Memorandum for the Attorney General

TOP SECRET/ICOMINT STELLAR WlND//NOFORN U.S. Department of Justice Office of Legal Counsel Office ofthc Assistan! Anomcy General Washington. D.C. 20530 July 16, 2004 MEMORANDUM FOR THE ATTORNEY GENimAL Re: STELLAR WIND -Implications ofHmndi v. Rumsfeld On May 6, 2004, this Office issued an opinion analyzing the legality of STELLAR WIND. See Memorandum for the Attorney General, from Jack L. Goldsmith, m, &sistant Attorney General, Office of Legal Counsel, Re: Review ofthe legality ofthe STELLAR WIND Program ("STELLAR WTND nni.,;m,:") targeted a1 reassessments ofthe current threat ! e v e authorized by a Congressional resolution providing the President the authority "to use all necessary and appropriate force against those nations, organizations, or persons he determines plaruted, authorized, committed, or aided the terrorist attacks that occurred September 11, 2001." Authorization for Use of Military Force, Pub. L. No. 107-40, § 2(a), 115 .stal224, 224 (~ept. 18, 2001) (reported as a note.to 50 U.S.C.A. § 1541/ ("CongressiOnal AuU10nzat10n''). See STELLAR WIND Opmw11, Parts II.B.l,. on on On June 28, 2004, the Suprem~ Court decided Hamdi v_ Rumsfeld, No. 03-6696, slip op. This memorandum explains why the Court's decision and analysis in Hamdi Congress has authorized the taxgeted contenofSTELLAR WIND. 1 In the alternative, we concluded that (I) even if the Congressional Authorization could not be lWderstood as a clear authorization for signals intelligence activity. it creates. at a minimum, an attlbiguity significant enough. to warrant applica(ion of the canon cf COL:tstitutional avoidance nod therefore to cou.strue relevant portions oftbe.Foreign Intelligence Surveillance Act (''FISA"),as amended, 50 U.S.C. §§ 1801· 1862 (2000 & Supp. 12001), and related relevant proviSioJJS in Title ill of lite Omnibus Crime O;n((ol and Safe Strc;!ts Act of 19611, ~· §§ 25Hl-2521 ('"Title ill") (2000 & Supp.l2001), so as not to prolul>it the oontent-collcetiou activity in STELLAR WIND, and (2) even if the statutory restrictions in FlSA and 'f'rtle ill are oon.strued to apply and prohibit such oollection activity, those statutes would uncoll$titution.ally infringe on the President's exclusive as tile sole organ of tlle Nation in affairs and as Colnn:u!Dd<'l'__ill TOP SECRETI/COM:INf STELLAR WIND//N000RN TOP &;gCRET//COMINT STELLAR WIND//PIOFOR."' Five Justices in Hamrli Agreed that Congress Authorized the Detention of Enemy Combatants I. In lfamdi, the Supreme. Court considere-d the legality ofU1e Government's detention of a United States citizen captured in Afghanistan during the military campaign against the Taliban and eventually held as an "enemy combatant" at a naval brig in South Carolina. Justice O'Connor aru1ounced the judgment of the Court in a plurality opinion joined by Chief Justice Rehnquist and Justices Kennedy and Brey!lr. The pluraHty held that the Congressional Autjlorization passed in response to the attacks of September 11, 2001, was "explicit" authorization for the detention of individuals who were "part of or supporiing forces hostile to t.he United States or coalition partners" 1.n Afghanistan and who "engaged in an anned conflict against the United States" there. liamdi, slip op. at 9, 10 (Opinion ofO'Com\Or, J.). The plurality also concluded, however, that due process required UJat "a citizen--detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opporttmity to rebut the Government's factual asser6ons before a neutral decisionmaker." I d. at 26. Having fOtmd that Han1di was entitled to such process, the plurality voted to remand the case for further proceedings. The decision to remand was joined by Justices Souter and Ginsburg and thus became the majority judgment of the Court Justices Souter and Ginsburg, however, disagreed with the plurality's COM!usion that OJngress authorized detention, see Hamdi, slip op. at 3, 9-10 (Opinion of Souter, J.), and would have held that the Government had failed to justify holding Hamdi, see id. at 15, but concurred in the judgment in order "to give practical effect to the conclusions of eight members of the Court rejecting the Government's position," id. Justice Thomas dissented because he· would have dismissed the appeal on the basis that the Executive's detention ofHamdi comported with the Constitution, see liamdi, slip op. at 17. (Thomas, J., dissenting), wd "should not be subjected to judicial second-guessing," id. at 14. Justice Scalia, joined by Justice Stevens, also dissented, concluding that Hamdi was entitled to release because Congress had not suspended the writ of habeas corpus. See Hamdi, slip op. at 1-2 (Scalia, J., dissenting). As for its specific analysis of the Congressional Authorization, the plurality found that it was "of no moment" that the Authorization did not use language of detention. Hamdi, slip op. at 12 (Opinion of O'Connor, J.). It reached this conclusion even though a separate statute explicitly prohibited the detention of U.S. citizens except pursuant to an Act of Congress. See 18 U.S.C. § 400I(a) ("No citizen shaU be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress."). Rather, "[b]ecause detention to prevent a combatant's return to the battlefield is a fundamental incident of waging war, in permitting the use of 'necessary and appropriate force,, Congress has clearly and wmtistakably authorized" the detention of such combatants. Hamdi, slip op. at 12 (Opinion of O'OJnnor, J.) (emphases added)? Simply because 2 ) See ;u.,o Hcuruff, slip op. at 10 (Opinion of O'Connor, J.) (the detention of combaunts "is so fundamental and accepted an incideut (<) wr as to be an exercise of the 'necessary and appropriate force' Congress bas authorized lhe President to use"); W. (the ¢apture aJJd detention of oombatants by "u:uiversal TOP SECRETI!COMll'IT STELLAR Wl:ND//NOFORN 2 TOP SECRET//COJ\UNT STELLAR 'Aq~!D/JNOFORN detention was a "fundamental incident of waging wa;," therefore, the Congressional Authorization satisfied§ 400\(a)'s requirement that detention be "pursuant to an Act of Congress." !d. at l 0 (assuming for purposes of the opinion, but not deciding, that § 400l(a) applied to military detentions). Two additional aspects of the plurality opinion are notable for the purposes ofthis memorandum. first, the plurality did not consider whether the Congressional Autl10rization allowed the detention of individuals other than those who were "part of or supporting forces hostile to the United States or coalition partners" in Afghanistan and who "engaged in an armed conflict against the United States" there. Id. at 9. It was unnecessary to reach such a question because the Government asserted that Hamdi met that definition and because there could be "no doubt'' that the Congressional Authorization targeted in<lividuals who fought against the United States with "an orgm..ation known to have supported the al Qaeda terrorist network." !d. at 10. Second, the pl=lity understood the Congressional Authorization to include the authority to detain only "for the duration of the relevant conflict." !d. at 13. This understanding was based on "longstanding law-of-wat principles." fd_ Although the plurality opinion garnered only four votes, Justice Thomas, in his dissent, expressly agreed with the plurality's conclusion that the Congressional Authorization authorized the detention of enemy combatants. See Hamdi, slip op. at 9 (Thomas, J., dissenting) ("Although the President very weU may have Inherent authority to detain those arrayed against our troops, I agree with the plurality that we need not decide that question because Congress has authorized the President to do so."). J:ndced, Justice Thomas found the President's authority to detain enemy combatants to be broader than the authority articnlated by the plurality. See id. at 11 ("I do not think that the plurality has adequately explained the breadth of the President's authority to detain enemy combatants ...."); id. at 10 (disagreeing with plurality's conclusion that detention was only authorized for duration of active hostilities). Given Justice Thomas's explicit agreement with the four-Justice plurality that Congress authorized the detention of enemy combatants, as well as his conclusion that the President's authority to detain was even broader than described by the plurality, it is fair to conclude that five Justices in flamdi agreed that the Congressional Authorization is at least as broad as characterized by the plurality. 3 agreemenlond practice" are "important incident[s] of war," !he vecy purpose of which "is!<> prevent captured individuals from «turning to the field ofbattle and taking up lltlllS once again" (alter•tion in original) (internal quotation matks omitted))- j ' In Mark:; v. United States, 430 U.S. 188 (1971), !he Court explained !hot "[w]hen a fragn1ented Court decides a case and no single ratimwc explaining the .