’’). To this day, finding al Qaeda sleeper agents in the United States remains 

one of the paramount concerns in the War on Terror. As 


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11 

the President has explained, ‘‘[t]he terrorists want to 

strike America again, and they hope to inflict even more 

damage than they did on September the 11th.’’ Id. 

The President has acknowledged that, to counter this 

threat, he has authorized the NSA to intercept international communications into and out of the United States 

of persons linked to al Qaeda or related terrorist organizations. The same day, the Attorney General elaborated and 

explained that in order to intercept a communication, 

there must be ‘‘a reasonable basis to conclude that one 

party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda.’’ Press Briefing by Attorney General 

Alberto Gonzales and General Michael Hayden, Principal 

Deputy Director for National Intelligence, available at 

http://www.whitehouse.gov/news/releases/2005/12/ 

20051219-1.html (Dec. 19, 2005) (statement of Attorney 

General Gonzales). The purpose of these intercepts is to 

establish an early warning system to detect and prevent 

another catastrophic terrorist attack on the United States. 

The President has stated that the NSA activities ‘‘ha[ve] 

been effective in disrupting the enemy, while safeguarding 

our civil liberties.’’ President’s Press Conference. 

The President has explained that the NSA activities are ‘‘critical’’ to the national security of the United States. Id. 

Confronting al Qaeda ‘‘is not simply a matter of [domestic] 

law enforcement’’—we must defend the country against an 

enemy that declared war against the United States. Id. To ‘‘effectively detect enemies hiding in our midst and prevent 

them from striking us again . . . we must be able to act 

fast and to detect conversations [made by individuals 

linked to al Qaeda] so we can prevent new attacks.’’ Id. The President pointed out that ‘‘a two-minute phone conversation between somebody linked to al Qaeda here and 

an operative overseas could lead directly to the loss of 

thousands of lives.’’ Id. The NSA activities are intended to 

help ‘‘connect the dots’’ between potential terrorists. Id. In 

addition, the Nation is facing ‘‘a different era, a different 

war . . . people are changing phone numbers . . . and 

they’re moving quick[ly].’’ Id. As the President explained, 

the NSA activities ‘‘enable[] us to move faster and quicker. 

And that’s important. We’ve got to be fast on our feet, 

quick to detect and prevent.’’ Id. ‘‘This is an enemy that 

is quick and it’s lethal. And sometimes we have to move 

very, very quickly.’’ Id. FISA, by contrast, is better suited 

‘‘for long-term monitoring.’’ Id. 

As the President has explained, the NSA activities are 

‘‘carefully reviewed approximately every 45 days to ensure 

that [they are] being used properly.’’ Id. These activities 

are reviewed for legality by the Department of Justice and 

are monitored by the General Counsel and Inspector General of the NSA to ensure that civil liberties are being protected. Id. Leaders in Congress from both parties have 

been briefed more than a dozen times on the NSA activities. 


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C. The continuing threat posed by al Qaeda 

Before the September 11th attacks, al Qaeda had promised to attack the United States. In 1998, Osama bin 

Laden declared a ‘‘religious’’ war against the United States 

and urged that it was the moral obligation of all Muslims 

to kill U.S. civilians and military personnel. See Statement 

of Osama bin Laden, Ayman al-Zawahiri, et al., Fatwah 

Urging Jihad Against Americans, published in Al-Quds al- 

’Arabi (Feb. 23, 1998) (‘‘To kill the Americans and their allies—civilians and military—is an individual duty for 

every Muslim who can do it in any country in which it is 

possible to do it, in order to liberate the al-Aqsa Mosque 

and the holy mosque from their grip, and in order for their 

armies to move out of all the lands of Islam, defeated and 

unable to threaten any Muslim.’’). Al Qaeda carried out 

those threats with a vengeance; they attacked the U.S.S. 

Cole in Yemen, the United States Embassy in Nairobi, and 

finally the United States itself in the September 11th attacks. 

It is clear that al Qaeda is not content with the damage 

it wrought on September 11th. As recently as December 7, 

2005, Ayman al-Zawahiri professed that al Qaeda ‘‘is 

spreading, growing, and becoming stronger,’’ and that al 

Qaeda is ‘‘waging a great historic battle in Iraq, Afghanistan, Palestine, and even in the Crusaders’ own homes.’’

Ayman al-Zawahiri, videotape released on Al-Jazeera television network (Dec. 7, 2005). Indeed, since September 

11th, al Qaeda leaders have repeatedly promised to deliver 

another, even more devastating attack on America. See, 

e.g., Osama bin Laden, videotape released on Al-Jazeera 

television network (Oct. 24, 2004) (warning United States 

citizens of further attacks and asserting that ‘‘your security is in your own hands’’); Osama bin Laden, videotape 

released on Al-Jazeera television network (Oct. 18, 2003) 

(‘‘We, God willing, will continue to fight you and will continue martyrdom operations inside and outside the United 

States. . . .’’); Ayman Al-Zawahiri, videotape released on 

the Al-Jazeera television network (Oct. 9, 2002) (‘‘I promise you [addressing the ‘citizens of the United States’] that 

the Islamic youth are preparing for you what will fill your 

hearts with horror’’). Given that al Qaeda’s leaders have 

repeatedly made good on their threats and that al Qaeda 

has demonstrated its ability to insert foreign agents into 

the United States to execute attacks, it is clear that the 

threat continues. Indeed, since September 11th, al Qaeda 

has staged several large-scale attacks around the world, 

including in Indonesia, Madrid, and London, killing hundreds of innocent people. 

ANALYSIS

I. The President has inherent constitutional authority to 

order warrantless foreign intelligence surveillance 

As Congress expressly recognized in the AUMF, ‘‘the 

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tion to deter and prevent acts of international terrorism 

against the United States,’’ AUMF pmbl., especially in the 

context of the current conflict. Article II of the Constitution vests in the President all executive power of the 

United States, including the power to act as Commander 

in Chief of the Armed Forces, see U.S. Const. art. II, § 2, 

and authority over the conduct of the Nation’s foreign affairs. As the Supreme Court has explained, ‘‘[t]he President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.’’

United States v. Curtiss-Wright Export Corp., 299 U.S. 

304, 319 (1936) (internal quotation marks and citations 

omitted). In this way, the Constitution grants the President inherent power to protect the Nation from foreign attack, see, e.g., The Prize Cases, 67 U.S. (2 Black) 635, 668 

(1863), and to protect national security information, see, 

e.g., Department of the Navy v. Egan, 484 U.S. 518, 527 

(1988). 

To carry out these responsibilities, the President must 

have authority to gather information necessary for the execution of his office. The Founders, after all, intended the 

federal Government to be clothed with all authority necessary to protect the Nation. See, e.g., The Federalist No. 

23, at 147 (Alexander Hamilton) (Jacob E. Cooke ed. 1961) 

(explaining that the federal Government will be ‘‘cloathed 

with all the powers requisite to the complete execution of 

its trust’’); id. No. 41, at 269 (James Madison) (‘‘Security 

against foreign danger is one of the primitive objects of 

civil society. . . . The powers requisite for attaining it 

must be effectually confided to the federal councils.’’). Because of the structural advantages of the Executive 

Branch, the Founders also intended that the President 

would have the primary responsibility and necessary authority as Commander in Chief and Chief Executive to protect the Nation and to conduct the Nation’s foreign affairs. 

See, e.g., The Federalist No. 70, at 471–72 (Alexander 

Hamilton); see also Johnson v. Eisentrager, 339 U.S. 763, 

788 (1950) (‘‘this [constitutional] grant of war power includes all that is necessary and proper for carrying these 

powers into execution’’) (citation omitted). Thus, it has 

been long recognized that the President has the authority 

to use secretive means to collect intelligence necessary for 

the conduct of foreign affairs and military campaigns. See, 

e.g., Chicago & S. Air Lines v. Waterman S.S. Corp., 333 

U.S. 103, 111 (1948) (‘‘The President, both as Commanderin-Chief and as the Nation’s organ for foreign affairs, has 

available intelligence services whose reports are not and 

ought not to be published to the world.’’); Curtiss-Wright, 

299 U.S. at 320 (‘‘He has his confidential sources of information. He has his agents in the form of diplomatic, consular and other officials.’’); Totten v. United States, 92 U.S. 

105, 106 (1876) (President ‘‘was undoubtedly authorized 

during the war, as commander-in-chief . . . to employ secret agents to enter the rebel lines and obtain information 


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respecting the strength, resources, and movements of the 

enemy’’). 

In reliance on these principles, a consistent understanding has developed that the President has inherent 

constitutional authority to conduct warrantless searches 

and surveillance within the United States for foreign intelligence purposes. Wiretaps for such purposes thus have 

been authorized by Presidents at least since the administration of Franklin Roosevelt in 1940. See, e.g., United 

States v. United States District Court, 444 F.2d 651, 669–

71 (6th Cir. 1971) (reproducing as an appendix memoranda 

from Presidents Roosevelt, Truman, and Johnson). In a 

Memorandum to Attorney General Jackson, President Roosevelt wrote on May 21, 1940: 

You are, therefore, authorized and directed in 

such cases as you may approve, after investigation 

of the need in each case, to authorize the necessary investigation agents that they are at liberty to secure information by listening devices directed to the conversation or other communications of persons suspected of subversive activities 

against the Government of the United States, including suspected spies. You are requested furthermore to limit these investigations so conducted to a minimum and limit them insofar as 

possible to aliens. 

Id. at 670 (appendix A). President Truman approved a 

memorandum drafted by Attorney General Tom Clark in 

which the Attorney General advised that ‘‘it is as necessary as it was in 1940 to take the investigative measures’’ authorized by President Roosevelt to conduct electronic surveillance ‘‘in cases vitally affecting the domestic 

security.’’ Id. Indeed, while FISA was being debated during 

the Carter Administration, Attorney General Griffin Bell 

testified that ‘‘the current bill recognizes no inherent 

power of the President to conduct electronic surveillance, 

and I want to interpolate here to say that this does not 

take away the power [of] the President under the Constitution.’’ Foreign Intelligence Electronic Surveillance Act of 

1978: Hearings on H.R. 5764, H.R. 9745, H.R. 7308, and 

H.R. 5632 Before the Subcomm. on Legislation of the 

House Comm. on Intelligence, 95th Cong., 2d Sess. 15 

(1978) (emphasis added); see also Katz v. United States, 

389 U.S. 347, 363 (1967) (White, J., concurring) (‘‘Wiretapping to protect the security of the Nation has been authorized by successive Presidents.’’); cf. Amending the Foreign Intelligence Surveillance Act: Hearings Before the 

House Permanent Select Comm. on Intelligence, 103d 

Cong. 2d Sess. 61 (1994) (statement of Deputy Attorney 

General Jamie S. Gorelick) (‘‘[T]he Department of Justice 

believes, and the case law supports, that the President has 

inherent authority to conduct warrantless physical 

searches for foreign intelligence purposes. . . .’’). 


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The courts uniformly have approved this longstanding 

Executive Branch practice. Indeed, every federal appellate 

court to rule on the question has concluded that, even in 

peacetime, the President has inherent constitutional authority, consistent with the Fourth Amendment, to conduct 

searches for foreign intelligence purposes without securing 

a judicial warrant. See In re Sealed Case, 310 F.3d 717, 

742 (Foreign Intel. Surv. Ct. of Rev. 2002) (‘‘[A]ll the other 

courts to have decided the issue [have] held that the President did have inherent authority to conduct warrantless 

searches to obtain foreign intelligence information. . . . We 

take for granted that the President does have that authority 

and, assuming that is so, FISA could not encroach on the 

President’s constitutional power.’’) (emphasis added); accord, e.g., United States v. Truong Dinh Hung, 629 F.2d 

908 (4th Cir. 1980); United States v. Butenko, 494 F.2d 593 

(3d Cir. 1974) (en banc); United States v. Brown, 484 F.2d 

418 (5th Cir. 1973). But cf. Zweibon v. Mitchell, 516 F.2d 

594 (D.C. Cir. 1975) (en banc) (dictum in plurality opinion 

suggesting that a warrant would be required even in a foreign intelligence investigation). 

In United States v. United States District Court, 407 

U.S. 297 (1972) (the ‘‘Keith’’ case), the Supreme Court concluded that the Fourth Amendment’s warrant requirement 

applies to investigations of wholly domestic threats to security—such as domestic political violence and other 

crimes. But the Court in the Keith case made clear that it 

was not addressing the President’s authority to conduct 

foreign intelligence surveillance without a warrant and 

that it was expressly reserving that question: ‘‘[T]he instant case requires no judgment on the scope of the President’s surveillance power with respect to the activities of 

foreign powers, within or without this country.’’ Id. at 308; 

see also Id. at 321–22 & n.20 (‘‘We have not addressed, and 

express no opinion as to, the issues which may be involved 

with respect to activities of foreign powers or their 

agents.’’). That Keith does not apply in the context of protecting against a foreign attack has been confirmed by the 

lower courts. After Keith, each of the three courts of appeals that have squarely considered the question have concluded—expressly taking the Supreme Court’s decision 

into account—that the President has inherent authority to 

conduct warrantless surveillance in the foreign intelligence 

context. See, e.g., Truong Dinh Hung, 629 F.2d at 913–14; 

Butenko, 494 F.2d at 603; Brown, 484 F.2d 425–26. 

From a constitutional standpoint, foreign intelligence 

surveillance such as the NSA activities differs fundamentally from the domestic security surveillance at issue in 

Keith. As the Fourth Circuit observed, the President has 

uniquely strong constitutional powers in matters pertaining to foreign affairs and national security. ‘‘Perhaps 

most crucially, the executive branch not only has superior 

expertise in the area of foreign intelligence, it is also constitutionally designated as the pre-eminent authority in 

foreign affairs.’’ Truong, 629 F.2d at 914; see id. at 913 


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2 Keith made clear that one of the significant concerns driving the Court’s conclusion in the 

domestic security context was the inevitable connection between perceived threats to domestic 

security and political dissent. As the Court explained: ‘‘Fourth Amendment protections become 

the more necessary when the targets of official surveillance may be those suspected of 

unorthodoxy in their political beliefs. The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect ‘domestic security.’ ’’ Keith, 407 U.S. at 314; see also id. at 320 (‘‘Security surveillances are especially sensitive because of the inherent vagueness of the domestic security concept, the necessarily broad and continuing nature of intelligence gathering, and the temptation to utilize such surveillances to oversee political dissent.’’). Surveillance of domestic groups raises a First Amendment concern that 

generally is not present when the subjects of the surveillance are foreign powers or their agents. 

(noting that ‘‘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 . . . unduly frustrate the President in carrying out 

his foreign affairs responsibilities’’); cf. Haig v. Agee, 453 

U.S. 280, 292 (1981) (‘‘Matters intimately related to foreign 

policy and national security are rarely proper subjects for 

judicial intervention.’’). 2

The present circumstances that support recognition of 

the President’s inherent constitutional authority to conduct the NSA activities are considerably stronger than 

were the circumstances at issue in the earlier courts of appeals cases that recognized this power. All of the cases described above addressed inherent executive authority 

under the foreign affairs power to conduct surveillance in 

a peacetime context. The courts in these cases therefore 

had no occasion even to consider the fundamental authority of the President, as Commander in Chief, to gather intelligence in the context of an ongoing armed conflict in 

which the United States already had suffered massive civilian casualties and in which the intelligence gathering 

efforts at issue were specifically designed to thwart further 

armed attacks. Indeed, intelligence gathering is particularly important in the current conflict, in which the enemy 

attacks largely through clandestine activities and which, 

as Congress recognized, ‘‘pose[s] an unusual and extraordinary threat,’’ AUMF pmbl. 

Among the President’s most basic constitutional duties 

is the duty to protect the Nation from armed attack. The 

Constitution gives him all necessary authority to fulfill 

that responsibility. The courts thus have long acknowledged the President’s inherent authority to take action to 

protect Americans abroad, see, e.g., Durand v. Hollins, 8 

F. Cas. 111, 112 (C.C.S.D.N.Y. 1860) (No. 4186), and to 

protect the Nation from attack, see, e.g., The Prize Cases, 

67 U.S. at 668. See generally Ex parte Quirin, 317 U.S. 1, 

28 (1942) (recognizing that the President has authority 

under the Constitution ‘‘to direct the performance of those 

functions which may constitutionally be performed by the 

military arm of the nation in time of war,’’ including ‘‘important incident[s] to the conduct of war,’’ such as ‘‘the 

adoption of measures by the military command . . . to 

repel and defeat the enemy’’). As the Supreme Court emphasized in the Prize Cases, if the Nation is invaded, the 

President is ‘‘bound to resist force by force’’; ‘‘[h]e must determine what degree of force the crisis demands’’ and need 


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3 America’s military response began before the attacks of September 11th had been completed. 

