I would beg to differ that Clinton went down for a blow job, although
Monica certainly went down on and for him. Clinton beat the impeachment,
won a war in Kosovo, and gained Democratic seats in his lame duck term, all
at the same time. I sure miss that kind of competance. It seems that
Republican revisionism often portrays these events as Clinton's downfall,
if they could only be so effective in their best moments.
> [Original Message]
> From: Blunderov <email@example.com
> To: <firstname.lastname@example.org
> Date: 01/21/2006 2:45:30 PM
> Subject: RE: virus: 'On NSA Spying' an open letter to congress.
> [Blunderov] This (below) seems an authoritative opinion. Bush swore to
> uphold the constitution. He has not. In fact, quite the reverse.
> How does he continue to survive? It is completely amazing to me. Clinton
> went down because of a blow-job. And yet Bush carries on regardless. The
> only conclusion I can draw is that he must be what America wants. And this
> in spite of the fact that Bin Laden is STILL making video tapes with
> apparent complete impunity.
> Best Regards.
> ON NSA SPYING: A LETTER TO CONGRESS
> By Beth Nolan, Curtis Bradley, David Cole, Geoffrey Stone, Harold Hongju
> Koh, Kathleen M. Sullivan, Laurence H. Tribe, Martin Lederman, Philip B.
> Heymann, Richard Epstein, Ronald Dworkin, Walter Dellinger, William S.
> Sessions, William Van Alstyne
> Dear Members of Congress:
> We are scholars of constitutional law and former government officials. We
> write in our individual capacities as citizens concerned by the Bush
> administration's National Security Agency domestic spying program, as
> reported in The New York Times, and in particular to respond to the
> Department's December 22, 2005, letter to the majority and minority
> of the House and Senate Intelligence Committees setting forth the
> administration's defense of the program. Although the program's secrecy
> prevents us from being privy to all of its details, the Justice
> defense of what it concedes was secret and warrantless electronic
> surveillance of persons within the United States fails to identify any
> plausible legal authority for such surveillance. Accordingly the program
> appears on its face to violate existing law.
> The basic legal question here is not new. In 1978, after an extensive
> investigation of the privacy violations associated with foreign
> surveillance programs, Congress and the President enacted the Foreign
> Intelligence Surveillance Act (FISA). Pub. L. 95-511, 92 Stat. 1783. FISA
> comprehensively regulates electronic surveillance within the United
> striking a careful balance between protecting civil liberties and
> the "vitally important government purpose" of obtaining valuable
> intelligence in order to safeguard national security. S. Rep. No. 95-604,
> pt. 1, at 9 (1977).
> With minor exceptions, FISA authorizes electronic surveillance only upon
> certain specified showings, and only if approved by a court. The statute
> specifically allows for warrantless wartime domestic electronic
> surveillance—but only for the first fifteen days of a war. 50 U.S.C. §
> It makes criminal any electronic surveillance not authorized by statute,
> § 1809; and it expressly establishes FISA and specified provisions of the
> federal criminal code (which govern wiretaps for criminal investigation)
> the "exclusive means by which electronic surveillance...may be conducted,"
> 18 U.S.C. § 2511(2)(f) (emphasis added).
> The Department of Justice concedes that the NSA program was not authorized
> by any of the above provisions. It maintains, however, that the program
> not violate existing law because Congress implicitly authorized the NSA
> program when it enacted the Authorization for Use of Military Force (AUMF)
> against al-Qaeda, Pub. L. No. 107-40, 115 Stat. 224 (2001). But the AUMF
> cannot reasonably be construed to implicitly authorize warrantless
> electronic surveillance in the United States during wartime, where
> has expressly and specifically addressed that precise question in FISA and
> limited any such warrantless surveillance to the first fifteen days of
> The DOJ also invokes the President's inherent constitutional authority as
> Commander in Chief to collect "signals intelligence" targeted at the
> and maintains that construing FISA to prohibit the President's actions
> raise constitutional questions. But even conceding that the President in
> role as Commander in Chief may generally collect "signals intelligence" on
> the enemy abroad, Congress indisputably has authority to regulate
> surveillance within the United States, as it has done in FISA. Where
> Congress has so regulated, the President can act in contravention of
> only if his authority is exclusive, that is, not subject to the check of
> statutory regulation. The DOJ letter pointedly does not make that
> extraordinary claim.