-..ult enjoys tho assent of five Iustices, 'the holding of the Court may be viewed! as that position taken by those Membetlt who conC!l!'t'Cd in the judgments on the narrawcstgroundi.'" !d. at 193 (quoting Gregg v. Gecrgia, 428 U.S. 153, !69n.l5 (1976)Hcmphasis added); accord Rommw ''· Oklahoma, 512 U.S. !., 9 (1994); City of Lakewood v. Plaiu D<f11er Publ'g Co., 486 U.S. 750, 764 ,_9 (1988). The Marh Court did not ""Plieilly address wholher a dissent wuld be oomblned with • plurality to fonn a majority holding on a specific issue, although !here is at least oome evidence in the opinion that it would have approved! of eucb a e¢mbinalion. See MiiTks, 430 U.S. at 194 n.S (treating the combined! rulingoheven dissenting judges and one ooncuningjudgeoftho on TO:P SECRET/ICOMINT STELLAR WINJ)JfN<WOR."i 3 TOP SECRETNCOMINT-8TELLAR 11/!Nili/NOFORN U. Hamtli Supports the Conclusion !bat Congre~s AuthorizedSTELLAR WIND Activities A. Sur>'ei/lance of the Enemy, and the Interception ofEnemy Communications Specifically, Are Fundamental and Accepred lncidei•ts of War As already stated, five Justices in Hamdi agreed that in pem1itting the use of "necessary and appropriate force," Congress authorized the detention of enemy combatants. See Hamdi, slip op. at 12 (Opinion of O'Connor, J.}; sup op. at 9-11 (Thomas, J., dissenting). As U1e plurality explained, such detention was authorizedeven though the Authorization did not specifically refer to detention and notwithstanding a separate statute prohibiting unauthorized detentions-because it is a "fundamental" and "accepted" incident of waging war. Hamdi, slip op. at 10, 12 (Opinion of O'Connor, J.). The plurality's understanding of the Congressional Authorization, moreover, was informed by "longo-standing law-of-war principles." !d. at 13. Because the interception of enemy communications for intelligence purposes is a. fun~ental and l?ng-accepted incident of war, the Congr~ likewlse proVIdes authcnty for STELLAR WIND targeted c o n t e n t - - ~!so bane Fifth C'rteuit a.< "constituting • majority on tho issue" and therefore essentially as the holding of the O:mrt of Appeals); soe also Wat.,.,-v. Churchill, 511 U.S. 661,685 {!994)(Soutcr, J., concurring) {combining two diJfcrcnt majority groups of Justices, onoincluding a dissent, tO roach the conclusion that a plllt!l!ity opinion stated lhc holding of1be Court): Jones v. Henderson, 809 F.2d 946, 952 (2d Cir. 1987) (instructing lower court to apply standard derived from "common ground" between Sup rome Court plurality and dissont). But cf. O'Dell v. Netherland, 521 U.S. !51, 160 (1997) (describing Justice White's concurrence in !he judgment of • prior~ as "providing the narrowoot grounds of decision among the Justices whose voiCS were necessary to the judgment') (emphasis added); King v. Palmer, 950 F.2d 771, 783 (D.C. Cir. 1991) (en bane) ("[WJe d<> not lhink we are free to combine a dissent with a concurrence to form a Marks majority."). In aoy even~ even if it «Juld be arg11ed that the Hamdi plurality's holding regarding !he Congressional Aulhorizatinn dOCil n<It coJJStitute a holding of the O>urt be<:ause Justice TholllJIS did not concur in the judgment of the Court, the agreement of five Justices on that issue should nonetheless be ~ive with the lower coum nnd predieti.-e of how the Court may rule in another case. -One further wrinkle on the issue of vote-counting should be noted. In Rumsfe!d v. Padilla, No. 03-1027, slip op. (June 28, 2004), Justice Stevens, fn a dissentjoitted by Justice Hreyer (among oilier.), stated hls belief that !be Congressional Authorization doeo 1101 authorize "the prolrncted, ittcornmuniClldo detention of American citiuas arrested in !he United States.~ Padilla, slip op. at I0-1! 