A memo for the attorney general, July 2004

A memo from the Office of the Legal Counsel dated July 16, 2004. Legal memos released on Bush-era justification for warrantless wiretapping

U.S. Department of Justice

Office of Legal Counsel

Office ofthc Assistan! Anomcy General

Washington. D.C. 20530

July 16, 2004

Re: STELLAR WIND -Implications ofHmndi v. Rumsfeld
On May 6, 2004, this Office issued an opinion analyzing the legality of
STELLAR WIND. See Memorandum for the Attorney General, from Jack L. Goldsmith,
m, &sistant Attorney General, Office of Legal Counsel, Re: Review ofthe legality ofthe
STELLAR WIND Program ("STELLAR WTND nni.,;m,:")
targeted a1
reassessments ofthe current threat ! e v e authorized by a Congressional resolution providing the President the authority "to use all
necessary and appropriate force against those nations, organizations, or persons he
determines plaruted, authorized, committed, or aided the terrorist attacks that occurred
September 11, 2001." Authorization for Use of Military Force, Pub. L. No. 107-40,
§ 2(a), 115 .stal224, 224 (~ept. 18, 2001) (reported as a note.to 50 U.S.C.A. § 1541/
("CongressiOnal AuU10nzat10n''). See STELLAR WIND Opmw11, Parts II.B.l,.


On June 28, 2004, the Suprem~ Court decided Hamdi v_ Rumsfeld, No. 03-6696,
slip op. This memorandum explains why the Court's decision and analysis in Hamdi
Congress has authorized the taxgeted contenofSTELLAR WIND.

In the alternative, we concluded that (I) even if the Congressional Authorization could not be
lWderstood as a clear authorization for signals intelligence activity. it creates. at a minimum, an attlbiguity
significant enough. to warrant applica(ion of the canon cf COL:tstitutional avoidance nod therefore to cou.strue
relevant portions oftbe.Foreign Intelligence Surveillance Act (''FISA"),as amended, 50 U.S.C. §§ 1801·
1862 (2000 & Supp. 12001), and related relevant proviSioJJS in Title ill of lite Omnibus Crime O;n((ol and
Safe Strc;!ts Act of 19611, ~· §§ 25Hl-2521 ('"Title ill") (2000 & Supp.l2001), so as
not to prolul>it the oontent-collcetiou activity in STELLAR WIND, and (2) even if the
statutory restrictions in FlSA and 'f'rtle ill are oon.strued to apply and prohibit such oollection activity, those
statutes would uncoll$titution.ally infringe on the President's exclusive
as tile sole organ of tlle
Nation in
affairs and as Colnn:u!Dd<'l'__ill



Five Justices in Hamrli Agreed that Congress Authorized the Detention of
Enemy Combatants


In lfamdi, the Supreme. Court considere-d the legality ofU1e Government's
detention of a United States citizen captured in Afghanistan during the military campaign
against the Taliban and eventually held as an "enemy combatant" at a naval brig in South
Carolina. Justice O'Connor aru1ounced the judgment of the Court in a plurality opinion
joined by Chief Justice Rehnquist and Justices Kennedy and Brey!lr. The pluraHty held
that the Congressional Autjlorization passed in response to the attacks of September 11,
2001, was "explicit" authorization for the detention of individuals who were "part of or
supporiing forces hostile to t.he United States or coalition partners" 1.n Afghanistan and
who "engaged in an anned conflict against the United States" there. liamdi, slip op. at 9,
10 (Opinion ofO'Com\Or, J.). The plurality also concluded, however, that due process
required UJat "a citizen--detainee seeking to challenge his classification as an enemy
combatant must receive notice of the factual basis for his classification, and a fair
opporttmity to rebut the Government's factual asser6ons before a neutral decisionmaker."
I d. at 26. Having fOtmd that Han1di was entitled to such process, the plurality voted to
remand the case for further proceedings.
The decision to remand was joined by Justices Souter and Ginsburg and thus
became the majority judgment of the Court Justices Souter and Ginsburg, however,
disagreed with the plurality's COM!usion that OJngress authorized detention, see Hamdi,
slip op. at 3, 9-10 (Opinion of Souter, J.), and would have held that the Government had
failed to justify holding Hamdi, see id. at 15, but concurred in the judgment in order "to
give practical effect to the conclusions of eight members of the Court rejecting the
Government's position," id. Justice Thomas dissented because he· would have dismissed
the appeal on the basis that the Executive's detention ofHamdi comported with the
Constitution, see liamdi, slip op. at 17. (Thomas, J., dissenting), wd "should not be
subjected to judicial second-guessing," id. at 14. Justice Scalia, joined by Justice
Stevens, also dissented, concluding that Hamdi was entitled to release because Congress
had not suspended the writ of habeas corpus. See Hamdi, slip op. at 1-2 (Scalia, J.,
As for its specific analysis of the Congressional Authorization, the plurality found
that it was "of no moment" that the Authorization did not use language of detention.
Hamdi, slip op. at 12 (Opinion of O'Connor, J.). It reached this conclusion even though a
separate statute explicitly prohibited the detention of U.S. citizens except pursuant to an
Act of Congress. See 18 U.S.C. § 400I(a) ("No citizen shaU be imprisoned or otherwise
detained by the United States except pursuant to an Act of Congress."). Rather,
"[b]ecause detention to prevent a combatant's return to the battlefield is a fundamental
incident of waging war, in permitting the use of 'necessary and appropriate force,,
Congress has clearly and wmtistakably authorized" the detention of such combatants.
Hamdi, slip op. at 12 (Opinion of O'OJnnor, J.) (emphases added)? Simply because


