SAUTTER 2/10/09 1:02 AM

THE FOURTH AMENDMENT AND THE NEEDS

OF COMBAT: CONSTITUTIONAL GUARANTEES
VERSUS THE MILITARY’S NEED FOR
INFORMATION
BY JOHN A. SAUTTER*

Military combat requires nearly complete freedom for a military commander to garner
all of the necessary information that could win a battle. This article delves into the
question of whether the President has the constitutional authority to conduct domestic
warrantless wire taps to aid in military operations. Of particular interest is whether
intercepts are constitutionally permitted, and if so, how they might be narrowly tailored
to prevent abuses from occurring by the executive branch. The article concludes that
the President does have the constitutional power to conduct domestic warrantless
wiretaps incident to military combat. Finally, it is argued that Congress must update
and clarify the limits to the executive branch's power to conduct electronic surveillance
under the Foreign Intelligence Surveillance Act.

I. INTRODUCTION ...................................................................................... 300

II. THE BALANCE OF POWER: THE PRESIDENT’S POWER IN A
CONSTITUTIONAL SYSTEM ............................................................. 302

III. THE EXECUTIVE’S POWER TO CONDUCT WARRANTLESS
WIRETAPS ....................................................................................... 305

A. The President as Commander-in-Chief .................................... 305

B. The President in Foreign Affairs .............................................. 306

C. The Oath of Office Clause ........................................................ 307

IV. FOURTH AMENDMENT LIMITS TO ELECTRONIC SURVEILLANCE ........ 308

V. CONGRESS, FISA AND THE ZONE OF TWILIGHT .................................. 312

A. FISA’s Emergency Powers....................................................... 312

B. Possible Congressional Authorization Under the AUMF......... 314

C. Amending FISA to Meet the Needs of Combat........................ 316

VI. CONCLUSION....................................................................................... 317

*John Sautter earned a B.A. from New York University, a Ph.D. from the University of Nebraska
and a J.D. from Vermont Law School. He has published peer-reviewed and law review articles
on subjects concerning agricultural energy policy, international climate change agreements, state
regulation and climate change, and the effects of restructuring on electricity markets, as well as
authoring a book entitled The Emotional Voter, which investigates political decision making.
Presently, Dr. Sautter works as a lawyer at the Institute for Energy and the Environment at
Vermont Law School, where he works on agricultural energy policy and renewable energy issues.
After completing his LL.M. in environmental law in 2009 at Vermont Law School, he will be an
active duty Judge Advocate in the United States Marine Corps.
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I. INTRODUCTION

In May of 2007, insurgents in the Babil province of Iraq took three

American military personnel hostage. American intelligence officials were
eager to garner information on the soldiers’ whereabouts by tracking cell
phone calls, a common mode of insurgent communication, coming in and
out of Iraq with the hope that they might seize upon a phone call holding
vital information. However, intelligence efforts were frustrated because
many of the calls that the intelligence community would have liked to have
intercepted were routed through communications relays that went directly
through the United States.1 Though the caller and receiver were not U.S.
citizens, and were not located in the United States, the fact that the
communication traveled through U.S. territory meant that the intelligence
service needed a warrant in order to intercept these foreign
communications.2
In the past, President Bush has argued for the need to conduct
unencumbered surveillance of electronic communications within the U.S.3
However, as many scholars have pointed out, this warrantless wiretapping
is illegal under the Foreign Intelligence Surveillance Act (FISA) and
ultimately unconstitutional under the Fourth Amendment of the U.S.
Constitution.4 The President does not have unfettered discretion to intercept
domestic communications without a warrant.5 But can the President invoke

1 Lawrence Wright, The Spy Master, THE NEW YORKER, Jan. 21, 2008, available at
http://www.newyorker.com/reporting/2008/01/21/080121fa_fact_wr ight?currentPage=1 (quoting
Director of National Intelligence Michael McConnell as being frustrated that he could not
intervene to help the kidnapped G.I.s).
2 Id. (“To McConnell’s consternation, such surveillance required a warrant—not because the
kidnappers were entitled to constitutional protections but because their communications might
pass electronically through U.S. circuits.”).
3 James Risen and Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y.
TIMES, Dec. 16, 2005 at A1, available at http://www.nytimes.co
m/2005/12/16/politics/16program.html (noting that the Bush administration views the operation
as necessary so that the National Security Agency can move quickly to monitor communications
that may disclose terrorist or military threats to the United States).
4 U.S. CONST. amend. IV. For examples of scholarly works investigating why warrantless
wiretaps are illegal, see, Fletcher N. Baldwin, Jr. & Robert B. Shaw, “Down to the Wire:
Assessing the Constitutionality of the National Security Agency's Warrantless Wiretapping
Program: Exit the Rule of Law,” 17 U. Fla. J.L. & Pub. Pol'y 429 (2006); Trevor W. Morrison,
“Constitutional Avoidance in the Executive Branch,” 106 Colum. L. Rev. 1189 (2006); John Cary
Sims, “What the NSA Is Doing . . . And Why It's Illegal,” 33 Hastings Const. L.Q. 105 (2006);
Tara M. Sugiyama & Marisa Perry, “The NSA Domestic Surveillance Program: An Analysis of
Congressional Oversight During an Era of One-Party Rule,” 40 U. Mich. J.L. Reform 149 (2006);
Katherine Wong, “Recent Development: The NSA Terrorist Surveillance Program,” 43 Harv. J.
on Legis. 517 (2006).
5 See Elizabeth B. Bazan & Jennifer K. Elsea, Congressional Research Service, “Presidential
Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence
Information,” Jan. 5, 2006, available at http://www.eff.org/Privacy/Surveillance/
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his powers as Commander-in-Chief to utilize warrantless wiretaps in the

