The surprisingly stronger case for the legality of the NSA surveillance program: The FDR precedent

Stanford Law Review

Volumn 60, Issue 4, 2008, Pages 1023-1075

  Katyal, Neal ^a   Caplan, Richard ^b  

^a GEORGETOWN UNIVERSITY LAW CENTER   (United States)

^b NONE

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[No Author keywords available]

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EID: 42449130155     PISSN: 00389765     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (340)

1. As Justice Jackson remarked: A judge, like an executive adviser, may be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of executive power as they actually present themselves. . . . And court decisions are indecisive because of the judicial practice of dealing with the largest questions in the most narrow way.
2. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634-35 (1952) (Jackson, J., concurring).
3. Id. at 610-11 (Frankfurter, J., concurring);
4. see also United States v. Midwest Oil Co., 236 U.S. 459, 469-73 (1915) (looking to executive branch practice to justify the power to withdraw public lands from private acquisition);
5. Deployment of United States Armed Forces into Haiti, 18 Op. Off. Legal Counsel 173, 178 (1994) (citing many examples of presidents using the military without express congressional approval and observing that "[s]uch a pattern of executive conduct, made under claim of right, extended over many decades and engaged in by Presidents of both parties, 'evidences the existence of broad constitutional power.'" (quoting Presidential Power to Use the Armed Forces Abroad Without Statutory Authorization, 4A Op. Off. Legal Counsel 185, 187 (1980)));
6. Randolph D. Moss, Executive Branch Legal Interpretation: A Perspective from the Office of Legal Counsel, 52 ADMIN. L. REV. 1303, 1323-24 (2000) (arguing that executive branch lawyers should look to the conduct of previous presidents in assessing legal questions);
7. H. Jefferson Powell, The President's Authority over Foreign Affairs: An Executive Branch Perspective, 67 GEO. WASH. L. REV. 527, 538 (1999) ("Constitutional practice unaccompanied by express legal argument may also be entitled to precedential weight. . . .").
8. U.S. DEP'T OF JUSTICE, LEGAL AUTHORITIES SUPPORTING THE ACTIVITIES OF THE NATIONAL SECURITY AGENCY DESCRIBED BY THE PRESIDENT 7-8, 16-17 (2006), available at http://news.findlaw. com/hdocs/docs/nsa/dojnsa11906wp.pdf [hereinafter LEGAL AUTHORITIES SUPPORTING NSA ACTIVITIES];
9. Letter from William E. Moschella, Assistant Att'y Gen., U.S. Dep't of Justice, to Senate and Permanent Select Comms. on Intelligence 3 (2005), available at http://www.epic.org/privacy/terrorism/fisa/nsaletter122205. pdf.
10. LEGAL AUTHORITIES SUPPORTING NSA ACTIVITTES, supra note 3, at 7-8 (citations omitted).
11. See Curtis Bradley et al, On NSA Spying: A Letter to Congress, 53 N.Y. REV. BOOKS (2006), available at http://www.nybooks.com/articles/18650 ("It is one thing, however, to say that foreign battlefield capture of enemy combatants is an incident of waging war that Congress intended to authorize. It is another matter entirely to treat unchecked warrantless domestic spying as included in that authorization, especially where an existing statute specifies that other laws are the 'exclusive means' by which electronic surveillance may be conducted and provides that even a declaration of war authorizes such spying only for a fifteen-day emergency period."). This letter was signed by Curtis Bradley, David Cole, Walter Dellinger, Ronald Dworkin, Richard Epstein, Philip B. Heymann, Harold Hongju Koh, Martin Lederman, Beth Nolan, William S. Sessions, Geoffrey Stone, Kathleen Sullivan, Laurence H. Tribe, and William Van Alstyne.
12. 18 U.S.C § 251 1(2)(f) (2000) (stating that the "procedures in this chapter or chapter 121 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").
13. Memorandum from David Kris, former Assistant Deputy Attn'y Gen. 8 (Jan. 25, 2006), available at http://balkin.blogspot.com/kris.fisa.pdf (footnotes omitted).
14. Walter Dellinger, Comments at Conference: The Mukasey Hearings Revisited: Legal Experts Analyze the New Attorney General's Views on National Security and Separation of Power (Nov. 29 2007), available at https://www.law. georgetown.edu/webcast/eventDetail.cfm?eventID=455 (comments at minutes 37:00-38:30).
15. ROBERT H. JACKSON, THAT MAN: AN INSIDER'S PORTRAIT OF FRANKLIN D. ROOSEVELT 68 (John Q. Barrett ed., 2003).
16. See Korematsu v. United States, 323 U.S. 214 (1944).
17. The analysis in this Article draws heavily upon primary sources, including material from the Collection of the Manuscript Division of the Library of Congress and the National Archives. Some of the details of these events have been written about in, for example, JOSEPH E. PÉRSICO, ROOSEVELT'S SECRET WAR 35-36 (2001);
18. RICHARD W. STEELE, FREE SPEECH IN THE GOOD WAR (1999); and Äthan Theoharis, FBI Wiretapping: A Case Study of Bureaucratic Autonomy, 107 POL. SCI. Q. 101 (1992). Unfortunately, these authors do not pull together all the material necessary to discuss the many nuances of this particular story. No analysis has appeared in the law review literature that fully fleshes out the legal and policy nuances raised by the various actors and activities involved, and certainly not one that ties that history to the recent controversy. This Article seeks to set out an objective history that, in so doing, occasionally belies the separate analyses put forward by J. Edgar Hoover and Jackson, published years later.