See The 9/11 Commission Report 20 (2004). Combat air patrols were established and authorized 

‘‘to engage inbound aircraft if they could verify that the aircraft was hijacked.’’ Id. at 42. 

not await congressional sanction to do so. The Prize Cases, 67 U.S. at 670; see also Campbell v. Clinton, 203 F.3d 19, 

27 (D.C. Cir. 2000) (Silberman, J., concurring) (‘‘[T]he 

Prize Cases . . . stand for the proposition that the President has independent authority to repel aggressive acts by 

third parties even without specific congressional authorization, and courts may not review the level of force selected.’’); id. at 40 (Tatel, J., concurring) (‘‘[T]he President, 

as commander in chief, possesses emergency authority to 

use military force to defend the nation from attack without 

obtaining prior congressional approval.’’). Indeed, ‘‘in virtue of his rank as head of the forces, [the President] has 

certain powers and duties with which Congress cannot 

interfere.’’ Training of British Flying Students in the 

United States, 40 Op. Att’y Gen. 58, 61 (1941) (Attorney 

General Robert H. Jackson) (internal quotation marks 

omitted). In exercising his constitutional powers, the President has wide discretion, consistent with the Constitution, 

over the methods of gathering intelligence about the Nation’s enemies in a time of armed conflict. 

II. The AUMF confirms and supplements the President’s inherent power to use warrantless surveillance against 

the enemy in the current armed conflict 

In the Authorization for Use of Military Force enacted in 

the wake of September 11th, Congress confirms and supplements the President’s constitutional authority to protect 

the Nation, including through electronic surveillance, in 

the context of the current post-September 11th armed conflict with al Qaeda and its allies. The broad language of 

the AUMF affords the President, at a minimum, discretion 

to employ the traditional incidents of the use of military 

force. The history of the President’s use of warrantless surveillance during armed conflicts demonstrates that the 

NSA surveillance described by the President is a fundamental incident of the use of military force that is necessarily included in the AUMF. 

A. The text and purpose of the AUMF authorize the 

NSA activities 

On September 14, 2001, in its first legislative response 

to the attacks of September 11th, Congress gave its express approval to the President’s military campaign 

against al Qaeda and, in the process, confirmed the wellaccepted understanding of the President’s Article II powers. See AUMF § 2(a). 3 In the preamble to the AUMF, 

Congress stated that ‘‘the President has authority under 

the Constitution to take action to deter and prevent acts 

of international terrorism against the United States,’’

AUMF pmbl., and thereby acknowledged the President’s 

inherent constitutional authority to defend the United 

States. This clause ‘‘constitutes an extraordinarily sweepVerDate Aug 31 2005 01:31 Mar 11, 2006 Jkt 049006 PO 00000 Frm 00021 Fmt 6659 Sfmt 6969 E:\HR\OC\HR384.109 HR384

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ing recognition of independent presidential constitutional 

power to employ the war power to combat terrorism.’’ Michael Stokes Paulsen, Youngstown Goes to War, 19 Const. 

Comment. 215, 252 (2002). This striking recognition of 

presidential authority cannot be discounted as the product 

of excitement in the immediate aftermath of September 

11th, for the same terms were repeated by Congress more 

than a year later in the Authorization for Use of Military 

Force Against Iraq Resolution of 2002. Pub. L. No. 107– 243, pmbl., 116 Stat. 1498, 1500 (Oct. 16, 2002) (‘‘[T]he 

President has authority under the Constitution to take action in order to deter and prevent acts of international terrorism against the United States . . . .’’). In the context of 

the conflict with al Qaeda and related terrorist organizations, therefore, Congress has acknowledged a broad executive authority to ‘‘deter and prevent’’ further attacks 

against the United States. 

The AUMF passed by Congress on September 14, 2001, 

does not lend itself to a narrow reading. Its expansive language authorizes the President ‘‘to use all necessary and 

appropriate force against those nations, organizations, or 

persons he determines planned, authorized, committed, or 

aided the terrorist attacks that occurred on September 11, 

2001.’’ AUMF § 2(a) (emphases added). In the field of foreign affairs, and particularly that of war powers and national security, congressional enactments are to be broadly 

construed where they indicate support for authority long 

asserted and exercised by the Executive Branch. See, e.g., 

Haig v. Agee, 453 U.S. 280, 293–303 (1981); United States 

ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543–45 

(1950); cf. Loving v. United States, 517 U.S. 748, 772 

(1996) (noting that the usual ‘‘limitations on delegation [of 

congressional powers] do not apply’’ to authorizations 

linked to the Commander in Chief power); Dames & Moore 

v. Regan, 453 U.S. 654, 678–82 (1981) (even where there 

is no express statutory authorization for executive action, 

legislation in related field may be construed to indicate 

congressional acquiescence in that action). Although 

Congress’s war powers under Article I, Section 8 of the 

Constitution empower Congress to legislate regarding the 

raising, regulation, and material support of the Armed 

Forces and related matters, rather than the prosecution of 

military campaigns, the AUMF indicates Congress’s endorsement of the President’s use of his constitutional war 

powers. This authorization transforms the struggle against 

al Qaeda and related terrorist organizations from what 

Justice Jackson called ‘‘a zone of twilight,’’ in which the 

President and the Congress may have concurrent powers 

whose ‘‘distribution is uncertain,’’ Youngstown Sheet & 

Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., 

concurring), into a situation in which the President’s authority is at its maximum because ‘‘it includes all that he 

possesses in his own right plus all that Congress can delegate,’’ id. at 635. With regard to these fundamental tools 

of warfare—and, as demonstrated below, warrantless elecVerDate Aug 31 2005 01:31 Mar 11, 2006 Jkt 049006 PO 00000 Frm 00022 Fmt 6659 Sfmt 6969 E:\HR\OC\HR384.109 HR384

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tronic surveillance against the declared enemy is one such 

tool—the AUMF places the President’s authority at its zenith under Youngstown. 

It is also clear that the AUMF confirms and supports 

the President’s use of those traditional incidents of military force against the enemy, wherever they may be—on 

United States soil or abroad. The nature of the September 

11th attacks—launched on United States soil by foreign 

agents secreted in the United States—necessitates such 

authority, and the text of the AUMF confirms it. The operative terms of the AUMF state that the President is authorized to use force ‘‘in order to prevent any future acts 

of international terrorism against the United States,’’ id., an objective which, given the recent attacks within the Nation’s borders and the continuing use of air defense 

throughout the country at the time Congress acted, undoubtedly contemplated the possibility of military action 

within the United States. The preamble, moreover, recites 

that the United States should exercise its rights ‘‘to protect 

United States citizens both at home and abroad.’’ Id. pmbl. 

(emphasis added). To take action against those linked to 

the September 11th attacks involves taking action against 

individuals within the United States. The United States 

had been attacked on its own soil—not by aircraft 

launched from carriers several hundred miles away, but by 

enemy agents who had resided in the United States for 

months. A crucial responsibility of the President—charged 

by the AUMF and the Constitution—was and is to identify 

and attack those enemies, especially if they were in the 

United States, ready to strike against the Nation. 

The text of the AUMF demonstrates in an additional 

way that Congress authorized the President to conduct 

warrantless electronic surveillance against the enemy. The 

terms of the AUMF not only authorized the President to 

‘‘use all necessary and appropriate force’’ against those responsible for the September 11th attacks; it also authorized the President to ‘‘determine[]’’ the persons or groups 

responsible for those attacks and to take all actions necessary to prevent further attacks. AUMF § 2(a) (‘‘the President is authorized to use all necessary and appropriate 

force against those nations, organizations, or persons he 

determines planned, authorized, committed, or aided the 

terrorist attacks that occurred on September 11th, 2001, or 

harbored such organizations or persons’’) (emphasis 

added). Of vital importance to the use of force against the 

enemy is locating the enemy and identifying its plans of 

attack. And of vital importance to identifying the enemy 

and detecting possible future plots was the authority to 

intercept communications to or from the United States of 

persons with links to al Qaeda or related terrorist organizations. Given that the agents who carried out the initial 

attacks resided in the United States and had successfully 

blended into American society and disguised their identities and intentions until they were ready to strike, the necessity of using the most effective intelligence gathering 


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tools against such an enemy, including electronic surveillance, was patent. Indeed, Congress recognized that the 

enemy in this conflict poses an ‘‘unusual and extraordinary 

threat.’’ AUMF pmbl. 

The Supreme Court’s interpretation of the scope of the 

AUMF in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), strongly supports this reading of the AUMF. In Hamdi, five 

members of the Court found that the AUMF authorized 

the detention of an American within the United States, 

notwithstanding a statute that prohibits the detention of 

U.S. citizens ‘‘except pursuant to an Act of Congress,’’ 18 

U.S.C. 4001(a). See Hamdi, 542 U.S. at 519 (plurality 

opinion); id. at 587 (Thomas, J., dissenting). Drawing on 

historical materials and ‘‘longstanding law-of-war principles,’’ id. at 518–21, a plurality of the Court concluded 

that detention of combatants who fought against the 

United States as part of an organization ‘‘known to have 

supported’’ al Qaeda ‘‘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.’’ Id. at 518; see also id. at 587 (Thomas, J., dissenting) (agreeing with the plurality that the joint resolution authorized the President to ‘‘detain those arrayed 

against our troops’’); accord Quirin, 317 U.S. at 26–29, 38 

(recognizing the President’s authority to capture and try 

agents of the enemy in the United States even if they had 

never ‘‘entered the theatre or zone of active military operations’’). Thus, even though the AUMF does not say anything expressly about detention, the Court nevertheless 

found that it satisfied section 4001(a)’s requirement that 

detention be congressionally authorized. 

The conclusion of five Justices in Hamdi that the AUMF 

incorporates fundamental ‘‘incidents’’ of the use of military 

force makes clear that the absence of any specific reference 

to signals intelligence activities in the resolution is immaterial. See Hamdi, 542 U.S. at 519 (‘‘[I]t is of no moment 

that the AUMF does not use specific language of detention.’’) (plurality opinion). Indeed, given the circumstances 

in which the AUMF was adopted, it is hardly surprising 

that Congress chose to speak about the President’s authority in general terms. The purpose of the AUMF was for 

Congress to sanction and support the military response to 

the devastating terrorist attacks that had occurred just 

three days earlier. Congress evidently thought it neither 

necessary nor appropriate to attempt to catalog every specific aspect of the use of the forces it was authorizing and 

every potential preexisting statutory limitation on the Executive Branch. Rather than engage in that difficult and 

impractical exercise, Congress authorized the President, in 

general but intentionally broad terms, to use the traditional and fundamental incidents of war and to determine 

how best to identify and engage the enemy in the current 

armed conflict. Congress’s judgment to proceed in this 

manner was unassailable, for, as the Supreme Court has 

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4This understanding of the AUMF is consistent with Justice O’Connor’s admonition that ‘‘a state of war is not a blank check for the President,’’ Hamdi, 542 U.S. at 536 (plurality opinion). 

In addition to constituting a fundamental and accepted incident of the use of military force, the 

NSA activities are consistent with the law of armed conflict principle that the use of force be 

necessary and proportional. See Dieter Fleck, The Handbook of Humanitarian Law in Armed 

Conflicts 115 (1995). The NSA activities are proportional because they are minimally invasive 

and narrow in scope, targeting only the international communications of persons reasonably believed to be linked to al Qaeda, and are designed to protect the Nation from a devastating attack. 

tional security crisis, ‘‘Congress cannot anticipate and legislate with regard to every possible action the President 

may find it necessary to take.’’ Dames & Moore, 453 U.S. 

at 678. Indeed, Congress often has enacted authorizations 

to use military force using general authorizing language 

that does not purport to catalogue in detail the specific 

powers the President may employ. The need for Congress 

to speak broadly in recognizing and augmenting the President’s core constitutional powers over foreign affairs and 

military campaigns is of course significantly heightened in 

times of national emergency. See Zemel v. Rusk, 381 U.S. 

1, 17 (1965) (‘‘[B]ecause of the changeable and explosive 

nature of contemporary international relations . . . Congress—in giving the Executive authority over matters of 

foreign affairs—must of necessity paint with a brush 

broader than that it customarily wields in domestic 

areas.’’). 

Hamdi thus establishes the proposition that the AUMF ‘‘clearly and unmistakably’’ authorizes the President to 

take actions against al Qaeda and related organizations 

that amount to ‘‘fundamental incident[s] of waging war.’’ Hamdi, 542 U.S. at 519 (plurality opinion); see also id. at 

587 (Thomas, J., dissenting). In other words, ‘‘[t]he clear 

inference is that the AUMF authorizes what the laws of 

war permit.’’ Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on Terrorism, 118 

Harv. L. Rev. 2048, 2092 (2005) (emphasis added). Congress is presumed to be aware of the Supreme Court’s 

precedents. Indeed, Congress recently enacted legislation 

in response to the Court’s decision in Rasul v. Bush, 542 

U.S. 466 (2004)—which was issued the same day as the 

Hamdi decision—removing habeas corpus jurisdiction over 

claims filed on behalf of confined enemy combatants held 

at Guantanamo Bay. Congress, however, has not expressed 

any disapproval of the Supreme Court’s commonsense and 

plain-meaning interpretation of the AUMF in Hamdi.4

B. Warrantless electronic surveillance aimed at intercepting enemy communications has long been 

recognized as a fundamental incident of the use 

of military force 

The history of warfare—including the consistent practice 

of Presidents since the earliest days of the Republic—demonstrates that warrantless intelligence surveillance 

against the enemy is a fundamental incident of the use of 

military force, and this history confirms the statutory authority provided by the AUMF. Electronic surveillance is a 

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ural reading of the AUMF’s authorization to use ‘‘all necessary and appropriate force.’’

As one author has explained: 

It is essential in warfare for a belligerent to be 

as fully informed as possible about the enemy—

his strength, his weaknesses, measures taken by 

him and measures contemplated by him. This applies not only to military matters, but . . . anything which bears on and is material to his ability 

to wage the war in which he is engaged. The laws 

of war recognize and sanction this aspect of warfare. 

Morris Greenspan, The Modern Law of Land Warfare 325 

(1959) (emphases added); see also Memorandum for Members of the House Permanent Select Comm. on Intel., from 

Jeffrey H. Smith, Re: Legal Authorities Regarding 

Warrantless Surveillance of U.S. Persons 6 (Jan. 3, 2006) 

(‘‘Certainly, the collection of intelligence is understood to 

be necessary to the execution of the war.’’). Similarly, article 24 of the Hague Regulations of 1907 expressly states 

that ‘‘the employment of measures necessary for obtaining 

information about the enemy and the country [is] considered permissible.’’ See also L. Oppenheim, International 

Law vol. II § 159 (7th ed. 1952) (‘‘War cannot be waged 

without all kinds of information, about the forces and the 

intentions of the enemy . . . . To obtain the necessary information, it has always been considered lawful to employ 

spies . . . .’’); Joseph R. Baker & Henry G. Crocker, The 

Laws of Land Warfare 197 (1919) (‘‘Every belligerent has 

a right . . . to discover the signals of the enemy and . . . 

to seek to procure information regarding the enemy 

through the aid of secret agents.’’); cf. J.M. Spaight, War 

Rights on Land 205 (1911) (‘‘[E]very nation employs spies; 

were a nation so quixotic as to refrain from doing so, it 

might as well sheathe its sword for ever. . . . Spies . . . 

are indispensably necessary to a general; and, other things 

being equal, that commander will be victorious who has 

the best secret service.’’) (internal quotation marks omitted). 

In accordance with these well-established principles, the 

Supreme Court has consistently recognized the President’s 

authority to conduct intelligence activities. See, e.g., Totten 

v. United States, 92 U.S. 105, 106 (1876) (recognizing 

President’s authority to hire spies); Tenet v. Doe, 544 U.S. 

1 (2005) (reaffirming Totten and counseling against judicial interference with such matters); see also Chicago & S. 

Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948) 

(‘‘The President, both as Commander-in-Chief and as the 

Nation’s organ for foreign affairs, has available intelligence 

services whose reports neither are not and ought not to be 

published to the world.’’); United States v. Curtiss-Wright 

Export Corp., 299 U.S. 304, 320 (1936) (The President ‘‘has 

his confidential sources of information. He has his agents 

in the form of diplomatic, consular, and other officials.’’). 


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23 

Chief Justice John Marshall even described the gathering 

of intelligence as a military duty. See Tatum v. Laird, 444 

F.2d 947, 952–53 (D.C. Cir. 1971) (‘‘As Chief Justice John 

Marshall said of Washington, ‘A general must be governed 

by his intelligence and must regulate his measures by his 

information. It is his duty to obtain correct information 

. . . .’ ’’) (quoting Foreword, U.S. Army Basic Field Manual, Vol. X, circa 1938), rev’d on other grounds, 408 U.S. 

1 (1972). 