U.S. pursuant to the prosecution of military combat? In other words, does
the President’s power to conduct war make a domestic search or seizure
reasonable under the Fourth Amendment when it occurs incident to a
military operation during a time of war?
One could argue that the law already adequately provides the
capabilities sought by the President. Under FISA, the U.S. government has
the authority to intercept electronic communications as long as it seeks a
warrant within 72 hours following the initiation of the tap.6 However, in the
example discussed above, the thousands of calls going in and out of Iraq
could each potentially necessitate a warrant—a bureaucratic nightmare.
Seeking to overcome the logistical obstacles posed by FISA requirements,
the President has sought to conduct warrantless wiretaps.
In order to carry out a domestic wiretap the President should have at
least one of three things: a statutory grant from Congress,7 an Article II
constitutional power,8 and/or the blessing of the judiciary branch in the
form of a warrant.9 Ideally, the President would have all three at the same
time.10 However, the President’s current method of conducting warrantless
wiretaps is based neither on statutory power nor on warrants from a court
granting the power to intercept communications. Therefore, the
Constitutionality of the current wiretap regime hinges on whether the
President can rely on his inherent powers as Commander-in-Chief of the
armed forces to provide the necessary power to conduct domestic
surveillance to aid in a combat operation.
The aim of this article is to give a candid assessment of the President’s
ability to conduct domestic warrantless wire taps during military
operations. In particular, this analysis will examine whether these intercepts

NSA/nsa_research_memo.pdf [hereinafter Bazan & Elsea]. “From the foregoing analysis, it

appears unlikely that a court would hold that Congress has expressly or impliedly authorized the
NSA electronic surveillance operations here under discussion, and it would likewise appear that,
to the extent that those surveillances fall within the definition of “electronic surveillance” within
the meaning of FISA or any activity regulated under Title III, Congress intended to cover the
entire field with these statutes. To the extent that the NSA activity is not permitted by some
reading of Title III or FISA, it may represent an exercise of presidential power at its lowest ebb,
in which case exclusive presidential control is sustainable only by “disabling Congress from
acting upon the subject.”
6 50 U.S.C. § 1805(f) (2008).
7 Congress has proscribed statutory rules for wiretapping under Title III of the Omnibus
Crime Control and Safe Streets Act of 1968 [hereinafter “Title III”] and the Foreign Intelligence
Surveillance Act [hereinafter FISA].
8 Article II, sect 2 states that “the President shall be Commander in Chief of the Army and
Navy of the United States, and of the Militia of the several States, when called into the actual
Service of the United States.”
9 U.S. Const. amend. IV.
10 Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 637-38 (1952) (Jackson, J.,
concurring).
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are constitutionally permitted, and if so, how they might be narrowly

tailored to prevent abuses from occurring by the executive branch.
Ultimately, I conclude that the President does have the constitutional power
to conduct domestic warrantless wiretaps during military combat.
However, the breadth of this power remains unclear. Certainly, the
President’s Article II power should be buttressed by statutory guidance
from Congress. This article argues that Congress must update and clarify
the limits to the executive branch’s power to conduct electronic
surveillance under FISA.
The analysis is organized into four main parts. In Section II I review
the balance of power in a Presidential system. Section III considers the
source of the government’s Constitutional power to conduct domestic
surveillance. Section IV examines the jurisprudence regarding executive
grants of power to conduct electronic surveillance. In the final section, I
explore the FISA statute and the Authorization for the Use of Military
Force in Iraq (AUMF) to see if they provide a basis for domestic
surveillance of foreign intelligence targets in military combat situations.

II. THE BALANCE OF POWER: THE PRESIDENT’S POWER IN A

CONSTITUTIONAL SYSTEM

The U.S. constitutional system provides checks and balances for each
branch of government.11 For every power there is a check to ensure that the
power is not abused. In the case of the President’s national security
decisions, Congress and the judiciary act as a check against
unconstitutional actions. The Youngstown decision is generally considered
the most important framework for analyzing executive prerogative,
particularly in matters of national security.12 In Youngstown, the Supreme
Court declared unconstitutional a Korean War era Executive Order issued
by President Truman which seized control of steel mills. Truman claimed
that his wartime powers as Commander-in-Chief entitled him to take all
necessary actions in pursuit of war efforts and national security.13

