First Principles: Are Judicial and Legislative Oversight of NSA Constitutional?

First Principles: Are Judicial and Legislative

Oversight of NSA Constitutional?

Robert F. Turner*

This is neither a frivolous question nor an issue of first impression for me. I worked as national security adviser to Senator Robert P. Griffin—the Assistant Minority Leader and a member of the Senate Foreign Relations Committee—when FISA was enacted in 1978, and it was my conclusion at the time that FISA was flagrantly unconstitutional. I’ve made the same point during congressional testimony1 and elsewhere2 since President George W. Bush’s Terrorist Surveillance Program was first leaked by the New York Times in 2005.

I. The Original Constitutional Understanding on “The Business of Intelligence”

I begin with the observation that the Founding Fathers understood well that large deliberative bodies like Congress could not keep secrets well. When France in 1776 agreed to provide massive covert assistance to the American colonies, Benjamin Franklin and his four colleagues on the Committee of Secret Correspondence each signed a memorandum declaring that they had concluded they could not share the great news with others in the Second Continental Congress, because “We find by fatal experience that Congress consists of too many members to keep secrets.”3

The Founding Fathers were remarkably well-read men, and they often quoted Locke, Montesquieu, and Blackstone—often called the “political bibles” of the Framers.4 Each of these writers argued that, for reasons of institutional competency, the management of relations with the external world had to be left to the discretion of the Executive to be managed for the public good.

In his Second Treatise on Civil Government, John Locke explained in 1690 that the business of war and diplomacy had to be entrusted to the executive because legislative bodies could not keep secrets, act with speed or unity of plan, or anticipate in advance all of the changes that might occur during negotiations or on foreign battlefields. Paraphrasing Locke in explaining the new Constitution to the American people in 1788, John Jay wrote in Federalist No. 64 that “The loss of a battle, the death of a prince, the removal of a minister, or other circumstances intervening to change the present posture and aspect of affairs, may turn the most favorable tide into a course opposite to our wishes.”

Emphasizing the need for secrecy in America’s relations with the outside world, Jay wrote:

There are cases where the most useful intelligence may be obtained, if the persons possessing it can be relieved from apprehensions of discovery. Those apprehensions will operate on those persons whether they are actuated by mercenary or friendly motives, and there doubtless are many of both descriptions, who would rely on the secrecy of the president, but who would not confide in that of the senate, and still less in that of a large popular assembly. The convention have done well therefore in so disposing of the power of making treaties, that although the president must in forming them act by the advice and consent of the senate, yet he will be able to manage the business of intelligence in such manner as prudence may suggest.

This need to protect secrets was also recognized by both houses of Congress in its legislation. Indeed, a look at early appropriations acts to fund diplomatic and intelligence activities reaffirms the view that “the business of intelligence” was confided in the discretion of the president. The boilerplate language used year after year read:

[T]he President shall account specifically for all such expenditures of the said money as in his judgment may be made public, and also for the amount of such expenditures as he may think it advisable not to specify, and cause a regular statement and account thereof to be laid before Congress annually . . . .”5

Some read the constitutional text and wonder where this vast grant of presidential authority is hidden. There is no discussion of “foreign affairs,” “diplomacy,” or “foreign intelligence collection.” The original understanding was that the control over what Locke called “war, peace, leagues and alliances” was encompassed in the “executive power” conveyed to the president in Article II, Section 1, of the Constitution.

As Thomas Jefferson explained in an April 1790 memorandum to President Washington:

The Constitution . . . has declared that “the Executive power shall be vested in the President,” submitting only special articles of it to a negative by the Senate. . . . The transaction of business with foreign nations is executive altogether; it belongs, then to the head of that department, except as to such portions of it as are specially submitted to the Senate. Exceptions are to be construed strictly.6

Washington shared Jefferson’s memo with Representative James Madison and Chief Justice John Jay, and both agreed with Jefferson that—other than their negatives over treaties and nominations expressed in the Constitution—the Senate had “no constitutional right to interfere” with the business of diplomacy. As Washington explained, “all the rest being Executive and vested in the President by the Constitution.”7

