U-S. Department of Justice Of?ce of Legal Counsel Of?ce ofthe Deputy Assistant A?omey Genera] Washington, D. 20530 May 17, 2002 Judge Colleen Kollar-Kotelly U.S. District Court for the District of Court US. Courthouse 3d 3: Constitution Ave, NW. Washington, DC. 20001 Dear Judge: It was a pleasure to meet you today. I am writing this letter, at the direction of the Attorney General andinthe interests of cornity betweenthe executive and legislative branches, to follow up onyour questions concerning the scope efthe President's authorityto conduct warrantlins searches. Inparticular, this letter discusses the President's power to deploy expanded electronic surveillance techniques in response to the terrorist attacks against the United States on September 1 1, 2001; This letter outlines the legal justi?cations for such muveillance, which could be conduct ed witho ut awarrant for national security purposes. Under the ctnrent circumstances, inwhich hitetnationalterrorist groups continue to pose an immediate threatgwe have concluded that such surveillance would be reasonable under the Fourth Amendment because it advances the compelling government interest of protecting the Nation ?om direct attack. Part I of this memorandumdiscusses therelevant factual background. Part 1] examines the legal framework that governs the collection of electronic communications inthe United States, and whether warrantiess electronic surveillance is consistent with it. Part reviews di?'erent doctrines that a?ect the legality of di?'erent types of surveillmee. Part IV discuSSes the application ofthe FourthAmendment in light of the September 11 attacks. I . Four coordinatedterrorist attacks took place inrapid succession on the morning of September 1 1, 2001, aimedat critical Governmt buildings inthe Nation?s capital andlandmark buildings inits ?nancial center. Terrorists hijacked fouranplanw: one then crashed into the Pentagon and two inthe World Trade Center towers in New York City, the fourth, which was headed towards Washington, D. C., crashed in NW after passengers attempted to regain control of the aircraft. The attacks caused about five thousand deaths andthousands more injuries. Air traf?c and conununications within the United States have been disrupted; national stock exchanges were shut for several days; damage from the attack has been estimated to run into the billions of do] lars. The President has found that these attacks are part of a violent terrorist campaign against the United States by groups affiliated with AlaQaeda, an organization headed by Us ama bin Laden, that includes the suicide bombing attack on the U. . S. Cole in 2000, the bombing of our embassies in Kenya and Tanzania in 1998 the attack on a U.S. military housing complex in Saudi Arabiain 1996, and the bombing of the World Trade Center in 1993 . The nation has undergone an attack using biological weapons, in which unloiown terrorists have sent letters containing anthrax to government and media facilities, and which have resulted in the closure of executive, legislative, and judicial bran eh buildings. In reaponse, the Government has engaged in a broad effort at home and abroad to counter terrorism Pursuant to his authorities as and Chief Executive, the President has ordered the AmiedForces to attack al?Q aeda personnel and assets in Afghanistan, and the Tal?aanndlida that harbors them Congress has provided its support for the use of force against those linked to the September 1 i, 2001 attacks, and has recognized the President?s constitutional power to use force to preventanddeter ?mneattacks bothwithinandoutside theUnited States. 3.3. Res. 23, PubStat. 224 (2001). The n?litary has also been deployed domestically to protect sensitive government buildings and public places from further terrorist attack. The Justice Department and the FBI have launched a sweeping investigation in reSponse to the September 1 attacks. In October, 2001, Congress enacted legislation to expand the Justice Department?s powers of sinve?lance against terrorists. By executive order, the President has created a new of?ce for homeland security 1Within the White House to coordinate the domestic program against terrorism Electronic surveillance techniques would be part of this effort. The President would order -warrantless surveillance in order to gather intelligence-that would be used to prevent and deter future attacks en the United States. Given thatthe September 1 1 attacks were launched and carried out from within the United States itself, an effective W?anm program might include individuals and cummicaticns withinthe continental United States. This would be novel intwo respects. Without access to any non-public sources, itis Ourunderstanding?iat National Seetnity Agency (NBA) only conducts electronic surveillance of commnications outside the United States that do not involve United States persons. Usually, surveillance ofcomnmnications byUnited States persons withinthe United States is conducted by the FBI pursuant to a warrant obtained under the Foreign Intelligence Surveillance Act Second, interception could include electronic messages earritui through the internet, which again could include crimrmn?ications nithinthc United States involving United States persons. Currently, it is our understanding that neither. the NSA nor law enforcement conducts broad monitoring of electronic corm'nunications in this manner within the United States, without speci?c authorization under PISA. WW II. This Part discusses the legal authorities that govern the intelligence agencies, and whether warrantless electronic surveillance is consistent with them. Section A concludes that while certain aspects 0 such electronic surveillance might be ineons istent with earlier executive order, a presidential decision to conduct the surveillance constitutes a legitimate waiver to the order and is not unlawful. Section concludes that the Foreign Intelligence Surveillance Act does not restrict the constitutional authority of the executive branch to conduct surveillance of The type at issue here. A. The NSA was formed in 1952 by President Truman as part of the Defense Department. Under Executive Order 12,333, 46 ed. Reg. 5994] 1981), the NSA is solely responsible for ?signals intelligence activities . Id. 1 . It provides intelligence information acquired through the interception of conn'nunieations to the White House, executive branch agencies, the intelligence community, and the armed totem for intelligence, calmer-intelligence, and Clearly, the basic authority forthe establishment oftheNSA constitutional: the collections of SIGWT is an important part of the and ChiefExecutive powers, which enable the President to defend the national security both at home and abroad While Congress has enacted statutes authorizing the ?nding and organization of the NSA, it has never established any detailed statutory charter governing the activities. See Intelligence Authorization Act for FY 1993, Pub. L. No. 102?496, sec. 705 (giving Secretary ofDefense responsibilitvto ensnre, through the NSA, the ?continued operation of an e?ec?ve uni?ed organization for the conduct of signals intelligence activities?). The NSA generallyhas limited its operations to the interception of international comrnmieations in which no UnitedStatm person (a United States citizen, permanent resident alien, a U. S. corporation, oranunincorporated who are U.S. citizens or permanent resident aliens) is aparticipant According to publicly-available information, the in a great HESS of international telephone, radio, counter, and omer electronic communications, andthen ?lters themasing power?il computer-smears for certain words or phrases. See, age, Haiti" v. Helms, 690 F.2d 97?, 983 - 84 (D.C. Cir. 1982). Congress, however, has not imposed an}:r EXIIBSS statutoryrestrictions onthe intercept communications that involve United States citizens or that occur domestically. This lack of limitations can be further inferred ?om the National Security Act of 1947. The Act places a clear prohibition, for example, uponthe Central Intelligence Agency?s domestic activities. While Section 103 ofthe National Seem-ityAct commands the Director of Central intelligence to ?collect intelligence through human so urea and by other appropriatemeans,? it also adds ?except that the Agency shall have no police, subpoena, or law enforcement powers or internalseeurity ?maticns.? 50 U.S.C. ?403?3 l)(1994 Supp. 1999). There is no similar provision that applies to the NSA, which implies that the NSA can conduct SIGINT operations domestically. Rather than from statute, the limitation on the NSA ?s domestic 5 capabilities derives from executive order. Executch Order 12,333 requires that any ?