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Listening For Terrorists: Surveillance Programs?Lessons Learned and the Way Ahead

By , , , and

Delivered on February 23, 2007

Introduction

In the wake of the September 11, 2001, terrorist attacks the National Security Agency (NSA) established a terrorist surveillance program to intercept the international communications of suspected transitional terrorists and their supporters. Press reports on the existence of this program engendered a national debate since some of the communications intercepted by the NSA may have involved U.S. persons (American citizens or aliens legally entitled to be present in the United States) and the NSA was not required to obtain warrants. The debate over the NSA initiative has been mired in rank partisan debate, misinformation, legitimate disagreements, and limited knowledge available about a covert government program. The purpose of this panel is fairly provide both sides of a responsible discussion and debate on the efficacy, appropriateness legitimacy of the program, the lessons that can be learned from its implementation, and the way forward for the Congress and the administration in implementing this and other counterterrorism measures in a manner that will keep the United States a safe, free, and prosperous nation.

Joining us in the discussion are Todd Gaziano, the Director of Heritage's Center for Legal and Judicial Studies and John Choon Yoo, Professor of Law at the University of California, Berkley. They will make the case supporting the government's actions regarding implementing the NSA program. Offering contrasting views are Mary DeRosa from the Center for Strategic and International Studies and Suzanne E. Spaulding, a Washington lawyer.

The goal of this discussion is two fold: first, to highlight the legitimate disagreements in the debate over the NSA program and second, to see where there is common ground for the Congress and the administration to move forward from here.

Surveillance and Long War Strategy

James Carafano: When Paul Rosenzweig and I wrote Winning the Long War and coined the term "long war," we introduced the notion that you fight long wars differently; that in long wars you're as concerned about retaining the capacity of the state to compete and thrive and prosper over the long term as you are with getting the enemy. This notion about doing both things equally well is essentially compelling and important in the strategy for any protracted conflict.

What is a good long war strategy? We introduced fundamental things that you have to do well: defeating the enemy; sustaining economic growth and economic competition, because that's what essentially allows the state to compete over the long term; protecting the civil liberties and privacies of your citizens, respecting those of your allies, and seeking human rights for all, because what allows a state to compete best over the long term is the will of the governed, and civil society is the glue that keeps that together; and winning the war, since all wars are essentially ideological struggles.

The argument that we tried to make in the book is that you had to do all four things equally well. You had to get the terrorists, you had to grow your economy, you had to protect the liberties and rights of your citizens, respect those of others, promote human rights, and you had to win the struggle of ideas. That was the essential kernel of what the United States did in the Cold War, and it was essentially what we argued that you have to do well in a protracted competition against transnational terrorists. The remarkable thing is that we got no pushback on that-Right, Left, liberal, conservative, Democrat, Republican. Everybody kind of nodded when they read the book or when we went out and talked to audiences about it.

Having heard that, you would think that any time there was an issue about what kind of security measures should we add, or how we should protect the liberties or privacies of individual citizens after September 11, you would get a reasonable dialogue. People would say,  "We understand the need to terrorists and protect civil liberties, so let's have a dialogue to talk about how we can ensure both." And actually, I think what we've seen is, quite frankly, most often the opposite. Every time a new security measure is proposed, there is a chorus of critics rising up talking about how it's undermining the Constitution, and, on the other side, anytime somebody talks about defending the Constitution, people rail about how they're trying to prevent us from getting the terrorists. Of course, the latest edition of that we saw was in the National Security Agency's role in intercepting and monitoring terrorist communications that flow across the world, in and out of the United States. We had a long history of that, a debate over the controversy of the National Security Agency's programs, the threat of legislation, some decisions by the United States to submit these programs to a court called the Foreign Intelligence Surveillance Act, and judges of the FISA (Foreign Intelligence Surveillance Act) Court.

What can we learn from this? What's going to happen on the way forward? Should there be more legislation? Did we do things right? Did we do things wrong? Why aren't we having this kind of reasonable dialogue between people about how do you achieve security and protect civil liberties?

So what we tried to do was have a dialogue here. Mary DeRosa works at the Center for Strategic and International Studies and Todd Gaziano, of course, is here in our Legal Center at Heritage Foundation. What I asked them to do was to start out with the notion that both security and civil liberties are important, and see if there is a consensus among reasonable people about what happened in these programs, what have we learned, and what's the way forward.

Mary DeRosa: I think most of the reason we are here is to look forward and talk about what we should do now. But I think you have to separate the issues of how the Terrorist Surveillance Policy was authorized and how it has been handled up until now, and then look forward. I have strong disagreement with the way that it was authorized and the way it's been handled; I won't be able to resist making a comment or two about that, but I'll try to then talk more about what I think we need to do next.

On the looking backward part, I just note that the recent move by the Bush Administration to bring the program under the authority of the Foreign Intelligence Surveillance Court to get court approval of all of the surveillance decisions under that program underscores the important point that this was never about necessity. The Administration's decision to go around FISA, violate FISA, go outside of the scheme that FISA set up for approving these, was not about a national security imperative. There's no question that using the FISA scheme is a big pain; very difficult. I think that it was at best an inconvenience, but it was not impossible. If it's possible now, it was possible earlier on. I think that that's an important point to keep in mind, to the extent that legal arguments were made on the basis of "This was an imperative," and "This was necessary for the president to carry out commander-in-chief responsibilities." I think it's clear that was not the case. What I wish the process had been is to really look at the FISA statute, and examine carefully what kind of flexibility and what kinds of opportunities there were within the statute to do what was needed. Keeping in mind that I have not been in the Administration, I'm not privy to any of the classified information or what is actually happening in the program, and so I'm basing any understanding of what is happening on public reporting.

FISA is much more flexible than a lot of the discussion since this came out has given it credit for. I think what has happened with the statute, as with many other statutes in the executive branch, is you have years and years of interpretation of a statute. So you've got the statute and what it actually says, and then you've got layers of policy and caution and lore that have-with the best of intentions and for good reasons-built up around it. And you have lawyers in the different agencies telling policy people that they cannot do things, when maybe it's not really the statute that says they can't do things. So what needed to happen, and what I think clearly has happened now, is trying to peel away those layers and find out what you really can do under the statute. I think it is and was more flexible than it was given credit for. So that's my backward-looking comment.