11.8 (Stevens, J. dissenting). Although this position did uot oblaiila majority in Padilla (the O>urt ultirmltely did not roacb the authorization question), it might be a.rgued that Justice Breyer joined collllicting positioos in Hamdi and Padilla regarding the scopo of the Congressional Authori>.ation. But tbe two positions a.re in fact reconcilable. N previously noted, the plurnlity itt Hamdt held that a cifu;eu-<ietaince "must receive notice of1be tactual bosis for his classification [as an enemy comballlnt], and a fair opportunily to rebut the Ge>verrunent's factualliSsertious before a neutral de<:ision maker." fiamdl, slip op, 0126 (Opinion of O'O>nnor, J.). The plurality fUJ;ther held that H~ "unquestiooably hilS the right to acce.S to counsel fn connection with !be pro<.:eedings on remand." Jd. at32. Consistent with Justice Stevens's dissent in Padilla, therefore, the Hamdi plurality did not endorse !he "incommunicado" detention of American citizens. Thus, Justice Breyer's joining of tlte Podilla dissent does not undercut the positioo he and four other Justices took in HamdiregordiJJg the Congressiooal Authorization. TOP SECRET/fCO!'IffiiT ..STELLAR V/l:Pff)}fNOFOR:PI ' 4 TOP SECRET/ICOMl~IT STELLAR 'NlND/R'!OF()R.~I - -Hamdi supports Uris conclusion even though the Authoriz.~tion does ~to intelligence collection and notwithstanding separate statutory restrictions on the use of electronic surveillance inside the United States for foreign intellige~oses. See generally 50 U.S.C. §§ 1801-1810; STElLAR WIND Opinion, atl9-22Surveillance of the enemy is expressly accepted by long-standing law-of-war principles. As one author explained: It is essential in warfare for a belligerent to be as fully infomled as possible about the enemy~hls strength, his weaknesses, measures taken by hlm and measures contemplated by him. This applies not only to military matters, but ... anything which bears on and is material to his ability to wage the war in which he is engaged. The laws of war recognize and sanction this aspect of warfare. Morris Greenspan, The Modem lAw oflAnd Warfare 325 (U. of Cal. Press 1959) (emphases added); see also The Hague Regulations art. 24 (1907) ("[T)be employment of measures necessary for obtaining infonnation about the enemy and the country [is] considered pemlissible. "); Ingrid Detter De Lupis, The Law of War 261 (Cambridge U. Press 1987) ("(I]t is lawful to use recol1llaissance scouts in war[,] and ... the 'gathering of infonnation', by such scouts is not perfidious or in violation of the Law of War."); cf J.M. Spaighl, War RighiS 0111And 205 (MacMillan & Co. 1911) ("[B]very nation employs spies; were a nation so quixotic as to refrain from doing so, it might as well sheathe its sword for ever. . . . Spies ... are indispensably necessary to a general; and, other things being equal, that commander will be victorious who has the best secret service." (internal quotation marks omitted))! Consistent with these well-accepted principles of the Jaws of war, the Supreme Court has long recognized the Presid()Ilt's authority to conduct foreign intelligence activities. See, e.g., Chicago & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 111 (I 948) ("The President, both as Co=auder-in-Cbief and as the Nation's organ for foreign affairs, has available intelligence services whose reports neither are nor ought to be published to the world."); United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936) ("He has his confidential sources of information. He has.his agents in the .fonn of diplomatic, consular, and other officials."); Totten v. U11ited States, 92 U.S. 105, 106 (1876) (recogrrizing President's authority to hire spies). Tl:!e United States, moreover, has a long history ofsurveilli.ng its enemies--a history that can be traced to George Washington. who "was a master of military ' Justice Souter, in his concurrence joiued by Justice Ginsbmg, cxpres.ly recognized thAt compliance with. tb.e Jaws of war wos "one argument for treating the Force Resolution as sufficienUy clear to authorize detention,~ and even "[a]ssum[edJ.the argument to be soU!ld" for purposes -of his concurrence, but ultimately found ''no need .•. to addreSs the IJleriis of such an argurnen4" becaw:e 1hc Govemment bad not demonstmted to his satisfaction that it wus acting in ae<OOrdanco with the laws of war in holding llamdi incommuvieado. See Homdl, slip op. at LO,ll (Opinion of Souter, J.). ThuS. iffiu:ed with deciding whether Congress authorized the surveillanJ:e of a! Qaeda ccnslslcnt with the lam of war, Justices Souter aud Ginsbmg may provide a sixth and sciv.onth vote in favor of anthorizatiol).. TOP 8ECRET/ICO~HN'l' STELLt-.R WINBfJNOF()RN . 