War by Other Means: An Insider's Account of the War on Terror

by John Yoo

  It seems that critics are mostly interested in blindly limiting the powers of the government, even as it fights a tough war. They seem to think that the American government must be presumed to be acting in bad faith, so all its activities must be treated with the highest possible level of suspicion. Meanwhile, data mining technology and databases are exploding in the private sector. It would be ironic if al Qaeda and private individuals were permitted greater legal access to new data technology than our own government, especially in wartime.

  Over reaction and plain scare tactics killed TIA, a potentially valuable tool proposed after 9/11 to counter al Qaeda's offensive within the United States. It made little sense to cut off TIA at the research and development stage, out of sheer antigovernment paranoia. There was no chance to see what computer technology could even do, no discussion of whether adequate safeguards for privacy could be installed, and no opportunity to evaluate whether data mining would yield leads on terrorist activity that would be worth any costs to privacy.

  Perhaps worst of all, we could never explore the ways that data mining be used to protect privacy. Data mining scan many perfectly innocent transactions and activities, but this in itself does not make the search illegal. Even searches of homes and businesses or wiretaps with warrants will encounter many items or communications that are not linked to criminal activity. The understandable concern is that data mining will scrutinize much innocent activity, unless controlled in some way by a warrant requirement. But if computers perform the primary scanning, privacy might not be implicated because no human eyes would ever have seen the data. Only when the computer programs highlight individuals who fit parameters that reasonably suggest further study for terrorist links--say a young man who has traveled to Pakistan several times, has taken flight lessons in the United States, and has received large deposits of cash wired into his account from abroad--would a human intelligence officer view the records. At this point, it is important to emphasize, no one is guilty of anything--all that might be done at this point is to seek more information, deploy more resources, or seek a warrant. It would be foolhardy to prevent our intelligence and law enforcement officers from studying patterns of private behavior to stop future attacks. Police routinely rely on the study of patterns to try to predict future crimes. Police will study the "m.o." of past crimes, or patterns of criminal activity in certain neighborhoods at different times.27

  This underscores the real problem with FISA, and even the Patriot Act. They depend upon individualized suspicion--searches and wiretaps must target a specific individual already believed to be involved in criminal activity. But catching al Qaeda members who have no previous criminal record in the United States, and who are undeterred by the possibility of criminal sanctions, requires more than that. We have to devote surveillance resources where there is a reasonable chance that terrorists will appear, or communicate, even if we do not know their specific identities. What if we knew that there was a 50 percent chance that terrorists would use a certain communications pipeline, like e-mail accounts on a popular Pakistani service, but that most of the communications on that channel would not be linked to terrorism? A FISA-based approach would prevent computers from searching through that channel for the keywords or names that might suggest terrorist communications, because we would have no specific al Qaeda suspects, and thus no probable cause. Rather than individualized suspicion, searching for terrorists will depend on playing the probabilities, just as roadblocks or airport screenings do. The private owner of a Web site has detailed access to that information every day to exploit for his own commercial purposes, such as selling lists of names to spammers, or gathering market data on individuals or groups. Is the government's effort to find violent terrorists a less legitimate use of such data?

  Individualized suspicion dictates the focus of law enforcement, but war demands that our armed forces defend the country with a broader perspective. Armies do not meet a probable cause requirement when they attack a position or fire on enemy troops or intercept enemy communications. The criminal justice system seeks to hold a specific person responsible for a discrete crime that has already happened. Individualized suspicion does not make sense when the purpose of intelligence is to take action, such as killing or capturing members of the enemy, to prevent future harm to the nation from a foreign threat.

  FISA should be regarded as a safe harbor that allows the fruits of an authorized search to be used for prosecution. It sacrifices speed and breadth of search, but it provides a path for using evidence in a civilian criminal prosecution. If the President chooses to rely on his constitutional authority alone to conduct warrantless searches, then he should use the information only for military purposes. As General Hayden has said, the primary objective of the NSA program is to "detect and prevent" possible al Qaeda attacks on the United States, whether a repeat of September 11; or a bomb in an apartment building, on a bridge, or at an airport; or a nuclear, biological, or chemical attack.28 These are not hypotheticals; they are all al Qaeda plots, some of which our intelligence and law enforcement agencies have already stopped. The price to pay for using the NSA to stop such plans may be to lose the chance for a future criminal prosecution.

  This gives the President the choice of using the best method to protect the United States, whether through the military or by relying on law enforcement. It also means warrantless surveillance will not be introduced into the criminal justice system, a distinction that the judiciary would have to enforce. President Bush could go some way toward alleviating concern about the NSA program by publicly declaring that no evidence from it would ever be used in any criminal case.

