The surprisingly stronger case for the legality of the NSA surveillance program: the FDR precedent.

• Author: Katyal, Neal
• Position: National Security Agency, President Franklin Delano Roosevelt

INTRODUCTION I. THE NSA CONTROVERSY A. The Foreign Intelligence Surveillance Act B. The NSA Program II. THE PRECURSOR TO THE FDR PRECEDENT: NARDONE I AND II A. The 1934 Communications Act B. FDR's Thirst for Intelligence C. Nardone I D. Nardone II III. FDR's DEFIANCE OF CONGRESS AND THE SUPREME COURT A. Attorney General Jackson's Wiretapping Prohibition Under Nardone and the 1934 Communications Act B. FDR Secretly Resurrects Wiretapping by Confidential Memorandum C. The (Uninformed) Debate over Wiretapping in Congress, Courts, and Executive Branch Continues D. FDR Solidifies Wiretapping as Government Policy IV. ESCAPING THE PAST: LEARNING FROM THE BUSH AND FDR ADMINISTRATIONS A. The FDR Precedent and Executive Branch Lawbreaking B. Why the FDR Defense Ultimately Fails C. Lessons for the Future CONCLUSION APPENDIX: MEMORANDUM FROM FDR INTRODUCTION

This Article explains why the legal case for the recently disclosed National Security Agency surveillance program turns out to be stronger than what the Administration has advanced. In defending its action, the Administration overlooked the details surrounding one of the most important periods of presidentially imposed surveillance in wartime--President Franklin Delano Roosevelt's (FDR) wiretapping and his secret end-run around both the wiretapping prohibition enacted by Congress and decisions of the United States Supreme Court. In our view, the argument does not quite carry the day, but it is a much heftier one than those that the Administration has put forth to date to justify its NSA program. The secret history, moreover, serves as a powerful new backdrop against which to view today's controversy.

In general, we believe that compliance with executive branch precedent is a critical element in assessing the legality of a President's actions during a time of armed conflict. In the crucible of legal questions surrounding war and peace, few judicial precedents will provide concrete answers. Instead, courts will tend to invoke the political question doctrine or other prudential canons to stay silent; and even in those cases where they reach the merits, courts will generally follow a minimalist path. (1) For these and other reasons, the ways in which past Presidents have acted will often be a more useful guide in assessing the legality of a particular program, as Presidents face pressures on security unimaginable to any other actor outside or inside government. At the same time as Presidents realize these pressures, they are under an oath to the Constitution, and so the ways in which they balance constitutional governance and security threats can and should inform practice today. As Justice Frankfurter put it in Youngstown:

[A] systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on 'executive Power' vested in the President by [Section] 1 of Art. II. (2) So it is fitting that a good measure of the contemporary debate over the legality of the NSA program has centered around the surveillance orders of past Presidents. The Administration's defense, in two white papers, (3) emphasized its fidelity to the past:

Wiretaps for such purposes thus have been authorized by Presidents at least since the administration of Franklin Roosevelt in 1940. See, e.g., United States v. United States District Court, 444 F.2d 651, 669-71 (6th Cir. 1971) (reproducing as an appendix memoranda from Presidents Roosevelt, Truman, and Johnson). In a Memorandum to Attorney General Jackson, President Roosevelt wrote on May 21, 1940: You are, therefore, authorized and directed in such cases as you may approve, after investigation of the need in each case, to authorize the necessary investigat[ing] agents that they are at liberty to secure information by listening devices directed to the conversation or other communications of persons suspected of subversive activities against the Government of the United States, including suspected spies. You are requested furthermore to limit these investigations so conducted to a minimum and limit them insofar as possible to aliens. President Truman approved a memorandum drafted by Attorney General Tom Clark in which the Attorney General advised that "it is as necessary as it was in 1940 to take the investigative measures" authorized by President Roosevelt to conduct electronic surveillance "in cases vitally affecting the domestic security." (4) This executive branch precedent defense at first glance looks rather convincing. (Leave aside the white paper's mangling of the facts, such as claiming that Attorney General Clark drafted the Truman Memo about FDR when it actually was controversial Federal Bureau of Investigation (FBI) Director J. Edgar Hoover.) As constitutional scholars pointed out rather quickly in response to the white papers, the problem is that FDR was acting before Congress had occupied the field with respect to electronic surveillance, whereas President Bush was defying Congress's wishes. (5) The 1978 Foreign Intelligence Surveillance Act (FISA), these critics argued, said it was the "exclusive" means of carrying out surveillance (6)--which makes it quite different than FDR's order, an order that supposedly operated without any statutory constraint.