> Moreover, to construe the AUMF as the DOJ suggests would itself raise
> serious constitutional questions under the Fourth Amendment. The Supreme
> Court has never upheld warrantless wiretapping within the United States.
> Accordingly, the principle that statutes should be construed to avoid
> serious constitutional questions provides an additional reason for
> concluding that the AUMF does not authorize the President's actions here.
> Congress did not implicitly authorize the NSA domestic spying program in
> AUMF, and in fact expressly prohibited it in FISA
> The DOJ concedes (Letter at 4) that the NSA program involves "electronic
> surveillance," which is defined in FISA to mean the interception of the
> contents of telephone, wire, or e-mail communications that occur, at least
> in part, in the United States. 50 U.S.C. §§ 1801(f)(1)-(2), 1801(n). The
> engages in such surveillance without judicial approval, and apparently
> without the substantive showings that FISA requires—e.g., that the subject
> is an "agent of a foreign power." Id. § 1805(a). The DOJ does not argue
> FISA itself authorizes such electronic surveillance; and, as the DOJ
> acknowledges, 18 U.S.C. § 1809 makes criminal any electronic surveillance
> not authorized by statute.
> The DOJ nevertheless contends that the surveillance is authorized by the
> AUMF, signed on September 18, 2001, which empowers the President to use
> necessary and appropriate force against" al-Qaeda. According to the DOJ,
> collecting "signals intelligence" on the enemy, even if it involves
> US phones without court approval or probable cause, is a "fundamental
> incident of war" authorized by the AUMF. This argument fails for four
> First, and most importantly, the DOJ's argument rests on an unstated
> "implication" from the AUMF that directly contradicts express and specific
> language in FISA. Specific and "carefully drawn" statutes prevail over
> general statutes where there is a conflict. Morales v. TWA, Inc., 504 U.S.
> 374, 384-85 (1992) (quoting International Paper Co. v. Ouelette, 479 U.S.
> 481, 494 (1987)). In FISA, Congress has directly and specifically spoken
> the question of domestic warrantless wiretapping, including during
> and it could not have spoken more clearly.
> As noted above, Congress has comprehensively regulated all electronic
> surveillance in the United States, and authorizes such surveillance only
> pursuant to specific statutes designated as the "exclusive means by which
> electronic surveillance...and the interception of domestic wire, oral, and
> electronic communications may be conducted." 18 U.S.C. § 2511(2)(f)
> (emphasis added). Moreover, FISA specifically addresses the question of
> domestic wiretapping during wartime. In a provision entitled
> during time of war," FISA dictates that "notwithstanding any other law,
> President, through the Attorney General, may authorize electronic
> surveillance without a court order under this subchapter to acquire
> intelligence information for a period not to exceed fifteen calendar days
> following a declaration of war by the Congress." 50 U.S.C. § 1811
> added). Thus, even where Congress has declared war—a more formal step than
> an authorization such as the AUMF —the law limits warrantless wiretapping
> the first fifteen days of the conflict. Congress explained that if the
> President needed further warrantless surveillance during wartime, the
> fifteen days would be sufficient for Congress to consider and enact
> authorization. Rather than follow this course, the President acted
> unilaterally and secretly in contravention of FISA's terms. The DOJ letter
> remarkably does not even mention FISA's fifteen-day war provision, which
> directly refutes the President's asserted "implied" authority.
