Department Of Justice Defends NSA Foreign Intelligence Program

A legal memo from the Justice Department regarding the NSA intelligence gathering program authorized by President Bush has been leaked to the liberal website Raw Story. You can see all 42 pages of it here (PDF).

An interesting excerpt:

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 conflict–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 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 summary at the beginning of the document (about three pages) is worth a read if you don’t want to wade through the whole thing.

Since this story broke critics of the President have taken to calling him “King George” and implying that his actions are those of an autonomous monarch who doesn’t have to answer to anyone else. Clearly, this isn’t true. As has been pointed out several times before on this blog Congress has always been capable of acting as a “check” on these executive powers being utilized by the President. The proper political leadership in Congress (from both sides of the aisle) has been kept abreast of the program throughout the time it has been used and, had they had an objection to what was being done, they had several options for stopping it. They could have rescinded their post-9/11 authorization for military force or could have modified that authorization to narrow its scope. More obliquely, they could have simply defunded the NSA program.

But they didn’t do either. Congress knew about the program and apparently didn’t feel the need to act. At least, not until the existence of the program was made public by an illegal leak to the media and the Democrats saw an opportunity to pounce.

You can read more from Rob Port at

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