19. See Foreign Intelligence Surveillance Act of 1978 (FISA), Pub. L. No. 95-511, § 101, 92 Stat. 1783.
20. 50 U.S.C. § 1803(a) (2000).
21. Id.
22. Id. Rather, upon denial of an application by a FISC judge, the government may pursue an appeal in the FISA Court of Review. That court is comprised of three judges, either district judges or circuit judges, appointed by the Chief Justice and having jurisdiction to review the denial of any FISA application. If the Court of Review denies an application, it must transmit a statement of decision to the Supreme Court, which may then review the decision.
23. Id. § 1803(b). Judges on the FISC and the Court of Review serve for a maximum of seven years with no redesignation.
24. Id. § 1803(d).
25. Daniel J. Solove, Reconstructing Electronic Surveillance Law, 72 GEO. WASH. L. REV. 1264, 1289 (2004).
26. 50 U.S.C. § 1804(a) (2000).
27. Id.
28. Id. § 1804(a)(5).
29. Id. § 1801(h).
30. Id. § 1802(a)(1)(A).
31. Id. § 1802(a)(1)(B). A "United States person" is defined to include U.S. citizens, aliens lawfully admitted for permanent residence, corporations incorporated in the United States, and unincorporated associations who have a substantial number of U.S. citizens or lawful permanent resident aliens as members.
32. Id. § 1801(i).
33. Id. § 1802(a)(3).
34. Id. § 1805(f).
35. Id.
36. Id.
37. Id. § 1811.
38. Id. § 1805(c)(1)(A), (B).
39. Id. § 1805(c)(1)(C)-(E). A FISA order may approve surveillance for up to 120 days. If the order is aimed at surveillance of a foreign power, the period may be up to one year. And if the order is aimed at a non-US person, the order may last up to 120 days.
40. Id. § 1805(e)(1).
41. Id. § 1805(c)(2)(B).
42. Id. § 1805(c)(2)(C).
43. Id. § 1807.
44. U.S. DEP'T OF JUSTICE, FISA REPORT TO CONGRESS (2007), available at http://www.fas.org/irp/agency/doj/ fisa/#rept.
45. James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N. Y. TIMES, Dec. 16, 2005, at A1.
46. Press Briefing, Alberto Gonzales, Att'y Gen., and Gen. Michael Hayden, Principal Deputy Dir. for Nat'l Intelligence (Dec. 19, 2005), available at www.whitehouse.gov/news/releases/2005/12/20051219-1.html ("It is probably the most classified program that exists in the United States government. . . .").
47. David Johnston, Bush Intervened in Dispute over N.S.A. Eavesdropping, N.Y. TIMES, Mar. 16, 2007, at A1.
48. Risen & Lichtblau, supra note 34.
49. Id.
50. Id.
51. Id.
52. Id.
53. Neal K. Katyal & Laurence H. Tribe, Waging War, Deciding Guilt: Trying the Military Tribunals, 111 YALE L.J. 1259, 1266 (2002) ("[T]he Constitution sets up a structure whereby the concurrence of all three branches is normally needed in order to authorize a decisive departure from the legal status quo. Certainly, when a president is to take action that puts basic constitutional guarantees at risk, legislative authorization is presumptively required. Nothing in the Constitution, including the Commander-in-Chief Clause, alters this basic constitutional arrangement. Like any precept in constitutional discourse, this presumption may be overcome in circumstances where the President is manifestly unable to consult in a timely way with Congress before decisive action must be taken. But in the absence of an emergency that threatens truly irreparable damage to the nation or its Constitution, that Constitution's text, structure, and logic demand approval by Congress if life, liberty, or property are to be significantly curtailed or abridged.").
54. For example, the Patriot Act changed the language of 50 U.S.C § 1804 to require the government to certify only that foreign intelligence is a "significant purpose" of either a FISA electronic or physical surveillance application. Prior to the Patriot Act, law enforcement was required to show that foreign intelligence was the "primary purpose" of the requested surveillance. See Solove, supra note 16, at 1290-92.
55. The Administration has a technical argument that the AUMF Resolution authorized the surveillance under FISA. It asserts that 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.
56. LEGAL AUTHORITIES SUPPORTING NSA ACTIVITIES, supra note 3, at 2. The government's argument here is quite weak, for reasons detailed by many.