> In light of the specific and comprehensive regulation of FISA, especially
> the fifteen-day war provision, there is no basis for finding in the AUMF's
> general language implicit authority for unchecked warrantless domestic
> wiretapping. As Justice Frankfurter stated in rejecting a similar argument
> by President Truman when he sought to defend the seizure of the steel
> during the Korean War on the basis of implied congressional authorization:
> It is one thing to draw an intention of Congress from general language and
> to say that Congress would have explicitly written what is inferred, where
> Congress has not addressed itself to a specific situation. It is quite
> impossible, however, when Congress did specifically address itself to a
> problem, as Congress did to that of seizure, to find secreted in the
> interstices of legislation the very grant of power which Congress
> consciously withheld. To find authority so explicitly withheld is...to
> disrespect the whole legislative process and the constitutional division
> authority between President and Congress. Youngstown Sheet & Tube Co. v.
> Sawyer, 343 U.S. 579, 609 (1952) (Frankfurter, J., concurring).
> Second, the DOJ's argument would require the conclusion that Congress
> implicitly and sub silentio repealed 18 U.S.C. § 2511(2)(f), the provision
> that identifies FISA and specific criminal code provisions as "the
> means by which electronic surveillance...may be conducted." Repeals by
> implication are strongly disfavored; they can be established only by
> "overwhelming evidence," J.E.M. Ag. Supply, Inc. v. Pioneer Hi-Bred Int'l,
> Inc., 534 U.S. 124, 137 (2001), and "‘the only permissible justification
> a repeal by implication is when the earlier and later statutes are
> irreconcilable,'" id. at 141–142 (quoting Morton v. Mancari, 417 U.S. 535,
> 550 (1974)). The AUMF and § 2511(2)(f) are not irreconcilable, and there
> no evidence, let alone overwhelming evidence, that Congress intended to
> repeal § 2511(2)(f).
> Third, Attorney General Alberto Gonzales has admitted that the
> administration did not seek to amend FISA to authorize the NSA spying
> program because it was advised that Congress would reject such an
> amendment. The administration cannot argue on the one hand that
> authorized the NSA program in the AUMF, and at the same time that it did
> ask Congress for such authorization because it feared Congress would say
> Finally, the DOJ's reliance upon Hamdi v. Rumsfeld, 542 U.S. 507 (2004),
> support its reading of the AUMF, see DOJ Letter at 3, is misplaced. A
> plurality of the Court in Hamdi held that the AUMF authorized military
> detention of enemy combatants captured on the battlefield abroad as a
> "fundamental incident of waging war." Id. at 519. The plurality expressly
> limited this holding to individuals who were "part of or supporting forces
> hostile to the United States or coalition partners in Afghanistan and who
> engaged in an armed conflict against the United States there." Id. at 516
> (emphasis added). It is one thing, however, to say that foreign
> capture of enemy combatants is an incident of waging war that Congress
> intended to authorize. It is another matter entirely to treat unchecked
> war-rantless domestic spying as included in that authorization, especially
> where an existing statute specifies that other laws are the "exclusive
> means" by which electronic surveillance may be conducted and provides that
> even a declaration of war authorizes such spying only for a fifteen-day
> emergency period.
> Construing FISA to prohibit warrantless domestic wiretapping does not
> any serious constitutional question, while construing the AUMF to
> such wiretapping would raise serious questions under the Fourth Amendment
> The DOJ argues that FISA and the AUMF should be construed to permit the
> program's domestic surveillance because there otherwise might be a
> between FISA and the President's Article II authority as
> Commander-in-Chief." DOJ Letter at 4. The statutory scheme described above
> is not ambiguous, and therefore the constitutional avoidance doctrine is
> even implicated. See United States v. Oakland Cannabis Buyers' Coop., 532
> U.S. 483, 494 (2001) (the "canon of constitutional avoidance has no
> application in the absence of statutory ambiguity"). But were it
> it would work against the President, not in his favor. Construing FISA and
> the AUMF according to their plain meanings raises no serious
> questions regarding the President's duties under Article II. Construing
> AUMF to permit unchecked warrantless wiretapping without probable cause,
> however, would raise serious questions under the Fourth Amendment.