[clollection within the United States of foreign not otherwise obtainable shall be undertaken by the FBI. Executive Order 12,3 3 3, at 2 If ?signi?cant foreign intelligence is sought," the Executive Order permits other agencies within the intelligence community to collect information ?provided that no foreign intellig encc collection by such agencies my be undertaken for the purpose of acquiring information concerning the domestic activities of United States persons. Id. Section 2.4 further nukes clear that the intelligence community cannot use ekctronic surveillance, among other techniques, ?withinthc United States or directed against United States persons abroa unless they are according to procedures established by the agemnvr head and approved by the Attorney General. In its own internal regulations the NSA apparently has interpreted these provision as its I (ile operations only to international conmnications that do not usvolve United States pets ons. Thus, the question arises whether a presidential decision to conduct warrantiess electronic surveillance, [or national security purposes, violates Exethive Order 12,333, if such stn'veillance is not limited only to foreign that do not involve US. citizens. Thus, for example, all ica ions between United States persons, whether in the United States or not, and individuals in might be intercepted. The President might direct the NSA to intercept communications between suspected taror'uts, even ifonc of the partim is a United tatcs person and the communication takes place between the United States and abroad. The non-content portion of electronic mail conmnmications also might be intercepted, even if one of parties is within the United States, or one or both of the parties are non~ci?zen U.S. persons a permanent resident alien). Such operations would expand the NSA 3 functions bayond the mnitoring only finternational comications of non?U5. persons. While such surve?lancemay go wellbeyond the current operations, it would not violate the text of the Exacutivc Order. Executive Order 2,3 33 states that ?when signi?cant ?neign intelligence is sought,? the NBA and other agencies of the intelligence commity any collect foreign hltelligencewithm the United States. The only qualificationon domestic collection thatit cannot be undertaken to acquire intern-mien about the domestic activities oftlnited States persons. IfUnited States were ed interrorist activities, either by cormmnicating with members of Al QWI by commicatingwith foreign terrorists even within the United States, they are not engaging in purer ?domestic? activities. Instead, theyare in foreign ten?or'utt activities that have a eompon out within the United States. We do not believe that Executive Order 12,33 3 was intended to prohibit intelligence agencies ??omn'acking international terrorist activities, solely because terrorists conduct those activities within the United States. Thiswould create the odd incentive of providing nitanational terror'nts with mine freedomto conduct their illegal truidethe United 5 tatesthan outside of it. Rather, the Executive Orderwas meant toprotect the privacy ofUnited States were not involved Fluthcr, Section 2.4 of Executive Order 1 2,333 contemplates that the NSA and other 4 CULIJ intelligence agencies can collect intelligence within the United States, so long as the Attorney General approves the procedures. Even ifs urveillanc were to con?icts with Executive Order 12, 33 3, it could not be said to be illegal. An execntive order is only the expression of the President?s exercise ofhis inherent constitutional powers. Thus, an executive order cannot limit a President, just as one President cannot legally bind future Presidents in areas of the executive?s Article II authority. Further, there is no constitutional requirement that a President issue anew executive order wheneverhe wishes to depart from the terms of aprevious executive order. In exercising his constitutional or delegated statutory powers, the President often must issue instructions to his subordinates in the executive branch, which takes the form of an executive order. An executive order, in no sense then, represents a President to himself, and therefore an executive order does not co mmit the President himself to a certain course of action. Ratherthan ?violate? an executive order, the President in authorizing a departure from an executive orderhas instead modi?ed or waived it. Memorandum for the Attorney General, From: Charles J. Cooper, Assistant Attorney General, Re: LegolAurh oriryfor Recent Co veri A rims Ironsfers to Iran (Dec. 17, 1986) ., In doing so, he neodnotissueanew executive order, rescindthe previous order, or waiver or suspension of the order publicly known. Thus, here, the October 4, 2001. Authorization, even if irr?tension with Executive Order 12,3 33, only represents acne-time modi?cation or waiver of the executive order, rather than a ?violation? that is in some way illegal B. Although it would not violate either the statutory authority for the operations or Executive Order 1 2, 3 33, warrantiess electronic surveillance within the United States, for national security purposes, would be in tension with FISA. FISA generally requires that the Justice Department obtains warrant before engaging in electronic United States, albeitaccordingto lowerstandards than apply to normal law enforcement warrants. Indeed, some elements of an electronic surveillance program such as intercepting the of individuals for which probable cause exists to believe are terrorists wcould probably be conductedpursuant to a FISA warrant. Here, however, a national security surveillance pro gram coold be inconsistent with the need for secrecy, nor would it be likely that a corut couldgrant awarrant for other elements of asurveillance program, such asthemonitoring of allcalls to and froma foreign nation, orthe general collection of addressing information Nonetheless, as Our Of?ce has advised before, and as the Justice Department represented to Congress during passage of the Patriot Aetof 2001 which resulted in severaldment to FISA, FISA only provides a safe harbor for eledronicsurveillance, and cannot restrict the President?s ability to engageinwarrantl searches that protectthe nationalsecurity. Memorandum for David S. Kris, Associate Deputy Attorney General, from John C. Yo 0, Deputy Assistant Attorney General, Re: Constitutionality of Amending Foreign Intelligence SmeilinneeAcr to Change the "Purpose Standard for Senmhes (Sept. 25, 2001). The ultimate test of the October 4 Authorization, therefore, is not PISA but the Fourth Amendment itself. FISA requires that in order to conduct electronic surveillance for foreign intelligence purposes, the Attorney General must approve an application for a warrant, which is th en presented to a special Article court. If the target of the surveillance is a foreign power, the application need not detail the communications sought or the methods to be used. lfthe target is an agent of a foreign power, which the statute de?nes to include someone who engages in international terrorism, 50 U.S.C. 1 301 (1994 d: Supp. 999), the application must contain detailed information concerning the target ?s identity, the places to be mnitdred, the communications sought, and the methods to be used. Id. at 1804(a)(3)? (l After pass age of the amendments as part of the Patriot Act, the National ecurityAdviser must certifythat a ?signi?cant? pinpose of the surveillance is to obtain foreign intellig ence information that cannot be obtained through normal investigative techniques. FISA de?nes foreign intelligence information to include infomlationthatrelates to ?actual or potential attack or other grave hostileacts of a foreign power? or its agent, or information concerning ?sabotage or international terrorism? by a foreignpower or its agent, or information that, if a United States person is involved, is necessary for the national security or conduct of foreign a??airs. Id. at 1801 PISA provides moire secrecy and a lower level of proof for warrants. FISA creates a lesser standard than requiredby the Fourth Amendment for. domestic law enforcement warrants, because the Attorney General need not demonstrate probable cause 0 fa crime. He must only show that there is reason to believe that the target is a foreign power or an agent of a foreign power, and that the places to be monitored will be used by them Id. at If the target is a United States person, however, the Court must ?nd that the National Security Adviser's certi?cation is not clearly erroneous. We do not believe an electronic surve?lancepro gram, undertaken in response to the September 2001 attacks,-could fully satisfy PISA standards. Such a program coold seek to intercept all communications between the United States and certain countries where terrorist groups are known to operate, or comrmmications that involveterrorists as An effective surveillanceprogramn?ght not be able to enforce adistinction between United States persons or aliens, or to require that therebe any actual knowledge of the identity of the targets of the search. PISA, however, requires that the warrant application identity the target withsorne particularity, probably either byname or by pseudonym. Id. at {3 1804(a)(3); cf. United States v. Principle, 53 1 F.2d 1132 (2d Cir. 1976)- To the extent that a presidential order would require probable cause to believe that a participant in a communication is a terrorist, this wouldmore than meet FISA standards that the Justice Department show that the subject of a search is an agent of a foreign power. A standard based on reasonable grounth: also would probably meet PISA standards. This, however, would not save a surveillance program's interception of all comnmnications between the United States and another country from statutory di?iculties. Further problerm are presented by reqnirement that the application describe the ?places? .J or ?facilities? that are to be used by the foreign agent. While this requirement clearly extends beyond Speci?c communication nodes such as ones to include facilities, we be] icve it unlikely that FESA would allow surveillanc itle of the 1968 Act, for example, also requires the speci?cation of ?facilities? in addition to ?places,? and de?nes them as devices that transmit communications between two points. The courts have read ?facilities? to allow surveillance ofmultiple telephone lines, rather than just an individual phone. We er,inwhich I a court has granted a Title warrant that would covamwhich is the object of the surveillance program contemplated here. Thus, it ts at court would grant a warrant that could author-ire ane?'ective surveillance in respo use to the September 1] attacks. FISA purports to bcthe exclusive ?at" concluding electronic surveillance for foreign intelligence, just as Title Ill of the Combos Crime Controland Safe Streets Act of 1968, PubStat. 