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.