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Roger Brandwein has held several positions in New York State government, having last served as Welfare Inspector General. He has taught the Presidency at Columbia University, University of Pennsylvania, Fordham University and Queens College. He is a practicing attorney in New York.

The following is an analysis of the Department of Justice’s January 19, 2006 “legal basis” for warrantless surveillance:

Having been found participating in a course of intelligence gathering by means of warrantless electronic surveillance, the government has asserted two bases for rationalizing its conduct. The administration maintains that the President derives his authority for such action from the Commander in Chief clause of Article II of the Constitution, and provisions of the Foreign Intelligence Surveillance Act (1978) (FISA). This Act prohibits electronic surveillance except upon issuance of a warrant and as “otherwise authorized by statute.” To accommodate this latter exception, the Justice Department takes the position that the Authorization for Use of Military Force (Sept. 18, 2001) (AUMF) can be resorted to. It will be shown that the term Commander-in-Chief was never intended to confer unknowable and illimitable power. It will be further shown that FISA’s specific procedural framework for securing search warrants from special courts has been regularly evaded. There is neither law nor court precedent to support the thesis that AUMF, the functional equivalent of a declaration of war, sanctioned warrantless eavesdropping by the government.
It is argued that the use of military force against al Qaeda, ipso facto, subsumes “warrantless electronic surveillance to intercept enemy communications.” The Justice Department’s hypothesis that “force” meets the constitutional prerequisite for conducting a search is untenable. The Fourth Amendment belies any such construction:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 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.

It is axiomatic that illegally seized evidence is inadmissible at trial. The series of presidential orders issued to date does not overcome this obstacle.

The Justice Department’s reliance on Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), while material to this discussion, becomes patently inapposite respecting the portion cited and the lesson drawn. When, during the Korean War, President Truman, invoking the Commander in Chief clause, sought to seize and operate the steel mills in anticipation of a strike, the Supreme Court ruled that his action was unconstitutional. Of the three assumed classifications of varying degrees of executive power, the Court (Jackson, J. concurring) found Truman’s contemplated seizure to lie “at its lowest ebb,” a circumstance descriptive of the fact that, under these circumstances “he can rely only upon his own constitutional powers [i.e., his capacity as Commander in Chief] minus any constitutional powers of Congress over the matter.” 343 U.S. at 637. The Court reasoned: “When the Taft-Hartley Act was under consideration in 1947, Congress rejected an amendment which would have authorized . . . governmental seizures in cases of emergency.” Id. at 586. From this determinative legislative history, the Court concluded that Congress debated and chose not to confer such power on the President. Consequently it found that despite his Commander in Chief authority, the President is powerless to order a steel seizure. In its present analysis, the Justice Department turns Youngstown on its head, conjecturing that “[b]ecause of the broad authorization provided in the AUMF, the President’s action [in undertaking warrantless surveillance] falls within category I of Justice Jackson’s framework.” Accordingly, from Justice’s standpoint and its argument, the President’s power in authorizing National Security Agency (NSA) surveillance 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.” This is fallacious. FISA delegates no authority to the president.
The Justice Department seizes upon FISA, (which prescribes the roadmap for securing warrants) in divining an implementing statute in AUMF. By enacting FISA, Congress with great care enunciated its will to establish a process and procedure whereby special courts in their sole discretion are authorized to issue warrants, a statutory scheme that preempts the very surveillance that is now called into question.
The concluding paragraph of the Justice Department Summary [page 3] reads:
Finally, the NSA activities fully comply with the requirements of the Fourth Amendment. The interception of communications described by the President falls within a well-established [but unspecified] 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.