57. See, e.g., Posting of Orin Kerr to The Volokh Conspiracy, http://volokh.com/archives/ archive_2005_12_18-2005_12_24.shtml (Dec. 19, 2005, 4:02 PM) ("[The] AUMF doesn't extend to [the NSA wiretapping program]. I have three reasons. First, O'Connor's opinion [in Hamdi] says the following about detention for interrogation: 'Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized.' It seems to me that surveillance and wiretapping is pretty similar to interrogation: the point of both is getting information about your enemy. Second, it doesn't seem like wiretapping counts as a 'use of force' [according to the text of the AUMF]. Finally, note that Congress passed the Patriot Act about a month after passing the AUMF; if Congress had intended the AUMF to give the [President wide authority to conduct domestic surveillance against al Qaeda, I don't think they would have spent so much time amending FISA for terrorism investigations.");
58. see also Posting of Marty Lederman to Balkanization, http://balkin.blogspot.com/2007/07/whatslegal-significance-of-data-mining.html (July 29, 2007, 7:11 AM) ("[According to the Court in Hamdi,] the AUMF only authorizes conduct that had historically been undertaken by the Preisdent [sic] in wartime. Roosevelt and other Presidents had intercepted overseas telegrams and other international communications; but there was no precedent for interception of wholly do[]mestic communications without court approval. . . . [T]he AUMF itself requires a nexus to those responsible for 9/11 ... . [It requires] that the communications involve at least one person in, or associated with, Al Qaed[a] or related groups.");
59. Meet the Press: John Boehner, Arlen Specter, John Harwood & Ron Brownstein (NBC television broadcast Feb. 5, 2006) (former Judiciary Committee Chairman Sen. Arlen Specter stating that the Administration's AUMF "contention is very strained and unrealistic. The authorization for the use of force doesn't say anything about electronic surveillance, [the] issue was never raised with the Congress. And there is a specific statute on the books, the Foreign Intelligence Surveillance Act, which says flatly that you can't undertake that kind of surveillance without a court order").
60. SAMUEL DASH ET AL., THE EAVESDROPPERS 23 (1959).
61. Brief of Defendant-Appellant at 7, Nardone v. United States (Nardone I), 302 U.S. 379 (1937) (No. 190).
62. FROM THE SECRET FILES OF J. EDGAR HOOVER 2 (Athan Theoharis ed., 1991 ).
63. CHRISTOPHER M. FINAN, FROM THE PALMER RAIDS TO THE PATRIOT ACT: A HISTORY OF THE FIGHT FOR FREE SPEECH IN AMERICA (2007).
64. 2 SELECT COMM. TO STUDY GOVERNMENTAL OPERATIONS, FINAL REPORT OF THE SELECT COMMITTEE TO STUDY GOVERNMENTAL OPERATIONS WITH RESPECT TO INTELLIGENCE ACTIVITIES OF THE UNITED STATES SENATE, S. REP. NO. 94-755, at 23 (1976) [hereinafter CHURCH COMMITTEE REPORT].
65. RICHARD E. MORGAN, DOMESTIC INTELLIGENCE: MONITORING DISSENT IN AMERICA 89 (1980).
66. Olmstead v. United States, 277 U.S. 438 (1928).
67. Katz v. United States, 389 U.S. 347, 353 (1967) ("We conclude that the underpinnings of Olmstead and Goldman have been so eroded by our subsequent decisions that the 'trespass' doctrine there enunciated can no longer be regarded as controlling.").
68. Olmstead, 277 U.S. at 455-56.
69. Id. at 457.
70. Id. at 465.
71. Id. at 465-66.
72. Id. at 479 (Brandeis, J., dissenting) (footnote omitted).
73. Id. at 479 n. 12.
74. Id. at 468 (majority opinion).
75. Editorial, Government Lawbreaking, N.Y. TIMES, June 6, 1928, at 24.
76. In 1929, for example, during the debate over one bill to prohibit wiretapping, the ensuing exchange on the House floor was not dissimilar from that between Justice Brandeis in dissent and Chief Justice Taft for the majority. Representative Schafer called government wiretapping "tyranny equal to that of the most backward medieval despotisms," while Representative McKeown challenged that Schafer was "going to hamstring the officers to prevent them from using means to ferret [criminals] out." 71 CONG. REC. 5968, 5968 (1929).
77. 74 CONG. REC. 2901, 2901-02 (1931).
78. WALTER F. MURPHY, WIRETAPPING ON TRIAL: A CASE STUDY IN THE JUDICIAL PROCESS 128 (1965).
79. 74 CONG. REC. 2901, 2901-06 (1931).
80. Id. at 2905.
81. Id. at 2906.
82. MURPHY, supra note 63, at 129.
83. Id. at 129-30.
84. 75 CONG. REC. 4733 (1932).
85. Brief for the United States at 26, Nardone v. United States (Nardone I), 302 U.S. 379 (1937) (No. 190).
86. Id. at 26-27.
87. Id. at 21.
88. 2 CHURCH COMMITTEE REPORT, supra note 49, at 25. By 1936 Roosevelt's concern expanded to include the activities of Soviet officials and American Communists.
89. See FROM THE SECRET FILES OF J. EDGAR HOOVER, supra note 47, at 180-81.
90. Communications Act of 1934, Pub. L. No. 416, § 605, 48 Stat. 1064.
91. MURPHY, supra note 63, at 133.
92. PERSICO, supra note 11, at 35.
93. Id.
94. ATHAN THEOHARIS, SPYING ON AMERICANS: POLITICAL SURVEILLANCE FROM HOOVER TO THE HUSTON PLAN 67 (1978).
95. Id. at 67-68.
96. FROM THE SECRET FILES OF J. EDGAR HOOVER, supra note 47, at 181.
97. Id.
98. Id. (emphasis omitted).
99. THEOHARIS, supra note 78, at 67.
100. FROM THE SECRET FILES OF J. EDGAR HOOVER, supra note 47, at 182.
101. Id.
102. Id.
103. Id.
104. THEOHARIS, supra note 78, at 68-70.
105. A pre-World War I statute allowed the Attorney General to direct the FBI to conduct investigations on behalf of the State Department; it did not authorize the FBI to act unilaterally. 3 CHURCH COMMITTEE REPORT, supra note 52, at 395.
