A memo for the attorney general, May 2004

Review of the legality of the Stellar Wind program.

TOP

8ECRETH-~'COMIPIT-8TELLAH WINB-'INOFOR."f
U.S. Department of Justice
Office of Legal Counsel

Washington, D,C. 20530

Office oft he Assisll\nl Attorney General

May6, 2004

MEMORANDUM FOR THE ATTORNEY GENERAL

Re: Review of the Lega/i(v oft he STELLAR W!ND Program (TSh'SJ STL¥/h'NF)

BACKGROUND
A.

S~ptember

5

II, 200 I

B. Initiation of STELLAR WfND ............................. .

6

C.

8

Reaulltori7..alions and the Reaull.torization Process

9

D. Modificauons to STELLAR Wl:ND Authority
E.

Operation oftltc Program and the- M.odifica1ioos ~•·"''"'

II

F.

Prior Ophtions of !his Office .............. , , ..

17

ANALYSIS
l.

STELLAR WIND Under Executive Order 12,333 ................ .

ll.

Content Collection - Statutory Analysis . . . . .
A.

· B.

Prior Opinions of this

Office.~

18

.. .. . .. . .. .

19

Corutitutional Avoidance . . . . . . . . . . . . . . . . . . . . . . . .

Analysts of STELLAR WIND U11dor F!SA Must Take Into Account the September 2001
CongressioMI Aufuorization for Use of Military Force . . . . . .
... ... .. .. .. .
l.

22

29

·nw Congresstonal Autlwrization pmvides express authority for STELLAR Wfiill content
collection ........... , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

2.
C.

At a mjnimum, the Congressiouol AuU10rization bolsters tbe case for applying the canon of
coos!ltunoual avotdance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

35

lfFlSA Purported Tn Proltibit Targeted, Wartime Surveillance Against Ihe Enemy Under
STELLAR WIND, ft Would Be Uoconslitutional As Applied ............................. 37

I.

2.

Even in peacetime, absent ccngresslonal acHon, tbe President has inberen' coos(ituti.ooa[
authority. consistent with Uu~ Fourth Arnendment, to order warrantless foreign lntellige:nc.e
surveillance ............ , .. , . . . . . . . . . . . . . . . . . . . . .

37

HSA ls unconstitutional as appticd in dlls context ......... _ .

43

a

Even mnside Ute contex( ofwrut.ime s.urveillancc of the enemy. the scope

ofCongress~s

power w restrict the President's inJ1erent authority to conduct foreign intelligence
surv~illancc

b.

ls unclear . . . . .

. ..... , . . . . . . . . . .

.... .... . .

In the narrow context of iutercep(ion of enemy communications in·thc midst of an am1ed
conOict, FISA is un.constituliotlal as applied . . . . . . . . . . . . . . . . . . . . . . . . .

Derived from:

"Presid~oual Autlwri.zarion for Specified Electronic Surveillance
Activities Dunng a Limited Period to Detect and Prevem Acts of
Terrorism Wlllnn the United Siale>," dated O<t 4, 2001, and

subsequent related Presidential autho_rizations

DedassJfy only upon delenmnmion by the President

4il

51

74
81

83

86
89
96
96
98

99
100

V.

STELLAR Wll\'D Under Ute Fourth Amendment .................... , ........... , ..... , . . . 100
A.

STELLAR WIND CorH~nt Tntercepl10ns Arr:: Reasonahle Under Balancin£~nf.Jntere'ils A11alysis . I 01

B.

Acquisttion of Meta Dala Docs Not lmpltcale tl1e Fourth Amendment .. , . . . . . . • . . . . . . . . . . . . I 06

CONCLUSION .. . . .. .. _ . . . . .. .. .. .. .. . .. . .. . .

.. _..... _.. __ .. . .. .. .. . .. . .. .. .. .. . .. . .. lOS

You have asked this Office to underlake a thorough reexamination oftbe STELLAR
WIND program as it is currently operated to con finn that the actions that the President has
directed the Department of Defense to undertak<:: through the National Security Agency (NSA)
are lawful. STELLAR WIND is a. highly classified and strictly compartmented program of
electronic surveillance within the United States that President Bush directed the Department of
Defense to undertake on October 4, 200 l in response to the attacks of September ll, 2001.
Specifically, the program is designed to counter the threat of further tenorist attacks on the
territorial United States by detecting communications that will disclose terrorist operatives,
terrorist plans, or other f.nfomuttion that can enable the disruption of such attacks, particularly the
identification ofal Qaeda operatives within IJ1e United States. The President's initial directive to
the Secretary of Defense authorized the STELLAR WIND program for 30 days. Since then, the
President has periodically (roughly every 30 to 45 days) reauthorized the progran1.
fT<'IQ((COJ.ffilTlf)Tr
urq.W)
""-'
.LJII"TI

\ol..I...I'SU.LS'->'-FIT

After de-Scribing the initiation of STELLAR WlND, modifications to the program, and its
current operation, including the periodic reauthorizations by the President, tllis memorandum
provides a legal analysis of the program in four parts. In Part I, we briefly examine STELLAR
WIND under Executive Order 12,333,46 Fed. Reg. 59,941 (Dec. 4, 1981), the Executive

2

TOP SECRET!f.'fCOMJNT STELLAR 'l/INJj-lfNOFOR."-1

TOP SECRET/~ICOMil'fT HBLLAR WIND. .JNOFOR."i
In Part Il, we address the statutory framework that governs the interception of
communications in the United States and 1ts application to the first of the three major parts of the
STELLAR WiND program- thai is, targeted interception of the content of international
communications involving suspected terrorists. Specifically, we address the Foreign fntelligence
Surveillance Act (F!SAJ, as amP.nt!ed, SO U.S C §§ 1801- I 86"l (?000 & Supp I 2001 ), "nd
relevant related provisions in Title IIl of the Omnibus Crime Control and Safe Stn·~ls
I
18U.S.C.
2510-2521
tie
&

we tum to a new analysis of
on
a proper legal review should
not examine FISA in isolation. Rather, in the context of STELLAR WIND collection in the
ongoing conflict withal Qaeda, the restrictions in FISA must be read in light of the express
authorization enacted by Congress on September 18,2001 providing the President authority "to
use all necessary and appropriate force against those nations, organizations, or persons he
determines planned, aulhoriwd, conunitted, or aided the (errorist attacks" of Sep-tember II.
Authorization for Use of Military Force, Pub. L. No. 107-40, § 2(a), 115 Stat. 224,224 (Sept. 18,
2001) (reported as a note to 50 U.S.C.A. § 1541) ("Congressional Authorization"). The
Congressional Authorization is significant for our analysis in two respects. First, it is properly
understood as an express authorization for surveillance activities- including the content
collection tmdertaken as part of STELLAR WIND- targeted against al Qaeda and affiliated
organizations that come within its terms. Second, even if it did not provide express autl10rity for
the targeted content collection Lmdertakeu as part of STELLAR WIND, at a minimum the
Congressional Authorization creates sufficient ambiguity concerning the application ofFISA in
tllis context that the canon of constitutional avoidance can properly be invoked to-construe the
Congressional Authorization to overcome restrictions in FrSA in this context.
(TSHSI STLW//NF)

conclude that in the circumstances of the current anned conflict with a! Qaeda, the restrictions set
out in FISA, as applied to targeted efforts to intercept the c.omrnuuications of the enemy in order
to prevent further am1ed a({acks on the United States, would be an unconstitutional infringement

'Unless othorv/ISO noted, a!! United States Code citations in this memorandum are to U1e 200() edition. (U)

3
TOP SRCR!~T/-'JCOMJNT ~lTELLAR Wll'Ul-/NOFORN

on the constitutionally assigned powers 'olthe President. The Pres1dent has inherent
constitutional authority as Commander in Chief and sole organ for the nation in foreign affairs to
conduct warrantless surveillance of enemy forces for intelligence purposes to detect and disn1pt
anned auacks on the

4

TOP SECR.'H.'J-'/COMI!'!T STELLAR 'WJNIJ-'.q>IOFORl>l

TOP SECRET/-'ICOM!NT STELLAR 'N!J\~'/NOFOP~~!
Finally, in Part V, we examine STELLAR WIND content collection and meta data
collection (for both telephony and e-mail) under the requirements of the Fourth Amendment.
Allhough no statutory requirements prevent the President from conducting surveillance under
STELLAR WlND, electronic surveillance under STELLAR WfND must still comply with the
requirements of the Fourth Amendment. We reaffirm ou~ concluswns {i) that as to content
collection, STELLAR WIND activities come within an exception to the Warrant Clause and
satisfy the Fourth Amendment's requirement of reasonableness, and (ii) that meta data collection
does not implicate tbe Fourth AmendmerJl. The activities authorized under STELLAR WIND
. . II y pemuss1
. 'll
'"f' m'"'m)
arc tl 1us const1tut10na
J e. f"8"8!
~ ·~ ~.J
nu1
LJ

H

flACK GROUND (lJ)
A.

September 11, 2001 (U)

On September 1I, 2001, the al Qaeda terrorist network launched a set of coordinated
attacks along the East Coast of the United States. Four commercial airliners, each apparently
carefully selected because it was fully loaded with fuel for a transcontinental flight, were
llljacked by al Qaeda operatives. Two were targeted at the Nation's financial center in New York
and were deliberately flown into the two towers of the World Trade Center. The third was
targeted a! the headquarters of the Nation's armed forces, the Pentagon. The fourth was
apparently headed toward Washingtot1, D.C., when passengers stmggled with the hijackers and
the plane crashed in Pennsylvania. Subsequent dcbricfings of captured a! Qacda operatives have
confirmed that the intended target of this plane was either the White House or the Capitol
building, which suggests that its intended mission was a decapitation su·ike- an attempt to
eliminate critical governmental leaders by killing either the President or a large percentage ofthe
members of the Legislative Branch. These attacks resulted in approximately 3,000 deaths- the
highest single-day death toll from foreign hostile action in the Nation's history. They also shut
down air travel in the United States for several days, closed the New York Stock Exchange for
days, and caused billions of dollars in damage to the economy. (U)
On September 14, 200 l. the Presldent declared a national emergency "by reason of the
terrotist attacks at the World Trade Center, New York, New York, and the Pentagon, and the
continuing and immediate threat of furtl1er ~macks on the United States." Proclamation No.
7463, 66 Fed. Reg. 43, !99 (Sept. 14, 2001). The United States also launched a massive military
response, both at home and abroad. In the United States, combat air patrols were immediately
. established over major metropolitan areas and were maintained 24 hours a day until April 2002_,
The United States also inunediately began plans for a military response directed at al Qaeda's
base of operations in Afghanistan. On September 14, 200 l, both houses of Congress passed a
joint resolution authorizing the President "to use aU necessary and appropriate force against those
nations, organizations, or persons he determines planned, authorized, corrunitted, or aided the
terrorist attacks" of September I I. Congressional Authorization § 2(a). Congress also expressly

5
TOP SECRET/-'ICO!\flNT STELI,AR 'il/L"fD-/NOFORN

acknowledged that the attaci(S rendered it "necessary and appropriate" for the United States to
exercise its right "to protect United States citizens both at home and abroad," and ack110wledged
in particular that the "the President has authoriiy under the Constitution to take action to deter
and prevent acts of intemationalterrorism against the United States." !d. pmbl. Acting under his
constitutional auth01 ity ~s Commander in Chief, and with the support of Congre,s, the President
dispatched forces to Afghanistan and, with the cooperation of the Northern Alliance, toppled the
Taliban regime from power Military operations to seek out resurgent elements of the Taliban
regime and al Qaeda fighters continue in Afghanistan to this day. See, e.g., Mike Wise and Josh
Yl'hile, Ex-NFL Player Tillman Killed in Combat, Wash. Post, Apr. 24, 2004, at AI (noting that
"there are stillmore than 10,000 U.S. troops in the countty and fighting continues against
renmanls of the Taliban and al Qaeda"). tfj)
As the President made explicit in his Military Order of November 13, 2001, authorizing
the use of military commissions to try terrorists, the attacks of September l I "created a state of
atmed conflict." Military Order,§ !(a), 66 Fed. Reg. 57,833, 57,833 (Nov. 13, 2001); see also
Memorandum for Alberto R. Gonzales, Counsel to the President, from Patrick F."Philbin, Deputy
Assistant Attorney General, Office of Legal Counsel, Re: Legality of the Use ofMilitary
Commissions To 7.iy Terrorists 22-28 (Nov. 6, 2001) (concluding that attacks established a state
of anned c.o)lfiict pennitting invocation of the laws of wru:). Indeed, shortly after the attacks
NATO took the unprecedented step of invoking article 5 of the North Atlantic Treaty, which
provides that an "anned attack against one or more of (the parties] shall be considered an attack
against them alL" NorthAtlanti{. Treaty, Apr. 4, [949, art. 5, 63 Stat. 2241,2244,34 U.N.T.S.
243, 246; see also Statement by NATO Secretary General Lord Robertson (Oct. 2, 2001 ),
available at http://www.nato.intldocu/speech/2001/sOII 002a,htlll ("[I)t has now been determined
that the attack against the United States on 1 l September was directed from abroad and shall
therefore be regarded as an action covered by Article 5 oflhe Washington Treaty .. , ."). The
President also determined in his Military Order that a! Qaeda terrorists "possess both the
capabiuty and the intent.ion to undertake fUJther tewrist attacks against the United States that, if
not detected lUld prevented, wiU cause mass deaths, mass injuries, and mru;sive destruction of
property, and may place at risk the continuity of the operations of the Unite.d Sates Government,"
and concluded that "an extraordinary emergency exists for national defense purposes." Military
Order,§ !(c), (g), 66 Fed. Reg. at 57,833-34. (U)

B.

Initiation of STELLAR WIND (T8/iSI STL\W/NF)

Against this unfolding background of events in. the fall of 2001, there was substantial
concern that al Qaeda was preparing a further attack within the United States. AI Qaeda had
demonstrated its ability to infillrate agents into the United States undetected and have them carry
out devastating attacks, and it was suspected that furtl1er agents were likely already in position
within the Nation's borders. Indeed, to this day finding a] Qaeda sleeper agents in the United
States remains one of the top concerns in the war on te[Yorism. As FBI Director Mueller recently
stated in classified testimony before Congress, "(t]he task of finding and neutralizing al-Qa'ida
operatives that have already entered the U.S. and have established themselves in American
society is one of our most serious intdligence and law enforcement challenges.'' Testimony of

6

~lCOM1NT 8TEbb'.:R 'NII'H-'INOFORN

TOP SECRETf-'ICOMHH STELLAR WIND~
RobertS. Mueller, llJ, Director, FBI, Before the Senate Select Comm. on Intelligence 5 (Feb. 24,
2004) (S/ORCON,NF). (8/f!>!F)
To counter that threat, on October 4, 200 I, the President directed the Secretary of
Defense to us.o the capabilities ofth~ Department of Defense, in pll!tieular the National Securi

u"'''"' States. This program is known by the code nmne "STELLAR WIND."
The electronic surveillance activities that the President authorized under STELLAR WIND fall
into two broad categories: (I) interception of the contem of certain communications, and (2)
sucll as dial'
number
collection of headerlroulerladdreJsing info~motion on

The President further directed that the Department of Defense should minimize the
infonnation collected concerning American citizens,

7
TOP SECR.":T/- /COMlNT STELLAR W f N t - '/NOFORN
1

TOP 8ECRET/-iCOMfNT STELLAR~
The Presidetlt based his decision to initiate the program on specific findings concerning
the nature of the threat facing Ihe United States

magn
canst
destruction that could result from funher terrorist attacks; the need to detect and prevent such
attacks, particularly through effective electronic surveilla11ce that could be initiated swiftly and
with secrecy; the possible intntsion into the privacy of Ameli can citizens that mtght result from
the electronic surveillance being authorized; the absence of more narrm>ili
.

.

emergency
conducting the
noted, however, that he intended to infonn the appropliale members of the '"'''"""
of Representatives as soon as that could be done consistent with national defense neo::us_
Tl>Uc<T <'TLHffP,W\
O"TbfU IT 'IT'" J

E"',l:"'l:ii i O:t

C.

Reauthorizations and the Reauthorization P1·ocess (FS/JSI STLW//PfF)

As noted above, the President's Authorization of October 4, 2001, was limited in duration
and set its own expiration date for thirty days from the date on which it was signed. Since then,
the STELLAR WIND program has been periodically reallthorized by the Presiden~ with each
authorization lasting a defined time period, typically 30 to 45 days. The restriction of each
authorization to a limited duration has ensured that the basic findings described above upon
which the President assesses the need for the STELLAR WTND program are re-evaluated by the
'We note d1st, in. compliance wilh the Pr<.<ident's instructions, Ute chainnen and ranking minority
·
on STELLAR WIND
members of the House and Sooate
Director of the NSA in 2002 and 2003.

8
TOP SEC.RET/-fCOMINT--STELLAR W!NB-/NOFOIU'I

President and his senior advisars based on current infonnatioo every time that the program is
reauthorized. (TSA'£1 STLW/11W)

The reauthorization process operates as follows. As the period of each reauthorization
nears an end. the Director of Central fntelligence (DC!) prepares a memorandum for the
President outlining selected cun·enl information concerning the continuing threat that al Qaeda
poses for conducting attacks in the United States, as well as infonnation describing the broader
context ofal Qaeda plans to attack U.S. interests around the world. Both the DC! and the
Secretary of Defense review that memorandum and sign a recommendation that the President
should reauthorize STELLA]{ WfND based on the continuing threat posed by potential ten-mist
attacks within the United States. That recommendation is then reviewed by this Office. Based
upon the infomla!ion provided in the recommendation, and also taking into account infomtation
available to the President from all sources, this Office assesses whether there is a sufficient
fitctual basis demonstrating a threat of terrorist attacks in the United States for it to continue to be
reasonable under the standards of the Fourth Amendment for the President to authorize the
warrantless searches involved in STELLAR WIND. (Tite details of the constitutional analysis
this Office has applied are reviewed in Part V of this memorandum.) As explained in more detail
below, since the inception of STELLAR WIND, intelligence from various sources (particularly
from interrogations of detained al Qaeda operatives) has provided a continuing flow of
infonnation indicating that al Qaeda has had, and continues to have, multiple redundant plans for
·
executing further attacks within the United States. These strategies are at
pl<lllll,ing and
and some have been
inolude

re:v;;;w;ng
you that the proposed
reauthorization would satisfy relevant constitutional standards of reasonableness under the
Fourth Amendment, as described in this Office's earlier memoranda. Based. on that advice, you
h<tve approved as to form and legality each reauthorization to date, except for the Authorization
ofMill·ch 11, 2004 (discussed further below), and forw!IIded it to the President for bis action.
JT<:
II('I (l'lTllrtft,tr\
~o,; u,.., o A :J;;:;" nrtr7

Each authorization also ineh.tdes the instructions noted above to minimize tlte information
collected

D.

Modifications to STELLAR WIND Authority (TS/ISI 8TL'.'H/NF)

The scope of the authorization for electronic surveillance under STELLAR WIND has
changed over time. The changes are most easily understood as being d i v i d e - t hases: (i)
those that occwTed before March 2004, and (ii) those that occurred in March
2004.
(TS''SI STL""INF)
idl
tf

9

TOP SECRET/1-'COMINT--STBLLAR WIN I -/l'IOFOR."f

TOP SECRE'f>~-/COMINT STELLAR '1/!NE~OFORN

E.

Operation of the Program and the Modifications of Mareh
. IT{'I«'t
('Tt nl.'fllffiJ
~T"OJ HJ 1 i:JT LJ ,y, rr'tl""

"'~''""

more substa11lial series of changes to STELLAR WIND took plar.e in March
To understand these changes, it is necessary to understand some background
how the NSA accomplishes the collection activity authorized under STELLAR .
ITS
'I<'! '-"!"!
PIJ/>Wl
,,, r.o
o
_.n,IT<n:"";

Pages 12 14

Withheld in Full

Finally, the President, exercismg Ius constitutional authority under Article II
detem1ined that the Marcb ll, 2004 Authorization and all prior Authorizations were lawfiJI
·
authority tmder Article IT, including the Commander-in-Chief

15
+e-P-SECRET/l-ICOMINT STELLAR~

TOP SECREFfi./COMINT STELLAR vmlD~

In the March 19, 2004 Modification, the President also clarified the scope of the
authorization for intercepting the content of communications. He made clear that the
Authorization applied where there were

This memorandum analyzes STELLAR WIND as it currently operates. 11 To summarize,
that includes solely the following authorities:

(1)

the autl10rity to intercept the content of international communjcations "for which,
based on the factual and practical considerations of everyday life on which
reasonable and prudent persons act, there are reasonable grounds to believe ...
(that] a party to such conmwnic.atton is a group engage<! in international terrorism,
or activities in preparation therefor, or any agent ofsucb a group," as long as that

16

TOP 8ECR:ETt.1/COMINT 8TELLt'dt WINll-/NOliOR."I

group is al Qaeda, an atliliate ofal Qaeda or another intemat1onal terrorist group
that the President has detem1ined both (a) is in anned conflict with the Umted
States and (b) poses a threat olhostile action within tbe United States;"
(2)

(3)

F.

