It came from beneath the twilight zone: Wiretapping and article II imperialism

Texas Law Review

Volumn 88, Issue 7, 2010, Pages 1401-1434

  Kitrosser, Heidi ^a  

^a UNIVERSITY OF MINNESOTA LAW SCHOOL   (United States)

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EID: 78649342465     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (290)

1. See, e.g., David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb-A Constitutional History, 121 HARV. L. REV. 941, 1027 (2008) [hereinafter Barron & Lederman II] (invoking the term "presidential exclusivity" to describe this school of thought)
2. David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb-Framing the Problem, Doctrine, and Original Understanding, 121 HARV. L. REV. 689, 694 (2008) [hereinafter Barron & Lederman I] (describing exclusivist reasoning).
3. 343 U.S. 579, 634 (1952) (Jackson, J., concurring).
4. Id. at 637.
5. Id. at 635.
6. Id. at 637.
7. U.S. CONST. art. II, § 1, cl. 1; see also, e.g., Gary Lawson, What Lurks Beneath: NSA Surveillance and Executive Power, 88 B.U. L. REV. 375, 376, 381-84, 389-93 (2008) (presenting the exclusivist component of his Vesting Clause argument tentatively, explaining that he offers only "a few tentative words on the subject").
8. See, e.g., U.S. DEP'T OF JUSTICE, LEGAL AUTHORITIES SUPPORTING THE ACTIVITIES OF THE NATIONAL SECURITY AGENCY DESCRIBED BY THE PRESIDENT 6-7, 29-35 (2006) [hereinafter DOJ WHITEPAPER] (positing an exclusivist argument by reference to the Commander in Chief Clause)
9. JOHN YOO, WAR BY OTHER MEANS 103, 114, 119-22 (2006) (describing justifications for wartime exclusivity grounded partly in the Commander in Chief clause). of course, the Commander in Chief argument is not exclusive of the Vesting Clause argument.
10. See, e.g., Lawson, supra note 6, at 384 ("[A]lthough the [DOJWHITEPAPER] does not articulate the Vesting Clause thesis with clarity, it seems clear that the Vesting Clause thesis lurks beneath the argument and provides it with substance.")
11. YOO, supra, at 103 (combining Vesting Clause and Commander in Chief arguments).
12. See, e.g., YOO, supra note 7, at 119-21 (citing Hamilton's views in the Federalist Papers to support his argument that the President's discretion to use military powers in national emergencies must not be limited by Congress).
13. Minority Report, in REPORT OF THE CONGRESSIONAL COMMITTEES INVESTIGATING THE IRAN-CONTRA AFFAIR, H.R. REP. NO. 100-433, S. REP. NO. 100-216, at 460 (1987) [hereinafter Minority Report] (quoting THE FEDERALIST NO. 70, at 424 (Alexander Hamilton) (Clinton Rossiter ed., 1961)).
14. See, e.g., id. (citing Federalist No. 70 to argue that the Constitution gives the President- who is "more energetic" and more politically accountable-control over national security and foreign policy)
15. YOO, supra note 7, at 120-21 (citing Federalist No. 70 to argue that the presidential power to protect the nation "ought to exist without limitation").
16. See, e.g., DOJ WHITEPAPER, supra note 7, at 6-8 (chronicling uses of warrantless searches and surveillance under Presidents Roosevelt, Truman, and Johnson).
17. See, e.g., Letter from Curtis A. Bradley et al., to Members of Congress 5-6 (Feb. 2, 2006) [hereinafter Law Professors Letter] (arguing that the long wiretapping history cited by the Bush Administration is irrelevant to current debates because that history predated statutory regulation of wiretapping).
18. Michael Stokes Paulsen, The War Power, 33 HARV. J.L. & PUB. POL'Y 113, 120 (2010).
19. See Lawrence B. Solum, Semantic Originalism 69 (Ill. Coll. of Law, Working Paper No. 07-24, 2008), available at http://papers.ssrn.com/abstract= 1120244 (positing that "constitutional construction operates after interpretation yields semantic content that is vague, ambiguous, or contains gaps or contradictions").
20. See id. at 59 (explaining that "individual words and phrases that comprise the constitution could have different meanings if they were uttered in different contexts")
21. cf. Jack M. Balkin, Original Meaning and Constitutional Redemption, 24 CONST. COMMENT. 427, 433 (2007) ("If the original meaning of the text requires 'equal protection,' then we enforce equal protection today because the text continues to require it &mellip; . How we apply the principles of equal protection, however, may well be different from what people expected in 1868 based in part on our contemporary understandings.").
22. Minority Report, supra note 9, at 460.
23. I have made this point extensively in the context of the President's capacity to keep secrets.
24. See, e.g., Heidi Kitrosser, Classified Information Leaks and Free Speech, 2008 U. ILL. L. REV. 881, 896-926.
25. I also make this point with respect to the President's capacities more generally in Heidi Kitrosser, "Macro-Transparency" as Structural Directive: A Look at the NSA Surveillance Controversy, 91 MINN. L. REV. 1163, 1167-73 (2007).
26. See infra subpart II(A).
27. See John Yoo, The Terrorist Surveillance Program and the Constitution, 14 GEO. MASON L. REV. 565, 565 (2007) (noting that both academic and political critics claim that TSP violates FISA).
28. DOJWHITEPAPER, supra note 7, at 7-8, 16-17.
29. YOO, supra note 7, at 114-15.
30. THE FEDERALIST NO. 48, at 308 (James Madison) (Clinton Rossiter ed., 1961).
31. See infra subpart II(B).
32. See infra notes 74-76, 137-41 and accompanying text.
33. See infra note 147 and accompanying text.
34. See infra subpart III(B).
35. See infra subpart IV(A).
36. See infra subpart IV(B).
37. See infra subparts II, IV(B).
38. James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. TIMES, Dec. 16, 2005, at A1.
39. Id.; OFFICE OF THE INSPECTOR GEN. OF THE DEP'T OF DEFENSE ET AL., REPORT NO. 2009- 0113-AS, (U) UNCLASSIFIED REPORT ON THE PRESIDENT'S SURVEILLANCE PROGRAM 1 (2009) [hereinafter DOD REPORT], available at http://www.fas.org/irp/ eprint/psp.pdf.