The United States, furthermore, has a long history of 

wartime surveillance—a history that can be traced to 

George Washington, who ‘‘was a master of military espionage’’ and ‘‘made frequent and effective use of secret intelligence in the second half of the eighteenth century.’’ Rhodri Jeffreys-Jones, Cloak and Dollar: A History of 

American Secret Intelligence 11 (2002); see generally id. at 

11–23 (recounting Washington’s use of intelligence); see 

also Haig v. Agee, 471 U.S. 159, 172 n.16 (1981) (quoting 

General Washington’s letter to an agent embarking upon 

an intelligence mission in 1777: ‘‘The necessity of procuring good intelligence, is apparent and need not be further urged.’’). As President in 1790, Washington obtained 

from Congress a ‘‘secret fund’’ to deal with foreign dangers 

and to be spent at his discretion. Jeffreys-Jones, supra, at 

22. The fund, which remained in use until the creation of 

the Central Intelligence Agency in the mid-twentieth century and gained ‘‘longstanding acceptance within our constitutional structure,’’ Halperin v. CIA, 629 F.2d 144, 158– 59 (D.C. Cir. 1980), was used ‘‘for all purposes to which a 

secret service fund should or could be applied for the public benefit,’’ including ‘‘for persons sent publicly and secretly to search for important information, political or commercial,’’ id. at 159 (quoting Statement of Senator John 

Forsyth, Cong. Debates 295 (Feb. 25, 1831)). See also 

Totten, 92 U.S. at 107 (refusing to examine payments from 

this fund lest the publicity make a ‘‘secret service’’ ‘‘impossible’’). 

The interception of communications, in particular, has 

long been accepted as a fundamental method for conducting wartime surveillance. See, e.g., Greenspan, supra, 

at 326 (accepted and customary means for gathering intelligence ‘‘include air reconnaissance and photography; 

ground reconnaissance; observation of enemy positions; 

interception of enemy messages, wireless and other; examination of captured documents; . . . and interrogation of 

prisoners and civilian inhabitants’’) (emphasis added). Indeed, since its independence, the United States has intercepted communications for wartime intelligence purposes 

and, if necessary, has done so within its own borders. During the Revolutionary War, for example, George Washington received and used to his advantage reports from 

American intelligence agents on British military strength, 

British strategic intentions, and British estimates of American strength. See Jeffreys-Jones, supra, at 13. One source 

of Washington’s intelligence was intercepted British mail. 


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See Central Intelligence Agency, Intelligence in the War of 

Independence 31, 32 (1997). In fact, Washington himself 

proposed that one of his Generals ‘‘contrive a means of 

opening [British letters] without breaking the seals, take 

copies of the contents, and then let them go on.’’ Id. at 32 

(‘‘From that point on, Washington was privy to British intelligence pouches between New York and Canada.’’); see 

generally Final Report of the Select Committee to Study 

Governmental Operations with respect to Intelligence Activities (the ‘‘Church Committee’’), S. Rep. No. 94–755, at 

Book VI, 9–17 (Apr. 23, 1976) (describing Washington’s intelligence activities). 

More specifically, warrantless electronic surveillance of 

wartime communications has been conducted in the United 

States since electronic communications have existed, i.e., 

since at least the Civil War, when ‘‘[t]elegraph wiretapping 

was common, and an important intelligence source for both 

sides.’’ G.J.A. O’Toole, The Encyclopedia of American Intelligence and Espionage 498 (1988). Confederate General 

J.E.B. Stuart even ‘‘had his own personal wiretapper travel along with him in the field’’ to intercept military telegraphic communications. Samuel Dash, et al., The Eavesdroppers 23 (1971); see also O’Toole, supra, at 121, 385–88, 

496–98 (discussing Civil War surveillance methods such as 

wiretaps, reconnaissance balloons, semaphore interception, 

and cryptanalysis). Similarly, there was extensive use of 

electronic surveillance during the Spanish-American War. 

See Bruce W. Bidwell, History of the Military Intelligence 

Division, Department of the Army General Staff: 1775– 1941, at 62 (1986). When an American expeditionary force 

crossed into northern Mexico to confront the forces of 

Pancho Villa in 1916, the Army ‘‘frequently intercepted 

messages of the regime in Mexico City or the forces contesting its rule.’’ David Alvarez, Secret Messages 6–7 

(2000). Shortly after Congress declared war on Germany in 

World War I, President Wilson (citing only his constitutional powers and the joint resolution declaring war) ordered the censorship of messages sent outside the United 

States via submarine cables, telegraph, and telephone 

lines. See Exec. Order No. 2604 (Apr. 28, 1917). During 

that war, wireless telegraphy ‘‘enabled each belligerent to 

tap the messages of the enemy.’’ Bidwell, supra, at 165 

(quoting statement of Col. W. Nicolai, former head of the 

Secret Service of the High Command of the German Army, 

in W. Nicolai, The German Secret Service 21 (1924)). 

As noted in Part I, on May 21, 1940, President Roosevelt 

authorized warrantless electronic surveillance of persons 

suspected of subversive activities, including spying, 

against the United States. In addition, on December 8, 

1941, the day after the attack on Pearl Harbor, President 

Roosevelt gave the Director of the FBI ‘‘temporary powers 

to direct all news censorship and to control all other telecommunications traffic in and out of the United States.’’

Jack A. Gottschalk, ‘‘Consistent with Security’’. . . . A History of American Military Press Censorship, 5 Comm. & L. 


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35, 39 (1983) (emphasis added). See Memorandum for the 

Secretaries of War, Navy, State, and Treasury, the Postmaster General, and the Federal Communications Commission from Franklin D. Roosevelt (Dec. 8, 1941). President Roosevelt soon supplanted that temporary regime by 

establishing an office for conducting such electronic surveillance in accordance with the War Powers Act of 1941. 

See Pub. L. No. 77–354, § 303, 55 Stat. 838, 840–41 (Dec. 

18, 1941); Gottschalk, 5 Comm. & L. at 40. The President’s 

order gave the Government of the United States access to 

‘‘communications by mail, cable, radio, or other means of 

transmission passing between the United States and any 

foreign country.’’ Id. See also Exec. Order No. 8985, § 1, 6 

Fed. Reg. 6625, 6625 (Dec. 19, 1941). In addition, the 

United States systematically listened surreptitiously to 

electronic communications as part of the war effort. See 

Dash, Eavesdroppers, at 30. During World War II, signals 

intelligence assisted in, among other things, the destruction of the German U-boat fleet by the Allied naval forces, 

see id. at 27, and the war against Japan, see O’Toole, 

supra, at 32, 323–24. In general, signals intelligence ‘‘helped to shorten the war by perhaps two years, reduce 

the loss of life, and make inevitable an eventual Allied victory.’’ Carl Boyd, American Command of the Sea Through 

Carriers, Codes, and the Silent Service: World War II and 

Beyond, 27 (1995); see also Alvarez, supra, at 1 (‘‘There can 

be little doubt that signals intelligence contributed significantly to the military defeat of the Axis.’’). Significantly, 

not only was wiretapping in World War II used ‘‘extensively by military intelligence and secret service personnel 

in combat areas abroad,’’ but also ‘‘by the FBI and secret 

service in this country.’’ Dash, supra, at 30. 

In light of the long history of prior wartime practice, the 

NSA activities fit squarely within the sweeping terms of 

the AUMF. The use of signals intelligence to identify and 

pinpoint the enemy is a traditional component of wartime 

military operations—or, to use the terminology of Hamdi, 

a ‘‘fundamental and accepted . . . incident to war,’’ 542 

U.S. at 518 (plurality opinion)—employed to defeat the 

enemy and to prevent enemy attacks in the United States. 

Here, as in other conflicts, the enemy may use public communications networks, and some of the enemy may already be in the United States. Although those factors may 

be present in this conflict to a greater degree than in the 

past, neither is novel. Certainly, both factors were well 

known at the time Congress enacted the AUMF. Wartime 

interception of international communications made by the 

enemy thus should be understood, no less than the wartime detention at issue in Hamdi, as one of the basic 

methods of engaging and defeating the enemy that Congress authorized in approving ‘‘all necessary and appropriate force’’ that the President would need to defend the 

Nation. AUMF § 2(a) (emphasis added). 

Accordingly, the President has the authority to conduct 

warrantless electronic surveillance against the declared 


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26 

5To avoid revealing details about the operation of the program, it is assumed for purposes 

of this paper that the activities described by the President constitute ‘‘electronic surveillance,’’

as defined by FISA, 50 U.S.C. § 1801(f). 

enemy of the United States in a time of armed conflict. 

That authority derives from the Constitution, and is reinforced by the text and purpose of the AUMF, the nature 

of the threat posed by al Qaeda that Congress authorized 

the President to repel, and the long-established understanding that electronic surveillance is a fundamental incident of the use of military force. The President’s power in 

authorizing the NSA activities is at its zenith because he 

has acted ‘‘pursuant to an express or implied authorization 

of Congress.’’ Youngstown, 343 U.S. at 635 (Jackson, J., 

concurring). 

III. The NSA activities are consistent with the foreign intelligence surveillance act 

The President’s exercise of his constitutional authority to 

conduct warrantless wartime electronic surveillance of the 

enemy, as confirmed and supplemented by statute in the 

AUMF, is fully consistent with the requirements of the 

Foreign Intelligence Surveillance Act (‘‘FISA’’).5 FISA is a 

critically important tool in the War on Terror. The United 

States makes full use of the authorities available under 

FISA to gather foreign intelligence information, including 

authorities to intercept communications, conduct physical 

searches, and install and use pen registers and trap and 

trace devices. While FISA establishes certain procedures 

that must be followed for these authorities to be used (procedures that usually involve applying for and obtaining an 

order from a special court), FISA also expressly contemplates that a later legislative enactment could authorize electronic surveillance outside the procedures set forth 

in FISA itself. The AUMF constitutes precisely such an enactment. To the extent there is any ambiguity on this 

point, the canon of constitutional avoidance requires that 

such ambiguity be resolved in favor of the President’s authority to conduct the communications intelligence activities he has described. Finally, if FISA could not be read to 

allow the President to authorize the NSA activities during 

the current congressionally authorized armed conflict with 

al Qaeda, FISA would be unconstitutional as applied in 

this narrow context. 

A. The requirements of FISA 

FISA was enacted in 1978 to regulate ‘‘electronic surveillance,’’ particularly when conducted to obtain ‘‘foreign intelligence information,’’ as those terms are defined in section 101 of FISA, 50 U.S.C. § 1801. As a general matter, 

the statute requires that the Attorney General approve an 

application for an order from a special court composed of 

Article III judges and created by FISA—the Foreign Intelligence Surveillance Court (‘‘FISC’’). See 50 U.S.C. §§ 1803– 1804. The application must demonstrate, among other 

things, that there is probable cause to believe that the tarVerDate Aug 31 2005 01:31 Mar 11, 2006 Jkt 049006 PO 00000 Frm 00030 Fmt 6659 Sfmt 6969 E:\HR\OC\HR384.109 HR384

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6FISA’s legislative history reveals that these provisions were intended to exclude certain intelligence activities conducted by the National Security Agency from the coverage of FISA. According to the report of the Senate Judiciary Committee on FISA, ‘‘this provision [referencing 

Continued 

get is a foreign power or an agent of a foreign power. See 

id. § 1805(a)(3)(A). It must also contain a certification from 

the Assistant to the President for National Security Affairs 

or an officer of the United States appointed by the President with the advice and consent of the Senate and having 

responsibilities in the area of national security or defense 

that the information sought is foreign intelligence information and cannot reasonably be obtained by normal investigative means. See id. § 1804(a)(7). FISA further requires 

the Government to state the means that it proposes to use 

to obtain the information and the basis for its belief that 

the facilities at which the surveillance will be directed are 

being used or are about to be used by a foreign power or 

an agent of a foreign power. See id. § 1804(a)(4), (a)(8). 

FISA was the first congressional measure that sought to 

impose restrictions on the Executive Branch’s authority to 

engage in electronic surveillance for foreign intelligence 

purposes, an authority that, as noted above, had been repeatedly recognized by the federal courts. See Americo R. 

Cinquegrana, The Walls (and Wires) Have Ears: The Background and First Ten Years of the Foreign Intelligence Surveillance Act of 1978, 137 U. Penn. L. Rev. 793, 810 (1989) 

(stating that the ‘‘status of the President’s inherent authority’’ to conduct surveillance ‘‘formed the core of subsequent legislative deliberations’’ leading to the enactment of 

FISA). To that end, FISA modified a provision in Title III 

that previously had disclaimed any intent to have laws 

governing wiretapping interfere with the President’s constitutional authority to gather foreign intelligence. Prior to 

the passage of FISA, section 2511(3) of title 18 had stated 

that ‘‘[n]othing contained in this chapter or in section 605 

of the Communications Act of 1934 . . . 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 other hostile acts of a foreign 

power, to obtain foreign intelligence information deemed 

essential to the security of the United States, or to protect 

national security information against foreign intelligence 

activities.’’ 18 U.S.C. § 2511(3) (1970). FISA replaced that 

provision with an important, though more limited, preservation of authority for the President. See Pub. L. No. 95– 511, § 201(b), (c), 92 Stat. 1783, 1797 (1978), codified at 18 

U.S.C. § 2511(2)(f) (West Supp. 2005) (carving out from 

statutory regulation only the acquisition of intelligence information from ‘‘international or foreign communications’’

and ‘‘foreign intelligence activities . . . involving a foreign 

electronic communications system’’ as long as they are accomplished ‘‘utilizing a means other than electronic surveillance as defined in section 101’’ of FISA). Congress also 

defined ‘‘electronic surveillance,’’ 50 U.S.C. § 1801(f), carefully and somewhat narrowly.6


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what became the first part of section 2511(2)(f)] is designed to make clear that the legislation 

does not deal with international signals intelligence activities as currently engaged in by the 

National Security Agency and electronic surveillance conducted outside the United States.’’ S. 

Rep. No. 95–604, at 64 (1978), reprinted in 1978 U.S.C.C.A.N. 3904, 3965. The legislative history 

also makes clear that the definition of ‘‘electronic surveillance’’ was crafted for the same reason. 

See id. at 33–34, 1978 U.S.C.C.A.N. at 3934–36. FISA thereby ‘‘adopts the view expressed by 

the Attorney General during the hearings that enacting statutory controls to regulate the National Security Agency and the surveillance of Americans abroad raises problems best left to 

separate legislation.’’ Id. at 64, 1978 U.S.C.C.A.N. at 3965. Such legislation placing limitations 

on traditional NSA activities was drafted, but never passed. See National Intelligence Reorganization and Reform Act of 1978: Hearings Before the Senate Select Committee on Intelligence, 

95th Cong., 2d Sess. 999–1007 (1978) (text of unenacted legislation). And Congress understood 

that the NSA surveillance that it intended categorically to exclude from FISA could include the 

monitoring of international communications into or out of the United States of U.S. citizens. The 

report specifically referred to the Church Committee report for its description of the NSA’s ac- tivities, S. Rep. No. 95–604, at 64 n.63, 1978 U.S.C.C.A.N. at 3965–66 n.63, which stated that ‘‘the NSA intercepts messages passing over international lines of communication, some of which 

have one terminal within the United States. Traveling over these lines of communication, especially those with one terminal in the United States, are messages of Americans. . . .’’ S. Rep. 

94–755, at Book II, 308 (1976). Congress’s understanding in the legislative history of FISA that 

such communications could be intercepted outside FISA procedures is notable. 

In addition, Congress addressed, to some degree, the 

manner in which FISA might apply after a formal declaration of war by expressly allowing warrantless surveillance 

for a period of fifteen days following such a declaration. 

Section 111 of FISA allows the President to ‘‘authorize 

electronic surveillance without a court order under this 

subchapter to acquire foreign intelligence information for a 

period not to exceed fifteen calendar days following a declaration of war by the Congress.’’ 50 U.S.C. § 1811. 

The legislative history of FISA shows that Congress understood it was legislating on fragile constitutional ground 

and was pressing or even exceeding constitutional limits in 

regulating the President’s authority in the field of foreign 

intelligence. The final House Conference Report, for example, recognized that the statute’s restrictions might well 

impermissibly infringe on the President’s constitutional 

powers. That report includes the extraordinary acknowledgment that ‘‘[t]he conferees agree that the establishment 

by this act of exclusive means by which the President may 

conduct electronic surveillance does not foreclose a different decision by the Supreme Court.’’ H.R. Conf. Rep. No. 

95–1720, at 35, reprinted in 1978 U.S.C.C.A.N. 4048, 4064. 

But, invoking Justice Jackson’s concurrence in the Steel 

Seizure case, the Conference Report explained that Congress intended in FISA to exert whatever power Congress 

constitutionally had over the subject matter to restrict foreign intelligence surveillance and to leave the President 

solely with whatever inherent constitutional authority he 

might be able to invoke against Congress’s express wishes. 

Id. The Report thus explains that ‘‘[t]he intent of the conferees is to apply the standard set forth in Justice Jackson’s concurring opinion in the Steel Seizure Case: ‘When 

a President takes measures incompatible with the express 

or implied will of Congress, his power is at the lowest ebb, 

for then he can rely only upon his own constitutional 

power minus any constitutional power of Congress over the 

matter.’ ’’ Id. (quoting Youngstown Sheet & Tube Co. v. 

Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring)); see also S. Rep. No. 95–604, at 64, reprinted in 1978 


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U.S.C.C.A.N. at 3966 (same); see generally Elizabeth B. 

Bazen et al., Congressional Research Service, Re: Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information 28–29 

(Jan. 5, 2006). It is significant, however, that Congress did 

not decide conclusively to continue to push the boundaries 

of its constitutional authority in wartime. Instead, Congress reserved the question of the appropriate procedures 

to regulate electronic surveillance in time of war, and established a fifteen-day period during which the President 

would be permitted to engage in electronic surveillance 

without complying with FISA’s express procedures and 

during which Congress would have the opportunity to revisit the issue. See 50 U.S.C. § 1811; H.R. Conf. Rep. No. 

95–1720, at 34, reprinted in 1978 U.S.C.C.A.N. at 4063 

(noting that the purpose of the fifteen-day period following 

a declaration of war in section 111 of FISA was to ‘‘allow 

time for consideration of any amendment to this act that 

may be appropriate during a wartime emergency’’). 

B. FISA contemplates and allows surveillance authorized ‘‘by statute’’

Congress did not attempt through FISA to prohibit the 

Executive Branch from using electronic surveillance. Instead, Congress acted to bring the exercise of that power 

under more stringent congressional control. See, e.g., H. 

Conf. Rep. No. 95–1720, at 32, reprinted in 1978 

U.S.C.C.A.N. 4048, 4064. Congress therefore enacted a regime intended to supplant the President’s reliance on his 

own constitutional authority. Consistent with this overriding purpose of bringing the use of electronic surveillance under congressional control and with the commonsense notion that the Congress that enacted FISA could 

not bind future Congresses, FISA expressly contemplates 

that the Executive Branch may conduct electronic surveillance outside FISA’s express procedures if and when a subsequent statute authorizes such surveillance. 

Thus, section 109 of FISA prohibits any person from intentionally ‘‘engag[ing] . . . in electronic surveillance 

under color of law except as authorized by statute.’’ 50 

U.S.C. § 1809(a)(1) (emphasis added). Because FISA’s prohibitory provision broadly exempts surveillance ‘‘authorized by statute,’’ the provision demonstrates that Congress 

did not attempt to regulate through FISA electronic surveillance authorized by Congress through a subsequent enactment. The use of the term ‘‘statute’’ here is significant 

because it strongly suggests that any subsequent authorizing statute, not merely one that amends FISA itself, 

could legitimately authorize surveillance outside FISA’s 

standard procedural requirements. Compare 18 U.S.C. 

§ 2511(1) (‘‘Except as otherwise specifically provided in this 

chapter any person who—(a) intentionally intercepts . . . 

any wire, oral, or electronic communication[] . . . shall be 

punished. . . .’’) (emphasis added); id. § 2511(2)(e) (providing a defense to liability to individuals ‘‘conduct[ing] 


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7The bracketed portion was added in 1986 amendments to section 2511(2)(f). See Pub. L. No. 

99–508 § 101(b)(3), 100 Stat. 1848, 1850. 

electronic surveillance, . . . as authorized by that Act 

[FISA]’’) (emphasis added). In enacting FISA, therefore, 

Congress contemplated the possibility that the President 

might be permitted to conduct electronic surveillance pursuant to a later-enacted statute that did not incorporate 

all of the procedural requirements set forth in FISA or 

that did not expressly amend FISA itself. 

To be sure, the scope of this exception is rendered less 

clear by the conforming amendments that FISA made to 

chapter 119 of title 18—the portion of the criminal code 

that provides the mechanism for obtaining wiretaps for 

law enforcement purposes. Before FISA was enacted, chapter 119 made it a criminal offense for any person to intercept a communication except as specifically provided in 

that chapter. See 18 U.S.C. § 2511(1)(a), (4)(a). Section 

201(b) of FISA amended that chapter to provide an exception from criminal liability for activities conducted pursuant to FISA. Specifically, FISA added 18 U.S.C. 

§ 2511(2)(e), which provides that it is not unlawful for ‘‘an 

officer, employee, or agent of the United States . . . to conduct electronic surveillance, as defined in section 101 of 

the Foreign Intelligence Surveillance Act of 1978, as authorized by that Act.’’ Id. § 2511(2)(e). Similarly, section 

201(b) of FISA amended chapter 119 to provide that ‘‘procedures in this chapter [or chapter 121 (addressing access 

to stored wire and electronic communications and customer records)] and the Foreign Intelligence Surveillance 

Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, 

and the interception of domestic wire, oral, and electronic 

communications may be conducted.’’ Id. § 2511(2)(f) (West 

Supp. 2005).7

The amendments that section 201(b) of FISA made to 

title 18 are fully consistent, however, with the conclusion 

that FISA contemplates that a subsequent statute could 

authorize electronic surveillance outside FISA’s express 

procedural requirements. Section 2511(2)(e) of title 18, 

which provides that it is ‘‘not unlawful’’ for an officer of 

the United States to conduct electronic surveillance ‘‘as authorized by’’ FISA, is best understood as a safe-harbor provision. Because of section 109, the protection offered by 

section 2511(2)(e) for surveillance ‘‘authorized by’’ FISA extends to surveillance that is authorized by any other statute and therefore excepted from the prohibition of section 

109. In any event, the purpose of section 2511(2)(e) is 

merely to make explicit what would already have been implicit—that those authorized by statute to engage in particular surveillance do not act unlawfully when they conduct such surveillance. Thus, even if that provision had 

not been enacted, an officer conducting surveillance authorized by statute (whether FISA or some other law) 

could not reasonably have been thought to be violating 


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31 

Title III. Similarly, section 2511(2)(e) cannot be read to require a result that would be manifestly unreasonable—exposing a federal officer to criminal liability for engaging in 

surveillance authorized by statute, merely because the authorizing statute happens not to be FISA itself. 

Nor could 18 U.S.C. § 2511(2)(f), which provides that the ‘‘procedures in this chapter . . . and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive 

means by which electronic surveillance . . . may be conducted,’’ have been intended to trump the commonsense 

approach of section 109 and preclude a subsequent Congress from authorizing the President to engage in electronic surveillance through a statute other than FISA, 

using procedures other than those outlined in FISA or 

chapter 119 of title 18. The legislative history of section 

2511(2)(f) clearly indicates an intent to prevent the President from engaging in surveillance except as authorized by 

Congress, see H.R. Conf. Rep. No. 95–1720, at 32, reprinted in 1978 U.S.C.C.A.N. 4048, 4064, which explains 

why section 2511(2)(f) set forth all then-existing statutory 

restrictions on electronic surveillance. Section 2511(2)(f)’s 

reference to ‘‘exclusive means’’ reflected the state of statutory authority for electronic surveillance in 1978 and cautioned the President not to engage in electronic surveillance outside congressionally sanctioned parameters. It is 

implausible to think that, in attempting to limit the President’s authority, Congress also limited its own future authority by barring subsequent Congresses from authorizing 

the Executive to engage in surveillance in ways not specifically enumerated in FISA or chapter 119, or by requiring 

a subsequent Congress specifically to amend FISA and section 2511(2)(f). There would be a serious question as to 

whether the Ninety-Fifth Congress could have so tied the 

hands of its successors. See, e.g., Fletcher v. Peck, 10 U.S. 

(6 Cranch) 87, 135 (1810) (noting that ‘‘one legislature cannot abridge the powers of a succeeding legislature’’); 

Reichelderfer v. Quinn, 287 U.S. 315, 318 (1932) (‘‘[T]he 

will of a particular Congress . . . does not impose itself 

upon those to follow in succeeding years’’); Lockhart v. 

United States, 126 S. Ct. 699, 703 (2005) (Scalia, J., concurring) (collecting precedent); 1 W. Blackstone, Commentaries on the Laws of England 90 (1765) (‘‘Acts of parliament derogatory from the power of subsequent parliaments bind not’’). In the absence of a clear statement to 

the contrary, it cannot be presumed that Congress attempted to abnegate its own authority in such a way. 

Far from a clear statement of congressional intent to 

bind itself, there are indications that section 2511(2)(f) 

cannot be interpreted as requiring that all electronic surveillance and domestic interception be conducted under 

FISA’s enumerated procedures or those of chapter 119 of 

title 18 until and unless those provisions are repealed or 

amended. Even when section 2511(2)(f) was enacted (and 

no subsequent authorizing statute existed), it could not 

reasonably be read to preclude all electronic surveillance 


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32 

8 Alternatively, section 109(b) may be read to constitute a ‘‘procedure’’ in FISA or to incorporate procedures from sources other than FISA (such as the Federal Rules of Criminal Procedure or state court procedures), and in that way to satisfy section 2511(2)(f). But if section 

109(b)’s defense can be so read, section 109(a) should also be read to constitute a procedure or 

incorporate procedures not expressly enumerated in FISA. 9Section 2511(2)(a)(ii) states: ‘‘Notwithstanding any other law, providers of wire or electronic 

communication service, . . . are authorized by law to provide information, facilities, or technical 

assistance to persons authorized by law to intercept . . . communications or to conduct electronic surveillance, as defined [by FISA], if such provider . . . has been provided with . . . a 

certification in writing by [specified persons proceeding under Title III’s emergency provision] 

or the Attorney General of the United States that no warrant or court order is required by law, 

that all statutory requirements have been met, and that the specific assistance is required.’’

conducted outside the procedures of FISA or chapter 119 

of title 18. In 1978, use of a pen register or trap and trace 

device constituted electronic surveillance as defined by 

FISA. See 50 U.S.C. §§ 1801(f), (n). Title I of FISA provided procedures for obtaining court authorization for the 

use of pen registers to obtain foreign intelligence information. But the Supreme Court had, just prior to the enactment of FISA, held that chapter 119 of title 18 did not govern the use of pen registers. See United States v. New York 

Tel. Co., 434 U.S. 159, 165–68 (1977). Thus, if section 

2511(2)(f) were to be read to permit of no exceptions, the 

use of pen registers for purposes other than to collect foreign intelligence information would have been unlawful because such use would not have been authorized by the ‘‘exclusive’’ procedures of section 2511(2)(f), i.e., FISA and 

chapter 119. But no court has held that pen registers could 

not be authorized outside the foreign intelligence context. 

Indeed, FISA appears to have recognized this issue by providing a defense to liability for any official who engages in 

electronic surveillance under a search warrant or court 

order. See 50 U.S.C. § 1809(b). (The practice when FISA 

was enacted was for law enforcement officers to obtain 

search warrants under the Federal Rules of Criminal Procedure authorizing the installation and use of pen registers. See S. 1667, A Bill to Amend Title 18, United States 

Code, with Respect to the Interception of Certain Communications, Other Forms of Surveillance, and for Other Purposes: Hearing Before the Subcomm. On Patents, Copyrights and Trademarks of the Senate Comm. on the Judiciary, 99th Cong. 57 (1985) (prepared statement of James 

Knapp, Deputy Assistant Attorney General, Criminal Division)).8

In addition, section 2511(2)(a)(ii) authorizes telecommunications providers to assist officers of the Government engaged in electronic surveillance when the Attorney 

General certifies that ‘‘no warrant or court order is required by law [and] that all statutory requirements have 

been met.’’ 18 U.S.C. § 2511(2)(a)(ii).9 If the Attorney General can certify, in good faith, that the requirements of a 

subsequent statute authorizing electronic surveillance are 

met, service providers are affirmatively and expressly authorized to assist the Government. Although FISA does 

allow the Government to proceed without a court order in 

several situations, see 50 U.S.C. § 1805(f) (emergencies); id. 

§ 1802 (certain communications between foreign governments), this provision specifically lists only Title III’s 


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emergency provision but speaks generally to Attorney General certification. That reference to Attorney General certification is consistent with the historical practice in which 

Presidents have delegated to the Attorney General authority to approve warrantless surveillance for foreign intelligence purposes. See, e.g., United States v. United States 

District Court, 444 F.2d 651, 669–71 (6th Cir. 1971) (reproducing as an appendix memoranda from Presidents Roosevelt, Truman, and Johnson). Section 2511(2)(a)(ii) thus 

suggests that telecommunications providers can be authorized to assist with warrantless electronic surveillance 

when such surveillance is authorized by law outside FISA. 

In sum, by expressly and broadly excepting from its prohibition electronic surveillance undertaken ‘‘as authorized 

by statute,’’ section 109 of FISA permits an exception to 

the ‘‘procedures’’ of FISA referred to in 18 U.S.C. 

§ 2511(2)(f) where authorized by another statute, even if 

the other authorizing statute does not specifically amend 

section 2511(2)(f). 

C. The AUMF is a ‘‘statute’’ authorizing surveillance 

outside the confines of FISA 

The AUMF qualifies as a ‘‘statute’’ authorizing electronic 

surveillance within the meaning of section 109 of FISA. 

First, because the term ‘‘statute’’ historically has been 

given broad meaning, the phrase ‘‘authorized by statute’’ in section 109 of FISA must be read to include joint resolutions such as the AUMF. See American Fed’n of Labor v. 

Watson, 327 U.S. 582, 592–93 (1946) (finding the term ‘‘statute’’ as used in 28 U.S.C. § 380 to mean ‘‘a compendious summary of various enactments, by whatever method they may be adopted, to which a State gives her sanction’’); Black’s Law Dictionary 1410 (6th ed. 1990) (defining ‘‘statute’’ broadly to include any ‘‘formal written enactment of a legislative body,’’ and stating that the term is 

used ‘‘to designate the legislatively created laws in contradistinction to court decided or unwritten laws’’). It is thus 

of no significance to this analysis that the AUMF was enacted as a joint resolution rather than a bill. See, e.g., Ann 

Arbor R.R. Co. v. United States, 281 U.S. 658, 666 (1930) 

(joint resolutions are to be construed by applying ‘‘the 

rules applicable to legislation in general’’); United States ex 

rel. Levey v. Stockslager, 129 U.S. 470, 475 (1889) (joint 

resolution had ‘‘all the characteristics and effects’’ of statute that it suspended); Padilla ex rel. Newman v. Bush, 

233 F. Supp. 2d 564, 598 (S.D.N.Y. 2002) (in analyzing the 

AUMF, finding that there is ‘‘no relevant constitutional 

difference between a bill and a joint resolution’’), rev’d sub 

nom. on other grounds, Rumsfeld v. Padilla, 352 F.3d 695 

(2d Cir. 2003), rev’d, 542 U.S. 426 (2004); see also Letter 

for the Hon. John Conyers, Jr., U.S. House of Representatives, from Prof. Laurence H. Tribe at 3 (Jan. 6, 2006) 

(term ‘‘statute’’ in section 109 of FISA ‘‘of course encompasses a joint resolution presented to and signed by the 

President’’). 


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10 It might be argued that Congress dealt more comprehensively with electronic surveillance 

in FISA than it did with detention in 18 U.S.C. § 4001(a). Thus, although Congress prohibited 

detention ‘‘except pursuant to an Act of Congress,’’ it combined the analogous prohibition in 

FISA (section 109(a)) with section 2511(2)(f)’s exclusivity provision. See Letter to the Hon. Bill 

Frist, Majority Leader, U.S. Senate, from Professor Curtis A. Bradley et al. at 5 n.6 (Jan. 9, 

2006) (noting that section 4001(a) does not ‘‘attempt[] to create an exclusive mechanism for detention’’). On closer examination, however, it is evident that Congress has regulated detention 

far more meticulously than these arguments suggest. Detention is the topic of much of the 

Criminal Code, as well as a variety of other statutes, including those providing for civil commitment of the mentally ill and confinement of alien terrorists. The existence of these statutes and 

accompanying extensive procedural safeguards, combined with the substantial constitutional 

issues inherent in detention, see, e.g., Hamdi, 542 U.S. at 574–75 (Scalia, J., dissenting), refute 

any such argument. 11 As noted above, in intercepting communications, President Wilson relied on his constitutional authority and the joint resolution declaring war and authorizing the use of military force, 

which, as relevant here, provided ‘‘that the President [is] authorized and directed to employ the 

entire naval and military forces of the United States and the resources of the Government to 

carry on war against the Imperial German Government; and to bring the conflict to a successful 

termination all of the resources of the country are hereby pledged by the Congress of the United 

States.’’ Joint Resolution of Apr. 6, 1917, ch. 1, 40 Stat. 1. The authorization did not explicitly 

mention interception of communications. 

