The Surprisingly Stronger Case for the Legality of the NSA Surveillance Program: The FDR Precedent

Article excerpt

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. …