11 “To what expedient, then, shall we finally resort, for maintaining in practice the necessary
partition of power among the several departments, as laid down in the Constitution? The only
answer that can be given is, that as all these exterior provisions are found to be inadequate, the
defect must be supplied, by so contriving the interior structure of the government as that its
several constituent parts may, by their mutual relations, be the means of keeping each other in
their proper places.” JAMES MADISON, FEDERALIST 51 (1788).
12 Id. at 579.
13 Id. at 582 (explaining the government’s position that the order to seize the steel mills “was
made on findings of the President that his action was necessary to avert a national catastrophe
which would inevitably result from a stoppage of steel production, and that in meeting this grave
emergency the President was acting within the aggregate of his constitutional powers as the
Nation’s Chief Executive and the Commander in Chief of the Armed Forces of the United
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However, the Court ruled that the President’s war powers did not extend to
the domestic theatre.14 The Court declared:
It is clear that if the President had authority to issue the order he did, it
must be found in some provision of the Constitution. And it is not
claimed that express constitutional language grants this power to the
President. The contention is that presidential power should be implied
from the aggregate of his powers under the Constitution. Particular
reliance is placed on provisions in Article II which say that ‘The
executive Power shall be vested in a President. . .’; that ‘he shall take
Care that the Laws be faithfully executed’; and that he ‘shall be
Commander in Chief of the Army and Navy of the United States.’ The
order cannot properly be sustained as an exercise of the President’s
military power as Commander in Chief of the Armed Forces. The
Government attempts to do so by citing a number of cases upholding
broad powers in military commanders engaged in day-to-day fighting in
a theater of war. Such cases need not concern us here. Even though
‘theater of war’ is an expanding concept, we cannot with faithfulness to
our constitutional system hold that the Commander in Chief of the
Armed Forces has the ultimate power as such to take possession of
private property in order to keep labor disputes from stopping
production. This is a job for the Nation’s lawmakers, not for its military
authorities.15
While the Court’s general ruling confines Presidential wartime power to
foreign military operations, the opinion is more often remembered and
cited for Justice Jackson’s concurring opinion which laid out a framework
to analyze the President’s power in relation to Congress.16 Jackson laid out
the following methodology to judge the limits of executive power in
relation to Congress:
1. When the President acts pursuant to an express or implied
authorization of Congress, his authority is at its maximum, for it
includes all that he possesses in his own right plus all that Congress can
delegate. A seizure executed by the President pursuant to an Act of
Congress would be supported by the strongest of presumptions and the
widest latitude of judicial interpretation, and the burden of persuasion
would rest heavily upon any who might attack it.
2. When the President acts in absence of either a congressional grant or
denial of authority, he can only rely upon his own independent powers,
but there is a zone of twilight in which he and Congress may have
concurrent authority, or in which its distribution is uncertain. Therefore,
congressional inertia, indifference or quiescence may sometimes, at least

States.”).
14 Id. at 587.
15 Id.
16 Id. at 637-38 (Jackson, J., concurring).
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as a practical matter, enable, if not invite, measures on independent

presidential responsibility. In this area, any actual test of power is likely
to depend on the imperatives of events and contemporary imponderables
rather than on abstract theories of law.
3. When the President takes measures incompatible with the expressed
or implied will of Congress, his power is at its lowest ebb, for then he
can rely only upon his own constitutional powers minus any
constitutional powers of Congress over the matter. Courts can sustain
exclusive Presidential control in such a case only by disabling the
Congress from acting upon the subject. Presidential claim to a power at
once so conclusive and preclusive must be scrutinized with caution, for
what is at stake is the equilibrium established by our constitutional
system.17
In order to determine the extent of Presidential authority any analysis
must establish where an executive action falls within the constraints listed
above. The first step of such an analysis requires consideration of whether
there is a constitutional grant of power to Congress, the President, or both.
If the Constitution does not grant the authority, then a court must find that
the executive lacks the necessary authority to take action even if Congress
has acted to give the President such power. If there is no constitutional
barrier, a court must examine whether there is Congressional intent to grant
or deny the President the authority assumed. Unless the authority asserted
finds its genesis in the Constitution, the President must either act in concert
with Congress or refrain from acting directly against its wishes.
In Dames & Moore v. Regan, Associate Justice William Rehnquist
refined Jackson’s understanding of the limits of Presidential powers.18 In
particular, Rehnquist examined what Jackson called the “zone of twilight,”
which the late justice described in his second classification as the space
where both the President and Congress may have “concurrent authority or
its distribution is uncertain.”19 He writes that,
In such a case the analysis becomes more complicated, and the validity
of the President’s action, at least so far as separation-of-powers
principles are concerned, hinges on a consideration of all the
circumstances which might shed light on the views of the Legislative
Branch toward such action, including “congressional inertia,
indifference or quiescence.”20
In Dames & Moore the petitioners challenged an executive order
which restricted the right of U.S. citizens to sue Iran over damages accrued

17 Id.
18 Dames & Moore v. Regan, 453 U.S. 668 (1981).
19 Id. at 668-69.
20 Id. at 669.
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during the Iranian hostage crisis.21 As part of a settlement to end the crisis,
the Carter administration agreed to assign all claims to a special tribunal
outside of American jurisdiction.22 The Court stated that Congress’s
implicit approval of the long-time Presidential practice of settling
international claims by executive agreement was critical to its ruling that
the challenged actions did not conflict with acts of Congress.23 That the
practice was longstanding demonstrated to the Court that Congress had
acquiesced to the President, allowing him to take the action in question.24
Thus, in circumstances where Congress allows a practice to occur without
taking steps to alter or stop the actions of the executive, Congress can be
seen as acquiescing to the President’s assumed authority.25 An analysis of
the extent of the President’s power to order domestic warrantless electronic
surveillance shows that Congress and the executive branch have not
reached a consensus. In particular, the fact that Congress has not taken
action to categorically reject the President’s domestic wiretapping program
suggests that it has condoned the conduct.

III. THE EXECUTIVE’S POWER TO CONDUCT WARRANTLESS WIRETAPS

A. The President as Commander-in-Chief

Continuing inquiry into the legality of domestic electronic

surveillance to aid combat operations requires analysis as to whether the
Executive branch has the Constitutional power to authorize surveillance
programs. Article II of the Constitution provides that the President is the
Commander-in-Chief of the U.S. military.26 Interpretations of wartime
Executive power have provided the President great discretion in the use of
military resources. In Hirabayashi v. United States, the Court faced the
question of whether the President or Congress had the Constitutional power
to conduct a wartime curfew on all individuals of Japanese ancestry.27 The