Pdor Opinions of this Office (U)

This Of!lce has issued several opinions analyzing
w'"'""" WIND program. On October 4, 200

17

TOP SECRET/-'iCOMINT STELLAR 1.~qN~'INOFORN

You have asked us to undertake a thorough review of I he current program to ensure that it
is lawful. (TS//SI STLW/fNF)
A.NALYS!S (U)

I.

STELLAR WIND Under Executive Order 12,333 (TSI/Sl ST[;W/-!NF)

II. .

171
c ou (Cll t c o11 ec('IOtl-""t at u t ory Ana lysiS. "w""
<TCiiPT Sfbll"lf'
".~"

J

In this Part, we tum to an analysis of STELLAR VlfJND coo tent collection under relevant
statutes regulating the government's interception of communications, specifically under the
fran1CWOrk established by the Foreign Intelligence Surveillance Act and title ofi.he Omnibus
Crime Control and Safe Streets Act of 1968. Generally speaking, FISA sets out several
authorities for the government to use in gathering foreign intelligence (including authority to
intercept conununications, conduct physical searches, and install pen registers); establishes
certain procedures that must be followed for these authorities to be used (procedures that usually
involve applying for and obtaining an order from a special court); and, for some of these
authorities, provides that the processes provided by FfSA are the exclusive means for t)Je
government to engage in the activity described. Title III and related provisions codified in title
18 of the United States Code provide authorities for the use of electronic surveillance for law
enforcement purposes. Because the statutory provisions governing \be interception of the
content of conununications are different under both regimes from those governing the
interception of dialing nwnbertrouting information, we analyze the authorities under STELLAR
WfND tllat relate to collection of meta data separately in Parts III and IV. (TS/181 STLW/INF)

m

Generally speaking, FrSA provides what purports to be, according to the tem1s of the
statute, the exclusive means for intercepting the content of communications in the United States
for foreign intelligence purposes. Specifically, FISA sets out a definition of"electronic
StUVeillance'' 15 - a definition that includes any interception in the United States of the contents of

ts I?ISA defineos '1[t:Jloct.tonrc surveillance" as:

(I) the acquisition by an clectronic 1 rnechanical; or other surveillance device of tl1e
content.:; of any wire or radio communic.arion sent by or intended (O be receive.d by a particular,
known United States person who is in the United States, ifrhe comenls are acqulred by
intentionally targeting tlmt United States person. under citcurnstances in wbich a person has a
reasonnble expectation of priva<:y acd a warrant would be required for law enforcement purposes;
(2) the acquisili<m by an eleclromc, mechamc•l, or olher surveillance device of tbe
contents of any wire conummication io or from a person in the United States. wif.hout the consent

19

~/COMfNT STELLAR V/INJG-1/!'!0FORI'i

TOP SECRET• • /COM!NT STELLAR WINil~
a "wire communication" to or (rom a person in the United States- and provides speciftc
procedures that must be tal lowed for the government to engage in "electronic surveillance" as
thus def\ned for foreign intelligenc-e purposes. As a general matter, for electronic smveillance to
be conducted, FISA requires that the A Homey General or Deputy Attomey General approve an
application for an order that must be submitted to a special Article Ill cot•rt created by FISAthe Foreign Intelligence Surveillance Court (FISC). See 50 U.S.C § 1804 (2000 & Supp. l
200 I ). 16 The application for an order must demonstrate, among other things, that there is
proballle cause to believe that the target is a foreign power or an agent of a toreign power. See
id. § 1805{a)(3)(A). It must also contain a certification from the Assistant to the President for
National Security Affairs or an officer of the United Stales appointed by the President with the·
advice and consent of the Se11ate and having responsibilities in the area of national secwity or
defense that the information sought is foreign intelligence infonnation (as de(ined by FISA), that
cannot reasonably be obtained by normal investigative means. See id. § 1804(a)(7). fiSA
further requires details about the methods that will be used to obtain the infom1ation and the
particular facilities that will be the subject of the interception. See id. § l804(a)(4), (a)(8).
(TSHSI STLVl//NF)
FISA expressly makes it a felony offense, punishable by up to 5 years in prison, for nny
person intentionally to conduct electronic surveillance under color of law except as provided by
statute. See 50 U.S.C. § 1809." This provision is complemented by an interlocking provision in
Title III- the portion of the criminal code that provides the mechanism for obtaining wire taps
for law enforcement purposes. Section 2511 of Iitle 18 makes it an offense, also punishable by
up to 5 years in prison, for any person to intercept a communication except as specifically
prOvided in that chapter. 18 U.S.C. § 25\l(l)(a), (4)(a). One of the exceptions expressly
pwvided is that it is not 1U1Jawful for "an officer, employee, or agent of the United States ... to
conduct electroaic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance
Act of 1978, a.s authorized by that Act'' Jd. § 251 l(2)(e) (emphasis added). On their face, these
provisions make FISA, and the authorization process it requires, the exclusive lawful means for
the Executive to engage in "electronic stuveillanc~::," as defined in the Act for foreign intelligence

nf any party thereto, if sucb •"'luis ilion occws in the United States.
(3) 01e intention•lacqlilsition by an electrcnic, rnechanic3t, or other surveillan~e device
of the contents of any radio connn.uuication, under cjrcwnstances in which a person has a
reasonable expectation of privacy and a warrant would be Fequired for law enforcemeat plllposes,
and if both the sender a11d a!! intended recipients are locate<) within the United States; or
(4) lhe lnstalladon or use of an electraok~ mecbrutical, or other survc.lllaove -device in the
United Stales fot monitoring to acquire information, ather than fmm a wire or a:1dio
communicatton, under circurns{a.nces in. which a person has 3- reasonable expec..l3tion of privacy
and a warrant would be re-quired for law enforcement purposes.
50 U.S. C.§ 1801(t} (1000 & Supp. 1200!). (TS/IS£ STLW//l'W)

"Section 104 ofFISA speaks only of the Attorney General, but •ection lOI(g) dcfmes "Attorney General"'
to incl•Jde the Deputy Attorney GeneraL S~e 50 U.S.C § t 801(g). (TSI/SJ STL\W/-Nf)
"See also 50 U.S.C. § 1810 (providing for civil liability as well). (Tl>/181 STll!.'//l>W)

20
TOP SECIUITN./COM!NT-6TBLLAR WINB-INOFORN

purposes. Indeed, this exclusivity is expressly emphasized in section 2511(2)([}, which states
that "procedures in this chapter or chapter 121 (addressing access to stored wire and electronic
communications and customer records] and the Foreign Intelligence Surveillance Act of 1978
shall be the exclusive means by which electronic surveillance, as defined in section l 0 I of such
Act, and the interception of domestic wire, oral, and electronic communications may be
conducted." Jd. § 251 J(2)(f) (2000 & Supp. l 200 1). (TSHSI STLWh'NF)

we
a proper anattys:ts
isolation. Rather, it must take into account the
Congressional Authorization for Use of Military Force. We conclude that the Congressional
Authorization is critical for STELLAR WIND in two respects. First, its plain tem1s can properly
be understood as an express authorization for surveillance targeted specifically at al Qaeda and
affiliated terrorist organizations. Tlte Congressional Aufhorization effectively exempts such
surveillance from the requirements of FlSA. Second, even if it does not provide such express
must not

'fOP SECRETJ• • lfCOM!NT STELLAR: WINJD~

authority, at a minimum the Congress1o11al Authorization creates sufficient ambigut!y conceming
tne application of FISA that it .iustifies applying the canon of constitutional avoidance to construe
the Congressional Authorization and FISA in conjunction such that FISA does not preclude the
surveillance ordered by the PresidcrH in S'fELLAR WfND. Finally, in Part U.C we explain that,
even if constitutional narrowing could not be applied to avoid a conllict between STELLAR
WIND and FISA, the content collection the President has ordered, which specifically targets
communications of the enemy in time of war, would be lawful because the restrictions of FISA
would be unconstitutional as applied in this context as an impennissible infringement on the
' '
I powers as c_amman der m
. CJ.
""'tm'
I, res1'd ent ' s cons{Jtuhona
uef . t'fC"S'
\V" ~ s=rr
, ""'n
,, ~' 1
A.

Prior Opinion> of this Office- Constitutional. Avoidance (U)

Reading FfSA to prohibit the content collection the President Ius ordered in STELLAR
WIND would, at a minimum, raiso serious doubts about Llte constitutionality of the statute. As
we explain in greater detail below, see Part II. C.!, the President has inherent constitutional
authority to conduct warrantless electronic surveillance for foreign intelligence purpose.$.
Indeed, it' was established at the time F!SA was enacted that the President had such an inherent.
constih1tional power. See, e.g., United States v. Butenko, 494 F.2d 593 (3d Cir. 1974) (en bane).
A statute tllat purports to eliminate the President's ability to exercise what the courts have
recognized as an inherent constitutional authority- particularly a statute that would eliminate his
ability to conduct tl\at surveillance during a time of anncd conflict for the express purpose of
thwarting attacks on the United States- at a minimum raises serious constitutional ques~ons.
(

T£'1 ll0T

~u,,uJ,

C:'rr
'(111Q;ffi)
...,~ ~n·t!T'iT'

When faced with a statute that may pre.sent an unconstitutional infringement on the
powers of the President, our first task is to detemJine whether the statute may be constmed to
avoid the constitutional difficulty. As the Supreme Court has explained, "if an othenvise
acceptable construction of a statute would raise serious constitutional problems, and where an
alternative interpretation of the stah1te is 'fairly possible,' we are obligated ID construe the statute
to avoid such problems." INS v. St. Cyr, 533 U.S. 289,299-300 (2001) (citations omitted); see
also Crowell v. Benson, 285 U.S. 22,62 (1932) ("When the validity of an act of the Congress is
drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal
principle that this Court will ursl ascertain whether a constmction of the statute is fairly possible
by which the question may be avoided."); Ash wander v. TVA, 297 U.S. 288, 345-48 (1936)
(Brandeis, J., concurring). In part, this rule of construction reflectS a recognition that Congress
should be presumed to act constitutionally and that one should not "lightly assume that Congress
intended to ... usurp power constitutionally forbidden it" Edward J. DeBar1o!o Corp. v.
Florida Gulf Coast Bldg. & Constr. Trades Go"ucil, 485 U.S. 568, 575 (1988). As a result,
'\vhen a particular interpretation of a statute invokes the outer limits of Congress' power, we
expect a clear indication that Congress intended that result." St. Cyr, 533 U.S. at 299; see also
NLRB v. Catholic Bishop of Chicago, 440 U.S. 490,506-07 (1979). (U}
This Office has always adhered to the rule of construction described above and generally
will apply all reasonable interpretive tools to avoid an unconstitutional encroachment uporr the

President's constitutional powers where such an interpretation is possible. Cf Fran/diu v.
Massachuseus, 505 U.S. 788, 800-01 (1992) ("Out of respect for the separation of powers and
the unique constitutional position of the President, we find that. textual silence is not enough to
subject the President to the provisions oftl1e [Administrative Procedure Act]. We would require
an express statement by Congress before assuming it intended the President's pcrfonnance of his
statutory duties to be reviewed for abuse of discretion."). As the Supreme Court has recognized,
moreover, the canoo of constitutional avoidance has particular importance in the realm of
national security and national defense, where the President's constitutional authority is at its
highest. See Departmenr of the Navy v. Egan, 484 U.S. 518, 527, 530 ( 1988) (explaining that
presidential authority to protect classified infonnation flows directly from a "constitutional
investment of power in the President" and that as a result "unless Congress specifically has
provided otherwise, courts traditionally have been reluctant to intrude upon the authority of U1e
Executive in military a11d national security affairs"); William N. Eskridge, Jr., Dynamic Sta/uiOJy
J;Ue!pretalion 325 (1994) (describing "[s]uper-stwng rule against congressional interference with
the president's authority over foreign affairs and national security"); cf Public Citizen v.
Departmelll ofJustice, 491 U.S. 440,466 (1989) ("Ow· reluctance to decide constitutional issues
is especially great where, as hen~. they concern the relative powers of coordinate brd.llches of
govemmenl."). Thus, this Office will typically constroe a general stah!te, even one that is
written inllllqualified terms, to be implicitly limited so as not to infringe on the President's
Conunander"in-Chief powers. Cf id. at 464-66 (applying avoidance canon even where statute
created no ambiguity on its face). Only if Congress provides a clear indication that it is
attempting to regulalt: the President's authority as Conummder in Chief and in the realm of
national security will we construe the statufc to apply-'~ (U)
The constitutional avoidance canon, however, can be used to avoid a serious
constitutional infirmity in a statute only if a construction avoiding the problem is "fairly
p0ssible," Crowelf v. Benson, 285 U.S. at 62, and not in cases where "Congress specilkally has
provided otherwise," Egan, 484 U.S. at 530. "Statutes should be constroed to avoid
constitutional questions, but this interpretive canon is not a license ... to rewrite language

For example, this Office bas concluded tbat, despite statu lory restrictions upon the use of Title n!
wiretap information and restrictions on the use of grand jury infOmJatioo under Federal Rule of Criminal Procedure
6(e), the President bas an inherent constitutional autbori(y to receive all foreign intelligence information in the
bands of the government necessary for him to fill flU his constitutional responsibilities and that statutes and rules
should be underslood to include an impJied exception so as no1 fO interfere witb that authority. See Memorandum
for the Deputy Anomey General from Jay 8. Bybee, Assistant Altorney Genera~ Oflice of Legal Counsel, Re:
E/Jett of the Patriot Acl 011 Distlosure to lhe Presideut aud Other Federal Officials of Grand Jury and Title Iff
!nfarmation Relating ro Nofiot~ul Security and Foreign Affairs I (July 22, 2002); Memorandum for Frances Fragos
Townsend, Counsel, Ofno.:c oflnteUigence Policy and Review, from RMdolpb D. Moss, Assistant Attorney
General, Office of Legal Counsel, Re: Title !(!Electronic Surveil/alice Material a"d tire Intelligence Communily 1314 (Oct. 17, 2000); Memorandum for Gerald A. Schroeder, Acting Counsel, Office of Intelligence Policy aod
Review, from Richard L. Sbiffrin, Deputy Assistant Attorney Genera t. Ofllce of Legal Counsel, Re: Grand Jul)•
Malarial and the Intelligence: CotlJIHWti{)l 14~17 (Aug. 14, I997);see also Rainbow Navigation, Inc. v. Deportmenr
ofrhe Nmy, 783 F.2d l 072, 1078 (D.C. Cir. t986) (Scalia, J.) (suggesting ibalan "essentially domesiic statute"
ntighr have robe underslood as «subject to an implied exccptio.n in deference to'' the Pr~idenes "constitutionalt_y
conferred powers as commander-in-chief' that' the statute was not meant to displace), (U)
19

23
TOP 8ECRET{1-COMINT STELLA.R Wii'!b-fNOfORN

~iCOMil\IT STELLAR~
enacted by the legislature." Salinas v. Uniled Stmes, 522 U.S. 52, 59-60 (1997) (internal
quotation marks omitted). If Congress has made it clear that it intends FISA to provide a
comprehensive restraint on the Executive's ability to conduct foreign intelligence surveillance,
then the question whether F!SA's constraints are unconstitutional cannot be avoided
(T8//SI STL.'JNfNF)

Pages 25 28

Withheld in Full

l3.

Analysis of STELLAR WIND Under FrSA Must Take Into Account the
September 2001 Congressional Authorization for Use of Military t<orce
{T£1l~)f
('ITT liillNa/
.
~
h
t.v~•--~••·
A.)

fnthe particular C<Jntext of STELLAR WIND, however, FlSA cannot properly be
examined in isolation. Rather, analysis must also take into account the Congressional
Autilorir..ation for Use of Military Force passed specifically in response to the September II
attacks. As explained below, that Congressional Authorization ts properly read to provide
expHcit authority for the targeted content collection undertaken in STELLAR WIND. Moreover,
even if it did not itself provide authority for STELLAR WIND, at a minimum the Congressional
Authorization makes the application of FISA in this context sufficiently ambiguous that the
canon of constitutional avoidance properly applies to avoid a conflict here between FISA and
STELLAR WlND. (T81i8I 8TLW14'W)

I.

Tbe Congressional AuthorizMioo provides express authority for
STELLAR WIND content collection (T81/SI STLW!/NF)

On September 18, 200! Congress voted to authorize the President ''to use all necessary
and appropriate Ioree against those nations, organizations, or persons he determines plarmed,
authorized, committed, or aided the terrorist attacks that occurred on September I 1, 200 l." ·
Congressional Authori1A1tion § 2(a). [n authorizing "all necessary and appropriate force"
(emphasis added), the Authorization necessarily included the use of signals intelligence
capabilities, which are a critical, Md traditional, tool for finding the enemy so !hat destructi vc
force can be brought to bear on him. The Authorization, moreover, expressly gave the President
authority to W1dert.ake activities botl1 domestically and overseas. Thus, the operative tenns state
that the President is authorized to use force "in order to prevent any future acts of international
terrorism against the United States," id., an objective which, given the recent attacks within the
Nation's bot·de1·s and the continuing use of combat air patrols throughout the country at the time
Congress acted, certainly contemplated the possibility ofmilitary action within the United States.
The preambulatory clauses, moreover, recite that the United Stales should exercise Its rights "to
protect United States citi1..ens both at. home and abroad." Jd. pmbl. (emphasis added). As
commentators have ac!mowledged, the broad terms of the Congressional Authorization "creal[ e]
very nearly plenary presidential power to conduct the present wru· on terrorism, through the use
of military and other means, Mainst enemies both abroad and possibly even within the borders of
the United States, as identified by the President, and without apparent limitation as to duration,
scope, and tactics." Michael Stokes Paulsen, YoUllgstown Goes to War, 19 Const. Comment.
215, 222"23 (2002); see also id. at 252 (stating Utat the Authorization "constitutes a truly
extraordinary congressional grant to the President of extraordinary discretion in the use of
military power for an indefinite period oftime"). (U)
The application of signals intelligence activities to international communications to detect
communications between enemy forces lllld persons withln the United States should be
w1derstood to fall within the Congressional Authorization because intercepting such
communications has been a standard practice of Com.mllll.ders in Chief in past major conflicts

29

whe;e there was any possibility of an auack on the United States. As early as the Civil War, the
"advantages of inlerceptiug militaJy telegraphic communications were not long overlooked.
[Confederate] General .feb Stuart actually had his own personal wiretapper travel akmg with him
in lite field'' Samuel Dash et al., The Eavesdroppers 23 (1971}. Shortly after Congress declared
war on Gem1any in World War I, President Wilson (citing only his constitutional powers and the
declaration of war) ordered the censorship of messages sent" outside the United States via
submarine cables, telegraph and telephone lines. See Exec. Order No. 2604 (Apr. 28, 1917)
(attached at Tab G). 13 A few months later, the Trading with the Enemy Act authorized
governmen1 censorship of"communica1ions by mail, cable, radio, or other means oftransmission
passmg between the United Slates and any foreign cowttry." Pub. L. No. 65"91, § 3(d), 40 Stat.
4! !, 413 (I 9! 7). On December 8, 1.941, the day after Pearl Harbor was attacked, President
Roosevel! gave the Director of the I'Bl "1empllrary powers to direct a!! news censorship and to
control all other telecommunications traffic in and out of the United States.'' Jack A. Gottschalk,
"Consistent with Security" ... A HlsiOIJ' ofAmerican Mifitmy Press Censorship, S Con1m. & L.
35, 39 (! 983) (emphasis added); see also Memorandum for the Secretary of War, Navy, State,
Treasury, Postmaster General, Federal Communications Commission, Jrom Franklin D.
Roosevelt (Dec. 8, 1941 ), in Official and Col!jidential File ofFBI Director J Edgar Hoover,
Microfilm Reel 3, Folder 60 (attached at Tab I). President Roosevelt soon supplanled that
temporary regime by establishing an Office of Censorship in accordance with the War Powers
Act of 1941. See Pub. L. No. 77-354, § 303, 55 Stat. 838, 840-41 (Dec. 18, 1941); Gottschalk, 5
Comm. & L. at 40. The censorship regime gave the govenunent access to "conununications by
mail, r;able, radio, or other means oftranso.ussion passing between the United States and any
foreign country." !d.; see.alsoExec. Order No. 8985, § 1, 6 Fed. Reg. 6625,6625 (Dec. 19,
194 l) (attached at Tab J). In addition, ti1e United Sk1tes government systematically listened
surreptitiously to electronic communications as part of the war effort. See Da~b.. Eavesdroppers
at 30 ("During [World War li] wiretapping was used extensively by military intelligence and
secret service personnel in combat areas abroad, as well as by the FBr and secret service in this
Coun·try ") ITCJf£I <'TLlJuq.m)
-

••

,

........