See ;u.,o Hcuruff, slip op. at 10 (Opinion of O'Connor, J.) (the detention of combaunts "is so
fundamental and accepted an incideut (<) wr as to be an exercise of the 'necessary and appropriate force'
Congress bas authorized lhe President to use"); W. (the ¢apture aJJd detention of oombatants by "u:uiversal



detention was a "fundamental incident of waging wa;," therefore, the Congressional
Authorization satisfied§ 400\(a)'s requirement that detention be "pursuant to an Act of
Congress." !d. at l 0 (assuming for purposes of the opinion, but not deciding, that
§ 400l(a) applied to military detentions).
Two additional aspects of the plurality opinion are notable for the purposes ofthis
memorandum. first, the plurality did not consider whether the Congressional
Autl10rization allowed the detention of individuals other than those who were "part of or
supporting forces hostile to the United States or coalition partners" in Afghanistan and
who "engaged in an armed conflict against the United States" there. Id. at 9. It was
unnecessary to reach such a question because the Government asserted that Hamdi met
that definition and because there could be "no doubt'' that the Congressional
Authorization targeted in<lividuals who fought against the United States with "an
orgm..ation known to have supported the al Qaeda terrorist network." !d. at 10. Second,
the pl=lity understood the Congressional Authorization to include the authority to
detain only "for the duration of the relevant conflict." !d. at 13. This understanding was
based on "longstanding law-of-wat principles." fd_
Although the plurality opinion garnered only four votes, Justice Thomas, in his
dissent, expressly agreed with the plurality's conclusion that the Congressional
Authorization authorized the detention of enemy combatants. See Hamdi, slip op. at 9
(Thomas, J., dissenting) ("Although the President very weU may have Inherent authority
to detain those arrayed against our troops, I agree with the plurality that we need not
decide that question because Congress has authorized the President to do so."). J:ndced,
Justice Thomas found the President's authority to detain enemy combatants to be broader
than the authority articnlated by the plurality. See id. at 11 ("I do not think that the
plurality has adequately explained the breadth of the President's authority to detain
enemy combatants ...."); id. at 10 (disagreeing with plurality's conclusion that detention
was only authorized for duration of active hostilities).
Given Justice Thomas's explicit agreement with the four-Justice plurality that
Congress authorized the detention of enemy combatants, as well as his conclusion that
the President's authority to detain was even broader than described by the plurality, it is
fair to conclude that five Justices in flamdi agreed that the Congressional Authorization
is at least as broad as characterized by the plurality. 3
agreemenlond practice" are "important incident[s] of war," !he vecy purpose of which "is!<> prevent
captured individuals from «turning to the field ofbattle and taking up lltlllS once again" (alter•tion in
original) (internal quotation matks omitted))-


