IN A BOLD AND CONTROVERSIAL DECISION, the president authorized a
program for the surveillance of communications within the United
States, seeking to prevent acts of domestic sabotage and
espionage. In so doing, he ignored a statute that possibly
forbade such activity, even though high-profile federal judges
had affirmed the statute’s validity. The president sought
statutory amendments allowing this surveillance but, when no such
legislation was forthcoming, he continued the program
nonetheless. And when Congress demanded that he disclose details
of the surveillance program, the attorney general said, in no
uncertain terms, that it would get nothing of the sort.
In short, President Franklin Delano Roosevelt charted a bold
course in defending the nation’s security in 1940, when he did
all of these things.
It is worth remembering FDR’s example as the debate over the
NSA’s warrantless surveillance continues to heat up. After a few
months’ lull, it seems that the issue is again creeping into the
headlines. On April 27, for example, Senate Judiciary Committee
Chairman Arlen Specter
convened a press conference demanding that President Bush
disclose the details of the NSA’s surveillance program, and
threatening to suspend the program’s funding.
As with so many issues central to the global war on terror in
which the need for security must be balanced against individual
liberties, there is no fool-proof answer to the questions raised
by the NSA’s surveillance program. Yet broad sections of the left
have personalized this debate around President Bush. Their hatred
and distrust of Bush drives them to see the administration’s
actions in the worst light possible. To that extent, it’s
important to understand how President Roosevelt — a paragon of
the left — dealt with similar problems.
PRESIDENT BUSH FACES CHALLENGES on two fronts. First, it’s been
argued that there is no authority for the NSA surveillance,
either statutory or constitutional. Second, congressional critics
demand that the administration disclose the details of the
surveillance program. The Roosevelt administration faced similar
challenges in the days leading up to World War II. Documents that
we obtained from Justice Robert Jackson’s archives at the Library
of Congress, some of which have never before been discussed in
the press, show that President Roosevelt did not doubt his
authority to conduct such surveillance in the interest of
national security.
In 1937 and 1939, the Supreme Court handed down a pair of
decisions in the matter of Nardone v. United States. The
Court held that the Communications Act of 1934 barred federal
surveillance of telephone lines, and that evidence obtained from
such surveillance couldn’t be introduced at trial.
In response, Attorney General (and future Supreme Court justice)
Robert Jackson ended the FBI’s longstanding surveillance of
suspected saboteurs and spies. FBI director J. Edgar Hoover
protested this decision. In an April 13, 1940 memorandum to
Jackson, Hoover outlined a number of pending investigations that
were hampered by Jackson’s decision. Hoover concluded, “Frankly,
the Bureau cannot cope with this problem without the use of wire
taps and I feel obligated to bring this situation to your
attention at the present time rather than to wait until a
national catastrophe focuses the spotlight of public indignation
upon the Department because of its failure to prevent a serious
occurrence.”
President Roosevelt sided with Hoover, not Jackson. In a signed
May 21, 1940 memorandum to his attorney general, FDR wrote:
I have agreed with the broad purpose of the Supreme Court
decision relating to wire-tapping in investigations. The Court is
undoubtedly sound both in regard to the use of evidence secured
over tapped wires in the prosecution of citizens in criminal
cases; and is also right in its opinion that under ordinary
circumstances wire-tapping by Government agents should not be
carried on for the excellent reason that it is almost bound to
lead to abuse of civil rights.
However, I am convinced that the Supreme Court never intended
any dictum in the particular case which it decided to apply to
grave matters involving the defense of the nation.
It is, of course, well known that certain other nations have
been engaged in the organization of propaganda of so-called
“fifth columns” in other countries and in preparation for
sabotage, as well as in actual sabotage.
It is too late to do anything about it after sabotage,
assassinations and “fifth column” activities are completed.
You are, therefore, authorized and directed in such cases as
you may approve, after investigation of the need in each case,
to authorize the necessary investigating agents that they are
at liberty to secure information by listening devices direct to
the conversation or other communications of persons suspected
of subversive activities against the Government of the United
States, including suspected spies. You are requested
furthermore to limit these investigations so conducted to a
minimum and to limit them insofar as possible to aliens.