19?, claims to be the exclusive method for authorizing domestic electronic surveillance for law enforcement purposes. FISA establishes criminal and civil sanctions for anyone who engages in electronic surveillance, under color oflaw, except as authorized by statute, warrant, or court order. 50 U.S.C. 1809-10. It might be thought, therefore, that a warrantless surveillance program, even if undertaken to protect the national security, would violate criminal and civil liability provisions. och a reading of PISA would be an unconstitutional infringement on the President? 5 Article II authorities. PISA can regulate foreign intelligence surveillance only to the extent permitted by the Constitution?s enumeration of congressional authority and the separation of powers. FISA itself is not required by the Constitution, nor does it necessarily establishstaudards and procedures that exactly match those Fom'thArnendment. Mennrandum for David 5. Kris, Associate Deputy Anorney Genera], from John C. Yoo, Deputy Assistant Attorney General, Re: Constitutionality ofAmmding Foreign Intelligence Surveillance Act to Change the ?Purpose? Standard for Searches (Sept. 25, 2001); cf Marnrundum for h?chael Vatis, mputthoctor, Executive Of?ce for National Sensity, from Walter Delling er, Assistant Attorney General, Re: Standards for Searcher UnderForeign Intefiigence Swver'llenceAct (Feb. 14, [995). Instead, like the warrant process in thenorrnalcriminal context, PISA representsa statuary p'oeedurethat creates asafe harhorforsurveillance for foreign intelligence purposes. If the government obtains a PISA warrant, its surveillance will beprcsumptively reasonable under the Fourth Amendment. Nonetheless, as we explained to Congress during passage of the Patriot Act, the ultimate test engage in foreign surveillance is whether the gowmment ?s conduct is consistent with the Fourth Amendment, not whether it meets PISA This is especially the case where, as here, the executive branch possess the inherent constitutional power to conduct searches for national security purposes. Well before enactment, Presidmts have consistently assured and exercised?their constitutional authority to cooductwanantless Searches necessary to proteCt the national security.1 This Of?co has maintained, across different administrations controlled by different political parties, that the President ?5 constitutional responsibility to defend the nation from foreign attack implies an inherent power to conduct warrantless searches. In I 995, we just i?ed warrantless national security searches by recognizing that the executive branch needed flexibility in conducting foreign intelligence operations. Memorandum for Michael Vans, Deputy Director, Executive Of?ce for National Security, from Walter Dellinger, Assistant Attorney General, Re: Standards for Searches UnderForeign Intelligence SurveillanceA ct (Feb. 14, 1995). In 1980, we also said that ?the lower courts - as well as this Department have frequently concluded that authority does exist in the President to authorize searches regardlm ofwhether the courts also have the power to issuewarrants for those searches. Memorandum for the Attorney General, from John M. Harmon, Assistant Attorney General, Re: InherentAuthon'ty at 1 (Oct. 10, 1930).2 PISA cannot infringe the President?s inherent power under the Constitution to conduct national security searches, just as Congress cannot enact legislation that would interfere with the President?s power to conduct military hostilities. In either cas e, congressional efforts to regulate the exercise of an inherent executive power would violate the separation of powers by allowing the legislative branch to usurp the powers of the executive. See Memorandum for Timothy E. Flanigan, Deputy Counselto the President, fromlohn C. Yon, Deputy Assistant Attorney General, Re: The President ?5 Constitutional Authorigr to Conduct Military Operations Against Terrorists and Nations Supporting Them (Sept. 25, 2001) (War Powers Resolution cannot constitutionally de?ne or regulate the President?s Commander?in?Chief authority). Indeed, as we will see in Part IV, the Fourth Amendment?s structure and Supreme Court case law demonstrate that the executive may engage in warrantiess Searches so long as the search is reasonable. I The federal courts have recognizedthe President?s constitutional authority to conduct warrantiess searches for national security purposes. To be sure, the Supreme Court has held that the warrant requirement should apply in cases of terrorism by purely domestic groups, see United States v. United States District Court for the Eastern District of Michigan, 40'? US. 297, 299 (1972) (?Keith?), and has esmlicitlyhas not reached the of the President?s surveillance powers with respect to the offoreign powers, at. at 308; see also Kata. v. United States, 389 us. 347, 358 11.23 1A short description of this history is attached to this letter. 2Based on similar reasoning, this Of?ce has concluded that the President could receive materials, for national defense purposes, acquired through Title surveillance methods or grand juries. Memorandum for Frances Fragos Townsend, Counsel, Of?ce of Intelligence Policy and Review, from Randolph D. Moss, Assistant Attorney General, Re: Title Electronic Surveillance Material and the Intelligence Commit?!ng (Oct. 17, 2000); Memorandum for Gerald A. Schroeder, Acting Counsel, Ol?ce of Intelligence Policy and Review, from Richard L. Shif??in, Deputy Assistant Attorney General, Re: Grand Jury Material and the Intelligence Community (Aug. 14, 1997); Disclosure of Grand Jury Matters to the President and Other O?'icials, Op. O.L.C. 59 (1993). 8 v. 472 US. 511, 531 (1985}. Nevertheless, even after Keith the lower courts have continued to ?nd that when the government conducts a search for national security reasons, of a foreign power or its agents, it need not meet the same requirements that would no ?nally apply in the context of criminal law enforcement, such as obtaining a judicial warrant purSuant to a showing of probable cause. See, e. g, United States v. Twang Din?! Hung, 629 F.2d 908 (4th Cir. 1980); UnitedStates v. Brown, 484 F.2d 413(5th Cir. 1973), cert. denied, 415 US. 960 (1974); United States v. Buck, 543 F.2d 871 (9th Cir.), cert. denied 434 US. 890(1977), United States v. Butenko, 494 F. 2d 593 (cu bane), cert. denied, 419 US. 88] (1974), United States v. day, 430 F.2d 165 (5th Cir. 1970), rev on other grounds, 403 U. S. 698 (1971). Ind ecd, even FISA which does not re quire ashowing of probable cause re presents congressional agreement with the notion that surveillance conducted for national security purposes is not subject to the same Fourth Amendment standards that-apply in domestic criminal cases. Truong Birth Han exempli?es the considerations that have led the federal courts to recognize the President?s constitutional authority to conduct warrantless national security searchm. Unlike the domestic law enforcemmt context, the President?s enhanced constitutional authority innational security and foreign attain justi?es a ?nerth in conducting searches without ex ante judicial oversight. As the Fourth Circuit found, ?the needs of the executive are so compelling in the area of foreign intelligence, unlike the area of - domestic secmity, that aur?fonnwarrant requirement would . . . ?unduly ?-ustrate? the President in carrying out his foreign affairs responsibilities.? Tmong Din}: Hung, 629 F.2d at 913. A warrant requirement would be inappropriate, the court observed, because it would limit the executive hranch?s ?exibility in foreign intelligence, delay responses to foreign intelligence threats, and create the chance for leaks- Id. Further, in the areaof foreign intelligence, the executive bench is paramuntinils eiqaertise and knowledge, while the courts would have little competence in reviewing the govemment?s need for the intelligence information. Id. 3913-14. In orderto protect individual privacy interests, however, the court limited the national securityexception to the warrant requirement to cases inwhich the object of the search is a foreign power, its agents, or collaborators, and when the surveillance is conducted primarily for foreign intelligence reasons. Id. at 91 5. The other lower courts to have considered this question similarly have limited the sccpe of warrantiess national security searches to those circumstances. Here, it seems clear that the current environment falls within the exception to the warrant requirement fornational seemity searches. Foreign terrorists have succeeded in launchinga direct attack onimponant military and civilian targets within the United States. The President may ?nd that terrorists constitute an ongoing threat people of the United States andtheir national government, and he that protecting against this threat is a compelling government interest. The government would be conducting searches in orderto discover information that will prevent future attacks on the UnitedStates and its This smei?ancemayp'onde mfmne?on on the strength ofterrorist groups, the timing and methods oftheir attack, and the target. The factthat the foreign terrorists have operated, andmay continue to operate, withinthe domestic