106. THEOHARIS, supra note 78, at 69.
107. Id. at 70.
108. Id.
109. FROM THE SECRET FILES OF J. EDGAR HOOVER, supra note 47, at 182.
110. Id. at 182-83.
111. THEOHARIS, supra note 78, at 70.
112. 2 CHURCH COMMITTEE REPORT, supra note 49, at 25 n. 10.
113. Transcript of Record at 2-3, Nardone v. United States (Nardone I), 302 U.S. 379 (1937) (No. 190).
114. Id. at 57.
115. Id.
116. Id.
117. Id. at 58.
118. Id.
119. Smith v. United States, 91 F.2d 556, 557 (D.C Cir. 1937).
120. United States v. Nardone (Nardone I), 90 F.2d 630 (2d Cir. 1937), rev'd 302 U.S. 379 (1937).
121. Id. at 631.
122. Id. at 632.
123. Id.
124. Id.
125. Petition for Writ of Certiorari at 7, Nardone I, 302 U.S. 379 (No. 190).
126. Brief on Behalf of Appellant, Robert Gottfried at 6, Nardone I, 302 U.S. 379 (No. 190).
127. Brief for the United States, supra note 70, at 13-14.
128. Brief for the United States in Opposition at 7-8, Nardone I, 302 U.S. 379 (No. 190).
129. Brief for the United States, supra note 70, at 34-35 (internal quotation marks omitted).
130. Id. at 31.
131. Nardone I, 302 U.S. at 382.
132. Id. at 384.
133. High Court Bars Testimony Based on Wire-Tapping, N.Y. TIMES, Dec. 21, 1937, at Al. A subheadline in the paper stated that the Olmstead decision was reversed, which is not accurate.
134. See Margaret Lybolt Rosenzweig, The Law of Wire Tapping, 32 CORNELL L.Q. 514, 536 (1947).
135. The New York Times article itself offers a more nuanced and accurate statement that the Court, "in effect, reversed its attitude of nine years ago." High Court Bars Testimony Based on Wire-Tapping, supra.
136. Youngstown Sheet & Tube Co. v. Sawyer, 103 F. Supp. 978 (D.D.C. 1952).
137. FROM THE SECRET FILES OF J. EDGAR HOOVER, supra note 47, at 133.
138. Id.
139. Id.
140. SELECTED PAPERS OF HOMER CUMMINGS 251 (Carl Brent Swisher ed., 1939).
141. Memorandum from Gordon Dean to Robert H. Jackson, Att'y Gen. 3 (Mar. 22, 1940) (on file with Library of Congress, Robert H. Jackson Papers, Box 94, Folder 8)
142. Id. at 4.
143. Id. at 6 (reporting on January meetings).
144. Id. at 7.
145. Id. at 7-8.
146. Id. at 8.
147. Memorandum from Robert H. Jackson, Solicitor Gen., to Alexander Holtzoff, Assistant to the Attn'y Gen. (Mar. 17, 1938) (on file with Library of Congress, Robert H. Jackson files, Box 94, Folder 9).
148. See infra text accompanying notes 196-255.
149. S. REP. NO. 75-1790, at 3 (1938).
150. Id.
151. H.R. REP. NO. 75-2656, at 4 (1938).
152. MURPHY, supra note 63, at 135.
153. THEOHARIS, supra note 78, at 70.
154. 2 CHURCH COMMITTEE REPORT, supra note 49, at 25-26.
155. Id. at 26.
156. Id.
157. THEOHARIS, supra note 78, at 73.
158. 2 CHURCH COMMITTEE REPORT, supra note 49, at 27.
159. Id.
160. THEOHARIS, supra note 78, at 74-75. Interpretation and misinterpretation of the September 1939 FDR memo would continue for decades.
161. Id. at 66-67.
162. PERSICO, supra note 11, at 16.
163. Notice of Motion, Affidavit and Brief for Defendants-Appellants at 4, 7-8, United States v. Nardone (Nardone II), 308 U.S. 338 (1939) (No. 240).
164. United States v. Nardone, 307 U.S. 614 (1939).
165. Unites States v. Nardone (Nardone II), 106 F. 2d 41, 43-44 (2d Cir. 1939).
166. Id.
167. Id. at 44.
168. United States v. Nardone, 308 U.S. 539 (1939).
169. Brief for the United States at 17, Nardone v. United States (Nardone II), 308 U.S. 338 (1939) (No. 240).
170. Brief on Behalf of Petitioner Nardone at 16, Nardone II, 308 U.S. 338 (No. 240).
171. Nardone II, 308 U.S. 338.
172. On the same day as Nardone II, the Court also decided Weiss v. United States, 308 U.S. 321 (1939), holding that the Communications Act applied to intrastate communications as well as interstate communications. Thus, the Court closed off yet another possible avenue of wiretapping by the government.
173. Nardone II, 308 U.S. at 340.
174. Id. at 341.
175. Id. at 340;
176. see also id. at 341 ("[T]he knowledge gained by the Government's own wrong cannot be used by it simply because it is used derivatively.").
177. Ironically, although the Nardone cases held that Congress prohibited government wiretapping, the defendants ultimately went to jail because enough evidence could be introduced to establish guilt without any information from wiretaps. The court felt the government "had purged itself of its unlawful conduct." United States v. Nardone, 127 F.2d 521, 523 (2d Cir. 1942),
178. cert. denied 316 U.S. 698 (June 1, 1942).
