Legal Analysis of the NSA Domestic Surveillance Program:
Was the secret NSA surveillance program legal? Was it constitutional? Did it violate federal statutory law? It turns out these are hard questions, but I wanted to try my best to answer them. My answer is pretty tentative, but here it goes: Although it hinges somewhat on technical details we don't know, it seems that the program was probably constitutional but probably violated the federal law known as the Foreign Intelligence Surveillance Act. My answer is extra-cautious for two reasons. First, there is some wiggle room in FISA, depending on technical details we don't know of how the surveillance was done. Second, there is at least a colorable argument — if, I think in the end, an unpersuasive one — that the surveillance was authorized by the Authorization to Use Miltary Force as construed in the Hamdi opinion.
This is a really long post, so let me tell you where I'm going. I'm going to start with the Fourth Amendment; then turn to FISA; next look to the Authorization to Use Military Force; and conclude by looking at claim that the surveillance was justified by the inherent authority of Article II. And before I start, let me be clear that nothing in this post is intended to express or reflect a normative take of whether the surveillance program is a good idea or a bad idea. In other words, I'm just trying to answer what the law is, not say what the law should be. If you think my analysis is wrong, please let me know in the comment section; I'd be delighted to post a correction.
The Fourth Amendment. On the whole, I think there are some pretty decent arguments that this program did not violate the Fourth Amendment under existing precedent. There are a bunch of different arguments here, but let me focus on two: the border search exception and a national security exception. Neither is a slam dunk, by any means, but each are plausible arguments left open by the cases.
The border search exception permits searches at the border of the United States "or its functional equivalent." United States v. Montoya De Hernandez, 473 U.S. 531, 538 (1985). The idea here is that the United States as a sovereign has a right to inspect stuff entering or exiting the country as a way of protecting its sovereign interests, and that the Fourth Amendment permits such searches. Courts have applied the border search exception in cases of PCs and computer hard drives; if you bring a computer into or out of the United States, the government can search your computer for contraband or other prohibited items at the airport or wherever you are entering or leaving the country. See, e.g., United States v. Ickes, 393 F.3d 501 (4th Cir. 2005) (Wilkinson, J.).
As I understand it, all of the monitoring involved in the NSA program involved international calls (and international e-mails). That is, the NSA was intercepting communications in the U.S., but only communications going outside the U.S. or coming from abroad. I'm not aware of any cases applying the border search exception to raw data, as compared to the search of a physical device that stores data, so this is untested ground. At the same time, I don't know of a rationale in the caselaw for treating data differently than physical storage devices. The case law on the border search exception is phrased in pretty broad language, so it seems at least plausible that a border search exception could apply to monitoring at an ISP or telephone provider as the "functional equivalent of the border," much like airports are the functional equivalent of the border in the case of international airline travel. [UPDATE: A number of people have contacted me or left comments expressing skepticism about this argument. In response, let me point out the most persuasive case on point: United States v. Ramsey, holding that the border search exception applies to all international postal mail, permitting all international postal mail to be searched. Again, this isn't a slam dunk, but I think a plausible argument -- and with dicta that seems to say that mode of transportation is not relevant.]
The government would have a second argument in case a court doesn't accept the border search exception: the open question of whether there is a national security exception to the Fourth Amendment that permits the government to conduct searches and surveillance for foreign intelligence surveillance. Footnote 23 of Katz v. United States left this open, and Justice White's conccurrence in Katz expanded on this point:
Foreign Intelligence Surveillance Act. Now let's turn to FISA, a 1978 law that Congress enacted in response to the Keith case. FISA goes beyond the Keith case, including foreign intelligence surveillance in its scope even though it was left open as a constututional question.
Specifically, 50 U.S.C. 1809 prohibits "electronic surveillance" except as authorized by statutory law: "A person is guilty of an offense if he intentionally . . . engages in electronic surveillance under color of law except as authorized by statute." "Electronic surveillance" is defined in 50 U.S.C. 1801(f) to mean, in relevant part:
Putting aside the AUMF and statutory exceptions for now, let's consider whether the NSA surveillance program violates the basic prohibition of 50 U.S.C. 1809 — intentionally conducting electronic surveillance. I think the answer is probably yes. If the surveillance tapped wire communications under 1801(f)(2), the case is pretty clear: the surveillance involved people in the U.S. and survillance in the U.S., and that's all that is required. If the surveillance involved radio communications (satellite communications, I'm guessing), that's a bit trickier. There is at least a little wiggle room in Section 1801(f)(1). For example, you could say that the border search exception eliminates Fourth Amendment protection, such that there was no reasonable expectation of privacy and therefore there would be no warrant required in an analogous criminal case. In that case, the tapping of the radio communication wouldn't count as "electronic surveillance." I don't think we know the details of how the communucations were obtained, so I think it's fair to say that the surveillance probably violated the basic proibition but it at least arguably depends on some of the technical details we don't know.