United States, does not clothe their operations in the constitutionalprotections that apply to domestic crhninalinvestigations. See MennrandumforAlberto Gonzalez, Counsel to the President and William J. Haynes, II, General Counsel, Department ofDefense, from John C. Yoo, Deputy Assistant Attorney General and Robert J. Del ahunty, Special Co unsel, Re: A uthority for Use Force to Combat Terrorist Activities Within the United States (Oct. 23 2001}. While some information might prove use?il to law enforcement, the purpose 0 the surveillance programremains that ofprotecting the national security. As we have advised in a separate memorandum, a secondary law enforcement use of information, which was originally gathered for national security purposes, do es not suddenly render the search subject to the ordinary Fourth Amendment standards that govern domestic criminal investigations. See Memorandum for David S. Kris, Assn ciate DeputyAttorney General, from John C. Yoo, Deputy Assistant Attorney General, Re: Constitutionality of A ending Foreign Intelligence Surveillance Act to Change the ?Purpose Standard for Searches (Sept. 25, 2001} Due to the President?s paramount constitutional authority in the ?eld of national security, a subject which we will discuss in more detail below, reading FISA to prohibit the President from retaining the power to engage in warrantless national security searches would raise the most severe of constitutional con?icts. Generally, courts will construe statutm to avoid such constitutional problems, on the assurrption that Congress does not wish to violate the Constitution, unless a statute clearly demands a different construction. See, Edmrdi DeBortoio Corp. v. Fiorida GuifCoast Building (B: Construction Trades Council, 485U.S. 568, 575(1988). Unless Congress signals a clear intention otherwise, astatute must be read to preserve the President?s inherent constitutional power, so as to avoid any potential constitutional problems. Public Citizen v. Department of Justice, 49] US. 440, 466 (1939) (construing Federal Advisory Contrr?ritteeAct to avoid unconstitutional on executive powers); Association ofArnericnn Physicians if: Surgeons v. Clinton, 997 F.2d 898, 906-11 (D.C. Cir. 1993) (same). Thus, unless Congress made a clear statement in PISA that it sought to restrict presidential authorityto conduct warrantless searches in the national security area? which it hasnot nthen the statute must be construed to avoid such areading. Even liability provisions were thought to apply, we also believe that for avariety ofreasonsthey could not be enforcedagainst surveillance conducted on direct presidential order to defend the nation from attack. This issue can be discussed in more detail, if des ired. HI. Having established that the President has the authority to order the conduct of eleotronic surveillance without awatrant fornational we now examine the justi?cation under the Fourth Amendment for the Speci?c searches that might arise. The Fourth Amendment declares that ?the right of the people to be secure in their. persons, houses, papers, and effects, against unreasonable searches and seizures, shallnotbeviolated.? U.S. Coast. amend IV. TheAnEndment also declares that ?no Warrants shall issue, but upon probable cause, supported by Oath or af?rmation, and particularly describing the place to be searched and the persons or things to be seized.? id. This Part will discuss the reasons why severalelements FourthAanendment 10 scrutiny because they would not constitute a ?search? for constitutional purposes. A. Aspects ot?surveillance that do not involve United States persons and that occur extraterritorially do not raise Fourth Amendment concerns. As the Supreme Court has th Fourth Amendment does not apply to military or intelligence operations conducted against aliens overseas. United States v. Verdugo- Urqur'dez, 494 US. 259 (1990). In Verdugo- Urquidez, the Court found that the purpose of the Fourth Amendment ?was to restrict searches and seizures which might be conducted by the United States in domesticmatteis. Id. at 266. As the Court (:0qu dead, the Fourth Amendment ?3 design was ?to protect the people of the United States against arbitrary action by their own government; it was never suggested that theprovision was intended to restrain the actions of the Federal Govremnmt against aliens outside of the United States territo ry. Id. Indeed, the Court reversed a court of appeals? holding that the Fourth Amendment applied extraterritorially because of its concern that such a rule would interfere with the nation ?s military operations abroad The rule adopted by the Court of Appeals would apply not only to law enforcement operations abroad, but also to other foreign policy operations which might result in ?searches or seizures. The United States frequently errptoys Armed Forces outside this 001111nd over 200 tunes in our history -fortheprotection ofAmerican Citizens or national security . . . . Application of the Fourth Amendment to those circrmetanccs could signi?cantly disrupt the ability of the political branches to respond to foreign situations involving ournational interest. Were respondent to prevail, aliens with no attachment to this country might well bring actions for damages to remedy claimed violations of the Fourth Amendment in foreign countries or in international waters. . . . [T]be Court of - Appeals? global view of [the Fourth Ammdment?s] applicab?itywouldplunge [the political branches] into a sea of uncertainty as to what might bereasonable in the way of scar ches and seizures conducted abroad. Id. at 273 -74 {citations omitted}. Here, the Court made clear that aliens hadno Fourth Amendment rights to challenge activity by the United States conducted abroad. Thus, as applied, elements of a surveillance programwould not even raise Fourth Amendment concerns, because of the wouldbethose ofnon-US. themselves do no ermine or ongtna .8. person, do not involve a ?search or seizure" under the Fourth Amendment. Funher, any communications between terrorists that occur wholly abroad, and in which none ofthe terrorist participants are US. also do not niggerFourth Amendment scrutiny. An evoinarrowermograni, which would limitthe interception 11 of conmmications involving terrorists to those that originate orterminate outside the United States, ?n'ther narrows the likelihood that communications between US. persons within the United States will be intercepted. E. Second, intercepting certain communic atio us that move internationally may not raise a Fourth Amendment issue because of what is known as the ?border search exception.? A surveillance pro gram could direct the interception of all communications to or from another country in which terrorists are operating, which by de?nition would be international communication. There fore, much ifnot all of the communications to be intercepted would cross the borders of the United States. Under the border search exception to the Fourth Amendment, the federal government has the constitutio nal authority to search anything or anyone crossing the borders of the United States without violating any individual rights. In United States v. Ramsey, 431 US 606 (1977), the Supreme Court upheld the constitutionality of searching incoming international mailbased unreasonable cause to suSpect ?iatsuchmail contained illegally imported merchandise. Recognizing what it characterized as a ?border search exception? to the Fourth Amendment?s warrant and probable cause requirements, the Court ohservedthat ?searchesmade attheborder, pursuant to the long-standingright ofthe sovereign to protect itselfby stopping and examining persons and propertyr crossing into this country, are reasonable simply by virtue of the fact that they occuratthe border.? Id. at 616. The Courtmade clearthat the mannerin which something or someone crossed the border made no difference. ?It is clear that there is nothing in the rationale behind the border search exception which suggests that the mode of Id. at 620. The Court also observed that there was no distinction to be drawn in what crossed the border; is their entry into this country fromwithout it that makes aresulting search ?_reasonahle. Id. Although the Supreme Court has not examined the issue, the lower courts have unanimoust found that the border search exception also applies to the exit search of outgoing traf?c as well.3 Based on this doctrine, the interception of international communications could be justi?ed by an?ogizmgtothe border searchofinteruational mail. Although electronic rnailis, insomesense, intangible, it is also a message that begins at a physical server computer and then, though the movement of digital signals across wires, istransrnittedto another server corrputerinadif'ferent location. Electronicmail is just 33ers, United States v. Oriakbi, 57 F.3d 1290 (4th Cir. 1995); United States v. Benlrka, 925 F.2d 791 (5th Cir. 199]); United States v. Ezeiruahr, 936 F.2d 136 (3d Cir. 1991); United States v. Notes, 331 F.2d 360 (9th Cir. 1937), cert. denied, 487 11s. 1205 (1933); United States- v. Hernandez-Salazar, 313 F.2d 1126 (11th Cir. 1937); United States v. Benevento, 836 F.2d 60 (2d Cir. 1987), cert. denied, 486 (1983); United States v. Udofor, 711 F.2d 831 {8th Cir), cert. denied, 464 US. 896 (1983). 12 mm a different method 0 trans porting a communication across the border of the United States. As the Court emphasized in Ramsey, ?