40. See, e.g., Law Professors Letter, supra note 12, at 2-9 (explaining that the TSP violates FISA and that the Commander in Chief Clause does not authorize the violation).
41. See DOJ WHITEPAPER, supra note 7, at 2-3 (deeming the AUMF statutory wiretapping authorization as contemplated by FISA).
42. Id. at 35.
43. Id. at 3, 35.
44. Id. at 3, 28-35.
45. Id. at 7
46. see also id. at 7-8, 16-17 (recounting practices of Roosevelt and subsequent presidents authorizing both wartime and peacetime wiretapping)
47. YOO, supra note 7, at 114-15 (contending that, until the enactment of FISA, presidents since FDR had authorized peacetime domestic wiretapping)
48. Neal Katyal & Richard Caplan, The Surprisingly Stronger Case for the Legality of the NSA Surveillance Program: The FDR Precedent, 60 STAN. L. REV. 1023, 1025 (2008) (describing the Bush Administration's defense of TSP through historical precedents).
49. See Law Professor Letter, supra note 12, at 5-6 (deeming the precedents cited by the Bush Administration irrelevant because they predated FISA)
50. see also Katyal & Caplan, supra note 37, at 1025-27 (recounting the view of TSP opponents that the historical precedent cited by the Bush Administration does not support the Administration's actions).
51. Nardone v. United States (Nardone I), 302 U.S. 379 (1937).
52. Nardone v. United States (Nardone II), 308 U.S. 338 (1939).
53. See Yoo, supra note 19, at 588 & n.164 (stating that FDR ordered surveillance even though the Supreme Court decision of Nardone I interpreted section 605 of the Federal Communications Act of 1934 to prohibit electronic surveillance).
54. YOO, supra note 7, at 114-15.
55. Katyal & Caplan, supra note 37, at 1024, 1027-29.
56. DOD REPORT, supra note 31, at 11. For some background on Professor Yoo's involvement with the TSP, see, for example, id. at 10-14.
57. YOO, supra note 7, at 114.
58. Id. at 121, 114-15.
59. Id. at 119.
60. Minority Report, supra note 9, at 431.
61. See Jane Mayer, The Hidden Power: A Secret Architect of the War on Terror, NEW YORKER, July 3, 2006, at 44, 49 (stating that Addington "contributed legal research" to the Minority Report)
62. Chitra Ragavan, Cheney's Guy, U.S. NEWS AND WORLD REPORT, May 29, 2006, at 32, 35 (noting that Addington "helped write" the Minority Report).
63. FREDERICK A.O. SCHWARZ JR. & AZIZ Z. HUQ, UNCHECKED AND UNBALANCED: PRESIDENTIAL POWER IN A TIME OF TERROR 154-55, 159-60, 200 (2008) (quoting Vice President Dick Cheney, Remarks to the Traveling Press (Dec. 20, 2005), http://georgewbushwhitehouse. archives.gov/news/releases/2005/12/20051220-9. html).
64. See Minority Report, supra note 9, at 450-51 (arguing, for example, that the Boland Amendment was "clearly unconstitutional" to the extent that it prohibited the President or his agents from engaging in diplomatic communications with whatever countries he wished).
65. Id. at 460 (quoting THE FEDERALIST NO.70 (Alexander Hamilton)).
66. Id.
67. Id.
68. Id. at 463-69.
69. Id.
70. Id. at 465-66 (quoting Gary J. Schmitt, Jefferson and Executive Power: Revisionism and the "Revolution of 1800", 17 PUBLIUS 7, 23 n.29 (1987)).
71. YOO, supra note 7, at 121.
72. Id. at 124-25.
73. See, e.g., Gary J. Schmitt & Abram N. Shulsky, The Theory and Practice of Separation of Powers: The Case of Covert Action (explaining that congressional oversight was generally very deferential to the President until the mid-1970s), in THE FETTERED PRESIDENCY: LEGAL CONSTRAINTS ON THE EXECUTIVE BRANCH 59, 61-65 (L. Gordon Crovitz & Jeremy A. Rabkin eds., 1989)
74. Abraham D. Sofaer, Separation of Powers and the Use of Force (deeming the War Powers Resolution a shift from "the historic pattern of separation of powers"), in THE FETTERED PRESIDENCY, supra, at 18-20
75. John G. Tower, Congress Versus the President: The Formulation and Implementation of American Foreign Policy, 60 FOREIGN AFF. 229, 229-30, 234, 242-43 (1981) (observing that after World War II, Congress generally deferred to the President's judgment on national security and foreign policy but that Congress became more aggressive in the 1970s)
76. cf. Barron & Lederman II, supra note 1, at 947 (criticizing this narrative, or "legislative abdication paradigm," as "severely overdrawn insofar as it purports to describe longstanding practice").
77. See, e.g., Schmitt & Shulsky, supra note 60, at 61-65 (arguing that while recent Congresses have adopted an aggressive oversight posture, Congress historically understood its constitutional role as subordinate to the President in national security matters, and this traditional understanding was consistent with founding views)
78. Sofaer, supra note 60, at 20 (deeming the War Powers Resolution to threaten the "planned separation of powers" of the Constitution's founders).
79. THE FETTERED PRESIDENCY, supra note 60.
80. Schmitt & Shulsky, supra note 60, at 62.
81. Id. at 62-65, 71-75.
82. Minority Report, supra note 9, at 467.
83. Id. at 469.
84. Id.
85. See supra notes 6-10 and accompanying text.
86. 47 U.S.C. § 605(a) (2006).