Jefferson’s chief rival in Washington’s cabinet, Alexander Hamilton, took the same position in his first Pacificus letter three years later, reasoning:

[A]s the participation of the Senate in the making of treaties, and the power of the Legislature to declare war, are exceptions out of the general “executive power” vested in the President, they are to be construed strictly, and ought to be extended no further than is essential to their execution.8

The early constitutional practice was summarized in a February 19, 1804, note from President Jefferson to Treasury Secretary Albert Gallatin:

The Constitution has made the Executive the organ for managing our intercourse with foreign nations. . . . The executive being thus charged with the foreign intercourse, no law has undertaken to prescribe its specific duties. . . . From the origin of the present government to this day . . . it has been the uniform opinion and practice that the whole foreign fund was placed by the Legislature on the footing of a contingent fund, in which they undertake no specifications, but leave the whole to the discretion of the President.9

II. Judicial Deference to the Executive

That same month, Chief Justice John Marshall—in perhaps the most famous Supreme Court decision of all times—reaffirmed that the Constitution grants the President important powers over foreign affairs that are checked neither by the Legislature nor the Judiciary:

By the constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience . . . . The subjects are political. They respect the nation, not individual rights, and being intrusted to the executive, the decision of the executive is conclusive.

 

The application of this remark will be perceived by adverting to the act of congress for establishing the department of foreign affairs. This officer, as his duties were prescribed by that act, is to conform precisely to the will of the president. . . . The acts of such an officer, as an officer, can never be examinable by the courts.10

In the 1936 Curtiss-Wright case, the Supreme Court noted that the President “makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude, and Congress itself is powerless to invade it.”11

In this same landmark case, the Court noted:

The marked difference between foreign affairs and domestic affairs in this respect is recognized by both houses of Congress in the very form of their requisitions for information from the executive departments. In the case of every department except the Department of State, the resolution directs the official to furnish the information. In the case of the State Department, dealing with foreign affairs, the President is requested to furnish the information “if not incompatible with the public interest.” A statement that to furnish the information is not compatible with the public interest rarely, if ever, is questioned.12

Now, in candor, I believe the Court in Curtiss-Wright got the right answer for the wrong reasons. Justice Sutherland focused not upon the expressed grant of “executive power” to the President, but instead on the idea that the foreign policy power was a natural attribute of sovereignty that attached to the presidency at the time of America’s independence from Great Britain. It was not an unreasonable explanation (and Curtiss-Wright remains by far the most often cited Supreme Court foreign affairs case), but it is clear that the Framers believed they had expressly vested this power in the President through Article II, Section 1’s grant of “executive power.”

This longstanding deference to presidential discretion in foreign affairs was recognized by both the courts and Congress into the second half of the twentieth century. In the 1953 case of United States v. Reynolds, the Supreme Court discussed the executive privilege to protect national security secrets, noting that: “Judicial Experience with the privilege which protects military and state secrets has been limited in this country . . . .” But the Court recognized an absolute privilege for military secrets, explaining:

In each case, the showing of necessity [of disclosure] which is made will determine how far the court should probe in satisfying itself that the occasion for invoking the privilege is appropriate. Where there is a strong showing of necessity, the claim of privilege should not be lightly accepted, but even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are at stake.13

Obviously, intelligence programs run by a Department of Defense agency (NSA) designed to intercept communications from our nation’s enemies during a period of authorized war are among the most sensitive of “military secrets.”

Four years later, Professor Edward S. Corwin, one of the nation’s leading constitutional scholars of his era, wrote in his classic volume, The President: Office and Powers:

So far as practice and weight of opinion can settle the meaning of the Constitution, it is today established that the President alone has the power to negotiate treaties with foreign governments; that he is free to ignore any advice tendered him by the Senate as to a negotiation; and that he is final judge of what information he shall entrust to the Senate as to our relations with other governments.14

In the 1959 Barenblatt case, the Supreme Court recognized that there are proper limits not only on the power of Congress to control Executive discretion, but even to “inquire” into matters vested by the people in the President: “Congress . . . cannot inquire into matters which are within the exclusive province of one of the other branches of the Government. Lacking the judicial power given to the Judiciary, it cannot inquire into matters that are exclusively the concern of the Judiciary. Neither can it supplant the Executive in what exclusively belongs to the executive.”15