What to do now? I say that the FISA statute is a lot more flexible than people have given it credit for, but it is far from perfect; it is far from a model of clarity. I think the right thing to do is take another look at it and change some things, modernize it, make it make more sense. You obviously have to do that in a way that's responsible, but I want to go through some of the things that I think might be a useful part of a modernization of the statute. I think almost everybody agrees with me that electronic surveillance of terrorists for purposes of fighting terrorism is extremely important-critical-and we don't want to have ourselves unnecessarily hindered in our ability to do that. On the other hand, it is an extremely intrusive, very sensitive area we're talking about-interception of the contents of communications-and we have to be extraordinarily careful about protecting privacy and liberties.

So I'll just tick through a few things that I think might be useful to update and modernize the statute. One, it's important at this point, because of the discussions we've had and the way that the Terrorist Surveillance Program was authorized, to have in a statute a reaffirmation that the process that is set forth in FISA is the exclusive process for authorizing national security electronic surveillance. I think that what we have now, because there has been no action on the part of the Congress to respond to the Bush Administration's legal arguments, you have the danger that they will be seen as having acquiesced by this Administration, by later administrations, perhaps by courts. In my view, the exclusivity of the FISA mechanism is really critical. In an area as sensitive as this, outside court oversight of decisions about electronic surveillance of U.S. persons[1] and persons within the United States is really critical to public acceptance of this kind of tool.

Beyond that, outside oversight provides an incentive. I think the perfect example is the fact that the Administration has now found a way to get the Court to approve and get this program under the Court's authority within the FISA scheme. Without a check, without somebody from the outside looking over your shoulder, the best-intentioned personnel are going to find it hard to take all of the really necessary steps, the hard work that it takes to find a way to do something that is less intrusive but gets you where you want to go. The recent switch shows that it was impossible until there was scrutiny from outside, and then it became possible to find a way to do it. I think that is another important thing that you get. I'm sort of stating the obvious, but that's what outside checks are all about. Having it being a court, the FISA Court, that is doing the approvals, is so important for public acceptance of the decisions and of the process in this extraordinarily sensitive area.

What else might be updated? I think any legislation that looks at the Foreign Intelligence Surveillance Act and process has got to deal with some of the bureaucratic issues that we hear about all the time. I'm convinced, in fact, that most of the bureaucratic problems are not because of the statute, but certainly if Congress can give the executive branch a hand in working out this really sometimes crippling process, they need to do it. A lot of the legislation that has been proposed in this area, almost all of it having some fix for the bureaucracy, whether it's adding people or other kinds of streamlining. So I won't spend much time on that, but I think that's really quite important.

Modernize the statute or the way the statute talks about technology. This is a statute that was passed in 1978: It has been updated a number of times and things have been added, but it dealt with a world that looks very little like the world that we live in now in terms of technology and the threat. So you look at the statute, and although I've said that I think it's very flexible, you need your decoder ring to figure out what on earth the statute is really dealing with and how do you apply the intent of the statute of 1978 to current circumstances. I think we could really benefit from updating in order to make the language of the statute more technology-neutral to fit our current needs, but maintain the very important protections, the core of the protections of the Act, and the balance that the Act has had from the beginning.

I think one example of where the changes in technology have caused confusion, one thing in particular that would profitably be clarified, is that right now there is at least some confusion about whether when you have a conversation or a communication that's taking place entirely overseas between two people who are overseas, but the interception might be taking place at a switch in the United States, because of the change from circuit-based to packet-based communications-and I am not a technology person, so I have now exhausted my ability to explain that-we now might have a situation that we would never have contemplated in 1978, where communication entirely overseas would actually be intercepted within the United States. I don't think FISA intended to cover that: I actually do not believe the current statute would require that communication to come under the FISA mechanism, but there's at least some confusion about it, and I think that's a place where we could modernize and fix.

I read an article yesterday by Kim Taipale that's going to be coming out sometime soon called "The Ear of Dionysus: Rethinking Foreign Intelligence Surveillance"; it will be coming out in a Yale journal. I just found it very helpful. I don't agree with everything he said, but he goes through some of the changes to technology and how they raise issues with FISA. I thought it was very helpful. I think that is the kind of discussion that really would be profitable.

Finally, I'll just mention that we need to find a way to deal with automated analysis programs and how they fit into electronic surveillance and the approval for electronic surveillance. I think link analysis, traffic analysis, what some people call data mining-an inexact and loaded term-but automated programs that use logarithms to detect terrorists and to determine subjects for surveillance, was, again, not something contemplated in 1978. An important tool, but a potentially very intrusive, dangerous-to-privacy tool, and we need to craft a way to have careful court oversight of the tools without having some sort of broad-brush approval of an entire program and then "come back and see me in 45 days." I think that's not enough to really give a rigorous look at these things. You need, and I think a court could, within its appropriate role, to look at a process, look at an algorithm, see how accurate a particular process will be, what is the trigger for human actual review of communications, what kind of protections and guidelines are used, what kind of audit or other monitoring exists, and to have careful and regular oversight of those programs. That's something I think really would be a good thing to have in a modernized FISA.

So I'll stop there with those few ideas and I'll introduce Suzanne Spaulding. Suzanne has a very distinguished career in national security and intelligence. She's been General Counsel for the Senate Intelligence Committee, she's been Minority Staff director for the House Permanent Select Committee on Intelligence, she's been executive director of the Deutch Commission and Bremer Commission, a lawyer at the CIA, she's past Chair of the American Bar Association's National Security Law Group, and I could go on. So I will introduce Suzanne and you can continue.

Suzanne Spaulding: Thanks Mary. It's probably not surprising, given that Mary was the one who asked me to be on the panel, that I agree with virtually everything that Mary said. I will try not to be repetitive as I talk about this, but one of the areas in which I agree with Mary is that we can't just start with today and look forward. I think it is important to review the bidding up until now and to have some more discussion and debate and work at achieving some consensus about the legal framework, what has happened to date, as well as where we want to go as we move forward.