87. See YOO, supra note 7, at 114-15 (citing these authorities to argue that FDR wiretapped in zone three)
88. Katyal & Caplan, supra note 37, at 1041-52 (citing these authorities to argue that FDR wiretapped in zone three).
89. Nardone v. United States (Nardone I), 302 U.S. 379, 380-82 (1937)
90. Nardone v. United States (Nardone II), 308 U.S. 338, 339-41 (1939).
91. Katyal & Caplan, supra note 37, at 1049-52.
92. To Authorize Wiretapping: Hearing on H.R. 2266 and H.R. 3099 Before the H. Comm. on the Judiciary, 77th Cong. 18-19 (1941) [hereinafter To Authorize Wiretapping Hearing] (statement of Robert H. Jackson, Att'y Gen. of the United States)
93. see also Herbert Brownell, Jr., The Public Security and Wire Tapping, 39 CORNELL L.Q. 195, 199 (1954) (explaining that Jackson's suspension was short-lived-FDR ordered that wiretapping resume later that year).
94. In fact, this position was maintained by the Justice Department until 1965. CONGR. RESEARCH SERV., THE OMNIBUS CRIME CONTROL AND SAFE STREETS ACT: BACKGROUND AND SUMMARY OF ITS PROVISIONS 17 (1968)
95. SUBCOMM. ON CONSTITUTIONAL RIGHTS., SENATE COMM. ON THE JUDICIARY, WIRETAPPING AND EAVESDROPPING: SUMMARY-REPORT OF HEARINGS 1958-1961, 5-6, 15-16, 18-19 (1962).
96. Brownell, supra note 73, at 200.
97. Wiretapping-The Attorney General's Program-1962: Hearing on S. 2813 Before the S. Comm. on the Judiciary, 87th Cong. 11 (1962) [hereinafter 1962 Wiretapping Hearing] (statement of Robert Kennedy, Att'y Gen. of the United States).
98. ROBERT H. JACKSON, THAT MAN: AN INSIDER'S PORTRAIT OF FRANKLIN D. ROOSEVELT 68-69 (2003)
99. see also Brownell, supra note 73, at 199 (suggesting that Jackson issued the suspension order because he thought wiretapping illegal); To Authorize Wiretapping Hearing, supra note 73, at 221-22 (citing a New York Times article describing Jackson's actions after Nardone II).
100. Katyal & Caplan, supra note 37, at 1047 ("By this point, hostility towards wiretapping had been expressed by Congress, affirmed by the Court, and applauded by the media.").
101. S. REP. NO.76-1304, at 4-5 (1940).
102. Id.
103. Alan F. Westin, The Wire-Tapping Problem: An Analysis and a Legislative roposal, 52 COLUM. L. REV. 165, 167 (1952)
104. see also id. at 168-69 (alerting the reader to the prevalence of wiretapping by private actors and blaming it on the government's poor example).
105. Id. at 189.
106. See Brownell, supra note 73, at 197-200 (chronicling the debate on legality and the continued use of the policy through the years).
107. See Neal Devins, Presidential Unilateralism and Political Polarization: Why Today's Congress Lacks the Will and the Way to Stop Presidential Initiatives, 45 WILLAMETTE L. REV. 395, 399 (2009) (explaining that, given their "power to execute &mellip; Presidents often win by default")
108. Terry M. Moe & William G. Howell, Unilateral Action and Presidential Power: A Theory, 29 PRESIDENTIAL STUD. Q. 850, 855-56 (1999) (describing President's unique structural capacity to "shift the status quo by taking unilateral action")
109. William P. Marshall, Eleven Reasons Why Presidential Power Inevitably Expands and Why It Matters, 88 B.U. L. REV. 505, 518 (2008) (citing the President's first-mover advantage)
110. Mark Tushnet, Controlling Executive Power in the War on Terrorism, 118 HARV. L. REV. 2673, 2677 (2005) (citing the President's first-mover advantage).
111. See, e.g., Marshall, supra note 84, at 511-17 (citing examples of the President's advantageous access to government resources).
112. Moe & Howell, supra note 84, at 860-62, 866-70 (describing the weaknesses f Congress and the Judiciary relative to the President).
113. RICHARD E. MORGAN, DOMESTIC INTELLIGENCE: MONITORING DISSENT IN AMERICA 15- 16, 36 (1980).
114. Id. at 16.
115. Id. at 22-26. An important caveat to this observation is that institutionalized intelligence apparatus arose in the military during the Civil War and in the FBI's predecessor, the Bureau of Intelligence (BOI) during the infamous Palmer Raid period after World War I. While these events were important precursors to the modern intelligence bureaucracy, they were also products of their times insofar as the infrastructure in each case was at least partly dismantled for a period-in the case of the Civil War because the war ended, in the case of the Palmer Raids because of the disgrace that they brought to the BOI. Id. at 19-21, 27-30
116. David Williams, The Bureau of Investigation and its Critics 1919-1921: The Origins of Federal Political Surveillance, 68 J. AM. HIST. 560, 560-61, 579 (1981). The post-Palmer Raids period is particularly interesting as it seems to mark a gray area between the worlds of interim and permanent intelligence infrastructure-while the BOI formally shut down surveillance operations not directly related to criminal investigations, between 1924 and 1936 it "hired paid informers to collect information on the activities of liberal and radical political and labor organizations." Id. at 560, 578.
117. MORGAN, supra note 87, at 16
118. see also GARRY WILLS, BOMB POWER: THE MODERN PRESIDENCY AND THE NATIONAL SECURITY STATE 57, 59-61, 82-83, 98 (explaining that a permanent "national security state" arose after World War II, including a permanent surveillance infrastructure).
119. See Marshall, supra note 84, at 515-17 (noting that the power of the Executive Branch is heightened by its control of intelligence gathering and other technological and human resources).
120. Id.
121. See, e.g., WILLS, supra note 90, at 99-102 (explaining that the Constitution seeks to check Executive Branch power through Congress's control over funding and that aspects of the national security state enable the Executive Branch to circumvent this check).
