The Right Coast

December 27, 2005
Article II Authority to listen in to Al Qaeda phone calls
by Tom Smith

I may be I'm missing something, but I don't see how the following language in the AG's letter to Congress regarding the NSA catastrophic terrorist attack prevention program (my name for it) does not rely at least in part on the Article II argument, as Orin Kerr suggests here. That is, it sure seems to invoke Article II power to me. I quote from the letter liberally below because (1) I think it is a good argument, and correct, as far as I can see and (2) the letter musters a fair bit of authority for the proposition, and deserves more blogospheric prominence:

Under Article 11 of the Constitution, including in his capacity as Commander in Chief, the President has the responsibility to protect the Nation from further attacks, and the Constitution gives him all necessary authority to fulfill that duty. See, e.g., Prize Cases, 67 U.S. (2 Black) 635, 668 (1 863) (stressing that if the Nation is invaded, "the President is not only authorized but bound to resist by force . . . . without waiting for any special legislative authority"); Campbell v. Clinton, 203 F.3d 19,27 (D.C. Cir. 2000) (Silberman, J., concurring) ("[Tlhe Prize Cases . . . stand for the proposition that the President has independent authority to repel aggressive acts by third parties even without specific congressional authorization, and courts may not review the level of force selected."); id. at 40 (Tatel, J., concurring). The Congress recognized this constitutional authority in the preamble to the Authorization for the Use of Military Force ("AUMF") of September 18, 2001, 115 Stat. 224 (2001) ("[Tlhe President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States."), and in the War Powers Resolution, see 50 U.S.C. 8 1541(c) ("The constitutional powers of the President as Commander in Chief to introduce United States Armed Forces into hostilities[] . . . [extend to] a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.").
This constitutional authority includes the authority to order warrantless foreign intelligence surveillance within the United States, as all federal appellate courts, including at least four circuits, to have addressed the issue have concluded. See, e.g., In re Sealed Case, 310 F.3d 7 17, 742 (FISA Ct. of Review 2002) ("[AIII the other courts to have decided the issue [have] 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. . . ."). The Supreme Court has said that warrants are generally required in the context of purely donrestic threats, but it expressly distinguished,foreign threats. See United States v. United States District
Cotrrt, 407 U.S. 297,308 (1972). As Justice Byron White recognized almost 40 years ago, Presidents have long exercised the authority to conduct warrantless surveillance for national security purposes, and a warrant is unnecessary "if the President of the United States or his chief
legal officer, the Attorney General, has considered the requirements of national security and authorized electronic surveillance as reasonable." Katz v. United States, 389 U.S. 347, 363-64 (1967) (White, J., concurring).
The President's constitutional authority to direct the NSA to conduct the activities he described is supplemented by statutory authority under the AUMF. ...
[Copied from PDF but not proofed]

The original letter is here.

I think the letter is saying pretty clearly that the President has authority under Article II, independent of any congressional enactment, to defend the country. Congress recongnizes that authority in AUMF, but it is not as if that authority has to flow through AUMF to authorize defensive actions.