III. The Congressional Assault on the Intelligence Community

Speaking at Cornell Law School in 1959, Senate Foreign Relations Committee Chairman J. William Fulbright captured the conventional wisdom shared by all three branches until that time when, in arguing for even greater presidential power, he explained:

The pre-eminent responsibility of the President for the formulation and conduct of American foreign policy is clear and unalterable. He has, as Alexander Hamilton defined it, all powers in international affairs “which the Constitution does not vest elsewhere in clear terms.” He possesses sole authority to communicate and negotiate with foreign powers. He controls the external aspects of the Nation’s power, which can be moved by his will alone—the armed forces, the diplomatic corps, the Central Intelligence Agency, and all of the vast executive apparatus.16

This was the understanding of our Constitution until near the end of the Vietnam War, when an angry Congress began for the first time demanding classified secrets and set up House and Senate intelligence committees. President Nixon had been weakened by the Watergate scandal, and when he resigned he was replaced by Vice President Gerald Ford—who had never run for national office and thus had even less political strength to resist the encroaching Congress.

How did all of this happen? The earliest reference I have found proposing that Congress challenge presidential authority over foreign intelligence was in a 1969 book by radical activist Richard Barnet, a founder of the Institute for Policy Studies—alleged by some to have been a Soviet or Cuban front organization17—who wrote:

Congressmen should demand far greater access to information than they now have, and should regard it as their responsibility to pass information on to their constituents. Secrecy should be constantly challenged in Congress, for it is used more often to protect reputations than vital interests. There should be a standing congressional committee to review the classification system and to monitor secret activities of the government such as the CIA.18

Revelations a few years later of abuses in the intelligence area set the stage for Barnet’s dream to become a reality.

IV. Intelligence Committee “Abuses”

Were there in fact “abuses” involving the Intelligence Community? Anyone who followed the Church and Pike Committee hearings knows there were. But they were not, for the most part, acts of wrongdoing at the initiative of the Intelligence Community.

President Franklin D. Roosevelt bypassed his attorney general in 1936 and directly ordered J. Edgar Hoover to start “spying” on Americans thought possibly to be connected with communism or fascism. But Hoover had, on his own initiative, banned FBI “black bag” jobs nearly a decade before the Church Committee hearings took place.19 Most of the abuses had already been investigated and made public by the attorney general before the hearings even began. And some of the sensationalized charges in the end turned out to be largely unfounded.

For example, most people who followed the hearings in the press came away with the idea that the CIA routinely went around “assassinating” foreign leaders who would not do what America demanded. In fact, when the Church Committee published its massive volume on the subject,20 it admitted it had not found a single case in which the CIA had ever assassinated anyone. And Directors of Central Intelligence Richard Helms and William Colby had each issued orders that no one connected with the CIA would have anything to do with assassination long before the hearings began.21

What about Fidel Castro? Yes, at the instructions of Presidents Eisenhower and Kennedy the CIA did make several plots to dispatch the Cuban dictator with extreme prejudice. But given Castro’s unlawful intervention in several Latin American countries, one might make a plausible case that a use of lethal force was permissible as an act of collective self-defense under Article 51 of the UN Charter. There was also a decision made to kill the Congo’s Patrice Lumumba, but before any action was taken he was arrested by his own government and killed soon thereafter by rival leftist guerrillas after escaping from prison.22 In all of the other cases investigated by the Committee, the CIA was cleared of wrongdoing.