[t]he critical fact is that the envelopes cross the border and enter this country, not that they are brought in by one mode oftransportation rather than another. Id. at 620. The fact that the method of transportation is electronic, rather than physical, should not make a difference, nor should it matter that the search does not occur precisely when the mess age crosses the nation ?5 borders. Indeed, searches 0 outbound or inbound international mail or luggage take place at facilities Within the nation?s borders after they have arrived by air, just as searches of electronic messages could occu once an international message appears on a server within the United States after transmission across our borders. It should be admitted that we have not found any cases applying Ramsay in this manner, although we also have not found any reported cases in which a court was confronted with a search effort of all international either. There are three ?rrther caveats to raise in regard to the border search exception theory. First, it is altogether unclear whether Ramsey would apply at all to telephone conversations. While telephone conversations are like letters in that they convey messages, they are also ongoing, real-time transactions which do not contain discrete, selfrcontained chunks of Second, and related to the ?rst point, the Conrt has cautioned that examination of int emational mail for'its content would raise serious constitutionalquestions. In Ramsey, the government opened outgoing mail that it suspected contained illegal drugs; regulations speci?cally forbade customs of?cials ?ornreadiog any correspondence. Thus, the crime there was not the content of the itself, although the content could have beenrelatcd to the transportation ofthe illegal substance. First Amendment issues would be raised ifthe very purpose of opening correspondence was to examine its content. Id. at 623-24. Third, the Court observed that serious constitutional problems irarmseywere avoided due to a probable causerequirement. Wh?e this Of?cehas advisedthat areasonableness standard might stillbe constitutional if appliedto internationalmail searches, we also acknowledged that our conclusion was not free from doubt. See Memorandum for Geo?iey IL Greiveldinger, Counsel for National Security Matters, Criminal Division, from Teresa RosebOIOugh and Richard L. Shi?i'in, Deputy Assistant Attorneys General, Custom Service Proposal for Outbound Mail Search Authority, Amendment of Titles 3623(d) (Oct. 31, 1995). In light of these caveats, we can conclude that the border search exception would squarelyto the acql?sition of communication addressing information, which for reasons we discuss below is not content, but might not reach the interception ofthe contents of telephone or other electronic C. Third, the interception ofelectronic mail for its non-content information should not raise Fourth Amendment concerns. Captirriug only the non-content addressing information of electronic communicationsmaybe analogized to a?penregister.? Apenregisteris a devicethat records the numbers dialed ?omatelephone. In Smith v. Maryland, 442 U. S. 73 5(1979), the Supreme court found that the 13 warrantiess installation of a pen register for a defendant?s home phone line did not violate the Fourth Amendment because use of a pen register was not a ?search? within the meaning of the Amendment. Applying the test set out in Kara v. United 82:21:25,389 US. 347 (1967), the Court evaluated whether a person could claim a ?legitimate expectation of privacy' in the phone numbers dialed. It found that a person could not have a legitimate expectation of privacy, bee ause they should know that they numbers dialed are recorded by the phone company for legitimate business purposes, and that a reasonable person on old not expect that the numerical information he voluntarily conveyed to the phone company would not be ?exposed.? Id. at 741?46. Because pen registers do not acquire the contents of communication, and because a person has no legitimate expectation of privacy in the numbers dialed, the Court eon eluded, use of a pen register dees not constitute a search for Fourth Amendment purposes. The Court?s blessing ofpen registers suggests that a surveillance pro gramthat sought only non- eontent information from electronic messages would be similarly constitutional. An interception program for electronic mail, for example, could capture only non-content infonnationinregard to which a reasonable person might not have a legitimate expectation of privacy. E-mail addresses, like phone numbers, are voluntarily sender to the internet service provider (ISP) in order to allow the company to properly route the communication. A reasonable person could be expected to know that an ISP would record such message information for their own business purposes, just as telephone companies record phone numbers dialed Furthemiore, other inforrmtion such as routing andserver information is not even part ofthe content ofamessage written by the sender. Rather, such in formation is generated by the IS itself, as part of its routine businms Operations, to help it send the electrOnic message through its network to the correct recipient. A sender could have no legitimate expectation ofprivacyover information he did not even include in his message, but instead is created by the ISP as part of its own business processes. A person would have no more privacy interest in that information than he would have in a postmark stamp ed onto the outside of an envelope containing his letter. Whether-a surveillance program involving electronic mailwould sweep incententposes armre dif?cult question. FromSmt'th, it appears that a pen register does not effectuate a Fourth Amendment search, in part, bee ause it does not capture content items: communication. ?Indeed, a law enforcement of?cial couldnot even determine fromtheuse of apenregjsterwbether aeomrminication existed? Smi?i, 442 US. 211741. Here, itis no doubt truethat eleett'oniermiladdressing information, created by the author of couldcontainsome content. Variations of an addressee's nameare commonlyused to create e?mail addresses, and elements of ?ieaddress canreveal other infonmtion, suehastheinstitution or place someone works - hence, my e-mail address, assigned to me by the Justice Department, is jehn.c.yoo@usdoj- gov. This, however, does not render such inforrnation wholly subject to the Fourth Amendment. Even phone numbers canprovide inibrmation that contains content. Phone numbers, for example, are sometimes used to spell words (such as phonenumbers can provide some location information, such as if someone calls awell?known hotel?s number, and can evensend niessages, suchasthrough pager systems. We believe that an-individual?s willingnessto convey l4 to an ISP addressing information, which the ISP then uses for its own business purposes, suggests that an individual has no legitimate expectation of privacy in the limited content that could be inferred from e?mail addresses. We also note, however, that the courts have yet to encounter this issue in any meaningful manner, and so we cannot predict with certainty whether the judiciary would agree with our approach. It should be noted that Congress has recognized the analogy between electronic mail routin information and pen registers. It recently euactedlegislation authorizing pen register orders for non-content information from electronic mail. See USA Patriot Act of 2001, Pub. L. No. 107-56, 216. While Congress extended pen register authority to surveillance of electronic mail, it also subjected that authority to the general restrictions ofTitle and FISA, which require the Justice Department to obtain an ex parte court order before using such devices. While the requirements for such an order are minimal, see 18 U.S.C. 3 122 (govenunent attorneymust certify likely to be gained ??nmpen register ?is relevant toan ongoing criminalinvmtigation being conducted bythat agencf?), program would not eek a judicial order for the surveillance program here. Title lIl attempts to forbid the use of pen registers or, now, electronic mail trap andtrace devices, without a court under Title or FISA. Id. at 3 12 As with our analysis however, we do not believe that Congress may restrict the President?s inherent constitutional powers which allow himto gather intelligence necessary to defend the nation from direct attack. Seesupra. In any event, Congress ?5 belief that a court order is necessary before using apen registerdoesnot a?'ectthe constitutional analysis under the FourthAmendment, which remains that an individual has no Fourth Amendment right in addressing information. Indeed, the fact that use of pen register and electronic trap and trace devices canbe authorized without ashowin of probable cause demonstrates that Congress agrees that such informatioh is without constitutional protections. D. Fourth, intelligence gathering in direct support of military operations does not trigger constitutional rights against illegal searches and seizures. Our Of?ce has recently undertaken a detailed examination of whether the use ofthe military domestically in order to combatterrorism would be restricted by the Fourth An'lendment. See Mermrandum forAlberto Gonzalez, Counsel to the President and William]. Haynes, H, General Counsel, Department ofDefense, than John C. Yoo, Deputy Assistant Attorney General and Robert J. Delahunty, Special Counsel, Re: Authority for Use ofMiIitmy orce to Combat Terrorist A environ Within the United States (Oct. 23, 2001). While we will only surmnarize here our reasoning, it should be clear that to the extent that a surveillance program is aimed at gathering intelligence for the military purpose Forces to prevent ?rrther attacks on the United States, that activity in our view