> A. FISA's Limitations are consistent with the President's Article II role
> We do not dispute that, absent congressional action, the President might
> have inherent constitutional authority to collect "signals intelligence"
> about the enemy abroad. Nor do we dispute that, had Congress taken no
> in this area, the President might well be constitutionally empowered to
> conduct domestic surveillance directly tied and narrowly confined to that
> goal—subject, of course, to Fourth Amendment limits. Indeed, in the years
> before FISA was enacted, the federal law involving wiretapping
> provided that "nothing contained in this chapter or in section 605 of the
> Communications Act of 1934 shall limit the constitutional power of the
> President...to obtain foreign intelligence information deemed essential to
> the security of the United States." 18 U.S.C. § 2511(3) (1976).
> But FISA specifically repealed that provision, FISA § 201(c), 92 Stat.
> and replaced it with language dictating that FISA and the criminal code
> the "exclusive means" of conducting electronic surveillance. In doing so,
> Congress did not deny that the President has constitutional power to
> electronic surveillance for national security purposes; rather, Congress
> properly concluded that "even if the President has the inherent authority
> the absence of legislation to authorize warrantless electronic
> for foreign intelligence purposes, Congress has the power to regulate the
> conduct of such surveillance by legislating a reasonable procedure, which
> then becomes the exclusive means by which such surveillance may be
> conducted." H.R. Rep. No. 95-1283, pt. 1, at 24 (1978) (emphasis added).
> This analysis, Congress noted, was "supported by two successive Attorneys
> General." Id.
> To say that the President has inherent authority does not mean that his
> authority is exclusive, or that his conduct is not subject to statutory
> regulations enacted (as FISA was) pursuant to Congress's Article I powers.
> As Justice Jackson famously explained in his influential opinion in
> Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. at 635 (Jackson, J.,
> concurring), the Constitution "enjoins upon its branches separateness but
> interdependence, autonomy but reciprocity. Presidential powers are not
> but fluctuate, depending upon their disjunction or conjunction with those
> Congress." For example, the President in his role as Commander in Chief
> directs military operations. But the Framers gave Congress the power to
> prescribe rules for the regulation of the armed and naval forces, Art. I,
> 8, cl. 14, and if a duly enacted statute prohibits the military from
> engaging in torture or cruel, inhuman, and degrading treatment, the
> President must follow that dictate. As Justice Jackson wrote, when the
> President acts in defiance of "the expressed or implied will of Congress,"
> his power is "at its lowest ebb." 343 U.S. at 637. In this setting,
> wrote, "Presidential power [is] most vulnerable to attack and in the least
> favorable of all constitutional postures." Id. at 640.
> Congress plainly has authority to regulate domestic wiretapping by federal
> agencies under its Article I powers, and the DOJ does not suggest
> Indeed, when FISA was enacted, the Justice Department agreed that Congress
> had power to regulate such conduct, and could require judicial approval of
> foreign intelligence surveillance. FISA does not prohibit foreign
> intelligence surveillance, but merely imposes reasonable regulation to
> protect legitimate privacy rights. (For example, although FISA generally
> requires judicial approval for electronic surveillance of persons within
> United States, it permits the executive branch to install a wiretap
> immediately so long as it obtains judicial approval within seventy-two
> hours. 50 U.S.C. § 1805(f).)
> Just as the President is bound by the statutory prohibition on torture, he
> is bound by the statutory dictates of FISA. The DOJ once infamously
> argued that the President as Commander in Chief could ignore even the
> criminal prohibition on torture, and, more broadly still, that statutes
> may not "place any limits on the President's determinations as to any
> terrorist threat, the amount of military force to be used in response, or
> the method, timing, and nature of the response." But the
> withdrew the August 2002 torture memo after it was disclosed, and for good
> reason the DOJ does not advance these extreme arguments here. Absent a
> serious question about FISA's constitutionality, there is no reason even
> consider construing the AUMF to have implicitly overturned the carefully
> designed regulatory regime that FISA establishes. See, e.g., Reno v.
> 507 U.S. 292, 314 n.9 (1993) (constitutional avoidance canon applicable
> if the constitutional question to be avoided is a serious one, "not to
> eliminate all possible contentions that the statute might be
> unconstitutional") (emphasis in original; citation omitted).