When it was all over, even Senator Frank Church admitted that the CIA had not been a “rogue elephant” (as he had initially charged), and that virtually every activity on which he disapproved had been ordered by a president or senior policy official. His House counterpart, Representative Otis Pike, who chaired the House committee investigating CIA abuses, later declared:

 I wound up the hearings with a higher regard for the CIA than when I started. We did find evidence, upon evidence, upon evidence where the CIA said: “No, don’t do it.” The State Department or the White House said, “We’re going to do it.” The CIA was much more professional and had a far deeper reading on the down-the-road implications of some immediately popular act than the executive branch or administration officials. One thing I really disagreed with [Senator] Church on was his characterization of the CIA as a “rogue elephant.” The CIA never did anything the White House didn’t want. Sometimes they didn’t want to do what they did.23

In 2009, the Indiana Law Journal published a legal analysis of recently declassified CIA documents that had been turned over to the Church and Pike committees in the mid-1970s and were referred to as the CIA “family jewels.” The author of the article, a CIA attorney, examined each of the activities and concluded that all but one were lawful at the time they occurred. The exception—the involuntary exposure of U.S. citizens to LSD and other drugs—had been terminated during the Kennedy administration more than a decade before the congressional investigations.24

On a more personal note, between 1981 and 1984 I served as Counsel to the President’s Intelligence Board in the White House. As the senior White House attorney charged specifically with overseeing compliance with FISA, other statutes, and Executive Orders governing the Intelligence Community (“IC”), I worked with the general counsel and inspectors general of all of the departments and agencies in the IC. I came away from the experience with the deepest respect for the men and women who serve in the IC and their leaders.

Yes, there were violations, but most were inadvertent. For example, on one occasion the FBI had, pursuant to a FISA warrant, tapped the telephone of an East European embassy official known to be an intelligence operative. But when they came in Monday morning to listen to the tape, the FBI agents discovered that, while the foreign spymaster was out with his wife on Saturday night, the U.S. Person babysitter from down the street had used the tapped phone to chat at length with her boyfriend. The Bureau very carefully implemented the relevant Attorney General guidelines, protecting the privacy of the U.S. Persons involved and reporting the violation to my office.

There were rare instances of personal misconduct by IC employees, such as one individual who accessed a classified database to try to learn more about the man who was dating his former wife; but, across the board, such abuse was dealt with quickly and firmly—in this instance including termination of a military career a few years short of being eligible for retirement benefits.

Is there a possibility that NSA or other IC databases might be abused? Certainly there is, just as there is a possibility that medical or IRS records might be misused. But, as others in this issue have documented, the extensive oversight procedures—often including regular polygraph examinations in which employees are grilled about whether they have ever misused such resources—are probably greater than in any other area of government employment.

V. FISA was a Fraud

Like the War Powers Resolution,25 the Foreign Intelligence Surveillance Act (FISA) was a constitutional fraud. In 1967, when in Katz v. United States the Supreme Court reversed its 1928 decision in Olmstead v. United States and held that telephone wiretaps were a “search or seizure” under the Fourth Amendment and thus required a warrant, the Court in footnote 23 was careful to exclude wiretaps involving “national security” from its holding.

The following year, when Congress enacted the first wiretap statute requiring a judicial warrant for wiretaps, the statute expressly recognized the president’s constitutional power to authorize warrantless wiretaps for foreign intelligence purposes:

Nothing contained in this chapter . . . shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities.26

In 1972, a unanimous Supreme Court held in the Keith27 case that when the government wishes to use a wiretap in a purely domestic national security case that does not involve foreign powers or their agents inside this country, a warrant would be required. However, the Court repeatedly emphasized that its holding did not constrain the president’s warrantless use of wiretaps for national security cases involving foreign powers:

We emphasize, before concluding this opinion, the scope of our decision. As stated at the outset, this case involves only the domestic aspects of national security. We have not addressed and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents.28

Noting that domestic national security surveillance might call for a different set of rules than existed for routine criminal warrants, the Court invited Congress to consider new legislation specifically addressing “domestic” national security wiretaps: “Given those potential distinctions between Title III criminal surveillances and those involving the domestic security, Congress may wish to consider protective standards for the latter which differ from those already prescribed for specified crimes in Title III.”29

However, Senator Ted Kennedy responded by telling his colleagues that the Court had asked Congress to enact legislation requiring a judicial warrant for foreign intelligence collection, and thus was born the Foreign Intelligence Surveillance Act. Apparently, few members of Congress had paid much attention to the Keith case and thus followed Senator Kennedy’s lead. President Carter also embraced the statute.