is not restricted by the Fourth Amendment. As amatter ofthe original understanding, the Fom'thAmendinent was aimedp?mmily at curbing law enforcement abuses Althoughthe FourthAmendment has been iriterpretedto governmental actions other than criminallaw enforcement, the central concerns ofthe Amendment are focused on police 15 activity. See, South Dakota Oppennan, 423 . S. 364, 370 n.5 (1976}. As we will explain in further detail in Part IV below, the Court has recognized this by identifying a?special needs" exception to the Fourth Amendment?s warrant and probable cause requirements. See, e. g. Vemonia Seizes-i Dirt- 4 v. Acton, 515 U.S. 646 (1995); Indianapolis v. Edmond, 531 .S. 32 (2000). However well suited the warrant and probable cause requirements may be as applied-t0 criminal investigation and law enforcement, they are unsuited to the demands of wartime and the military necessity to successfully prosecute a war against an enemy. lathe circumstances created by the September 1 1 attacks, the Constitution provides the Ge vernrnent with expanded powers and reduces the restrictions created by individual civil liberties. As the Supreme Court has held, for example, in wartime the government may summarily requisition property, seize enemy property, and ?even the personal liberty ofthe citizen may be terrporarily restrained as a measure of public safety.? Yokes v. United States, 321 U.S. 414, 443 (1944) (citations omitted). ?In times of war or insurrection, when society?s interest is at its peak, the Government may detain individuals whomethe Government believes to be dangerous.? United States v. Saierno, 481 U.S. 739, 748 (198 see also Meyer v. Peabody, 212 U.S. 73 (1909) (upholding detention without probable cause during time of insurrection) (Holmes, 1.). Because ofthe exigencies ofwar the Fourth Amendment shouldnotbe read as applying to military operations. In Verdugo?Unguidez, discussed in Part the Court made clear that the Fourth Amendment does not apply to military Operations overseas. 494 U.S. at 273-274. As the Court observed, ifthings were otherwise, hothpolitieal leaders and m?itary comnanders would be severely constrainedbyhaving to assess the ??'easonahleness? of any military action beforehand, thereby interfering with military e??eetiveness and the President constinrtional responsibilitim as Commndervin-Griei It also seems clear that the Foruth Amendment would not restrict military operations within the United States against an invasion or rebellion. See, e. 2.4 Up. Att?y Gen. 570 (1903) (American territory held by enemy fore is considered hostile territory where civil laws do not apply). Were the United States homeland invaded by foreign military forces, our armed forces would have to tat-re whatever steps neemsary to repel them, which would include the ?seizure? of euemypersonnel and the ?search? of enemy papers and messages, it is dif?cult to believe that our government would need to show that these actions were ?reasonable? under the FourthAmendment. The actions of our military, which might cause collateral damage to United States persons, would no more be constrained by the Fourth Amendment than if their Operations occmred overseas. Nor is it necessary that the military forces on our soilbe foreign. Even if the enemies of the Nation came from within, such as during the Civil War, the federal Armed Forces use force to respond to snob aninsurrection or rebellion without the constraints of the Fourth Amendment. Indeed, this was the understanding that prevailed during the Civil War. Thme considerations could of awarrantless electronic surveillance program Although the terrorists who staged the September 1 1 2001 events operated clandestinelyand have not occupied part of our territory, they have launched a direct attack on both the American homeland and our assets overseas that have causedrnassive casualties. Their attacks were launchedand carried out ??omwithinthe 16 MEWS-PW United States its elf. Pursuant to his authority as Conmtander?uI?C?lief and ChiefExccutivc, the President has ordered the use of military force against the terrorists both at heme and abroad, and he has found that they present a continuing threat of further attacks on the United States. Application of the Fourth Amendment could, in many cases, prevent the President from thl?lling his highest constitutional duty of protecting and preserving the Nation fromdirect attack. Indeed, the opposite rule would create the bizarre situation in which the President would encounter less constitutional freedom in using the military when the Nation is directly attacked at home, where the greatest threat to American civilian casualties lies, than we use force abroad. Thus, the Fourth Amendment should not limit military operations to prevent attacks that take place within the American homeland, just as it would not limit the President's power to respond to attacks launched abroad A surveillance program, undertaken for national security purposes, wouldbe anecessary element in the effective exercise of the President?s authority to prosecute the current war success fully. Intelligence gathered through surveillance allows the Comrnander?in?Chief to determine how best to position'and deploy theArrned Forces. Itseems clearthat the primary purpose of the surveillance prognun is to defend the national security, ratherthanfor law enforcement purposes, which might trigger Fourth Amendment concerns. In this respect, it is signi?cant that the President would be ordering the Secretary ofDefense (who supervises the NSA), rather than the Justice Department, to conduct the surveillance, and that evidence would not be preserved for later use in criminal investigations. While such secondary use of suchinformarion for law enforce-1mm does not undermine the primary national securityputpose motivating the surveillance program, it is aJSo clear that such intelligence material, once developed, can be made available to the Justice Department for domestic use. IV. Even if a surveillance program, or elements of it, were still thought to be subject to Fourth Amendment scrutiny, we thinkthat compelling arguments can justify its constitutionality. This Part will review whether warrantiess electronic surveillance, undertaken for national security purposes, is constitutional under the Fourth Amendment. It shouldbe clear at the outset that the Fourth Amendment does not require swan-ant for every search, but rather that a search be ?i'easonable? to be constitutional. Inlight ofthe current secmityenvironrnent, the government can claimacompelling interest in protecting the nation from attack suf?cient to outweigh any intrusion into privacy interests. A. The touchstone forreview of a government search iswhetherit is ?1easonable.? Accordingto the Supreme Cent-t, the text of the Fourth Amendment indicates the ultimate measure of the constitutionality of a is ?reasonableness. Variants SchooIDils-r. 4 v. Acton, 51 5 US. 646, 652 (1995). When law enforcement undertakes a search to discover evidence of criminal l7 wrongdoing, the Supreme Court has said that reasonableness generally requires a judicial warrant on a showing of probable cause that acrime has be en or is being committed. Id. at 653. But the Conrt has also recognized that a warrant is not required for all government searches, especially those that fall outside the ordinary criminal investigation context. A warrantless search can be constitutional ?when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.? id. A variety of government searches, therefore, have met the Fourth Amend ment? requirement of reasonableness without obtaining a judicial warrant. The Supreme Court, for example, has upheld wanantless searches that involved the drug testing of high school athletes, id, certain searches of automobiles, v. Loin-on, 518 US. 938 (1996) (per curiam), drunk driver checkpoints, Michigan v. Dep ?t ofStote Police v. Sitz, 496 U.S. 444 (1990), drug testing of railroad personnel, v. Rodney Labor Executives Ass 489 US. 602 (1989), drug testing of federal customs of?cers, Treasury Employees v. Von Roob, 489 US. 656 (1989), administrative inspection of closely regulated businesses, New York v. Burger, 482 US. 69] (1987), temporary baggage seizures, United States v. Place, 462 U.S. 696 (1933), detention to prevent ?ight and to protect law enforcement f?cers, Michigan v. Summers, 452 U.S. 692 (1931), checkpoints to search for illegal aliens, United States v. Martin ez-Fuerre, 423 US. 543 (1976), and temporary stops and limited searches for weapons, Terry v. Ohio, 392 US. 1 ([96 8). The Court has cautioned, however, that a random search program cannot be designed to promote a general interest in crime control. See Indianapolis v. Edmond, 531 U.S. 3 2, 41 (2000); Delomre v. Pronse, 440 US. 648, 659 n.13 (I979). Reasonableness does not lend itself to precise tests or fornmlations. Nonetheless, inreviewing searchtaogran's, the Court generallyhas balanced the government's interest against intrusion into privacy interests. ?When faced with Special law enforcement needs, diminished expectations of privacy, minimal intrusions, or thel?ce, the Court has foundthat certain general, or circurrntancm may render a warrantls search or seizure reasonable.? Minors v. 121 S. Ct. 946, 949 (2001). Or, as the Court has described it, warrantless searches may be justi?ed if the government has ?spedal needs? that are unrelated to normal law en?orcement. In these situations, the Court has found a search reasonable when, under'the totality of the circunntances, the ?importance of the governmental interests? has outweighedthe ?nature and quality of the intrusion on the individual?s Fourth Amendment interests.? Tennessee v. Garner, 47] US. l, 8 (l 985). B. This analysis suggests thatthe Fourth warrantless electronic stnveillance if the government?s interest outweighs intrusions into privacy interests. It should be clear that the President?s directive ?specialneeds? exception to the warrant requirement that calls for such abalancing test The surveillance programis not designed to advance a ?general interest in crime control,? 