So in that context, I think it's important to look again at the legal posture of the Terrorist Surveillance Program. Again, I think it will be important for us to reach some sort of understanding about what that legal posture is and what it ought to be. As you know, the Administration justified the Terrorist Surveillance Program and its operation outside the context of FISA and inconsistent with the requirements of FISA on really basically two grounds. One was that it was authorized by Congress when Congress passed the authorization for the use of military force after the attacks of September 11th, and the second was that it was pursuant to the president's authority under Article II, primarily the commander-in-chief authority because we are engaged in this global war on terrorism.

I think it's fair to say that most scholars do not accept and-I'll just speak for myself-I certainly do not accept that the authorization for the use of military force can be viewed as an authorization to ignore the very clear requirements of FISA and the language of FISA that talks about it being an exclusive means. The language in FISA that contemplates a situation where we are at war provides specific authority for fifteen days of warrantless surveillance in that context. A very detailed, very complex law, many pages long, worked out between Congress and the executive branch, passed by Congress, signed by the president-to conclude that that was somehow, in effect, overruled, or repealed or altered by this very brief authorization for the use of military force, which makes absolutely no explicit mention of electronic surveillance or even intelligence gathering or certainly FISA is not only inconsistent with common sense, but it's not consistent with traditional concepts of statutory construction.

So I think that argument falls, and then the president is left with relying upon constitutional authority under Article II. I think clearly the president, then, is operating in category three of Justice Jackson's three categories described in the Steel Seizure Case. And you'll remember that was the case during the Korean War when President Truman acted in violation of a congressional statute in seizing steel mills in the United States and argued that it was essential to do that in order to ensure the production that was necessary for the defense of this nation. The country was at war in Korea at the time. Congress had enacted, again, a very elaborate statute that provided a process by which the government could assert priority in the production of steel at steel mills. And the president said that was too cumbersome and really shouldn't apply in a time of war, and, asserting constitutional authority, seized those steel mills. The court ruled against the Administration in that case, and Justice Jackson, in a concurring opinion, talked about this tension that is inherent in our constitutional system between the president and the Congress and the relationship between them, in three categories.

There are three situations in which this can come up. The first is where the president is acting in concert with, and consistent with, a statute that Congress had passed-when the president is acting pursuant to FISA or pursuant to this statute that allowed the president to take over the steel mills under certain procedures, etc. In those situations, Justice Jackson said that is when the president's power is at its greatest. I think that's one of the things that is so ironic-that is where the president's power is greatest. It's not where the president is asserting the power to act unilaterally, but where the president is acting in concert with Congress, because the president now is acting with all of the president's authorities and all the authority of Congress combined.

The second category that could come up is where the president is acting in an area where the Congress hasn't spoken. Congress hasn't done anything on this, the president is asserting authority to do it. Justice Jackson says that is kind of a gray area or twilight area, and you have to look at the Constitution and do an analysis and figure out, "Does the president have the constitutional authority to act in this way in this area?"

The third category is where the president is acting in contravention, or against the implied or explicit will of Congress. And there Justice Jackson says the president's authority is at its weakest. That's not where we have the most powerful president; that is where the president's authority is at its weakest, because the president has to be arguing not just inherent authority, which is the term that is often used, but exclusive authority. The president has to be arguing that Congress has no constitutional right to speak in this area and that the president has unique, exclusive constitutional authority in this area. That's the category in which I think the president was acting under the Terrorist Surveillance Program. Now granted, Justice Jackson did not say that the president has no authority to act in contravention or against the express or implied will of Congress. Justice Jackson could have said the president can't do that. Justice Jackson didn't say the president can't do that. But it's a pretty narrow category and a very high threshold to meet.

I would argue that in this context we don't know. We don't have enough facts to know whether the president was operating in a constitutional manner on the day that the president first said, "Go ahead and conduct electronic surveillance in violation of the Foreign Intelligence Surveillance Act." I could posit a circumstance in which I would think that would be constitutional. Under any circumstance, the president has to be operating consistent with the Fourth Amendment. There is no circumstance under which the president can ignore the Fourth Amendment. I don't think the Administration would argue that: I don't think anyone would argue that. So the Fourth Amendment says that any search has to be reasonable. We have court cases that have said the way you establish whether it's reasonable-particularly in the national security context-is you look at the government's compelling need and you balance that against the nature of the privacy intrusion. So that is why we would need to have the facts in order to second guess that decision on that day.

But certainly you can posit a circumstance, you can envision a circumstance where something has come up in a context that Congress could not have contemplated, did not contemplate, in the passage of the Foreign Intelligence Act-that it is an emergency situation, time is of the essence, there's no time to go back to Congress and try to get the law amended, and the president has to act in order to defend and protect the nation. I think it's not unreasonable that the president retains some exclusive authority to operate, to act in that circumstance, to say to his or her people, go ahead, conduct the surveillance. I would argue that at the same time, the president needs to say, "You, legislative affairs folks, go down to the Hill and start talking to Congress right now about how we can put this on a more solid legal footing." Why is that? Clearly from a policy perspective, that makes a lot of sense, and I'll talk about the national security implications of not putting this on a more legal footing. In addition to privacy concerns, there are real national security consequences for having failed to do that.

But it's also, I think, part of the Fourth Amendment analysis, that balancing. Part of the compelling government need here is urgency, is time. There is no time to go to Congress to get an amendment to the law before you conduct that surveillance, because we have to do it right now. Over time, that element on this side of the scale-government compelling need-dissipates as you have time to go to Congress and see if you can't seek an amendment to the legislation. That doesn't mean running it by a couple folks up on the Hill who say, "Oh, I think it would be too hard, I don't think that qualifies." So I would argue that four years later, five years later, that's going to be a very hard argument to make, that you're still within the bounds of the Fourth Amendment in terms of being able to argue that compelling government need. Certainly today, I think, it was incumbent upon the Administration to bring this within the scope of the law, either as they appeared to have done, working out a way to conduct this program within the boundaries of the Foreign Intelligence Surveillance Act, or by seeking amendments to the law.