.L.bi.OO

~

...

~

...

In light of such prior wartime practice, the content collection activities conducted under
STELLAR WIND appear to fit squarely within the sweeping terms of the Congressional
Authorization. The use of signals intelligence to identify and pinpoint the enemy is a traditional
component of wartime military operations employed to defeat the enemy and to prevent enemy
attacks in the United States. Here, as in other conflicts, it happell.S that the enemy may use public
communications networks, and some of the enemy may already be in the United States. While
those factors may be present in this conflict to a greater degree than in the past, neither is novel.
More-over, both factors were well known at the time Congress acted. Wartime interception of
international communications on public networks to identify conmlUnications that may be of
assistance to the enemy should thus be understood as 011e of the standard methods of dealing

'l The scope of the order was later exteoded to cucompass messages sent to '"points witl10u1 the United
States or to pomls oo or near the Mexican border through which me>sages may be despatched for purpose of
evading the ceosorship herein provided." Ex.cc. Order No. 2967 (Sept. 26. 1918) (attached at Tab H).
(TSI/Sl STL\WfHF)

TOP 8BCRET/-COMH'IT STELLAR \'l!ND~fNOFORP-1

with the enemy that Congress can be presumed to have authorized in giving its approval to "all
necessary and appropriate force" that the President woul<.l deem required to defend the Nation.
Congressional Authorization§ 2(a) (emphasis added). 24 (TSI/Sl STL'N/lNF)
Content eollection under STELLAR WIND, moreover, is specilically targeted at
communications for which there is a reason to believe that one of the communicants is an agent
of al Qaeda or one of its affiliated organizations. The cotllent collection is thus, as the tenus of
the Congressional Authorizatio11 indicate, directed "against those ... organizations, or persons
(the President) cletennines planned, auth01ized, committed, or aided the terrorist attacks that
occurred on September I I, 2001" and is undertaken "in order to prevent any future acts of
intemalional terrorism against the United Stales."" Congressional Authorization§ 2(a). As
noted above, se.ction 111 of rt SA, 50 U.S.C. § 181 l, provides that the Preside>H may undertake
electronic surveillance without regard to the restrictions in FlSA for a period of 15 days after a
congressional declaration of war. The legislative history ofFISA indicates that this exception
was limited to 15 days because that period was thought sufficient for tht' President to secure
legislation easing the restricticms ofF! SA for the conflict at hand. See H.R. Conf. Rep. No. 95"
1720, at 34, reprinted in !978 U.S.C.CAN. 4048, 4063 (stating that "the conferees intend that
this period will allow lime for consideration of any amendment to tbifi act that may be
appropriate dur'Ulg a wartime emergency"). The Congressional Authorization fun.ctions as
precisely such legislation: it is emergency legislation passed to address a specific armed conflict
and expressly designed to authorize whatever military actions the Executive deems appropriate to
safeguard the United States. In it the Executive sought rutd received a blanket authorization from
Congress for all uses of the military against al Qaeda that might be nccessruy to prevent future
terrorist attacks against the United States. The mere fact that the Authorization does not
expressly amend FISA is not material. By its plain tenus it gives clear autl10rization for "all
necessary and appropriate force'' against al Qaeda that the President deems required "to protect
United States citizens both at home and abroad" from those (including al Qaeda) who "plrumed,
authorized, committed, or aided" U1e September ll atfacks. Congressional Authorization pmbL,

"In other c<>nlexts, we h<ve taken a similar appro•ch to illterpreting the Congrossiooal And1orization.
ThllS, for example, detaWag enemy combat.ants is also a >iandard part of warfare. As a rc..ul~ we bave concluded

iliot the Congressional Authorization expressly authoriza• such detentious, even or American citizens. See
Memoraudum for Daniel J. llry•nt, AssistantAttor»ey Genera!, Office ofLegislative Affairs, from John C. Yoo,
Depu<y Assistant Altomey General, Office of Lega! CounseL P.e: Applicability of 18 USC § 400 I(a) to MiHtary
Detention of United Slates Citizens 6 (J<fM 27, 2002); accord Hamdi v. Rumsfeld, 316 F.3d 450,467 (4!h Cir. 2003)
(holding that "capturing artd detain!ng enemy combatants is an inherent part of warfare" aud !hat the "'necessary
ao.d appropriate force' r:eferenced in the congrt"~Sionat resolution nocessarily includes:" such action), cert. granwd,
124 S. CL 981 (2004). Bul see Padilla v. Rumsfeld, 352 F.3d 695,722-23 (2d Cir. 2003) (holding 1ta1, except "in
the battlefield context whe:re detentions ate neces~H.H)' to ca.rry out the war," the Congressional Authorization is rtot
sufficiently '"dear" a~tt.l "unmistakable" ro vvenjde Ute resrrictions on detaining U.S. citizens in§ 4001}, cert
granted, 124 S. Ct. JJ53 (2004). (UJ
"-As noted above, see supra pp. J 6, 17, STELLAR WIND co~tte.nt-coHoction aulltmity i> ~irnited to
comnmnications suspecled to be those ofal Qacd.a, aJ Qae.<ia~af(Hiatedi organizations and olltcl international terrorist
groups tha{ the President determines
a.re in amted
che
of

31

~/€0MlNT STEbLAR WIJifll-INOFORN

§ 2(a). ll is perfec([y natural that Congress did not attempt to single out into subcategories every
aspect of the use of the armed forces it was authotizing, for as the Supreme Coun has recognized,
even in normal times outside the context of a crisis ''Congress cannot anticipate ami legislate
wilh regard to every possible action the President may find it necessary to take.'' Dames &
Moore v. Regan, 453 U.S. 654, 678 (1981). Moreover, when dealing with military affairs,
Congress may delegate in broader terms than it uses in olher areas. See, e.g., Loving v. United
States, 517 U.S. 748, 772 ( 1996)' (noting that ''the same limitations on delegation do not apply"
to duties that are linked to the Conunander-in·Chiefpower); cf Zemel v. Rusk, 381 U.S. I, l7
(1965) ("(B]ecause oft he changeable and explosive nature of contemporary intemational
relations ... Congress- in giving the Executive authority over matters of foreign affairs- must
of necessity paint with a bmsh broader than that it customarily wields in domestic areas.'').
Thus, the Congressional Authorization can be treated as the type of wartime exception that was
contemplated in FTSA's legislative history. Even if FISA had not envisioned legislation limiting
the application ofl'ISA in specific conflicts, the Congressional Authorization, as a later-in·timeand arguably more specific- statute must prevail over FISA to the extent of any inconsistency.'"
(TS//SI STL'.!J//fiF)
The Congressional Authorization contains another provision that is particularly
significant in tltis context. Congress expressly recognized that "the President has authority UJJder
the Constitution to take action to deter and prevent acts ofintemalional terrorism against the
United Stales." Congressional Authorization, pmbl. That provision gives express congressional
recognition to the President's inherent constitutional authority to take action to defend the United
States even without co11gressional support. 'D1at is a striking recognition of presidential authority
fi:orn Congress, for while the courts have long acknowledged an inherent authority in the
President to take action to protect Americans abroad, see, e.g, Durand v. Hollins, 8 F. Cas. Ill,
112 (C.C.S.D.N.Y. 1860) (No. 4136), and to protect the Nation from attack, see, e.g., Tfte Prize
Cases, 67 U.S. (2 Black) 635, 668 (1863), at least since the War Powers Resolution, Pub. L. No.
93-148,87 Stat. 555 (1973), codified at 50 U.S.C. §§ 1541-154&, there has been no comparable
recognition of such inherent authority by Congress, and certainly not a sweeping recognition of
authority such as that here. Cf 50 U.S.C. § 154l(c) (re~ognizing President's inherent
constitutional authority to use force in re;-ponse to .an attack on the United States). This
provision cannot be discounted, moreover, as mere exuberance in the immediate aftennath of
September 11, for the same tem1s w<:~re repeated by Congress more than a year later in the
Authorization· for Use ofMilitary Force Against Iraq Resolution of2002. Pub. L. No. 107-243,
l(t It 1s true that r~peals by UnpHca:tion are disfavored and we should attempt (o construe two statutes as
being "capable of Co·eXtsleuce." Ruckelsfldus v. Mrmsanto, 467 U.S. 986, 1017, lQ 18 ( t984). In Utis mstance,
however, the ordinary restrictions. in FISA cannot cootinue to apply if the Congressional Authorization is
appropriately consttUed to have its full effect The ordinary consuaillts in !'!SA would preclude tl>e Presldent From
doing preclscly what the Congtessionat Autlwrization allows: using "'all newssary and appropriate force ... to
prevent any future acts of intemationaf terrorism against the United States1 • by al Qaeda. Congressional
Autlwnzation § 2(a). Not only did tlte Congressional AuOwrization come later t!Jan FISA, but il is also more
specific in the sense that lt applies ouly to a particular con.fllot, whereas FISA is a general statute intended to govem
all "electronic surveillance" (as defined in 50 U.S.C. § t80J(f)). lfFISA and the Congressional Authorization
"lrreconcdahl[y] cor;flict," then the Coogress;onal Authorb.arioo must prevail over FlSA to the ext~-nt ofrbe
inconsistency. See /l.adwnower v. Touche Ross & Co., ~26 U.S. !48, 154 (1976). (T8HSI STL'NIINPJ

32
TOP SECRE'fl- /GOMINT STELLAH 'A'INf-INOFOR."'
1

TOP 8ECRET/. . /COMINT STELLAR 'NIN~A>IOFORN
pmb 1., II GStat. 1498, I.SOO (Oct. J6, 2002) ("[T)he President has authority uncle' the
Constitution to take action in order to deter artd prevent acts of international terrorism against the
United States .... "). That recognition of inherent authority, moreover, is particularly significant
in the FISA context because, as explained above, one of the specific amendments implemented
by FJSA was removing any acknowledgment from section 2511(3) oftille 18 of the Executive's
inherent constitutional authority to <;onduct foreign intelligence surveillance. At least in the
context of the conflict with 111 Qaeda, however, Congress appears to have acknowledged a
sweeping inherent Executive authority lo "deter and prevent" attacks that logically should
include the ability to carry out signals intelligence activities necessary to detect such platmed
attacks. (TI:/!Sf STLW//NF)
To be sure, the broad construction of the Congressional Authorization otlllined above is
not without some difCicultles. Some cmmtervailing considerations might be raised to suggest
that the Authorization should not be read to extend into the field covered by FISA ln particular,
shortly after the Authorization was passed Congress turned to conside1 a number of legislatjve
proposals from the Administration, some of which specifically amended FISA. See, e.g., USA
PATRIOT Act, Pub. L. No. 107-56, § 218, liS Stat. 272,291 (Oct. 26, 2001) (amending section
104(a)(7)(B) ofFISA to require that the acquisition of foreign intelligence information be a
"significant purpose" of the surveillance ocder being sought, rather than "the purpose"), Tlm~, it
might be argued that the Congres~ional Authorization call!1ol properly be construed to grant the
President authority to under1ake elcetToriic surveillance without regard to the restrictions in FISA
because, if the Congressional Authorization actually had applied so broadly, .the specific
amendments to FISA that Congress passed a few wecb later in the PATRlOT Act would have
been superfluous. (TS/!Sf=STLWJ/NF)
We do not think, however, that the amendments to FISA in the PATRIOT Act can justify
rumowing the broad tenns of the Congressional Authori211tion. To start with, the Authorization
addresses the use of!he armed forces solely in the context of the particttlar armed conflict of
which the September ll attacks were a part. To come within the scope of the Auth01ization,
surveillance activity must be directed "against those nations, organizations, or persons [the
President] detemlines plann&l, authorized, committed, or aided the terrorist attacks t!Jat occun·ed
on September 11, 200\. ;, Congressional Authorization § Z(a). The Autllorization thus eliminates
the restrictions ofFISA solely for that category of foreign intelligence surveillance cases.
Subsequent amendments to FISA itself, however, modified the authorities for foreign
intelligence surveillance in all cases, whether related to the particular armed conflict with al
Qaeda or not. Given the broader impact of such amendments, it cannot be said that they were
superfluous even if the Congressional Authorization broadly authorized electronic surveillance
direcLcd against al Qaeda and affiliated organizations. (TSf.'SI 8TL'.VHNF)
That understanding is bolstered by an exan1ination of the specific amendments to FISA
that were passed, because each addressed a sltortcomin.g in F!SA that warranted a remedy for all
efforts to gather foreign intelligence, not just for efforts in the context of an anned conflict, much
less the present one against al Qaeda. Indeed, some addressed issues that had been identifie.d as
requiring a legislative remedy long before the September ll attacks occurred_ For lhese

33

TOP SECRET/-'/COMfi>IT STELLAR 'HIND~
amendments, the September II attacks merely served as a catalyst for spurring legislative change.
that was required in any event. For example, Congress changed the standard required for the
certification rrom the government to obtain a FISA order from a certification that "the purpose"
of the surveillance was obtuining foreign intelligence to a certification that"a significant
purpose" ufthe sw veillauce was obtaining foreign intelligence. See USA PATRJOT Act§. 218,
115 Stat. at291 (codified at 50 U.S.C. §§ 1804(a)(7)(B), 1823(a)(7)(B)). That change was
designed to help dismantle the "wall" that had developed separating criminal investigations from
foreign intelligence investigations within the Department of Justice. See generafly fn ra Sealed
Case, 310 F.3d 717, 725-30 (Foreign Intel. Surv. Ct. of Rev. 2002). The "wall" had been
identified as a significant problem hampering the government's efficient use of foreign
intelligence information well before the September ll attacks and in contexts unrelated to
tenorism. See. e.g., Final Report of the Allorney General's Review Team on the Handling of the
Los Alamos National Labora.to1y Investigation 710, 729, 732 (May 2000); General Accounting
Office, FBI Intelligence lnvestigalions: Coordination Within Justice on Counlerilllelligence
Ct·iminal Matters Is Limited (GA0-0 1-780) 3, 31 (July 2001). Indeed, this Office was asked as
long ago as 1995 to consider whether, under the terms of FISA as it then e~tisted, an application
for a surveillance order could he successful without establishing that the "primary" purpose of
the surveillance was gathering foreign intelligence. See Memorandwn for Michael Vatis, Deputy
Director, Executive Office for National Security, from Walter Dellinger, Assistant Attorney
General, Office of Legal Counsel, Re: Standards for Searches Under Foreign Intelligence
Surveillance Act (Feb. 14, 1995). The PATRJOT Act thus provided the opportunity for
addressing a longstanding shortcoming in FISA that had an impact on foreign intellig<mce
gatl1eti.ng generally. (U)
Similarly, shortly after the PATRJOT Act was passed, the Administration sought
additional legislation expanding to 72 hours {from 24 hours) the time period Ute government has
for filing an application with the FISC after the Attorney General has authorized the emergency
initiation of electronic surveillance. See Intelligence Authorization Act for Fiscal Year 2002,
Pub. L. No. 107-108, § 314(a}, 115 Stat. 1394, 1402 (De<:. 28, 200l). That change was also
needed for the proper fiutctioning of FISA genera[ly, not simply for surveillance of agents of a!
Qaeda. In tl1e wake of the September l [ attacks, there was bound to be a substantial increase in
the volume of surveillance conducted under FfSA, which would strain existing resources. As a
result, it was undoubtedly recognized that, in order for the emergency authority to be useful as a
practical matter in any foreign intelligence case, the Department of Justice would need more than
24 hours to prepare applications after initiating emergency surveillance. Similar broadly based
considerations underpirmed the other amendments to FISA that were enacted in the fall of200I.
f"S~'SI
Sf! '"'ll>rr:)
i:~l {
~·~~,
j

J._

As a result, we conclude that the enactment ofamerrdments to FISA after the passage of
the Congressional Authorization does not compel a narrower reading of the broad tenns of the
Authorization. The unqualified terms of the Congressional Authorization are broad enough on
their face to include authority to conduct signals intelligence activity within the United States.
We believe that the Congressional Authorization can thus be read to provide specific authority
during this armed conflict that overrides the limitations in FISA. The Supreme Court has

34
TOP 8EGRETf-.fCOMI~1T STELLAR WlNl.l- 1/NOI<'ORN

repeatedly made clear that in the field of foreign affairs and particularly in the field of war
powers and national security, congressional enactments will be broadly construed where they
indicate support for the exercise of Executive authority. See. e.g., Haig v. Agee, 453 U.S. 280,
293-303 (1981); United States ex rei. Knauffv. Shauglm8Ssy, 338 U.S. 537,543-45 (1950); cf
Agee, 453 U.S. at29l (in "·the areas of foreign policy and national security ... congressional
silence is not to be equated with congressional disapproval"); Dames & Moore v. Regan, 453
U.S 654, 678-82 (1981.) (even where there is no express congressional authorization, legislation
in related field may be construed to indicate congressiOnal Hcquiescence in Executive action).
Here, the broad tem1s of the Congressional Authorization are easily read lo encompass authority
for signals intelligence activities directed against al Qacda and its affiliates. (TSl/8! STLWHNF)
2.

At a minimum, tlie Congressional Authorization bolsters the case for
applying the canou of constitutional avoidance (TS/ISI STLW//l>!F) ·

Even if we did not believe that the Congressional Authorization provided a dear result on
this point, at the very least t11e Congressional Authorizalion- which was expressly designed to
give the President broad aulhori ly to respond to the threat posed by al Qaeda as he saw fit creates a significant ambiguity concerning whether the restrictions ofFISA apply to electronic
surveillance undertaken in the context of the cOnflict withal Qaeda_ That ambiguity decisively
tips the scales in favor of applying the canon of constitutional avoidance to construe the
Congressional Authorization and FISA in combination so that the restrictions ofFISA do not
apply to the Presidem 's actions as Commander in Chief in attempting to thwart further terrorist
attacks on the United States. As noted above, in this wartime context the application of FISA to
restrict the President's ability to conduct surveillance he deems necessary to detect am! disrupt
further attackS would raise gr:ave constitutional questions. The additional runbiguity created by
the Congressional Authorization suffices, in our view, to warrant invoking the canon of
. constitutional avoiqance and thus justifies reading the Congressional Authorization to eliminate
the constitutional issues that would otherwise arise ifFISA were construed to limit the
Conunander in Chiefs ability to conduct signals intelligence to thwart terrorist attacks.
Application ofthe canon is particularly warranted, moreover, given Congress's express
recognition in the terms of its Authorization that the President has inherent authority under the
Constitution to take steps to protect the Nation against attack. The flnal preambulatory clause of
the Authorization squarely states that "tl1e President has authority under the Corrsti!ution to take
actiol1 to deter and prevent acts of international terrorism· against the United States."
CongressionafAuthorization pmbl. As commentators have recognized, tltis clause "constitutes
an extraordinarily sweeping congressionaJ recognition of independent presidential constitutional
power to employ the war power to combat terrorism." Paulsen, 19 Const. Comment. at 252.
That congressional recogrtition of inhenmt presidential authority bolsters the conclusion that,
when F!SA and the Congressional Authmizatioo are read together, the canon of constitutional
avoidance should be applied because it cannot &e said that Congress has !Ulequivocally indicated
an inteution to risk a constitutionally dubious exercise of power by rest1icting the authority of the
Commander in Cb.i.efto conduct signals intelligence in responding to the terrorist attacks.
'n;nsr
\
" STL"'J/fW)
~

..

35

In sum, the constitutional avoidance canon is properly applied to conclude that the
·Congressional Authorization removes the restrictions of FISA for electronic surveillance
undertaken by the Department of Defense and directed "against those nations, organizations, or
persons [the President] determines plaf\11 • • • • • •
t
'"'''rre,tl on September ll, 200 L"11
ts that description." (TSHSl STL'.W/NF)

·······i·

we

belie~·e

at a
npproach to
WIND tnust also
take into ac.count the possibility that t'lSAmay be read as prohibtting the electronic surveillance
activities at issue here. We t1m1 to that analysis below. (TS//SI STLW/t!>W)

36
TO!' SECilET/1-/COMINT 8TI5LLAR Wll'II>-'/NOFO.RN

TOP ?>ECRET/-1/COMI!'IT STELLAR WIND~
C.

