Reassessing ACLU v. Clapper: The Missing Constitutional Analysis

(Editor’s note: The mass collection of phone data by the NSA is very controversial. Congress votes on the continuation of this activity this weekend. This analysis by one of the nation’s leading experts is important to our understanding of what is happening and why, in the opinion of this expert, the NSA activities are constitutional.)

On May 7, in ACLU v. Clapper, the Second Circuit Court of Appeals held that the controversial National Security Agency (NSA) telephone metadata collection program—involving the Court-ordered collection of vast amounts of telephone bill information for subsequent computer searches to identify phone numbers that communicate with phones associated with foreign terrorists—was not authorized by Section 215 of the USA PATRIOT Act, the legal authority upon which it was said to be based.

Many who learned of the court’s decision quite reasonably assumed that meant the metadata collection program was illegal. But it is important to understand that there are important constitutional issues that were not raised in this case and are largely being ignored in the current public debate.

Presidential Control Over Foreign Intelligence Collection

Consistent with other provisions of the Constitution (such as the Bill of Rights), the Constitution vests authority to collect foreign intelligence information (including counter-terrorism intelligence) directly in the President. Neither Section 215 nor any other statutory provision could usurp the President’s independent constitutional power.

The historical record is clear. Writing in 1788 in Federalist 64, John Jay explained to the American people that the proposed Constitution had left the President “able to manage the business of intelligence in such manner as prudence may suggest.” This was part of the general grant of the nation’s “executive power” to the President in Article II, Section 1.

For nearly two centuries, Congress not only made no effort to constrain presidential collection of foreign intelligence, it repeatedly affirmed the President’s special authority over foreign policy, diplomacy, and intelligence collection. In 1790, the first appropriations bill for foreign affairs provided that the 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” to Congress.” Everyone understood that Congress could not keep secrets and that secrecy was essential for effective intelligence activities.

In 1818, Representative Henry Clay declared on the House floor that how the President spent money from this “secret service” account was “not a proper subject for inquiry” by Congress. As late as 1959, Senate Foreign Relations Committee Chairman J. William Fulbright told a Cornell Law School audience: “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.’”

The Views of the Judiciary

In the 1967 case of Katz v. United States, the Supreme Court for the first time held that telephone wiretaps required a warrant under the Fourth Amendment; but, in footnote 23, the Court specifically excluded “national security” wiretaps from its holding. The following year, when Congress enacted the first federal wiretap statute, it expressly provided in the Crime Control and Safe Streets Act of 1968: “Nothing contained in this chapter . . . shall limit the constitutional power of the President . . . to obtain foreign intelligence information . . . .” Put simply, the only way that power given by the American people to the President through the Constitution can lawfully be transferred to Congress is by the amendment process set forth in Article V.

In 1972, the Supreme Court unanimously held in United States v. United States District Court (aka Keith) that wiretaps of a purely domestic national security threat (think Timothy McVeigh and the 1995 Oklahoma City bombing) required a judicial warrant, but repeatedly emphasized that the decision did not constrain presidential control over the warrantless collection of foreign intelligence. Writing for the Court, Justice Lewis Powell added: “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 [“domestic security”] which differ from those already prescribed for specified crimes in Title III.”

But in 1978, pretending they were responding to Justice Powell’s suggestion, Congress enacted the Foreign Intelligence Surveillance Act (FISA) and placed numerous constraints on the President’s long-recognized independent constitutional power to collect foreign intelligence information. That statute established both the Foreign Intelligence Surveillance Court (FISC) and the Foreign Intelligence Court of Review (FICR).

Historically, litigation challenging the President’s constitutional authority in this area has been rare. But cases did arise, and over time five U.S. courts of appeal all agreed that there was a “foreign intelligence exception” to the warrant requirement of the Fourth Amendment.

Thus the Carter Administration authorized the warrantless wiretapping of an American government employee who was suspected of providing classified diplomatic cables to an agent of the Socialist Republic of Vietnam, and tapping the phone of the suspected Vietnamese agent (who had lived in the United States for more than a decade) as well.

Relying upon Keith and United States v. Curtiss-Wright Export Corp. (1936), the Fourth Circuit Court of Appeals in United States v. Truong (1980) concluded: “[S]eparation of powers requires us to acknowledge the principal responsibility of the President for foreign affairs and concomitantly for foreign intelligence surveillance.” The court emphasized, however, that this “foreign intelligence exception to the warrant requirement” was only applicable to cases involving “a foreign power, its agent or collaborators.”

In 2002, the Foreign Intelligence Surveillance Court of Review unanimously declared:

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.

Distinguishing “Public Safety” From Law Enforcement Searches

It is also of critical importance in examining these issues to understand that the Supreme Court has long drawn a distinction between law enforcement searches and “public safety” or “special needs” cases, where warrant requirements are more relaxed. Thus, in the 1989 case of National Treasury Employees Union v. Von Raab, the Supreme Court explained: “[O]ur 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 . . . .” And in Haig v. Agee (1981) and other cases, the Supreme Court has noted that “no governmental interest is more compelling that the security of the Nation.” This is why, to mention one example, government TSA agents engage in highly intrusive searches of the persons and belongings of nearly 200,000 commercial airline passengers every day, without a warrant or the slightest probable cause or individualized suspicion that they have committed or intend to commit a crime.

Conclusions

Politicians and pundits have outraged the American people with the charge that their government is violating the Constitution and “spying on” millions of Americans. To their credit, the people don’t want their government to violate the Constitution or the civil liberties of the people. But that’s simply not happening.

It is true the NSA has (pursuant to court orders) obtained vast amounts of information regularly found on telephone bills—what phone number communicated with what phone number on what day, at what time, and for how long. To “connect the dots,” it is first necessary to collect the dots. But the Supreme Court addressed the precise issue of whether collection of such telephone “metadata” required a judicial warrant under the Fourth Amendment in the 1979 case of Smith v. Maryland, and held it did not.

Nor are NSA personnel randomly rummaging through millions of phone records looking for embarrassing information. Access to the computer database containing this information is tightly controlled, and is done only when the NSA gets a telephone number known to be used by a foreign terrorist. Then a computer searches the database trying to identify telephone numbers that have communicated with the terrorist’s phone so the owners can be identified and investigated. During all of 2012, a total of 288 initial searches were authorized—fewer than one per day. In contrast, similar information is obtained by Assistant U.S. attorneys without a judicial warrant about 1,000-times more often for use by grand juries. And those are law enforcement investigations.

These phone record searches are comparable to the searches of fingerprints found at crime scenes in the vast FBI database containing hundreds of millions of prints to try to identify criminals (another law enforcement search). In both cases, a computer may examine many millions of records, but human beings rarely see more than a small number of files.

If politicians succeed in shutting down this important NSA program, they will leave the country far more vulnerable to foreign terrorist attacks. A very powerful case can be made that congressional usurpation of the President’s constitutional power when FISA was enacted in 1979 kept the NSA from preventing the 9/11 attacks (a view supported by the Director of NSA at the time and other senior intelligence officials since then).

I worked on FISA as a Senate staff member when it was first enacted, and I concluded it was unconstitutional at the time. If I’m wrong, and the NSA metadata program is unconstitutional, then its opponents will presumably continue their fight to undermine our security by shutting down FBI fingerprint searches and the far more intrusive physical searches of millions of clearly innocent American citizens who fly on commercial aircraft.

(This article was first posted on the website of the National Constitution Center on May 20, 2015)

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