' In Mark:; v. United States, 430 U.S. 188 (1971), !he Court explained !hot "[w]hen a fragn1ented
Court decides a case and no single ratimwc explaining the .-..ult enjoys tho assent of five Iustices, 'the
holding of the Court may be viewed! as that position taken by those Membetlt who conC!l!'t'Cd in the
judgments on the narrawcstgroundi.'" !d. at 193 (quoting Gregg v. Gecrgia, 428 U.S. 153, !69n.l5
(1976)Hcmphasis added); accord Rommw ''· Oklahoma, 512 U.S. !., 9 (1994); City of Lakewood v. Plaiu
D<f11er Publ'g Co., 486 U.S. 750, 764 ,_9 (1988). The Marh Court did not ""Plieilly address wholher a
dissent wuld be oomblned with • plurality to fonn a majority holding on a specific issue, although !here is
at least oome evidence in the opinion that it would have approved! of eucb a e¢mbinalion. See MiiTks, 430
U.S. at 194 n.S (treating the combined! rulingoheven dissenting judges and one ooncuningjudgeoftho on




Hamtli Supports the Conclusion !bat Congre~s AuthorizedSTELLAR WIND Activities


Sur>'ei/lance of the Enemy, and the Interception ofEnemy
Communications Specifically, Are Fundamental and Accepred lncidei•ts of

As already stated, five Justices in Hamdi agreed that in pem1itting the use of
"necessary and appropriate force," Congress authorized the detention of enemy
combatants. See Hamdi, slip op. at 12 (Opinion of O'Connor, J.}; sup op. at 9-11
(Thomas, J., dissenting). As U1e plurality explained, such detention was authorizedeven though the Authorization did not specifically refer to detention and notwithstanding
a separate statute prohibiting unauthorized detentions-because it is a "fundamental" and
"accepted" incident of waging war. Hamdi, slip op. at 10, 12 (Opinion of O'Connor, J.).
The plurality's understanding of the Congressional Authorization, moreover, was
informed by "longo-standing law-of-war principles." !d. at 13.
Because the interception of enemy communications for intelligence purposes is
a. fun~ental and l?ng-accepted incident of war, the Congr~
likewlse proVIdes authcnty for STELLAR WIND targeted c o n t e n t - -


bane Fifth C'rteuit a.< "constituting • majority on tho issue" and therefore essentially as the holding of the
O:mrt of Appeals); soe also Wat.,.,-v. Churchill, 511 U.S. 661,685 {!994)(Soutcr, J., concurring)
{combining two diJfcrcnt majority groups of Justices, onoincluding a dissent, tO roach the conclusion that a
plllt!l!ity opinion stated lhc holding of1be Court): Jones v. Henderson, 809 F.2d 946, 952 (2d Cir. 1987)
(instructing lower court to apply standard derived from "common ground" between Sup rome Court
plurality and dissont). But cf. O'Dell v. Netherland, 521 U.S. !51, 160 (1997) (describing Justice White's
concurrence in !he judgment of • prior~ as "providing the narrowoot grounds of decision among the
Justices whose voiCS were necessary to the judgment') (emphasis added); King v. Palmer, 950 F.2d 771,
783 (D.C. Cir. 1991) (en bane) ("[WJe d<> not lhink we are free to combine a dissent with a concurrence to
form a Marks majority."). In aoy even~ even if it «Juld be arg11ed that the Hamdi plurality's holding
regarding !he Congressional Aulhorizatinn dOCil n<It coJJStitute a holding of the O>urt be<:ause Justice
TholllJIS did not concur in the judgment of the Court, the agreement of five Justices on that issue should
nonetheless be ~ive with the lower coum nnd predieti.-e of how the Court may rule in another case.
-One further wrinkle on the issue of vote-counting should be noted. In Rumsfe!d v. Padilla, No.
03-1027, slip op. (June 28, 2004), Justice Stevens, fn a dissentjoitted by Justice Hreyer (among oilier.),
stated hls belief that !be Congressional Authorization doeo 1101 authorize "the prolrncted, ittcornmuniClldo
detention of American citiuas arrested in !he United States.~ Padilla, slip op. at I0-1! 11.8 (Stevens, J.
dissenting). Although this position did uot oblaiila majority in Padilla (the O>urt ultirmltely did not roacb
the authorization question), it might be a.rgued that Justice Breyer joined collllicting positioos in Hamdi and
Padilla regarding the scopo of the Congressional Authori>.ation. But tbe two positions a.re in fact
reconcilable. N previously noted, the plurnlity itt Hamdt held that a cifu;eu-<ietaince "must receive notice
of1be tactual bosis for his classification [as an enemy comballlnt], and a fair opportunily to rebut the
Ge>verrunent's factualliSsertious before a neutral de<:ision maker." fiamdl, slip op, 0126 (Opinion of
O'O>nnor, J.). The plurality fUJ;ther held that H~ "unquestiooably hilS the right to acce.S to counsel fn
connection with !be pro<.:eedings on remand." Jd. at32. Consistent with Justice Stevens's dissent in
Padilla, therefore, the Hamdi plurality did not endorse !he "incommunicado" detention of American
citizens. Thus, Justice Breyer's joining of tlte Podilla dissent does not undercut the positioo he and four
other Justices took in HamdiregordiJJg the Congressiooal Authorization.