[f FISA Pur·ported To Prouibit Targeted, Wartime Surveillance Against tlw

Enemy Under STELLAR WfND, It Would Be Unconstitutional as Applied

(TS//8I STLWHNF)
rssues that arise if •I
does, iJ1
must next examine
whether
by the
Commander in Chief in the midst of an anned conflict and designed to detect and prevent attacks
upon the United Stales, is unconstitutional. We conclude !hat it is. (TSH81 STb¥/JI.J>fF)
L

Even in peacetime, absent congressional action, the President has
inherent constitutional authority, consistent with the Pourtb
Amendment, to order warrantless foreign intelligence surveillance
ETS"SI -S'fb"ulfm)
r,,,
.._,~

"'~

We begin our analysis by setting to one side for the moment both the particular wartime
context at issue hen: and the statutory constraints imposed by FISA to examine the pre~existing
constitutional authority ofihe President in this field in the absence of any action by Congress. It
has long been established that, even in peacetime, the President has an iaherent constitutional
authority, consistent with the Fourth Amendment, to conduct warrantless searches for foreign
intelligence purposes. T11e Constitution vests power in the President as Conunander in Chief of
the arme<J forces, see U.S. Canst. art. rr, § 2, and, in making him Chief Executive, grants him.
· authority over the conduct of the Nation's foreign affairs. As the Sttpteme Court has explained,
"[t]hc President is the sole organ of the nation in its external relations, and its sole representative
with foreign nations." United States v. Curtiss" Wright Export Co1p., 299 U.S. 304, 319 (1936)
(internal quotation marks and citations omitted). These sourc-es of authority grant the President
inherent power both to take measures to protect national security information, see, e.g.,
Depm·tment ofthe Navy v. Egan, 484 U.S. 518,527 (1988), and more generally to protect the
security of the Nation from foreign attack. Cf T11e Prize Cases, 67 U.S. (2 Black) 635,668
(1863). To carry out these responsibilities, Ute President must have authority to gather
information necessary for the execution of his office. Tbe Fotmders, after all, intended the
President to be clothed wiU1 all authority necessary to carry out the responsibilities assigned to
him as Commander in Chief and Chief Executive. See, e.g., The Federalist No. 23, all47
(Alexander Hamilton)(Jacob E. Cooke ed. 1961) (explaining that the federal govemment will be
"cloathed with all the powers requisite to the complete ex:ecution of its trust''); id. No. 41, at 269
(James Madison) ("Security against foreign danger is one of the primitive objects of civil
society.... Tl1e powers requis[te for attaining it mttSt be effectually confided to the frederal
councils."); see also Johnson v. Eisenlrager, 339 U.S. 763, 788 (1950) ('The first of the
enumerated powers of the President is that he shall be Commander-in-Chief of the Anny and
Navy of the United States. And, of course, grant of war power includes all that is necessary and
proper for carrying these powers into execution." (citation omitted)). Thus, it has long been
recognized that he has authority to hire spies, see, e.g., Totten v. United States, 92 U.S. I 05, 106
(1876), and Ius authority to collect intelligence necessary for the conduct of foreign affairs has
frequently been acknowledged. See Chicago & S Air LitiiJS v. Waterman S.S. Corp., 333 U.S.

TOP SECRET/I. fCOMINT STELLAH WXN~I,<NOFORN

1OJ, Ill (1948) ('The President, both as Commander-in-Chief and as the Nation's organ for
foreign affairs, has available intelligence services whose reports neither are nor ought to be
published to the world."); Curtiss-Wrighl, 299 U.S. at 320 ("He has his confidential soucces of
infonnation. He has his agents in the fonn of diplomatic, consular and other officials.").
(TS'l£1
STL"'""F')
lo
7TH.~
J.

When it comes to collecting foreign intelligence infonnation within the United States, of
course, the President must exercise his inherent authorities consistently with the requirements of
the Fourth Amendment. 29 Detem1ining the scope of the Presidenl's inherent constitutional
authority in this field, U1erefore, requires analysis ofthe requirements of the Fourth Amendment
-at least to the extent of determining whether or not the Fourth Amendment imposes a warrant
requirement on searches conducted for foreign intelligence purposes. I fit does, then a statute
such as FiSA that also imposes a procedure for judicial authorization cannot be said to encroach
upon authorities the President would otherwise have]• (TS/fSI STL¥lh'NF)
The Fourth Amendment prohibits "unreasonable searches and seizures'' and directs that
"no Warrants shall issue, but upon probable cause." U.S. Coost. amend. IV. [n "01e criminal
context," as the Supreme Court has pointed out, "reasonableness usually r<;quires a showing of
probable cause" and a warrant. Board ofEduc. v. Earls, 536 U.S. 82.2, 828 (2002). The warrant
and probable cause requirement, however, is far fi·om universal. Rather, tbe "Fou1tb
Amendment's central r<;quirement is one of reasonableness," and the rules the Court has
developed to implement that requirement "[s]ometimes _.. require warrants." nlinois v.
McArthur, 531 U.S. 32.6, 330 (2001); see also, e.g_; Earfs, 536 U.S. at 828 ("The probable cause
standard, however, is peculiarly related to criminal investigations aJid may be w1suited i.o
determining the reasonableness of administrative searches where the Govenunent seeks to
preveltl the development of hazardous conditions." (emphasis added; internal quotation marks
omitted)). (LJ)
[n particular, the Supreme Court has repeatedly made cleac that in situations i.nvolving
"special needs" that go beyond a routine inte{est in Jaw enforcement, there may be exceptions to
the warrant requirement. Thus, the Court has explained that there are circumstances '"when
spocial needs, beyond the nonnal need foe law enforcement, make U1e warrant and probablecause requirement impracticable."' Vemonia Sch. Dist. 47Jv. Acto1•, 515 U.S. 646,653 (l995)
(quoting Gr!ffin v. Wisconsin, 483 U.S. 868, 873 (1987)); see also McArthur, 531 U.S. at 330
("We. nonetheless have made it cleac that there are exceptions to the war.ran.t requirement. Wheu
faced with special law enforcement needs, diminished expectations of privacy, minimal

;_'"J The Fourth Amendment doe.s not prorect aliens outside tl1e Uuited States. See (hl.ited Sratcs v. Verd1.1g0·
Urquidez, 494 U.S. 259 (1990). (U}

" We assume for pwposes of the discussion bere that conteol collection under STELLAR WIND is subject
to the requuements of the Fourth Amendmeol. ln Part V of this memorandwn, we address !he reasonableness under
the Fourth Amendmoot of !he specific kinds of collection that occur <~.nder STELLAR WIND. In addition, we note
!hal there may be a basis for concluding that STELLAR WIND is a ntilitruy operation 10 which !he Fourth
Ameodrnenl does not even apply. See infr<l n.84. (T&IISI STI~\Wf!>fF)

38
TOP SECRET/-/COMJNT STELLAR ¥/IND_.it'IOVOR!l>l

TOP SECRETN-'/GOMTNT STELLAR W!ND-1-i'!OFOR."I
intmsions, or the like, the Court has lound that certaw general, or individual, circumstances may
render a warrantless search or seiz.ure reasonable."). It is difficult to encapsulate in a nutshell tbe
different circumstances the Court has found qualifying as ''special needs" justifying warrantless
searches. But generally when the govenuncm faces an increased need to be able to react swiftly
and flexibly, or when there are interests in public safety at stake beyond the interests in Jaw
enforcement, the Court has found the warrant requirement inapplicable. (U)
Thus, among other things, the Court has permitted warrantless searches lo search property
of students in public schools, see New Jersey v. TL.O., 469 U.S. 325, 340 (1985) (noting that
warrant requirement would ''unduly interfere with the maintenance of the swifi and informal
disci.plinary procedures needed in the schools"), to screen athletes and students involved in extracurricular activities at public schools for drug use, see Vernonia, 515 U.S. at 654-655; Earls, 536
U.S. at 829-38, and to conduct dme testing ofr~ilrnad personnel involved in train accidents,
see Skinner v. Railway Labor Exewtives 'Ass 'n, 489 U.S. 602, 634 (1989). Indeed, in many
special needs cases the Court has even approved suspicimzless searches or seizures. See. e.g.,
Earls, 536 U.S. at 829-38 (suspicionlcss drug testing of public school students involved in extracurricular activities); Michigan Dep 't of State Police v. Sitz, 496 U.S. 444, 449-55 (1990) (road
block to check all motorists for signs of dnmken driving); United States v. Maninez-Fuerie, 428
U.S. 543, 562 (1976) (road block near the border to check vehicles for illegal immigrants). But
see City ofIndianapolis v. Edmond, 53[ U.S. 32, 41 (2000) (striking down use of roadblock to
check for narcotics activity because its "primary purpose was to detect evidence of ordinary
crimina[ wrongdoing"). (U)
The field of foreig11 intelligence collection presents another case of"special needs beyond
the nomtal need for law enforcemetlt" where the Fourth Amendment's touchstone of
reasc>nableness can be satisfied without resort to a warrant. In foreign intelligence investigations,
the targets of surveil lance are agents of [oreign powers who may be speciafly trained in
concealing their activities from our government and whose activities may be particularly difficult
to detect. The Executive requires a greater degree of flexibility in this field to respond with
speed and absolute secrecy to the ever-changing array of foreign threats it faces. TI1e object of
searches in this field, moreover, is securing infonnation necessary to protect the national security
from the hostile designs of foreign powers, including even the possibility of a foreign attack on
the Nation. (TS/i8I STL'N/INF)
Given those distinct interests at stake, it is not surprising that every federal court that has
ruled on the question has conduded that, even in peacetime, the President has inherent
constitutional authority, consistent with the Fourth Amendment, to condttct searches for foreign
intelligence purposes without securing a judicial warrant. See United States v. Clay, 430 F.2d
165, 172 (5th Cir. 1970); Unilad States v. Brown, 484 F.2d 418 (5th Cir. 1973); United States''·
Butenko, 494 F.2d 593 (3d Cir. 1974) (en bane); United States v. Buck, 548 F.2d 871, 875 (9th
Cir. 1977); United States v. Truong Dinh Hung, 629 F'.2d 908 (4th Cir. 1980). But cf Zweibon v.
Mitchell, 516 F.2d 594 (D.C. Cir. 1975) (en bane) (dictuJJI in plurality opinion suggesting that
W!UTant would be re.qulred even in foreign intelligence investigation). (TS/iSl STLWJ/NF)

39
TOP SSCRE~'/COM£NT---8TELLAR WINO-fNOFORN

TOP

SEC~'ICOM[f'IT STELLAR 'A'IND~

To be sure, the Supreme Court has Jell this precise question open. tn Unitea States v.
United States District Court, 407 U.S. 297 ( 1972) (Keith), the Supreme Court concluded that the
Fourth Amendment's warrant requirement applies to investigations of" purely domeslic threats to
security- such as domestic terrorism. The Couf1 made clear, however, that it was not addressing
Executive authority to conduct foreign intelligence surveL!lance: "[T]he instant case requires no
judgment on the scope ofthe President's surveillance power with respect to the activities of
foreign powers, within or without this country." !d. at 308; see also id. al32!·322 & n.20 ("We
have not addressed, and express no opinion as to, the issues which may be involved with respect
to activities of liJreign powers or their agents.'"). (TSHS! STLW//NF)
Indeed, four of the courts of appeals noted above decided- after Keith, and expressly
taking Keith into account- that the President has inherent authority to conduct warrantless
surveillance in the foreign intelligence context. As the Fourth Circuit observed in Truong, "the
needs of the executive ilrC so compelling in the area of foreign intelligence, unlike the area of
domestic secutity, that a uttifonn warrant requirement would ... unduly frustrate the President in
carrying out his foreign affairsresponsibililies." 629 F.2d at 913 (intemal quotation marks
omitted). The court pointed out that a warrant requirement would be a hurdle that would reduce
the Executive's flexibility in r~ponding to foreign threats that "require the utmost stealth, speed,
and secrecy." ]d. It also would potentially jeopardize security by increasing "the chance of leaks
regarding sensitive executive operations." !d. It is true that the Supreme Court had discounted
such concems in the domestic security context, see Keith, 407 U.S. at 319-20, but as the Fourth
Circuit exvtained, iu dealing with hostile agents of foreign powers, the concerns are arguably
rnore compelling. More important, in the area of foreign intelligence the expertise of the
Executive is paramount. While courts may be well-adapted to ascertaining whether there is
probable cause to believe that a crime under domestic law has been commined, they would be illequipped to review executive determinations concenti.ng the need to coudltct a particular search
or surveillance to secure vital foreign intelligence. See Tmong, 629 F.2d at 913-14. Cf CurtissWright, 299 U.S. at 320 ("[Tite President] has the better opportunity of knowing the conditions
which prevail in foreign countries, and espe.cial!y is this true in time of war. He has his
confidential sources of information."). It is not only the Executive's expertise that is critical,
moreover. As the Fourth Circuit pointed out, t11e Executive has a constitutionally superior
position in matters pertaining to foreign affairs and national security: ''Perhaps most crucially,
the executive branch not only bas superior expertise in the area of foreign intelligence, it is also
constitutionally desigrul.ted as the pr<:l·erninent authority in foreign affairs." Truong, 629 F.2d at
914. The court thus concluded that there was an important separation of powers interest in not
having the judiciary intrude on the field of foreign intelligence collection: "(T]he separation of
powers requires us lo acknowledge the principal responsibility of the President for foreign affairs
and concomitantly for foreign intelligence surveillance." !d.; cf Haig v. Agee, 453 U.S. 280, 292
(1981) ("Matters ·intimately related to foreign policy and national security are rarely proper
subjects for judicial intervention."). We agree with that analysis." (TSYS! STLW/INF)

lt In additio~ there is a funher basis on whlcll Keilh is readily distinguished. As Kettli lllade clear, one of
the significant concerns driving the Coun•s conclusion in the domestic securi~y context was the inevitable

connection between perceived threa!S to domestic security and political dissent. As the Court explained: "Fourtl1

40
TOP 5ECRET/-1'COMINT STELLAR WII'Il>~

TOP 8ECRET/-'ICOMINT STELLAR '1/ff'!J.)~
In the specific context of STELLAR WIND, moreover, the case for inherent executive
authority to conduct surveillance in the absence of congressional action is substantially ~I ranger
for at least two reasons. First and foremost, all of the precedents outlined above addressed
inJ1erent executive authority under the foreign affairs power to conduct surveiHance in a 1'011/ine
peacetime context. 11 They did not even consider the authority of the Comrnand.er in Chief to
gather intelligence in the context of an ongoing armed conOict in which the mainland United
Slates had already been under attack and in which the intelligence-gathering efforts at issue were
designed to thwart further anne<:! at!acks. The case for inherent executive authority is necessarily
much stronger in the latter scenario, which is precisely the circumstance presented by STELLAR
n
WIND . (TS'I£1
STL""fi'W)
~rn

Second, it also bears noting that in the I 970s the Supreme Court had barely started to
de.velop the "special needs'' jurisprudence of warrantless searches under the FoLu1h Amendment.
The first case usually considered part of that line of decisions is United Stales v. MartinezFuerte, 428 U.S. 543, decided in I 976- after three courts of appeals decisions addressing
warrantless foreign intelligence surveillance had already be(m handed down. The next Supreme
Court decision applying a rationale dearly in the line of"speoial needs" jurisprudence was not
until 1985, see New Jersey v. T.L.O., 469 U.S. 325,31 and the jurisprudence was not really
developed until the 1990s. Thus, the courts of appeals decisions described above all decided in
favor of an inherent executive authority to conduct warrantless foreign intelligence searches even
before the Supreme Court had claxified the major doctrinal developments in Fourth Amendment
law that now provide the clearest support for such an authority. (TSHSf STLWiiNF)
Executive practice, of course, also demonstrates a consistent understanding that the
PreSldent has inherell! constitutional authority, in accordance with the dictll.tes of the Fourth
Amendment, to conduct warrantless searches and surveillance within the United States for

AmeBdment protections be~:Qme the more necessary when the !llrgciS of official surveillance may be those suspected
ofunorthodmcy in their political beliefs. The danger to political dissent is acute wl1ere the Government al1empts to
act tmder so vague a concept ns the power to protect 'domestic security.'" Keilh, 407 U.S. at 314; ••• also id. at 320
("Security surveillances are especially sensitive because of the inherent vagueness of the domestic security concept,
lbc necessarily broad and continuing nature of intelligence gailiering, lllld the temptation to util.ite such
surveillances to oversee political dissent."). Surveillance of domestic groups necessarily raiseo • First

Supreme Court S conc-lusion that the warrant requirenlCilt should a.pply in the domestic securily context is thvs
simply absent in the foreign intelligence realm. (T&HSI STL\WA>!f)
1

JZ The surveillance in Truong, white ln some sense connected to the Vietnam co.o.flict and hs aftermath,
took place io t977 and 1978,see 629 F.2d at 912, after tl1e close of active hostilities. (TS//81 S1LW/A>W)

"The tenn "spec.al oeeds" appears to have been coined by Justice Blackm<lll in b.is concurrence in r.L.O
See 469 U.S. at 351 (Btackmun, J., concurring in judgment). (TSI/S[ STLWliNF)

41

TOP SECRE1'/-/COMINT-8TELLAR ¥/lNr-/NOFORN

TOP SECRE~4'COMlNT .STELLAH '.Vll'lll~fi>!OFORN

foreign intelligence purposes. Wiretaps for such purposes have been authorized by Presidents at
leas! since the administration of Roosevelt in 1940. See, e.g., United States v. Uniled States
District Court, 444 F.2d 651, 669-71 (6th Cir. 19? l) (reproducing as an appendlx memoraoda
from Presidents Roosevelt, Tntman, and Joltnson). Before the passage of FfSA in 1978, nil
ioreign intelligence wiretaps and searches were conducted without any judicial order pursuant to
the President's inherent authority. See. e.g., Truong, 629 F.2d at 912-14; Umted Slates v. Bill
Laden, 126 F. Supp. 2d 264,273 (S.D.N.Y. 2000) ("Warrantless foreign intelligence collection
has been an established practice of the Executive Branch for decades."). When F!SA was first
passed, 01oreover, it addressed solely electronic sun,eillance and made no provision for physical
searches. See Pub. L. No. 103-359, § 807, 108 Stat. 3423,3443-53 (1994) (adding provision for
physical searches). As a result, after a brief interlude during which applications for orders for
physical searches were made to the FlSC despite the absence of any statutory procedure, the
Executive continued to conduet searches under its own inherent authority_ Indeed, in 1981, the
Reagan Administration, after filitlg an application with the FISC for an order authorizing a
physical search, filed a memorandum with the court explaining that the court had no jurisdiction
to issue the requested order and explaining that the search could properly be conducted without a
warrant pursuant to the President's inherent constitutional authority. SeeS. Rep. No. 97-280, at
14 (I 981) ("The Department ofJustice has long held the view that the President and, by
delegation, the Attorney General have constitutional authority to approve warrantle.ss physical
searches directed against foreign powers or their agents for intelligence purposes."). This Office
has also repeatedly recognized the constitutional authority of the President to engage in
warrantless surveillance and searches for foreig:r.1 intelligence purposes." (TSHSI 8TLW/II'IF)

Int~/ligellce

Sun>ei/lmrce- Use of Television- Beepers, 2 Op. O.L.C. 14, 15 (t978) ("[T]hc President can authorize warrantless
eleclronic surveillance of an agent o( a foreign power, pursuant to his constitutional power to gather foreign

42
TOP SECRET/.'fCO!IU~ff 8TELLAJ< WINB-'fi'IOFOR."-1

These examples, too, all relate to assertions of executive authority in a routine, peacetime
context. Again, the President's authority is necessanly lleigbtened when he acts during wartime
as Commander-in-Chief to protect the Nation from attack. Thus, not surptisingly, as noted
above, Presidents Wilson and Roosevelt did not hesitate to assert executive authority to conduct
surveillance -through censoring communications- upon the outbreak oiwar. See sttpra p. 30.
(TS//SI STL\W/NF)
2.