  Gathering intelligence has long been understood as a legitimate aspect of conducting war; indeed it is critical to the successful use of force. Intercepting enemy communications has always been a central part of these military intelligence options.29 Our military cannot attack or defend to good effect unless it knows where to aim. America has a long history of conducting intelligence operations to obtain information on the enemy. General Washington used spies extensively during the Revolutionary War, and as President he established a secret fund for spying that existed until the creation of the CIA.30 President Lincoln personally hired spies during the Civil War, a practice the Supreme Court upheld.31 In both World Wars I and II, presidents ordered the interception of electronic communications leaving the United States.32 Some of America's greatest wartime intelligence successes have involved SIGINT--intelligence based on signals--most notably the breaking of Japanese diplomatic and naval codes during World War II, which allowed the U.S. Navy to anticipate the attack on Midway Island.33 SIGINT is even more important in this war than in those of the last century. Al Qaeda has launched a variety of efforts to attack the United States, and it intends to continue them. The primary way to stop those attacks is to capture al Qaeda operatives who have infiltrated the United States. One of the best ways to find them is to intercept their electronic communications entering or leaving the country.

  As commander in chief, the President has the constitutional power and the responsibility to wage war in response to a direct attack against the United States. In the Civil War, President Lincoln undertook several actions--raised an army, withdrew money from the treasury, launched a blockade--on his own authority in response to the Confederate attack on Fort Sumter, moves that Congress and the Supreme Court later approved.34 During World War II, the Supreme Court similarly recognized that once war began, the President's authority as commander in chief and chief executive gave him the tools necessary to effectively fight it.35

  Even legal scholars who argue against this historical practice concede that once the United States has been attacked, the President can respond with force on his own.36 It is inconceivable that the Constitution would vest in the President the power of commander in chief and chief executive, give him the responsibility to protect the nation from attack, but then disable him from gathering intelligence to use the military most effectively to defeat the enemy
. As the Supreme Court declared after World War II, "This grant of war power includes all that is necessary and proper for carrying these powers into execution."37 Covert intelligence is clearly part of this authority.38 Several Supreme Court cases have recognized that the President's role as commander in chief and the sole organ of the nation in its foreign relations must include the power to collect intelligence.39 Intelligence rests with the President because the office's structure allows it to act with unity, secrecy, and speed.

  Presidents have long ordered electronic surveillance without any judicial or congressional participation. More than a year before the Pearl Harbor attacks, but with war with the Axis powers clearly looming, President Franklin Roosevelt authorized the FBI to intercept any communications, whether wholly inside the country or international, of persons "suspected of subversive activities against the Government of the United States, including suspected spies."40 FDR was concerned that "fifth columns" could wreak havoc with the war effort. "It is too late to do anything about it after sabotage, assassinations and 'fifth column' activities are completed," FDR wrote in his order. FDR ordered the surveillance even though a Supreme Court decision and a federal statute at the time prohibited electronic surveillance without a warrant.41 FDR continued to authorize the interception of electronic communications even after Congress rejected proposals for wiretapping for national security reasons.42

  Until FISA, presidents continued to monitor the communications of national security threats on their own authority, even in peacetime.43 If presidents in time of peace can order surveillance of spies and terrorists, executive authority is only the greater now in wartime. This is a view that Justice Departments have not only held under President Bush. The Clinton Justice Department held a similar view of the executive branch's authority to conduct surveillance outside the FISA framework.44

  Since World War II, courts have never opposed a President's authority to engage in warrantless electronic surveillance to protect national security. When the Supreme Court first considered this question in 1972, it held that the Fourth Amendment required a judicial warrant if a President wanted to conduct surveillance of a purely domestic group, but it refused to address surveillance of foreign threats to national security.45 In the years since, every federal appeals court to address the question, including the FISA Appeals Court, has "held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information." The FISA Appeals Court did not even feel that it was worth much discussion. It took the President's power to do so "for granted," and observed that "FISA could not encroach on the President's constitutional power."46

  Congress also implicitly authorized the President to carry out electronic surveillance to prevent further attacks on the United States in the Authorization for Use of Military Force passed on September 18,2001. AUMF has no limitation on time or place--only that the President pursue al Qaeda. Although the President did not need, as a constitutional matter, Congress's permission to attack al Qaeda after the attacks on New York City and the Pentagon, its passage shows that the President and Congress fully agreed that military action would be appropriate. Congress's approval of the killing and capture of al Qaeda members must obviously include the tools to locate them in the first place.

  Senator Tom Daschle's claim that, as Senate majority leader, he rejected White House suggestions to explicitly include operations taking place on American soil does not ring true.47 In the first days after 9/11, I joined the lead White House negotiator, Tim Flanigan, at several meetings with congressional leadership staff on the AUMF. The White House, not the Senate Democrats, wrote the first drafts. We met for hours on end, often in a large conference room in the Senate or House leadership offices in the Capitol. We would sit around a very long table so that every leader or representative of every relevant congressional committee, both majority and minority, would have a seat. Flanigan and I, and one or two people from White House legislative affairs, would sometimes be the only ones there from the executive branch. When we sat down to haggle over its substance, staff for Dashle and House Majority Leader Richard Gephardt asked only that the law make clear that it was consistent with the War Powers Resolution. A statement we had included that the President had the constitutional authority to use force to preempt future terrorist attacks (which everyone agreed stated the obvious) was moved to the statute's findings. We agreed to both changes, which struck us as window dressing.