> B. Construing the AUMF to authorize warrantless domestic wiretapping would
> raise serious constitutional questions
> The principle that ambiguous statutes should be construed to avoid serious
> constitutional questions works against the administration, not in its
> Interpreting the AUMF and FISA to permit unchecked domestic wiretapping
> the duration of the conflict with al-Qaeda would certainly raise serious
> constitutional questions. The Supreme Court has never upheld such a
> power to invade the privacy of Americans at home without individualized
> suspicion or judicial oversight.
> The NSA surveillance program permits wiretapping within the United States
> without either of the safeguards presumptively required by the Fourth
> Amendment for electronic surveillance —individualized probable cause and a
> warrant or other order issued by a judge or magistrate. The Court has long
> held that wiretaps generally require a warrant and probable cause. Katz v.
> United States, 389 U.S. 347 (1967). And the only time the Court considered
> the question of national security wiretaps, it held that the Fourth
> Amendment prohibits domestic security wiretaps without those safeguards.
> United States v. United States District Court, 407 U.S. 297 (1972).
> the Court in that case left open the question of the Fourth Amendment
> validity of warrantless wiretaps for foreign intelligence purposes, its
> precedents raise serious constitutional questions about the kind of
> open-ended authority the President has asserted with respect to the NSA
> program. See id. at 316-18 (explaining difficulty of guaranteeing Fourth
> Amendment freedoms if domestic surveillance can be conducted solely in the
> discretion of the executive branch).
> Indeed, serious Fourth Amendment questions about the validity of
> wiretapping led Congress to enact FISA, in order to "provide the secure
> framework by which the executive branch may conduct legitimate electronic
> surveillance for foreign intelligence purposes within the context of this
> nation's commitment to privacy and individual rights." S. Rep. No. 95-604,
> at 15 (1978) (citing, inter alia, Zweibon v. Mitchell, 516 F.2d 594 (D.C.
> Cir. 1975), cert. denied, 425 U.S. 944 (1976), in which the court of
> held that a warrant must be obtained before a wiretap is installed on a
> domestic organization that is neither the agent of, nor acting in
> collaboration with, a foreign power).
> Relying on In re Sealed Case No. 02-001, the DOJ argues that the NSA
> falls within an exception to the warrant and probable cause requirement
> reasonable searches that serve "special needs" above and beyond ordinary
> enforcement. But the existence of "special needs" has never been found to
> permit warrantless wiretapping. "Special needs" generally excuse the
> and individualized suspicion requirements only where those requirements
> impracticable and the intrusion on privacy is minimal. See, e.g., Griffin
> Wisconsin, 483 U.S. 868, 873 (1987). Wiretapping is not a minimal
> on privacy, and the experience of FISA shows that foreign intelligence
> surveillance can be carried out through warrants based on individualized
> The court in Sealed Case upheld FISA itself, which requires warrants
> by Article III federal judges upon an individualized showing of probable
> cause that the subject is an "agent of a foreign power." The NSA domestic
> spying program, by contrast, includes none of these safeguards. It does
> require individualized judicial approval, and it does not require a
> that the target is an "agent of a foreign power." According to Attorney
> General Gonzales, the NSA may wiretap any person in the United States who
> much as receives a communication from anyone abroad, if the administration
> deems either of the parties to be affiliated with al-Qaeda, a member of an
> organization affiliated with al-Qaeda, "working in support of al Qaeda,"
> "part of" an organization or group "that is supportive of al Qaeda."
> Under this reasoning, a US citizen living here who received a phone call
> from another US citizen who attends a mosque that the administration
> believes is "supportive" of al-Qaeda could be wiretapped without a
> The absence of meaningful safeguards on the NSA program at a minimum
> serious questions about the validity of the program under the Fourth
> Amendment, and therefore supports an interpretation of the AUMF that does
> not undercut FISA's regulation of such conduct.
