Profs Oppose Spy Program

A group of prominent law professors—including two from Harvard Law School (HLS)—wrote a letter earlier this week to Congressional leaders in which they rebutted the Bush Administration’s legal case for permitting spying on American citizens.

Loeb University Professor Laurence H. Tribe ’62 and Ames Professor of Law Phillip B. Heymann, a former deputy attorney general during the Clinton administration, were among the 14 signers.

The letter was largely a point-by-point response to a formal defense of the domestic spying program issued by the Department of Justice and sent to Congressional leaders in late December. The Justice letter followed a series of articles in The New York Times that first reported the administration’s spying program, run by the National Security Agency.

In particular, the law professors took issue with two of the administration’s claims—that the Authorization to Use Military Force (AUMF) implicitly authorized domestic spying and that a prohibition on domestic spying without a warrant impinges upon the president’s authority as commander-in-chief. In addition, the professors argued that the spying program could violate the Fourth Amendment’s prohibition on unreasonable searches and seizures.

The professors also argued that the AUMF’s authorization of spying was implicit at best, while the 1987 Foreign Intelligence Surveillance Act (FISA) explicitly prohibits any domestic spying except for 15 days following a declaration of war.

“First, and most importantly, [Justice’s] argument rests on an unstated general ‘implication’ from the AUMF that directly contradicts express and specific language in FISA,” the professors wrote. “Specific and ‘carefully drawn’ statutes prevail over general statutes where there is a conflict.”

The professors added that while it may be permissible for the president to use his authority as commander-in-chief to act “in the absence of Congressional action,” he cannot act contrary to the law when Congress has enacted a specific statute to address the issue.

“To say that the President has inherent authority does not mean that his authority is exclusive, or that his conduct is not subject to statutory regulations,” the professors wrote, citing the Supreme Court invalidation of President Truman’s seizure of steel mills as an example.

The professors also asserted that domestic spying “raises serious questions” under the Fourth Amendment, concluding that FISA “merely imposes reasonable regulation to protect legitimate privacy rights,” and that the president is required to follow the restrictions laid out in the FISA statute.

In addition to sending the letter to the leaders of both chambers of Congress, the professors also sent it to the chairmen and ranking members of the Judiciary and Intelligence Committees. The other signers included former Stanford Law School Dean Kathleen Sullivan, a former HLS professor who has often collaborated with Tribe, and Walter E. Dellinger, a Duke professor who authored the friend of the court brief signed by 40 HLS professors supporting universities’ right to bar military recruiters from campus. Tribe, in a separate but similar letter sent three days earlier to the ranking member of the House Judiciary Committee, Rep. John Conyers, Jr., D-Mich., denounced the domestic spying program in even more forceful terms.

“The presidential program of surveillance at issue here is a violation of the separation of powers,” Tribe wrote in that letter. “[It is] as grave an abuse of executive authority as I can recall ever having studied.”

—Staff writer Paras D. Bhayani can be reached at pbhayani@fas.harvard.edu.