FfSA is uncoostiiutional as applied io this coo text (TSNSI STL'.VI/NF)

Vlhi!e it is thus uncontrovcrsialthai the President has inherent aulhority to conduct
warrantless searches for foreign intelligence purposes in the absence of congressional action, !he
restrictio11s imposed in FJSA present a distinct question: whether the Presidc11t's constitutional
a<~thority in this 1\eld is exclLisive, or whether Congress may, through FlSA, impose <1
requirement to secure judicial authorization for such searches. To be more precise, analysis of
STELLAR WIND presents an even narrower question: namely, whether, in the context of an
ongoing armed conflict, Congress may, through FISA, impose restrk:tions on the meaos by
which the Commander in Chie.fmay use the capabilities ofthe Departll!e11t of Defense to gather
intelligence about lhe enemy in order to thwart further foreign attacks on the United States.

(TSJISI STLW//NF')
As discussed below, the conflict of congressional and executive authority in this context
presents a difficult question -one for wltich there are few if any precedents directly on point in
the history of the Republic. In almost every previous instance in which the cotmtry has been
threatened by war or inm1inent foreign attack and the President has taken extraordinary measures
to secure the national defense, Congress has acted to support the Executive through affinnative
legislation granting the President broad wartime powers,;' or else the Executive has acted in

"As explained above, we believe that the bettor constn1ction of the Congressional Authorization for Use
of Military Force in lbe present coutlicl is tlmt it also reflects preclsely sucb a congressional endorsement of
Exccuuve action and authorizes the cootml cottution undertaken in STELLAR WIND. In thls part or our analysiS,
however, we are assuming, tn the attemarive, that the Authori7.atioo ca.unot be read so broadly and that FISA by ils

43

TOPSECRET/-/COMIN'f..STELLAR~

exigent circumstances in the absence of any congressional action whatsoever (for example,
President Lincoln's actions in 1861 in proclaiming a blockade of the southern States and
instituting conscription). In the classic separation of powers analysis set out by Juscice Jackson
in )'owzgslown, such circumst~nces describ~ either "category I" situations- where the legislature
has provided an "express or implied authorization" for the Executive- or "category Il" situations
-where Congress may have some shared authority over the subject, but has chosen not to
exercise it. See Youngs1ow11 Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-37 (1952); see also
Dames & Moore v. Regan, 453 U.S. 654, 668-69 (1981) (generally following Jackson's
framework). Here, however, we confront an exercise of Executive authority that falls into
"category !II" of JusticeJackson's classification. See 343 U.S. at 637-38. The President (for
purposes ofthis argument in the alternative) is seeking to exercise his authority as Commander in
Chief to conduct intelligence smveillance that Congress has expressly restricted by statute.
fCS"SI <:;S'F ""IJ>!F}
vi?ri ~
: 1rY

,&....

At bottom, therefore, analysis of the constitutionality ofFISA in the context of
STELLAR WIND centers on two questions; (i) whether the signals intelligence collection the
President wishes tO undertake is such a c<>re exercise of Commander-in-Chief control over the
anned forces during armed conflict that Congress cannot interfere with it at all or,
(ii) alternatively, whether the particular restrictions imposed by F!SA are such that their
application would impermissibly frustrate the President's exercise of his constitutionally
assigned duties as Commander in Chief. (1'8//SISTLWI/NF)
As a background for that context-specific analysis, however, we think it is useful first to
examine briefly the constitutional. basis for Congress's assertion of authority itJ FISA to regulate
tbe President's inherent powers over foreign intelligence gathering even in the general, peacetime
context. Bven in that non-wartime context, the assertion of authority in FISA, and in particular
the requirement that the Execuli ve seek orders for surveillancdrom Article ill courts, is not free
from constitutional doubt. Of course, if the c<>nstitutionality of some aspects of FISA is open to
any doubt even i.n the run-of-the-mill peacetime context, Jt follows a fortiori that the legitin1acy
of congressional encroachments on Executive power will. only be more difficult to sustain where
they involve trenching upon decisions of the Corrunander in Chief in the midst of a war. Thus,
after identifYing some of the questions surrounding the congressional assertion of authority in
FfSA generally, we proceed to the specific analysis ofFISA as applied in the wruiiroe context of

81--ELLAR wmo·.

1

"'S"sr s"" "'"'W)

\~

ir

a.

..,-

J..LJfrlzJ

Even outside tbe conte>.:t of wartime surveillance of the enemy,
the scope of Cc:mgress's power to •·estrict the President's
inherent authority to conduct foreign intelligence surveillance
is unclear (TSI/SI 8TLV/JfNf)

To frame the ru1alysis of the specific, wartime operation of STELLAR WIND, it is
important lo note at the outset that, even in the context of general foreign intelligence collection

tenns prohibits the STeLLAR WIND content collection absent "' ordct· from the FISC. (T&!IS! STLW/fNF)

44

TOP 8JtCREH-'JCOMfNT STELLAR WIND~

.

in non-wartime situations, the source and scope of congressional power to restrict executive
action through F!SA is somewhat uncertain. We start from the fund,uncntal proposition that in
assigning to the President as Chief Executive the preeminent role in handling the foreign affairs
ofthe Nation, the Constitution grants substantive powen to the President. As explained above,
the President's role as sole organ for the Nation has long been recognized as carrying with 1t
substantive powers in the field of national security and foreign intelligence. This Office has
traced the source of this authority to the Vesting Clause of Article II, which states that "[t]he
exec.utive Power shall be vested in a President of the United States of America." U.S. Canst.
art. II, § 1. Thus, we have explained that the Vesting Clause "has long been held to confer on the
President plenary auU10rity to represent the United States and to pursue its interests outside the
borders of Ute country, subject only to limits specifically set forth in the Constitution itself and to
such statutory limitations as the Constitution permits Congress to impose by exercising one of its
enttrnerated powers" The Pres idem's Compliance with tl1e 'Timely Notification" Req11iremenr
of Section 50 I (b) of/Ire National Security Act, I 0 Op. O.L.C. [59, 160-61 (1986) ("Timely
Notification Requirement Op."). Significantly, we have concluded that the "conduct of secret
negotiations and intelligence opetations lies at the very heart of the President's executive power."
!d. at 165. The President's authority in tius field is sufficiently comprehensive that the entire
structure of federal restrictions for protecting national security infonnation has been creuted
solely by presidential order, not by statute. See generally Department ofthe Navy v. Ega11, 484
U-S, 5!8, 527, 530 (1988); see also New York Times Co. v_ U11iled States, 403 U.S. 713, 729"30
(1971) (Stewart, J ., concurring) ("[l]t is the constitutional duty of the Executive-- as a matter of
sovereign prerogative and not as a matter of l.aw as the courts know law~ through the
promulgation and enforcement of executive regulations, to protect the confidentiality necessary
to .carry out its responsibilities in the field of international relations and national de(ense.").
Similarly, the NSA is entirety a creature of the Executive- it has no organic statute defining or
, 't'lllg Its
' fim C{100S.
'
/'r<>"ST
<>,'f
\1
Otf 1-D
,~, HTI!l.H'~
n IITU_,)
l lffil
Moreover, it is settled beyond dispute that, although Congress is also granted some
powers in the area of foreign affairs, certain presidential authorities in that realm are wholly
beyond the power of Congress to interfere with by legislation. For example, as U1e Supreme
Court explained in Curtiss-Wright, the President "makes treaties with the advice and consent of
the Senate; but he alone negotiates. Into the field of negotiations the Senate cannot intrude; and
Congress itself is powerless to invade it" 299 U.S. at 3 !9_ Similarly, President Washington
established early in the history of the Republic the Executive's absolute authority to maintain the
secrecy of negotiations with foreign powers, even agains~ congressional efforts to secure
infom1ation. !d. at 320-21 (quoting Waslungton's 1796 message to the HouBe of Representatives
regarding documents relative to the Jay Treaty). Recognizing presidential authority in this field,
this Office has stated that "congressional legislation authorizing extraterritorial diplomatic and
intelligence activities is superHuous, and ... statutes infringing the President's inherent Article ([
authority would be unconstitutional." Timely Notification Requirement Op., 10 Op. O.LC. at
164. (U)
Whether the President's power to conduct foreign intelligence searches within the United
States is one of the inherent presidential powers with which Congress cannot interfere presents a

45

difficult question. ll is not immediately obvious which of Congress's enumerated powers in the
tldd of foreign affairs would provide authority to regulate the President's use of constitutional
methods of collecting foreign intelligence. Congress has authority to "regulate Commerce with
foreign Nations," to impose "Duties, Imposts and Excises," and to "define and punish Piracies
and Felonies committed on the high Seas, and Offenses against the Law of Nations" U.S. Canst.
art.[,§ 8, cis. I, 3, 10. But none of those powers suggests a specific authority to regulate the
Executive's intclligence"gathering activities. Of course, the power to regulate both foreign and
interstate commerce gives Congress authority generally to regulate the facilities that are used for
carrying communications, and that may arguably provide Congress sufticient authority to limit
the interceptions the Executive can undertake. A general power to regulate commerce, however,
provides a weak basis for interfering with the President's preeminent position in the (ield of
national security and foreign intelligence. Intelligence gathering, after all, is as this Office has
stated before, at the "heart" ofExecutive f11nctions. Since the time of the Founding it has been
recognized that matters requiring secrecy- and intelligence in particular- are quintessentially
Executive functions. See, e.g., 71>e Federalist No. 64, at 435 (John Jay) ("TI1e conYention have
done well therefore in so disposing of the power of making tre.aties, that although the president
musl in fom1ing them act by the advice and consent of the senate, yet he will be able to manage
the business of intelligence in such manner as prudence may suggest.")J 6 (TS/i£1 8TLWh'HF)

.!~< i'wo other congressional p<'WCts- the power Eo "nl{lke Rules for £he Goven11ll.ent and Regulation of the
land and naval Forces,'' and !he Necessary and Proper Clause, U.S. Const art. l, § 8, cls. t4, 18- are even less
likely sources for congrcssiolllll authority in lhls context f£81/S! STLWHNF)
As this Office has previously noted, the former clause should be construed as authorizing Congress to
"prescrib[e] a code of conduct &overoing mili~1ry life'' rather than to "control actual military operations." Letter fOl'
Han. Arlen Specter, U.S. Senate, from Charles J. Cooper, Assistant Attorney Genoral, Offie<: of Legal Olunscl 8
(Dec. 16, 19&7); see also Cltappe/1 v. Wallace, 462 U.S. 296, 301 (1983) (noting that the clause respooded to !he
need to establish "rig,bts, duties, nnd responsibilities in the framework of ilie military establishment, including
regula-tions, procedures, and remedies related tn mili~ary disciptine:nJ; cf Memorandum for William J. Haynes, H,
General Counsel. Department of Defeose, fron1 Jay S. Bybee, A$sistant Attorney General, Office of Legal Counsel,
Re: The President's Power as Comm11nder in Clriefto CTransfor Caprured Terromts to lhe Conical and Custody of
Foreign Nations 6 (Mar. 13, 2002) (Olngre.ss's authority ro make rules for tl1e ~overnment IUld regulation of the
land and naval forces is limited to !he discipline of U.S. troops, and does not extend to "the-rules of engagement and
treatment concerning euemy combatants"). (U)
The Necessary aud Proper Clause, by its own tenns, allows Congress only to "carryO into Execution" other
powers granted in !he Coostitution. Such. a power could not, of cowse, be llSed to limit or impinge upon one of
those other powers (the Presidenl's in.herent authority 1o conduct warrantless surveillanc.e under the C',.emmandcr·inChief power). Cf. George K. Walker, Uuited Srares Natiotral Security Law mrd United Nation.r Peacekeeping or
Peacemaking Operarions, 29 Wake Forest L Rev. 435,479 (1994) ("The [Necessary and Proper] clause authorizes
Congress to act with respect to its own fuoctions as well as those of other branch('.S except where the Constitution
forbids i.l 1 or ln the limited number of instances where exclusive power is specifically vesced elsewhere. The power
to preserve, protec~ and defend, as Commander-in-Chief, is solely vested in the President. Thus, although tl1<
Congress might provide anned forces, Congress cannot dictate to the President how to use iliem.") {internal
quotation marks aud foomotes omitted); Saikrishna Pmkasb., The Essential Meaning of E:;.:ru;utive Power, 2003 U.
Ill. L. Rev. 701, 740 ("The Necessary and Proper Clause pennirs C<>ngress to assist the presidenl in the exercise of
his powers; if does natgxant Congress a Hcense to reaJtocale or abridge powers a:tready vested by the
Con•htution."). (U)

The legislative history ofFISA amply demonstrates that the constituti<:>nal basis for the
legislation was open to considerable doubt even at the time the statute was enacted and that even
supjJorters of the bill recognized that the attempt to regulate the Presidertt 's authority in this field
presented an untested question of constitutional law that the Stq>reme Court might resolve by
tinding the statute unconstitutional. For example, while not opposing the legislation, Attorney
General Levi nonetheless, when pressed by the Senate Judiciary Committee, testified that the
President has an inherent conslilutional power in this field ''which cannot be limited, no matter
what the Congress says." See Forergn !me/ligence Surveillance Act of !976: Hearing Before the
Subcomm. on Grim. Laws and Procs. of the Senate Comm. on the Judiciwy, 94th Cnng. 17
( 1976) ("J 976 FJSA Hearing"). Similarly, former Deputy Attorney General Laurence Silbem1an
noted that previous drafts oftbe legislation had propedy recognized that ifll1e President had an
inherent power in this field- "inherent," as he put it, "meaning beyond congressional control"there should be a reservation in the bill acknowledging that constitutional authority. He
concluded that the case for such a reservation was "probably constitulionally compelling."
Foreign Intelligence Electronic Surveillance: Hearings Before the Subcomm. on LegL~lation of
the House Penn. Select Comm. on Intelligence 217, 223 (1978) (statement ofLaur~nce H.
Silbemum).' 7 Senator McClellan, a member of the Judiciary Committee, noted his view that, as
of 1974, given a constitutional power in the President to conduct warrantless intelligence
surveillance, "no statute could change or alter it." /976 FISA Hearing at 2. A.nd even if the law
had developed since 1974, lle stilt conclttded in 1976 that ·'under any reasonable reading of the
relevant court decisions, this bill approaches the outside limits of our Constitutional power to
prescribe restrictions on and judicial participation in the President's responsibility to protect this
country fi·om threats from abroad, whether it be by electronic surveillance or other lawthl
means." Jd. Indeed, the Conference Report took the unusual step of expressly acknowledging
that, while Congress was at1empting to foreclose the President's reliance on inherent
constitutional authority to conduct surveillance outside the dictates ofFISA, "the establishment
by this act of exclusive means by which !he President may conduct electronic surveillance does
not foreclose a differe.nt decisicm by the Supreme Cowi" H.R. Con f. Rep. No. 95-1720, at 35,
reprinted in 1978 U.S.C.C.A.N. 4048, 4064. The Conference Report thus effectively
acknowledged that the congressional foray into regulating the Executive's inherent authority to
conduct foreign intelligence surveillance - even in a non"war context -was sufficiently open to
doubt that the statute might be struck down. (TSNST STbVl//NF)
Even Senator Kennedy, one of the most ardent supporter:s of the legislation,
acknowledged that it raised substantial constitutional questions that would likely have to be
resolved by the Supreme Court. He admitted that "(i]fthePresident does have the [inherent
constitutional] power [to engage in electronic SttrVeillance for national security purposes), then
depreciation of it in Congressional enactments crumot unilaterally diminish it. As with claims of

31

The 2002 per cun'am opinion of the Foretgn !nlcnigencc Surveillance Court of Review (for a panel tlul:t
included Judge Silb~nnan) noted that. in light of intervening Supreme Coun cases, there is no longer "roucb left to
an argument" tltat Silberman bad made in his !978 testimony about FISA's being inconsistent with "Article Ul case
or controversy responsibilities of federal judges because of the se.;ret, non-adversary process." Itt reSealed Case,
J lO F.3d 717, 732 n.l9. That constitutional objection was, of course, completely separate from the one based upon
the:: President's inherent powers. (TStJSI STI.u-\VI/NF)

47

Executive privilege and other inherent Presidential powers, the Supr~mc Court remains the final
arbiter." 1976 FJSA Hearing at 3. Moreover, Senator Ken.nedy and other senators effective!>•
higJJlighted their own perception that the legislation might well go beyond the constitutional
powers of Congress as tl\ey repeatedly sought assurances from Executive brunch officials
concerning the fact that "this President has indicated that he would be bound by [the legislation]"
and speculated about "{h ]ow binding is it going to real!y be in tems of future Presidents?" !d. at
16; see also td. at 23 (Sen. Hroska) ("How binding would that kind of a law be upon a suc.cessor
President who would say ... I am going to engage in that kind of surveillance because it is a
power derived directly from the Constitution and cannot be inhibited by congressional
enactment?"). The senators' emphasis on the current President's acquiescence in the legislation,
and trepidation conceming the positiom future Presidents might take, makes sense only if they
wet·e sufficiently doubiful ofthe constitutional basis for FISA that they conceived of the bill as
more of a practical compromise between "particular President and Congress rather than an
exercise of autltority g1·anted to Congress underthe Constitution, which would necessarily bind
future Presidents as the law of the land. (TS!ISI STL'.VifNF)
Finally, other members of Congress focused on the point that, whatever the scope of
Congress's authority to impose some form of restriction on the President's conduct of foreign
intelligence surveillance, the particular restriction imposed in F!SA - requiJing resort to an
Article III court for a surveillance order- raised its own separation-of-powers problem. Four
members oflhe House's Permanent Select Committee on fntelligence criticized this procedure on
constitutional grounds and argued.that it ''would thrust the judicial branch into the arena of
. foretgn affairs and thereby improperly subject 'political' decisions to 'judicial intrusion'" H.R
Rep. No. 95-1283, Pt. l, at Ill (1978). They concluded that it "is clearly inappropriate to inject
the Judiciary into this realm of foreign affairs and natiooal defense which is constitutionally
delegated to the President and to the Congress." Jd. at 114. Similar concems about
constitutionality were raised by dissenters from the Conferenc.e Report, who noted that "this
legislation attempts to do that which it cannot do: transfer a constitutionally granted power from
one branch of government to another." 124 Cong. Rcc. 33,787,33,788 (Oct. 5, 1978).
(""'Sil~?
J.
fli
J.

STT HIIO..lF)
.l-.l-licYHJ.

The only court that has addressed the relative powers of Congress and the President in
this field, as far as we are aware, has suggested that the balance tips decidedly in the President's
favor. The Foreign Intelligence Surveillance Court of Review recently noted that all courts to
have addressed the issue have '11eld that the President did have inherent authority to conduct
warrantless searches to obtain foreign intelligence infom1ation." In reSealed Case, 310 F. 3d
7l7, 742 (Foreigr1 Intel. Surv Ct. of Rev. 2002). On the basis of that unbroken line of precedent,
the Court "[took] for granted that the President does have that authority," and concluded that,
"asswning that is so, F!SA could not encroach on the President's constitutional power." !d."
Although that statement was made without extended analysis, it is the only judicial statement on

JR In the past. oUter courts have declined to express a view on that issue one way or the other_ See, e.g .•
Brttenko, 494 f.2d at 601 ("We do oo.1 inti.rnate~ at this rime, any view whatsoever as the proper tesaltuiou oflhe

possible clash of the conslirutional powers of the Presidenl and Coo.grcss."). (TS/121 STLW/fN4')

48

WF SECRET/-/COMINT STELLAR WIND-/NOFORN

point, and it comes from the specialized appellate court created expressly to deal with foreign
intelligence issues under FJSA. (TS/ISI STLW/fNF)

49

TO!' SECRET/-'/COMINT STELLAR WIN9-/NOFOIL"I

b.

In tbe narrow context of interception of enemy
communications in the midst of an armed conflict, FlSA is
unconstitutional as applied (TS/ISJ STLW/IHF)

For analysis of STELLAR WTND, however, we need not address such a broad question,
nor need we focus our analysis solely on the President's general authority in the realm of foreign
affairs as Chief Executive. To the contrary, the activities authorized in STELLAR \VIND are
•lso- and ino~t~d, primarily- an exercise of the President's authority as Commander in Chid.
That authority, moreover, is being exercised in a particular factual context that involves \Ising the
resources of the Department of Defense in an ann\!d con.flict to defend the Nation from renewed
attack at the hands of an enemy that has already inflicted the single deadliest foreign attack in the
Nation's history. As explained above, each Presidential Authorization for a renewal of the
STELLAR WIND authority is based on a
of
threat infom1ation from which the

addition, the Authorization makes clear that the electronic surveiJiance is being amnor
the purpose of detection and prevention of terrorist acts wiU1in the United States," !d.
SUivei!lance designed to detect communications that may reveal critical infonnation
an
attack planned by enemy forces is a classic fom1 of signals intelligence operation that is a key
part of the military strategy for defending the country. Especially given thal the enemy in this
conflict has already demonstrated an ability to insert agents into the country surreptitiously to
carry out attacks, the imperative demand for such
ofthe
for

our ~'"''"'" rc,cu;sr;:s
enl!phasis, moreover,
the question of congressional authority to regulate the
Executive's powers to gather foreign intelligence has never been addressed in such a context.

