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The Privacy Advisor | Who is who, and what do they do? Executive powers over surveillance Related reading: Who is who, and what do they do? A series

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There are any number of discussions on the news about intelligence gathering, the intelligence community, the Foreign Intelligence Surveillance Court, as well as many other agencies with three-letter acronyms. One of the problems is many people don’t know what these entities are, or what they actually do, particularly in connection with cybersecurity. 

The “Who is who and what do they do?” series examines a number of intelligence, law enforcement, and other agencies and entities, and try to explain, based upon open-source material, who the agencies are and what they do.

In previous installments of this series exploring the foreign surveillance and national security law of the United States, we have described the major players in the United States intelligence community and the primary cybersecurity players. In this installment, we turn to the sources of surveillance authority in the U.S. beginning with the authority held by the president by virtue of the Constitution and a number of key congressional statutes.

The scope of presidential power 

American presidents going all the way back to George Washington have exercised presidential power expressly granted by the Constitution, as well as powers they believed to be implied by those grants of power. While the president does possess meaningful powers in the foreign affairs and foreign surveillance context, the scope of those powers (particularly asserted implied or inherent powers) is somewhat ambiguous. This ambiguity is the result of two primary causes. First, the nature of implied powers is that they are by definition implied — they require the assertion of power beyond the clear grants of constitutional text, assertions which may or may not be constitutional. Second, while presidents have exercised the powers they believe to possess, it is United States Supreme Court and not the president that is the final arbiter of whether the exercise of these powers are legal.

This is perhaps the most foundational principle of American Constitutional Law, going all the way back to Marbury v. Madison. Yet the Supreme Court has only rarely ruled on the powers of the presidency since President Madison’s assertion that he did not have to deliver William Marbury’s judicial commission. The thinness of precedent is partly due to the Supreme Court’s reluctance to rule on so-called “political questions,” particularly in the foreign affairs context, and partly because constitutional crises resulting from presidential assertions of power have been thankfully quite rare. But the fact remains that when it comes to presidential assertions of power, we know that presidential power has legal limits, but not precisely where those limits are. The fact of this uncertainty colors much of the analysis which follows.

Another very important point to consider regarding presidential power is that the president’s powers are not fixed, but actually vary in scope depending upon the actions of Congress. The critical case considering presidential powers in this context is “The Steel Seizure Case,” formally captioned as Youngstown Sheet & Tube Co. v. Sawyer. This case arose from the seizure by President Truman of the majority of the nation’s steel mills in an attempt to avert a labor crisis during the Korean War. The most relevant portion of the opinion is the concurrence of Justice Jackson, which identifies three scenarios that describe the president’s powers.

  • When the president acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth), to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the federal government as an undivided whole lacks power. A seizure executed by the president pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.
  • When the president acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.
  • When the president takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only be disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system. (Youngstown Sheet & Tube Co. v. Sawyer.)

Thus, where the president acts pursuant Congressional authorization, his powers are at their greatest. Where the president acts contrary to the will of Congress, his powers are at their weakest. And where the president acts where Congress has been silent, his powers are at an intermediate level. (We note that the recent Supreme Court case of Hawaii v. Trump in (2018), upholding the current president’s exclusion of aliens from six majority-Muslim countries, appears to have been in the first category, in which the president acts pursuant to the powers granted by Congressional authorization by Congress via the Immigration and Naturalization Act). 

Given the patchwork of statutes and Executive Orders at play in the surveillance context, understanding these distinctions is critical when examining surveillance authorities.

The sources of presidential authority 

While the scope of presidential powers, as noted above, are both unclear and dependent upon the actions of Congress, it appears reasonably certain that the president has some inherent authority to conduct surveillance in the national security arena, and warrantless wiretap has a long history in the United States, from President Roosevelt forward. The source of this authority is partly Constitutional, though Congress has enacted statutes that also provide (and constrain) the Executive Branch authority in this arena, such as the Foreign Surveillance Intelligence Act of 1978.

While the Executive Branch’s authority has been regulated in some ways, several decisions from the 1970s suggest that the Executive Branch has independent constitutional authority to engage in foreign intelligence activities. 

One of the first cases to address this issue was United States v. United States District Court (1972). This case will be discussed later in the series as it draws an important distinction that is sometimes elusive — between purely domestic “criminal” activity and purely domestic “national security” issues that are also ultimately crimes, but also impact the security of the union. That said, the court realized that the Keith case involved the delicate question of the president's power, acting through the attorney general, to authorize electronic surveillance in internal security matters without prior judicial approval. Presidential authority to surveil in national security cases was further considered in subsequent lower court cases, including for example, United States v. Brown and United States v. Butenko, which hold that the Executive Branch has inherent power to conduct warrantless surveillance in the foreign intelligence space. 

Look for more on executive power over surveillance in the next edition of The Privacy Advisor.

photo credit: Retis spY, Cameras, Toronto, 2016 via photopin (license)

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