Presidential authority to engage in national security surveillance has been shaped by executive initiatives, congressional statutes, and judicial decisions. After the terrorist attacks of 9/11, the Bush administration decided to authorize warrantless national security surveillance in violation of the Foreign Intelligence Surveillance Act (FISA). The operation remained secret until disclosed by the New York Times in December 2005. Pressured by the administration, Congress passed legislation in 2008 to give retroactive immunity to the telecoms that assisted with the surveillance. In so doing, Congress gave a green light to executive agencies and private companies that act against the law. In defense, administration officials claimed that the president has certain “inherent” powers under Article II of the Constitution that may not be limited by congressional statutes or judicial rulings. Efforts to challenge the Bush surveillance policy in court have been difficult because federal judges are reluctant to dispute national security claims by the executive branch, especially when private parties seek access to information the government regards as “state secrets.”

Some Early Precedents

On May 21, 1940, on the eve of World War II, President Franklin D. Roosevelt sent a confidential memo to Attorney General Robert H. Jackson, authorizing and directing him to obtain information “by listening devices” to monitor the conversations or other communications “of persons suspected of subversive activities against the Government of the United States, including suspected spies.” Roosevelt told Jackson to keep these investigations “to a minimum and to limit them in so far as possible to aliens” (Fisher and Harriger 2011, 740). No specific law in 1940 prohibited Roosevelt from taking this initiative.

Beginning with the Supreme Court's decision in United States v. Reynolds (1953), individuals seeking relief in court have been met by executive branch claims that litigation would threaten the disclosure of information damaging to national security. If federal judges defer to those assertions, the plaintiff's case cannot move forward, either to receive documents (discovery) or to put questions to executive officials (interrogatories). As this chapter explains, the Court in 1953 was misled by the executive branch regarding the contents of the disputed document: The accident report on a B-29 crash contained no state secrets. By successfully invoking the state secrets privilege, the executive branch is able to stop litigation in its tracks, even when plaintiffs allege serious illegal and unconstitutional actions by the government. Invocation of state secrets can also be a tool to camouflage government tactics in the “War on Terror.”

Similarly, when individuals seek documents under the Freedom of Information Act (FOIA), the executive branch is entitled under law to claim a number of exemptions, including the domain of national security. Because some federal judges concluded that they could not look at documents that the government had designated as protected for reasons of national security, Congress specifically amended FOIA in 1974 to authorize judges to examine classified and confidential documents within their chambers. Nonetheless, many judges continue to trust agency affidavits and declarations that describe the documents instead of looking at the documents themselves.

PRESIDENT AS LEGISLATOR

To a literalist, the Constitution limits the president to two forms of legislative activity: (1) the right to recommend to Congress such measures “as he shall judge necessary and expedient” and (2) the power to veto a bill. To this list can be added the president's power (shared with the Senate) to make treaties, which the Constitution defines as part of “the supreme Law of the Land.” A fourth source of influence, which has been exercised on rare occasions in the past, permits him to convene both houses or either of them. In case they disagree on the time of adjournment, the president can adjourn them “to such Time as he shall think proper.”

The Supreme Court has held that in the “framework of our Constitution the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.” According to this view the Constitution limits the president's functions in the lawmaking process to “the recommending of laws he thinks wise and the vetoing of laws he thinks bad.”