122. See, e.g., HAROLD HONGJU KOH, THE NATIONAL SECURITY CONSTITUTION 52-53 (1990) (recounting congressional efforts to curtail military activities through explicit funding restrictions).
123. See supra notes 91-92
124. see also, e.g., KOH, supra note 94, at 52-53 (detailing examples of military activities that continued to be funded and supported by the Executive Branch despite congressional prohibitions on such funding and support).
125. See infra subpart II(A) (explaining that exclusivists often infer from the President's demonstrated structural capacity to act without or against statutory authority that he has a legal right to so act).
126. See supra 77-83 and accompanying text (chronicling years of wiretapping by different administrations despite debates over the legality of the practice).
127. See, e.g., ATHAN THEOHARIS, SPYING ON AMERICANS 132 (1978) (recounting the effects on the Executive Branch of heightened public concern for the rule of law in the wake of the Vietnam War and Watergate); Justice Department Bans Wiretapping; Jackson Acts on Hoover Recommendation, N.Y. TIMES, Mar. 18, 1940, at A1 (reporting that Attorney General Jackson's order banning wiretapping might have been in response to backlash after the practice began becoming public).
128. See Marshall, supra note 84, at 510 ("Presidential power inevitably expands because of the way Executive Branch precedent is used to support later exercises of power.")
129. id. at 511, 521 (explaining that only presidential uses of power tend to be cited as constitutional precedent, whereas presidential abstentions are often overlooked).
130. See supra notes 37, 43 and accompanying text.
131. See Katyal & Caplan, supra note 37, at 1048 (citing the Administration's March 1940 public acknowledgment and its pledge to ban wiretapping going forward)
132. Justice Department Bans Wiretapping, supra note 98 (citing Administration's March 1940 admission and pledge to ban wiretapping from that point on).
133. Justice Department Bans Wiretapping, supra note 98.
134. Wiretapping for National Defense: Hearing Before the H. Comm. on the Judiciary, 76th Cong. 1-2 (1940) (statement of Robert Jackson, Att'y Gen. of the United States).
135. JACKSON, supra note 77, at 68.
136. THEOHARIS supra note 98, at 98-99.
137. Biddle Approves FBI Wiretapping, N.Y. TIMES, Oct. 8, 1941, at A4
138. see also J. Edgar Hoover, Rejoinder by Mr. Hoover, 58 YALE L.J. 422, 422-24 (1949) (providing examples of public acknowledgements by Administration members of wiretapping)
139. Katyal & Caplan, supra note 37, at 1056-59 (citing inconsistent public signals from the Administration from early- to mid-1941).
140. See Katyal & Caplan, supra note 37, at 1052-54 (describing Jackson's effort to keep the program a secret).
141. See supra subpart III(A).
142. See, e.g., 1962 Wiretapping Hearing, supra note 76, at 11-12 (statement of Robert Kennedy, Att'y Gen. of the United States)
143. THEOHARIS, supra note 98, at 102 (citing Justice Department statements that wiretapping is strictly controlled); Brownell, supra note 73, at 199-200, 207-08 (claiming that wiretapping has been strictly limited across administrations)
144. Hoover, supra note 106, at 424 (asserting that the FBI only conducted surveillance under rigid supervision in cases of extreme emergency).
145. Brownell, supra note 73, at 207.
146. See, e.g., MORGAN, supra note 87, at 4-8 (describing how the death of J. Edgar Hoover and the Watergate scandal led to the disclosure of records detailing decades of surveillance by the FBI)
147. KATHRYN S. OLMSTED, CHALLENGING THE SECRET GOVERNMENT 1-2, 11-17, 41-44, 94- 99 (1996) (recounting the 1970s investigations that revealed decades of surveillance abuses)
148. THEOHARIS, supra note 98, at 9-13 (discussing the 1970s investigations of intelligence activities and the political climate and scandals that helped to generate them).
149. S. REP. NO. 94-755, at 32 (1976).
150. See Katyal & Caplan, supra note 37, at 1067-68 (questioning the precedential value of presidential actions taken secretly).
151. See, e.g., Lisa Schultz Bressman & Michael P. Vandenbergh, Inside the Administrative State: A Critical Look at the Practice of Presidential Control, 105 MICH. L. REV. 47, 49-50, 65-70, 93-94 (2006) (explaining that many players, sometimes with conflicting agendas, exercise"presidential" oversight of agency policy making)
152. Kitrosser, Classified Information Leaks, supra note 17, at 892-93 (noting that several million government employees and contractors have some form of classification authority).
153. See GARRY WILLS, BOMB POWER: THE MODERN PRESIDENCY AND THE NATIONAL SECURITY STATE 52 (2010) (noting that the concentration of emergency powers in the Executive Branch increases the number of individuals who "say they can speak for the President" and thus provide plausible deniability); Bressman & Vandenberg, supra note 114, at 78-84, 93-94 (presenting survey results showing that EPA personnel believe that White House pressure on the EPA comes from different and sometimes competing White House offices and is not visible to the public)
154. Heidi Kitrosser, The Accountable Executive, 93 MINN. L. REV. 1741, 1763 (stating that a President can distance himself from unpopular actions and also can be genuinely "out of the loop")
155. Peter M. Shane, Political Accountability in a System of Checks and Balances:The Case of Presidential Review of Rulemaking, 48 ARK. L. REV. 161, 172-73, 207-08 (1995) (criticizing George H.W. Bush's Council on Competitiveness as a vehicle to influence agency regulatory decisions while retaining plausible deniability for the President).
156. See, e.g., Minority Report, supra note 9, at 460 (citing the President's political accountability).
157. Katyal & Caplan, supra note 37, at 1039.
158. THEOHARIS, supra note 98, at 66-76; Katyal & Caplan, supra note 37, at 1039
159. Athan G. Theoharis, The FBI's Stretching of Presidential Directives, 1936-1953, 91 POL. SCI. Q. 649, 654- 61 (Winter 1976-1977).