179. Letter from Att'y Gen. Frank Murphy to Caroline Parker, Bentley Historical Library, Univ. of Mich. (Dec. 11, 1939) (on file with Library of Congress, The Frank Murphy Papers on Microfilm).
180. High Court Widens Wiretapping Ban: Bars Indirect Use, N.Y. TIMES, Dec. 12, 1939, at A1.
181. S. REP. NO. 76-1304 (1940);
182. see also undated, unnumbered version on file with Library of Congress, Robert H. Jackson Papers, Box 94, Folder 8.
183. Memorandum from J. Edgar Hoover, FBI Dir., to Robert H. Jackon, Att'y Gen. (Mar. 13, 1940) (on file with Library of Congress, Robert H. Jackson Papers, Box 94, Folder 6) ("Pursuant to our discussion this morning . . . ."). The same day Hoover wrote Jackson to let him know he thought wiretapping should only be done if "outstanding lawyers, with liberal reputations, were consulted as to the type of legislation to be drafted." Memorandum from J. Edgar Hoover, FBI Dir., to Robert H. Jackson, Att'y Gen. (Mar. 13, 1940) (second letter dated the same day, on file with Library of Congress, Robert H. Jackson Papers, Box 94, Folder 6).
184. "For Immediate Release [draft]," "For Release [Mar. 15, 1940]," and "For Release: Monday Morning Papers" (Mar. 18, 1940) (on file with Library of Congress, Robert H. Jackson Papers, Box 94, Folder 6).
185. "For Immediate Release [draft]," supra note 161.
186. "For Release [Mar. 15, 1940]," supra note 161, at 3.
187. Id.
188. Id.
189. (quoting Nardone v. United States (Nardone II), 308 U.S. 338, 340 (1939)).
190. "For Release: Monday Morning Papers," supra note 161, at 2.
191. Id. at 4.
192. Justice Department Bans Wire Tapping; Jackson Acts on Hoover Recommendation, N.Y. TIMES, Mar. 18, 1940, at A1.
193. Memorandum from Gordon Dean to Robert H. Jackson, Att'y Gen. 8 (Mar. 22, 1940) (on file with Library of Congress, Robert H. Jackson Papers, Box 94, Folder 8).
194. Letter from Gordon Dean to Robert H. Jackson, Att'y Gen. (Mar. 23, 1940) (on file with Library of Congress, Robert H. Jackson Papers, Box 94, Folder 6).
195. Memorandum from J. Edgar Hoover, FBI Dir., to Robert H. Jackson, Att'y Gen. 1 (Apr. 13, 1940) (on file with Library of Congress, Robert H. Jackson Papers, Box 94, Folder 8).
196. Id. at 1, 3.
197. Memorandum from J. Edgar Hoover, FBI Dir., to Robert H. Jackson, Att'y Gen. 2 (May 15, 1940) (on file with Library of Congress, Robert H. Jackson Papers, Box 94, Folder 9).
198. CURT GENTRY, J. EDGAR HOOVER: THE MAN AND THE SECRETS 231 (1991).
199. PERSICO, supra note 11, at 35.
200. Id.
201. Id.
202. FRANCIS BIDDLE, IN BRIEF AUTHORITY 167 (1967).
203. DON WHITEHEAD, THE FBI STORY: A REPORT TO THE PEOPLE 179 (1956).
204. Memorandum from FDR to Robert H. Jackson, Att'y Gen. (May 21, 1940) (on file with Library of Congress, Robert H. Jackson Papers, Box 94, Folder 6).
205. Communications Act of 1934, Pub. L. No. 416, § 605, 48 Stat. 1064.
206. Nardone v. United States (Nardone I), 302 U.S. 379, 382 (1937) (emphasis added).
207. See id. at 384 ("For years controversy has raged with respect to the morality of the practice of wire-tapping by officers to obtain evidence. It has been the view of many that the practice involves a grave wrong. In the light of these circumstances we think another well recognized principle leads to the application of the statute as it is written so as to include within its sweep federal officers as well as others. That principle is that the sovereign is embraced by general words of a statute intended to prevent injury and wrong." (footnote omitted)).
208. Nardone v. United States (Nardone II), 308 U.S. 338, 340 (1939).
209. JACKSON, supra note 9, at 68-69.
210. FROM THE SECRET FILES OF J. EDGAR HOOVER, supra note 47, at 134.
211. Theoharis, supra note 11, at 105.
212. Id.
213. JACKSON, supra note 9, at 69.
214. Id. at 48.
215. United States v. Polakoff, 112 F.2d 888, 889 (2d Cir. 1940).
216. H.R.J. Res. 571, 76th Cong. (1940).
217. Letter from Robert H. Jackson, Att'y Gen., to John L. Lewis, Cong, of Indus. Orgs. (June 19, 1940) (on file with Library of Congress, Robert H. Jackson Papers, Folder 8).
218. Id.
219. Memorandum from Robert H. Jackson, Att'y Gen., to Alexander Holtzoff, Assistant to the Attn'y Gen. (Dec. 12, 1940) (on file with Library of Congress, Robert H. Jackson Papers, Box 94, Folder 8).