21 Id. at 668.
22 Id.
23 Id. at 680.
24 The Court cites Youngstown stating that “a systematic, unbroken, executive practice, long
pursued to the knowledge of the Congress and never before questioned . . .may be treated as a
gloss on ‘Executive Power’ vested in the President by § 1 of Art. II.” Id. at 686.
25 As Justice Rehnquist states in Dames & Moore, “We do not decide that the President
possesses plenary power to settle claims, even as against foreign governmental entities…But
where, as here, the settlement of claims has been determined to be a necessary incident to the
resolution of a major foreign policy dispute between our country and another, and where, as here,
we can conclude that Congress acquiesced in the President’s action, we are not prepared to say
that the President lacks the power to settle such claims. Id. at 688.
26 U.S. Const. Art. II, sect. 2.
27 Hirabayashi v. United States, 320 U.S. 81, 83 (1943).
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Hirabayashi Court reasoned that both the President and Congress have
great discretion in times of war28 and thus suggested that,
Since the Constitution commits to the Executive and to Congress the
exercise of the war power in all the vicissitudes and conditions of
warfare, it has necessarily given them wide scope for the exercise of
judgment and discretion in determining the nature and extent of the
threatened injury or danger and in the selection of the means for
resisting it.29
Indeed, lower courts have found that this increased wartime discretion
permits the use of electronic surveillance of foreign and international
communications. In United States v. Butenko, two individuals were charged
with communicating secret intelligence regarding the Strategic Air
Command to the Soviet Union.30 The defendants challenged the U.S.
government’s electronic surveillance of their communications with the
Soviets.31 The court ruled that “a warrant prior to search is not an absolute
prerequisite in the foreign intelligence field when the President has
authorized surveillance.”32 The Third Circuit decision found that the Article
II powers of the President implicitly include surveillance power. It noted
that:
As Commander-in-Chief, the President must guard the country from
foreign aggression, sabotage, and espionage. Obligated to conduct this
nation’s foreign affairs, he must be aware of the posture of foreign
nations toward the United States, the intelligence activities of foreign
countries aimed at uncovering American secrets, and the policy
positions of foreign states on a broad range of international issues.33

B. The President in Foreign Affairs

This surveillance power should also be understood within the context

of foreign affairs.34 In United States v. Truong Dinh Hung, the defendants

28 Id.
29 Id. at 83-84.
30 United States v. Butenko, 494 F.2d 593 (3d Cir. 1974) (en banc).
31 Id.
32 Id. at 596-597.
33 Id. at 608.
34 It is also important to point out the great power that the President wields in foreign affairs.
See United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 305 (1936). “Not only, as we
have shown, is the federal power over external affairs in origin and essential character different
from that over internal affairs, but participation in the exercise of the power is significantly
limited. In this vast realm, with its important, complicated, delicate and manifold problems, the
President alone has the power to speak or listen as a representative of the nation. He makes the
treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of
negotiation the Senate cannot intrude; and Congress itself is powerless to invade it. As Marshall
said in his great argument of March 7, 1800, in the House of Representatives, “the President is the
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were found guilty of espionage for giving information to operatives of the

Socialist Republic of Vietnam.35 Without a warrant, the FBI tapped
Truong’s phone line and installed listening devices in his home.36 The
Fourth Circuit ruled that the Executive branch did not need a warrant from
the judiciary to conduct the surveillance.37 As the court stated,
[T]he executive branch not only has superior expertise in the area of
foreign intelligence, it is also constitutionally designated as the
preeminent authority in foreign affairs.The President and his deputies
are charged by the constitution with the conduct of the foreign policy of
the United States in times of war and peace. Just as the separation of
powers…force[s] the executive to recognize a judicial role when the
President conducts domestic security surveillance, so the separation of
powers requires us to acknowledge the principal responsibility of the
President for foreign affairs and concomitantly for foreign intelligence
surveillance.38 [italics added]

C. The Oath of Office Clause

In addition to the President’s specific power as Commander-in-Chief

of the armed forces and the power to conduct foreign affairs, Article II of
the Constitution provides another basis for the executive branch to conduct
electronic surveillance. The Oath of Office Clause calls upon the President
to “preserve, protect and defend the Constitution of the United States.”39
The Supreme Court has declared that this power extends to the use of
surveillance.40 The Court has said that the clause grants the President
the power to protect our Government against those who would subvert
or overthrow it by unlawful means. In the discharge of this duty, the
President—through the Attorney General—may find it necessary to
employ electronic surveillance to obtain intelligence information on the
plans of those who plot unlawful acts against the Government.41
Together with his power as Commander-in-Chief and jurisdiction in
foreign affairs, the Oath of Office Clause provides the Constitutional
authority which allows the President to conduct electronic surveillance.

sole organ of the nation in its external relations, and its sole representative with foreign nations.”
[italics added]
35 United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980).
36 Id. at 911.
37 Id. at 913.
38 Id. at 914.
39 U.S. Const. art. II, §1, cl. 6.
40 United States v. U.S. Dist. Court (Keith), 407 U.S. 297 (1972).
41 Id. at 310.
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IV. FOURTH AMENDMENT LIMITS TO ELECTRONIC SURVEILLANCE

While I have demonstrated that the President has constitutional

authority to initiate electronic surveillance, there are limits to the extent to
which the Executive may exercise this authority. The Fourth Amendment
balances the nation’s security interests with the protection of the privacy of
the nation’s citizens.42 The amendment, inter alia, specifically guarantees
“the right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizure.”43 Wiretaps, listening
devices and other forms of electronic surveillance have been recognized as
Fourth Amendment cognizable searches and seizures.44 Historically, this
has meant that in order to conduct electronic surveillance of individuals in
the United States, the President must show probable cause, apply for a
warrant, and be granted approval by a magistrate.45
Some uncertainty remains as to whether cases involving national
security and foreign intelligence gathered domestically require a warrant.
While most scholars agree that the President’s authorization of the NSA
and FBI to conduct domestic surveillance was likely unconstitutional,
uncertainty remains regarding an exception to domestic surveillance
directly related to military operations.46 The crux of this uncertainty is the
clash of Constitutional powers. As discussed above, the President has
extraordinary discretion in a time of war to take actions that ensure the
nation’s security, including the power to conduct electronic surveillance of
foreign entities.47 Whether the President’s Article II powers grant him the
authority to abridge the Fourth Amendment right to privacy if military
operations necessitate such an abridgment remains unclear.
Initially, the Supreme Court seemed to signal that there was a clear
exception to the warrant requirement when the nation’s security was
threatened.48 In Katz v. United States, the Court reasoned that
Constitutional protections require government agents to obtain a warrant to
ensure that any electronic surveillance carried out is reasonable, as required

