The Surprisingly Stronger Case for the Legality of the NSA Surveillance Program: The FDR Precedent, an article written by Neal Katyal and Richard Caplan and soon to be published in an upcoming issue of the Stanford Law Review, has just been posted to SSRN and BePress.
This Article explains why the legal case for the recently disclosed National Security Agency surveillance program turns out to be stronger than what the Administration has advanced. In defending its action, the Administration overlooked the details surrounding one of the most important periods of presidentially imposed surveillance in wartime: President Franklin Delano Roosevelt’s wiretapping and his secret end-run around both the wiretapping prohibition enacted by Congress and decisions of the United States Supreme Court. As explored through primary source material, President Roosevelt acted against the interpretations of, among others, his Attorney General and the Supreme Court regarding a law passed by Congress, deciding, in secret, that wiretapping was essentially his prerogative. That Attorney General, Robert Jackson, later remarked that it was “[t]he only case that I recall in which [FDR] declined to abide by a decision of the Supreme Court.”
The FDR precedent provides some justification for what is known about President Bush’s wiretapping program — more, it would seem, than what has been put forward by the Administration itself. By outlining some of the general conditions under which Executive Branch precedent may justify contemporary national security decisions, we develop a framework for Executive Branch stare decisis and ultimately conclude that the FDR precedent should not be followed today. We recognize, however, that our conclusion is debatable, and believe that the FDR precedent deserves widespread debate, instead of the inattention it has received thus far. We further explain why the past history and present experience with wiretapping reveals the relative frailty of both courts and Congress in national security disputes, and highlights the need to lace the concept of “separation of powers” into the Executive Branch.