The Surprisingly Stronger Case for the Legality of the NSA Surveillance Program: The FDR Precedent

57 Pages Posted: 4 Mar 2008 Last revised: 11 Mar 2008

See all articles by Neal Kumar Katyal

Neal Kumar Katyal

Georgetown University Law Center

Richard Caplan

affiliation not provided to SSRN

Abstract

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.

Keywords: separation of powers, constitutional law, national security/terrorism, criminal law

Suggested Citation

Katyal, Neal K. and Caplan, Richard, The Surprisingly Stronger Case for the Legality of the NSA Surveillance Program: The FDR Precedent. Stanford Law Review, 2008, Georgetown Public Law Research Paper No. 1101577, Available at SSRN: https://ssrn.com/abstract=1101577

Georgetown Law Center Submitter (Contact Author)

Georgetown University Law Center ( email )

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Washington, DC 20001
United States

Neal K. Katyal

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States
202-662-9807 (Phone)
202-662-9410 (Fax)

Richard Caplan

affiliation not provided to SSRN ( email )

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