The last sentence is insupportable. By his present policy of warrantless invasions of privacy, the President lends special aptness to James Madison’s admonition, “The means of defense against foreign danger have always been the instruments of tyranny at home.” Farrand, Records of the Federal Convention, Vol. I, 465.
While an ongoing crisis is acknowledged to exist, there is simply no authority for the President to exercise concomitant emergency power. Justice Jackson’s observation in Youngstown is instructive:
They [our forefathers] knew what emergencies were, knew the pressures they engender for authoritative action, knew too how they afford a ready pretext for usurpation. We may also suspect that they suspected that emergency powers would tend to kindle emergencies. Aside from suspension of the privilege of the writ of habeas corpus in time of rebellion or invasion, when the public safety may require it, they made no express provision for exercise of extraordinary authority because of a crisis. I do not think we rightfully may so amend their work. 343 U.S. 579, 650.
In addition to the unexampled “necessary force” theory of enhanced executive powers, the Justice Department submits that the Commander in Chief clause found in the Constitution (Art. II, Section 2) confers warrantless surveillance authority. Significantly, without dissent, the Framers found that this title was interchangeable with “first General” and of no further substantive effect. The Federalist No. 69 (Hamilton). Moreover, nothing was “to be feared” from an executive “with the confined authorities” of the President. The Federalist No. 71 (Hamilton). After going through the short list of Article II functions, Hamilton stated, “The only remaining powers of the executive are comprehended in giving information to Congress of the state of the Union.” The Federalist No. 77. Hamilton felt the need to assure the people that the President’s Commander in Chief authority would be “much inferior” to that of the British King. His power, wrote Hamilton “would amount to nothing more than the supreme command and direction of the military and naval forces.” (emphasis added.) The Federalist No. 69. Madison told his fellow delegates at the Constitutional Convention, “executive powers . . . shd. be confined and defined.” Farrand, Records of the Federal Convention, Vol. I, 70. The role of Commander in Chief is further circumscribed by empowering Congress to: “make rules concerning captures on land and water;” “raise and support armies;” “provide and maintain a navy;” and “make rules for the . . . regulation of the land and naval forces.” (Article I, Section 8).
When the Continental Congress assembled and adopted the Articles of Confederation as our first Constitution, they dispensed with an Executive altogether. In appointing George Washington Commander in Chief, the members made certain that he was to be subordinate to, and dependent upon, the will of Congress. His commission read, “you are . . . punctually to observe and follow such orders and directions from time to time as you shall receive from this or a future Congress . . . .” The Washington Papers, 124-25 (S. Padover ed. 1955).
Hamilton too, denigrated the role of Commander in Chief and other executive functions in order to rebut attacks upon the Constitution by those who, “[c]alculating upon the aversion of the people to monarchy” portrayed the President “as the full-grown progeny of that detested parent. The Federalist No. 67. To the authors of the Constitution, it was anathema to ascribe to the president royal prerogative power.
The Justice Department’s reliance upon Hamdi v. Rumsfeld, 542 U.S. 507 (2004) is misplaced. Justice maintains that Hamdi: supports its position that use of military force makes warrantless searches legal when, in fact the case does not treat this issue. In rejecting the government’s argument that “enemy combatants” enjoy no measure of due process, Justice O’Connor, writing for the Court, hit the nail on the head: “a state of war is not a blank check for the President.” Here, we see again the administration opining that it has already been issued a blank check to commit unfettered eavesdropping, an unsupportable non sequitor.
The Justice Department mistakenly cites Little v. Barreme, 6 U.S. (2 Cranch) 170 (1804), in support of its argument. Barreme stands for the proposition that the express will of Congress prevails over a conflicting Executive Order. In this case the order given to Captain Little by President Adams contravened the provisions of the 1799 Non-Intercourse Act. The Order departed from the law in two respects: First, it directed seizure not only of ships that were not American but also of any ships that might be carrying American cargo. Second, the Order directed seizure not only of ships bound to French ports, but also of ships sailing from French ports. Having seized a Danish ship sailing from a French port, Little was held liable for damages, the Act effectively having nullified Adams’s Order issued one month later. Chief Justice Marshall, speaking for a unanimous Court, concluded that Adams’s instructions “cannot change the nature of the transaction, or legalize an act which, [was] a plain trespass.” Id. at 177-178. Once Congress has “prescribed . . . the manner in which this law shall be carried into execution,” Marshall observed, the Commander in Chief was obliged to respect the limitations imposed by Congress. It unmistakably follows that FISA’s scheme of warrant obtaining procedures is in no way trumped by a series of Executive Orders directing warrantless surveillance. To the contrary: statutory law prevails over inconsistent presidential directives. FISA’s provisions for court sanctioned electronic surveillance preclude presidential orders for warrantless invasions of privacy. After two centuries, Barreme remains good law.
At the beginning of the Justice Department’s analysis is stated a familiar quotation from U.S. v. Curtiss-Wright Export Corp.: “[t]he President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.” 299 U.S. 304, 319. This novel position finds no anent case law. It should be remembered that in this case Congress authorized the President to issue an embargo on arms sales in the Chaco [Paraguay] at his discretion. The embargo subsequently issued was challenged as an improper delegation of legislative power to the president but nevertheless held to be constitutional. Since this “sole organ” pronunciamento was written in 1936 it has been roundly criticized by legal scholars as the dictum it is, and therefore of limited precedential value.
By circumventing the precepts of FISA, and avoiding the scrutiny of the Foreign Intelligence Surveillance Court, the government has pursued an illegal, intrusive and altogether indefensible policy. Neither the Commander in Chief clause of the Constitution nor the Authorization for Use of Military Force provides the President a legal basis for intercepting communications into and out of the United States.
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