160. Theoharis, supra note 118, at 652.
161. Id. at 649, 661-68, 671-72.
162. THEOHARIS, supra note 98, at xiii.
163. Id. at xi-xiii
164. see also, e.g., H.R. REP. NO. 95-1283, at 119 (1978) (dissenting views on H.R. 7308) ("In reviewing the abuses of the past, it can be seen that the method used by senior executive branch officials to try to escape responsibility was by establishing 'plausible deniability.'")
165. Simon Chesterman, Secrets and Lies: Intelligence Activities and the Rule of Law in Times of Crisis, 28 MICH. J. INT'L L. 553, 566 (2007) (describing origins and more expansive later uses of plausible deniability).
166. THEOHARIS, supra note 98, at 19.
167. Id. at 30-34 (describing Nixon's insistence on retaining "plausible deniability" in the face of Hoover's request for specific authorization).
168. Id. at 13-14, 19, 32-39.
169. Barron & Lederman I, supra note 1, at 693, 696-97, 704-15
170. Barron & Lederman II, supra note 1, at 947-48, 951-52, 996-97, 1009-15, 1027, 1058-59
171. cf. Baron & Lederman I, supra note 1, at 772-86 (noting that actions of the Continental Congress during the Revolutionary War and texts of post-revolution state constitutions reflected the understanding that legislatures could direct details of military campaigns waged by the "commanders-in-chief").
172. Barron & Lederman I, supra note 1, at 697, 718-20, 763-64
173. Barron & 1Lederman II, supra note 1, at 948-49, 952, 993-94, 999-1004, 1007-09, 1015-16, 1027, 1034-35, 1057-58.
174. Barron & Lederman II, supra note 1, at 948.
175. THEOHARIS, supra note 98, at 99
176. see also Barron & Lederman II, supra note 1, at 1052 (chronicling near absence of any exclusivity claims by the FDR Administration)
177. Katyal & Caplan, supra note 37, at 1049-52 (citing the FDR Administration's arguments, all grounded in statutory interpretation).
178. Katyal & Caplan, supra note 37, at 1050 (quoting FDR's memorandum to Jackson).
179. See, e.g., 1962 Wiretapping Hearings, supra note 76, at 12-13 (statement of Robert Kennedy, Att'y Gen. of the United States) (explaining that under then current law, wiretapping in itself, without subsequent disclosure, was not a crime)
180. Brownell, supra note 73, at 199-200 (arguing that the Telecommunications Act does not make wiretapping a crime in its own right).
181. Thomas I. Emerson & David M. Helfeld, Reply By the Authors, 58 YALE L.J. 412, 413 (1949).
182. Id. at 413 (quoting Hoover's letter).
183. Id. at 413-15.
184. Hoover, supra note 106, at 422-23.
185. Id. at 424.
186. See infra note 147 for description of the scope of my search of congressional hearings on wiretapping during the World War II period.
187. Authorizing Wire Tapping in the Prosecution of the War: Hearing on H.R. 283 Before the H. Comm. on the Judiciary, 77th Cong. 2 (1942) [hereinafter Authorizing Wire Tapping] (statement of Francis Biddle, Att'y Gen. of the United States).
188. Id.
189. Id.
190. Id.
191. Id. at 2-4; see also Hearing on Biddle Nomination Before the S. Judiciary Comm., 77th Cong. (1941) [hereinafter Biddle Nomination]. Barron and Lederman make a similar finding about Biddle's relationship to exclusivity during his tenure as Attorney General. In their review, they found only one exclusivist remark by Biddle (or by anyone in the FDR administration, for that matter)-a comment made "in an almost offhand manner" during a Supreme Court oral argument about the power to try enemy combatants via military commission. Barron & Lederman II, supra note 1, at 1055. Barron and Lederman explain that, while Biddle's remark was unusual for the time and stood out even within his own larger body of arguments, it "nonetheless [stood] as an indication that [exclusivity]" was beginning to make "inroads in the political branches." Id. at 1055-56.
192. See, e.g., Authorizing Wire Tapping, supra note 138, at 2-4 (stating that Section 605 does not prevent wiretapping but that it prohibits the introduction of its fruits into evidence, stressing that legislation should be passed narrowing the right to wiretap and permitting wiretap-derived evidence to be used in court)
193. Biddle Nomination, supra note 142, at 5-6, 10 (explaining his support for limited wiretapping and his view that Congress should pass a law that permits wiretapping but limits its scope and enables Congress to oversee its use)
194. 1962 Wiretapping Hearings, supra note 76, at 11-13 (statement of Robert Kennedy, Att'y Gen. of the United States) (stating that Section 605 does not prohibit wiretapping but that it prevents wiretap-derived evidence from being introduced in court, urging the passage of legislation to narrow wiretapping's permitted uses and allow the introduction of wiretap-derived evidence)
195. Brownell, supra note 73, at 199-203 (citing Biddle's views on the meaning of Section 605 and on the need for new legislation, noting that Biddle's views have been shared by all subsequent Attorney Generals including Brownell).
196. See Authorizing Wire Tapping, supra note 138, at 3-4 (statement of Francis Biddle, Att'y Gen. of the United States) (recommending passage of House Joint Resolution 283 to clarify the legality of wiretapping and permit the introduction of evidence from wiretaps).
197. Id. at 4.
198. See Biddle Nomination, supra note 142, at 6, 10 (statement of Francis Biddle, Att'y Gen. of the United States) (remarking that any wiretapping should be reported regularly to Congress).