5 espionage," and "made frequent and effective uses of secret intelligence in the sewnd half of the eighteenth century." Rhodri Jeffreys-Jones, Cloak ar~d Dollar: A Hisrory of American Secret Infeiligence ll (Yale U Press 2002); see generally id. at 11-23 (recounting Washington's use of intelligence); see also Haig v. Agee, 471 U.S. !59, 172 n.l6 (1981) (quoting General Washington's letter to an agent embarking upon an intelligence mission in 1777; "11te necessity of procuring good intelligence, is apparent and need not be further 11rged."). In 1790, Washington even obtained from Congress a "secret.fund" to deal with foreign dangers and to be spent at his discretion. JeffreysJanes, supra, at 22. The fund, which remained in use up to the creation of Ote CIA in the mid-twentieth century and gained "longstanding acceptance within our constitutional structure," Halperin v. CIA, 629 F.2d 144, 158-59 (D.C. Cir. 1980), was used "for all purposes to which a secret service fimd should or could be applied for the public benefit," including "for persons sent publicly and secretly to search for importru.lt information, political or commercial," id. at !59 (quoting Statement of Senator John Forsyth, Cong. Deb. 295 (Peb. 25, 1831)). See also Totlen, 92 U.S. at 107 (refusing to examine payments from !his ftmd lest the publicity make a "secret service" "impossible"). The interception of enemy communications, in particular, bas long been aw:pted as a fundamental method for cond11ct.ing enemy surveillance. See, e.g., Greenspan; supra, at 326 (accepted and customary means for gathering intelligence "include air reconnaissance and photograp~y; ground reconnaissance; observation of enemy positiom; interception of enemy messages, wireless and other; exantination of captured documents; ... and interrogation of prisoners and civilian inhabitants") (emphasis added). Indeed, since its inception the United States has intercepted enemy conununications for wartime intelligence purposes and, if necessary, has done so even within its own borders. During the Revolutionary War, for example, George Washington received and used to his advantage reportS from American intelligence agents on British military strength, British strategic intentions, and British estimates of American strength. Jeffreys-Janes, supr<l, at 13. One source ofWashington's intelligence was intercepted British maiL See Ccntml Intelligence Agency, Intelligence in the War ofIndepe11dence 31, 32 (l'X17). In fact, Washington himself proposed that one ofhis Generals "contrive a means of opening [Eritish letters) without breaking the seals, take copies of the contents, and then let them go on." ld. at 32 (''From that point on, Washington was privy to British intelligence pouches between New York and Canada.''). Electronic surveillance of enemy rornmunications was conducted in the United States as early as the Civil War, where "(t)elegraph wiretapping was common, and an important intelligence source for both sides." G.J.A.. O'Toole, The Encyclopedia of Americaillntelligence and EspiOI<age 498 (Facts on File l988). Confooemte General Jeb Stuart even "had his own personal wiretapper travel along with him in the field," to intercept military telegraphic communications. Samuel Dash el al., The Eavesdroppers 23. (1971); see also O'Toole, supra, at 121, 385-88, 496-98 (discussing generally Civil War surveillance methods such as wiretaps, reconnaissance balloons, semaphore interception, and cryptanalysis). In World War I, President Wilson, relying only upon his inherent constitutional powers and Congress's declaration of war, ordered the censorship of messages sent outside lhe United States via submarine cables, as well as telegraph and TOP SECRETHCOMINT STEJ,Lf.R WINflf/NOFOR1>1 6 TOP SEGR£THCOMI~!T-£TELLAR 'Nl:l'IDifNOFORN telephone lines. See Exec. Order2604 (Apr. 28, 1917). And in World Warii, signal intelligence assisted in the destruction of the Gennan U"boat fleet by U1e Allied naval forces, see Carl Boyd, American Command of the Sea Through Carriers, Codes, and the Silent Service: World War If and Beyond 23 (The Marinen;' Museum I 995), the invasion ofNormandy, see id. at 27, and the war against Japan, see O'Toole, supra, at 32,323-24, and, in general, "helped to shorten the war by perhaps two years, reduce the loss of life, and make inevitable an eventual Allied victory," Boyd, supra, at 27. Significantly, not only was wiretapping in World War II used "extensively by military intelligence and secret service personnel in combat areas abroad," but also ''by the FBI and secret service in this country." Dash, supra, at 30. (n fact, the day after Pearl Harbor was attacked, President Roosevelt temporarily aull10ri~ed the FBI "to direct all news censorship and to control all other telecommunicatiom traffic in and out of the United States." Jack A. Gottschalk, "Consistent wilh Security" .. . A History of American Military Press Censorship, 5 Comm. & L. 35, 39 (1983) (emphasis added); see also Meoiornndurn for the Secretary of War, Navy, State, Treasury, Postmaster General, Federal Communications Commission, from Franklin D. Roosevelt (Dec. 8, 1941), in Official and Confidential File ofFBI Director J Edgar Hoover, Microfilm Reel3, Folder 60 (attached to STELLAR WIND Opinion at Tab I). As demonstrated, the interception of enemy communications for intelligence purposes is a fundamental and accepted incident of war, consistent with law-of-war principles and conducted throughout our Nation's history. At; such, the electronic surveillance of al Qaeda-related communications fits comfortably within the Hamdi plurality's analysis of measures authori?.ed by Co~gress after the terrorist attacks of September II, 200 I. The Congressional Authori?.ation allowing such surveillance must therefore trump FISA's othexwise applicable prohibitions, just as it (lumped the explicit prohibition of unauthorized detention in 18 U.S. C.§ 400l(a)-' · B. STELLAR WIND 's-Co/lection Activities Are Consistent with the Hamdi Pluralily 's Further Understanding ofthe Scope of the Congressional Authorization As discussed above, the Hamdi plurality's co11clusion that Congress had authorized the detention of enemy combatants as a "fundamental incident of waging war" was tempered by two relevant limitations: (I) the plurality did not consider whether the Congressional Authorization allowed the detention of individuals other than those who were "part of or supporting forces hostile to the United States or coalition partners" in Mghanistan and who "engaged in an anned conflict against the United States" there, ' It rnight be argued that Hamdi can be distinguished on the basis lhat delention of enemy combalanl$ i.nvolveo a measure of ''force," which Congress explicitly authorized, whereas lhe surveillance activities of STELLAR WIND do not involve force. But the Hamd<" plwality did not make sucu a distinction; mUter, it ~imply equated a "fundamental incident of waging war" with the use of ''n=sary and appropriale force." Hamdi, sUp op. a1 12 (Opinion of O'Connor, J.). In any even~ surveilling a! Qaeda is clearly a necessary incident ofu.sing "all u=sary and appmpriatc force" against the ten·orist group and is essential in "prevenl{ing] any futuro acts of int=tional terrorism against tho United Stotes." Congressional Authorization,§ 2{a). TOP SECRETHCOMINT..STBLLAR WIND//NOFORN 7 TOP SECRET//COMINT STELLAR 'Nli'IDIINOFORN Hamdi, slip op. at 9 (Opinion of O'Connor, J.), and (2) the plurality understood the ---·t1'-· Second, the STELLAR WIND program is authorized only for a limited period, typically for 30 to 45 days at a time. See STEUAR WIND Opinion, It! 8·9, l 02. Each reaut11orization is accompanied by a fresh reassessment of the current threat posed by al Qaeda, thus ensuring that STELLAR WIND is only authorized if there is a continuing tlmat of a terrorist attack by al Qaeda. See id. STELLAR WIND is thns consistent with the Hamdi piurality's understanding that the Congressional Authorization allowed detention only "for the duration of the relevant coriflict." Hamdi, slip op. at 13 (Opinion of O'Connor, J.). CONCLUSION For the foregoing reasons, the plurality opinion in Hamdi v. Rumsfeld, as well as Justice Thomas's agreement with the plurality's contelw '""'"'" sutlPOrt our prior conclusion that content •mn"rtol<e.n as part of the STELLAR WIND nro:<mim <I Another limitation on Ha.mdi~s detention was, of coun;~ the Due Process Clause. See Jfam.di, slip op. at 20.32 (Opinion ofO'Collllor, J.). For STELLAR WIND pwposes, however, it is the Fourth Amendment, not the Duo Process Clause, that is tl1e relevant constinl!ional constraint See STELLAR WIND Opinion, Part V (STELLAR WIND C<JDSislent with Fourth Amendment). ' ' TOP SECl.lETliCOMIN'f-STE.LLt'.R 1!/IND.'JNOFORN 8 TOP SECRET/!COMIN'f 8TELLAil V/IN9/IPIUl<'UHd'l Please Jet me know if we can be of further assistance. flJ-_1 )jJJ.Jf-Zi ~7£. L. Goldsmith, ill Assistant Attorney General TOP SECP.£T/lCOl\fiNT;sTELLAR \VINDHNOFOR..l\l 9