220. To Authorize Wire Tapping: Hearings on H.R. 2266 and H.R. 3099 Before Subcomm. No. 1 of the H. Comm. on the Judiciary, 77th Cong. 17 (1941) [hereinafter Hearings] (letter from Robert H. Jackson, Att'y Gen., to Hatton W. Sumners, Chairman, Comm. on the Judiciary, House of Representatives (Feb. 10, 1941)).
221. Id.
222. Id. at 7 (statement of Alexander Holtzoff, Special Assistant to the Att'y Gen., Dep't Justice).
223. Id. at 9.
224. H.R. REP. NO. 75-2656, at 2 (1938);
225. see also S. REP. NO. 75-1790, at 3 (1938).
226. Memorandum from Alexander Holtzoff, Assistant to the Att'y Gen., to Robert H. Jackson, Att'y Gen. (Jan. 17, 1941) (on file with Library of Congress, Robert H. Jackson Papers, Box 94, Folder 8).
227. Hearings, supra note 196, at 9 (statement of Alexander Holtzoff, Special Assistant to the Att'y Gen. ).
228. Memorandum from Alexander Holtzoff, Assistant to the Att'y Gen., to Robert H. Jackon, Att'y Gen. (Feb. 15, 1941)
229. (attaching Wire-Tapping Safeguards, EVENING STAR, Feb. 14, 1941) (on file with Library of Congress, Robert H. Jackson Papers, Box. 94, Folder 8).
230. Hearings, supra note 196, at 18-20 (letter from Robert H. Jackson, Att'y Gen., to Hatton W. Sumners, Chairman, Comm. on the Judiciary, House of Representatives. (Feb. 10, 1941)).
231. Id. at 21 (statement of Sam Hobbs, House of Representatives).
232. Id. at 257 (letter from FDR to Thomas Eliot, House of Representatives (Feb. 21, 1941)).
233. Id.
234. ROOSEVELT AND FRANKFURTER: THEIR CORRESPONDENCE 1928-1945, at 582 (Max Freedmaned., 1967).
235. Hearings, supra note 196, at 8 (statement of Alexander Holtzoff, Special Assistant to the Att'y Gen.).
236. Letter from Robert H. Jackson, Att'y Gen., to Philip Murray, President, Cong. of Indus. Orgs. (Feb. 20, 1941) (on file with Library of Congress, Robert H. Jackson Papers, Box 94, Folder 8).
237. Letter from Reverend Owen A. Knox, Chairman, Nat'l Fed'n for Constitutional Liberties, to Robert H. Jackson, Att'y Gen. (Feb. 24, 1941) (on file with Library of Congress, Robert H. Jackson Papers, Box 94, Folder 8).
238. Letter from Robert H. Jackson, Att'y Gen., to Reverend Owen A. Knox, Chairman, Nat'l Fed'n for Constitutional Liberties (Mar. 3, 1941) (on file with Library of Congress, Robert H. Jackson Papers, Box 94, Folder 8).
239. High Court Bars Testimony Based on Wire-Tapping, supra note 117.
240. Hearings, supra note 196, at 18 (letter from Robert H. Jackson, Att'y Gen., to Hatton W. Sumners, Chairman, Comm. on the Judiciary, House of Representatives (Mar. 19, 1941)).
241. Id. at 19.
242. Id.
243. MORGAN, supra note 50, at 35.
244. Memorandum from Alexander Holtzoff, Dep't of Justice, to the Att'y Gen. (Mar. 21, 1941) (on file with Library of Congress, Robert H. Jackson Papers, Box 94, Folder 8).
245. Minutes of the Committee on the Judiciary, House of Representatives, 77th Congress, 1st Sess. (Mar. 17, 1941) (on file with the National Archives).
246. Id.
247. Minutes of the Committee on the Judiciary, House of Representatives, 77th Cong., 1st Sess. (March 25,1941) (on file with the National Archives).
248. Id.
249. Id.
250. Id.
251. JACKSON, supra note 9, at 69.
252. The House Judiciary Committee reported favorably on the latest wiretapping bill on April 1, 1941. Memorandum from Alexander Holtzoff, Assistant to the Attn'y Gen., to Robert H. Jackson, Att'y Gen. (Apr. 2, 1941) (on file with Library of Congress, Robert H. Jackson Papers, Box 94, Folder 8).
253. FROM THE SECRET FILES OF J. EDGAR HOOVER, supra note 47, at 187-93.
254. Memorandum from John Edgar Hoover, Dir., Fed. Bureau of Investigation, to the Att'y Gen. (Apr. 26, 1941) (on file with Library of Congress, Robert H. Jackson Papers, Box 94, Folder 11).
255. Id.
256. Memorandum from Robert H. Jackson, Att'y Gen., to FDR (Apr. 29, 1941) (on file with Library of Congress, Robert H. Jackson Papers, Box 94, Folder 11).
257. Id.
258. Id.
259. Id.
260. See FBI WIRETAPS, BUGS, AND BREAK-INS: THE NATIONAL SECURITY ELECTRONIC SURVEILLANCE CARD FILE AND THE SURREPTITIOUS ENTRIES FILE (Univ. Publ'ns of Am., Athan Theoharis ed., 1988) (microform collection).