I think it's important to review that and to have that in our heads as we move forward on this, and as Mary said, not to just sort of leave that hanging. Because I think the alternative is the Administration continues to assert unilateral authority to decide which laws it is going to abide by and which laws it is not going to abide by, without giving us any clear indication of where the limits are on that analysis. Under what circumstances and under what circumstances can the president not decide that this law, unilaterally, unconstitutionally infringes on my authority? n the very secret way that I hope never comes to light and therefore never can be challenged in court, I'm going to ignore the law and go ahead and do what I want to do.  That is an extremely troubling place for us to leave this, so I think it's important to resolve that issue.

I'm very pleased and encouraged that we are now at a place where apparently this program has been brought within the bounds of the Foreign Intelligence Surveillance Act and it has been brought before a judge. There are some kind of orders, and there's still so much we don't know, and there's so much we probably never will know about this program, and there's so much we should never know as members of the public about this program. But based on what I have heard from Administration officials and others it sounds as though this program has been brought within the bounds of the Foreign Intelligence Surveillance Act. And I will tell you, I am more confident in congressional oversight today than I would have been a year ago, not only because we have the tension that I think is sort of healthy between the differing parties in the White House and Congress, but also because there is some indication from what we're hearing that there is greater transparency with Congress, that in fact Congress is learning more. And the fact that the Administration has agreed to hand over the orders issued by the FISA judge, apparently, to the Judiciary and Intelligence Committee-at least to the leadership-I think it's encouraging that they're briefing those members. That's important.

So if I have a sense that they know what's going on, and that they are comfortable that this is indeed complying with the Foreign Intelligence Surveillance Act, frankly that's good enough for me in terms of a sense of whether we're on some kind of more solid legal footing or not. The legal theory is based on anticipatory warrants, which were recently upheld in a court decision, and I think there's an interesting discussion to be had there about how that might apply here, whether it's looking at minimization procedures that have changed. Kim's article that Mary mentioned speculates that a lot of this is about collaterally collected information, incidentally collected information; not the information you were targeting, not the person you were targeting, but information that you happen to collect while you're targeting a legitimate target. We don't know what that is.

To some extent, we aren't going to know a lot of this stuff because there are national security imperatives for keeping secret. But I do think there is an awful lot of this that we can discuss and need to discuss in a public forum. I agree with Mary that it's very likely that FISA needs to be updated. I disagree with those who say we can't go there, because any discussion about any legislative amendments to FISA will reveal such sensitive information that it will significantly damage national security. I'm sure those arguments were made when FISA was first enacted, and those definitions of electronic surveillance are convoluted and extremely hard to understand for a reason. They were dancing a very delicate dance. They were trying to bring as much transparency to this process as possible, which is important in a democracy. For intelligence activities to operate in a democracy, it's really hard. You have to roll up your sleeves and you have to bring as much transparency as you can in order to maintain the public trust. I think they worked really hard at doing that with FISA and I think they did a very good job. And I think it might be time to look at it again.

Particularly in light of all the amendments and the Patriot Act and the way FISA has become not just the electronic surveillance statute-early on, years ago, it included physical searches, and now it includes all kinds of authorities in the intelligence realm-it has become the statute that governs intelligence collection inside the United States. I think Congress ought to convene a joint inquiry. It ought to have, at a minimum, representation from the Judiciary and the Intelligence Committees. I would consider even including the Armed Services committees, given that the Department of Defense is engaged in intelligence collection in the United States. And I would look not just at the Terrorist Surveillance Program, but other programs that the Attorney General has at least hinted are going on, and I would look broadly at our domestic intelligence collection effort. What are we doing, what have we done, what should we be doing, what do we want the government to be able to do, and what is the appropriate legal framework for domestic intelligence collection at large? I would do a much broader review of this and I would do it in some depth, and then make recommendations to the appropriate committees and to Congress.

Todd Gaziano: Thank you, Suzanne and Mary, for beginning this discussion. I'm going to try to limit my remarks somewhat and yield extra time to my guest, John Yoo.

Now, turning to the topic, I want to give a few brief remarks, my sort of legal overview and then give an extended introduction not just to Professor John Yoo, but to his writings, which I think are the key to providing the right dialogue on this subject.

Let me just define a little bit more for the public that may not remember what the Terrorist Surveillance Program is about. It's most horrible leak wasto the New York Times and other papers. During the war, of course, we've captured laptops and other material with cell phone numbers. It isn't, of course, probable cause to believe that everyone they're calling in the United States is one of their cell members bent on the destruction of the United States, but we are at war. At least, I ask you to accept my belief (and, I think, an easily defensible position) that we are at war. And at war, identifying who the enemy is is an important goal.

I wanted to comment just a little bit about what the legal framework for that kind of a program is, because I agree with much of what, particularly, Suzanne said, but with a few exceptions. That is that the FISA statute may not apply at all to that kind of program. I won't go into details about that, but I will remind everyone that FISA was written for a Cold War situation, not a shooting war, a Cold War situation where the identity of possible Soviet spies, who they were, was reasonably well known and someone could go to court. It wasn't a shooting war where the paramount need in a shooting war is to identify who the soldiers are, and particularly if they are saboteurs in your country.

But even beyond that, FISA always had unconstitutional aspects. Every president has pointed out that it has some constitutional applications and it has some very unconstitutional applications. And if you push it to apply in a shooting war, then those unconstitutional aspects dwarf the constitutional aspects. This president has been extremely restrained in not pointing out the unconstitutional aspects, not pushing the obvious, that it has so many unconstitutional applications. He has tried too hard, I believe, to live within the questionable constitutional regime. I worry seriously that he has done so. But with regard to that, I do want to say that I beg to differ that the authorization for the use of force did nothing. In that respect, Congress often speaks inconsistently in different enactments. It seems pretty clear to me that when Congress says with regard to this war we're fighting with al-Qaeda, "You are to use all necessary means to defeat al-Qaeda and similar terrorist organizations," that one of the absolute requirements that Congress is requiring him to do is to find out who they are. You can't direct energy at the enemy unless you determine who they are.