Second, the longstanding history of communications intelligence as a fundamental incident of the use of force and 

the Supreme Court’s decision in Hamdi v. Rumsfeld 

strongly suggest that the AUMF satisfies the requirement 

of section 109 of FISA for statutory authorization of electronic surveillance. As explained above, it is not necessary 

to demarcate the outer limits of the AUMF to conclude 

that it encompasses electronic surveillance targeted at the 

enemy. Just as a majority of the Court concluded in 

Hamdi that the AUMF authorizes detention of U.S. citizens who are enemy combatants without expressly mentioning the President’s long-recognized power to detain, so 

too does it authorize the use of electronic surveillance 

without specifically mentioning the President’s equally 

long-recognized power to engage in communications intelligence targeted at the enemy. And just as the AUMF satisfies the requirement in 18 U.S.C. § 4001(a) that no U.S. 

citizen be detained ‘‘except pursuant to an Act of Congress,’’ so too does it satisfy section 109’s requirement for 

statutory authorization of electronic surveillance.10 In authorizing the President’s use of force in response to the 

September 11th attacks, Congress did not need to comb 

through the United States Code looking for those restrictions that it had placed on national security operations 

during times of peace and designate with specificity each 

traditional tool of military force that it sought to authorize 

the President to use. There is no historical precedent for 

such a requirement: authorizations to use military force 

traditionally have been couched in general language. Indeed, prior administrations have interpreted joint resolutions declaring war and authorizing the use of military 

force to authorize expansive collection of communications 

into and out of the United States.11

Moreover, crucial to the Framers’ decision to vest the 

President with primary constitutional authority to defend 

the Nation from foreign attack is the fact that the Executive can act quickly, decisively, and flexibly as needed. For 

Congress to have a role in that process, it must be able to 

act with similar speed, either to lend its support to, or to 


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12Some have suggested that the Administration declined to seek a specific amendment to 

FISA allowing the NSA activities ‘‘because it was advised that Congress would reject such an 

amendment,’’ Letter to the Hon. Bill Frist, Majority Leader, U.S. Senate, from Professor Curtis 

A. Bradley et al. 4 & n.4 (Jan. 9, 2005), and they have quoted in support of that assertion the 

Attorney General’s statement that certain Members of Congress advised the Administration that 

legislative relief ‘‘would be difficult, if not impossible.’’ Id. at 4 n.4. As the Attorney General subsequently indicated, however, the difficulty with such specific legislation was that it could not 

be enacted ‘‘without compromising the program.’’ See Remarks by Homeland Security Secretary 

Chertoff and Attorney General Gonzales on the USA PATRIOT Act (Dec. 21, 2005), available 

at http://www.dhs.gov/dhspublic/display?content=5285. 

signal its disagreement with, proposed military action. Yet 

the need for prompt decisionmaking in the wake of a devastating attack on the United States is fundamentally inconsistent with the notion that to do so Congress must legislate at a level of detail more in keeping with a peacetime 

budget reconciliation bill. In emergency situations, Congress must be able to use broad language that effectively 

sanctions the President’s use of the core incidents of military force. That is precisely what Congress did when it 

passed the AUMF on September 14, 2001—just three days 

after the deadly attacks on America. The Capitol had been 

evacuated on September 11th, and Congress was meeting 

in scattered locations. As an account emerged of who 

might be responsible for these attacks, Congress acted 

quickly to authorize the President to use ‘‘all necessary 

and appropriate force’’ against the enemy that he determines was involved in the September 11th attacks. Under 

these circumstances, it would be unreasonable and wholly 

impractical to demand that Congress specifically amend 

FISA in order to assist the President in defending the Nation. Such specificity would also have been self-defeating 

because it would have apprised our adversaries of some of 

our most sensitive methods of intelligence gathering.12

Section 111 of FISA, 50 U.S.C. § 1811, which authorizes 

the President, ‘‘[n]otwithstanding any other law,’’ to conduct ‘‘electronic surveillance without a court order under 

this subchapter to acquire foreign intelligence information 

for a period not to exceed fifteen calendar days following 

a declaration of war by Congress,’’ does not require a different reading of the AUMF. See also id. § 1844 (same provision for pen registers); id. § 1829 (same provision for 

physical searches). Section 111 cannot reasonably be read 

as Congress’s final word on electronic surveillance during 

wartime, thus permanently limiting the President in all 

circumstances to a mere fifteen days of warrantless military intelligence gathering targeted at the enemy following 

a declaration of war. Rather, section 111 represents 

Congress’s recognition that it would likely have to return 

to the subject and provide additional authorization to conduct warrantless electronic surveillance outside FISA during time of war. The Conference Report explicitly stated 

the conferees’ ‘‘inten[t] that this [fifteen-day] period will 

allow time for consideration of any amendment to this act 

that may be appropriate during a wartime emergency.’’

H.R. Conf. Rep. No. 95–1720, at 34, reprinted in 1978 

U.S.C.C.A.N. at 4063. Congress enacted section 111 so that 


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the President could conduct warrantless surveillance while 

Congress considered supplemental wartime legislation. 

Nothing in the terms of section 111 disables Congress 

from authorizing such electronic surveillance as a traditional incident of war through a broad, conflict-specific authorization for the use of military force, such as the 

AUMF. Although the legislative history of section 111 indicates that in 1978 some Members of Congress believed 

that any such authorization would come in the form of a 

particularized amendment to FISA itself, section 111 does 

not require that result. Nor could the Ninety-Fifth Congress tie the hands of a subsequent Congress in this way, 

at least in the absence of far clearer statutory language expressly requiring that result. See supra, pp. 21–22; compare, e.g., War Powers Resolution, § 8, 50 U.S.C. § 1547(a) 

(‘‘Authority to introduce United States Armed Forces into 

hostilities . . . shall not be inferred . . . from any provision of law . . . unless such provision specifically authorizes [such] introduction . . . and states that it is intended 

to constitute specific statutory authorization within the 

meaning of this chapter.’’); 10 U.S.C. § 401 (stating that 

any other provision of law providing assistance to foreign 

countries to detect and clear landmines shall be subject to 

specific limitations and may be construed as superseding 

such limitations ‘‘only if, and to the extent that, such provision specifically refers to this section and specifically 

identifies the provision of this section that is to be considered superseded or otherwise inapplicable’’). An interpretation of section 111 that would disable Congress from authorizing broader electronic surveillance in that form can 

be reconciled neither with the purposes of section 111 nor 

with the well-established proposition that ‘‘one legislature 

cannot abridge the powers of a succeeding legislature.’’ Fletcher v. Peck, 10 U.S. (6 Cranch) at 135; see supra Part 

II.B. For these reasons, the better interpretation is that 

section 111 was not intended to, and did not, foreclose 

Congress from using the AUMF as the legal vehicle for 

supplementing the President’s existing authority under 

FISA in the battle against al Qaeda. 

The contrary interpretation of section 111 also ignores 

the important differences between a formal declaration of 

war and a resolution such as the AUMF. As a historical 

matter, a formal declaration of war was no longer than a 

sentence, and thus Congress would not expect a declaration of war to outline the extent to which Congress authorized the President to engage in various incidents of waging 

war. Authorizations for the use of military force, by contrast, are typically more detailed and are made for the specific purpose of reciting the manner in which Congress has 

authorized the President to act. Thus, Congress could reasonably expect that an authorization for the use of military 

force would address the issue of wartime surveillance, 

while a declaration of war would not. Here, the AUMF declares that the Nation faces ‘‘an unusual and extraordinary 

threat,’’ acknowledges that ‘‘the President has authority 


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under the Constitution to take action to deter and prevent 

acts of international terrorism against the United States,’’

and provides that the President is authorized ‘‘to use all 

necessary and appropriate force’’ against those ‘‘he determines’’ are linked to the September 11th attacks. AUMF 

pmbl., § 2. This sweeping language goes far beyond the 

bare terms of a declaration of war. Compare, e.g., Act of 

Apr. 25, 1898, ch. 189, 30 Stat. 364 (‘‘First. That war be, 

and the same is hereby declared to exist . . . between the 

United States of America and the Kingdom of Spain.’’). 

Although legislation that has included a declaration of 

war has often also included an authorization of the President to use force, these provisions are separate and need 

not be combined in a single statute. See, e.g., id. (‘‘Second. 

That the President of the United States be, and he hereby 

is, directed and empowered to use the entire land and 

naval forces of the United States, and to call into the actual service of the United States the militia of the several 

states, to such extent as may be necessary to carry this Act 

into effect.’’) (emphasis added). Moreover, declarations of 

war have legal significance independent of any additional 

authorization of force that might follow. See, e.g., Louis 

Henkin, Foreign Affairs and the U.S. Constitution 75 (2d 

ed. 1996) (explaining that a formal state of war has various legal effects, such as terminating diplomatic relations, 

and abrogating or suspending treaty obligations and international law rights and duties); see also id. at 370 n.65 

(speculating that one reason to fight an undeclared war 

would be to ‘‘avoid the traditional consequences of declared 

war on relations with third nations or even . . . belligerents’’). 

In addition, section 111 does not cover the vast majority 

of modern military conflicts. The last declared war was 

World War II. Indeed, the most recent conflict prior to the 

passage of FISA, Vietnam, was fought without a formal 

declaration of war. In addition, the War Powers Resolution, enacted less than five years before FISA, clearly recognizes the distinctions between formal declarations of war 

and authorizations of force and demonstrates that, if Congress had wanted to include such authorizations in section 

111, it knew how to do so. See, e.g., 50 U.S.C. § 1544(b) (attempting to impose certain consequences 60 days after reporting the initiation of hostilities to Congress ‘‘unless the 

Congress . . . has declared war or has enacted a specific 

authorization for such use’’ of military force) (emphasis 

added). It is possible that, in enacting section 111, Congress intended to make no provision for even the temporary use of electronic surveillance without a court order 

for what had become the legal regime for most military 

conflicts. A better reading, however, is that Congress assumed that such a default provision would be unnecessary 

because, if it had acted through an authorization for the 

use of military force, the more detailed provisions of that 

authorization would resolve the extent to which Congress 


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38 

13Some have pointed to the specific amendments to FISA that Congress made shortly after 

September 11th in the USA PATRIOT Act, Pub. L. No. 107–56, §§ 204, 218, 115 Stat. 272, 281, 

291 (2001), to argue that Congress did not contemplate electronic surveillance outside the parameters of FISA. See Memorandum for Members of the House Permanent Select Comm. on 

Intel. from Jeffrey H. Smith, Re: Legal Authorities Regarding Warrantless Surveillance of U.S. 

Persons 6–7 (Jan. 3, 2006). The USA PATRIOT Act amendments, however, do not justify giving 

the AUMF an unnaturally narrow reading. The USA PATRIOT Act amendments made important corrections in the general application of FISA; they were not intended to define the precise 

incidents of military force that would be available to the President in prosecuting the current 

armed conflict against al Qaeda and its allies. Many removed long-standing impediments to the 

effectiveness of FISA that had contributed to the maintenance of an unnecessary ‘‘wall’’ between 

foreign intelligence gathering and criminal law enforcement; others were technical clarifications. 

See In re Sealed Case, 310 F.3d 717, 725–30 (Foreign Int. Surv. Ct. Rev. 2002). The ‘‘wall’’ had 

been identified as a significant problem hampering the Government’s efficient use of foreign intelligence information well before the September 11th attacks and in contexts unrelated to terrorism. See, e.g., Final Report of the Attorney General’s Review Team on the Handling of the 

Los Alamos National Laboratory Investigation 710, 729, 732 (May 2000); General Accounting 

Office, FBI Intelligence Investigations: Coordination Within Justice on Counterintelligence 

Criminal Matters Is Limited (GAO–01–780) 3, 31 (July 2001). Finally, it is worth noting that 

Justice Souter made a similar argument in Hamdi that the USA PATRIOT Act all but compelled 

a narrow reading of the AUMF. See 542 U.S. at 551 (‘‘It is very difficult to believe that the 

same Congress that carefully circumscribed Executive power over alien terrorists on home soil 

[in the USA PATRIOT Act] would not have meant to require the Government to justify clearly 

its detention of an American citizen held on home soil incommunicado.’’). Only Justice Ginsburg 

joined this opinion, and the position was rejected by a majority of Justices. 

Nor do later amendments to FISA undermine the conclusion that the AUMF authorizes electronic surveillance outside the procedures of FISA. Three months after the enactment of the 

AUMF, Congress enacted certain ‘‘technical amendments’’ to FISA which, inter alia, extended 

the time during which the Attorney General may issue an emergency authorization of electronic 

surveillance from 24 to 72 hours. See Intelligence Authorization Act for Fiscal Year 2002, Pub. 

L. No. 107–108, § 314, 115 Stat. 1394, 1402 (2001). These modifications to FISA do not in any 

way undermine Congress’s previous authorization in the AUMF for the President to engage in 

electronic surveillance outside the parameters of FISA in the specific context of the armed conflict with al Qaeda. 

would attempt to authorize, or withhold authorization for, 

the use of electronic surveillance.13

The broad text of the AUMF, the authoritative interpretation that the Supreme Court gave it in Hamdi, and the 

circumstances in which it was passed demonstrate that the 

AUMF is a statute authorizing electronic surveillance 

under section 109 of FISA. When the President authorizes 

electronic surveillance against the enemy pursuant to the 

AUMF, he is therefore acting at the height of his authority 

under Youngstown, 343 U.S. at 637 (Jackson, J., concurring). 

D. The Canon of constitutional advoidance requires 

resolving in favor of the President’s authority 

any ambiguity about whether FISA forbids the 

NSA activities 

As explained above, the AUMF fully authorizes the NSA 

activities. Because FISA contemplates the possibility that 

subsequent statutes could authorize electronic surveillance 

without requiring FISA’s standard procedures, the NSA 

activities are also consistent with FISA and related provisions in title 18. Nevertheless, some might argue that sections 109 and 111 of FISA, along with section 2511(2)(f)’s ‘‘exclusivity’’ provision and section 2511(2)(e)’s liability exception for officers engaged in FISA-authorized surveillance, are best read to suggest that FISA requires that 

subsequent authorizing legislation specifically amend FISA 

in order to free the Executive from FISA’s enumerated procedures. As detailed above, this is not the better reading 

of FISA. But even if these provisions were ambiguous, any 


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39 

doubt as to whether the AUMF and FISA should be understood to allow the President to make tactical military decisions to authorize surveillance outside the parameters of 

FISA must be resolved to avoid the serious constitutional 

questions that a contrary interpretation would raise. 

It is well established that the first task of any interpreter faced with a statute that may present an unconstitutional infringement on the powers of the President is to 

determine whether the statute may be construed to avoid 

the constitutional difficulty. ‘‘[I]f an otherwise acceptable 

construction of a statute would raise serious constitutional 

problems, and where an alternative interpretation of the 

statute is ‘fairly possible,’ we are obligated to construe the 

statute to avoid such problems.’’ INS v. St. Cyr, 533 U.S. 

289, 299–300 (2001) (citations omitted); Ashwander v. 

TVA, 297 U.S. 288, 345–48 (1936) (Brandeis, J., concurring). Moreover, the canon of constitutional avoidance has 

particular importance in the realm of national security, 

where the President’s constitutional authority is at its 

highest. See Department of the Navy v. Egan, 484 U.S. 

518, 527, 530 (1988); William N. Eskridge, Jr., Dynamic 

Statutory Interpretation 325 (1994) (describing ‘‘[s]uperstrong rule against congressional interference with the 

President’s authority over foreign affairs and national security’’). Thus, courts and the Executive Branch typically 

construe a general statute, even one that is written in unqualified terms, to be implicitly limited so as not to infringe on the President’s Commander in Chief powers. 

Reading FISA to prohibit the NSA activities would raise 

two serious constitutional questions, both of which must be 

avoided if possible: (1) whether the signals intelligence collection the President determined was necessary to undertake is such a core exercise of Commander in Chief control 

over the Armed Forces during armed conflict that Congress cannot interfere with it at all and (2) whether the 

particular restrictions imposed by FISA are such that their 

application would impermissibly impede the President’s 

exercise of his constitutionally assigned duties as Commander in Chief. Constitutional avoidance principles require interpreting FISA, at least in the context of the military conflict authorized by the AUMF, to avoid these questions, if ‘‘fairly possible.’’ Even if Congress intended FISA 

to use the full extent of its constitutional authority to ‘‘occupy the field’’ of ‘‘electronic surveillance,’’ as FISA used 

that term, during peacetime, the legislative history indicates that Congress had not reached a definitive conclusion about its regulation during wartime. See H.R. Conf. 

Rep. No. 95–1720, at 34, reprinted in 1978 U.S.C.C.A.N. at 

4063 (noting that the purpose of the fifteen-day period following a declaration of war in section 111 of FISA was to 

‘‘allow time for consideration of any amendment to this act 

that may be appropriate during a wartime emergency’’). 

Therefore, it is not clear that Congress, in fact, intended 

to test the limits of its constitutional authority in the context of wartime electronic surveillance. 