To put the Department of Justice's (DOJ) critics' claim into constitutional law jargon, FDR was acting in Youngstown Zone 2--the "twilight zone"--where his powers were greater. President Bush, by contrast, was acting in Zone 3--the Zone of Prohibition--where his powers were at their nadir. So, for example, as perhaps the most sophisticated analyst of the NSA controversy, David Kris (who formerly handled such issues for DOJ), summarized: "The DOJ whitepaper contains an extensive discussion of [previous presidential action] that I am more or less prepared to accept for present purposes. The constitutional question presented here, however, is whether the President retains such authority in the face of Congressional efforts to restrict it." (7) Professor Walter Dellinger, a former head of the Office of Legal Counsel, has similarly argued that the Bush Administration crated a "vast expansion" of presidential powers by confusing Zones 2 and 3 in the NSA program:

It is said by the defenders of what the President did that Presidents going back to Lincoln have authorized eavesdropping (Johnson, Roosevelt, others) authorized wiretapping in the national security interest. I'm perfectly willing to accept that as part of the inherent power of the President ... when there is no law one way or the other and it is in the national security interest.... What of course is amazing about the argument that that is a precedent is that those actions all preceded a decision by Congress to enact into law the Foreign Intelligence Surveillance Act which said here's how you do it and if you don't do it this way it is a felony. (8) As a result of such claims--that during the FDR Administration there was "no law one way or the other"--the FDR precedent defense has rapidly lost its steam and the Administration has largely abandoned reference to it.

The problem is that this criticism of the DOJ White Paper is wrong. The true facts surrounding FDR's activity will undoubtedly provide ammunition to those defending the Administration in today's controversy. They will show that FDR's wiretapping policy was far closer to today's wiretapping program than what the Administration has thus far argued. Then, as now, Congress regulated electronic surveillance. The Supreme Court of the United States had taken expansive views of that statute to bar certain forms of electronic surveillance. Then, as now, the President--acting on the advice of certain advisors--adopted a dubious statutory interpretation in order to conduct the surveillance anyway, and defy the Supreme Court. Then, as now, senior advisors, including an Attorney General of the United States, warned that such surveillance was illegal. And then, as now, some Administration officials lobbied Congress for additional surveillance powers at the very same time as they were conducting that very surveillance in secret. The Attorney General at the time, Robert Jackson, would write that "[t]he only case that I recall in which [FDR] declined to abide by a decision of the Supreme Court was its decision that federal law enforcement officers could not legally tap wires." (9)

The upshot is that today's surveillance program, in many key respects, looks strikingly similar to the one blessed by FDR. Both programs, in essence, have defied congressionally enacted law. For those who believe that the actions of one of our country's greatest Presidents-FDR--create an unwritten pattern and practice that informs constitutional interpretation, this precedent should loom large in debates about Executive Power to conduct such surveillance.

At the same time, we believe that the FDR precedent should not be overread. Ultimately, it does not do enough to convince us of the legality of today's program. Instead of trying to distinguish the two programs, we believe that the facts reveal that both programs were illegal. We further believe that great Presidents make mistakes, and FDR was not immune to them, even (or especially) in this area. (10) And we further believe that one of the key conditions for a "super-stare decisis" rule for executive branch precedent, open acquiescence by the other branches of government, something that Frankfurter himself mentioned, has not been met.

Nevertheless, we believe that these conclusions are debatable, and that the FDR precedent deserves widespread debate, instead of the inattention it has received thus far. FDR, after all, took a tendentious statutory interpretation, informed both by his view on the balance between security and law...