42 U.S. Const. Amend. IV.

43 Id.
44 See Katz v. United States, 389 U.S. 347, 353 (1967) (noting that the Fourth Amendment
governs not only the seizure of tangible items, but extends as well to the recording of oral
statements).
45 See generally, Id.
46 Though these programs were arguably conducted during a time of war, their reason d’etre
was not operational in character, but rather involved an attempt to locate, implicate and destroy
potential terrorist plots in the U.S., as opposed to gathering intelligence to be used in military
operations. See, Risen and Lichtblau, “Bush Lets U.S. Spy on Callers Without Courts,” supra
note 3, at A1, (noting that the Bush administration monitored communications to find terrorist
threats to the United States); c.f., see generally, Wright, “The Spy Master,” supra note 2.
47 See, Section II (discussing the constitutional powers of the President).
48 Katz v. United States, 389 U.S. 347, 354-357 (1967).
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by the Fourth Amendment.49 However, the Court rejected the need for a
warrant in cases involving national security interests.50 In a concurring
opinion, Justice White stated that an exception for national security matters
should exist by suggesting,
[W]e should not require the warrant procedure and the magistrate’s
judgment if the President of the United States or his chief legal officer,
the Attorney General, has considered the requirements of national
security and authorized electronic surveillance as reasonable.51
The Court, however, eventually decided that domestic electronic
surveillance necessitates a warrant even when national security is at issue.52
Still, the Court left open the possibility of an exception for the surveillance
of foreign intelligence.53 In United States v. United States District Court—
also known as “Keith”—Judge Keith ordered the U.S. government to
disclose conversations of the defendant it had wiretapped.54 The U.S.
government, citing national security concerns, refused to turn over the
information to the defendant.55 Keith involved a domestic organization that
conspired to bomb a Central Intelligence Agency building in Ann Arbor,
Michigan and whose communications had been intercepted by the
government.56 The Court’s legal analysis focused on the question of
whether the President had “power, acting through the Attorney General, to
authorize electronic surveillance in internal security matters without prior
judicial approval.”57 It answered the question in the negative by saying,
Fourth Amendment freedoms cannot properly be guaranteed if domestic
security surveillances may be conducted solely within the discretion of
the Executive Branch. The Fourth Amendment does not contemplate the
executive officers of Government as neutral and disinterested
magistrates.Their duty and responsibility are to enforce the laws, to
investigate, and to prosecute. But those charged with this investigative
and prosecutorial duty should not be the sole judges of when to utilize
constitutionally sensitive means in pursuing their tasks.58
Ultimately, the Keith Court concluded that a Fourth Amendment
inquiry into electronic-surveillance cases comes down to two important
considerations. The first of these is “whether the needs of citizens for

49 Id. at 356.
50 Id. at 358 n.23.
51 Id. at 364 (White, J., concurring).
52 See generally, United States v. United States District Court (Keith), 407 U.S. 297 (1972)
(discussing the need for a warrant for domestic surveillance in order to ensure reasonability).
53 Id.
54 Id. at 301.
55 Id. at 298.
56 Id. at 298.
57 Id. at 299.
58 Keith, 407 U.S., at 316-17.
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privacy and free expression may not be better protected by requiring a

warrant before such surveillance is undertaken.”59 The second is “whether a
warrant requirement would unduly frustrate the efforts of Government to
protect itself from acts of subversion and overthrow directed against it.”60
In answering these questions, the Court ruled out future domestic
surveillance without a warrant, however, it did not reject the notion that the
President had the power to conduct warrantless surveillance of foreign
intelligence targets “within or without this country.”61
While the Supreme Court has never fully resolved the issue of
domestic surveillance of foreign intelligence targets, lower courts have
generally found that warrantless domestic surveillance of foreign
intelligence targets for national security interests does not violate the
Fourth Amendment.62 In particular, the Third Circuit ruled in Butenko that
foreign surveillance was reasonable under the Fourth Amendment as long
as it was limited and undertaken only for the purpose of gathering
intelligence related to foreign affairs.63 The Butenko Court also found that
there was a “strong public interest” in allowing the executive branch the
necessary freedom to carry out its national security and foreign affairs
duties. The court noted in particular that,
While we acknowledge that requiring prior approval of electronic
surveillance in cases like the present one might have some salutary
effects—a judge, for example, could assure that the Executive was not
using the cloak of foreign intelligence information gathering to engage
in indiscriminate surveillance of domestic political organizations—on
balance, the better course is to rely, at least in the first instance, on the
good faith of the Executive and the sanctions for illegal surveillances
incident to post-search criminal or civil litigation. . .a strong public
interest exists: the efficient operation of the Executive’s foreign policy-
making apparatus depends on a continuous flow of information. A court
should be wary of interfering with this flow.64
In a similar vein, the Fourth Circuit reasoned that the complexity of foreign
affairs meant that the executive branch was in a much better position to
weigh the balance between the 4th Amendment implications of a domestic

59 Id. at 315.
60 Id.
61 Id. at 308.
62 See, e.g., United States v. Truong Ding Hung, 629 F.2d 908 (4th Cir. 1980); United States
v. Buck, 548 F.2d 871 (9th Cir. 1977); United States v. Butenko, 494 F.2d 593 (3d Cir. 1974) (en
banc); United States v. Brown, 484 F.2d 418 (5th Cir. 1973); c. f. Zweibon v. Mitchell, 516 F.2d
594, 605-06 (D.C. Cir. 1975) (ruling that a warrant must be obtained before a wiretap is installed
on a domestic organization that is neither the agent of nor acting in collaboration with a foreign
power, even if the surveillance is installed under presidential directive in the name of foreign
intelligence gathering for protection of the national security).
63 United States v. Butenko, 494 F.2d 593, 606 (3d Cir. 1974) (en banc).
64 Id. at 605.
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search or seizure and national security interests.65 In United States v.