18 4mm? Edmond, 53 1 U. S. at 44, but instead seeks to protect the national security by preventingterrorist attacks upon the United States. As the national security search cases discussed in Part recognize, defending the nation from foreign threats is a wholly different enterpr?se than ordinary crime control, and this difference justi?es examination of the government?s action solely for its reasonableness. Indeed, as the Supreme Court recognized in Edmond, warrantless, randomsearches undert aken for national security purposes, suchas forestalling aterrorist attack on an American city, would be constitutional even if the same search technique, when undertaken for general crime control, would fail Fourth Amendment standards. Applying this standard, we ?nd that the government?s interest here is perhaps of the highest order that of protecting the nation from attack. Indeed, the factors justifying warrantless searches for national security reasons are more compelling now than at the time of the earlier lower court decisions dis cussed in Part II. While upholding warrantiess searches for national security purposes, those earlier decisions had not taken place during a time of actual hostilities prompted by asurprise, direct attack Upon civilian and military targets within the United States. A direct attack on the United States has placed the Nation in a state of armed con?ict; defending the nation is perhaps the most important ?niction of government. As the Supreme Court has observed, ?It is ?obvious and unarguable? that no governmental interest is more compelling than the security ofthe Nation.? Hutg v. Ages, 453 us. 280, 307 (1981). As Alexander Hamilton observed in TheFederniist, ?there canbe no limitation of that authority, which is to provide for the defence and protection of the community, inany matter ess ential to its ef?cacy.? The ederahlrt No. 23, at 147-48 (Alexander Hamilton) (Jacob E. Cooke ed, 1961). If the situation warrants, the Cons titution recognizes thatthe federal government, andindeed the President, must have the maximum power permissible under the Constitution to prevent and defeat attacks upon the Nation. In authorizing an electronic surveillance program, the President should layout the proper factual predicates for ?nding that the terrorist attacks had created a compelling governmental interest. The September 1 200 attacks caused thousands of deaths and even more casualties, and damaged both the central command and control facility for the Nation?s military establishment and the center of the country?s private ?nancial system In light of information that would be provided by the intelligence comrnunityandthe military, the President could litrther conclude thatterrorists continueto have the ability and the intention to undertake ?thher attacks on the United States. Given the damage caused by the attacks on September 1 l, 200] the President could judge that ?rture terrorist attacks could cause massive damage andcmualties the continuity of the federal government. He could concludethat such circumstanceejuslifya conpelling interest on the part of the government to protect the United States and its citizens ?orn further terrorist attack. It seems certain that the federal courts would defer to the President?s determination on whether the United States is threatened by attack and what measures are necessary to respond. See, eg, The Prize Cases, 6? US. 635, 670 (1362) (decision whether to consider rebellion a war is a question to be decided by the President). These determinations rest at the core of the President's poorer as andhis role as representative of the Nation in its foreign affairs. See United States v. Cur-tiss- Wright Export Carp. 299 U.S. 304 (1936). 19 Under the Constitution ?5 design, it is the President who is primarily responsible for advancing that compelling interest. The text, structure, and history of the Constitution establish that the President bears the constitutional duty, and ?ierefore the power, to erisure the security of the United States in situations of grave and unforeseen emergency. See generally Memorandum for Timothy E. Flan igan, Deputy Counsel to the President, from John C. Yon, Deputy Assistant Attorney General, Re: The President Constitutional A minority to and he: Military Operations Agni as! Terrorists and Nations Supporting Them (Sept. 25, 200]). Both the Vesting Clause, US. Const. art. ll, l, cl. 1, and the Commander in Chief Clause, id, 2, cl. 1, vest in the President the power to deploy military force in the defense ofthe United States. The Constitution makes explicit the President ?5 obligation to safeguard the nation's security by whatever lawful means are available by imposing on him the duty to ?take Care that the Laws be faithfully executed." Id. 3. The constitutional text and structure are continued by the practical consideration that national security decisions require a unity in purpose and energy in action that characterize the Presidency rather than Congress. As Alexander Hamilton explained, fall the cares orconcerns of goverrnnent, the direction of war most peculiarly demands those qualities which distinguish the exercise ofpower by a single hand. Th Federalist No- 74, at 500 (Alexander 1 lamilton) (Jacob E. Cooke ed 1961). Surveillance initiated in response to the September 1 attacks would clearly advance this interest. The President would be exercising his powers as Conmander-innChief and Chief Executive to direct military action against Al Qaeda and Taliban forces inAfghanistan, and to use the arrmd forces to protect United States citizens at home. Congress has approved the use of military force in response to the September 1 attacks. Pub. L. No. 107?40, 115 Stat. 224 (2001). It is well established that the President hastheindependent constitutional authority as to gather intelligence insupport of military and national security operations, and to employ cowertmeans, ifnec cssary, to do so. See Torres: v. United States, 92 U.S. 105, 106 1876). The President's ?constitutional power to gather foreign intelligence," Werraniless Foreign intelligarce Surveillance Use of Television Beepers, 2 Op. O.L.C. 14, 15 (1978), includes the effectivemcansofohtaining informlion, and to safeguard those imam. Intelligence gathering is a necessary function that enables the President to carry out these authorities e??ectively. The Commnder-in-Gtiefnecds accruals and comprehensive intelligence on enemy unvements, plans, and threats in order to best deploy the United States armed forces andto m?r?y execute nn'litary plans. searches could provide the most effective method, in the President?s judgment, to ottahiinfomanon necessary forhirnto canyouthis constitutional responsibility to defend the Nation from attack. By into an individual citizen'srx'ivacy into-eats mynotbesoen as so serious as outweighing the government?s most conque?mg of interests. The sear-chesthatwould take place are as not asiumlsivcas thosewhich the the conmmnications of atargetin the normal Title 111 or PISA content. These often require an out to conscious] and active liSten in to telephone conversations. Here, as we understand it 20 LU LU LL) If privacy interests are viewed as intruded upon only by is liker that Fourth interests would not outweigh the eonpellinggovemmental interest present here, In the context of roadblocks to stop dnmken drivers, another area of ?special needs" under the Fourth Amendment, the Court has permitted searches. See Michigan ?ap ofStatePoh'c-e v. Site, 496 US. 444(1990). There, the Court found that a roadblock constituted a ?reasonable? search due to the magnitude of the drunken driver problem and the deaths it causes in fact, the court compared the death toll from drunk drivers to the casualties on a battle?eld. Id. at 451. found that this interest outweighed the intrusion into pri at a chec 0th at which it characterized as ?bl-let? in terms of duration and intensit . Similar! in the case of a roadblock, where a enforcement of?cer stops each shiver to examine whether they are incbriated It seer-rs that if the Supreme Court were willin to bold drunk driver checkpoints, it would be equally or even more willing to 3110* The restriction ofa surveillance program only to thosecomnmicationswhich originate orterminate ina foreign ceiling! or which involve terrorists ?n'therreduees anyposs?ale intrusion into individual privacy interests. If probable cause is required, it seems that DOD would need speci?c evidence before deciding whichmessages to intercept. Thus, for exanple, DOD must have some information that a certain person might be a terrorist, or that a certain phone line might be used by a terrorist, before it can capture the This means that the NSA cannot intercept conmmnications for which it has no such evidence. This would be the case even if the President were to require that there be reasonable grounds to believe that the communications involve the relevant foreign eoturtryorterrorists. Thisbas the effect of communications for which DOD has no reason to suspect contain terrorist or oomntmications with the foreign country, meaning that most innocent will not be Ell F3 4Another factor examined by the Com was effectiveness of the warrantiess search The Court has cautioned that searches not be random and because of a lack of empirical evidence that the means would promote the government?s interest- It shrJuld be made clear, however. that the standard employed by the Court has bet-n low. In the roadblock context, for example, the Court has found reasonable roadblocks for drunk drivers that detained only 1.6 percent of all drivers stopped, and checkpoints for illegal aliens that detained only 012 percent of all vehicles detained. 