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Whether Congress may interfere with the President’s 

constitutional authority to collect foreign intelligence information through interception of communications reasonably 

believed to be linked to the enemy poses a difficult constitutional question. As explained in Part I, it had long 

been accepted at the time of FISA’s enactment that the 

President has inherent constitutional authority to conduct 

warrantless electronic surveillance for foreign intelligence 

purposes. Congress recognized at the time that the enactment of a statute purporting to eliminate the President’s 

ability, even during peacetime, to conduct warrantless 

electronic surveillance to collect foreign intelligence was 

near or perhaps beyond the limit of Congress’s Article I 

powers. The NSA activities, however, involve signals intelligence performed in the midst of a congressionally authorized armed conflict undertaken to prevent further hostile 

attacks on the United States. The NSA activities lie at the 

very core of the Commander in Chief power, especially in 

light of the AUMF’s explicit authorization for the President to take all necessary and appropriate military action 

to stop al Qaeda from striking again. The constitutional 

principles at stake here thus involve not merely the President’s well-established inherent authority to conduct 

warrantless surveillance for foreign intelligence purposes 

during peacetime, but also the powers and duties expressly 

conferred on him as Commander in Chief by Article II. 

Even outside the context of wartime surveillance of the 

enemy, the source and scope of Congress’s power to restrict 

the President’s inherent authority to conduct foreign intelligence surveillance is unclear. As explained above, the 

President’s role as sole organ for the Nation in foreign affairs has long been recognized as carrying with it preeminent authority in the field of national security and foreign intelligence. The source of this authority traces to the 

Vesting Clause of Article II, which states that ‘‘[t]he executive Power shall be vested in a President of the United 

States of America.’’ U.S. Const. art. II, § 1. The Vesting 

Clause ‘‘has long been held to confer on the President plenary authority to represent the United States and to pursue its interests outside the borders of the country, subject 

only to limits specifically set forth in the Constitution itself 

and to such statutory limitations as the Constitution permits Congress to impose by exercising one of its enumerated powers.’’ The President’s Compliance with the ‘‘Timely Notification’’ Requirement of Section 501(b) of the National Security Act, 10 Op. O.L.C. 159, 160–61 (1986) 

(‘‘Timely Notification Requirement Op.’’). 

Moreover, it is clear that some presidential authorities 

in this context are beyond Congress’s ability to regulate. 

For example, as the Supreme Court explained in CurtissWright, the President ‘‘makes treaties with the advice and 

consent of the Senate; but he alone negotiates. Into the 

field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it.’’ 299 U.S. at 319. 

Similarly, President Washington established early in the 


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history of the Republic the Executive’s absolute authority 

to maintain the secrecy of negotiations with foreign powers, even against congressional efforts to secure information. See id. at 320–21. Recognizing presidential authority 

in this field, the Executive Branch has taken the position 

that ‘‘congressional legislation authorizing extraterritorial 

diplomatic and intelligence activities is superfluous, and . 

. . statutes infringing the President’s inherent Article II 

authority would be unconstitutional.’’ Timely Notification 

Requirement Op., 10 Op. O.L.C. at 164. 

There are certainly constitutional limits on Congress’s 

ability to interfere with the President’s power to conduct 

foreign intelligence searches, consistent with the Constitution, within the United States. As explained above, intelligence gathering is at the heart of executive functions. 

Since the time of the Founding it has been recognized that 

matters requiring secrecy and intelligence in particular— are quintessentially executive functions. See, e.g., The Federalist No. 64, at 435 (John Jay) (Jacob E. Cooke ed. 1961) 

(‘‘The convention have done well therefore in so disposing 

of the power of making treaties, that although the president must in forming them act by the advice and consent 

of the senate, yet he will be able to manage the business 

of intelligence in such manner as prudence may suggest.’’); 

see also Timely Notification Requirement Op., 10 Op. 

O.L.C. at 165; cf. New York Times Co. v. United States, 

403 U.S. 713, 729–30 (1971) (Stewart, J., concurring) (‘‘[I]t 

is the constitutional duty of the Executive—as a matter of 

sovereign prerogative and not as a matter of law as the 

courts know law—through the promulgation and enforcement of executive regulations, to protect the confidentiality 

necessary to carry out its responsibilities in the field of 

international relations and national defense.’’). 

Because Congress has rarely attempted to intrude in 

this area and because many of these questions are not susceptible to judicial review, there are few guideposts for determining exactly where the line defining the President’s 

sphere of exclusive authority lies. Typically, if a statute is 

in danger of encroaching upon exclusive powers of the 

President, the courts apply the constitutional avoidance 

canon, if a construction avoiding the constitutional issue is 

‘‘fairly possible.’’ See, e.g., Egan, 484 U.S. at 527, 530. The 

only court that squarely has addressed the relative powers 

of Congress and the President in this field suggested that 

the balance tips decidedly in the President’s favor. The 

Foreign Intelligence Surveillance Court of Review recently 

noted that all courts to have addressed the issue of the 

President’s inherent authority have ‘‘held that the President did have inherent authority to conduct warrantless 

searches to obtain foreign intelligence information.’’ In re 

Sealed Case, 310 F.3d 717, 742 (Foreign Intel. Surv. Ct. of 

Rev. 2002). On the basis of that unbroken line of precedent, the court ‘‘[took] for granted that the President does 

have that authority,’’ and concluded that, ‘‘assuming that 

is so, FISA could not encroach on the President’s constituVerDate Aug 31 2005 01:31 Mar 11, 2006 Jkt 049006 PO 00000 Frm 00045 Fmt 6659 Sfmt 6969 E:\HR\OC\HR384.109 HR384

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14 In the past, other courts have declined to express a view on that issue one way or the other. 

See, e.g., Butenko, 494 F.2d at 601 (‘‘We do not intimate, at this time, any view whatsoever as 

the proper resolution of the possible clash of the constitutional powers of the President and Congress.’’). 

tional power.’’ Id.14 Although the court did not provide extensive analysis, it is the only judicial statement on point, 

and it comes from the specialized appellate court created 

expressly to deal with foreign intelligence issues under 

FISA. 

But the NSA activities are not simply exercises of the 

President’s general foreign affairs powers. Rather, they are 

primarily an exercise of the President’s authority as Commander in Chief during an armed conflict that Congress 

expressly has authorized the President to pursue. The 

NSA activities, moreover, have been undertaken specifically to prevent a renewed attack at the hands of an 

enemy that has already inflicted the single deadliest foreign attack in the Nation’s history. The core of the Commander in Chief power is the authority to direct the 

Armed Forces in conducting a military campaign. Thus, 

the Supreme Court has made clear that the ‘‘President 

alone’’ is ‘‘constitutionally invested with the entire charge 

of hostile operations.’’ Hamilton v. Dillin, 88 U.S. (21 

Wall.) 73, 87 (1874); The Federalist No. 74, at 500 (Alexander Hamilton). ‘‘As commander-in-chief, [the President] 

is authorized to direct the movements of the naval and 

military forces placed by law at his command, and to employ them in the manner he may deem most effectual to 

harass and conquer and subdue the enemy.’’ Fleming v. 

Page, 50 U.S. (9 How.) 603, 615 (1850). As Chief Justice 

Chase explained in 1866, although Congress has authority 

to legislate to support the prosecution of a war, Congress 

may not ‘‘interfere[ ] with the command of the forces and 

the conduct of campaigns. That power and duty belong to 

the President as commander-in-chief.’’ Ex parte Milligan, 

71 U.S. (4 Wall.) 2, 139 (1866) (Chase, C.J., concurring in 

judgment) (emphasis added). 

The Executive Branch uniformly has construed the Commander in Chief and foreign affairs powers to grant the 

President authority that is beyond the ability of Congress 

to regulate. In 1860, Attorney General Black concluded 

that an act of Congress, if intended to constrain the President’s discretion in assigning duties to an officer in the 

army, would be unconstitutional: 

As commander-in-chief of the army it is your 

right to decide according to your own judgment 

what officer shall perform any particular duty, 

and as the supreme executive magistrate you have 

the power of appointment. Congress could not, if 

it would, take away from the President, or in anywise diminish the authority conferred upon him 

by the Constitution. 

Memorial of Captain Meigs, 9 Op. Att’y Gen. 462, 468 

(1860). Attorney General Black went on to explain that, in 


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15 Executive practice recognizes, consistent with the Constitution, some congressional control 

over the Executive’s decisions concerning the Armed Forces. See, e.g., U.S. Const. art. I, § 8, cl. 

12 (granting Congress power ‘‘to raise and support Armies’’). But such examples have not involved congressional attempts to regulate the actual conduct of a military campaign, and there 

is no comparable textual support for such interference. For example, just before World War II, 

Attorney General Robert Jackson concluded that the Neutrality Act prohibited President Roosevelt from selling certain armed naval vessels and sending them to Great Britain. See Acquisition of Naval and Air Bases in Exchange for Over-Age Destroyers, 39 Op. Att’y Gen. 484, 496 

(1940). Jackson’s apparent conclusion that Congress could control the President’s ability to 

transfer war material does not imply acceptance of direct congressional regulation of the Commander in Chief’s control of the means and methods of engaging the enemy in conflict. Similarly, in Youngstown Sheet & Tube Co. v. Sawyer, the Truman Administration readily conceded 

that, if Congress had prohibited the seizure of steel mills by statute, Congress’s action would 

have been controlling. See Brief for Petitioner at 150, Youngstown, 343 U.S. 579 (1952) (Nos. 

744 and 745). This concession implies nothing concerning congressional control over the methods 

of engaging the enemy. 

Likewise, the fact that the Executive Branch has, at times, sought congressional ratification 

after taking unilateral action in a wartime emergency does not reflect a concession that the Executive lacks authority in this area. A decision to seek congressional support can be prompted 

by many motivations, including a desire for political support. In modern times, several administrations have sought congressional authorization for the use of military force while preserving 

the ability to assert the unconstitutionality of the War Powers Resolution. See, e.g., Statement 

on Signing the Resolution Authorizing the Use of Military Force Against Iraq, 1 Pub. Papers 

of George Bush 40 (1991) (‘‘[M]y request for congressional support did not . . . constitute any 

change in the long-standing positions of the executive branch on either the President’s constitutional authority to use the Armed Forces to defend vital U.S. interests or the constitutionality 

of the War Powers Resolution.’’). Moreover, many actions for which congressional support has 

been sought—such as President Lincoln’s action in raising an Army in 1861—quite likely fall 

primarily under Congress’s core Article I powers. 

his view, the statute involved there could probably be read 

as simply providing ‘‘a recommendation’’ that the President could decline to follow at his discretion. Id. at 469– 70.15

Supreme Court precedent does not support claims of congressional authority over core military decisions during 

armed conflicts. In particular, the two decisions of the Supreme Court that address a conflict between asserted wartime powers of the Commander in Chief and congressional 

legislation and that resolve the conflict in favor of Congress—Little v. Barreme, 6 U.S. (2 Cranch) 170 (1804), and 

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 

(1952), are both distinguishable from the situation presented by the NSA activities in the conflict with al Qaeda. 

Neither supports the constitutionality of the restrictions in 

FISA as applied here. 

Barreme involved a suit brought to recover a ship seized 

by an officer of the U.S. Navy on the high seas during the 

so-called ‘‘Quasi War’’ with France in 1799. The seizure 

had been based upon the officer’s orders implementing an 

act of Congress suspending commerce between the United 

States and France and authorizing the seizure of American 

ships bound to a French port. The ship in question was 

suspected of sailing from a French port. The Supreme 

Court held that the orders given by the President could 

not authorize a seizure beyond the terms of the statute 

and therefore that the seizure of the ship not in fact bound 

to a French port was unlawful. See 6 U.S. at 177–78. Although some commentators have broadly characterized 

Barreme as standing for the proposition that Congress may 

restrict by statute the means by which the President can 

direct the Nation’s Armed Forces to carry on a war, the 

Court’s holding was limited in at least two significant 

ways. First, the operative section of the statute in question 


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applied only to American merchant ships. See id. at 170 

(quoting Act of February 9, 1799). Thus, the Court simply 

had no occasion to rule on whether, even in the limited 

and peculiar circumstances of the Quasi War, Congress 

could have placed some restriction on the orders the Commander in Chief could issue concerning direct engagements with enemy forces. Second, it is significant that the 

statute in Barreme was cast expressly, not as a limitation 

on the conduct of warfare by the President, but rather as 

regulation of a subject within the core of Congress’s enumerated powers under Article I—the regulation of foreign 

commerce. See U.S. Const., art. I, § 8, cl. 3. The basis of 

Congress’s authority to act was therefore clearer in 

Barreme than it is here. 

Youngstown involved an effort by the President—in the 

face of a threatened work stoppage—to seize and to run 

steel mills. Congress had expressly considered the possibility of giving the President power to effect such a seizure 

during national emergencies. It rejected that option, however, instead providing different mechanisms for resolving 

labor disputes and mechanisms for seizing industries to 

ensure production vital to national defense. 

For the Court, the connection between the seizure and 

the core Commander in Chief function of commanding the 

Armed Forces was too attenuated. The Court pointed out 

that the case did not involve authority over ‘‘day-to-day 

fighting in a theater of war.’’ Id. at 587. Instead, it involved a dramatic extension of the President’s authority 

over military operations to exercise control over an industry that was vital for producing equipment needed overseas. Justice Jackson’s concurring opinion also reveals a 

concern for what might be termed foreign-to-domestic presidential bootstrapping. The United States became involved 

in the Korean conflict through President Truman’s unilateral decision to commit troops to the defense of South 

Korea. The President then claimed authority, based upon 

this foreign conflict, to extend presidential control into vast 

sectors of the domestic economy. Justice Jackson expressed 

‘‘alarm[]’’ at a theory under which ‘‘a President whose conduct of foreign affairs is so largely uncontrolled, and often 

even is unknown, can vastly enlarge his mastery over the 

internal affairs of the country by his own commitment of 

the Nation’s armed forces to some foreign venture.’’ Id. at 

642. 

Moreover, President Truman’s action extended the President’s authority into a field that the Constitution predominantly assigns to Congress. See id. at 588 (discussing 

Congress’s commerce power and noting that ‘‘[t]he Constitution does not subject this lawmaking power of Congress to presidential or military supervision or control’’); 

see also id. at 643 (Jackson, J., concurring) (explaining 

that Congress is given express authority to ‘‘ ‘raise and 

support Armies’ ’’ and ‘‘ ‘to provide and maintain a Navy’ ’’) 

(quoting U.S. Const. art. I, § 8, cls. 12, 13). Thus, Youngstown involved an assertion of executive power that not 


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16Youngstown does demonstrate that the mere fact that Executive action might be placed in 

Justice Jackson’s category III does not obviate the need for further analysis. Justice Jackson’s framework therefore recognizes that Congress might impermissibly interfere with the President’s authority as Commander in Chief or to conduct the Nation’s foreign affairs. 17 It had been recognized long before Youngstown that, in a large-scale conflict, the area of 

operations could readily extend to the continental United States, even when there are no major 

engagements of armed forces here. Thus, in the context of the trial of a German officer for spying in World War I, it was recognized that ‘‘[w]ith the progress made in obtaining ways and 

means for devastation and destruction, the territory of the United States was certainly within 

the field of active operations’’ during the war, particularly in the port of New York, and that 

a spy in the United States might easily have aided the ‘‘hostile operation’’ of U-boats off the 

coast. United States ex reI. Wessels v. McDonald, 265 F. 754, 764 (E.D.N.Y. 1920). 

only stretched far beyond the President’s core Commander 

in Chief functions, but that did so by intruding into areas 

where Congress had been given an express, and apparently dominant, role by the Constitution.16

The present situation differs dramatically. The exercise 

of executive authority involved in the NSA activities is not 

several steps removed from the actual conduct of a military campaign. As explained above, it is an essential part 

of the military campaign. Unlike the activities at issue in 

Youngstown, the NSA activities are directed at the enemy, 

and not at domestic activity that might incidentally aid 

the war effort. And assertion of executive authority here 

does not involve extending presidential power into areas 

reserved for Congress. Moreover, the theme that appeared 

most strongly in Justice Jackson’s concurrence in Youngstown—the fear of presidential bootstrapping—does not 

apply in this context. Whereas President Truman had used 

his inherent constitutional authority to commit U.S. 

troops, here Congress expressly provided the President 

sweeping authority to use ‘‘all necessary and appropriate 

force’’ to protect the Nation from further attack. AUMF 

§ 2(a). There is thus no bootstrapping concern. 

Finally, Youngstown cannot be read to suggest that the 

President’s authority for engaging the enemy is less extensive inside the United States than abroad. To the contrary, 

the extent of the President’s Commander in Chief authority necessarily depends on where the enemy is found and 

where the battle is waged. In World War II, for example, 

the Supreme Court recognized that the President’s authority as Commander in Chief, as supplemented by Congress, 

included the power to capture and try agents of the enemy 

in the United States, even if they never had ‘‘entered the 

theatre or zone of active military operations.’’ Quirin, 317 

U.S. at 38.17 In the present conflict, unlike in the Korean 

War, the battlefield was brought to the United States in 

the most literal way, and the United States continues to 

face a threat of further attacks on its soil. In short, therefore, Youngstown does not support the view that Congress 

may constitutionally prohibit the President from authorizing the NSA activities. 

