The Surveillance Law That Matters

The president is bound by the Constitution, not the whims of Congress.

By Robert F. Turner
Wednesday, October 24, 2007 12:01 a.m.

I have never met Judge Michael Mukasey, and I have no strong feelings on who should be our next attorney general. But after four decades studying and writing about national security aspects of our Constitution, I believe Congress and the American people must understand that some of the issues raised in Mr. Mukasey's confirmation hearings are far more complex than they may initially appear.

Take, for example, Sen. Pat Leahy's question to Mr. Mukasey about whether the president has the power to violate the Foreign Intelligence Surveillance Act (FISA). I know that statute well, having worked in the Senate when it was enacted in 1978, and later serving as the senior White House lawyer under President Reagan charged with overseeing the implementation of FISA and other intelligence laws.

The real issue here is not whether the president is "above the law," but rather which "law" he must see "faithfully executed" when there is a conflict between the Constitution and an inconsistent statute. His highest duty, I submit, is to the Constitution itself.

In 1803, Chief Justice John Marshall declared in Marbury v. Madison: "an act of the legislature repugnant to the Constitution is void." From the earliest days of our history until FISA was enacted, it was understood by all three branches that the Constitution had left the president (to quote Federalist No. 64) "able to manage the business of intelligence as prudence might suggest."

When Congress passed the first wiretap statute in 1968, it expressly declared that nothing in it would limit "the Constitutional power of the President" to collect foreign-intelligence information. Every administration from FDR to (and including) Jimmy Carter engaged in warrantless foreign-intelligence wiretapping in the belief that this was one of the "exceptions" to the Fourth Amendment's warrant requirement. Others include border searches and searches of commercial airline passengers and their luggage (not to mention the requirement, imposed by Congress, that citizens entering a congressional office building to exercise their constitutional right to petition their government for redress of grievances must submit to a warrantless search absent the slightest probable cause).

In 1978, Carter administration Attorney General Griffin Bell told the Senate that FISA "does not take away the power of the President under the Constitution"; but he explained that the statute could nevertheless work because President Carter was "agreeing to follow the statutory procedure." That was Mr. Carter's prerogative as it is President Bush's--but neither they nor Congress may take away the constitutional power of future presidents.

The Foreign Intelligence Surveillance Court of Review (composed of federal appeals court judges) noted, in a unanimous 2002 opinion, that every federal court to decide the issue held the president has constitutional power to authorize warrantless foreign-intelligence electronic surveillance. The opinion added: "FISA could not encroach on the President's constitutional power."


The Supreme Court has had at least six opportunities to limit presidential power in this area. In the 1967 Katz case that first required a warrant for wiretaps, the Court expressly exempted "national security" wiretaps from its holding. When it required a warrant for national security wiretaps of purely domestic targets in 1972, it exempted electronic surveillance of the "activities of foreign powers and their agents" in this country. On four other occasions it declined to hear cases on appeal where it had the opportunity to impose a warrant requirement on foreign-intelligence electronic surveillance.

Much contemporary debate over presidential claims of power to ignore "laws" fails to appreciate the modern congressional practice of enacting flagrantly unconstitutional statutes. This helps explain the increased use of presidential "signing statements" in recent decades. On June 11, 1976, Sen. Robert P. Griffin (R., Mich.) inserted a lengthy statement I'd drafted into the Congressional Record explaining why "legislative vetoes" of executive agency actions were unconstitutional. Seven years later, the Supreme Court echoed those arguments in reaching the same conclusion in the Chadha case. The congressional response? It has since enacted more than 500 new unconstitutional legislative vetoes.

Mr. Mukasey rightly promised to resign rather than violate his oath of office if the "president proposed to undertake a course of conduct that was in violation of the Constitution" and could not be dissuaded. For precisely the same reason, he was also right to refuse to be bound by unconstitutional acts of Congress like FISA that usurp presidential power. Any senator who elects to vote against him because of this issue has a duty to explain to the American people by what theory an unconstitutional statute has suddenly taken on a superior position to the Constitution itself.