February 9, 2006
By Beth Nolan, Curtis Bradley, David Cole, Geoffrey Stone, Harold Hongju Koh, Kathleen M. Sullivan, Laurence H. Tribe, Martin Lederman, Philip B. Heymann, Richard Epstein, Ronald Dworkin, Walter Dellinger, William S. Sessions, William Van Alstyne
Dear Members of Congress:
We are scholars of constitutional law and former government
officials. We write in our individual capacities as citizens concerned
by the Bush administration's National Security Agency domestic spying
program, as reported in The New York Times, and in particular
to respond to the Justice Department's December 22, 2005, letter to the
majority and minority leaders of the House and Senate Intelligence
Committees setting forth the administration's defense of the program.
Although the program's secrecy prevents us from being privy to all of
its details, the Justice Department's defense of what it concedes was
secret and warrantless electronic surveillance of persons within the
United States fails to identify any plausible legal authority for such
surveillance. Accordingly the program appears on its face to violate
The basic legal question here is not new. In 1978, after an
extensive investigation of the privacy violations associated with
foreign intelligence surveillance programs, Congress and the President
enacted the Foreign Intelligence Surveillance Act (FISA). Pub. L.
95-511, 92 Stat. 1783. FISA comprehensively regulates electronic
surveillance within the United States, striking a careful balance
between protecting civil liberties and preserving the "vitally
important government purpose" of obtaining valuable intelligence in
order to safeguard national security. S. Rep. No. 95-604, pt. 1, at 9
With minor exceptions, FISA authorizes electronic surveillance only
upon certain specified showings, and only if approved by a court. The
statute specifically allows for warrantless wartime domestic
electronic surveillance—but only for the first fifteen days of a war.
50 U.S.C. § 1811. It makes criminal any electronic surveillance not
authorized by statute, id. § 1809; and it expressly establishes
FISA and specified provisions of the federal criminal code (which
govern wiretaps for criminal investigation) as the "exclusive means by which electronic surveillance...may be conducted," 18 U.S.C. § 2511(2)(f) (emphasis added).
The Department of Justice concedes that the NSA program was not
authorized by any of the above provisions. It maintains, however, that
the program did not violate existing law because Congress implicitly
authorized the NSA program when it enacted the Authorization for Use of
Military Force (AUMF) against al-Qaeda, Pub. L. No. 107-40, 115 Stat.
224 (2001). But the AUMF cannot reasonably be construed to implicitly
authorize warrantless electronic surveillance in the United States
during wartime, where Congress has expressly and specifically addressed
that precise question in FISA and limited any such warrantless
surveillance to the first fifteen days of war.
The DOJ also invokes the President's inherent constitutional
authority as Commander in Chief to collect "signals intelligence"
targeted at the enemy, and maintains that construing FISA to prohibit
the President's actions would raise constitutional questions. But even
conceding that the President in his role as Commander in Chief may
generally collect "signals intelligence" on the enemy abroad, Congress
indisputably has authority to regulate electronic surveillance within
the United States, as it has done in FISA. Where Congress has so
regulated, the President can act in contravention of statute only if
his authority is exclusive, that is, not subject to the check of statutory regulation. The DOJ letter pointedly does not make that extraordinary claim.
Moreover, to construe the AUMF as the DOJ suggests would itself
raise serious constitutional questions under the Fourth Amendment. The
Supreme Court has never upheld warrantless wiretapping within the
United States. Accordingly, the principle that statutes should be
construed to avoid serious constitutional questions provides an
additional reason for concluding that the AUMF does not authorize the
President's actions here.
Congress did not implicitly authorize the NSA domestic spying program in the AUMF, and in fact expressly prohibited it in FISA
The DOJ concedes (Letter at 4) that the NSA program involves
"electronic surveillance," which is defined in FISA to mean the
interception of the contents of telephone, wire, or e-mail
communications that occur, at least in part, in the United States. 50
U.S.C. §§ 1801(f)(1)-(2), 1801(n). The NSA engages in such surveillance
without judicial approval, and apparently without the substantive
showings that FISA requires—e.g., that the subject is an "agent of a
foreign power." Id. § 1805(a). The DOJ does not argue that FISA
itself authorizes such electronic surveillance; and, as the DOJ letter
acknowledges, 18 U.S.C. § 1809 makes criminal any electronic
surveillance not authorized by statute.