261. Theoharis, supra note 11, at 107.
262. Id. at 108-09.
263. Id. at 109.
264. Id. at 110.
265. See FROM THE SECRET FILES OF J. EDGAR HOOVER, supra note 47, at 4.
266. Theoharis, supra note 11, at 111.
267. Letter from Robert H. Jackson, Att'y Gen., to A.J. Sabath, Chairman, Rules Comm., House of Representatives (May 14, 1941) (on file with Library of Congress, Robert H. Jackson Papers, Box 94, Folder 8).
268. Letter from Robert H. Jackson, Att'y Gen., to John W. Coffee, House of Representatives (May 15, 1941) (on file with Library of Congress, Robert H. Jackson Papers, Box 94, Folder 8).
269. Memorandum from Robert H. Jackson, Att'y Gen., to Robert Patterson, Undersec'y of War, and J.J. McCloy, Assistant Sec'y of War (Apr. 30, 1941) (on file with Library of Congress, Robert H. Jackson Papers, Box 94, Folder 11).
270. Letter from J.J. McCloy, Assistant Sec'y of War, to Robert H. Jackson. Att'y Gen. (May 6, 1941) (on file with Library of Congress, Robert H. Jackson Papers, Box 94, Folder 11).
271. Letter from Robert H. Jackson, Att'y Gen., to the Sec'y of the Navy (May 13, 1941) (on file with Library of Congress, Robert H. Jackson Papers, Box 94, Folder 9).
272. Letter from Robert H. Jackson, Att'y Gen., to J.J. McCloy, Assistant Sec'y of War (May 16, 1941) (on file with Library of Congress, Robert H. Jackson Papers, Box 94, Folder 11) ("Meanwhile, resort to means outside the law would certainly prejudice our chance to get the many improvements in the law which I am seeking.").
273. Id.
274. Letter from J.J. McCloy, Assistant Sec'y of War, to Robert H. Jackson, Att'y Gen. (May 19, 1941) (on file with Library of Congress, Robert H. Jackson Papers, Box 94, Folder 11).
275. Id.
276. 2 CHURCH COMMITTEE REPORT, supra note 49, at 27 n.20.
277. NORMAN M. LITTELL, MY ROOSEVELT YEARS 39 n.2 (1987).
278. David M. Helfeld, A Study of Justice Department Policies on Wire Tapping, 9 LAW. GUILD REV. 57, 63 (1949).
279. Memorandum from NHF to Robert H. Jackson, Att'y Gen (June 30, 1941) (on file with Library of Congress, Robert H. Jackson Papers, Box 94, Folder 8).
280. STEELE, supra note 11, at 93.
281. Id. at 98.
282. See id. at 112.
283. Biddle Approves FBI Wiretapping, N.Y. TIMES, Oct. 9, 1941, at 4.
284. See LITTELL, supra note 251, at 39-40.
285. Id. at 40.
286. Id. at 44 (footnote omitted). Hoover's lament diverged from his actual policy of extensively wiretapping individuals and organizations which he believed threatened the national security, ranging from right-wing to left-wing activists.
287. Helfeld, supra note 252, at 63.
288. Pub. L. No. 90-351, 82 Stat. 197.
289. THEOHARIS, supra note 78, at 99-100.
290. Id. at 99.
291. See OVID DEMARIS, THE DIRECTOR: AN ORAL BIOGRAPHY OF J. EDGAR HOOVER 127 (1975).
292. THEOHARIS, supra note 78, at 99-100.
293. Id. at 100.
294. DAVID WISE, THE AMERICAN POLICE STATE: THE GOVERNMENT AGAINST THE PEOPLE 99 (1976).
295. FRANK J. DONNER, THE AGE OF SURVEILLANCE: THE AIMS AND METHODS OF AMERICA'S POLITICAL INTELLIGENCE SYSTEM 244 (1980).
296. THEOHARIS, supra note 78, at 103-04.
297. MORGAN, supra note 50, at 90.
298. Philip Shenon, Inspector General at the Justice Dept. Is Investigating Gonzales's Testimony, N.Y. TIMES, Aug. 31, 2007, at A17. Mr. Gonzales did not say he was resigning because of this issue.
299. See JACKSON, supra note 9, at 69.
300. One district court decision declared the program illegal, but that decision was reversed on appeal. ACLU v. Nat'l Sec. Agency, 438 F. Supp. 2d 754 (E.D. Mich. 2006),
301. rev'd, 493 F.3d 644 (6th Cir. 2007). In a second development, due to a new FISA Court decision, Congress recently approved a temporary six-month legislative fix that would permit some sort of continued NSA program. Protect America Act of 2007, Pub. L. No. 110-55, 21 Stat. 552. The fact that Congress, particularly a Congress of the opposite political party of the President, gave the President these powers is some further evidence that internal separation of powers, instead of external ones, will be a necessary check on government power.
302. George Will, Editorial, Law and Disorder in Washington, CHI. SUN-TIMES, Feb. 16, 2006, at 37.
303. 1 HORACE GREELEY, THE AMERICAN CONFLICT 106 (Chicago, O.D. Case & Co. 1866) (emphasis omitted) (attributing remark to Andrew Jackson).
304. The events are considerably more complicated than this brief description, involving a late-night hospital visit from these White House officials to John Ashcroft, who was ordinarily Attorney General but suffering from a serious illness at the time. Interested readers should consult Preserving Prosecutorial Independence: Is the Department of Justice Politicizing the Hiring and Firing of U.S. Attorneys?- Part IV: Hearing of the S. Comm. on the Judiciary, 110th Cong. 2 (2007) (statement of James B. Comey, former Deputy U.S. Att'y Gen.).