Truong Dinh Hung, the court ruled that foreign-intelligence cases alter the
balance between individual privacy and security interests because
[T]he needs of the executive are so compelling in the area of foreign
intelligence, unlike the area of domestic security, that a uniform warrant
requirement would, following Keith, “unduly frustrate” the President in
carrying out his foreign affairs responsibilities…A warrant requirement
would add a procedural hurdle that would reduce the flexibility 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.66
This, of course, contrasts with the Keith decision, in which the Supreme
Court held that the executive’s foreign affairs power could not be exercised
in a way that would abridge Fourth Amendment guarantees.67 However, the
Court did not find conflict with the Keith decision. As long as each search
was “reasonable,” there was no violation of the Fourth Amendment.68 The
President is the primary actor in the realm of foreign affairs, thus discretion
is afforded to him.69 Though the Truong ruling emphasized the
inexperience of lower courts in judging the importance of information to
the nation’s security (as compared to the President), it did imply that the
recently established FISA Court was exempt as these judges would have
had experience in these matters.70 In short, the Court found that the
complex and multifaceted nature of foreign affairs rendered the President
in a better position to evaluate the balance of individual liberty and national
security when considering surveillance of a foreign intelligence target.71
Case law offers a number of important insights into the legality of
conducting warrantless surveillance pursuant to a military operation. First,
the Supreme Court has never struck down warrantless domestic gathering
of foreign intelligence when national security considerations are prominent.
Second, lower courts have generally offered opinions that outline a
potential exception to the ban on warrantless domestic electronic
surveillance of foreign intelligence targets. Finally, several decisions have
recognized the importance of executive discretion in allowing the President
to carry out his Article II duties, including his role as Commander-in-Chief
and his jurisdiction over the deployment of military personnel in a
battlefield. In sum, case law has erected no barriers to Executive-initiated

65 United States v. Truong Dinh Hung, 629 F.2d 908, 913-14 (4th Cir. 1980).
66 Id. at 913.
67 United States v. United States District Court (Keith), 407 U.S. 297, 320 (1972).
68 United States v. Truong Dinh Hung, 629 F.2d 914 (4th Cir. 1980).
69 Id.
70 Id. at 914 n.4.
71 See, id. (discussing the unique position of the President in the area of foreign affairs).
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warrantless electronic surveillance directly related to military operations.

V. CONGRESS, FISA AND THE ZONE OF TWILIGHT

In 1978 Congress passed the Foreign Intelligence Surveillance Act.72

FISA was a joint attempt by Congress and the President to codify a
framework that afforded the President necessary discretion to act in matters
pertaining to national security while ensuring protection of civil liberties.73
The act defines “the exclusive means by which electronic surveillance…
and the interception of domestic wire, oral and electronic communications
may be conducted.”74 Crucial to our analysis of domestic foreign
intelligence gathering pertaining is whether the President can order a
domestic wiretap that falls under some statutory provision in FISA.75
Domestic electronic surveillance conducted with no warrant or statutory
basis in FISA is a violation of the act.76

A. FISA’s Emergency Powers

FISA outlines several emergency situations in which warrantless

domestic electronic surveillance is acceptable. The first of these allows the
Attorney General to conduct domestic surveillance as long as a court order
is obtained within 72 hours of the initial surveillance.77 The second allows
domestic surveillance as long as it occurs within 15 days of a
Congressional declaration of war.78 All permitted surveillance must, as a
precondition, be disclosed post-hoc and take place pursuant to a warrant
granted by the FISA Court.79 Despite the intentions of FISA, I argue that
neither of these provisions give necessary discretion to the Commander-in-

72 Pub. L. No. 95-511, 92 Stat. 1783 (1978) (codified as amended at 50 U.S.C. §§1801-1871
(2000 & Supp. IV 2004), amended by USA PATRIOT Act Additional Reauthorizing
Amendments Act of 2006, Pub. L. No. 109-178, §§3-4, 120 Stat. 278, 278-81 and USA
PATRIOT Improvement and Reauthorization Act of 2005, Pub. L. No. 109-177, §§105-106, 108-
109, 128, 506, 120 Stat. 192, 195-200, 203-05, 228-29, 247-48 (2006)).
73 See generally, Ira S. Shapiro, The Foreign Intelligence Surveillance Act: Legislative
Balancing of National Security and the Fourth Amendment, 15 Harv. J. on Legis. 119 (1978)
(discussing the ways that FISA is an appropriate balance of constitutional interests).
74 18 U.S.C. §2511(2)(f).
75 Id.
76 “A person is guilty of an offense if he intentionally engages in electronic surveillance
under color of law except as authorized by statute.” 50 U.S.C. §1809(a)(1).
77 Id. at §1805.
78 Id. at §1811.
79 Id. at §1805 (allowing the attorney general to authorize emergency wiretapping so long as a
FISA court order is sought and obtained within seventy-two hours); id. §1811 (allowing the
President to authorize warrantless wiretapping for the first fifteen days after a congressional
declaration of war).
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Chief to effectively order domestic electronic surveillance of foreign