The DOJ nevertheless contends that the surveillance is authorized by
the AUMF, signed on September 18, 2001, which empowers the President to
use "all necessary and appropriate force against" al-Qaeda. According
to the DOJ, collecting "signals intelligence" on the enemy, even if it
involves tapping US phones without court approval or probable cause, is
a "fundamental incident of war" authorized by the AUMF. This argument
fails for four reasons.
First, and most importantly, the DOJ's argument
rests on an unstated general "implication" from the AUMF that directly
contradicts express and specific language in FISA. Specific and "carefully drawn" statutes prevail over general statutes where there is a conflict. Morales v. TWA, Inc., 504 U.S. 374, 384-85 (1992) (quoting International Paper Co. v. Ouelette,
479 U.S. 481, 494 (1987)). In FISA, Congress has directly and
specifically spoken on the question of domestic warrantless
wiretapping, including during wartime, and it could not have spoken
As noted above, Congress has comprehensively regulated all
electronic surveillance in the United States, and authorizes such
surveillance only pursuant to specific statutes designated as the "exclusive
means by which electronic surveillance...and the interception of
domestic wire, oral, and electronic communications may be conducted."
18 U.S.C. § 2511(2)(f) (emphasis added). Moreover, FISA specifically
addresses the question of domestic wiretapping during wartime. In a
provision entitled "Authorization during time of war," FISA dictates
that "notwithstanding any other law, the President, through the
Attorney General, may authorize electronic surveillance without a court
order under this subchapter to acquire foreign intelligence information
for a period not to exceed fifteen calendar days following a declaration of war by the Congress."
50 U.S.C. § 1811 (emphasis added). Thus, even where Congress has
declared war—a more formal step than an authorization such as the AUMF
—the law limits warrantless wiretapping to the first fifteen days of
the conflict. Congress explained that if the President needed further
warrantless surveillance during wartime, the fifteen days would be
sufficient for Congress to consider and enact further authorization.
Rather than follow this course, the President acted unilaterally and
secretly in contravention of FISA's terms. The DOJ letter remarkably
does not even mention FISA's fifteen-day war provision, which directly refutes the President's asserted "implied" authority.
In light of the specific and comprehensive regulation of FISA,
especially the fifteen-day war provision, there is no basis for finding
in the AUMF's general language implicit authority for unchecked
warrantless domestic wiretapping. As Justice Frankfurter stated in
rejecting a similar argument by President Truman when he sought to
defend the seizure of the steel mills during the Korean War on the
basis of implied congressional authorization:
It is one thing to draw an intention of Congress from
general language and to say that Congress would have explicitly written
what is inferred, where Congress has not addressed itself to a specific
situation. It is quite impossible, however, when Congress did
specifically address itself to a problem, as Congress did to that of
seizure, to find secreted in the interstices of legislation the very
grant of power which Congress consciously withheld. To find authority
so explicitly withheld is...to disrespect the whole legislative process
and the constitutional division of authority between President and
Congress. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 609 (1952) (Frankfurter, J., concurring).
Second, the DOJ's argument would require the conclusion that Congress implicitly and sub silentio
repealed 18 U.S.C. § 2511(2)(f), the provision that identifies FISA and
specific criminal code provisions as "the exclusive means by which
electronic surveillance...may be conducted." Repeals by implication are
strongly disfavored; they can be established only by "overwhelming
evidence," J.E.M. Ag. Supply, Inc. v. Pioneer Hi-Bred Int'l, Inc.,
534 U.S. 124, 137 (2001), and "'the only permissible justification for
a repeal by implication is when the earlier and later statutes are
irreconcilable,'" id. at 141–142 (quoting Morton v. Mancari, 417 U.S. 535, 550 (1974)). The AUMF and § 2511(2)(f) are not irreconcilable, and there is no evidence, let alone overwhelming evidence, that Congress intended to repeal § 2511(2)(f).
Third, Attorney General Alberto Gonzales has
admitted that the administration did not seek to amend FISA to
authorize the NSA spying program because it was advised that Congress
would reject such an amendment.
The administration cannot argue on the one hand that Congress
authorized the NSA program in the AUMF, and at the same time that it
did not ask Congress for such authorization because it feared Congress
would say no.