> In conclusion, the DOJ letter fails to offer a plausible legal defense of
> the NSA domestic spying program. If the administration felt that FISA was
> insufficient, the proper course was to seek legislative amendment, as it
> with other aspects of FISA in the Patriot Act, and as Congress expressly
> contemplated when it enacted the wartime wiretap provision in FISA. One of
> the crucial features of a constitutional democracy is that it is always
> to the President—or anyone else—to seek to change the law. But it is also
> beyond dispute that, in such a democracy, the President cannot simply
> violate criminal laws behind closed doors because he deems them obsolete
> We hope you find these views helpful to your consideration of the legality
> of the NSA domestic spying program.
> Curtis Bradley, Duke Law School, former Counselor on International Law in
> the State Department Legal Adviser's Office
> David Cole, Georgetown University Law Center
> Walter Dellinger, Duke Law School, former Deputy Assistant Attorney
> Office of Legal Counsel and Acting Solicitor General
> Ronald Dworkin, NYU Law School
> Richard Epstein, University of Chicago Law School, Senior Fellow, Hoover
> Philip B. Heymann, Harvard Law School, former Deputy Attorney General
> Harold Hongju Koh, Dean, Yale Law School, former Assistant Secretary of
> State for Democracy, Human Rights and Labor, former Attorney-Adviser,
> of Legal Counsel, DOJ
> Martin Lederman, Georgetown University Law Center, former
> Office of Legal Counsel, DOJ
> Beth Nolan, former Counsel to the President and Deputy Assistant Attorney
> General, Office of Legal Counsel
> William S. Sessions, former Director, FBI, former Chief United States
> District Judge
> Geoffrey Stone, Professor of Law and former Provost, University of Chicago
> Kathleen Sullivan, Professor and former Dean, Stanford Law School
> Laurence H. Tribe, Harvard Law School
> William Van Alstyne, William & Mary Law School, former Justice Department
>  The Justice Department letter can be found at
>  More detail about the operation of FISA can be found in Congressional
> Research Service, "Presidential Authority to Conduct Warrantless
> Surveillance to Gather Foreign Intelligence Information" (January 5,
> This letter was drafted prior to release of the CRS Report, which
> corroborates the conclusions drawn here.
>  "The Conferees intend that this [15-day] period will allow time for
> consideration of any amendment to this act that may be appropriate during
> wartime emergency.... The conferees expect that such amendment would be
> reported with recommendations within 7 days and that each House would vote
> on the amendment within 7 days thereafter." H.R. Conf. Rep. No. 95-1720,
> 34 (1978).
>  Attorney General Gonzales stated, "We have had discussions with
> in the past—certain members of Congress—as to whether or not FISA could be
> amended to allow us to adequately deal with this kind of threat, and we
> advised that that would be difficult, if not impossible." Press Briefing
> Attorney General Alberto Gonzales and General Michael Hayden, Principal
> Deputy Director for National Intelligence (December 19, 2005), available
>  The administration had a convenient vehicle for seeking any such
> amendment in the USA PATRIOT Act of 2001, Pub. L. No. 107-56, 115 Stat.
> enacted in October 2001. The Patriot Act amended FISA in several respects,
> including in sections 218 (allowing FISA wiretaps in criminal
> investigations) and 215 (popularly known as the "libraries provision").
> the administration did not ask Congress to amend FISA to authorize the
> warrantless electronic surveillance at issue here.
>  The DOJ attempts to draw an analogy between FISA and 18 U.S.C. §
> 4001(a), which provides that the United States may not detain a US citizen
> "except pursuant to an act of Congress." The DOJ argues that just as the
> AUMF was deemed to authorize the detention of Hamdi, 542 U.S. at 519, so
> AUMF satisfies FISA's requirement that electronic surveillance be
> "authorized by statute." DOJ Letter at 3-4. The analogy is inapt. As noted
> above, FISA specifically limits warrantless domestic wartime surveillance
> the first fifteen days of the conflict, and 18 U.S.C. § 2511(2)(f)
> that existing law is the "exclusive means" for domestic wiretapping.