Now, on to the exceptions. 50 U.S.C. 1802(a)(1) provides in relevant part:
(Aside: Remember back in 2003 when a copy of the Administration's "Domestic Security Enhancement Act" — sometimes dubbed "Patriot II" — was leaked to the press? Section 501 of that Act would have made "providing material support" to a terrorist group an automatic ground for terminating citizenship. This is just a guess, but I wonder if the thinking was that this would make the NSA warrantless monitoring program legal under FISA. An individual who made regular contact with Al Qaeda could be giving them material support, and the individual would then no longer be a United States person and could then be legally subject to monitoring. Just speculation, but it might explain the thinking behind the legislative proposal. Anyway, back to our regularly scheduled programming.)
Authorization to Use Military Force. The next question is whether the Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224, justified the monitoring. The authorizaton states in relevant part:
The Supreme Court considered the legal effect of the AUMF in Hamdi v. Rumsfeld. Yaser Hamdi was being held as an enemy combatant, and claimed that his detention violated 18 U.S.C. 4001. Section 4001(a) states that "[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." Given Justice Thomas's very broad reading of the AUMF in his dissent, I think the key interpretation is that of Justice O'Connor's plurality opinion, joined by Chief Justice Rehnquist, Justice Kennedy, and Justice Breyer. Justice O'Connor concluded that the the AUMF was "an act of Congress" that authorized Hamdi's detention, such that the detention did not violate 4001(a):
In the end, my best sense is that the AUMF doesn't extend to this. I have three reasons. First, O'Connor's opinion says the following about detention for interrogation: "Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized." It seems to me that surveillance and wiretapping is pretty similar to interrogation: the point of both is getting information about your enemy. Second, it doesn't seem like wiretapping counts as a "use of force." If you read the text of the AUMF, it doesn't seem to me that it authorizes wiretapping. Finally, note that Congress passed the Patriot Act about a month after passing the AUMF; if Congress had intended the AUMF to give the president wide authority to conduct domestic surveillance against Al Qaeda, I don't think they would have spent so much time amending FISA for terrorism investigations. So at bottom, I think the AUMF probably didn't authorize this, although the Hamdi case gives some colorable (if ultimately unpersuasive) arguments that it might.
Article II. The final argument is that Article II of the Constitution gives the President inherent authority to conduct such monitoring. The Administration introduced this theory in a supplemental brief filed in the FISA Court of Review:
I have been unable to find any caselaw in support of this argument. Further, the argument has no support from the cases cited in the government's brief. In all three of those cases — Butenko, Truong, and Keith - the Courts were talking about whether the President's interest in conducting foreign intelligence monitoring creates an exception to the Warrant Requirement of the Fourth Amendment. In other words, the issue in those case was whether the Constitution bars warrantless surveillance absent Congressional action, not whether Congressional prohibitons in this area cannot bind the Executive branch.
Consider the citation to the Butenko case. Here is the relevant section, from 494 F.2d at 608:
Conclusion. Anyway, that's my tentative take; I hope it's helpful. It's entirely possible that I goofed the analysis somewhere along the way; FISA, the AUMF, and Article II aren't my area of expertise, so we should consider this post a work in progress. I look forward to comments — civil and respectful, please.
UPDATE: A lawyer I know who works in this area e-mails in additional thoughts:
This is a really long post, so let me tell you where I'm going. I'm going to start with the Fourth Amendment; then turn to FISA; next look to the Authorization to Use Military Force; and conclude by looking at claim that the surveillance was justified by the inherent authority of Article II. And before I start, let me be clear that nothing in this post is intended to express or reflect a normative take of whether the surveillance program is a good idea or a bad idea. In other words, I'm just trying to answer what the law is, not say what the law should be. If you think my analysis is wrong, please let me know in the comment section; I'd be delighted to post a correction.
The Fourth Amendment. On the whole, I think there are some pretty decent arguments that this program did not violate the Fourth Amendment under existing precedent. There are a bunch of different arguments here, but let me focus on two: the border search exception and a national security exception. Neither is a slam dunk, by any means, but each are plausible arguments left open by the cases.