- -Hamdi supports Uris conclusion even though the Authoriz.~tion does
~to intelligence collection and notwithstanding separate statutory
restrictions on the use of electronic surveillance inside the United States for foreign
intellige~oses. See generally 50 U.S.C. §§ 1801-1810; STElLAR WIND Opinion,
atl9-22Surveillance of the enemy is expressly accepted by long-standing law-of-war
principles. As one author explained:
It is essential in warfare for a belligerent to be as fully infomled as possible about
the enemy~hls strength, his weaknesses, measures taken by hlm and measures
contemplated by him. This applies not only to military matters, but ... anything
which bears on and is material to his ability to wage the war in which he is
engaged. The laws of war recognize and sanction this aspect of warfare.
Morris Greenspan, The Modem lAw oflAnd Warfare 325 (U. of Cal. Press 1959)
(emphases added); see also The Hague Regulations art. 24 (1907) ("[T)be employment of
measures necessary for obtaining infonnation about the enemy and the country [is]
considered pemlissible. "); Ingrid Detter De Lupis, The Law of War 261 (Cambridge U.
Press 1987) ("(I]t is lawful to use recol1llaissance scouts in war[,] and ... the 'gathering
of infonnation', by such scouts is not perfidious or in violation of the Law of War."); cf
J.M. Spaighl, War RighiS 0111And 205 (MacMillan & Co. 1911) ("[B]very nation
employs spies; were a nation so quixotic as to refrain from doing so, it might as well
sheathe its sword for ever. . . . Spies ... are indispensably necessary to a general; and,
other things being equal, that commander will be victorious who has the best secret
service." (internal quotation marks omitted))!
Consistent with these well-accepted principles of the Jaws of war, the Supreme
Court has long recognized the Presid()Ilt's authority to conduct foreign intelligence
activities. See, e.g., Chicago & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 111
(I 948) ("The President, both as Co=auder-in-Cbief 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."); United States v. Curtiss-Wright Export Corp., 299 U.S. 304,
320 (1936) ("He has his confidential sources of information. He has.his agents in the
.fonn of diplomatic, consular, and other officials."); Totten v. U11ited States, 92 U.S. 105,
106 (1876) (recogrrizing President's authority to hire spies).
Tl:!e United States, moreover, has a long history ofsurveilli.ng its enemies--a
history that can be traced to George Washington. who "was a master of military
' Justice Souter, in his concurrence joiued by Justice Ginsbmg, cxpres.ly recognized thAt
compliance with. tb.e Jaws of war wos "one argument for treating the Force Resolution as sufficienUy clear
to authorize detention,~ and even "[a]ssum[edJ.the argument to be soU!ld" for purposes -of his concurrence,
but ultimately found ''no need .•. to addreSs the IJleriis of such an argurnen4" becaw:e 1hc Govemment bad
not demonstmted to his satisfaction that it wus acting in ae<OOrdanco with the laws of war in holding llamdi
incommuvieado. See Homdl, slip op. at LO,ll (Opinion of Souter, J.). ThuS. iffiu:ed with deciding
whether Congress authorized the surveillanJ:e of a! Qaeda ccnslslcnt with the lam of war, Justices Souter
aud Ginsbmg may provide a sixth and sciv.onth vote in favor of anthorizatiol)..