==r <'TL'"'IhW'
~~

OTt::'fH""l:"t'r)

Even in that narrow context, the conflict between the restrictions imposed by Congress in
FISA and the President's inherent authorities as Commander in Chief presents a complex and in
many respects novel question. As set out below, we now conclude that, at least in the narrow
circumstances presented by STELLAR WTI® in the current conflict withal Qaooa and its
affiliated terrorist organization&, the President has exclusive constitutional authority, derived
from his dual roles as Corrunander in Chief and sole organ for the Nation in foreign affairs, to

51

~/COMINT 8TELLARW!NP-'INOFOHN

order warrantl~ss foreign inleHigenc<: surveillance targeted at communications oft he enemy thai
Congress cannot ovenide by legislation. Provisions in FISA that, by their te1ms, would prohibit
the warrantless content collection undert;1ken under STELLAR WIND are thus unconstitutional
. d 111
. Ills
I . con text. cr >Nt-u•"
""l'f:!H nnr,
"' TC\
. as app I1e

,,.,.s ""'

As rioted above, there are few precedems to provide concrete guidance conceming
exactly where the line should be drawn delining core Commander"in-Chiefauthorities with
which Congress cannot interfere. This Office has long concluded, based on decisions of the
Supreme Court, that the Conunander-in-Chief Clause is a substantive grant of authority to the
President. See, e.g., Memorandum for Charles W. Colson, Special Counsel to the President,
!Tom William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, Re: The
President and the War Power: South Vietnam and the Cambodian Sanctuanes 5 (May 22, !970)
("Cambodian Sanctuaries") ("[T]he designation of the President as Comrnand~r-in·Chief of the
Armed Forces is a substantive grant of power."). It is thus well established in principle that the
Clause provides some area of exclusive Executive authority beyond congressional controL The
core of the Conunander-in-Cbiefpower is the authority to direct the anmed forces in conducting a
military campaign. Thus, the Supreme Court has made clear that the "President alone" is
''constitutionally invested with the entire charge of hostile operations" Hamilton v. Dillin, 88
U.S. (21 Wall.) 73,87 (1874); see also United States 1'. Sweehy, 157 U.S. 281,284 (1895)
("[T)he object of the (Commander"in-Ch.iefClause] is evidently to vest in the President ... such
supreme and utrdivided command as would be necessary to the prosecution of a successful war."
{emphasis added)); 11te Federalist No. 74, at 500 (Han1ilton) ("Of all the cares or concerns of
government, the direction of war most pt:(;uliarly demands those qualities which distinguish the
exercise of power by a single hand. The direction of war implies the direction or the common
strength; and the power of directing and employing the common strength, forms an usual and
essential part in the defmition of the executive authority."). Similarly, the Court has stated that,
"[a]s commander-in-chief, [the President} is authorized to direct the movements oftl1e naval and
military forces placed by law at his command, and to employ them in the rnarmer he may deem
most efft:(;tualto harass and conquer and subdue the enemy." Fleming v. Page, 50 U.S. (9 How.)
603, 615 (1850). As Chief Justice Chase explained in 1866, Congress's power "extends to all
legislation essential to the prosecution of war with vigor and success, except such as interferes
with the command of the forces and the conduct ofcampaigi!S. That power and duty belong lo
the President as commander-in"chief." £x ptwte Milliga11, 71 U.S. (4 WalL) 2, 139 (!866)
(Chase, C.J., concurring) (emphasis added); cj Stewart v. Kahn, 78 U.S. (ll Wall.) 493, 506
(1870) ("The measures to be taken in carrying on war ... are not defined (in the Constitution].
The decision of all such questions rests wholly in the discretion of those to whom the substantial
powers involved are confided by the Constitution.''). ETSH8! 8TLVlJINF)
TI1e President's authority, moreover, is at its height in responding to an attack upon the
United States. As the Supreme Court emphasized in the Prize Cases, the President is "bound to
resist force by force"; he need not await any congressional sanction !o defend the Nation from
attack and "[h]e must determine what degree of force the crisis demands." The Prize Cases, 67
U.S. (2 Black) 635,668,670 (!863). Based on such authorities, this Office has concluded that
Congress has no power to interfere with presidential decisions concerning the actual management

52

TOP SECRETf-fCOMli'!T ST!l:LLAR

'NIND~

of a military campargn. See. e.g., Memorandum lor Daniel J. Bryant, Assistant Attomey
General, Office of Legislative Affairs, from Patrick Philbin, Deputy Assistant Attomey General,
Office of Legal Counsel, Re. Swiji Justice Authorizauon Ac1 11-14 (Apr. 8, 2002); Training of
Britrsh Flying Students in the United Slates, 40 Op. Att'y Gen. 58,61 (1941) ("[I]n virtue of his
rank as head of the forces, he has certain powers and duties with which Congress caruwt
interfere." (internal quotation marks omitted))' 0 As we have noted, "[i]t has never been doubted
that the President's power as Commander-in-Chief authorizes him, and him alone, to conduct
armed hostilities which have been lawfully inst(tuted." Cambodian Sanctuaries at 15. And as
we explained in detail above, see supra pp. 29-30, the interception ofenemy cornmunicat\ons is a
traditional element of the conduct of such hostilities during wartime and necessarily lies at core
of the President's Commander" in-Chief power. (TSNSI STLWh'HF)

We believe that STELLAR WJND comes squarely within tire Commander in Chiefs
authority to conduct the campaign against at Qaeda as pact of the cun·ent a1med conflict and that
congressional efforts to prohibit the President's efforts to intercept enemy conununications
through STELLAR WlND would be an unconstitutional encroachment on the Commander·inCh.ief power. (TS/,LSI STL\'li/NF)

Along similar lines, Francis Lieber, a principal legal adviser co the Union Anny during cbe Civil War,
explaioe<l that the "direction afmili!ary movement 'belongs to comrnand, and neither the power ofCongre<!> to
'

0

raise and support armies, nor the power to make- rules for.the government and regulation of the land and naval
fOrces, nor t11e power to declare war, gives it the commaod of the army. Here the constitutional power of the
President as CO!TlilUlilder-i.n-chief is exclusive.'" Cfarot1ce A. Berdahl, War Pmvers of tile Execurive in Ihe United
States 1t8 (1921) (quoting Lieber, Remarks on Army Regulations 1&). (U)

On the other side of the balance, there are instances in which executive practice has
recognjzed some congressional c011tro! over the Executive's decisions concerning the anned
for<:es. No example of which we are aware, however, involves an attempt at congressional
regulation of the actual conduct of a campaign against enemy forces'' For example, just before

"Many have pointed to the annual mesMge that President Tiwmas Jeftet1<on sent to Congress in 1801 as
support for tl1e propositi"" tha! executive practice in U1c early days <Jf the Republic acknowledged congressional
power to reguln1e even the President's commaud over the amted farces. See. e.g., Youngstown, 343 U.S. a1 64 n.lO
(Jackson, J., concurring), EdwardS. Corwin, Tl<c Presidenr's CO<trrol of Foreign Relations 131·13 (1917); Louis
Fisher, Presidentral War Power 25 ( !995); see also Abraham D. Sofaor, War. Foreign Affairs. and Consriturional
Power. The Origins 212 (1976) ("Most commentators have aeceploo this famous statement of deference to
Congress as accurate and made m good fa.ilh."). In the message, Jefferson suggested that a naval force he had
dispatched to the Mediterranean to answer threats lo American shipping from tltc Brubaty JK>Wers was
"[tt)nauthodzed by the Constttutioo, without the sanction of Congress, to go beyond the ~ne of defense." So[ae(,
War. Foreign Affairs, m•d O:msllhaionlll Power at 212 (quoting 11 Annal:; of Congress ll-12). But the ardors
acluaHy given to Ihe naval commanders wct:e quite different. They instructed th~ officers tha~ if upon their arrival

55
TOP SECRETf-'/COML'IT STELLA.'l Wli'!IJ. . .Il'!OFOR."'

World War ll, Allomey General Robert Jackson concluded that the Neutrality Act prohibited
President Roosevelt from selling certain armed naval vessels (so-called "mosquito" boats) and
sending them to Great Britain. See Acquisition ofNavaJ and Air Bases in Exchange for Over·
Age Destroyers, 39 Op. Att'y Gen. 484,496 (1940). Thus, he concluded that Congressc.:ould
cuntrol the Commander in Chief's ability to transfer that war materiel. That conclusion,
however, does not imply any acceptance of direct congressional regulation of the Commander in
Chiefs control oft he means and methods of Cl'\gaging the enemy in an actual conflict. Indeed,
Congress's authority in the context of controlling Ihe sale of American naval vessels to another
country was arguably bolstered in part by Congress's authority over "provid[ing] and
maintain[ing] a Navy." U.S. Cons!. art. l, § 8, cl. 13. Similarly, in Youngstown Sheet & Tube
Co. .,., SaH~'er, the Truman Administration readily conceded that, if Congress had by statute
prohibited the seizure of steel mills, Congress's action would have been controlling. See Brief
for Petitioner at !50, Youngstown, 343 U.S 579 (1952) (Nos. 744 and 745) ("1l1e President has
made clear his readiness to accept and execute any Congressional revision of his judgment as to
the necessary and appropriate means a f dealing with the emergency in the steel industry.").
There again, however, that concession wncerning congressional control over a matter of
economic production that might be related to the war effort implied no concession conceming
· (! 1c enemy. \,
crgus!
g=rr
contro I over (I Je me 1110 dso f engagmg
,
, ~ """'W}
.r. ..
Lastly, in terms of executive authorities, there are many instances in which the Executive,
after taking unilateral action in a wartime emergency, has subsequently sought congressional
ratification of thus~ actiuns. Most famously, President Lincoln sought congressional sanction iu
1861 for having enlisted temporary volunteo;rs in the arrny and having enlarged the regular awy
and navy while Congress was in recess. See Message to Congtess in Special Session (July 4,
1861), in Abraham Lincoln: Speeches a11d Writings, 1859-1865 at 252 (DonE_ Fehrenbacher ed.
1989). In his proclamation ordering these actions, Lincoln explaint'.d that his orders would "be
submitted to Congress as soon as assembled.'' Proclamation ofMay 3, /861, 12 Stat. 1260.
Such examples shed relatively little light, however, on the distinct question of Presidential
authority to defy Congress. A decision to seek congressional support can be prompted by many
motivations, including a desire for political support, and thus does not necessarily reOect any
legal determination that Congress's power on a particular subject is paramount. In modem times,
aftet ali, several administrations have sollght congressional authorizations for use of military
force without conceding that such authari7..ations were in any way constitutionally required and
wlule preserving the ability to assert the unoonstitutionality of the War Powers Resolution. See,
e.g., Statemem on Signing the Resolution Aulhorizing the Use ofMilitary Force Agamst Iraq, 1

Pub. Papers of George Bush 40 ( 1991} ("[M]y request for congressional support dtd not .

in the Mediterranean lhey should discover that l.hc Barbary powers had declared war against the United Slates, dyou
will Uten distribute your force in such manner ... so as best to protect our conuucrce and chastise their insolcncc ~
by si.nldng, burning or destroying their ships and vessels wherever you shall find them." !d. a! 210 (quoru1g Nat•al
Documents Related 10 lire Uniled States War Wrtil !he Barbwy Powers 465-67 (1939}]; see also David P. C\mie,
11re Constitulion in Con!Jl'ess: The Jriffersomans. 180/-1829 at 128 (200!) ('1o,leithcr the Administratio11 's orders
nor tb~ Navy 1 s actions reflected ilie narrow view of presidential authority Jefferson espoused m his Annual
Message."); id. a:t 127 C'Jeffefson's pious. words to Congress were to a considerable ex rent belled by his own
actions."). (lJ]

TOP SECH:f:F/1./COMINT STELLAR 'NIND~
constitute any chat~ge in the long-standing positions of the executive branch on either the
President's constitutional authority to use the Armed Forces to defend vital U.S. interests or the
constitutionality offhe War Powers Resolution."). Moreover, many actions for which
congressional support has been sought- such as.Presideut Lincoln's action in raising an anny in
1861 -quite ltkcly do fall primarily under Congress's Article I powers. See U.S. Consl. art. I,
§ 8, cl. 12 (granting Congress power "to raise and Slll1port Armies"). Again, however, such
actions are readily distinguishable from the direct control over the conduct of a c.ampaigo against
the enemy. Past practice in seeking congressional support in various other situations thus sheds
little light on the precise separation of powers issue here. (TSHSI S~'L\W/NF)
There are two decisions of the Supreme Court that address a conflict between asserted
wartime powers of the Commander in Chief and congressional legislation and that resolve the
conflict in f~vor of Congress. They are Lillie v. Barreme, 6 U.S. (2 Cranch) 170 (1804), •nd
Ymmgstown Sheet & Tube Co. 1'. Sawyer, 343 U.S. 579 ( 1952). These are the cases invariably
cited by proponents of a congressional authority to regulate the Commander-in-Chief power. We
conclude, however, that both are distinguishable from the situation presented by STELLAR
WTND in the con11ict withal Qaeda and thus that they do not support the constitutionality of the
,.,(·st
· t'o nsJn
· FIS .......
• as app1e
1' d 11'"'re.
~ ' rFS"'"
''T' """'lfi
.. net
,~m.
,..,,.u-,on.
.J.

Borreme involved a libel brought to recover a ship seized by an officer of the Uruted
States Navy on the high seas during the Quasi War with France in 1799. TI1e claimallt sought
return of the ship and dan1ages from the oflicer on the theory that the seizure had been unlawful.
The seizure had been based upon the officer's orders implementing an act of Congress
suspending commerce between the United States aud France. In essence, the orders from the
President to the officer had directed h.im to seize any American ship bound to or from a French
port. The ship in question was suspected of sailingji'om a French port. TI1e statute on which lhe
orders were based, however, had authorized solely the seizure of American ships bound to a
French pott. U1e Supreme Court concluded that the orders given by the President could uat
authorize a seizure beyond the tem1.~ of the statute- that 1s, they could not authorize anything
beyond seizures of ships sailing to a French port. As the Court put it, "the legislature seem to
have prescribed that the manner in which this law shall be carried into execution, was to exclude
a seizure of any vessel not bound to a French port." Jd. at 177-78 (emphasis omitted). As a
resuH, the Court ruled not only that the seizure was not authorized, bnt also that the officer was
liable in damages, despite having acted withiu his orders. See id. at 178-79. The decision has
been broadly characterized by some as one in which the Court concluded that Congress could
restrict by statute the means by which the President as Conunauder in Chief c;ould direct the
armed forces ·to carry on a war_ See. e.g., Glennon, Consritutiona! Diplomacy at 13 ("ln Little
... , an implied congressional prohibition against certain naval seizures prevailed over the
President's con~litulional power as comnmttle!-irt-chief." (footnote umitted)); Foreign and
Military Intelligence, Book 1: Final Rep. of the Senate Select Comm. to Study Gov 'tal Operations
with Respect to Intelligence Aclivities, S. Rep. No. 94-755, at 39 (!976) (characterizing Barreme

as "affinn[ing]" the "constitutianal power of Congress" to limit "the types of seizures that could
be made" by the Navy); cf Heury P. Monaghan, The Protective Power of the Presidency, 93

Colum. L. Rev. I, 24-25 ( 1993) (arguing that Rarreme establishes the principle that the President
has no authority to act "contra legem, even in an emergency"). (TSI/Sl STL'NI,£J>IF)
We think such a choracterization greatly overstates the scope of the decision, which is
limited in three substantial ways. First, the operative section of the statute in question restricted
the movements of and granted authority to sci<e American merchant ships.' 3 It was not a
provision that purported to regulate by statute the steps the Commander in Chief could lake 1n
confronting anne.d vessels of the enemy. Thus, neither in Barremc nor in any other case arising
from the Quasi War (so far as we are aware) did the Supreme Court have occasion to rule on

whether, even in the limited and peculiar circumstances of the Quasi War, Congress could have
placed some restriction on the orders the Commander in Chief could issue concerning direct
engagements with enemy forces.'' We think that distinction is particularly important when the
content collection asper.t of STELLAR WIND is urtde< coonsirleration, hecause content collection
is directed solely against targeted telephone numbers ore-mails where there is a reason for
believing that one oft he communicants is an enemy. (TSl/Sf-STLWi/J>fF)
Second, and relatedly, it is signiticantthat the statute in Barreme was expressly cast, not
as a {imitation on tile conduct of warfare, but rather as a measure on a subject withm the core of
Congress's responsibilities under Article I- regulating foreign commerce. See supra n.43

"The text of tlJe ftrst section of Ute act provided that "from and after the first day of March next no ship or
vessel 0-\VUtd. blted or ernployed, wholly or _i1l part, by any persoo resident within the United Stales, and wblch shall
depart tl1crc from, shall be allowed to proceed directly, or from MY intermediate port or place, to any port or place
within the terrilol)' of the French republic." Barreme, 6 U.S. (2 Crauch) at 170 (quoting Act of February 9, 1799)
(emphases onilttcd). Section 5 pn.wided "ftlbat it shall be lawful for the President of the United Slates, to give
instn•ctions to U1c commanders of the public armed ships of !he United States, to stop and examine any ship or
vessel of the United States, on the high sea, which there may be reason to suspect to be engaged in any traffic or
oomme.rcc ('.Ontrary to the true tenor hereof: and if. upon examination, it shall appear that such ship or vessel is
bound or sailing to any pan or place withi.o. tbe territory of the Freocb repu~lie, or her dependeocies, contrary to the
~>tent of this act, it shall be the duty of the commander of such pub he armed vessel, to seize every such ship or
vessel engaged in such illicit commerce ...." fd. at !71 (empb•ses omitted). (U)

•• In fact, if anything the ooc "'!Sc tltal came c.lose to raising such a queslio" tends 10 suggest that the Coun
upheld such a restriction. In that case Ote Court was careful to construe the statutes involved so a.s
not to restrict the ability oftbc armed vessels of the United Stales to engage armed vessels uuder French control. In
Talbot v. Seeman, 5 U.S. (I Cranch) l (1801}, the U.S.S. Conslitution had captured au anne<! merchant vessel, the
Amelfa, that, although originally under a neutral flag, bad previously beeii captured and manned b)' a pnze crew
would

Mt have

from the French navy. The Court explained that, under the stamtes then iu force, there was no law authorizing a
public anned vessel of the United States 10 capture such a vessel because, technically, in contemplation of law it
was still a neutral vessel until tl1e French pm;e crew hnd brought it to port and had it formally adjudicated a lawful
prize. See id. at 30-3!. The Court concluded that tl1e capture was lawful, however, because d1e captain of tbe
C.onstitu/wn had probable cause at the tin>e of tlte capture to doubt the character of tl1e ship. TI1e CoLUt went on to
·explain, moreover, that even if"thc character of the Ameiia bad been completely ascertained," the caprure still
wou(d have been lawful because "as: she was an armed vesseltmder French authority, and in a condition to annoy
the American commerce, it was [the American captain's] duty to render her incapable ofnilschief." ld. at32. 'rhe
Court re.ached tl1at conclt15iou even though there was also no act of Congress autl1orizing public anned vessels of

the United Stalf'.S to seize such ve.sscls tmder French controL Tile Court concluded that the statute..c; mu.'it
be constn1ed to pwnit, and certainly not to prohibit, such an action. !d. at32-33. (U)

nevert~eless

58
TOP !>I£Cl!El'J-/COMIN'l' !>TI':LLMt WlNll-fNOFOR"!

TOP 8ECRET/-1fCOMll'l'f STELLAR WINL.r'fNOFORN

(quoting text of Act of FebllJary 9. 1799). It happened that many oft he actions taken by the
armed forces during the Quasi War involved solely enforcing restrictions such as that contained
in the statute in Barreme. But that was part and parcel of the peculiar and limited nal11re of the
war that gave it its name. The measures that Congress imposed restricting commerce took center
stage in the "conflict" because the extent of full-blown hostilities between the anned lorces was
extremely limited. See Alexander DeConde, The Qw1si-War 126 (1966) ("The laws themselves
were half measures .... , were ba$ically defensive, and were to expire when the commanders of
French ships stopped their depredations against American commerce. This was why, from the
American point of view. the clash with France was a quasi"war."). (TSNSI £TLW/IJ>W)

