Statement - Derek Shaffer

Derek Shaffer is the Executive Director of the Stanford Constitutional Law Center

I currently serve as the Stanford Constitutional Law Center’s Executive Director. Our Center was launched by its Director, Professor and Former Dean Kathleen Sullivan, earlier this year to carry on Stanford Law School’s long and distinguished tradition of helping shape public and academic debate on leading constitutional issues. We aim at gathering consensus and advancing constitutional norms irrespective of partisan political concerns, including through participating in litigation efforts such as ACLU v. NSA. The Center’s areas of focus include the separation of legislative, executive and judicial powers in light of new threats to the nation’s security. The government’s present conduct of the war on terror poses challenges to this structural separation of powers, raising pressing issues starkly presented by the warrantless electronic surveillance challenged in this case.

The Stanford Constitutional Law Center has filed an amicus brief in ACLU v. NSA urging affirmance of the decision below, which sustained the ACLU’s challenge to the government’s surveillance without judicial warrant of electronic communications extending within the United States. Our brief argues that the surveillance program plainly violates the Foreign Intelligence Surveillance Act (FISA), the governing statute Congress has carefully and comprehensively crafted in order to regulate such surveillance by the Executive Branch under the auspices of national security. FISA explicitly governs the Executive’s conduct of electronic surveillance on U.S. soil even in times of war, which conduct is well within Congress’s constitutional competence to regulate. The text of our Constitution, the understanding of its contemporaries, and more than 200 years of ensuing court decisions all confirm that Congress is entitled to pass, and the Judiciary is obliged to enforce, a statute such as FISA as binding upon the Executive. That is ample reason for the program at issue in this case to be struck down.

The amici the Center represents in this case are a diverse and distinguished group of constitutional law scholars and former government officials. They served in different administrations, and hold varying views on many issues. Their ability to speak with one voice to this important issue attests that it can and should be resolved under established norms of statutory construction and constitutional distribution of powers. A subgroup of the amici submitted a series of detailed letters to Congress earlier this year explaining their view that the program at issue is unlawful and refuting arguments by the U.S. Department of Justice to the contrary. These letters and other relevant materials are currently posted on the Center’s website and can be found at www.law.stanford.edu/program/centers/conlaw/#constitutional_controversies