intelligence targets.
On its face, the seventy-two hour window seemingly provides the
flexibility for military commanders to initiate surveillance without
violating the FISA statute. The single largest drawback to this provision is
the requirement that the Attorney General approve before such a
warrantless wiretap can be initiated. This requirement hamstrings Pentagon
officials by forcing them to petition the Attorney General—a political
appointee who may not be readily available to authorize intelligence
gathering.80 Even if the Attorney General is immediately available,
surveillance might not be legal because surveillance can only be conducted
on “foreign powers.” The definition of “foreign power” in section 1801 of
the FISA statute includes six alternatives, of which only the first three
qualify as targets of warrantless surveillance:
(1) a foreign government or any component thereof whether or not
recognized by the United States;
(2) a faction of a foreign nation or nations, not substantially composed
of United States persons;
(3) an entity that is openly acknowledged by a foreign government or
governments to be directed and controlled by such foreign government
or governments;
(4) a group engaged in international terrorism or activities in preparation
therefore;
(5) a foreign-based political organization, not substantially composed of
United States persons; or
(6) an entity that is directed and controlled by a foreign government or
governments.81
The latter three definitions are explicitly excluded as legitimate targets of
emergency warrantless wiretapping.82 Insurgents or terrorist groups—
similar to the organizations the American military is facing in Iraq—would
not necessarily qualify for the emergency wiretapping provision as

80 The following is a real life account of the problems associated with ensuring that the
Attorney General has signed off on the surveillance: “[O]n May 15th, at 10 A.M., leaders from
several key intelligence agencies met to discuss other options for “enhanced” surveillance. By 1
P.M., the N.S.A. had determined that all the requirements for an emergency FISA authorization
had been met. But intelligence officials and lawyers continued to debate minute legal issues for
four more hours. At 5:15 P.M., hours after the N.S.A. made its determination, and three days after
the soldiers disappeared, Justice Department lawyers delayed the process further by deciding that
they needed to obtain direct authorization from Attorney General Gonzales, who was in Texas
making a speech. Gonzales finally called back, at 7:18 P.M., and within twenty minutes the
enhanced surveillance began.” Wright, “The Spy Master,” supra note 1.
81 Supra note 76, at §1801.
82 Id. at §1802(a)(1).
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currently applied.
In addition, it would be nearly impossible to completely rule out the
possibility of surveillance capturing conversations by a “United States
person.” Section 1802 of the warrantless wiretapping provision requires
that “there [be] no substantial likelihood that the surveillance will acquire
the contents of any communication to which a United States person is a
party.”83 A “United States person” is defined as “a citizen of the United
States, an alien lawfully admitted for permanent residence,” or “an
association or corporation with sufficient ties to the United States.”84
Therefore, the potential for eavesdropping on individuals inside the U.S.
would prevent the NSA from conducting wiretapping to aid in battlefield
decision making.

B. Possible Congressional Authorization Under the AUMF

The other possibility for statutory authorization of domestic electronic

surveillance might be found in the Authorization for Use of Military Force
(AUMF).85 The AUMF authorizes the President
to use all necessary and appropriate force against those nations,
organizations, or persons he determines planned, authorized, committed,
or aided the terrorist attacks that occurred on September 11, 2001, or
harbored such organizations or persons, in order to prevent any future
acts of international terrorism against the United States by such nations,
organizations, or persons.86
It is not certain if the AUMF does in fact provide the necessary statutory
grant of power to the President. The Supreme Court interpreted the scope
of the AUMF in Hamdi v. Rumsfeld.87 Yaser Esam Hamdi, a Louisiana-
born U.S. citizen who lived in the Middle East for most of his life, was
captured in Afghanistan by the Northern Alliance88 and was turned over to
the U.S. military. Hamdi was suspected of taking up arms alongside the
Taliban89 and was detained as an “enemy combatant” first at the naval base

83 Id. at §1802.
84 Id. at §1801(i).
85 S. J.Res. 23, 107th Cong. (2001).
86 Id. at §2(a).
87 Hamdi v. Rumsfeld, 542 U.S. 507 (2004).
88 The Northern Alliance is a multi-ethnic, paramilitary and political organization in
Afghanistan composed primarily of non-Pashtuns. The Northern Alliance was organized in
opposition to the Pashtun-dominated Taliban and fought with the American coalition forces
against the Taliban during the American offensive in Afghanistan after September 11th.
89 The Taliban is a primarily Pashtun, Sunni Islamist group that ruled Afghanistan from
1996-2001 until deposed by NATO and Northern Alliance forces after the American
incursion post-September 11th. Known for its strict adherence to Islamic Sharia Law, the
Taliban has since regrouped and is fighting an insurgent guerilla war against the Afghan
government and NATO forces in place to support that government.
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in Guantanamo Bay, Cuba and then in various naval brigs.90 In determining