Attorney General Griffin Bell, however, was clearly concerned that Congress was usurping presidential power. In testimony before the House Permanent Select Committee on Intelligence, he stated:

[T]he current bill recognizes no inherent power of the President to conduct electronic surveillance, and I want to interpolate here to say that this does not take away the power of the President under the Constitution. It simply, in my view, is not necessary to state that power, so there is no reason to reiterate or iterate it as the case may be. It is in the Constitution, whatever it is. The President, by offering this legislation, is agreeing to follow the statutory procedure.30

President Carter was certainly free to acquiesce in a usurpation of his constitutional powers, but he did not have the constitutional authority to deprive future presidents of their powers under the Constitution.

VI. The Fourth Amendment, the Judiciary, and the Foreign Intelligence Exception to the Warrant Requirement

I submit that there is nothing in the Constitution that empowers Congress to seize control of, as Locke put it, “the business of intelligence.” The only arguable authority would be the Fourth Amendment, but that issue had been litigated repeatedly and the courts had uniformly held that there was a foreign intelligence exception to the warrant requirement of the Fourth Amendment. During the Carter administration, for example, Attorney General Bell had authorized the surreptitious entry into the home of a suspected spy for Communist Vietnam (a permanent resident alien who had lived in the United States for more than a decade) by the name of Truong Dinh Hung. Truong’s telephone was tapped, microphones were placed around his apartment, and a video camera was concealed in his place of work.

When Truong was arrested and charged with espionage, his lawyer sought to exclude all of the evidence obtained without a warrant. But the motion was rejected by both the district court and the Fourth Circuit Court of Appeals.

The Fourth Circuit noted that the Carter administration had “relied upon a ‘foreign intelligence’ exception to the Fourth Amendment’s warrant requirement,” contending that no warrant was necessary because of the President’s “constitutional prerogatives in the area of foreign affairs.”31

Relying upon Keith and applying a balancing test, the court provided a lengthy analysis of why the executive branch was better suited to decide these issues than federal judges and relied on Curtiss-Wright for the proposition that “separation of powers requires us to acknowledge the principal responsibility of the President for foreign affairs and concomitantly for foreign intelligence surveillance.”32 It emphasized that this “foreign intelligence exception to the warrant requirement” was only applicable to cases involving “a foreign power, its agent or collaborators.”33

When Congress enacted FISA in 1978, it created an appellate court (the FISA Court of Review) to consider appeals from the lower court charged with considering applications for foreign intelligence electronic surveillance warrants. In 2002, the Court of Review declared in a unanimous opinion:

The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. . . . We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.34

The Supreme Court has never decided a case involving the constitutionality of FISA. At least five pre-FISA cases were appealed to the Court, but cert was never granted. Some may see this as evidence that the issue is unsettled. I would suggest to the contrary. Surely, if the justices believed that the president lacked the constitutional authority to collect foreign intelligence information by warrantless electronic surveillance, they would have voted to grant cert and strike down the convictions. But the Court routinely denies cert to cases where all of the circuits are in agreement and the court believes they have decided the issues correctly.

For example, the Supreme Court has never formally decided that warrantless searches by federal Transportation Security Administration (TSA) officers of the persons and baggage of passengers on commercial airlines are lawful. It has made favorable references to the practice in dicta in other cases, but since the circuits are in agreement there has been no need for the Supreme Court to formally consider the issue.

Consider this excerpt from the Court’s opinion in the 1989 case of National Treasury Employees Union v. Von Raab:

While we have often emphasized, and reiterate today, that a search must be supported, as a general matter, by a warrant issued upon probable cause, . . . our decision in Railway Labor Executives reaffirms the longstanding principle that neither a warrant nor probable cause, nor, indeed, any measure of individualized suspicion, is an indispensable component of reasonableness in every circumstance. . . . As we note in Railway Labor Executives, our cases establish that where a Fourth Amendment intrusion serves special governmental needs, beyond the normal need for law enforcement, it is necessary to balance the individual’s privacy expectations against the Government’s interests to determine whether it is impractical to require a warrant or some level of individualized suspicion in the particular context.35

Indeed, in Von Raab, the Supreme Court noted that all of “the lower courts that have considered the question have consistently concluded that such [airport] searches are reasonable under the Fourth Amendment.” The Court then quoted analysis from a leading case (Edwards) upholding warrantless airport searches: “When the risk is the jeopardy to hundreds of human lives and millions of dollars of property inherent in the pirating or blowing up of a large airplane, that danger alone meets the test of reasonableness . . . .”