FDR’s assertion that the Supreme Court didn’t read the
Communications Act to bar surveillance for national defense
wasn’t based on the statute’s text. The Communications Act
provided that “no person not being authorized by the sender shall
intercept any communication and divulge or publish the existence,
contents, substance, purport, effect, or meaning of such
intercepted communication to any person.” The only source for
FDR’s national-security exception was the same as the one now
presented as a defense of the NSA surveillance program: the
president’s inherent constitutional authority, as commander in
chief of the armed forces, to conduct surveillance as an incident
to the military’s defense of our nation.
Despite FDR’s readiness to use his inherent authority, he and
Jackson pushed Congress to give the administration statutory
authority. As Jackson recounted in his memoir, the administration
sought authorization for surveillance for not only “espionage
[and] sabotage,” but also “extortion and kidnapping cases.” The
House was willing only to authorize FBI wiretapping “in the
interest of national defense.” As today, any such legislation was
opposed by the ACLU, as well as (in Jackson’s words) “others of
liberal persuasion.”
FDR and Jackson also opposed those who sought to require that
surveillance be approved not only by the attorney general but
also by the courts, through warrant requirements. As Jackson
wrote in a March 19, 1941 letter to Rep. Hatton Summers, “I do
not favor the search warrant procedure…. Such procedure means
loss of precious time, probably publicity, and filing of charges
against persons as a basis for wire tapping before investigation
is complete which might easily result in great injury to such
persons.”
In the end, FDR and the Congress weren’t able to agree on a
legislative compromise. Nonetheless, President Roosevelt
continued to authorize national-security surveillance. All of
this predated America’s entry into the Second World War.
AFTER CHOOSING TO AUTHORIZE SURVEILLANCE, President Roosevelt
faced angry legislators (similar to Senator Specter and others
today) who called for disclosure of the surveillance program’s
details in order to inform the legislative debate. FDR decided
that Congress was not entitled to, and could not be trusted with,
such information. He thus refused to comply.
Attorney General Jackson spelled this out in an April 30, 1941
letter to Rep. Carl Vinson, Chairman of the House Committee on
Naval Affairs. Jackson reviewed the history of presidential
refusals to disclose national security information, beginning
with President Washington’s 1796 refusal to disclose the details
of treaty negotiations. Jackson warned that to provide such
information to Congress would enable congressional personnel to
leak details to the public, thereby tipping off targets and
embarrassing informants. He said that disclosure would “prejudice
the national defense and be of aid and comfort to the very
subversive elements against which you wish to protect the
country.” And despite the fact that Congress was attempting to
pass legislation pertaining to that very program, Jackson
concluded that information regarding the surveillance “can be of
little, if any, value in connection with the framing of
legislation or the performance of any other constitutional duty
of the Congress.”
Jackson recognized that the president and Congress face different
responsibilities, making agreement between the two branches
difficult on such weighty, heated, time-sensitive issues. The
Constitution gives the president the responsibility to act
quickly and decisively to defend the national security. Congress,
freed from such responsibility, could indulge other
preoccupations. At one point, Jackson wrote Rep. John Coffee that
“I am confident that if you and any of the other liberals in
Congress sat in my seat and were held to some degree of
responsibility for the perpetration of acts of sabotage and
espionage in this country you would feel differently about the
wire tapping bill.”
AND SO IT GOES TODAY. In the coming weeks, Senator Specter and
others may threaten to withhold funds from the NSA or block
nominations (such as General Hayden’s nomination to head the
CIA). The prerogatives of spending cuts and nominations blocks
are within the power of the Congress, just as defense of the
national security is committed to the president. President Bush
can only hope that cooler heads prevail among House and Senate
majorities. But in pursuing his own course of action, President
Bush should keep in mind — and cite as justification — the
example of the opposition party’s greatest hero, President
Roosevelt.