I appreciate Suzanne's discussion of Justice Jackson's opinion, but I'd now like to suggest that Congress has great power during times of war. If it uses its own power, it can de-fund a war, it can not approve military commanders, it can do all sorts of various things that John has written so brilliantly about. And for private citizens who have their Fourth Amendment rights violated, the courts are open; the courts have all sorts of roles to adjudicate those. But there are just a few things that I submit the president clearly does have unilateral authority on, and I think it's not fair to say that the president purports to decide which laws he will follow and which ones he doesn't. He has an absolute constitutional obligation to guard his own constitutional power, not just for the benefit of the citizens, which is the immediate need, but also for the benefit of future presidents. And that is all he has done in a very modest way.

Now I do want to spend some time talking about John Yoo, and I'm even going to give a brief introduction of who he is to talk about some of his writings. He is a professor at the University of California, Berkeley School of Law, known as Boalt Hall, and he's been a visiting professor at many distinguished universities both here in the United States and abroad. John has worked in senior legal positions in all three branches of the federal government. The position that probably gives him the most relevance today is when he served as Deputy Assistant Attorney General in the Office of Legal Counsel in the Justice Department. This is an important office that advises the president and other Cabinet secretaries on constitutional issues. Well, Professor Yoo's expertise was international law, foreign policy, and separation of powers issues relating to war powers and treaties-those sort of boring subjects, which, prior to 9/11, were not going to be important issues in this Administration concentrating on domestic issues.

As you all know or should know, after 9/11, John was forced to be one of the central legal scholars that helped the Administration figure out what the legal regime allowed or even required the president to do to fight the war that we are currently in. I think he has done a brilliant job. Subsequent to some of the leaks, however, John has unfortunately been subject to incredibly ignorant criticism by some conspiracy theorist and cultish movement automatons who unfortunately don't have much of a clue that their grasp on the facts and the law don't have much link to reality. But fortunately for the rest of us, especially those who know Professor Yoo, he has written all these great books in recent years.

I want to just mention two briefly, because I do think reading John Yoo's law reviews and books, particularly these two that I have here, will do a lot to provide the sensible dialogue that we need. Those who know Professor Yoo know that he is one of the most brilliant, but also civil and open-minded scholars, who writes on issues of war powers. His book that came out I think about two years ago, The Powers of War and Peace, particularly concentrates on the historical and constitutional issues actually from before the founding-how the war powers can correctly be understood that were incorporated in the Constitution based on British and colonial constitutional history and the constitutional practice since then.

Of particular relevance today is his most recent book, War By Other Means, which focuses on a lot of the legal issues he worked on for the Administration, and in particular, he has about eight chapters, eight subjects that he deals with: chapter five deals with the NSA's Terrorist Surveillance Program.

I'd like to read two excerpts to talk about how difficult a job he has and how valiantly John has done it. In response to some of the leaks about the Terrorist Surveillance Program and a profile that the New York Times did on him subsequently, John wrote this, "Justice Department officials have prohibited me from responding directly to accounts in the New York Times and in other papers. They say that to discuss any aspect of the program or my involvement could reveal sensitive national security information that has not been publicly confirmed by the government. While this rule makes a great deal of sense, it has the perverse effect of giving leakers an advantage. Government leakers will reveal only selected information that places them or their interests in the best light possible"-and I should add, they may not even be true-"Even if the media publishes incorrect or misleading reports, those who follow the rules cannot respond because the government is concerned that any confirmation or denial would reveal secret information." Well, John in his chapter has done a great job of using the publicly released information from the Justice Department and the Administration and his own knowledge just of the legal issues and facts in explaining the need and the proper legal regime for the Terrorist Surveillance Program. I wish he could tell us a bit more.

But there is an even more important point that he relates in his introduction. He says in his discussions that he finds a lot of misunderstandings about the facts and law relating to our war with al-Qaeda, but he adds this, "I also found that many people have an exaggerated view of the role of law. Law is critically important to our society generally, and to the war on terrorism, but the law is not the end of the matter; indeed, it is often the beginning."

So this is my first question to all the panelists. I think that we do see an unfortunate legalization of policy disputes, matters that are really policy issues being termed as legal issues. I wonder if that isn't in part intentional because people are avoiding the more difficult policy. Congress, instead of exercising its authority that it has to de-fund a war, wants to accuse the president or another party of violating the law.

My second question, principally for John, is whether the change in legal foundation that the Terrorist Surveillance Program is now being cast in will calm the political and other questions about it. I think it raises more troubling ones, for me. And it relates to my last question, and that is whether the supposed supervision of the FISA Court is constitutional or in what ways it could be constitutional, because we don't know exactly what the FISA regime is all about.

I want to end with the following hypothetical that I think John has heard before, but I'm not sure some of the rest have. Could Congress pass a collateral damage bombing court and say that 15 days after any war begins, every military commander shall go to the collateral damage bombing court and get approval for their bombing missions? I think it would be correctly said that certainly the president would have time to go to Congress to get such legislation, and certainly we could make it an expedited process. Would that be constitutional to require the president to go to judges to get approval for bombing, and if not, is intelligence gathering more like bombing or more like something else?

John Yoo: We were asked to try to find common ground on the Terrorist Surveillance Program, so before I try to answer Todd's questions, which I think the other panelists will probably want to answer too, I'm going to try to identify some areas where we might agree and then maybe point some way forward.

Everybody seems to acknowledge to some level that the FISA statute is not, in its current form, really the best tool or suitable for the challenges for the War on Terrorism. The FISA statute is a 1978 law written primarily to allow us to better watch Soviet espionage agents; the primary enemy was thought to be a nation-state. So some of the criticisms of FISA have to do with just the change of technology, which I think are correct. But I think one thing that was missing in the earlier presentations is that part of the pressure on FISA's obsolescence has been caused by the fact that the enemy is different. It's not as easy to conduct FISA-style surveillance when the enemy doesn't conveniently locate most of its espionage agents in your country in its embassy. The Soviet embassy was the convenient first starting point to look for people who were contacting the Soviet Union. If you have an enemy that has no territory, that operates like a network, that does the best it can to blend its activities into the activities of the civilian population, and then tries to conduct surprise attacks on civilian targets, you have to use different measures. The FISA framework really wasn't built originally to address an opponent like that.

