From the Federalist Society’s Barbara Olson Memorial Lecture tonight:
in the days following 9/11, the President authorized the National Security Agency to intercept a certain category of terrorist-linked international communications. On occasion you will hear this called a domestic surveillance program. That is more than a misnomer; it’s a flat-out falsehood. We are talking about international communications, one end of which we have reason to believe is related to al Qaeda and to terrorist networks. And in a post-9/11 world, it’s hard to think of any category of information that could be more important to the safety of the United States.
The activities conducted under this authorization have, without any doubt, helped to detect and prevent terrorist attacks against America and saved American lives. I note, as well, that leaders of Congress from both parties have been briefed more than a dozen times on the President’s authorization, and on activities conducted under it. I have personally presided over those briefings. In addition, the entire program undergoes a thorough review approximately every 45 days. After each review, the President personally has to determine whether to reauthorize the program. And he has done so more than 30 times since September 11th – and he has indicated his intent to continue doing so as long as our nation faces a threat from al Qaeda and related organizations.
Yet none of these considerations was persuasive to a federal district court in the state of Michigan, which ruled three months ago that the NSA program violated the Constitution and the Foreign Intelligence Surveillance Act. The court found, among other factors, that warrantless surveillance of terrorist-related communications would cause irreparable injury to the American Civil Liberties Union and other plaintiffs. (Laughter.) As a remedy, the district court granted a permanent injunction – in other words, ordered the President of the United States to cease all activities under the Terrorist Surveillance Program.
The Sixth Circuit Court of Appeals has stayed that injunction, and the government is now waging a forceful appeal on the merits. President Bush and I have complete confidence that the district court’s ruling will be reversed.
We’re confident because the Terrorist Surveillance Program rests on firm legal ground. The Joint Authorization to Use Military Force, passed by Congress after 9/11, provides more than enough latitude for these activities. Therefore the warrant requirements of the FISA law do not apply to this wartime measure. And the program falls squarely within the constitutional powers of the President. Every appellate court to rule on this issue has recognized inherent presidential authority to conduct warrantless surveillance to counter threats directed at the country from abroad. The district court’s opinion — which The New York Times called “careful and thoroughly grounded” — (Laughter.) — did not distinguish any of those prior federal decisions. Nor, indeed, did the district court even cite those decisions.
The district court also held that the Terrorist Surveillance Program violates the doctrine of separation of powers. We, of course, disagree and expect to prevail on that issue as well. But since we’re on the subject of separation of powers, one conclusion is hard to escape: the Michigan district court’s decision is an indefensible act of judicial overreaching. (Applause.)
As law students and lawyers, of course, all of you understand that a given point of view isn’t necessarily correct, or even persuasive, merely because it’s been handed down by a judge. There’s a reason these things are called opinions. (Laughter.) But the Michigan decision is something altogether different, and it’s very troubling: It is a court order tying the hands of the President of the United States in the conduct of a war. And this is a matter entirely outside the competence of the judiciary. (Applause.)…