199. According to LexisNexis Congressional, there were several congressional hearings on wiretapping between the start of World War II (including before America's entry into the War) and the War's end. Hearings by the Senate Interstate Commerce Committee (ICC) focused predominantly on allegations of state and private wiretapping and did not discuss the President's power to wiretap in any depth. See generally Investigation of Alleged Wire Tapping, Part 1: Hearing on S. 224 Before the Subcomm. of the S. Interstate Commerce Comm., 76th Cong. (1940)
200. Investigation of Alleged Wire Tapping, Part 2: Hearing on S. 224 Before the Subcomm. of the S. Interstate Commerce Comm., 76th Cong. (1940)
201. Investigation of Alleged Wire Tapping, Part 3: Hearing on S. 224 Before the Subcomm. of the S. Interstate Commerce Comm., 76th Cong. (1941) (focusing on state and private wiretapping, based on a reading of large portions of the transcripts as well as an electronic word search of the transcripts for the terms "president," "commander," "chief, " "constitution," "article ii," "article 2," "article two," "second article," and "executive power"). The remaining hearings listed by LexisNexis Congressional are more relevant to my focus on the role (or relative lack thereof) of presidential exclusivity in World War II Era congressional hearings on wiretapping. Those hearings are thus my main points of reference. They are Authorizing Wire Tapping in the Prosecution of the War, Part 1: Hearing on H.J. Res. 283 Before the H. Comm. on the Judiciary, 77th Cong. (1942) [hereinafter Authorizing Wire Tapping Part 1]
202. Authorizing Wire Tapping in the Prosecution of the War, Part 2: Hearing on H.J. Res. 283 Before the H. Comm. on the Judiciary, 77th Cong. (1942) [hereinafter Authorizing Wire Tapping Part 2]
203. To Authorize Wire Tapping: Hearing on H.R. 2266 and H.R. 3099 Before Subcomm. No. 1 of the H. Comm. on the Judiciary, 77th Cong. (1941)
204. and Wire Tapping for National Defense: Hearing on H.J. Res. 553 Before Subcomm. No. 1 of the H. Comm. on the Judiciary, 76th Cong. (1940). I also refer at points to relevant parts of Francis Biddle's 1941 confirmation hearing as Attorney General before the Senate Judiciary Committee. Biddle Nomination, supra note 142.
205. See generally supra note 147.
206. See To Authorize Wire Tapping, supra note 147, at 199 (statement of Osmond Fraenkel, American Civil Liberties Union) (noting with apparent approval that during the Civil War Lincoln acted outside the law, and although emergency circumstances may have justified his actions, Lincoln "did not seek to have the law changed" or to "have a great principle of constitutional government disregarded").
207. Id.
208. In his testimony, the ACLU witness stated, I regret any deviation from the law, but I say this, just as I would rather have somebody lose his temper occasionally and do a cruel act than have somebody do a cruel act in cold blood. So I say if in a moment of intense crisis it is believed that something has to be done, human nature is such that it will be done and afterward it will be judged.
209. Id. (statement of Osmond Fraenkel, American Civil Liberties Union)
210. See supra notes 129-151 and accompanying text. For additional statements evincing this assumption in the wartime congressional hearings
211. see, e.g., To Authorize Wire Tapping, supra note 147, at 2-5 (statement of Rep. Francis E. Walter, H. Comm. on the Judiciary) (arguing for legislation that would give the power to authorize wiretapping to the courts rather than to the executive department); id. at 21-29 (statement of Rep. Sam Hobbs) (contending that Congress should grant to the federal government-"whose sole responsibility is to enforce the laws [Congress] write[s]"-the authority to conduct wiretaps); id. at 214-17 (statement of Rep. John H. Coffee) (emphasizing that executive investigative agencies should only be able to exercise the "great power" of wiretapping if Congress gives it to them). 153. See, e.g., id. at 204-05 (statement of S.D. Kapelsohn, National Federation for Constitutional Liberties) (opposing the proposed amendment on the ground that wiretapping should not be statutorily authorized unless its proponents can demonstrate why it is necessary).
212. CONG. RESEARCH SERV., supra note 74, at 16 (stating in 1968 that "[d]uring the past 40 years numerous bills to authorize limited forms of wiretapping have been considered by Congress but none has ever been enacted").
213. Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, § 802, 82 Stat. 197, 216 (codified at 18 U.S.C. § 2516 (2006)).
214. See id. § 2516(1)(a).
215. United States v. U.S. Dist. Court (Keith), 407 U.S. 297 (1972).
216. Id. at 303-08 (examining the text and history of the statute and concluding that "nothing in § 2511(3) was intended to expand or to contract or to define whatever presidential surveillance powers existed in matters affecting the national security")
217. see id. at 339 & n.3 (White, J., concurring) (explaining that the Government did not claim that Congress could not constitutionally restrict the President's capacity to wiretap in the domestic bombing case at issue)
218. id. at 344 ("The United States concedes that the act of the Attorney General authorizing a warrantless wiretap is subject to judicial review to some extent &mellip; and it seems improvident to proceed to constitutional questions until it is determined that the Act itself does not bar the interception here in question.").
219. SCHWARZ & HUQ, supra note 50, at 154-55; Devins, supra note 84, at 396, 411-13.
220. See, e.g., SCHWARZ & HUQ, supra note 50, at 154-61 (describing Cheney's disapproval of the "erosion of presidential power" and how it influenced his contribution to the Minority Report).
221. See Robert H. Bork, Foreward to THE FETTERED PRESIDENCY, supra note 60, at ix (noting that the articles contained in the book "demonstrate that the office of the president of the United States has been significantly weakened in recent years")
222. see also, e.g., Tower, supra note 60, at 230 (lamenting the decline of presidential power after the Vietnam War).