Finally, reviewing !Jerreme in light of both contemporary decisions addressing the nature
of the connict with France and later precedents, such as the Prize Cases, 67 U.S. (2 Black) 635
(1863), makes clear that the Supreme Court considered the unusJlal and limited nature of the
maritime "war" with France a critical factor in concluding that statutes might constrain the
Commander in Chief's directives to the armed forces. The Court's decision was fundamentally
based on the premise that the state of affairs with Frattcc was not sufficiently akin to a full"scale
warfor the President to invoke under his own inherent authority the full tights of war that, in
other cases, he might have at his disposal. As a result, he required the special authorization of
Congress to ac.t. Tbe opinion of the lower court in the case, which is quoted at length in the
repm1 of the Supreme Court decision, makes this premise clear. As !he lower court had
explained: "If a war of a common nature had existed between the United States and France, no
question would be made but the false papers found on board, the destruction of the log-book and
other papers, would be a sufficient excuse for the capture. detention and consequent damages. It
is only to be considered whether the san1e principles as they respect neutrals are to he applied to
1
.
" ld. a( 173 (emp·b astsomt
.
"tt ed) . \,_vHO
'~'"""! f)TI
tl usc.a~t;e.
..........""IJ>IF)
T,.,,
The opinion of the"SuP,reme Court, delivered by Chief Justice Marshall, echoes the same

principle. In framing his discussion, Chief Justice Marshall made clear that "[i]t is by no means
clear that the president of the United Stales whose high duty it is to 'take care that the laws be
faithfully executed,' and who is commander in chief of the armies and navies of the United
States, u1ight not, without any special authority for that purpose, in the then existing state of
things, have empowered the officers commanding the rumed vessels of the United States, lo seize
and send into port for adjudication, American vessels which were forfeited by being engaged in
this illicit commerce." !d. at 177, In other words, "in the then existing state.of things" there was
not a sufficiently clear state of war that the President might have exercised the rights of war to
stop and examine the vessel and interdicl conunercc with the enemy. Instead, he required
"special authority for that purpo~e." But if he re-quired "special authority" from Congress, the
extent ofihat authority could ne<:essarily be limited by whatever restrictions Congress might
impose. Of course, because the Court viewed "the then existing state of things" as insufficient
for the President to invoke the rights of war under his own inherent authority, the Court had no
occasion to address the powerofCongress to limit the Commander in Chief's authotity in such a
Cas e ET"u~a
vli•
S'fh""f!>IF)
oil

59
TOI' 8ECRET/,-ICOM!NT....STELLAR V/IND-IJ>IOFOR."f

TOP SBCRETN.ICOMlNT STELb<\R WlND.,!NOFORN

This understanding is buttressed by contemporary decisions addressing other actions in
the Quasi War. Such decisions make it clear, for example, that the Court considered the limited
character of the war a peculiar state of affairs in intemationallaw. As Justice Moore explained
four years earlier in Bus "· Ti11gy, 4 U.S. (4 Dall.) 37 ( 1800), "our situation is so extraordinary,
that! doubt whether a parallel case. can be traced in the history of nations." !d. at 39 (Moore, J.).
Members of the Comt also indicated their understanding that a more ''perfect" state of war in
itself could authorize the Exewtive to exercise the tights of war, because in such a war "its
extent vnd operations are only restricted and regulated by the jus belli, forming a part of the law
of nations." Jd. at 44,43 (Chase, J.). Indeed, the very same distinction between a full-tledged
state of war (which would inherently authorize the President to invoke the rights of war as
recognized under the law of nations) and a more qualified state of hostilities (where
congressional authorization wottld be necessary) was aha discussed, ahhottgh it was not central
to the holding, in Bas v. Tingy. The critical issue in the case was whether a particu !at· statute
defining the dghts of salvage and the portions to be paid for salvage applied to a friendly vessel
recaptured 6·om the French, or whether its application was more restricted ut time, Justice
Washington explained his view that the taw should apply "whenever such a war should exi&t
between the United States and France, or any other nation, as according to the law of nations, or
special authority, would justifY th<;> recapture of friendly vessels." !d. at 4!-42 (Washington, J.).
That phrasing clearly reflects the asswnption that the recapture of a vessel might be authorized
either by the type of war that existed in itself or by "special authority" provided by Congress.
Similarly, Justtcc Wasltington went on to explain that in another case he had concluded as circuit
justice that "neither the sort of war tlwr subsisted, nor the special conunission under which tht:
American acted, authorised" the capture of a particular vessel. !d. at 42 (emphases altered).
Again, tltis analysis reflects the assumption that the Quasi W!ll was not the "sort of war" that
pem1itted the Executive to exercise the full dgb.ts of war under the CollUllander in Chiefs
inherent authority, but thai such wars could arise. Given the limited nature of the Quasi War, of
course, in Bas the Court had no occasion to consider tl1e question whether Congress might
restrict the Commander in Chiefs orders to the navy in a situation where the "sort of war that
subsisted" would have allowed the President on his own authority to invoke the full tights of war
under the law of nations. (TS//81 STLW~!F)
Understood in !!tis light, if seems clear that in the Supreme Court's view, JJarreme did not
involve a situation in which there was a sufficiently full-scale war that would, in and of itself,
suffice to trigger the powers of the President as ConmJander in Chief to direct the armed forces
in a campaign. And thus the Court had no occasion to consider whether Congress might by
statute restrict the President's power to direct the mmed forces as he might see tit in such a
conflict. Much less did the Court consider in Barreme the situation where a fu.JI-sc.ale war was
initiated by a foreign a!iack- a situation in which, as the Court later made clear in the Prize
Cases, the President would need no special authodty fi·om Congress: "If a war be made by
invasion of a foreign nation, the President is not only authorized but bound to resist force by
force. He does not initiate the war, but is bound to accept the challenge without waiting for any
special legislative authority." 67 U.S. (2 Black) at 668. (TSllSl STLW//!'!F)

60
TOP SECRET/1.1/COMlNT STELLAR WINIJ-!NOFORN

TOP SI':CRETI-!COMINT STELLAR WIND.,INOFOR."I
The limited nature of the connie! at issue in Barreme distir1guishes it from the cunent
state ofanned conflict between the United States and al Qaeda. This confl\ct has included a fullscale attack on I he Uniled States that killed thousands of civilians and precipitated an
unprecedentedly broad Congressional Authorization for the Use of Military Force followed by
major military operations by U.S. armed forces that continue to this day. (TS/ISI 8TLW/fl>IF)
The second Supreme Court decision that mvolves a direct clash between asserted powers
of the Commander in Chief and Congress is l'oungsLown. Some commentators have invoked the
holding in Youngs/ own and the: analysis in Justice Jackson's concurrence to conclude that, at
least when it occurs within the United Stales, foreign intelligence collection is an area where the
Legislative and Executive branches share concurrent authority and that Co11gress may by statule
comprehensively regulate the activities of the Executive. See, e.g., DavidS. Eggen, Note,
Exr:culive Order 12,333: An Assessment of the Validity of Warrantless National Security
Searches, 1983 Duke L. J. 61 I, 636-37; cf John Norton Moore el al., National Sec<Jrity Law
1025 (1990). The case is also routinely cited more broadly as an affimtalion 'of Congress's
powers even in the face of claims by the Commander in Chief in wartime. [tis t(Ue that
Youngstown involved a situation in which the Executive, relying inter alia on the Con:unanderin-Chief power, attempted to take action that Congress had apparently foreclosed by statute, and
that the Supreme Court held the executive action invalid. Beyond a superficial parallel at that
level of generality, however, we do not tbink the analogy to Youugstown is apt.
(TSNSI STL'.W/-NF)

Youngstown involved an effort by the President·- in the face of a threatened work
stoppage- to seize and mn steel mills. Steel was a vital resource for manufacturers to produce
the weapons and otl<er materiel that were necessary to support troops overseas in Korea. See 343
U.S. at 582-84. In drafting the Labor Management Relations Act of 1947 (also known as the
Taft-Hartley Act) Congress had expressly considered the possibility of giving the President the
power to effect such a seizure of industry in a time of national emergency. It had rejected that
option, however, and instead provided different mechanisms for resolving labor disputes. See id.
at 586. Other statutes, moreover, did provide certain mechanisms for seizing industries to ensure
production vital to national defense. See id. at 585-86 & n.2. President Tntman, however, chose
not to follow any of these mechanisms and instead asserted inherent authority to seize the mills
to ensure the production of steel. (TS/.ISI STL'Nf/'NF)
The Court rejected the President's assertion of powers under the Commander-in-Chief
Clause primarily because the connection between the President's action and the core
Commander-in-Chief function of commanding the armed forces was simply too attenuated. As
the Court pointed out, "[e]ven though 'theater of war' [may} be an expanding concept," the case
clemly tlid not involve the authority over "day-to-tlay fighting in a theatt:r of war." lt1. at 587.
Instead, it involved a dramatic e1etension of the President's authority from control over military
operations to control over an industry that was vital for supplying other industries that in tum
produced items vital for the forces overseas. 1l1c almost limitless implications of the theory
behind President Truman's approach- which could potentially permit the President unilateral
authority to control any sector of the economy deemed vital to a war effort -was clearly an

61
TOP SECRET/-'!COM!NT STELLAR Wlfo!~

TOP SECRBT/-'/COMINT STELLAR WINil~~IOFORN
important factor influencing the Court's decision. Indeed, Justice Jackson's influential
concurring opinion r~.veals a clear concern for what might be tenned foreign-to-domestic
presidential bootstrapping. The United States became involved in the Korean conflict through
President Tntman's unilateral decision, without consulting Congress, to commit U.S. troops to
the defense of South Korea when the North invaded in 1950. Tl\al was a national security and
foreign policy decision to involve U.S. troops in a wholly foreign war. In Youngslown, the
President was claiming authority, based upon that foreign wnr, to extend far-reaching presidential
control into vast sectors of the domestic economy. Justice Jackson expressed "alarm[]" at a
theory under which "a President whose conduc.t of foreign afTairs is so largely uncontrolled, and
often even is unknown, can vastly enlarge his mastery over tbe internal affairs of the country by
his own commitme11t oftbe Nation's armed forces to some foreign venture." Jd at 642 (Jackson,
J., c;oncurring). (TSIISI STLW/tl'.'F)
Critically, moreover, President Truman's action involved extending the Executive's
authority into a field where the Constitution had assigned Congress, in the ordinaty case, a
preeminent role. As the majority explained, under the Conm1erce Chmse, Congress "can make
laws regulating the relationships between employers and employees, prescribing rules designed
to settle labor disputes, and fixing wages and working conditions in co;rtain fields of our
economy. The Constitution did not subject this law-making power of Congress to presidential or
military supervision or control." !d. at 588; see also id. at 587 ("This is a job for the Nation's
lawmakero, not for its military authorities."). In addition, as Justice Jackson pointed out in
concurrence, Congress is also given express authority to "'raise and support Armies"' and '"to
provide and maintain a Navy."' !d. al643 (Jackson, J., concurring) (quoting U.S. Canst. art. I,
§ .8, cis. 12, 13 ). These grants of authority seemed to give "Congress primary responsibility for
supplying the am1ed forces," id., and the crisis at hand involved a matter of supply. Thus,
YoungstO\VJI involved an assertion of executive power that not only stretched far afield Jiom core
Commander-in-Chief functions, but that did so by intruding into areas where Congress had been
given an express, and likely dominant, role by the Constitution. (TS!/SI STLWI/N¥)
The situation here presents a very different picture. First, the exercise of executive
authority here is not several steps removed from the act11al conduct of a military campaign. To
the contrary, content collection under STELLAR WIND is an intelligence operation undertaken
by the Department of Defense specifically to detect operational conununications of enemy forces
that will enable the United States to detect and disrupt planned attacks, largely by detecting
enemy agents already within the United States. A! Qaeda has already demonstrated an ability,
both on September I I and subsequently (in cases such as Jose Padilla and Ali ai-Marri 41 ) to
insert agents into the United States. As explained above, the efforts under STELLAR WIND to
intercept communications that would lead to the discovery of more such agents or other planned

"AI-Marri entere.d tlte Umtcd States on September 10,2001. H~ was originally "detained in Dcecmber
2001 as a material witness believed to have evidence about the terrorist attacks of September l I," and the President
later determined he is "an enemy combatant affUiated withal Qaeda." 41-Mani v. Rumsfe/d, 360 F.Jd 7(17, 708 (7U1
Cir. 2004). (U)

62

TOP SECRE'L'• •KOM'Il'H STELLAH \ 1/INil-.1'/0FOR"I

attacks on the United States are a core exercise of Commander-in-Chief authority in the midst of

an armed conOicl. (TS/-11>1 STLWI/l>ff)
In addition, the theme that appeared most strongly in Justice Jackson's concurrence in
Youngstown expressing a concem for a forrn of presidential boot-su·apping simply docs not apply
in this context. Justice Jackson evinced a concern for two aspects of what might be termed bootstrapping in the Executive's position in Youngstown. First, the President had used his own
inherent constitutional authority to commit U.S. troops to the Korean conflict He was then
attempting, without any express authoriz.ation for the conflict from Congress, to expand his
authority fun her on the basis of the need to support the troops already committed to hostilities.
Here, however, Congress expressly provided the President sweeping authority immediately after
September II, 2001 to use "all necessary and appropriate force" as he deemed required to protect
the Nation from further attack. Congressional Authorization § 2(a). Second, in Youngstown
Justice Jackson was concerned that the President was using an exercise of his Conunaoder-inChiefpowers in the foreign realm to justify his assumption of authority over domestic matters
within the United Slates. Again, this concern must be understood in light of both the particular
context of the Korean conflict and the type of powers being asserted. There, the conflict was
strictly confined to the Korean peninsula overseas, and there was no suggestion that the
President's actions in the United States had any connection whatsoever to meeting an enemy
threat within the U~rited States. As a result, Youngstown must not be overreact to suggest tl.lat the
President's authorities for engaging the enemy are necessarily somehow less extensive inside the
United SUites than they are abroad. The extent of the President's authorities will necessarily
depend on where the enemy is found. Long before Youngstown, it was recognized that, in a
large-scale conflict, the area of operations could readily extend to the continental United States,
even when there are no major engagements of arrned forces here. As long ago as 1920 in the
context of the trial of a Gennan officer for spying in World War l, it was recognized that "[w]ith
the progress made in obtaining ways and means for devastation and destruction, Uw territory of
the United States was certainly within the fie[d of active operations" during the war, particularly
in the port of New York, and that a spy in the United States might easily have aided the "hostile
operations" ofU-boats off the coast. United States ex rei. Wessels v. McDona{d, 265 F. 754, 764
(RD.N.Y. [920). Similarly, in World War ll, in Ex parte Quirin, 317 US. 1 (1942), the
Supreme Court readily recogillzed that the President had authority as Commander in Chief to
capture and tly agents of the enemy in the United States, and indeed that he could do so even if
they had never "entered the theatre or zone of active mi[itary operations." Jd. at 38....
(TSI!Sf STI.WIINF)
In litis conflict, moreover, the battlefield was brought to the United States in the most
literal way on September II, 200 I, and ongoing intelligence indicates that further attacks on the
United Stales will be attempted. In addition, in this conflict, precisely because the enemy

"But see Padilla v. Rumsfeld, 352 F. 3d 695, 712 (2d Cir. 2003) (holding drot anal Qaed• opcr.mve seized
in Chicago could not be detained in South Carolina without statutory authorization because "the President locks
inherent consiitutional authority as Conuuander-in-Chiefto detain American citizens on American soil outside a.
zone of combat"), cert. gramed, .124 S. Ct. t353 (2004). (U)

TOP 8ECRET//.~'COMINT STELLAR WIN9~
operates by stealth and seeks to infiltrate the United States undetected, it is the intelligence front
that is the most vital aspect o[ the battle Jor protecting America. Thus, while some justices in
Youngstown expressed concern at the President's en·orts to claim Conunander-in-Chiefpowers
for actions taken in the United States, that concern must be understood in the context of a conflict
that was limited wholly to f01eign soil. Tho: North Koreaus in 1950 had no ability to project
force against the continental United States and the Court in YOllllgstown was not confronted with
such a concern. AI Qaeda, by contrast, has demonstrated itself more successful at projecting
force against the mainland United States than ru1y foreign enemy since British troops burned
Washington, D.C.. in the War of 18 I 2. There is certainly nothing in Youngslown to suggest that
the Court would not agree that, after an attack such as September II, Americm1 soil was most
emphatically part of the battle z.one and that the President's Commander-in-Chief powers would
fully apply to seek out, engage, and defeat the enemy- even in the United States. Similarly,
there is certainly no question of presidential bootstrapping from a "foreign venture" here. This
conflict was thrust upon the Nation by a foreign attack carried out directly on American soil.

(TS"SI
STL""4'fF)
ft
YiH "'
Finlllly, a.'1 assertion of executive authority here does not involve extend[ng presidential
power into spheres ordinarily reserved for Congress

In short, we do not think that Youngstown provides any persuasive precectent suggesting
that Congress may constitutionally prohibit the President from engaging in the activities
contemplated in STELLAR \1v1ND. (TS//8£ STLW//NF)

64
TOP SEClill'I'/I.IfCOf\Hi'IT STELLAR WINfl-1/NOFORN

Pages 65 68

Withheld in Full

Taking into account all the considerations outlined above, we conclude that the signals
intelligence activity undertaken to collect the content of enemy communications under

69

TOP gEC!lETh-'/COMli'!T STELLAR WINu.-~Lf'lOFORN

STELLAR WIND comes within the core powers of the Commander in Chief in conducting a
military campaign and that provisions in FISA or Title III that would prohibit it are
unconstitutional as applied It is critical to our conclusion that the issue arises in the context of a
war instituted by an attack on the United States and necessitating the use of the armed forces to
defend the Nation from attack. That bnngs lhts situation mto the core of the President's
Commander-in-Clucf powers ft has long been recognized that the President has extensive
unilateral authority even to initiate anned acti.on lo protect American lives abroad. See, e.g.,
Durand v. Hollin.<, 8 F. Cas. II I, 112 (C.C.S.D.N. Y. 1860) (No. 4186). If anything, we believe
that power is greater when the Nation itself is under attack. It is fortunate that in our history the
courts have not frcquen!ly had occasion lo address the powers of the President in responding to
such aggression. In the one precedent most squarely on point, however, the Supreme Court made
abundantly clear that his authority is broad indeed. As the Court put it in the Prize Cases, "[i]f
war be made by invasion of a foreign nation, the Presirlent is not only authorized but bound to
resist force by force," 67 U.S. (2 Black) at 668, and "[h]e must deten:nine what degree of force
the crisis demands," ul. at 670. 11 is lllle U1at the Court had no occasion there to consider the
relative powers of Congress and the President if they should come into conflict. Nevertheless,
the Court's language in the Prize Cases suggests that iflhere is any area that lies at the core of
the Conunander in Chiers power, it is actions taken directly to engage the enemy in protecting
tl1e Nation from an attack. In this regard, it bears emphasis that the obligation to ''protect each of
(the States] against lnvasion" is one ofthe few affirmative obligations the Constitution places on
the federal goveroment with respe.ct to the States. U.S. Canst. art. IV, § 4. [tis primarily the
President, moreover, who must cany out that charge. Indeed, defense of the Nation is an aspect
oftJtc explicit oath of office tl1at the Constitution prescribes for the President, which states that
the President shall "'to the best of[his] Ability, preserve, protect and defend the Constitution. of
the United States.'" U.S. ConsL art. n. § 1. Here, we conclude that the content collection
activities under STELLAR WIND are precisely a core exercise of Commander-in-Chief powers
to detect and engage the enemy in protecting the Nation from attack in tl1e midst of a war and
that Congress may not by statute restrict U1e Commander in Chief's decisions about such a matter
involving the r.onduct of a campaigrt (TS//SI STL\V//NF)
Even if we did not conclude that STELLAR WIND was within the core of the
Conunander-in-Chief power with which Congress cannot interfere, we would conclude that the
restrictions in Fl:SA would frustrate the President's ability to carry out his constitutionally
assigned fimctions as Conm1ander in Chief and are impennissible on that basis. As noted above,
even in prior opinions suggesting that Congress has the power to restrict the Executive's actions
in foreign intelligence collection this Office has always preserved the caveat that such restrictions
would be pem1issible only where they do not "go so far as to
President to perfoml his constitutionally prescribed funtc!ic)nS.
Several factors combine to make the FISA process an •nourn·,-,•e:
the crisis the President bas faced in the wake of the September ll attacks. R'/W-:;;.J..,I;'I'bliWf.N=R

Pages 71 73

Withheld in Full

To summarize, we conclude only that when the Nation has been thrust into an armed
conflict by a foreign attack on the United States and the President detcnnines in his role as
Commander ir; Chief and sole organ for the Nation in foreign affairs that it is essential for
defense against a further foreign aHack to use the signals intelligence capabilities of the
Department of Defense within the United States, he has lnherent constitutional ai1lhority to direct
electronic surveillance without a warrant to intercept the suspected communications of the enemy
- an authority that Congress cannot curtail. We need not, and do not, express any view on
whether the restrictions imposed in FfSA are a constitutional exercise of congressional power in
circumstances of more routine foreign intelligence gathering that do not implicate an armed
conflict and direct efforts to safeguard the Nation from a credible danger of foreigll attack.