The second serious constitutional question is whether 

the particular restrictions imposed by FISA would 

impermissibly hamper the President’s exercise of his constitutionally assigned duties as Commander in Chief. The 

President has determined that the speed and agility required to carry out the NSA activities successfully could 


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18 In order to avoid further compromising vital national security activities, a full explanation 

of the basis for the President’s determination cannot be given in an unclassified document. 19FISA exempts the President from its procedures for fifteen days following a congressional 

declaration of war. See 50 U.S.C. § 1811. If an adversary succeeded in a decapitation strike, preventing Congress from declaring war or passing subsequent authorizing legislation, it seems 

clear that FISA could not constitutionally continue to apply in such circumstances. 20Since FISA’s enactment in 1978, the means of transmitting communications has undergone 

extensive transformation. In particular, many communications that would have been carried by 

wire are now transmitted through the air, and many communications that would have been carried by radio signals (including by satellite transmissions) are now transmitted by fiber optic 

not have been achieved under FISA.18 Because the President also has determined that the NSA activities are necessary to the defense of the United States from a subsequent terrorist attack in the armed conflict with al Qaeda, 

FISA would impermissibly interfere with the President’s 

most solemn constitutional obligation—to defend the 

United States against foreign attack. 

Indeed, if an interpretation of FISA that allows the 

President to conduct the NSA activities were not ‘‘fairly 

possible,’’ FISA would be unconstitutional as applied in the 

context of this congressionally authorized armed conflict. 

In that event, FISA would purport to prohibit the President from undertaking actions necessary to fulfill his constitutional obligation to protect the Nation from foreign attack in the context of a congressionally authorized armed 

conflict with an enemy that has already staged the most 

deadly foreign attack in our Nation’s history. A statute 

may not ‘‘impede the President’s ability to perform his constitutional duty,’’ Morrison v. Olson, 487 U.S. 654, 691 

(1988) (emphasis added); see also id. at 696–97, particularly not the President’s most solemn constitutional obligation—the defense of the Nation. See also In re Sealed 

Case, 310 F.3d at 742 (explaining that ‘‘FISA could not encroach on the President’s constitutional power’’). 

Application of the avoidance canon would be especially 

appropriate here for several reasons beyond the acute constitutional crises that would otherwise result. First, as 

noted, Congress did not intend FISA to be the final word 

on electronic surveillance conducted during armed conflicts. Instead, Congress expected that it would revisit the 

subject in subsequent legislation. Whatever intent can be 

gleaned from FISA’s text and legislative history to set 

forth a comprehensive scheme for regulating electronic 

surveillance during peacetime, that same intent simply 

does not extend to armed conflicts and declared wars.19

Second, FISA was enacted during the Cold War, not during active hostilities with an adversary whose mode of operation is to blend in with the civilian population until it 

is ready to strike. These changed circumstances have seriously altered the constitutional calculus, one that FISA’s 

enactors had already recognized might suggest that the 

statute was unconstitutional. Third, certain technological 

changes have rendered FISA still more problematic. As 

discussed above, when FISA was enacted in 1978, Congress expressly declined to regulate through FISA certain 

signals intelligence activities conducted by the NSA. See 

supra, at pp. 18–19 & n.6.20 These same factors weigh 


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cables. It is such technological advancements that have broadened FISA’s reach, not any particularized congressional judgment that the NSA’s traditional activities in intercepting such 

international communications should be subject to FISA’s procedures. A full explanation of these 

technological changes would require a discussion of classified information. 21 If the text of FISA were clear that nothing other than an amendment to FISA could authorize additional electronic surveillance, the AUMF would impliedly repeal as much of FISA as 

would prevent the President from using ‘‘all necessary and appropriate force’’ in order to prevent 

al Qaeda and its allies from launching another terrorist attack against the United States. To 

be sure, repeals by implication are disfavored and are generally not found whenever two statutes are ‘‘capable of co-existence.’’ Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1018 (1984). 

Under this standard, an implied repeal may be found where one statute would ‘‘unduly interfere 

with’’ the operation of another. Radzanower v. Touche Ross & Co., 426 U.S. 148, 156 (1976). 

The President’s determination that electronic surveillance of al Qaeda outside the confines of 

FISA was ‘‘necessary and appropriate’’ would create a clear conflict between the AUMF and 

FISA. FISA’s restrictions on the use of electronic surveillance would preclude the President from 

doing what the AUMF specifically authorized him to do: use all ‘‘necessary and appropriate 

force’’ to prevent al Qaeda from carrying out future attacks against the United States. The ordinary restrictions in FISA cannot continue to apply if the AUMF is to have its full effect; those 

constraints would ‘‘unduly interfere’’ with the operation of the AUMF. 

Contrary to the recent suggestion made by several law professors and former government officials, the ordinary presumption against implied repeals is overcome here. Cf. Letter to the Hon. 

Bill Frist, Majority Leader, U.S. Senate, from Professor Curtis A. Bradley et al. at 4 (Jan. 9, 

2006). First, like other canons of statutory construction, the canon against implied repeals is 

simply a presumption that may be rebutted by other factors, including conflicting canons. Connecticut National Bank v. Germain, 503 U.S. 249, 253 (1992); see also Chickasaw Nation v. 

United States, 534 U.S. 84, 94 (2001); Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 115 

(2001). Indeed, the Supreme Court has declined to apply the ordinary presumption against implied repeals where other canons apply and suggest the opposite result. See Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 765–66 (1985). Moreover, Blackfeet suggests that where the 

presumption against implied repeals would conflict with other, more compelling interpretive imperatives, it simply does not apply at all. See 471 U.S. at 766. Here, in light of the constitutional 

avoidance canon, which imposes the overriding imperative to use the tools of statutory interpretation to avoid constitutional conflicts, the implied repeal canon either would not apply at all 

or would apply with significantly reduced force. Second, the AUMF was enacted during an acute 

national emergency, where the type of deliberation and detail normally required for application 

of the canon against implied repeals was neither practical nor warranted. As discussed above, 

in these circumstances, Congress cannot be expected to work through every potential implication 

of the U.S. Code and to define with particularity each of the traditional incidents of the use 

of force available to the President. 

heavily in favor of concluding that FISA would be unconstitutional as applied to the current conflict if the canon of 

constitutional avoidance could not be used to head off a 

collision between the Branches. 

As explained above, FISA is best interpreted to allow a 

statute such as the AUMF to authorize electronic surveillance outside FISA’s enumerated procedures. The strongest counterarguments to this conclusion are that various 

provisions in FISA and title 18, including section 111 of 

FISA and section 2511(2)(f) of title 18, together require 

that subsequent legislation must reference or amend FISA 

in order to authorize electronic surveillance outside FISA’s 

procedures and that interpreting the AUMF as a statute 

authorizing electronic surveillance outside FISA procedures amounts to a disfavored repeal by implication. At 

the very least, however, interpreting FISA to allow a subsequent statute such as the AUMF to authorize electronic 

surveillance without following FISA’s express procedures is 

‘‘fairly possible,’’ and that is all that is required for purposes of invoking constitutional avoidance. In the competition of competing canons, particularly in the context of an 

ongoing armed conflict, the constitutional avoidance canon 

carries much greater interpretative force.21


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IV. The NSA activities are consistent with the Fourth 

Amendment 

The Fourth Amendment prohibits ‘‘unreasonable 

searches and seizures’’ and directs that ‘‘no Warrants shall 

issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be 

searched, and the persons or things to be seized.’’ U.S. 

Const. amend. IV. The touchstone for review of government action under the Fourth Amendment is whether the 

search is ‘‘reasonable.’’ See, e.g., Vernonia Sch. Dist. v. 

Acton, 515 U.S. 646, 653 (1995). 

As noted above, see Part I, all of the federal courts of appeals to have addressed the issue have affirmed the President’s inherent constitutional authority to collect foreign 

intelligence without a warrant. See In re Sealed Case, 310 

F.3d at 742. Properly understood, foreign intelligence collection in general, and the NSA activities in particular, fit 

within the ‘‘special needs’’ exception to the warrant requirement of the Fourth Amendment. Accordingly, the 

mere fact that no warrant is secured prior to the surveillance at issue in the NSA activities does not suffice to 

render the activities unreasonable. Instead, reasonableness 

in this context must be assessed under a general balancing 

approach, ‘‘by assessing, on the one hand, the degree to 

which it intrudes upon an individual’s privacy and, on the 

other, the degree to which it is needed for the promotion 

of legitimate governmental interests.’’ United States v. 

Knights, 534 U.S. 112, 118–19 (2001) (quoting Wyoming v. 

Houghton, 526 U.S. 295, 300 (1999)). The NSA activities 

are reasonable because the Government’s interest, defending the Nation from another foreign attack in time of 

armed conflict, outweighs the individual privacy interests 

at stake, and because they seek to intercept only international communications where one party is linked to al 

Qaeda or an affiliated terrorist organization. 

A. The warrant requirement of the Fourth Amendment does not apply to the NSA activities 

In ‘‘the criminal context,’’ the Fourth Amendment reasonableness requirement ‘‘usually requires a showing of 

probable cause’’ and a warrant. Board of Educ. v. Earls, 536 U.S. 822, 828 (2002). The requirement of a warrant 

supported by probable cause, however, is not universal. 

Rather, the Fourth Amendment’s ‘‘central requirement is 

one of reasonableness,’’ and the rules the Court has developed to implement that requirement ‘‘[s]ometimes . . . require warrants.’’ Illinois v. McArthur, 531 U.S. 326, 330 

(2001); see also, e.g., Earls, 536 U.S. at 828 (noting that 

the probable cause standard ‘‘is peculiarly related to criminal investigations and may be unsuited to determining the 

reasonableness of administrative searches where the Government seeks to prevent the development of hazardous 

conditions’’) (internal quotation marks omitted). 

In particular, the Supreme Court repeatedly has made 

clear that in situations involving ‘‘special needs’’ that go 


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beyond a routine interest in law enforcement, the warrant 

requirement is inapplicable. See Vernonia, 515 U.S. at 653 

(there are circumstances ‘‘when special needs, beyond the 

normal need for law enforcement, make the warrant and 

probable-cause requirement impracticable’’) (quoting Griffin v. Wisconsin, 483 U.S. 868, 873 (1987)); see also 

McArthur, 531 U.S. at 330 (‘‘When faced with special law 

enforcement needs, diminished expectations of privacy, 

minimal intrusions, or the like, the Court has found that 

certain general, or individual, circumstances may render a 

warrantless search or seizure reasonable.’’). It is difficult 

to encapsulate in a nutshell all of the different circumstances the Court has found to qualify as ‘‘special 

needs’’ justifying warrantless searches. But one application 

in which the Court has found the warrant requirement inapplicable is in circumstances in which the Government 

faces an increased need to be able to react swiftly and 

flexibly, or when there are at stake interests in public 

safety beyond the interests in ordinary law enforcement. 

One important factor in establishing ‘‘special needs’’ is 

whether the Government is responding to an emergency 

that goes beyond the need for general crime control. See In 

re Sealed Case, 310 F.3d at 745–46. 

Thus, the Court has permitted warrantless searches of 

property of students in public schools, see New Jersey v. 

T.L.O., 469 U.S. 325, 340 (1985) (noting that warrant requirement would ‘‘unduly interfere with the maintenance 

of the swift and informal disciplinary procedures needed in 

the schools’’), to screen athletes and students involved in 

extracurricular activities at public schools for drug use, see 

Vernonia, 515 U.S. at 654–55; Earls, 536 U.S. at 829–38, 

to conduct drug testing of railroad personnel involved in 

train accidents, see Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 634 (1989), and to search probationers’ homes, see Griffin, 483 U.S. 868. Many special 

needs doctrine and related cases have upheld suspicionless 

searches or seizures. See, e.g., Illinois v. Lidster, 540 U.S. 

419, 427 (2004) (implicitly relying on special needs doctrine to uphold use of automobile checkpoint to obtain information about recent hit-and-run accident); Earls, 536 

U.S. at 829–38 (suspicionless drug testing of public school 

students involved in extracurricular activities); Michigan 

Dep’t of State Police v. Sitz, 496 U.S. 444, 449–55 (1990) 

(road block to check all motorists for signs of drunken driving); United States v. Martinez-Fuerte, 428 U.S. 543 (1976) 

(road block near the border to check vehicles for illegal immigrants); cf. In re Sealed Case, 310 F.3d at 745–46 (noting that suspicionless searches and seizures in one sense 

are a greater encroachment on privacy than electronic surveillance under FISA because they are not based on any 

particular suspicion, but ‘‘[o]n the other hand, wiretapping 

is a good deal more intrusive than an automobile stop accompanied by questioning’’). To fall within the ‘‘special 

needs’’ exception to the warrant requirement, the purpose 

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22 Even in the domestic context, the Supreme Court has recognized that there may be significant distinctions between wiretapping for ordinary law enforcement purposes and domestic national security surveillance. See United States v. United States District Court, 407 U.S. 297, 322 

(1972) (‘‘Keith’’) (explaining that ‘‘the focus of domestic [security] surveillance may be less precise 

than that directed against more conventional types of crime’’ because often ‘‘the emphasis of domestic intelligence gathering is on the prevention of unlawful activity or the enhancement of 

the Government’s preparedness for some possible future crisis or emergency’’); see also United 

States v. Duggan, 743 F.2d 59, 72 (2d Cir. 1984) (reading Keith to recognize that ‘‘the governmental interests presented in national security investigations differ substantially from those 

presented in traditional criminal investigations’’). Although the Court in Keith held that the 

Fourth Amendment’s warrant requirement does apply to investigations of purely domestic 

threats to national security—such as domestic terrorism, it suggested that Congress consider establishing a lower standard for such warrants than that set forth in Title III. See id. at 322– 23 (advising that ‘‘different standards’’ from those applied to traditional law enforcement ‘‘may 

be compatible with the Fourth Amendment if they are reasonable both in relation to the legitimate need of the Government for intelligence information and the protected rights of our citizens’’). Keith’s emphasis on the need for flexibility applies with even greater force to surveillance 

directed at foreign threats to national security. See S. Rep. No. 95–701, at 16 (‘‘Far more than 

in domestic security matters, foreign counterintelligence investigations are ‘long range’ and involve ‘‘ ‘the interrelation of various sources and types of information.’ ’’) (quoting Keith, 407 U.S. 

at 322). And flexibility is particularly essential here, where the purpose of the NSA activities 

is to prevent another armed attack against the United States. 

eral crime control. See, e.g., Ferguson v. Charleston, 532 

U.S. 67 (2001); City of Indianapolis v. Edmond, 531 U.S. 

32, 41 (2000). 

Foreign intelligence collection, especially in the midst of 

an armed conflict in which the adversary has already 

launched catastrophic attacks within the United States, 

fits squarely within the area of ‘‘special needs, beyond the 

normal need for law enforcement’’ where the Fourth 

Amendment’s touchstone of reasonableness can be satisfied 

without resort to a warrant. Vernonia, 515 U.S. at 653. 

The Executive Branch has long maintained that collecting 

foreign intelligence is far removed from the ordinary criminal law enforcement action to which the warrant requirement is particularly suited. See, e.g., Amending the Foreign Intelligence Surveillance Act: Hearings Before the 

House Permanent Select Comm. on Intelligence, 103d 

Cong. 2d Sess. 62, 63 (1994) (statement of Deputy Attorney General Jamie S. Gorelick) (‘‘[I]t is important to understand that the rules and methodology for criminal 

searches are inconsistent with the collection of foreign intelligence and would unduly frustrate the President in carrying out his foreign intelligence responsibilities. . . . [W]e 

believe that the warrant clause of the Fourth Amendment 

is inapplicable to such [foreign intelligence] searches.’’); see 

also In re Sealed Case, 310 F.3d 745. The object of foreign 

intelligence collection is securing information necessary to 

protect the national security from the hostile designs of 

foreign powers like al Qaeda and affiliated terrorist organizations, including the possibility of another foreign attack on the United States. In foreign intelligence investigations, moreover, the targets of surveillance often are 

agents of foreign powers, including international terrorist 

groups, who may be specially trained in concealing their 

activities and whose activities may be particularly difficult 

to detect. The Executive requires a greater degree of flexibility in this field to respond with speed and absolute secrecy to the ever-changing array of foreign threats faced by 

the Nation.22


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23This is not to say that traditional law enforcement has no role in protecting the Nation from 

attack. The NSA activities, however, are not directed at bringing criminals to justice but at detecting and preventing plots by a declared enemy of the United States to attack it again. 

In particular, the NSA activities are undertaken to prevent further devastating attacks on our Nation, and they 

serve the highest government purpose through means 

other than traditional law enforcement.23 The NSA activities are designed to enable the Government to act quickly 

and flexibly (and with secrecy) to find agents of al Qaeda 

and its affiliates—an international terrorist group which 

has already demonstrated a capability to infiltrate American communities without being detected—in time to disrupt future terrorist attacks against the United States. As 

explained by the Foreign Intelligence Surveillance Court of 

Review, the nature of the ‘‘emergency’’ posed by al Qaeda ‘‘takes the matter out of the realm of ordinary crime control.’’ In re Sealed Case, 310 F.3d at 746. Thus, under the ‘‘special needs’’ doctrine, no warrant is required by the 

Fourth Amendment for the NSA activities. 