Finally, the DOJ's reliance upon Hamdi v. Rumsfeld, 542 U.S. 507 (2004), to support its reading of the AUMF, see DOJ Letter at 3, is misplaced. A plurality of the Court in Hamdi
held that the AUMF authorized military detention of enemy combatants
captured on the battlefield abroad as a "fundamental incident of waging
war." Id. at 519. The plurality expressly limited this holding
to individuals who were "part of or supporting forces hostile to the
United States or coalition partners in Afghanistan and who engaged in an armed conflict against the United States there." Id.
at 516 (emphasis added). It is one thing, however, to say that foreign
battlefield capture of enemy combatants is an incident of waging war
that Congress intended to authorize. It is another matter entirely to
treat unchecked war-rantless domestic spying as included in
that authorization, especially where an existing statute specifies that
other laws are the "exclusive means" by which electronic surveillance
may be conducted and provides that even a declaration of war authorizes
such spying only for a fifteen-day emergency period.
Construing FISA to prohibit warrantless domestic wiretapping does
not raise any serious constitutional question, while construing the
AUMF to authorize such wiretapping would raise serious questions under
the Fourth Amendment
The DOJ argues that FISA and the AUMF should be construed to permit
the NSA program's domestic surveillance because there otherwise might
be a "conflict between FISA and the President's Article II authority as
Commander-in-Chief." DOJ Letter at 4. The statutory scheme described
above is not ambiguous, and therefore the constitutional avoidance
doctrine is not even implicated. See United States v. Oakland Cannabis Buyers' Coop.,
532 U.S. 483, 494 (2001) (the "canon of constitutional avoidance has no
application in the absence of statutory ambiguity"). But were it
implicated, it would work against the President, not in his favor.
Construing FISA and the AUMF according to their plain meanings raises
no serious constitutional questions regarding the President's duties
under Article II. Construing the AUMF to permit unchecked warrantless wiretapping without probable cause, however, would raise serious questions under the Fourth Amendment.
A. FISA's Limitations are consistent with the President's Article II role
We do not dispute that, absent congressional action, the President
might have inherent constitutional authority to collect "signals
intelligence" about the enemy abroad. Nor do we dispute that, had
Congress taken no action in this area, the President might well be
constitutionally empowered to conduct domestic surveillance directly
tied and narrowly confined to that goal—subject, of course, to Fourth
Amendment limits. Indeed, in the years before FISA was enacted, the
federal law involving wiretapping specifically provided that "nothing
contained in this chapter or in section 605 of the Communications Act
of 1934 shall limit the constitutional power of the President...to
obtain foreign intelligence information deemed essential to the
security of the United States." 18 U.S.C. § 2511(3) (1976).
But FISA specifically repealed that provision, FISA § 201(c),
92 Stat. 1797, and replaced it with language dictating that FISA and
the criminal code are the "exclusive means" of conducting electronic
surveillance. In doing so, Congress did not deny that the President has
constitutional power to conduct electronic surveillance for national
security purposes; rather, Congress properly concluded that "even if
the President has the inherent authority in the absence of legislation to
authorize warrantless electronic surveillance for foreign intelligence
purposes, Congress has the power to regulate the conduct of such
surveillance by legislating a reasonable procedure, which then becomes
the exclusive means by which such surveillance may be conducted." H.R.
Rep. No. 95-1283, pt. 1, at 24 (1978) (emphasis added). This analysis,
Congress noted, was "supported by two successive Attorneys General." Id.
To say that the President has inherent authority
does not mean that his authority is exclusive, or that his conduct is
not subject to statutory regulations enacted (as FISA was) pursuant to
Congress's Article I powers. As Justice Jackson famously explained in
his influential opinion in Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. at 635 (Jackson, J., concurring), the Constitution "enjoins
upon its branches separateness but interdependence, autonomy but
reciprocity. Presidential powers are not fixed but fluctuate, depending
upon their disjunction or conjunction with those of Congress." For
example, the President in his role as Commander in Chief directs
military operations. But the Framers gave Congress the power to
prescribe rules for the regulation of the armed and naval forces, Art.
I, § 8, cl. 14, and if a duly enacted statute prohibits the military
from engaging in torture or cruel, inhuman, and degrading treatment,
the President must follow that dictate. As Justice Jackson wrote, when
the President acts in defiance of "the expressed or implied will of
Congress," his power is "at its lowest ebb." 343 U.S. at 637. In this
setting, Jackson wrote, "Presidential power [is] most vulnerable to
attack and in the least favorable of all constitutional postures." Id. at 640.
Congress plainly has authority to regulate domestic wiretapping by
federal agencies under its Article I powers, and the DOJ does not
suggest otherwise. Indeed, when FISA was enacted, the Justice
Department agreed that Congress had power to regulate such conduct, and
could require judicial approval of foreign intelligence surveillance.