Surely, stopping the next 9/11 attack is as important as preventing the hijacking of a commercial airliner. And just as surely, the Constitution entrusts “the business of intelligence” to the discretion of the president. Both Congress and the courts have recognized that there is a constitutional power invested in the president to engage in warrantless electronic surveillance to protect the nation from foreign powers (a term that includes foreign terrorist organizations like al Qaeda) and their agents within our own borders.

VII. The Harm Caused by FISA

Sadly, the unconstitutional FISA statute has done serious harm to our nation. Reaffirming the wisdom of Locke’s observation that legislative assemblies cannot anticipate everything that might take place in negotiations or on a battlefield, when Congress enacted FISA it made it a felony for NSA, the FBI, or any other U.S. government authority to obtain a FISA warrant based upon any activity that is protected by the First Amendment. No doubt they were intending to immunize Jane Fonda’s actions during the Vietnam War.36 But they didn’t anticipate the possibility that we might be attacked by religious extremists who would kill thousands of our fellow Americans. Under FISA, if a religious extremist writes an op-ed article or gives a speech declaring that Allah wants all Infidels killed and that is the duty of every Muslim, our Intelligence Community cannot use that information to seek a FISAwarrant.

Another threat Congress failed to anticipate was the “lone wolf” terrorist like Zacharias Moussaoui. The FBI identified Moussaoui as a probable terrorist weeks before the 9/11 attacks, and much earlier became suspicious of two of the terrorists who flew the plane into the Pentagon on that tragic day. But thanks to FISA, they were not allowed to engage in the kinds of surveillance that might have uncovered and prevented the 9/11 attacks because they could not tie the suspects to a “foreign power.”

So, rather than worrying about whether ongoing NSA programs are consistent with FISA (and, for the record, they are), someone ought to be asking whether FISA is consistent with the U.S. Constitution.

 

Endnotes

1  See, e.g., Congress, Too, Must ‘Obey the Law: Why FISA Must Yield to the President’s Independent Constitutional Power to Authorize the Collection of Foreign Intelligence: Hearing on “Wartime Executive Power and the NSA’s Surveillance Authority II” Before the S. Comm. on Judiciary, 109th Cong. 2 (2006) (statement of Robert F. Turner, Prof. of Law, Univ. of Virginia School of Law), available at http://www.virginia.edu/cnsl/pdf/TURNER-SJC-28Feb06 FINAL.pdf; Is Congress the Real “Lawbreaker”?: Reconciling FISA with the Constitution: Hearing on “Warrantless Surveillance and the Foreign Intelligence Surveillance Act: The Role of Checks and Balances in Protecting Americans’ Privacy Rights” Before the H. Judiciary Comm., 110th Cong. 1 (2007) (statement of Robert F. Turner, Prof. of Law, Univ. of Virginia School of Law), available at http://www.virginia.edu/cnsl/pdf/Turner-HJC-5Sept07-(final).pdf.

2  FISA vs. the Constitution: Congress can’t usurp the president’s power to spy on America’s enemies, Wall. St. J., Dec. 28 2005, http://www.opinionjournal.com/editorial/feature.html?id=110007734.

3  Verbal statement of Thomas Story to the Committee, 2 Paul Force, American Archives: A Documentary History of the North American Colonies, 5th Ser., 819 (1837-53).

4  See, e.g., Quincy Wright, The Control of American Foreign Relations 363 (1922).

5  See, e.g., 1 Stat. 129 (1790) (emphasis added).

6  Jefferson’s Opinion on the powers of the Senate Respecting Diplomatic Appointments, April 24, 1790, in 3 Writings of Thomas Jefferson 16 (Mem. ed. 1903) (emphasis added).