223. Using the LexisNexis Congressional Database, I obtained the 1976, 1977, and 1978 congressional hearings held on FISA. While the Judiciary and Intelligence Committees of both chambers held hearings, I read only the Judiciary Committee hearings to keep the project manageable. I thus read and summarized hearings of the House Judiciary Committee from 1976 and 1978 and of the Senate Judiciary Committee from 1976 and 1977. I also read and summarized the Joint Explanatory Report of the Committee of Conference No. 95-1720 (1978)
224. the Senate Intelligence Committee Report No. 95-701 (1978)
225. the House Intelligence Committee Report No. 95-1283 (1978)
226. The Senate Judiciary Committee Report including Minority Views No. 95-604 (1977).
227. Foreign Intelligence Surveillance Act: Hearings on H.R. 7308 Before the Subcomm. on Courts, Civil Liberties, and the Admin. of Justice of the H. Comm. on the Judiciary, 95th Cong. 131 (1978) [hereinafter FISA Hearings I].
228. Id. at 138.
229. Id.
230. See Foreign Intelligence Surveillance Act of 1976: Hearing on S. 743, S. 1888, and S. 3197 Before the Subcomm. on Criminal Laws and Procedures of the S. Comm. on the Judiciary, 94th Cong. 2 (1976) [hereinafter FISA Hearings II] (statement of Sen. McClellan, Chairman, Subcomm. on Criminal Laws and Procedures) (recounting his judgment at the time of the 1974 hearings that if past presidents had derived the power to wiretap from "the Constitution, no statute could change or alter it" and recalling that "the then Attorney General, Mr. Saxbe, and the FBI Director, Mr. Kelley, expressed the same judgment in their [1974] testimony").
231. See FISA Hearings I, supra note 163, at 24-28, 48 (statement of Rep. McClory, Member, U.S. House of Representatives) (opining that statutory regulation and congressional oversight are "entirely appropriate," although the President has some exclusive powers under Article II; his objection to the bill was its concession of a role for the courts)
232. H.R. REP. NO. 95-1283, pt. 2, at 114-21 (1978) (dissenting views of Reps. Wilson, McClory, Robinson, and Ashbrook on H.R. 7308) (arguing that statutory regulation of the area and congressional oversight are appropriate, but that a judicial role is not appropriate)
233. S. REP. NO. 95-701, at 91-96 (1978), reprinted in 1978 U.S.C.C.A.N. 3973, 4042-48 (additional views of Sen. Wallop) (contending that the bill improperly checks presidential power through ex ante judicial intervention; ex post congressional review would be a more constitutionally appropriate check).
234. See FISA Hearings I, supra note 163, at 131, 144-46 (statement of Robert Bork, former Solicitor General of the United States) (noting that Congress will oversee Executive Branch enforcement of its internal regulations so there is no "need to worry about future administrations just changing [those regulations] without anybody in Congress knowing about them").
235. Id. at 144.
236. See, e.g., id. at 3-4, 7-8 (statement of Griffin B. Bell, Att'y Gen. of the United States)
237. id. at 158 (statement of Jerry Berman, Legislative Counsel, American Civil Liberties Union); id. at 81- 83 (statement by Senator Edward Kennedy)
238. Foreign Intelligence Surveillance Act: Hearings Before the Subcomm. on Courts, Civil Liberties, and Admin. of Justice of the H. Comm. on the Judiciary, 94th Cong. 23-24 (1976) (statement of Philip A. Lacovera, former Deputy Solicitor General)
239. id. at 38-39 (statement of John Shattuck, National Staff Counsel, American Civil Liberties Union)
240. id. at 40-41 (statement of Dr. Morton Halperin, Director, Project on National Security and Civil Liberties)
241. id. at 61, 69 (statement of William Van Alstyne, Professor, Duke University)
242. id. at 75-76 (statement of Louis Henkin, Professor of International Law and Diplomacy, Columbia University)
243. FISA Hearings II, supra note 166, at 16-20, 23-24 (statement of Edward Levi, Att'y Gen. of the United States).
244. FISA Hearings II, supra note 166, at 16-20, 23-25 (statement of Edward Levi, Att'y Gen. of the United States).
245. Id.
246. Id. at 16.
247. Foreign Intelligence Surveillance Act of 1977: Hearings on S. 1566 Before the Subcomm. on Criminal Laws & Procedures of the S. Judiciary Comm., 95th Cong. 14-15 (1977) (statement of Griffin Bell, Att'y Gen. of the United States) (citing the provision's removal approvingly)
248. S. REP. NO. 95-604, at 82-83 (1977), reprinted in 1978 U.S.C.C.A.N. 3904, 3966 (minority views of Sen. Abourezk) (citing the provision's removal approvingly).
249. FISA Hearing II, supra note 166, at 134 (quoting S. 3197, 94th Cong. § 2528 (1976)).
250. See, e.g., Foreign Intelligence Surveillance Act: Hearings Before the Subcomm. on Courts, Civil Liberties, & Admin. of Justice of the H. Comm. on the Judiciary, 94th Cong. 92 (1976) (statement of Edward H. Levi, Att'y Gen. of the United States) (explaining that the provision "in no way expands or contracts the President's constitutional powers")
251. FISA Hearings II, supra note 166, at 17-18, 25 (statement of Edward H. Levi, Att'y Gen. of the United States) (interpreting the provision as a statement of congressional neutrality regarding the scope of the President's powers in areas not covered by FISA).
252. See, e.g., FISA Hearings II, supra note 166, at 30-31 (statement of Morton H. Halperin, American Civil Liberties Union) (suggesting that the disclaimer "would be read, in fact &mellip; as going beyond &mellip; neutrality &mellip; and, in fact, endorsing the notion that there is a power here to wiretap, without a warrant")
253. id. at 35-36 (statement of John Shattuck, American Civil Liberties Union) ("I think it is a mistake, a very serious and grave mistake for anyone who is considering this bill to think that it is neutral on the point of Presidential powers &mellip; .")
254. id. at 66, 69 (statement of Professor Phillip Heymann, Harvard Law School) (expressing concern that the disclaimer is subject to abuse and stating his preference to eliminate it or at minimum to narrow it substantially)
255. id. at 67 (statement of Professor Herman Schwartz, Law School, State University of New York at Buffalo) ("[I]t seems to me that what this disclaimer does is to give the President a virtual blank check, and says Congress agrees that he has a blank check when he is dealing with matters affecting foreign affairs not within the scope of this statute.")