 

The other thing about FISA that also makes it somewhat unsuitable is that it uses this law enforcement framework that is increasingly becoming a military problem. So the FISA system, one of the reasons it's so attractive to lawyers and lawyers like it a great deal is that it's very comfortable; it's very similar to the criminal justice system. You go to a judge, you get a warrant, you conduct a wire tap, and you get the warrant because you can show probable cause that you think person A is a terrorist or connected to terrorism. That doesn't necessarily work in a War on Terrorism.

For example, let's take a hypothetical about something that could not work under the FISA system at all, which would be a very sensible thing to do right after 9/11. Again, I can't say whether we actually did that or not-I hope we did, but I don't whether it's technologically possible-but suppose after 9/11, the United States could intercept every communication going in and out of Afghanistan. We knew the Taliban was there, we knew al-Qaeda was there, I would think that would be a very sensible thing to do. You could not do that under FISA, because FISA requires that you already have a reason to think that a specific person is a terrorist or connected to terrorism. It doesn't allow you to do a blanket search for all communications going in and out of the country.

And to be even more perverse in terms of the War on Terrorism, under FISA we could intercept all of the communications going from Afghanistan to other countries that didn't involve Americans without a warrant, but it would be harder to intercept communications from Afghanistan into the United States. Under the current statute, if there is a call coming out of Afghanistan into the country, you have to get a FISA warrant. You would think those would be the ones you would be most worried about, those were the ones you would give a higher level of scrutiny to in the weeks after 9/11.

I think Todd and I have serious disagreements with the other two panelists about the constitutional framework that governs this area. I think, for example, the others on the panel think that Congress has the dominant role here and that the president really ought to be implementing Congress's policy decisions. I think Todd and I draw on a longer tradition in American history of presidents carrying out national surveillance. I think this is an objectively true fact that doesn't come up very often, which is that President Franklin Roosevelt ordered national security surveillance and he did it much more broadly than President Bush has. He ordered, in May 1940-over a year-and-a-half before Pearl Harbor-the interception of every communication inside the United States or outside the United States, regardless of whether anyone was suspected on either end of the call of being linked to terrorism. He just wanted all communications intercepted because he was worried that there might be Axis spies or sympathizers in the country who would blow up munitions plants, in part. At that time, there was a Supreme Court decision and a federal statute which prohibited any wire tapping by the government without a warrant.

So it seems to me that if you want to talk about direct conflicts between the presidency and Congress over national security wiretapping, it happened back then. The attorney general at the time even went to Congress, talked to members of the House Judiciary Committee about passing a law to approve the program, and was told no, Congress would not pass such a law, and President Roosevelt said okay, I'm going to keep doing it. Now today, we tend to associate President Roosevelt with having successfully waged World War II. In fact today I think most people are glad of the things he did before World War II to make the entry of the United States into the war quicker on the side of the Allies. I think under a vision of the Constitution where Congress is dominant, you would have had a lot of difficulty for President Roosevelt to get the country into the World War II and take those steps that were necessary to help the Allies.

That said, I think there is agreement that signs of congressional support are important and welcome. In part, putting aside the constitutional disagreement, I don't think anyone disagrees it would be important as a political matter if people in the public thought that certain people in Congress who had been briefed on the program thought that it was legally okay as a matter of assuring the public that even though they can't know the details (and they wouldn't want to know the details of the program publicly), it has the confidence of the leaders in the intelligence committees and so on. I think that sign is already apparent from the Court, so we could talk a little bit more about this discussion. I'm still not clear how it is the Court actually approved the Terrorist Surveillance Program. I think Mary makes a good point there, which is that if the Court could approve it now, why didn't it do it two years ago? The only thing I can say is either the program has changed in its scope, which is entirely possible, or the judges on the Court have changed. Because it seems apparent as a political matter that if the executive branch could have gotten a FISA Court to approve it six years ago, they would have. I don't think they just sort of blindly go about doing things on their own for no good reason.

The last thing is what can we do to look forward in terms of changes in the law. One thing I would say is that the debate about FISA and the debate about the Patriot Act--which most people don't know is mostly just hundreds of amendments to FISA-in a way obscure the debate, because I think people who are very critical to the Administration's approach to civil liberties and terrorism tend to exaggerate the importance of the Terrorist Surveillance Program, of the Patriot Act, and of FISA. I'm not saying actually that Mary and Suzanne have done this, but in other fora, you see people saying this is the end of civil liberties in this country in wartime, whereas I think most people who look at these programs and look at the Patriot Act and look at FISA see them as evolutionary changes in this sort of basic FISA framework-but nothing revolutionary of the type that was mentioned before about data mining, for example. I think if there was more data mining, which most intelligence experts would tell you is the one thing the government is prohibited from doing right now, it would be a big change in the capabilities of the government to go after terrorists. But there is a funding restriction on research and development by the Defense Department into data mining. That would be a revolutionary big change. That's not mentioned in FISA, that's not mentioned in the Patriot Act, and that's not a part of the Terrorist Surveillance Program, as far as we know publicly.

On the other hand, people who are very supportive of the Administration's program, particularly in the Administration, tend to exaggerate the importance of FISA and the Patriot Act. I don't think they are as important as some people think because they aren't revolutionary efforts to get at terrorism, they are evolutionary modifications of the basic statutory framework. So one thing I think we need to do going forward, in a useful way, is to think seriously about whether the FISA system should still continue to govern the way we think about intelligence gathering, given that it's rooted in a 1978-based system of law enforcement approach to handling national security threats. If the threat that al-Qaeda poses to the country is much greater than what espionage and small-scale terrorism was thought to be earlier, then we ought to reasonably expand the tools and capabilities we're willing to bring to bear to stop them from carrying out more successful attacks on the country. I think in order to do that we have to rethink the legal system to match the deployment of new kinds of capabilities.

