FISA SECTION 702: AN UNCONSTITUTIONAL
INFRINGEMENT OF EXECUTIVE POWER
Part I discusses the views of the Framers of the Constitution on executive power and foreign affairs. It argues that foreign intelligence collection and spying on foreign enemies were always understood to be included within the Nation’s “executive Power”—a power expressly vested in the President save for certain expressed and narrowly-construed “exceptions” given to the Senate or Congress. The Framers did not explain this because it was widely understood at the time.
I. THE FRAMER’S UNDERSTANDING OF EXECUTIVE POWER
Many today assume that congressional oversight of intelligence activities has a long pedigree. After all, Section Five of the National Security Act of 1947 contains a variety of obligations requiring the President to report intelligence matters to Congress.8 But, in reality, starting in the mid-1970s, those provisions were added as amendments to the 1947 statute. For the first 180-plus years of our history, there was a broad consensus among all three branches that issues involving foreign intelligence collection were the exclusive province of the Executive. The constitutional basis for this power was the grant of “executive Power” to the President in Article II, Section 1, of the Constitution. Thomas Jefferson, America’s first Secretary of Foreign Affairs (later re-designated “Secretary of State”) explained the reasoning in an April 1790 memorandum to President Washington:
The Constitution ... has declared that “the Executive powers 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.9Three days later, Washington discussed the issue with Representative James Madison, recording in his diary that Madison agreed with the views of Jefferson and Supreme Court Chief Justice John Jay.10 Washington noted that Madison agreed that the Senate had “no Constitutional right to interfere”11 with matters of foreign policy beyond the specific exceptions set forth in the Constitution, such as their ability to withhold consent to completed treaties and diplomatic nominations.
Three years later, Alexander Hamilton—Jefferson’s chief rival in Washington’s cabinet, and along with Madison and Jay, the third author of
the Federalist papers—added his own endorsement to Jefferson’s interpretation, reasoning that the Senate’s involvement in the making of treaties and the power of Congress to “declare war” were “exceptions” to the general grant of “executive Power” to the President, and thus were to be “construed strictly.”12
Today, for many, this interpretation of “executive Power” may seem strained. But the Framers were remarkably well-read men, raised on the writings of Locke, Montesquieu, and Blackstone—each of whom argued that the control of a nation’s external relations was the province of the Executive. Professor Wright described the writings of these men as the “political bibles of the constitutional fathers,”13 and explained: “[W]hen the constitutional convention gave ‘executive power’ to the President, the foreign relations power was the essential element in the grant, but they carefully protected this power from abuse by provisions for senatorial or congressional veto.”14 More recently, in his 1972 volume Foreign Affairs and the Constitution, Columbia Law School Professor Louis Henkin explained: “The executive power ... was not defined because it was well understood by the Framers raised on Locke, Montesquieu and Blackstone.”15
The President’s constitutional power to withhold sensitive national security information from Congress was so well settled by the mid-twentieth century that the respected Princeton constitutional scholar Professor Edward Corwin declared: “[I]t is today established that the President ... is final judge of what information he shall entrust to the Senate as to our relations with other governments.”16 Similarly, in 1953, the Supreme Court, in discussing judicial access to national security secrets in United States v. Reynolds,17 declared that “even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are at stake.”18
Some may assume that Americans gave little attention to intelligence matters until the Central Intelligence Agency (“CIA”), National Security Agency (“NSA”), and other modern intelligence organizations were established following World War II. In reality, serious attention to these issues predated the Constitution itself. For example, in 1775 the Second Continental Congress established a Committee of Secret Correspondence—consisting of five members and chaired by Benjamin Franklin—charged with corresponding and conducting other business with the outside world (including running spies).19 When Silas Deane returned from France in 1776 with news that the French would provide major covert assistance to the American Revolution, the committee unanimously decided that they could not share the wonderful news with anyone else in the Congress. “We find by fatal experience,” they explained in a statement signed by all five members, “the Congress consists of too many members to keep secrets.”20
The importance of keeping secrets was also emphasized by John Jay—who, having served as the Secretary of Foreign Affairs under the Articles of Confederation, was arguably the new nation’s most experienced diplomat—in explaining the new Constitution to the American people. Writing in Federalist 64, Jay reasoned:
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 [a]ssembly. 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.217
The Federalist papers were the most important source for explaining the meaning of the proposed new Constitution to the people and their elected representatives who would take part in state ratification conventions, as Madison’s extensive notes would not be published until nearly fifty years after the Constitution was ratified. Thus, the clear explanation that the Constitution had left the President “able to manage the business of intelligence as prudence may suggest” takes on a special significance. Nothing in the history of the Constitution suggests that Congress was expected to have any substantive role in foreign intelligence matters—and there is overwhelming evidence to the contrary.