(TSf.lSI 8TL\ll//-l>W)

74

~/CO MINT STELLA-R \\'I'f'f[-/NOFORW

Pages 75 80

Withheld in Full

TOP SECRETI./COMlNT STELLAR WIND-/NOFOR"I

III.

Telephony Dialing-Type Meta Data Collection - Stattttory Analysis

(TSI/SJ STL\1/-//N¥)
The second major a~pect of the STELLAR
the collection of telecommunications dialing-type
data, known as "meta data," does not include the content
consists
essentially of the telephone number of1he calling party, the telephone number of the called party,
and the date, time, and duration of the telephone call. For ease of reference, we will refer to this
aspec.t of STELLAR W1ND as meta data collection. (TS/lSl STLVt!INF)

81

TOP SECJ:tET/-1/COMlNT STELLAR \¥lND~

Pages 82' 99

Withheld in Full

The analysis above establishes that the constraints imposed by FISA and title 18 that
would seem to prohibit the activities undertaken in STELLAR WIND are either best construed to
have been superseded by the Congressional Aulhorizat

Jn detemlining the scope of ex.ecutive power to conduct foreign itllelligence searches, we
have already concluded above that there is an exception to the Fourth Amendment's warrant
requirement far such searches. See Part II. C.!, supra. For that analysis, we assumed that some
activities undertaken under STELLAR WIND would be subject to the Fourth Amendment. It
remains for us now to tum to a mare comprehensive examination of STELLAR WlND under the
Fourth Amendment. Once again, we divide our analysis to address separately (i) interception of
the C·~ntent of communications and (ii) the acquisition of meta data. (TS.'/~1 STLW.l/l'ff)
We recognize that there may be a sound argument for the proposition that the Fowih
Amendment does not even apply to a military operation such as STELLAR W1ND. 8·' Assuming
arguendo, however, that it does apply, we ru1alyze STELLAR WfND's content interceptions
under the Fourth Amendment standard of reasonableness. As the Supreme Co\trt has explained,
this analysis requires a balancing of the governmental interest at stake against the degree of

"See, e.g, Memorandum fQr Alberta R. Gonzales, Counsel to the President, and William J. Hayo.es, ll,
General Counsel, Department of Defense, from John C. Yao, Deputy Assistant A~omey Generol, and Robert J.
Delahunty, Spe<:Ja{ Counsel, Off1ce of Legal Counsel, Re: Authonty for Use of Milirary Force To Combat Terrorist
ActMiies Within Jhe United St£Jtes 25 (Oct. 23, 200 I} ("In light of the well-settled understanding that constitutional
constraints must give way i.n some respects ro the ex.igencies of war, we think tbat the better view is that the Fourth
Amendment does nat apply to domeslic military opcrntions designed to deter and prevent further terrorist attacks.").
(U}

100

TOP SECRETf-'JCOMil'lT STELLAR WJJ'l[-lf+'IOFOR.'>l

intrusion into protected areas ofp1ivary. See, e.g., BoardofEduc. v. Earls, 536 U.S. 822,829
(2002) ("[W]e generally detennine the reasonableness of a search by balancing the nature of the
intrusion on the individual's privacy against the promotion of legitimate governmental
interests."). Under that balancing, we conclude U1at the searches at issue here are reasonable.

(TSN8! STLWl/h'F)
As for meta data collection, as explained below, we conclude that under the Supreme
Court's decision in Smith v. M11t)'land, 442 U.S. 735 ( 1979), the interception oft he routing
information for both telephone calls and e-mails does not implicate any Fourth Amendment
j11tcrests. 85 (TSJ/SI STLVJ//NF)

A.

STELLAR WXNO Content J.oterceptions Arc Reasonable Under Balaociogof-Intcrcsts Analysis (TS//Sl STLWHHF)

Under the standard balancing of interests analysis used lor gauging reasonableness, the
STELLAR WIND interceptions would pass muster ut~der the Fourth Amendment. As the
Supreme Court .has emphasized repeatedly, "[t]he touchstone of the Fourth Amendment is
reasonableness, and the reasonableness of a search is determined by assessing, on the one hand,
the degree to which it intn1des upon an individual's privacy and, on the other, the_degTee to
which it is needed for the promotion oflegitimate governmental interests." United States v.
Knights, 534 U.S. 112, 118-19 (2001 ). The Court has found a search reasonable when, under the
totality of the circumstances, the "impottance of the gover!llJienlal interests" has outweighed the
"nature and quality of the intrusion on the individual's Fourth Amendment interests." Tennessee

v. Garner, 471 U.S. l, 8 (1985). (Te!/Sf-STL\W/NF)
We begin by addressing the individual privacy interests at stake. There can be no doubt
that, as a general matter, interception of the content of telephone communications implicates a
significant privacy interest of the individual whose conversation is intercepted. The Supreme
Court has made clear at least since Katz v. United States, 389 U.S. 347 (1967), that individuals
have a substantial and constitutionally protected reasonable expectation of privacy that their
telephone conversations will not be subject to governmental eavesdropping. TI1e same privacy
interest likely applies, absent individual circumstances lessening that interest, to the contents of
e-mail communications. Although the individual privacy interests at stake may be substantial, it
is well recognized that a variety of govemmental interests- including routine law enforcement
and foreign-intelligence gathering- can overcome those interests. (TS/iS! STLWi/NP)
On the other side of the ledger here, the government's interest in conducting the
surveillance is the most compelling interest possible- securing the Nation from foreign attack in
the midst of an armed conflict. One attack has already taken thousands of lives and placed the
Nation in state of armed conflict Defending the Nation from attack is perhaps the most

"Allhough th1s memorandum evaluates the STELLAR WIND program under the Fourth Amendmenl, we
do not here analyze the specific procedures followed by the NSA in implementing tl1e program.
(TSHSI STLW/It IF)

101

TOP SECitBT/-'/€0MINT STELLAR ~f.NOFOR."'l

important function of the federal government- and one of the few express obligations of the
government enshrined in the Constitution. See U.S. Consl. art. IV,§ 4 ('The Umted States shall
guarantee to every State in this Union a Republican Fmm of Govemment, and shalf protect each
ofli1elll against Invasion ... '')(emphasis added). As the Supreme Court has declared, "(i]t is
'ubvious ami unarguable' that no gov~mmenlal int~rest is tllor~; compelling than the security of
the Nation." Haig v. Agee, 453 U.S. 280, 307 (1981 ). Cf The Federalist No. 23, at 148
(Alexander Hamilton) (Jacob E. Cooke ed. 1961) ("[T]here can be no limitation of thai authority,
which is Ia provide for the defence and protection of the community, in any matter essential to ils
efficacy."} (T8/fSi STLWHNF)

As we have explained in previous ml!m,oramda,
government's overwhelming interest tn detecting and
atlacks is easily
sufficient to make reasonable the intntsion into privacy involved in intercepting selected
conununications. The nation has already suffered one attack that disrupted the Nation's (inancial
center for days and that successfully struck at the command and control center for the Nat ton's
military. In inilialing STELLAR WIND, moreover, the President specifically concluded that al
Qaeda h.ad the ability and intent to cany oLtt further attacks that could result in massive loss o£
life and destruction of property and that might even threaten the continuity of the federal
government. As noted above. tlw September It
~~ill!~~

Of course, because the magnitude of the government's interest here depends in part upon
the threat posed by al Qa(xla,

program
has established a system under which the surveillance is
authorized only for a limited period, tYPically for 30 to 45 days. This ensures that the
justification for the program is regularly reexamined. Indeed, eacb reauthorization is
accompanied by a fresh reassessment of the current threat posed by al Qaeda. As explained
above, bef()re each reauthorization, the Dir~:~tor of Central Intellige-nce and the Secretary of
Defense prepare a memorandum for the President highlighting some of the current information
relating to threats [Torn al Qaeda and providing their assessment as to whether al Qaeda still
poses a substantial threat of carrying out an attack in the United States. Each Presidential
Authorization of the program is thus based on a current threat assessment and includes the
President's specific delenl1ination that, based upon inf01mation available to him from all sources,

l02
~fCOMINT STELLAR ¥/INJ}-INOVOIUI

We should also note
even based
upon the limited range of information available to us- which is less than the totality of
infonnation upon which the President bases his decisions concerning the continuation of
STELLAR WIND -there is ample basis on which to conclude that the threat posed by a! Qaeda
continues to be of a sufficient magnitude to justify the STELLAR WTND program for Fourth
Amendment purposes. We note here only some of the highlights that have appeared in the
threat-related intelligence reporting available to the President and relevant for evaluating the
current threal posed by al Qa(Xia: (TS#S[ STL'N/INF)

+

+


+


Finally, as part of the balancing of interests to evaluate Fourth Amendment
reasonableness, we think it is signific;mt that content interception under STELLAR WTND is
limited solely to those international eonununications for which "there are reasonable grounds to
believe_ .. [that) a pru1y to such communication is a group engaged in international terrorism, or
acttvities in preparation therefor, or any agent of such a group." March 1 t, 2004 Authorit:a!ion
. . The interception is thus. targeted precisely at conmmnications for which there is already a
reasonable basis to t11ink there is a terrorism cormection. This is relevant because the Supreme

104

Court has indicated that in evaluating reasonableness, one should consider the "efficacy of (the]
means for addressing the problem." Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 663 (1995);
see also Earls, 536 U.S. at 834 ("Finally, this Court must consider the nature and immediacy of
the government's concems and the efficacy of the Policy in meeting them."). This does not
mean, of course, that reasonableness requires the "least intrusive" or most "narrowly tailored"
means for obtaining information. To the contrary, the Supreme Court has repeatedly rejected
such suggestions. See, e.g., Earls, 536 U.S at 837 ("[T)his Court has repeatedly stated that
reasonableness under the Fourth Amendment does not require employing the least intrusive
means, because the logic of such elaborate less-r~strictive-altemati ve arguments could raise
insuperable barriers to the exercise of virtually all search-and-seizllre powers.") (internal
quotation marks omitted); Vernonia, 5\5 U.S. at 663 ("We. have repeatedly refused to declare
that only the 'leasi intniS!VC' search practicable can be reasonable under the Fourth
Amendment.''). Nevertheless, the Court has indicated that some consideration of the efficacy of
the search being implemented- that is, some measure of fit between the search and the desired
objective- is relevant to the reasonableness analysis"' Thus, a program of surveillance that
operated by listening to the content of every telephone call in the United Stales in order to find
those calls that might relate to terrorism would require us to consider a rather difference balance
here. STELLAR W1ND, however, is precisely targeted to intercept solely those international
conununications for which there are reasonable grounds already to believe there is a terrorism
connection, a limitation which further strongly supports the reasonableness of the searches.
< , J ( fS'F
Lof
rU\
fF"'SI
'"'ll>IF)

In light oft he considerations outlined above, taking into account the totality of the
circumstances, including the nature ofthe privacy interest at stake, the overwhelming
governmental interest involved, the threat that al Qaeda continues to pose to the United States,
and the targeted na111re of the surveillance at issue, we conclude that the content interception
undertaken through STELLAR WIND cDn!inues to be reasonable under the Fourth Amendment.
(TSI!Sl STLW//NF)

86

This COI1$idtt1ill0fl has often been rcfevant in cases that involve some fonn of suspicjm1fe.1s search. Even
in those cases, moreover~ the Court has made dear that (he measure cf efficacy requir-ed is not a stringent or
demanding numerical measure of success. For ~}(_ample 1 m considering the us<> of warranl!ess road blocks to
acC'omplish temporary seizures of aura mobiles to screen drivers for signs of drunken driving, tlte Court noted that
the road blocks resulted Ul the arrest (or drunken driving of only 1.6 percent of the drive(S passing through the
checkpoint. The Coun concluded that this success rate established sufficient ''efficacy,. to sustain ct1e
conS!iru(ionality of the practice. See Micilig~n Dep 't a/State Palic~ v. Sitz, 496 U.S. 444, •154-55 ( 1990).
Similarly, !he Court has approved the use of roadblocks thai detected iUegal Unmigrants in only 0.12 percent of !he
vehicles passing through !he chec~point. See United States v Mm·titu"-~Fuerte, 428 U.S. 543, 554 ( 1976). What the
Court has warned against is the use of random and standard less seMches, giving potentially arbitrary cliscretion to
officers conducting tbc scar.che-s, for which the(e is "no empirical evidence"." to support the conclusion tilat they will
promote !he government objective a! hand. SiiZ, 496 U.S. at454. (U)

105
TOP SECllEl't-'lCOMI~IT 8'I'I<>LLAH WINil-'ll!>IOFORf'l

0.

Acquisition of Meta Data Does Not Implicate the Fourth Amendment

\TS"Sl
STL''"IJ>IF)
If

~" ~

-

The Fourth Amendment analysis for the acquisition of meta data is substantially simpler.
The Supreme Court has squarely detennined that an individual has no Fourtb Amendment
protected "legitimate expectation ofpdvacy regarding the numbers he dialed on h.is phone."
Smith v. Mmyland, 442 U.S. 735,742 (J 979) (internal quotation marks omitted). ln Smith, the
Court was considering the warrantless use of a pen register to record the numbers that a person
had called on his telepbone. In evaluating whether an individual could claim a rea~onable
expeetation of privacy in such numbers, the Court explained that telephone subscribers krlow that
they must convey the numbers they wish to call to the telephone company in order for the
company to complete the call for them. In addition, subscribers krlow that the telephone
company can and usually does record such nmnbets for billing purposes. As a result, the Court
concluded that subscribers crumot c.tairn "any general expectation tha( the numbers they dial will
remain secret." /d. at 743. The situation fell squarely into the line of cases in which the Court
had ruled that "a person has no legitimate expectation of privacy in information he voluntarily
tums over to third parties." ld at 743-44; see also United States v. Miller, 425 U.S. 435, 443
(1976) ("This Court has held repeatedly that the Fourth Amendment does not prohibit the
obtaining of information revealed to a third party and conveyed by him to Govemrnent
authorities, even if the information is revealed on the assumption that it will be used onl.y for a
limited purpose and the conlidence placed in the third party will not be
could

e-nrau users have no subjective expectation of privacy in e-mail meta data
infoJmation. Just like the numbers that a caller dials on a telephone, the addressing infom;ation
on a11 e-mail is freely shared with an e-mail service provider to enable the delivery of the

request for
business records is irrclevanl for purposes of 1he coostitutionaJ analysis.. The fact rcmaUJs that the information
gathered- the dialing number infonnalion showing with whom a person has been in contact~ is not protected under
the Fourth Amendment. (Tilh'Sl STLWI/l>W)

106

message. The user fully knows that he must share that information to have his mail delivere<l.~ 8
(TS/i8! STL'Nh'NF)
Second, even if a user could somehow claim a subjective expectation of pnvacy in e·mai I
meta data, that is not an expectation "that society is prepared to recognize as 'reasonable.'" Katz,
389 U.S. at 361 (Harlan, J., concurring). Just as telephone users who "voluntarily convey[)"
infonnation to the phone company "in the ordinary course" of making a call "assum( e] the risk ·•
that this information will be passed on to the govenmtent or others, Smith, 442 U.S. at 744
(internal quotation marks omitted), so too do e-mail users assume the risk that the addressmg
information on their e-mails may be shared. Thus, such addressing information is simply not
protected by the Fourth Amendment. (TSHSr STL'N//NF)
This conclusion is strongly supported by another analogy that could be used to assess the
Fourth Amendment protection warranted fo1· addressing information one-mails - the analogy 10
regular letters in the U.S. maiL Low~r courts have consistently concluded that the Fourth
Amendment is not implicated by "mail covers," through which postal officials monitor and
report for regular letter mail the same type of infonnalion contained in e-mail meta data- i.e ..
in formation on the face oft he envelope, including the name of the addressee, the postmark, the
name and address of the sender (if it appears), and the class of maiL See, e.g., United States v.
Choate, 576 F.2d 165, 174" 77 (9th Cir. I 978); cf United States v. Charbonneau, 979 F. Supp.
1177, 1184 (S.D. Ohio 1997) ("E-mail is almost equivalent to sending a letter via the mails.");
United States v. Maxwell,45 M.L 406,418 (C.A.A.F. 1996) ("fn a sense, e-mail is like a
letter."). Courts have reasoned that "[s]enders knowingly expose[] the outsides of the mail to
postal employees and others," Choate, 576 F.2d at 177, and therefore have "no reasonable
expectation that such information will remain unobserved," id. at 175; see also Vreeken v. Davis,
718 F.2d 343, 347-48 (lOth Cir. 1983) (concluding the "mail cover at issue in t\le instant case is
indistinguishable in any im.pm1ant respect from the pen register at issue in Smith"); United Stntes
v. DePoli, 628 F.2d 779,786 (2d Cir. 1980} ("[T]here is no reasonable expectation of privacy
with regard to the outside of a letter .... "); United States v. Huie, 593 F.2d 14, 15 (5th Cir.
1979) (per curiam) ('There is no reasonable expectation of privacy in infonnation placed on the
exterior of mailed items ...."). Commentators have also recognized that c"mail addressing
information is analogous to telephone numbers and mail covers, see Orin S. Kerr, lnternet
Surveillance Law after the USA PATRIOT Act: The Big Brother That lsn 't, 97 Nw. U. L. Rev.
607,611-15 (2003), and that, "[g]iven the logic of Smith, the [Supreme] Court is unlikely to
recognize a constitutional difference between e-mail addressing information and the information
that a telephone pen register reveals," Tracey Maclin, Katz. Kyllo, and Technology, 72 Miss. L.J.
51, 132 (2002). (TSHSI STLWh4W}

lis The Smtih Court also noted tha( telephone customers musl rea.li.ze chat telephone companies wlll trc:u;k
dialing information in some cases because it "aidfs.} in the identification or persons mabt1g annoying m obsce-ne
calls." Smilh, 442 U.S. at 742. Tile same subjective expectations hold true for users oflntemet e-mail, who should
know that [SPs can keep records to identify and supprc.ss uannoying. or obscene" messages from anonymous
senders. IndiVIduals are regularly bombarded with unsolicited, offensive materiallhrough lmemet e-ma.l, and lhe
sendero of such e-mail intentionally cloak their identity. See The CAN-SPAM Act of2003, Pub L. No. t08-187,
§ 2(a].ll7 Stat. 2699, 2699· 700 (cong>CSSIOMt findings Oil this point). (T8.4SI 8TbW/IHF')

107

TOP SECRETh.,COMINT STELLAR WlNg~~"'OFORN

TOP SECRET-COMINT STI':LLA.R WIND~

In our view, therefore, well-established principles indicate that the collection of e-mail
meta data does not qualify as a ''search" implicating the Fourth Amendment. 8?
(TS uv""! ST'J-->'<Yn
" "'NPJ
Thus, we afGrrn our conclusion that STELLAR WIND meta data collection does nat
involve the collection of information in which persons have a legitimate ex~
that it does not amount to a search under the Fourth Amendment. - (TSHSI STLWHHF)

CONCLUS!ON (U)
For the foregoing reasons, we conclude that, notwithstanding the prohibitions offlSA
and title 18, under the current circumstances of the ongoing arn1ed conflict withal Qaeda and in
light of the broad authority conferred in the Congressional Authorization, the President, as
C<munander in Chief and Chief Executive, has legal authority to authorize the NSA to cond\tCI
the signals-intelligence activities described above; that lhe activities, to the extent U1ey an;
searches subject to the Fourth Amendment, comport with the requirements of the Fourth
Amendment; and thus that the operation of the STELLAR WIND program as described above·is
lawful. (TSI/SI STLW//Nf')
Please let rne know if we can be of fmther assistance. (U)

~J~,-;r
Jack L. Goldsmith, ID
Assista.'lt Attorney General

data both for telephone calls anti fore-mails
Fourth Amendment analysis above applies to both. (TS/ISI STb'll//l>W)

and that our