FISA does not prohibit foreign intelligence surveillance, but merely
imposes reasonable regulation to protect legitimate privacy rights.
(For example, although FISA generally requires judicial approval for
electronic surveillance of persons within the United States, it permits
the executive branch to install a wiretap immediately so long as it
obtains judicial approval within seventy-two hours. 50 U.S.C. §
Just as the President is bound by the statutory prohibition on torture, he is bound by the statutory dictates of FISA. The DOJ once infamously argued that the President as Commander in Chief could ignore even the criminal prohibition on torture, and, more broadly still, that statutes may not "place any
limits on the President's determinations as to any terrorist threat,
the amount of military force to be used in response, or the method,
timing, and nature of the response."
But the administration withdrew the August 2002 torture memo after it
was disclosed, and for good reason the DOJ does not advance these
extreme arguments here. Absent a serious question about FISA's
constitutionality, there is no reason even to consider construing the
AUMF to have implicitly overturned the carefully designed regulatory
regime that FISA establishes. See, e.g., Reno v. Flores,
507 U.S. 292, 314 n.9 (1993) (constitutional avoidance canon applicable
only if the constitutional question to be avoided is a serious one,
"not to eliminate all possible contentions that the statute might be unconstitutional") (emphasis in original; citation omitted).
B. Construing the AUMF to authorize warrantless domestic wiretapping would raise serious constitutional questions
The principle that ambiguous statutes should be construed to avoid
serious constitutional questions works against the administration, not
in its favor. Interpreting the AUMF and FISA to permit unchecked
domestic wiretapping for the duration of the conflict with al-Qaeda
would certainly raise serious constitutional questions. The Supreme
Court has never upheld such a sweeping power to invade the privacy of
Americans at home without individualized suspicion or judicial
The NSA surveillance program permits wiretapping within the United States without either
of the safeguards presumptively required by the Fourth Amendment for
electronic surveillance —individualized probable cause and a warrant or
other order issued by a judge or magistrate. The Court has long held
that wiretaps generally require a warrant and probable cause. Katz v. United States,
389 U.S. 347 (1967). And the only time the Court considered the
question of national security wiretaps, it held that the Fourth
Amendment prohibits domestic security wiretaps without those
safeguards. United States v. United States District Court,
407 U.S. 297 (1972). Although the Court in that case left open the
question of the Fourth Amendment validity of warrantless wiretaps for
foreign intelligence purposes, its precedents raise serious
constitutional questions about the kind of open-ended authority the
President has asserted with respect to the NSA program. See id.
at 316-18 (explaining difficulty of guaranteeing Fourth Amendment
freedoms if domestic surveillance can be conducted solely in the
discretion of the executive branch).
Indeed, serious Fourth Amendment questions about the validity of
warrantless wiretapping led Congress to enact FISA, in order to
"provide the secure framework by which the executive branch may conduct
legitimate electronic surveillance for foreign intelligence purposes
within the context of this nation's commitment to privacy and
individual rights." S. Rep. No. 95-604, at 15 (1978) (citing, inter alia, Zweibon v. Mitchell, 516 F.2d 594 (D.C. Cir. 1975), cert. denied,
425 U.S. 944 (1976), in which the court of appeals held 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).
Relying on In re Sealed Case No. 02-001, the DOJ argues that
the NSA program falls within an exception to the warrant and probable
cause requirement for reasonable searches that serve "special needs"
above and beyond ordinary law enforcement. But the existence of
"special needs" has never been found to permit warrantless wiretapping.
"Special needs" generally excuse the warrant and individualized
suspicion requirements only where those requirements are impracticable
and the intrusion on privacy is minimal. See, e.g., Griffin v. Wisconsin,
483 U.S. 868, 873 (1987). Wiretapping is not a minimal intrusion on
privacy, and the experience of FISA shows that foreign intelligence
surveillance can be carried out through warrants based on
The court in Sealed Case upheld FISA itself, which requires
warrants issued by Article III federal judges upon an individualized
showing of probable cause that the subject is an "agent of a foreign
power." The NSA domestic spying program, by contrast, includes none of
these safeguards. It does not require individualized judicial approval,
and it does not require a showing that the target is an "agent of a
foreign power." According to Attorney General Gonzales, the NSA may
wiretap any person in the United States who so much as receives a
communication from anyone abroad, if the administration deems either of
the parties to be affiliated with al-Qaeda, a member of an organization
affiliated with al-Qaeda, "working in support of al Qaeda," or "part
of" an organization or group "that is supportive of al Qaeda."