21 intercepted. Former, limiting the search parameters to international could further alleviate any intrusion into individual privacy interests. As our discussion of the borderscarch exception in Part made clear, the govemrnent has the constitutional authority to search anything that crosses the Nation ?5 borders withoot violating the Fourth Amendment. To be sure, there is substantial doubt about whether this power could apply to searches involving the content of the communications. Nonetheless, United States v. Ramsey, 43] U. S. 606 (1977) (w arrantless search of incoming international mail does not violate Fourth Amendment), suggests strongly that individuals have reduced privacy interests when they or their possessions and letters cross the borders of the United States. If individuals have reduced privacy interests in international mail, as Ramsey hold, then it seems logical to assume that they also have a reduced privacy intermt in international electronic conurmnications as well. As Ramsay held, the method by which an item entered the country is irrelevant for Fourth Amendment purposes. Just to be clear-in conclusion. We are not claiming that the government has an unrestricted right to examine the contents of all international letters and other forms of Rather, we are only suggesting that an individual has a reduced privacyiuterest in international communications Therefore, in applying the balancing test called for by the Fourth Amendment?s reasonableness analysis, we face a situationheiewhere the government?s mterest on one sidewthat of protecting the Nation liorndirect attack is the highest known to the Constitution 0n the other side of the scale, the intrusion into individual privacy interests is greatly reduced due to the international nature of the commications- Thus, we believe there to be substantialjusti?cation for awarrantless electronic surve?lancepogram, undertaken inresponse to the September 11, 2001 attacks, that would be reasonable under the Fourth Amendment. Iwould welcome the opportunity to discuss these issum in more detail. Please contactme, at 202- 514-2069, or if you have any ?n?ther questions. Sincerely, C. 0 Deputy Assistant Attorney General 22 AUTHORITY FOR WARRANTLESS NATIONAL SECURITY SEARCHES Presidents have long asserted the constitutional authority to order searches, even without judicial warrants, where necessary to protect the national security against foreign powers and their agents. The courts have repeatedly upheld the exercise of this authority. A memorandum from President Franklin D. Roosevelt to Attorney General Robert H. Jackson, dated May 21, 1940, authorized the use of wiretaps in matters ?involving the defense of the nation.? See United States v. United States District Court for the Eastern District of Michigan, 407 US. 297, 311 n. 10 (1972) (?Keith The President directed the Attorney General ?to secure information by listening devices [directed at] the conversation or other communications of persons suspected of subversive activities against the government of the United States, including suspected spies,? while asking the Attorney General ?to limit these investigations so conducted to a minimum and to limit them insofar as as to aliens.? See Electronic Surveillance Within the United States for Foreign Intelligence Purposes: Hearings Before the Subcomm on Intelligence and the Rights of Americans of the Select Comm on Intelligence, 94th Cong, 2d Sess. 24 (1976) (statement of Attorney General Edward H. Levi) (?Levi Statement?). President Roosevelt issued the memorandum after the House of Representatives passed a joint resolution to sanction wiretapping by the FBI for national security purposes, but the Senate failed to act. See Americo R. Cinquegrana, The Walls and Wires Have Ears: The Background and First Ten Years of the Foreign Intelligence Surveillance Act of 1978, 137 U. Pa. L. Rev. 793, 797-98 (1989). By a letter dated July 17, 1946, Attorney General Tom C. Clark reminded President Truman of the 1940 directive, which had been followed by Attorneys General Jackson and Francis Biddle. At Attorney General Clark?s request, the President approved the continuation of the authority, see Levi Statement at 24, and even broadened it to reach ?internal security cases.? Keith, 407 US. at 311 and n.10. In the Eisenhower Administration, Attorney General Herbert Brownell, as the Supreme Court noted in Keith, advocated the use electronic surveillance both in internal and international security matters. 407 US. at 311. In 1965, President Johnson armounced a policy under which warrantless wiretaps would be limited to national security matters. Levi Statement at 26. Attorney General Katzenbach then wrote that he saw ?no need to curtail any such activities in the national security ?eld.? Id. Attorney General Richardson stated in 1973 that, to approve a warrantless surveillance, he would need to be convinced that it was necessary to protect the nation against actual or potential attack or other hostile acts of a foreign power, (2) to obtain foreign intelligence information deemed essential to the security of the United States, or (3) to protect national security information against foreign intelligence activities.? Id. at 27. When Attorney General Levi testi?ed in 1976, he gave a similar list, adding that a warrantless surveillance could also be used ?to obtain information certi?ed as necessary for the conduct of foreign affairs matters important to the national security of the United States.? Id. Warrantless electronic surveillance of agents of foreign powers thus continued until the passage in 1978 of the Foreign Intelligence Surveillance Act, 18 U.S.C. 1801-29. Although the Supreme Court never ruled on the legality of warrantless searches as to agents of foreign powers, see Keith, 407 US. at 321?22 (requiring a warrant in domestic security cases but reserving issue where a foreign power or its agents were involved), the courts of appeals repeatedly sustained the lawfulness of such searches. United States v. Truong Dinh Hung, 629 F.2d 908, 914 (4th Cir. 1980); United States v. Buck, 548 .2d'871, 875 (9th Cir. 1977); United States v. Brown, 484 F.2d 418 (5th Cir. 1973); United States v. Butenko, 494 F.2d 593, 606 (3d Cir. 1974); United States v. Clay, 430 F.2d 165 (5th Cir. 1970), rev ?d on other grounds, 403 698 (1971); but see Zweibon v. Mitchell, 516 F.2d 594, 651 (DC. Cir. 1975) (dictum in plurality opinion). The Fourth Circuit held, for example, that ?because of the need of the executive branch for ?exibility, its practical experience, and its constitutional competence, the courts should not require the executive to secure a warrant each time it conducts foreign intelligence surveillance.? Truong, 629 F.2d at 914. As the court elaborated, ?attempts to counter foreign threats to the national security require the utmost stealth, speed, and secrecy,? and a ?warrant requirement would add a procedural hurdle that would reduce the ?exrbility of executive'foreign intelligence initiatives, in some cases delay executive response to fOreign intelligence threats, and increase the chance, of leaks regarding sensitive executive operations.? Id. at 913 (citations and footnote omitted). Furthermore, ?the executive possesses unparalleled expertise to make the decisions whether to conduct foreign intelligence surveillance.? Id. (citations omitted). And ?[p]erhaps most crucially, the executive branch not only has superior expertise in the area of foreign intelligence, it is also constitutionally designated as the pre?erninent authority in foreign affairs.? Id. at 914 (citations omitted). In this pre?statutory context, two courts of appeals, the Fourth Circuit in Truong (id. at 915) and the Third Circuit in Butenko (494 F.2d at 606), would have limited the authority to instances where the primary purpose of the search was to obtain foreign intelligence.? . The passage of FISA created an effective means for issuance of judicial orders for electronic surveillance in national security matters. Congress, however, had not given the Foreign Intelligence Surveillance Court the power to issue orders for physical searches. After nevertheless granting orders in three instances during the Carter Administration, the court ruled early in the Reagan Administration, as the Justice Department then argued, that it lacked jurisdiction to approve physical searches. See S. Rep. 103-296, at36-37 (1994). Thus, physical searches alter the ruling had to approved by the Attorney General without a judicial warrant. Id. at 37. In 1994, after the use of warrantiess physical searches in the Aldrich Ames' case, Congress concluded that ?from the standpoint of protecting the constitutional rights of Americans, from the standpoint of bringing greater legal certainty to this area, from the standpoint of avoiding problems with future espionage prosecutions, and from the standpoint of protecting federal of?cers and employees from potential civil liability,? id., FISA should be amended to cover physical searches. Id. at 40.