256. id. at 69 (statement of Dean Louis H. Pollak, University of Pennsylvania School of Law) ("[I]f the Congress wishes simply to reflect its awareness that there may be a claim of inherent Presidential power, then it should couch a waiver, I believe, not in terms which are open to Professor Schwartz's concern that Congress is in effect acknowledging the constitutional claim")
257. id. at 71, 74-76 (statement of Sen. Nelson) (suggesting that the disclaimer raises concerns similar to that raised by the disclaimer in the Omnibus Crime Act, which the previous Administration had interpreted as a license to "engage in wholesale electronic surveillance")
258. id. at 81-83 (statement of Professor Nathan Lewin) (observing that the disclaimer clause in the Omnibus Crime Act "has continued to be relied upon by the Department of Justice and by those representing individuals or Government agents who have engaged in electronic surveillance as a source of statutory or constitutional authority" and that the disclaimer in the proposed legislation would be used in the same manner).
259. S. REP. NO. 95-701, supra note 167, at 71-72; S. REP. NO. 95-604, supra note 174, at 6-7
260. id. at 83 (minority views of Sen. Abourezk) (praising the Senate Judiciary Committee's removal of the provision).
261. FISA Amendments Act of 2008, Pub. L. No. 110-261, § 802(a)(4)(B), 122 Stat. 2436, 2468 (to be codified at 50 U.S.C. § 1885a).
262. Strengthening FISA: Does the Protect America Act Protect Americans' Civil Liberties and Enhance Security?: Hearing Before the S. Comm. on the Judiciary, 110th Cong. 16 (2007) [hereinafter Strengthening FISA Hearing] (statement of J. Michael McConnell, Director of National Intelligence)
263. see also, e.g., FISA Amendments: How to Protect Americans' Security and Privacy and Preserve the Rule of Law and Government Accountability: Hearing before the S. Comm. on the Judiciary, 110th Cong. 17-18 (2007) [hereinafter FISA Amendments Hearing] (statement of Kenneth L. Wainstein, Assistant Att'y Gen. for National Security, United States Department of Justice) (supporting immunity from suit for telecommunications companies who, "acting out of a sense of patriotic duty," cooperated with government investigatory information requests).
264. FISA Amendments Hearing, supra note 180, at 28 (statement of Sen. Cardin) (noting that the providers are "sophisticated companies," "large companies with big legal staffs")
265. id. at 36-38 (statement of Sen. Durbin) (suggesting that companies are capable of determining the legitimacy of government requests and noting that one company indeed refused to cooperate with the TSP due to legal concerns).
266. Id. at 59-60 (statement of Morton Halperin, Director of U.S. Advocacy, Open Society Institute).
267. See, e.g., FISA Amendments Hearing, supra note 180, at 46-47 (statement of Edward Black, President and CEO, Computer and Communications Industry Association) (discussing the need for companies to resist improper government demands for information)
268. id. at 50 (statement of Morton H. Halperin, Director of U.S. Advocacy, Open Society Institute) (identifying the importance of the FISA process in guiding companies as to when to comply with government requests for information)
269. Strengthening FISA Hearing, supra note 180, at 56 (statement of Suzanne E. Spaulding, Principal, Bingham Consulting Group) ("telecommunications providers [must be] our last line of defense against abuse by the government.")
270. S. REP. NO. 110-258, at 20 (2008) (additional views of Sen. Leahy) (explaining that retroactive immunity "would subvert the gatekeeping role that FISA contemplates for the providers").
271. S. REP. NO. 110-258, at 36 (minority statements of Sens. Kyl, Hatch, Grassley, Sessions, Graham, Cornyn, Coburn & Brownback) ("Congress cannot take away the President's power to monitor foreign enemies of the United States without a warrant&mellip; . To the extent that FISA purports to do so, it is unconstitutional.")
272. S. REP. NO. 110-209, at 35 (2007) (additional statements of Sens. Bond, Chambliss, Hatch, and Warner) ("Those who constantly harp on the misleading assertion that the TSP was illegal conveniently ignore federal case law that recognizes the President's Article II authority to engage in warrantless surveillance in the context of gathering foreign intelligence.").
273. S. REP. NO. 110-209, at 35.
274. Id.
275. FISA Amendments Hearing, supra note 180, at 49 (statement of Patrick F. Philbin, Partner, Kirkland & Ellis).
276. Id.
277. Id. at 7 (statement of Kenneth L. Wainstein, Assistant Att'y Gen. for National Security, United States Department of Justice) (testifying that "as a matter of fundamental fairness and as a way of ensuring that providers will continue to provide cooperation to our surveillance efforts," retroactive immunity is necessary).
278. Id. at 11.
279. YOO, supra note 7, at 119-20
280. Id.
281. Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95-511, § 111, 92 Stat. 1783, 1796 (codified at 50 U.S.C. § 1811 (2006)).
282. S. REP. NO. 110-209, at 10-11 (2007).
283. Id.
284. Id. at 10.
285. FISA Amendments Hearing, supra note 180, at 8 (statement of Kenneth L. Wainstein, Assistant Att'y Gen. for National Security, United States Department of Justice).
286. Id. at 48 (statement of Patrick F. Philbin, Partner, Kirkland & Ellis, L.L.P.).
287. SCHWARZ & HUQ, supra note 50, at 155-56 (quoting Nixon's exchange with television interviewer David Frost).
288. FISA Amendments Hearing, supra note 180, at 15 (statement of Kenneth L. Wainstein, Assistant Att'y Gen. for National Security, United States Department of Justice) (remarking that since the President and Congress were moving "toward a point where we are all on the same page &mellip; there is not going to be any need for the executive branch to go beyond what FISA has required").
289. YOO, supra note 7, at 124.
290. See supra subpart III(A).