Under this reasoning, a US citizen living here who received a phone
call from another US citizen who attends a mosque that the
administration believes is "supportive" of al-Qaeda could be wiretapped
without a warrant. The absence of meaningful safeguards on the NSA
program at a minimum raises serious questions about the validity of the
program under the Fourth Amendment, and therefore supports an
interpretation of the AUMF that does not undercut FISA's regulation of
In conclusion, the DOJ letter fails to offer a plausible legal
defense of the NSA domestic spying program. If the administration felt
that FISA was insufficient, the proper course was to seek legislative
amendment, as it did with other aspects of FISA in the Patriot Act, and
as Congress expressly contemplated when it enacted the wartime wiretap
provision in FISA. One of the crucial features of a constitutional
democracy is that it is always open to the President—or anyone else—to
seek to change the law. But it is also beyond dispute that, in such a
democracy, the President cannot simply violate criminal laws behind
closed doors because he deems them obsolete or impracticable.
We hope you find these views helpful to your consideration of the legality of the NSA domestic spying program.
Curtis Bradley, Duke Law School, former Counselor on International Law in the State Department Legal Adviser's Office
David Cole, Georgetown University Law Center
Walter Dellinger, Duke Law School, former Deputy Assistant Attorney General, Office of Legal Counsel and Acting Solicitor General
Ronald Dworkin, NYU Law School
Richard Epstein, University of Chicago Law School, Senior Fellow, Hoover Institution
Philip B. Heymann, Harvard Law School, former Deputy Attorney General
Harold Hongju Koh, Dean, Yale Law School, former Assistant
Secretary of State for Democracy, Human Rights and Labor, former
Attorney-Adviser, Office of Legal Counsel, DOJ
Martin Lederman, Georgetown University Law Center, former Attorney-Adviser, Office of Legal Counsel, DOJ
Beth Nolan, former Counsel to the President and Deputy Assistant Attorney General, Office of Legal Counsel
William S. Sessions, former Director, FBI, former Chief United States District Judge
Geoffrey Stone, Professor of Law and former Provost, University of Chicago
Kathleen Sullivan, Professor and former Dean, Stanford Law School
Laurence H. Tribe, Harvard Law School
William Van Alstyne, William & Mary Law School, former Justice Department attorney
 The Justice Department letter can be found at www.nationalreview.com/pdf/12%2022%2005%20NSA%20letter.pdf.
 More detail
about the operation of FISA can be found in Congressional Research
Service, "Presidential Authority to Conduct Warrantless Electronic
Surveillance to Gather Foreign Intelligence Information" (January 5,
2006). This letter was drafted prior to release of the CRS Report,
which corroborates the conclusions drawn here.
 "The Conferees
intend that this [15-day] period will allow time for consideration of
any amendment to this act that may be appropriate during a wartime
emergency.... The conferees expect that such amendment would be
reported with recommendations within 7 days and that each House would
vote on the amendment within 7 days thereafter." H.R. Conf. Rep. No.
95-1720, at 34 (1978).
General Gonzales stated, "We have had discussions with Congress in the
past—certain members of Congress—as to whether or not FISA could be
amended to allow us to adequately deal with this kind of threat, and we
were advised that that would be difficult, if not impossible." Press
Briefing by Attorney General Alberto Gonzales and General Michael
Hayden, Principal Deputy Director for National Intelligence (December
19, 2005), available at
administration had a convenient vehicle for seeking any such amendment
in the USA PATRIOT Act of 2001, Pub. L. No. 107-56, 115 Stat. 272,
enacted in October 2001. The Patriot Act amended FISA in several
respects, including in sections 218 (allowing FISA wiretaps in criminal
investigations) and 215 (popularly known as the "libraries provision").
Yet the administration did not ask Congress to amend FISA to authorize
the warrantless electronic surveillance at issue here.