whether the President had the authority to detain enemy combatants
captured in Afghanistan, the Court’s plurality opinion, authored by Justice
Sandra Day O’Connor, declined to address the question of plenary
authority under Article II, instead ruling that the AUMF granted such
authority.91 In reaching its conclusion, the Court stated:
There can be no doubt that individuals who fought against the United
States in Afghanistan as part of the Taliban, an organization known to
have supported the al Qaeda terrorist network responsible for those
attacks, are individuals Congress sought to target in passing the AUMF.
We conclude that detention of individuals falling into the limited
category we are considering, for the duration of the particular conflict in
which they were captured, is so fundamental and accepted an incident to
war as to be an exercise of the “necessary and appropriate force”
Congress has authorized the President to use.92
Warrantless electronic surveillance can certainly be construed as a
fundamental “incident” of waging war. Intelligence-gathering, broadly
defined, can be construed as a fundamental incident of war. In Totten v.
United States, the Court recognized that President Lincoln “was
undoubtedly authorized during the war, as commander-in-chief of the
armies of the United States, to employ secret agents to enter the rebel lines
and obtain information respecting the strength, resources, and movements
of the enemy.”93 In relation to other forms of intelligence gathering,
however, electronic surveillance is intrinsically different. Wiretapping
gathers information more generally and records information more
concretely than a traditional search. Furthermore, the information gathered
may be non-military in nature.
Indeed, it is important to note that the Supreme Court has signaled that
it might rule that discretionary actions, such as warrantless wiretaps, can
not be unilateral and must have oversight from another branch of
government. In interpreting the AUMF in Hamdi, the Supreme Court noted
that, “[W]hatever power the United States Constitution envisions for the
Executive in its exchanges with other nations or with enemy organizations
in times of conflict, it most assuredly envisions a role for all three branches
when the rights of individuals are at stake.”94 Congress has its own inherent
authority in balancing the Fourth Amendment against national-security
interests. Since Congress retains such Constitutional powers, such as those
to declare war and make rules regarding enemy capture, Executive-initiated

90 Supra note 87, at 510.

91 Id. at 516-17.
92 Id.
93 Totten v. United States, 92 U.S. 105, 106 (1876).
94 Supra note 87.
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electronic surveillance incident to military combat is properly placed within

Justice Jackson’s second area of Presidential power, “the zone of twilight.”
This “zone’ comprises those decisions, “in which [the President] and
Congress may have concurrent authority, or in which its distribution is
uncertain.”95 Congress has acted to regulate governmental surveillance
through FISA. However, this regulation can not erode the President’s
constitutional powers as Commander-in-Chief to take actions on the
battlefield. FISA, therefore, should be amended to allow the President the
necessary freedom to conduct the best possible intelligence gathering
programs incident to the prosecution of national security interests.

C. Amending FISA to Meet the Needs of Combat

Congress needs to address the issue of electronic surveillance incident

to military combat by providing more statutory flexibility for the
government in situations where battlefield operations would benefit from
the interception of electronic communications. Military personnel might be
put at risk if there is no exception for electronic surveillance incident to
combat operations. Because it is unclear whether the Iraq AUMF (or future
authorizations) should be interpreted to authorize wiretapping for military
operations, there needs to be clear understanding regarding when
surveillance can be conducted and who is authorized to conduct it. This is
especially true when such surveillance is necessary to protect military
personnel and ultimately aid in real time or imminent combat operation.
Congress should amend FISA to allow future Presidents the power to
conduct surveillance of foreign targets when foreign combat operations call
for it.
However, it should be clear that the statutory flexibility envisioned
here should not be construed as an authorization of a broad data-mining
effort similar to the program believed to have been approved by the Bush
Administration following the events of September 11, 2001.96 After 9/11,
the President approached MCI (now Verizon), AT&T, Sprint and Qwest
Communications for assistance in gathering call records for all of the phone
numbers that were found on computers and cellular telephones in al Qaeda
positions inside of Afghanistan.97 All of the communications providers
except for Qwest began giving information to the National Security
Agency (NSA) regarding these numbers without any judicial oversight.98

95 Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 637-38 (1952) (Jackson, J.,
concurring).
96 Michael Isikoff, “Uncle Sam is Still Watching You,” Newsweek July 21 (2008) at 6
(describing the likely scope and breadth of the U.S. government’s surveillance program).
97 Id.
98 Id.
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Eventually these requests for information began to include phone numbers

that were as many as three times removed from the original numbers linked
to al Qaeda operatives and included information concerning wire transfers,
bank records and other information collected by the Treasury Department.99
While the NSA can legally gather information regarding phone calls an
individual has dialed or an individual’s bank records, it does not have the
blanket authority to gather personal information indiscriminately.100 FISA
should not be used in such a manner.
FISA should be amended by adding a new definition to section 1801
that makes foreign insurgents, terrorists, and agents of a foreign
government actively engaged in combat a potential target of surveillance
when such agents conduct communication activities via the United
States.101 This section currently precludes the Executive Branch from
intercepting a communication involving a hostile foreign agent which
passes through the territorial boundaries of the U.S., or is directed to a U.S.
citizen without a warrant even if the communication concerns a matter
related to the conduct of real-time combat activities.102 Section 1801
currently defines “electronic surveillance” in four different ways that
essentially precludes surveillance on any communication that emanates, is
received or is wholly processed within the territorial boundaries of the
U.S.103 The best way to make this clear under FISA is to add an exception
in FISA for such a circumstance.

VI. CONCLUSION

Congress needs to address this issue by providing more statutory

flexibility for the government in situations where battlefield operations
would benefit from intercepting electronic communications. Military
personnel might be put at risk if there is no exception for electronic
surveillance incident to combat operations. Because it is unclear whether
the AUMF should be interpreted to authorize wiretapping for military
operations, there needs to be clear understanding regarding when and who
can conduct surveillance. Congress should amend FISA to allow future
Presidents the power to conduct surveillance of foreign targets when
foreign combat operations call for it.

99 Id.
100 Smith v. Maryland, 442 U.S. 735, 736 (1979) (finding there is no expectation of privacy in
phone numbers that one calls being kept secret); United States v. Miller, 425 U.S. 435 (1976)
(finding there is no expectation of privacy in bank records).
101 50 U.S.C. §1801(f)(1)-(4).
102 Id.
103 Id.