DoJ Claims President Has Exclusive Power to Authorize NSA Domestic Surveillance During War Against al Qaeda

Posted by Randy Gainer

The Department of Justice published a 42-page memorandum on January 19, 2005 that defends the National Security Agency’s domestic surveillance program. The DoJ memo responds to arguments raised by the Congressional Research Service in its January 5, 2006 report and by 14 law professors and former government officials in their January 9, 2006 letter to Congress. The DoJ memo elaborates on many of the same points it made in a December 22, 2005, letter to Congress but goes further by claiming that “acute constitutional crises” will result if the resolution authorizing the use of force against al Qaeda (the “AUMF”) is not interpreted as having given the President authority to direct the NSA to conduct the domestic surveillance program. January 19 DoJ memo at 35.

The DoJ argues that Article II of the Constitution gives the President exclusive authority during wartime, including during the war on terror, to conduct signals intelligence against al Qaeda, including surveillance within the U.S. January 19 DoJ memo at 28-35. The DoJ says that the doctrine of constitutional avoidance should be invoked to construe the AUMF to authorize the NSA program so as to avoid the issue of whether FISA impermissibly impedes the President’s exercise of his constitutional duties as Commander in Chief. January 19 DoJ memo at 29.

The DoJ’s did not make this claim of exclusive Presidential authority in its December 22, 2005 letter. The January 9 letter from the 14 law professors and former officials pointed out:

Just as the President is bound by the statutory prohibition on torture, he is bound by the statutory dictates of FISA. [footnote omitted.] The DOJ once infamously argued that the President as Commander in Chief could ignore even the criminal prohibition

on torture, [citing August 1, 2002 memo by then Assistant Attorney General Jay S. Bybee] and, more broadly still, that statutes may not “place any limits on the President’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response.” [citing Sept. 21, 2001, memo by then Deputy Assistant Attorney General, John C. Yoo] But the administration withdrew the August 2002 torture memo

after it was disclosed, and for good reason the DOJ does not advance these extreme arguments here.

January 9, 2006 letter at 6-7. The DoJ has now made the “extreme arguments” that it earlier declined to make.

The argument is consistent with the President’s language in the “signing statement” regarding the McCain amendment banning inhumane treatment of detainees. In the signing statement, the President said: ”The executive branch shall construe [the law] in a manner consistent with the constitutional authority of the President . . . as Commander in Chief . . . .”

The cases filed by the ACLU and by the Center for Constitutional Rights, both of which seek to enjoin the NSA domestic surveillance program, may require the courts to decide whether the DoJ is correct when it claims that the President has exclusive wartime authority to order the program.