B. The NSA activities are reasonable 

As the Supreme Court has emphasized repeatedly, ‘‘[t]he 

touchstone of the Fourth Amendment is reasonableness, 

and the reasonableness of a search is determined by assessing, on the one hand, the degree to which it intrudes 

upon an individual’s privacy and, on the other, the degree 

to which it is needed for the promotion of legitimate governmental interests.’’ Knights, 534 U.S. at 118–19 

(quotation marks omitted); see also Earls, 536 U.S. at 829. 

The Supreme Court has found a search reasonable when, 

under the totality of the circumstances, the importance of 

the governmental interests outweighs the nature and quality of the intrusion on the individual’s Fourth Amendment 

interests. See Knights, 534 U.S. at 118–22. Under the 

standard balancing of interests analysis used for gauging 

reasonableness, the NSA activities are consistent with the 

Fourth Amendment. 

With respect to the individual privacy interests at stake, 

there can be no doubt that, as a general matter, interception of telephone communications implicates a significant 

privacy interest of the individual whose conversation is 

intercepted. The Supreme Court has made clear at least 

since Katz v. United States, 389 U.S. 347 (1967), that individuals have a substantial and constitutionally protected 

reasonable expectation of privacy that their telephone conversations will not be subject to governmental eavesdropping. Although the individual privacy interests at 

stake may be substantial, it is well recognized that a variety of governmental interests—including routine law enforcement and foreign-intelligence gathering—can overcome those interests. 

On the other side of the scale here, the Government’s interest in engaging in the NSA activities is the most compelling interest possible—securing the Nation from foreign 

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ready has taken thousands of lives and placed the Nation 

in state of armed conflict. Defending the Nation from attack is perhaps the most important function of the federal 

Government—and one of the few express obligations of the 

federal Government enshrined in the Constitution. See 

U.S. Const. art. IV, § 4 (‘‘The United States shall guarantee to every State in this Union a Republican Form of 

Government, and shall protect each of them against Invasion. . . .’’) (emphasis added); The Prize Cases, 67 U.S. (2 

Black) 635, 668 (1863) (‘‘If war be made by invasion of a 

foreign nation, the President is not only authorized but 

bound to resist force by force.’’). As the Supreme Court has 

declared, ‘‘[i]t is ‘obvious and unarguable’ that no governmental interest is more compelling than the security of the 

Nation.’’ Haig v. Agee, 453 U.S. 280, 307 (1981). 

The Government’s overwhelming interest in detecting 

and thwarting further al Qaeda attacks is easily sufficient 

to make reasonable the intrusion into privacy involved in 

intercepting one-end foreign communications where there 

is ‘‘a reasonable basis to conclude that one party to the 

communication is a member of al Qaeda, affiliated with al 

Qaeda, or a member of an organization affiliated with al 

Qaeda.’’ Press Briefing by Attorney General Alberto 

Gonzales and General Michael Hayden, Principal Deputy 

Director for National Intelligence, available at http:// 

www.whitehouse.gov/news/releases/2005/12/20051219- 

1.html (Dec. 19, 2005) (statement of Attorney General 

Gonzales); cf. Edmond, 531 U.S. at 44 (noting that ‘‘the 

Fourth Amendment would almost certainly permit an appropriately tailored roadblock set up to thwart an imminent terrorist attack’’ because ‘‘[t]he exigencies created by 

th[at] scenario[] are far removed’’ from ordinary law enforcement). The United States has already suffered one attack that killed thousands, disrupted the Nation’s financial 

center for days, and successfully struck at the command 

and control center for the Nation’s military. And the President has stated that the NSA activities are ‘‘critical’’ to our 

national security. Press Conference of President Bush 

(Dec. 19, 2005). To this day, finding al Qaeda sleeper 

agents in the United States remains one of the preeminent 

concerns of the war on terrorism. As the President has explained, ‘‘[t]he terrorists want to strike America again, and 

they hope to inflict even more damage than they did on 

September 11th.’’ Id. 

Of course, because the magnitude of the Government’s 

interest here depends in part upon the threat posed by al 

Qaeda, it might be possible for the weight that interest 

carries in the balance to change over time. It is thus significant for the reasonableness of the NSA activities that 

the President has established a system under which he authorizes the surveillance only for a limited period, typically 

for 45 days. This process of reauthorization ensures a periodic review to evaluate whether the threat from al Qaeda 

remains sufficiently strong that the Government’s interest 

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tack continues to outweigh the individual privacy interests 

at stake. 

Finally, as part of the balancing of interests to evaluate 

Fourth Amendment reasonableness, it is significant that 

the NSA activities are limited to intercepting international 

communications where there is a reasonable basis to conclude that one party to the communication is a member or 

agent of al Qaeda or an affiliated terrorist organization. 

This factor is relevant because the Supreme Court has indicated that in evaluating reasonableness, one should consider the ‘‘efficacy of [the] means for addressing the problem.’’ Vernonia, 515 U.S. at 663; see also Earls, 536 U.S. 

at 834 (‘‘Finally, this Court must consider the nature and 

immediacy of the government’s concerns and the efficacy of 

the Policy in meeting them.’’). That consideration does not 

mean that reasonableness requires the ‘‘least intrusive’’ or 

most ‘‘narrowly tailored’’ means for obtaining information. 

To the contrary, the Supreme Court has repeatedly rejected such suggestions. See, e.g., Earls, 536 U.S. at 837 

(‘‘[T]his Court has repeatedly stated that reasonableness 

under the Fourth Amendment does not require employing 

the least intrusive means, because the logic of such elaborate less-restrictive-alternative arguments could raise insuperable barriers to the exercise of virtually all searchand-seizure powers.’’) (internal quotation marks omitted); 

Vernonia, 515 U.S. at 663 (‘‘We have repeatedly refused to 

declare that only the ‘least intrusive’ search practicable 

can be reasonable under the Fourth Amendment.’’). Nevertheless, the Court has indicated that some consideration of 

the efficacy of the search being implemented—that is, 

some measure of fit between the search and the desired 

objective—is relevant to the reasonableness analysis. The 

NSA activities are targeted to intercept international communications of persons reasonably believed to be members 

or agents of al Qaeda or an affiliated terrorist organization, a limitation which further strongly supports the reasonableness of the searches. 

In sum, the NSA activities are consistent with the 

Fourth Amendment because the warrant requirement does 

not apply in these circumstances, which involve both ‘‘special needs’’ beyond the need for ordinary law enforcement 

and the inherent authority of the President to conduct 

warrantless electronic surveillance to obtain foreign intelligence to protect our Nation from foreign armed attack. 

The touchstone of the Fourth Amendment is reasonableness, and the NSA activities are certainly reasonable, particularly taking into account the nature of the threat the 

Nation faces. 

CONCLUSION

For the foregoing reasons, the President—in light of the 

broad authority to use military force in response to the attacks of September 11th and to prevent further catastrophic attack expressly conferred on the President by the 

Constitution and confirmed and supplemented by Congress 


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in the AUMF—has legal authority to authorize the NSA to 

conduct the signals intelligence activities he has described. 

Those activities are authorized by the Constitution and by 

statute, and they violate neither FISA nor the Fourth 

Amendment. 

DEPARTMENT OF DEFENSE, OFFICE OF THE

UNDER SECRETARY OF DEFENSE (INTELLIGENCE), 

Washington, DC, December 19, 2005. 

Hon. DUNCAN HUNTER, 

Chairman, Committee on Armed Services, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: An NBC Nightly News segment aired on 

December 13th alleging that Department of Defense (DoD) entities 

are collecting information on American peace activists and monitoring protests against the Iraq war. The segment highlighted entries in the Department’s Threat and Local Observation Notice 

(TALON) reporting system. I want to provide you some context not 

otherwise reported in the segment. 

The Department is authorized to conduct an integrated and cooperative counterintelligence (CI) and military law enforcement effort 

that protects its installations, property and people from threats of 

all kinds—both overseas and in the United States. In support of 

this effort, designated DoD organizations report unfiltered information provided by concerned citizens, DoD personnel charged with 

responsibilities for the security of DoD installations (e.g., gate 

guards) or other DoD personnel reporting suspicious activities. 

That information is merged with information from local, state and 

federal law enforcement and other intelligence, security and CI organizations and is used by analysts to assess potential threats to 

DoD interests. 

TALON is the place where DoD initially stores ‘‘dots’’ of information which if validated, might later be connected to avert an attack 

before it occurs. Under existing procedures, a ‘‘dot’’ of information 

that is not validated as threatening must be removed from the 

TALON system in less than 90 days. If the ‘‘dot’’ is validated, the 

information is transferred to law enforcement. 

I have directed that the appropriate CI and military law enforcement organizations within the Department take several actions. A 

thorough review of the TALON reporting system is underway to 

ensure full compliance with DoD directives and U.S. laws. We will 

review those policies and procedures for proper application with respect to receipt and retention of information about U.S. persons. Finally, we will review the TALON database to determine whether 

information has been improperly used or stored in the database. 

I have directed that all Department CI and intelligence personnel receive immediate refresher training concerning the laws, 

policies and procedures that govern the responsibilities for handling information, especially information related to U.S. persons. 

My office is currently engaged in both formal and informal dialogue with members of your staff on this subject. We stand ready 

to answer questions you may have. 


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I have sent a similar letter to the Committee’s Ranking Member, 

the Honorable Ike Skelton. 

Sincerely, 

STEPHEN A. CAMBONE, 

Under Secretary of Defense. 

DEPARTMENT OF DEFENSE, OFFICE OF THE

UNDER SECRETARY OF DEFENSE (INTELLIGENCE), 

Washington, DC, January 27, 2006. 

Hon. DUNCAN HUNTER, 

Chairman, Committee on Armed Services, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: In the Under Secretary of Defense for Intelligence letter of December 19, 2005, Dr. Stephen Cambone provided you some context not otherwise reported in an NBC News 

segment on the Department of Defense (DoD) TALON system. Dr. 

Cambone also advised that we would thoroughly review the 

TALON system. That review is nearly completed. I would like to 

update you on our results: • DoD field commanders highly value the TALON reporting 

program as a source of timely information about possible foreign terrorist threats to their personnel and facilities. 

The TALON reporting system is much like a capability to document information from a ‘‘neighborhood watch’’ program in which 

concerned citizens or DoD personnel report suspicious activities 

they believe may be linked to possible foreign terrorist activities to 

DoD counterintelligence, law enforcement or intelligence organizations. The focus of the effort was on possible foreign terrorist 

threats to the DoD and not on U.S. persons in the United States. 

The information that was reported to DoD security, law enforcement, counterintelligence or intelligence personnel was then briefed 

to local military command officials and laws enforcement as appropriate prior to being sent to the TALON reporting database at the 

Counterintelligence Field Activity (CIFA) for analysis. CIFA’s role 

in the process is to maintain the database and conduct analysis. • TALON reporting has led to a number of investigations. 

Those include terrorism investigations, most often conducted 

under the purview of the Joint Terrorism Task Forces headed 

by FBI, and the reporting has identified other criminal activities. The reporting has also disclosed some patterns that have 

allowed the Department to focus or change security procedures 

in order to deter potential terrorist activities. • Although the TALON reporting system was intended to 

document suspicious incidents possibly linked to foreign terrorist threats to DoD resources, some came to view the system 

as a means to report information about demonstrations and 

anti-base activity that would be of interest to the field commanders from a force protection prospective. A very small percentage of these reports were submitted to the TALON/CORNERSTONE database. • CIFA has removed the TALON reports on demonstrations 

and anti-base activity from the database. The process to remove other reports that are no longer analytically significant 

is ongoing. All TALON reports are now reviewed at CIFA upon 


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receipt to ensure compliance with the TALON reporting criteria. 

• The DoD organizations involved in the TALON reporting 

system were following multiple rule sets regarding the collection and retention of this information. The Department will 

soon issue detailed guidance that clarifies the purpose of the 

database, the rules governing the collection and retention of 

the data and more detailed procedures to be followed. The 

database will then be reviewed again to ensure compliance. 

Dr. Cambone also directed that all Department counterintelligence and intelligence personnel receive immediate refresher 

training concerning the laws, policies and procedures that govern 

the responsibilities for handling information, especially information 

related to U.S. persons. The refresher training is underway and 

should be completed by January 31, 2006. 

This review clearly indicates that TALON is an important and 

valuable tool, and that we have room for improvement. We will 

continue our analysis of findings from this review to determine precisely what we need to do to improve and will provide you with additional information. 

There is nothing more important to the U.S. military than the 

trust and good will of the American people. The DoD values that 

trust and good will and consequently views with the greatest concern any potential violation of the strict DoD policy governing the 

protection of civil liberties. Our new guidance will reflect that concern and protect that trust. 

My office continues to be engaged in formal and informal dialogue with members of your staff on this subject. These discussions 

have been positive and productive. I look forward to an opportunity 

to brief your committee on these complex and overlapping issues. 

I have sent a similar letter to the Committee’s Ranking Member, 

the Honorable Ike Skelton. 

Sincerely, 

ROBERT W. ROGALISKI, 

Deputy Under Secretary of Defense 

(Counterintelligence and Security). 

LEGISLATIVE HISTORY

As noted above, H. Res. 645 was introduced on December 22, 

2005, and referred to the Committee on Armed Services. 

On March 1, 2006, the Committee on Armed Services held a 

mark-up session to consider H. Res. 645. After general discussion 

of the resolution, Ranking Member Skelton offered an amendment 

requesting the President and requiring the Secretary of Defense to 

provide to the House of Representatives classified information on 

the results of the NSA surveillance program. The amendment 

failed on a record vote of 21 ayes to 32 noes. The committee reported adversely the resolution by voice vote, a quorum being 

present. 


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COMMITTEE POSITION

On March 1, 2006, the Committee on Armed Services met in 

open session and reported adversely the resolution H. Res. 645 to 

the House by voice vote, a quorum being present. 

COMMUNICATION FROM ANOTHER COMMITTEE

HOUSE OF REPRESENTATIVES, 

PERMANENT SELECT COMMITTEE ON INTELLIGENCE, 

Washington, DC, February 8, 2006 

Hon. DUNCAN HUNTER, 

Chairman, Committee on Armed Services, 

House of Representatives, Washington, DC 

DEAR MR. CHAIRMAN: As you move forward to markup House 

Resolution 645, the resolution of inquiry offered by Mr. Wexler on 

the Terrorist Surveillance Program (TSP), I want to offer some concerns/considerations. 

The specific techniques and measures employed in this program 

are rightfully and highly classified. In fact, only a handful of Members of Congress are fully read into the details of these precious 

sources and methods. I am vitally concerned that, were the Administration to be forced to comply with the resolution’s requests for 

specific information (logs, memos, telephone and electronic mail 

records, etc.) related to the TSP program, there could be a serious 

compromise of vital national security information and the terrorists 

targeted by this program would be given the warning necessary to 

thwart our intelligence efforts against them. 

There has been a great deal of hue and cry on many fronts about 

the process for overseeing this program, hence this resolution of inquiry. I can assure you, however, that House Leadership and those 

of us on the Intelligence Committee who are properly charged 

under House rules with exclusively overseeing these focused and 

limited Intelligence Community efforts have been fully and currently informed of all aspects of the program. We have been and 

are given ample opportunity to question the process, the operational aspects, and the legality of the program. I see no need for 

directing the President or the Secretary of Defense to produce information that is already properly provided to the Congress. 

Sincerely, 

PETER HOEKSTRA, Chairman 

COMMITTEE COST ESTIMATE

Pursuant to clause 3(d) of rule XIII of the Rules of the House of 

Representatives, the committee estimates the costs of implementing the resolution would be minimal. The Congressional Budget Office did not provide a cost estimate for the resolution. 

OVERSIGHT FINDINGS

With respect to clause 3(c)(1) of rule XIII of the Rules of the 

House of Representatives, the committee reports that the findings 

and recommendations of the committee, based on oversight activities pursuant to clause 2(b)(1) of rule X, are incorporated in the descriptive portions of this report. 


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With respect to clause 3(c)(2) of rule XIII of the Rules of the 

House of Representatives and section 308(a)(1) of the Congressional 

Budget Act of 1974, this legislation does not include any new 

spending or credit authority, nor does it provide for any increase 

or decrease in tax revenues or expenditures. 

With respect to clause 3(c)(4) of rule XIII of the Rules of the 

House of Representatives, performance goals and objectives can not 

be explained, because the resolution does not require any new 

funding. 

CONSTITUTIONAL AUTHORITY STATEMENT

Pursuant to clause 3(d)(1) of rule XIII of the Rules of the House 

of Representatives, the committee finds that the rule does not 

apply because H. Res. 645 is not a bill or joint resolution that may 

be enacted into law. 

RECORD VOTE

In accordance with clause 3(b) of rule XIII of the Rules of the 

House of Representatives, record and voice votes were taken with 

respect to the committee’s consideration of H. Res. 645. 


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