 The DOJ
attempts to draw an analogy between FISA and 18 U.S.C. § 4001(a), which
provides that the United States may not detain a US citizen "except
pursuant to an act of Congress." The DOJ argues that just as the AUMF
was deemed to authorize the detention of Hamdi, 542 U.S. at 519, so the
AUMF satisfies FISA's requirement that electronic surveillance be
"authorized by statute." DOJ Letter at 3-4. The analogy is inapt. As
noted above, FISA specifically limits warrantless domestic wartime
surveillance to the first fifteen days of the conflict, and 18 U.S.C. §
2511(2)(f) specifies that existing law is the "exclusive means" for
domestic wiretapping. Section 4001(a), by contrast, neither expressly
addresses detention of the enemy during wartime nor attempts to create
an exclusive mechanism for detention. Moreover, the analogy overlooks
the carefully limited holding and rationale of the Hamdi plurality,
which found the AUMF to be an "explicit congressional authorization for
the detention of individuals in the narrow category we describe...who
fought against the United States in Afghanistan as part of the Taliban,
an organization known to have supported the al Qaeda terrorist
network," and whom "Congress sought to target in passing the AUMF." 542
U.S. at 518. By the government's own admission, the NSA program is by
no means so limited. See Gonzales/Hayden Press Briefing, supra note 4.
 See, e.g.,
S. Rep. No. 95-604, pt. I, at 16 (1977) (Congress's assertion of power
to regulate the President's authorization of electronic surveillance
for foreign intelligence purposes was "concurred in by the Attorney
General"); Foreign Intelligence Electronic Surveillance: Hearings
Before the Subcomm. on Legislation of the House Permanent Select Comm.
on Intelligence, 95th Cong., 2d Sess., at 31 (1978) (Letter from John
M. Harmon, Assistant Attorney General, Office of Legal Counsel, to
Edward P. Boland, Chairman, House Permanent Select Comm. on
Intelligence (Apr. 18, 1978)) ("it seems unreasonable to conclude that
Congress, in the exercise of its powers in this area, may not vest in
the courts the authority to approve intelligence surveillance").
 Indeed, Article II imposes on the President the general obligation to enforce laws that Congress has validly enacted, including FISA: "he shall
take Care that the Laws be faithfully executed..." (emphasis added).
The use of the mandatory "shall" indicates that under our system of
separation of powers, he is duty-bound to execute the provisions of
FISA, not defy them.
 See Memorandum
from Jay S. Bybee, Assistant Attorney General, Department of Justice
Office of Legal Counsel, to Alberto R. Gonzales, Counsel to the
President, Re: Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A (Aug. 1, 2002), at 31.
from John C. Yoo, Deputy Assistant Attorney General, Office of Legal
Counsel, to the Deputy Counsel to the President, Re: The President's Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them (September 25, 2001), available at www.usdoj.gov/olc/warpowers925.htm (emphasis added).
 Three years
ago, the FISA Court of Review suggested in dictum that Congress cannot
"encroach on the President's constitutional power" to conduct foreign
intelligence surveillance. In re Sealed Case No. 02-001, 310
F.3d 717, 742 (FIS Ct. Rev. 2002) (per curiam). The FISA Court of
Review, however, did not hold that FISA was unconstitutional, nor has
any other court suggested that FISA's modest regulations constitute an
impermissible encroachment on presidential authority. The FISA Court of
Review relied upon United States v. Truong Dihn Hung,
629 F.2d 908 (4th Cir. 1980)—but that court did not suggest that the
President's powers were beyond congressional control. To the contrary,
the Truong court indicated that FISA's restrictions were
constitutional. 629 F.2d at 915 n.4 (noting that "the imposition of a
warrant requirement, beyond the constitutional minimum described in
this opinion, should be left to the intricate balancing performed in the course of the legislative process by Congress and the President") (emphasis added).
 See Gonzales/Hayden Press Briefing, supra note 4.
consideration of FISA, the House of Representatives noted, "The
decision as to the standards governing when and how foreign
intelligence electronic surveillance should be conducted is and should
be a political decision...properly made by the political branches of
Government together, not adopted by one branch on its own and with no
regard for the other. Under our Constitution legislation is the
embodiment of just such political decisions." H.R. Conf. Rep. No.
95-1283, pt. 1, at 21-22.
Attorney General Griffin Bell supported FISA in part because "no
matter how well intentioned or ingenious the persons in the Executive
branch who formulate these measures, the crucible of the legislative
process will ensure that the procedures will be affirmed by that branch
of government which is more directly responsible to the electorate."
Foreign Intelligence Surveillance Act of 1978: Hearings Before the
Subcommittee on Intelligence and the Rights of Americans of the Senate
Select Committee on Intelligence, 95th Cong., 2d Sess. 12 (1997).
 Affiliations are noted for identification purposes only.