A good example is how we use data mining. Should we use some kind of statutory method? Is this somewhere where the executive branch should take the lead? Right now I think our system is so mired in this debate about FISA and the Patriot Act that we can't really come to grips with data mining, which really is something significant and revolutionary that we could do. How do we use new technologies? Again, are we going to allow the executive branch to go first to develop them, or are we going to look to Congress to establish the rules for new technologies?

The one thing I would caution-and I hope I can answer Todd's first question here-is that the legalization of all these disputes is somewhat unwise in this respect. Law makes a lot of sense and using very clear legal rules makes a lot of sense when you have a lot of experience with the costs and benefits of certain actions-when you know that certain policies produce certain kinds of costs and benefits consistently. The thing, it seems to me, you don't want to do is pass strict or clear legal rules when you're still trying to figure out exactly what the policies are. It seems to me you wouldn't pass a law about data mining before you know exactly what data mining can do and all the associated benefits and problems with data mining. It seems to me you wouldn't legalize this area of intelligence gathering, especially with regard to al-Qaeda and terrorist groups and these new kinds of technologies, until you have some substantial experience to draw on about what works and what doesn't work, on what you want to do and what you don't want to do.

With that, I would say in answer to Todd's first question, I agree. I think this whole area has been legalized. In a way, I think the legalization of it, the fighting over the law, does tend to obscure the policy debates one ought to be having about whether, for example, data mining is good or not, whether intercepting all of the calls out of the country makes sense or not, whether we want to have harder standards for when those calls come into the United States or not, how we protect privacy interests: We can do that using technology or not. So I agree with Todd; I think it's a very insightful question. Because we're probably all lawyers, we tend to like talking about it in a framework of law, but then you don't really have a good upfront discussion of things we could or could not be doing for the future, just based on their positive and negative costs and benefits.

James Carafano: I want to ask two questions of our panelists. Obviously everyone on the panel thinks that the current FISA law is inadequate and they'd like to see it revised in some way for different reasons, so that's one thing you have in common. The first thing I want to ask each of you is, what are the points that all of you share in common? The second question is what do you fundamentally think you most disagree with among the four of you?

Mary DeRosa: Well, I think that the answer to the second question is probably longer. But there are some things that we agree on. On the question of confusing legal and policy issues, I think that we probably have some agreement on that. It concerns me a lot when discussions about what should we be doing get turned into discussions of "what you can or can't do."I think this happens a lot of times, again, for the best of reasons, within the government when you get told you can't do something by a lawyer when really it is more of a policy discussion. So I think that separating out policy from what should we be doing or from what we can and can't do in a discussion is always a good thing and it doesn't happen enough. So I think we agree on that.

I think we actually agree on the importance of flexibility for the president. I disagree with the characterization that John Yoo made of Suzanne's and my remarks, that Congress has the dominant role here. I think Congress has a role here. It sort of amuses me when I find myself in these discussions because I was a legal advisor at the National Security Council and have always considered myself, since that time, as somebody who really believes strongly in executive authority. Then these guys came on the scene and I realize I'm not as extreme in that area as I thought I was, but I do think the president's authority is very important in these areas. I disagree about the degree to which FISA and other things constrain it, but I'll get to that in the second question.

Suzanne Spaulding: Well once again, I agree with Mary, and I won't repeat it. I think another way in which there's some consensus here is that there is some real value in operating on a solid legal footing, that there is, from a policy perspective and a public faith and trust perspective, some value in trying to work through these issues in a legislative context or at least bringing as much transparency to the policy discussion as we possibly can.

I want to take just a second to talk about why I think that's important from a national security perspective, why the failure to put this program, the Terrorist Surveillance Program, on a solid legal footing from the get-go had national security implications. I think there were several very real implications. One was that the program was leaked. And if you support this program and you think it's important to national security and that its leak harmed national security, part of the reason that this program leaked was because there were individuals who knew about the program who thought it was illegal, who did not believe it was on a solid legal footing, and felt compelled to go public with it. If it had been on a more solid legal footing, I think it's far less likely we would have had that public exposure.

It was shut down for several weeks. So again, if you think the program is important, the fact that it was shut down for several weeks-as I understand it from what little bit we can glean from reading between the lines, it was shut down for several weeks because of debates about the legality of the program or legality of certain aspects of the program. I think if you believe the program is important to national security that that harmed national security. It certainly demoralized to some degree the intelligence community, certainly certain elements of the intelligence community that now feel some uncertainty about the legal footing upon which they are operating. In this context, they are potentially facing criminal prosecution if a court decides to rule on this and rules that it was, in fact, in violation of FISA, every individual engaged in that activity faces personal criminal liability.

And then, obviously, the future support of Congress for things like the authorization for the use of military force, which is obviously important for national security, that Congress be willing to give the president the kind of authority that the president chooses to seek from Congress, is jeopardized when a program like this is not on solid legal footing. That's my reason, but I think while you may disagree with those particulars, my sense was that there was a consensus on the value of having these activities operate on a more solid legal footing.

Todd Gaziano: I think I've come up with six areas of agreement.One, we are in a real shooting war. This is war. Two, we have a desperate need during a war to find out who the enemy is and for other valuable military intelligence. But it's even more important where we have terrorists in our country trying to destroy us through terrorism. Three, we agree that it would be very good if national security secrets could remain secret. Four, FISA is very, very problematic. We disagree as to how problematic. Five, it would be nice if Congress would do the right thing and fix FISA. It's certainly not worth it to agree to change FISA if it's not a good fix. And six, we all agree that the president has some inherent, exclusive constitutional authority. I think we disagree on what it is, but I'm going to offer one that I hope we all agree on, that is that since time immemorial it is not just the power but the obligation of the Commander-in-Chief and every military commander in the field to gather any and all military intelligence about the enemy.

John Yoo: I agree with what Todd said. Congress has already authorized the president to use force under the Constitution; the president has the authority to use force to repel outside attacks. Why would the president be disabled from learning the information about where to point the gun when he already has the power to pull the trigger? I think that's basically what we're talking about. The president's constitutional authority to use force to try to kill the leaders of al-Qaeda has to carry with it the authority to use all the methods he can to find out where they are in the first place.