espionage," and "made frequent and effective uses of secret intelligence in the sewnd
half of the eighteenth century." Rhodri Jeffreys-Jones, Cloak ar~d Dollar: A Hisrory of
American Secret Infeiligence ll (Yale U Press 2002); see generally id. at 11-23
(recounting Washington's use of intelligence); see also Haig v. Agee, 471 U.S. !59, 172
n.l6 (1981) (quoting General Washington's letter to an agent embarking upon an
intelligence mission in 1777; "11te necessity of procuring good intelligence, is apparent
and need not be further 11rged."). In 1790, Washington even obtained from Congress a
"secret.fund" to deal with foreign dangers and to be spent at his discretion. JeffreysJanes, supra, at 22. The fund, which remained in use up to the creation of Ote CIA in the
mid-twentieth century and gained "longstanding acceptance within our constitutional
structure," Halperin v. CIA, 629 F.2d 144, 158-59 (D.C. Cir. 1980), was used "for all
purposes to which a secret service fimd should or could be applied for the public benefit,"
including "for persons sent publicly and secretly to search for importru.lt information,
political or commercial," id. at !59 (quoting Statement of Senator John Forsyth, Cong.
Deb. 295 (Peb. 25, 1831)). See also Totlen, 92 U.S. at 107 (refusing to examine
payments from !his ftmd lest the publicity make a "secret service" "impossible").
The interception of enemy communications, in particular, bas long been aw:pted
as a fundamental method for cond11ct.ing enemy surveillance. See, e.g., Greenspan;
supra, at 326 (accepted and customary means for gathering intelligence "include air
reconnaissance and photograp~y; ground reconnaissance; observation of enemy
positiom; interception of enemy messages, wireless and other; exantination of captured
documents; ... and interrogation of prisoners and civilian inhabitants") (emphasis
added). Indeed, since its inception the United States has intercepted enemy
conununications for wartime intelligence purposes and, if necessary, has done so even
within its own borders. During the Revolutionary War, for example, George Washington
received and used to his advantage reportS from American intelligence agents on British
military strength, British strategic intentions, and British estimates of American strength.
Jeffreys-Janes, supr<l, at 13. One source ofWashington's intelligence was intercepted
British maiL See Ccntml Intelligence Agency, Intelligence in the War ofIndepe11dence
31, 32 (l'X17). In fact, Washington himself proposed that one ofhis Generals "contrive a
means of opening [Eritish letters) without breaking the seals, take copies of the contents,
and then let them go on." ld. at 32 (''From that point on, Washington was privy to British
intelligence pouches between New York and Canada.'').

Electronic surveillance of enemy rornmunications was conducted in the United
States as early as the Civil War, where "(t)elegraph wiretapping was common, and an
important intelligence source for both sides." G.J.A.. O'Toole, The Encyclopedia of
Americaillntelligence and EspiOI<age 498 (Facts on File l988). Confooemte General Jeb
Stuart even "had his own personal wiretapper travel along with him in the field," to
intercept military telegraphic communications. Samuel Dash el al., The Eavesdroppers
23. (1971); see also O'Toole, supra, at 121, 385-88, 496-98 (discussing generally Civil
War surveillance methods such as wiretaps, reconnaissance balloons, semaphore
interception, and cryptanalysis). In World War I, President Wilson, relying only upon his
inherent constitutional powers and Congress's declaration of war, ordered the censorship
of messages sent outside lhe United States via submarine cables, as well as telegraph and



telephone lines. See Exec. Order2604 (Apr. 28, 1917). And in World Warii, signal
intelligence assisted in the destruction of the Gennan U"boat fleet by U1e Allied naval
forces, see Carl Boyd, American Command of the Sea Through Carriers, Codes, and the
Silent Service: World War If and Beyond 23 (The Marinen;' Museum I 995), the invasion
ofNormandy, see id. at 27, and the war against Japan, see O'Toole, supra, at 32,323-24,
and, in general, "helped to shorten the war by perhaps two years, reduce the loss of life,
and make inevitable an eventual Allied victory," Boyd, supra, at 27. Significantly, not
only was wiretapping in World War II used "extensively by military intelligence and
secret service personnel in combat areas abroad," but also ''by the FBI and secret service
in this country." Dash, supra, at 30. (n fact, the day after Pearl Harbor was attacked,
President Roosevelt temporarily aull10ri~ed the FBI "to direct all news censorship and to
control all other telecommunicatiom traffic in and out of the United States." Jack A.
Gottschalk, "Consistent wilh Security" .. . A History of American Military Press
Censorship, 5 Comm. & L. 35, 39 (1983) (emphasis added); see also Meoiornndurn for
the Secretary of War, Navy, State, Treasury, Postmaster General, Federal
Communications Commission, from Franklin D. Roosevelt (Dec. 8, 1941), in Official
and Confidential File ofFBI Director J Edgar Hoover, Microfilm Reel3, Folder 60
(attached to STELLAR WIND Opinion at Tab I).
As demonstrated, the interception of enemy communications for intelligence
purposes is a fundamental and accepted incident of war, consistent with law-of-war
principles and conducted throughout our Nation's history. At; such, the electronic
surveillance of al Qaeda-related communications fits comfortably within the Hamdi
plurality's analysis of measures authori?.ed by Co~gress after the terrorist attacks of
September II, 200 I. The Congressional Authori?.ation allowing such surveillance must
therefore trump FISA's othexwise applicable prohibitions, just as it (lumped the explicit
prohibition of unauthorized detention in 18 U.S. C.§ 400l(a)-'

· B.

STELLAR WIND 's-Co/lection Activities Are Consistent with the Hamdi
Pluralily 's Further Understanding ofthe Scope of the Congressional

As discussed above, the Hamdi plurality's co11clusion that Congress had
authorized the detention of enemy combatants as a "fundamental incident of waging war"
was tempered by two relevant limitations: (I) the plurality did not consider whether the
Congressional Authorization allowed the detention of individuals other than those who
were "part of or supporting forces hostile to the United States or coalition partners" in
Mghanistan and who "engaged in an anned conflict against the United States" there,
' It rnight be argued that Hamdi can be distinguished on the basis lhat delention of enemy
combalanl$ i.nvolveo a measure of ''force," which Congress explicitly authorized, whereas lhe surveillance
activities of STELLAR WIND do not involve force. But the Hamd<" plwality did not make sucu a
distinction; mUter, it ~imply equated a "fundamental incident of waging war" with the use of ''n=sary
and appropriale force." Hamdi, sUp op. a1 12 (Opinion of O'Connor, J.). In any even~ surveilling a! Qaeda
is clearly a necessary incident ofu.sing "all u=sary and appmpriatc force" against the ten·orist group and
is essential in "prevenl{ing] any futuro acts of int=tional terrorism against tho United Stotes."
Congressional Authorization,§ 2{a).



Hamdi, slip op. at 9 (Opinion of O'Connor, J.), and (2) the plurality understood the


Second, the STELLAR WIND program is authorized only for a limited period,
typically for 30 to 45 days at a time. See STEUAR WIND Opinion, It! 8·9, l 02. Each
reaut11orization is accompanied by a fresh reassessment of the current threat posed by al
Qaeda, thus ensuring that STELLAR WIND is only authorized if there is a continuing
tlmat of a terrorist attack by al Qaeda. See id. STELLAR WIND is thns consistent with
the Hamdi piurality's understanding that the Congressional Authorization allowed
detention only "for the duration of the relevant coriflict." Hamdi, slip op. at 13 (Opinion
of O'Connor, J.).
For the foregoing reasons, the plurality opinion in Hamdi v. Rumsfeld, as well as
Justice Thomas's agreement with the plurality's contelw
'""'"'" sutlPOrt our prior conclusion that content
•mn"rtol<e.n as part of the STELLAR WIND nro:<mim

<I Another limitation on Ha.mdi~s detention was, of coun;~ the Due Process Clause. See Jfam.di,
slip op. at 20.32 (Opinion ofO'Collllor, J.). For STELLAR WIND pwposes, however, it is the Fourth
Amendment, not the Duo Process Clause, that is tl1e relevant constinl!ional constraint See STELLAR
WIND Opinion, Part V (STELLAR WIND C<JDSislent with Fourth Amendment).




Please Jet me know if we can be of further assistance.

flJ-_1 )jJJ.Jf-Zi

~7£. L. Goldsmith, ill

Assistant Attorney General