Congress also clearly recognized that its members could not be relied upon to keep national security secrets. Indeed, when the First Congress in 1790 appropriated money for foreign intercourse—in language that would be followed for many years—the statute read in part:
[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. ...22The First Congress has sometimes been referred to as a “second constitutional convention,” as many details were left unresolved in Philadelphia with the expectation they would be addressed by the new government. Two dozen of the thirty-nine men who signed the Constitution (more than sixty percent) went on to serve in the Congress.23
President Jefferson explained the early congressional practice in an April 1804 communication 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. ... [I]t 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.24The Judicial Branch has repeatedly recognized the President’s special responsibilities in this area. In Marbury v. Madison25—arguably the most famous Supreme Court opinion in American history—Chief Justice John Marshall clearly refuted the modern contention that every power in a democracy must be checked by another branch:
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. ...
[W]hatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive.26Marbury also reminds us of the important principle that “an act of the legislature repugnant to the [C]onstitution, is void.”27
Even earlier, as a Federalist member of the House of Representatives in 1800, John Marshall declared that the President was “the sole organ of the nation in its external relations,” because “[h]e possesses the whole Executive power.”28 This language was quoted with favor by the Supreme Court in the landmark case United States v. Curtiss-Wright Export Corporation,29 where the Court added:
It is important to bear in mind that we are here dealing [with] ... the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations—a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution.30While Curtiss-Wright did not address presidential control of intelligence activities, it did discuss the related exclusive presidential power over diplomatic negotiations. “[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.”31 Curtiss-Wright remains to this day the most frequently cited foreign affairs case by the Supreme Court.32
In 1818, the legendary Henry Clay remarked on the House floor that expenditures from the President’s “secret service” fund “would not be a proper subject for inquiry” by the Congress.33 This was exclusively the business of the Executive. The point went unchallenged, and indeed others reaffirmed Clay’s point.34 This congressional deference to the Executive regarding intelligence and other aspects of the nation’s foreign affairs continued into the second half of the twentieth century.35
In 1959, for example—during a speech at Cornell Law School—Senate Foreign Relations Committee Chairman J. William Fulbright 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.’”36 Note that Fulbright was not merely acknowledging that the President was “communicator-in-chief” with foreign governments, but that he was empowered as well by the Constitution to “formulate” foreign policy—subject, of course, to the Senate’s negative over a completed treaty.
Nine years after Fulbright’s speech, Congress—in response to the Supreme Court’s decision in Katz v. United States,37 holding for the first time that telephone wiretaps implicated Fourth Amendment values and thus required a prior judicial warrant38—enacted the nation’s first wiretap statute. The Omnibus Safe Streets and Crime Control Act of 1968 expressly recognized the “constitutional power” of the President to engage in warrantless electronic surveillance:
Nothing contained in this chapter ... shall limit the constitutional power of the President to take such measures as he deems necessary ... to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities.3910
Courts and commentators alike have correctly noted that this language was not a grant of power from the Congress to the President.40 Indeed, had that been the case, a subsequent Act of Congress could withdraw that delegation and replace it with a regime like FISA. Instead, the 1968 statute was a formal acknowledgement by Congress that the President already had this power—vested in his office directly by the Constitution—and thus implicitly recognizing that no mere statute could deprive the President of that power.41
It should be remembered that, unlike Articles II and III of the Constitution, which vest the nation’s Executive and Judicial powers in a President and courts, Article I, Section 1 vests in Congress only those Legislative powers “herein granted.”42 Over the decades, courts have tolerated broad expansions of legislative authority beyond the original vision. But, accepting some implicit legislative power to seize control over intelligence activities would be difficult without opening the door for Congress to “direct the conduct of [military] campaigns”43 and instruct the
Supreme Court on how it must decide pending cases.44 Such interpretations would totally destroy the doctrine of separation of powers.