I'm going to try to answer James' question more directly. Everybody's been saying that we ought to change FISA or we ought to amend FISA without being very specific about exactly how they would change FISA.

One question I have is would people be willing, as I would be, to allow FISA to extend to the surveillance of targets based not on identity but based on place or on the basis of the kind of conduit that is being used? For example, when we say probable cause that somebody is likely to be connected with terrorism, we have some percentage belief that that person is in fact connected with terrorism. But it's not 100 percent; maybe it's 50 percent or 30 percent likely someone is connected to terrorism. Well, would people instead be willing to say we allow FISA to extend to surveillance of a place where we think it's 10 percent likely terrorists will be using this communication channel? Will we allow FISA to allow for a sweep of all communications coming into and out of Afghanistan or western Pakistan, because we think if they are terrorist leaders of al-Qaeda, they are likely to be in that area?

The second thing I would say is whether we ought to also think about changing this judicial, going to a court and getting a warrant in order to conduct surveillance, which again comes out of a law enforcement area. I think another useful change would be to say, "Look, if you use FISA, then you can take the evidence that you get from this judicial-centric process and use it in criminal prosecutions in federal court." Then if you don't, if you do as Todd has suggested in the present, he's using all the methods he can to get information to stop an attack, and he doesn't go through this judge-centric process, whether you just simply say, "Okay, if that leads to information that stops an attack, good, but if it doesn't, okay, but you can't use that information to try to convict someone and throw them in jail. All you can use it for is the military purpose of trying to stop an attack on the country and can't be used for any collateral purpose of prosecution." This is really what the Fourth Amendment and its restrictions of the other Bill of Rights connected to it are designed to do, to place restrictions on what the government's doing in terms of the criminal justice system, not trying to place rules on the way we conduct military operations.

James Carafano: Now if you would all comment on what you think you most disagree on.

John Yoo: I think the thing we all disagree on the most is the constitutional framework. I'm not trying to portray Mary and Suzanne as pro-Congress in any way, but Mary, the first thing you said you would do to FISA is to say, "Make it clear in legislation that this is the exclusive mechanism for the president to gather intelligence inside the United States or on U.S. citizens abroad." If that's the case, and if the president has to obey that, that seems to me pretty clear that Congress has the ultimate policymaking role and the president has to implement it. I think Todd and I believe that there is a certain sphere for the president's constitutional authority and Congress can't take it away, just like Congress could not take away the president's ability to make tactical, strategic decisions in wartime.

The simple question in my mind is, and this is one we're fighting over, is this part of the president's Commander-in-Chief power? If it is, as the lower courts have said, then Congress can't take it away. If it's not, then it is more open to regulation by both the president and Congress together.

Todd Gaziano: I want to elaborate on the same point. I think that the best change in FISA would be for Congress to admit to understand first, and then to admit that the president's military intelligence surveillance, as long as he's really engaging in military intelligence, that the FISA Court or no court has any role. That would be the best change. I think we disagree on that. By the way, if he uses supposed military intelligence to gather dossiers on people, he would not have the protection of his military Commander-in-Chief authority, and he and other people in the executive branch could be both impeached and criminally prosecuted.

On that point, I'd like to just say that since no one yet has talked about my bombing hypothetical, I'm going to conclude on my bombing hypothetical. It doesn't matter even if the president thinks that he's willing to go along with the collateral damages, it would be unconstitutional for him and it would be unconstitutional for a court to be involved in that sort of process. When the Framers gave the president the authority to fight tactical battles, it also incorporated within that the responsibility to engage in military intelligence unimpeded by the political branches.

Suzanne Spaulding: I think that is the fundamental area of disagreement is the constitutional posture of this and the present scope of the president's Commander-in-Chief authority, and how it applies in this context. And I was going to take up your hypothetical question: Is intelligence-gathering more like bombing or more like something else? In the context of this conversation, we really are asking, is electronic surveillance of Americans inside the United States more like interfering with bombing decisions overseas or something else, and I would argue "something else." I do not think it falls into the same category as telling the president where to move a particular battalion of troops. And I do think the president has some broad authority with respect to intelligence-gathering overseas for foreign intelligence purposes and for military purposes, but the reason it gets so complicated here and why it is so hard (and we've talked about this for so long) is because the global War on Terrorism is not just like World War II or even just like the War in Iraq. That has very significant and real implications for policy as well as for law. So when you're talking about using the Article II Commander-in-Chief broad authorities in this ill-defined global War on Terrorism where the enemy is ill-defined and the scope and duration is hard to gauge and potentially goes on for generations and generations, I think we have to be very careful and it is very different from the war analogies that are often used.

Mary DeRosa:I'll just say one other area where I think we fundamentally disagree, and that is about what FISA does. In the discussion from John and Todd, it sounds like the FISA cuts off the president from conducting surveillance. FISA does not take away the president's ability to conduct surveillance: FISA is a mechanism for conducting surveillance, it regulates it, it says you do it a certain way. It doesn't take it away. I think that the characterization at some point that we all agree that FISA is "very, very, very problematic"-I think FISA could be improved, no question. I don't think it's very, very, very problematic. I think it is a good structure and it correctly balances the liberties and security, and it provides the president an ability to conduct electronic surveillance; it does not take it away.

James Carafano is Assistant Director, Kathryn and Shelby Cullom Davis Institute for International Studies and Senior Research Fellow, Douglas and Sarah Allison Center for Foreign Policy Studies, and Todd Gaziano, is the Director of the Center for Legal and Judicial Studies, at The Heritage Foundation. Mary DeRosa is Senior Fellow, Technology and Public Policy Program at the Center for Strategic and International Studies. Suzanne E. Spaulding is a Washington, D.C.-based lawyer. John Choon Yoo is Professor of Law at the University of California, Berkley.




[1]Moderator's note: "U.S. persons" is a legal term denoting both U.S. citizens and aliens legally authorized to be in the United States, such as travelers on a visa.

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