7  4 Diaries of George Washington 122 (Regents’ Ed. 1925).

8  15 The Papers of Alexander Hamilton 39 (Harold C. Syrett ed., 1969).

9  Jefferson to Gallatin, 11 Writings of Thomas Jefferson, 5, 9, 10 (Mem. ed. 1903).

10  Marbury v. Madison, 5 U.S. (1 Cranch) 137, 165 (1803).

11  United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936) (emphasis added).

12  Id. at. 319-21 (emphasis added).

13  United States v. Reynolds, 345 U.S. 1, 11 (1953).

14  Edward S. Corwin, The President: Office and Powers 211-12 (4^th rev. ed. 1957) (emphasis added).

15  Barenblatt v. United States, 360 U.S. 109 (1959).

16  The Federalist No. 64, at 434-35 (John Jay) (Jacob E. Cooke ed. 1961) (emphasis added).

17  See, e.g., S. Steven Powell, Covert Cadre: Inside the Institute for Policy Studies 359 (1987); Ladislav Bittman The KGB and Soviet Disinformation: An Insider’s View (1985). Writing in National Review in 1978, Brian Crozier, the director of the London Institute for the Study of Conflict, described the Institute for Policy Studies as the “perfect intellectual front for Soviet activities which would be resisted if they were to originate openly from the KGB.

18  Richard J. Barnet, The Economy of Death 178-79 (1969).


19  2 Sen. Rep’t No. 94-755 at 24 (1976); 3 id. at 355.

20  Alleged Assassination Plots Involving Foreign Leaders, S. Rep’t. No. 94-465 (1975).

21  See Robert F. Turner, It’s Not Really “Assassination” Legal and Moral Implications of Intentionally Targeting Terrorists and Aggressor-State Regime Elites, 37 U. Rich. L. Rev. 791- 98 (2003).

22  S. Rep’t. No. 94-465 at 256.

23  Frank J. Smist, Jr., Congress Oversees the United States Intelligence Community 197 (1990).

24  Daniel L. Pines, The Central Intelligence Agency’s “Family Jewels: Legal Then? Legal Now?, 84 Ind. L. J. 637 (2009),  available at http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1108&context=ilj.

25  See, e.g., Robert F. Turner, The War Powers Resolution: Its Implementation in Theory and Practice (1983); Robert F. Turner, Repealing the War Powers Resolution: Restoring the Rule of Law in U.S. Foreign Policy (1991).

26  18 U.S.C. § 2511(3) (1970) (emphasis added).

27  United States v. United States District Court, 407 U.S. 297(1972). The case is commonly referred to as the “Keith Case” because it was decided by Judge Damon Keith of the Eastern District of Michigan.

28  407 U.S. at 308, 321-22 (emphasis added).

29  407 U.S. at 322-23 (emphasis added).

30  Testimony of Attorney General Griffin Bell, Foreign Intelligence Electronic Surveillance, Hearings Before the Subcommittee on Legislation of the Permanent Select Committee on Intelligence, House of Representatives, January 10, 1978 at 14-15 (emphasis added).

31  United States v. Truong, 629 F.2d 908, 912 (1980).

32  Id. at 914 (1980).

33  Id. at 912, 915.

34  In re Sealed Case, 310 F.3d 717, 742 Foreign Int. Surv. Ct. Rev., Nov. 18, 2002 (No. 02-002, 02- 001).

35  National Treasury Employees Union v. Von Raab, 489 U.S. 656 at 665-66 (1989).

36  This is not the time for a lengthy discussion of Jane Fonda’s conduct during her visit to Hanoi in August 1972, but she made broadcasts to American sailors on “Radio Hanoi” in which she urged them to refuse to obey orders and alleged that the bombs they were being asked to load on aircraft were actually filled with illegal poison chemicals, noting that following World War II war criminals were put to death.

*Professor Turner holds both professional and academic doctorates from the University of Virginia School of Law, where in 1981 he co-founded the Center for National Security Law.  He has served as chairman of both the ABA Standing Committee on Law and National Security and the National Security Law subcommittee of the Federalist Society’s International and National Security Law practice group.