by John Yoo
Warrantless surveillance to protect national security is fully consistent with the Supreme Court's recent approach to the Fourth Amendment. Not all searches require a warrant. Rather, the Court found in a 1995 case upholding random drug testing of high school athletes that "as the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of a governmental search is 'reasonableness.'"36 When a passenger enters an airport, government employees search his belongings and subject him to an X-ray--undoubtedly a search--without a warrant. When American travelers reenter the country, customs and immigration officials can search their baggage and sometimes their person. They do not need to run to a judge each time. When law enforcement undertakes a search to discover evidence of criminal wrongdoing, reasonableness generally requires a judicial warrant. But when the government's conduct is not focused on law enforcement, a warrant is unnecessary. A warrantless search can be constitutional, the Court has said, "when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable."37
A search must be "reasonable" under the circumstances. What does "reasonable" mean? The Court has upheld warrantless searches to reduce deaths on the nation's highways, maintain safety among railway workers, and ensure that government officials are not using drugs.38 In these cases, the "importance of the governmental interests" outweighed the "nature and quality of the intrusion on the individual's Fourth Amendment interests."39 It is hard to imagine that any of these situations are more important than protecting the nation from a direct foreign attack in wartime. "It is 'obvious and unarguable,'" the Supreme Court has observed several times, "that no governmental interest is more compelling than the security of the Nation."40 The extraordinary circumstances of war require that the government seek specific information relevant to possible attacks on Americans, sometimes in situations where a warrant is not practical.41
Before the 9/11 attacks, the Supreme Court observed that the Fourth Amendment's warrant requirement would probably not apply to the special circumstances created by a potential terrorist attack. "[T]he Fourth Amendment would almost certainly permit an appropriately tailored roadblock set up to thwart an imminent terrorist attack or to catch a dangerous criminal who is likely to flee by way of a particular route."42 To be sure, this 2000 case challenged the constitutionality of a highway checkpoint program that searched cars for illegal drugs, rather than for terrorists. And in this case the Court found that the checkpoints violated the Fourth Amendment because the police were searching for drugs for the purpose of "crime control" and "the ordinary enterprise of investigating crimes."43 But the Court was still telling us that some warrantless searches were acceptable in the emergency situation of a possible terrorist attack, in which the "need for such measures to ensure public safety can be particularly acute."44
FISA offers the executive branch a deal: If you go through the process of obtaining a FISA warrant, other courts will likely agree that the search was reasonable and will admit its fruits as evidence in a criminal case. FISA does not create the power to authorize national security searches. Rather, it describes a safe harbor by which searches that obtain a warrant will be deemed reasonable under the Fourth Amendment. If a President proceeds with a search under his own authority rather than under FISA or under ordinary criminal procedure, he takes his chances. A court might refuse to admit evidence that had been obtained without a warrant, or even allow the target to sue the government for damages.45 Then again, it might not. Strict civil libertarians don't see it this way. To them, FISA limits the President's power to conduct war--even one that occurs on American soil--by requiring that any electronic surveillance conducted in the United States must be authorized by Congress.
Many members of Congress agreed that the Wall needed to come down, even before the botched Moussaoui and Mihdhar leads came to light. They also wanted assurance that more information-sharing than was customary in the past would meet constitutional standards. I worked closely with Jennifer Newstead, the chief deputy in the Office of Legal Policy and the day-to-day manager of the Patriot Act in Congress. I had first met her when she'd interviewed for her clerkship with Judge Silberman as a second-year Yale law student. She went on to clerk for Justice Stephen Breyer and would later work in the White House counsel's office and become general counsel of the Office of Management and Budget. She was a quick study and an effective advocate--she went from zero to sixty on terrorism in the days after 9/11.
Together, we worked on briefing Hill staff on the constitutionality of the Patriot Act. Briefings took place in Senate or House committee hearing rooms, shorn of the cameras, bright lights, and gaggle of press. I stood in the middle of the room, described the proposed Patriot Act change to the FISA standards, and took questions. Congressional staff would spread out all over the hearing room, with the senior staff stationed where the public audience usually sat during hearings, and the interns often amusing themselves by leaning far back in the Senators' deep leather seats. Without the need to perform for the media, congressional staff of both parties asked reasonable and thoughtful questions, and we held detailed discussions about the Fourth Amendment, warrantless searches, and the President's wartime powers.
I also spoke with Senator Orrin Hatch, then the ranking minority member of the Senate Judiciary Committee and my old boss when I had served as general counsel of the committee in 1995-96. Tall, always elegantly dressed, and vigorous, Hatch commanded great loyalty and affection from his staff, present and former, including me. He always joked that he "couldn't believe I had given up a real job," by which he meant working for him, so I "could spend my time only teaching a few hours a week and taking it easy." He wanted to hear from me, in person, that the Patriot Act was constitutional. We were at a public event together, and Hatch asked me to sit with him in the back of a black Lincoln Town Car while he was driven around Washington, D.C. He asked me a series of careful questions about the constitutional issues raised by the Patriot Act as we drove by monuments and government office buildings. No one was tougher on terrorists than Hatch, but he wanted to make sure everything was legal. The Patriot Act's passage was never in doubt; everyone at the Justice Department knew that Senator Hatch would get the legislation through, and he did--another accomplishment in a long and distinguished career.
Congress was only the first hurdle in our effort to create more information-sharing among the agencies. Along with the Reno Justice Department, the FISC judges supported a barrier between law enforcement and intelligence. They would not quietly see their handiwork undone. In the first major set of FISA applications under the Patriot Act, the FISC judges tried to erect an elaborate set of requirements and limitations to replace the Wall. Law enforcement officials could not work with intelligence officers to identify targets for FISA surveillance. Officials in the Justice Department's criminal division couldn't talk about prosecution strategy in any way that might influence decisions about FISA.46 Every time agents working on FISA met with prosecutors, an attorney from the office that practiced before the FISC had to be present as a "chaperone" to enforce the FISC's rules. While the FISC judges were well-intentioned, this kind of micromanagement disregarded the reasons for the Patriot Act.
After this setback, the Justice Department decided to trigger FISA's appeal procedures for the first time in its history. FISA created a special appellate court composed of three sitting federal judges named by Chief Justice William Rehnquist. Its chief judge was Judge Ralph Guy, who sat on the federal appeals court in Cincinnati; the other two judges were Judge Edward Leavy, who sat on the federal appeals court in Oregon, and Judge Silberman. All three had been appointed to the bench by President Reagan and were at "senior" status, which meant that they no longer carried a full caseload on their own courts. I was worried. The case before these judges was to be argued by two capable career civil servants. They might be no match for these judges. The close statutory arguments they had urged on the FISC judges had failed. I knew we would need to a
rgue on broader grounds of presidential power, the Fourth Amendment, and the 9/11 attacks. The Patriot Act would fail or succeed on this single appeal.
In particular, I worried about Judge Silberman, my former boss. Silberman is one of the leading figures in conservative legal circles. A graduate of Dartmouth and Harvard Law School, he had begun his legal career in Hawaii, where he practiced labor law. President Nixon had appointed him solicitor and then the number two official at the Labor Department. After the "Saturday night massacre" during Watergate, he became DAG in his thirties, when he helped restore a badly battered Justice Department. He advised President Ford on intelligence matters, served as ambassador to Yugoslavia, and advised the Reagan campaign on legal and national security policy. In 1985, President Reagan appointed him to the D.C. Circuit, the second most important court in the nation and the training ground for Supreme Court Justices. Indeed, he had come within a hair of being appointed to the Supreme Court in the late 1980s. Silberman had written a well-known opinion finding the independent counsel law unconstitutional, a decision that was overturned by the Supreme Court but which made him the darling of the conservative legal community. Silberman was one of the few lawyers in Washington who combined a deep knowledge of the theory and practice of intelligence with a top-flight understanding of constitutional law. He had also given me my first job.
Silberman understood well the separation-of-powers and Fourth Amendment issues, and the perverse effects of the Wall. In researching the Patriot Act, I found that he had testified against the original FISA bill as an unconstitutional infringement on the President's national security powers. At the same time, Silberman sometimes displayed a soft side toward criminal defendants, to the point where some of his colleagues on the bench had given him the nickname "Let 'em Loose Larry." He had a fearsome reputation as a questioner--he had caused two attorneys to pass out cold during oral arguments--and I knew from experience that he was unimpressed by civil servants who could not go beyond the statutes at hand.
Ashcroft had asked me to keep a close eye on the case. We both understood that the key to the Patriot Act's ability to stop a future terrorist attack rested with the special FISA appeals court. Even if the Patriot Act allowed our agents to get warrants for business records, or to follow terrorists across jurisdictions and communication devices--in other words, even if we expanded our collection of data--those gains could be lost unless we were permitted to pool information among the intelligence and law enforcement agencies. As long as the Wall stood, we would not be able to connect the dots.
Ashcroft and Thompson asked OLC to help draft the arguments to be presented to the appeals judges, and sent me to ask the solicitor general, Ted Olson, to argue it in person. Thompson understood what was riding on this case.
Olson's participation would signal the importance of the Patriot Act's proper interpretation to the government, and the strength of our disagreement with the FISC. As the "SG," Olson was ultimately responsible not just for the representation of the United States' interests before the Supreme Court, but for all government appeals throughout the country. The SG focuses his efforts primarily on the Supreme Court and rarely appears before a lower court. At the same time, it seemed likely that the Supreme Court would never hear the case, as the FISA appeals court was created specially for this very purpose.
I first witnessed Olson in action as a law student, when I saw him give a talk on the practical implications of the separation of powers, but I did not get to know him until I interviewed for a job with his law firm. I never went to work for him, but my excuse was an offer to teach at his alma mater, the University of California at Berkeley. He was amused that I, a conservative, should go off to teach in the People's Republic of Berkeley, while he had managed to escape to the more "normal" world of Washington, D.C. Olson had served as head of OLC in the first Reagan administration, where he had been unjustly pursued by an independent counsel for advising other officials to assert executive privilege against congressional investigators. Rather than plea-bargain, Olson fought his case all the way to the Supreme Court and challenged the constitutionality of the independent counsel law itself. He won before the D.C. Circuit panel led by Silberman, lost 7-1 in the Supreme Court, but ultimately was vindicated when the independent counsel dropped the case. After that, Olson became one of the biggest stars in the Washington legal community. In 2000, he argued and won Bush v. Gore before the Supreme Court. This won him the permanent ire of the left, which bitterly tried, and failed, to block his confirmation as SG.
Olson would do everything he could to help the government prevail in the war against al Qaeda. His wife, Barbara Olson, had been killed on the plane that had crashed into the Pentagon on 9/11. I had dinner at their home just a few days before the attack. We had walked around the fields outside their Virginia house, where she and Ted had been married. Barbara was a tough, smart lawyer who had embarked on a career as a political pundit. She stayed in close touch with Washington politics, and we talked about the usual inside-the-Beltway gossip, who was up, who was down, the biggest mistakes, the latest rivalries. Terrorism, al Qaeda, and the Middle East were far from our minds. In the months that followed, I often thought of that conversation and of the friend I lost on 9/11. She had boarded the doomed flight for an appearance on a television show later that day. When I talked with Olson in his office about the case, he immediately understood its importance for the war on terrorism and decided to argue it personally.
While our brief discussed the Fourth Amendment, the President's national security powers, and the changes wrought by the 9/11 attacks, the crux of the argument lay elsewhere. For years, the FISA court had been ordering which parts of the executive branch could communicate with each other, to the point where it was now requiring a chaperone for domestic and foreign intelligence officials to talk about FISA-generated information. To us, the courts were unconstitutionally interfering with the operations of an independent and coordinate branch of government. This insight was the core of our brief to the court, and it blossomed into a second argument: that while FISA imposed a warrant requirement on the executive, it did not, and could not, restrict how the President chose to use that intelligence to protect the nation. He could use the information to take covert or military action to stop an attack, or he could use it to launch a criminal investigation. That was a decision for the President, not the courts, to make.
Olson argued the case on September 9, 2002--just a few months after the FISC's original decision, which is moving at light speed for the federal courts. Olson did this in addition to performing his day job, arguing before the Supreme Court, which would open its term a month later. Only government lawyers were there, because FISA hearings proceed ex parte--with one side present only (it makes no sense for the target to appear when the government is presenting classified evidence about his links to a terrorist group). Because of its sensitive nature, the court sat in secret at the top of the Justice Department, a building that security personnel constantly sweep for listening devices. Cell phones, laptops, PDAs, and any other electronic devices were forbidden. Arguments took place in a sparse meeting room, far from the ceremonial grandeur of a courtroom, and equipped with furniture that looked like it came from the 1960s. It was surrounded by security that would be the envy of any bank.
More top government lawyers came to this argument than to hear an oral argument of the Supreme Court. The Justice Department sent not just Olson but Thompson too. The White House sent Addington. I represented OLC, and lawyers from the FBI and other parts of the Justice Department were also in attendance. Because of the case's classified nature, there were, of course, no opposing lawyers, but the ACLU filed a brief with the judges, which they referred to in the oral argument.
The hearing started at 9 A.M. It was unlike any oral argument anyone had ever seen. The Supreme Court usually gives each side thirty minutes, and the courts of appeals usually give only fifteen. These judges peppered Olson nonstop for three hours. Olson stood at a small table only
a few feet from them. This gave the argument an informal atmosphere, but also gave Olson little room to hide. He performed magnificently--answering the judges' questions directly, describing the state of the law fairly, while always advancing the best arguments on behalf of the United States. His first few words showed both his focus on the key legal issue and his ability to place it in the context of the 9/11 attacks as perhaps no other lawyer in the nation could have: "Unfortunately and sadly, two days from now the entire nation will pause to reflect on how bad things can be if our Government is not prepared with every lawful tool available to protect our country and our people from the immeasurable toll that international terrorism can inflict, and to remember the three thousand lives that were taken from us that day because the resources that we have been given to protect us from such acts either did not work or were not being used effectively." 47
Olson said that the very purpose of the Patriot Act was to "prevent this sort of thing from happening again." He pointed out, "our intelligence agencies and law enforcement personnel, the President's principal agencies in the war against terrorism, must be able to work together efficiently and effectively and cooperatively." But they could not because of the FISC. Its decision "is the most formidable, the most inexplicable and the most easily removable obstacle to achieving the goal for effective and efficient gathering of intelligence to protect the people of this country and this country itself from international terrorism."