  No one in the room claimed the statute would prohibit military action to stop an al Qaeda attack if one occurred within our borders. If anyone had, I would have immediately objected. We would never have accepted a law that tried to limit rather than support the President's constitutional authority to respond to an attack on American soil. Indeed, at that very moment the Air Force was flying combat air patrols over the offices at the Capitol. Would Senator Daschle say the AUMF did not allow the Air Force to shoot down, if necessary, the next United flight 93? Why else were our fighters on patrol at all? The closer al Qaeda is to attack, the fuller the government powers should be. With attacks in motion within the United States, the need for the executive branch to use surveillance and force is at its most compelling. Turning common sense topsy-turvy, civil libertarians want to impose more obstacles where the need to stop al Qaeda becomes the most urgent.

  Critics have argued that the NSA's electronic surveillance is illegal because the AUMF did not explicitly mention wiretapping or surveillance.48 Of course, it does not mention detentions either, which the Supreme Court later upheld under the AUMF, despite a law on the books known as the Anti-Detention Act.49 Critics essentially argue that Congress must enact a grocery list of specific powers to fight war. For instance, FISA prohibits electronic surveillance within the United States without congressional permission. However, in the AUMF, Congress authorized the President "to use all necessary and appropriate force" against those "he determines" were involved with the 9/11 attacks. The power to use force includes by implication the power to use surveillance and intelligence to find targets. According to the critics, Congress authorized the President to pull the trigger, but also ordered him to wear a blindfold.

  Obviously, Congress cannot legislate in anticipation of every circumstance that may arise in the future. That is one of the reasons, along with the executive branch's advantages in speed, expertise, and structural unity, that Congress delegates authority. Those who consider themselves legal progressives generally support the administrative state and vigorously defend important grants of authority from Congress to the agencies of the executive branch. Agencies such as the Federal Communications Commission or the Environmental Protection Agency exercise powers over important sectors of the economy under the broad congressional mandate that they regulate in the "public interest." These agencies make decisions with enormous economic effects, such as which parts of the radio spectrum to sell, or how much pollution to allow into the air, with little explicit guidance or thought from Congress.

  Yet, when Congress delegates broad authority to the President to defend the nation from attack, the defenders of the administrative state demand that Congress list every power it wishes to authorize. While the threats to individual liberty may be greater in this setting, it makes little sense to place Congress under a heavier burden to describe every conceivable future contingency that might arise when we are fighting war, perhaps the most unpredictable and certainly most dangerous of human endeavors. Rather, we would expect and want Congress to delegate power to that branch, the presidency, which is best able to act with speed to threats to our national security.50 War is too difficult to plan for with fixed, antecedent legislative rules, and war also is better run by the executive, which is structurally designed to take quick, decisive action. It does not stand the test of reason to think that Congress intended to give the President the power to detain or kill members of the enemy but not to search for them, especially once they had reached our shores.

  II.

  Prominent senat
ors, including Patrick Leahy, Edward Kennedy, and Harry Reid, as well as the ACLU, not only claim that the NSA surveillance program violates FISA, they charge that it shows that President Bush thinks he is "above the law."51 More subtle critics might argue that FISA is comprehensive and makes provision for wartime; therefore the President has no residual powers over domestic surveillance. Even accepting, for the moment, the claim that the NSA program and FISA are in conflict, this does not make the program unconstitutional. Everyone would prefer that the President and Congress agree on war policy; it was one of the reasons the Bush administration sought the AUMF in the first place. Our nation will wage war more effectively if it is unified.

  But conflict between the branches of government is commonplace in our history. The President and Congress have pursued conflicting war policies in many wars. Congress passed the Neutrality Acts before World War II in a largely futile effort to restrain FDR from assisting the Allies. Vietnam and Kosovo are most recent examples of wars in which Congress tried to frustrate or micromanage executive war policy.

  The Constitution not only anticipated this struggle, it was written to ensure it. It does not give the President or the Congress complete control over war, foreign policy, and national security, but instead gives each branch different powers that they can use to cooperate or fight with one another. The President is the commander in chief and chief executive, while Congress has the power over funding, legislation, the creation and discipline of the military, and the power to "declare war." National security is dramatically unlike other government powers, such as passing a statute, appointing a judge, or making a treaty, where the Constitution sets out a precise, step-by-step process for the roles of the different branches of government. We should not find surprising the ongoing partisan conflict over terrorism policy after 9/11.