> 4001(a), by contrast, neither expressly addresses detention of the enemy
> during wartime nor attempts to create an exclusive mechanism for
> Moreover, the analogy overlooks the carefully limited holding and
> of the Hamdi plurality, which found the AUMF to be an "explicit
> congressional authorization for the detention of individuals in the narrow
> category we describe...who fought against the United States in Afghanistan
> as part of the Taliban, an organization known to have supported the al
> terrorist network," and whom "Congress sought to target in passing the
> AUMF." 542 U.S. at 518. By the government's own admission, the NSA program
> is by no means so limited. See Gonzales/Hayden Press Briefing, supra note
>  See, e.g., S. Rep. No. 95-604, pt. I, at 16 (1977) (Congress's
> of power to regulate the President's authorization of electronic
> surveillance for foreign intelligence purposes was "concurred in by the
> Attorney General"); Foreign Intelligence Electronic Surveillance: Hearings
> Before the Subcomm. on Legislation of the House Permanent Select Comm. on
> Intelligence, 95th Cong., 2d Sess., at 31 (1978) (Letter from John M.
> Harmon, Assistant Attorney General, Office of Legal Counsel, to Edward P.
> Boland, Chairman, House Permanent Select Comm. on Intelligence (Apr. 18,
> 1978)) ("it seems unreasonable to conclude that Congress, in the exercise
> its powers in this area, may not vest in the courts the authority to
> intelligence surveillance").
>  Indeed, Article II imposes on the President the general obligation to
> enforce laws that Congress has validly enacted, including FISA: "he shall
> take Care that the Laws be faithfully executed..." (emphasis added). The
> of the mandatory "shall" indicates that under our system of separation of
> powers, he is duty-bound to execute the provisions of FISA, not defy them.
>  See Memorandum from Jay S. Bybee, Assistant Attorney General,
> of Justice Office of Legal Counsel, to Alberto R. Gonzales, Counsel to the
> President, Re: Standards of Conduct for Interrogation under 18 U.S.C. §§
> 2340-2340A (Aug. 1, 2002), at 31.
>  Memorandum from John C. Yoo, Deputy Assistant Attorney General,
> of Legal Counsel, to the Deputy Counsel to the President, Re: The
> President's Constitutional Authority to Conduct Military Operations
> Terrorists and Nations Supporting Them (September 25, 2001), available at
>  Three years ago, the FISA Court of Review suggested in dictum that
> Congress cannot "encroach on the President's constitutional power" to
> conduct foreign intelligence surveillance. In re Sealed Case No. 02-001,
> F.3d 717, 742 (FIS Ct. Rev. 2002) (per curiam). The FISA Court of Review,
> however, did not hold that FISA was unconstitutional, nor has any other
> court suggested that FISA's modest regulations constitute an impermissible
> encroachment on presidential authority. The FISA Court of Review relied
> United States v. Truong Dihn Hung, 629 F.2d 908 (4th Cir. 1980)—but that
> court did not suggest that the President's powers were beyond
> control. To the contrary, the Truong court indicated that FISA's
> restrictions were constitutional. 629 F.2d at 915 n.4 (noting that "the
> imposition of a warrant requirement, beyond the constitutional minimum
> described in this opinion, should be left to the intricate balancing
> performed in the course of the legislative process by Congress and the
> President") (emphasis added).
>  See Gonzales/Hayden Press Briefing, supra note 4.
>  During consideration of FISA, the House of Representatives noted,
> decision as to the standards governing when and how foreign intelligence
> electronic surveillance should be conducted is and should be a political
> decision...properly made by the political branches of Government together,
> not adopted by one branch on its own and with no regard for the other.
> our Constitution legislation is the embodiment of just such political
> decisions." H.R. Conf. Rep. No. 95-1283, pt. 1, at 21-22.
> Attorney General Griffin Bell supported FISA in part because "no matter
> well intentioned or ingenious the persons in the Executive branch who
> formulate these measures, the crucible of the legislative process will
> ensure that the procedures will be affirmed by that branch of government
> which is more directly responsible to the electorate." Foreign
> Surveillance Act of 1978: Hearings Before the Subcommittee on Intelligence
> and the Rights of Americans of the Senate Select Committee on
> 95th Cong., 2d Sess. 12 (1997).
>  Affiliations are noted for identification purposes only.
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