305. See supra note 1.
306. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 652 (1952) (Jackson, J., concurring).
307. See id. at 610-11 (Frankfurter, J., concurring);
308. supra note 2 and accompanying text.
309. Neal Kumar Katyal, Comment, The Supreme Court, 2005 Term - Hamdan v. Rumsfeld: The Legal Academy Goes to Practice, 120 HARV. L. REV. 65, 69 n.16 (2006) ("[A] chief normative reason for the unitary executive is to avoid blurred lines of political accountability, not to
310. Peter Irons, Politics and Principle: An Assessment of the Roosevelt Record on Civil Rights and Liberties, 59 WASH. L. REV. 693, 693 (1984). Irons discusses, inter alia, the prosecution of the Trotskyites under the Smith Act, a prosecution that even Attorney General Biddle later lamented as overblown and unnecessary.
311. See id. at 716.
312. However, this inference is not inexorable. Sometimes legislation fails because, for example, it is redundant with existing powers.
313. See generally United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938);
314. JOHN HART ELY, DEMOCRACY AND DISTRUST (1980).
315. Acceding to Lincoln's request, the 37th Congress passed a statute stating that it "hereby approved and in all respects legalized and made valid" the previous unilateral acts done by the President "as if they had been issued and done under the previous express authority and direction of the Congress of the United States." Act of Aug. 6, 1861, ch. 63, 12 Stat. 326.
316. Katyal & Tribe, supra note 42, at 1276 & n.66 ("However perilous the times, the fact is that Congress has responded expeditiously. It is functioning with much more than all deliberate speed. In record time, it considered and enacted a broad array of laws, many of them in almost precisely the form sought by the President." (footnote citing a number of such laws omitted)).
317. A greater difficulty is posed by the fact that sometimes Congressional debate, or an executive branch request for legislation to authorize a practice, may inadvertently disclose a source or method that can help the enemy. Because the American tradition rebels at secret laws, the argument here bumps up against a considerable practice of openness. But one can envision circumstances in which an open debate, or even a closed one with a leak from a politician, can undermine national security. With the NSA program, of course, such a claim appears fairly dubious. The idea that al Qaeda thought they could talk without fear of surveillance is wildly implausible, particularly since FISA itself would permit such surveillance in an extremely broad range of circumstances.
318. THE FEDERALIST NO. 51, at 322 (James Madison) (Clinton Rossiter ed., 1961);
319. see also THE FEDERALIST NO. 48, at 310 (James Madison) (Clinton Rossiter ed., 1961) ("The legislative department derives a superiority in our governments from other circumstances.").
320. NEAL KATYAL, THE IDEAL OF LAW (forthcoming). For example, as Senator Max Baucus recently put it: "In effect, the [Supreme Court] was standing up for all of us as Americans, protecting our rights against Presidents who want to have their way, which Presidents want to do after they are in power after several years."
321. CONG. REC. S8409, S8410 (daily ed. July 18, 2005) (statement of Sen. Baucus)
322. (citing United States v. Nixon, 418 U.S. 683 (1974);
323. Brown v. Bd. of Educ., 347 U.S. 483 (1954);
324. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952); and other cases).
325. U.S. CONST. art. I, § 7.
326. Derek Jinks & Neal Kumar Katyal, Disregarding Foreign Relations Law, 116 YALE L.J. 1230, 1255 (2007) ("[Vjeto power functions ex ante as a disincentive even to begin the legislative reform process, as Senators are likely to spend their resources and time on projects that are likely to pass." (footnote omitted)).
327. THE FEDERALIST NO. 51 (James Madison), supra note 288, at 322.
328. James Madison, Political Observations, reprinted in IV LETTERS AND OTHER WRITINGS OF JAMES MADISON 491-92 (Phil., J.B. Lippincott & Co. 1865).
329. Just as with Jackson and Goldsmith, Justice Department lawyers stood up to the Secretary of War in the early 1940s when he proposed interning Japanese Americans. They contended that the internment was unconstitutional, but were unsuccessful. The War Department succeeded in persuading Attorney General Biddle himself to adopt the detention scheme. "When Biddle announced his agreement with the War Department, his two assistants at the meeting, Edward J. Ennis and James H. Rowe, Jr., were devastated. 'Ennis almost wept,' Rowe later said. 'I was so mad that I could not speak at all myself . . . [.]'" Irons, supra note 282, at 718 n. 126. Later, during the briefing in Korematsu, Justice Department lawyers again tried to indicate to the Court that some of the '"military necessity' rationalefs]" being advanced were overblown and possibly incorrect. They drafted a footnote for the brief, but after the War Department intervened, the Solicitor General ordered the printing presses stopped and a new brief printed that lacked the footnote's text.
330. Id. at 720.
331. Neal Kumar Katyal, Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within, 115 YALE L.J. 2314 (2006).
332. See id. at 2324-27 (describing bureaucratic friction model).
333. See id. at 2328-42 (describing internal agency reforms).
334. Id. at 2328-31.
335. See id. at 2328-31 (describing foreign service model and "dissent channel").
336. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634 (1952) (Jackson, J., concurring).
337. Id. at 638 n.4.
338. Id. at 646.
339. Id. at 654.
340. Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2798 (2006) (concluding words of opinion, that "in undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction").