Keeping Americans Safe

Today we filed an amicus brief with a federal appeals court supporting the federal governments request to overturn a lower court decision that declared a key terrorism surveillance program of the National Security Agency (NSA) unconstitutional.
 
This program is essential to safeguarding American lives and strikes the proper wartime balance between security and freedom.  The fact is that we are facing an enemy which willingly commits the most horrendous, suicidal acts against innocent civilians and which will do so again if it can.  It is the President and not the judiciary that is charged with the responsibility of protecting American lives.  Such wartime measures like the NSA program must emanate from the President as Commander-in-Chief, not from the courts.  This legal challenge by the ACLU designed to tie the hands of a President in time of war is predictable but also very troubling.  We are hopeful the appeals court overturns this disturbing lower court decision and puts the power to protect Americans back in the hands of the President.
 
This case originated when the ACLU filed a lawsuit challenging the Presidents ability to authorize the NSA to gather intelligence through monitoring phone and Internet communications between persons in the United States and persons overseas believed to have terrorist connections. The government believes that this terrorist surveillance program is vital to ensuring that military and other counter-terrorism measures are based upon accurate, up-to-date information.
 
In August 2006, a federal district court judge held that the Presidents intelligence-gathering program is unconstitutional. The case has been appealed to the U.S. Court of Appeals for the Sixth Circuit, where we submitted a friend-of-the-court brief in support of the President.
 
In our brief, we explain that the Constitution provides the President, serving as Commander-in-Chief, with broad authority to take those measures he deems necessary to secure the United States against enemy infiltration and attack.  Among such implied powers is the power to gather intelligence to identify and thwart enemy intentions. The brief also argues that the Authorization of Use of Military Force (AUMF) issued by Congress shortly after the September 11 attacks provided additional [legislative] authority for the President to engage in intelligence gathering via programs like the NSA program. 
 
The brief cites a key 1943 Supreme Court decision which sounded the following warning about the role of courts in assessing the wisdom and reach of discretionary decisions made concerning how to prosecute a war:  Because this situation is without historical precedent, no one can know for sure how much success emerging policies will have.  As such, it would be inappropriate for the courts of the United States to enter the political fray and attempt to second-guess the policies adopted by the President to meet this threat. (Hirabayashi v. United States, 320 U.S. 81 (1943))
 
Our brief argues that the courts should not be involved in this aspect of the war:  Since hostilities began, United States agencies and armed forces have been seeking to identify, capture, or kill members of the al-Qaeda terrorist organization and their supporters, the brief argues.  How to do so involves political decisions which implicate both the national security and foreign policies of the United States, execution of which rightly resides in the political branches.  The Judiciary is ill-equipped to determine the possible impact of such decisions on the wartime foreign and national security policies of the Nation and should be wary of entering the realm of discretionary decision-making reserved to the President.  The district court in this case failed to respect the enumerated and inherent powers of a coordinate branch of government and thereby unconstitutionally violated separation of powers.
 
The brief adds:  It falls to the President to orchestrate national policy and balance benefits and risks.  He both needs and deserves the latitude to develop such policies without undue interference by the Judiciary which, in any case, lacks the competence to deal with such situations.  In wartime, it is useful to remember Justice Goldbergs oft-quoted phrase, that the Constitution is not a suicide pact. (Kennedy v. Mendoza-Martinez, 372 U.S. 144, 159-60 (1963))
 
We concluded:  The NSA program, with its built-in limitations and protections, strikes the proper wartime balance between security and freedom.  The lower court in this matter improperly interfered with the Presidents authority as Commander-in-Chief in wartime, and this Court should reverse the district court and affirm the legality of the NSA program at issue here.
 
We have a legal team that emphasizes national security and the war on terror.  We have also filed briefs with the Supreme Court of the United States in a number of terrorism-related cases.