The border search exception permits searches at the border of the United States "or its functional equivalent." United States v. Montoya De Hernandez, 473 U.S. 531, 538 (1985). The idea here is that the United States as a sovereign has a right to inspect stuff entering or exiting the country as a way of protecting its sovereign interests, and that the Fourth Amendment permits such searches. Courts have applied the border search exception in cases of PCs and computer hard drives; if you bring a computer into or out of the United States, the government can search your computer for contraband or other prohibited items at the airport or wherever you are entering or leaving the country. See, e.g., United States v. Ickes, 393 F.3d 501 (4th Cir. 2005) (Wilkinson, J.).
As I understand it, all of the monitoring involved in the NSA program involved international calls (and international e-mails). That is, the NSA was intercepting communications in the U.S., but only communications going outside the U.S. or coming from abroad. I'm not aware of any cases applying the border search exception to raw data, as compared to the search of a physical device that stores data, so this is untested ground. At the same time, I don't know of a rationale in the caselaw for treating data differently than physical storage devices. The case law on the border search exception is phrased in pretty broad language, so it seems at least plausible that a border search exception could apply to monitoring at an ISP or telephone provider as the "functional equivalent of the border," much like airports are the functional equivalent of the border in the case of international airline travel. [UPDATE: A number of people have contacted me or left comments expressing skepticism about this argument. In response, let me point out the most persuasive case on point: United States v. Ramsey, holding that the border search exception applies to all international postal mail, permitting all international postal mail to be searched. Again, this isn't a slam dunk, but I think a plausible argument -- and with dicta that seems to say that mode of transportation is not relevant.]
The government would have a second argument in case a court doesn't accept the border search exception: the open question of whether there is a national security exception to the Fourth Amendment that permits the government to conduct searches and surveillance for foreign intelligence surveillance. Footnote 23 of Katz v. United States left this open, and Justice White's conccurrence in Katz expanded on this point:
Wiretapping to protect the security of the Nation has been authorized by successive Presidents. The present Administration would apparently save national security cases from restrictions against wiretapping. We should not require the warrant procedure and the magistrate's judgment if the President of the United States or his chief legal officer, the Attorney General, has considered the requirements of national security and authorized electronic surveillance as reasonable.The Supreme Court also left this question open in the so-called "Keith" case, United States v. United States District Court, in 1972. Justice Powell's opinion in the Keith case concluded that there was no national security exception to the Fourth Amendment for evidence collection involving domestic organizations, but expressly held open the possibility that such an exception existed for foreign intelligence collection:
Further, the instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country. The Attorney General's affidavit in this case states that the surveillances were "deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of Government." There is no evidence of any involvement, directly or indirectly, of a foreign power.The administration presumably takes the position that the President does have such power in cases involving foreign evidence collection, and that the NSA surveillance is such a case. The Supreme Court has never resolved the question, so it's an open constitutional issue. Nonetheless, between the border search exception and the open possibility of a national security exception, there are pretty decent arguments that the monitoring did not violate the Fourth Amendment. Maybe persuasive, maybe not, but certainly open and fair arguments under the case law.
Foreign Intelligence Surveillance Act. Now let's turn to FISA, a 1978 law that Congress enacted in response to the Keith case. FISA goes beyond the Keith case, including foreign intelligence surveillance in its scope even though it was left open as a constututional question.
Specifically, 50 U.S.C. 1809 prohibits "electronic surveillance" except as authorized by statutory law: "A person is guilty of an offense if he intentionally . . . engages in electronic surveillance under color of law except as authorized by statute." "Electronic surveillance" is defined in 50 U.S.C. 1801(f) to mean, in relevant part:
(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;A "United States person" is defined in 50 U.S.C. 1801(i) as "a citizen of the United States [or] an alien lawfully admitted for permanent residence." A "wire communication" is defined as a communication that is traveling by a wire; I don't know if "radio communication" is a defined term, but I assume it refers primary to satellite communications.
(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States. . . .
Putting aside the AUMF and statutory exceptions for now, let's consider whether the NSA surveillance program violates the basic prohibition of 50 U.S.C. 1809 — intentionally conducting electronic surveillance. I think the answer is probably yes. If the surveillance tapped wire communications under 1801(f)(2), the case is pretty clear: the surveillance involved people in the U.S. and survillance in the U.S., and that's all that is required. If the surveillance involved radio communications (satellite communications, I'm guessing), that's a bit trickier. There is at least a little wiggle room in Section 1801(f)(1). For example, you could say that the border search exception eliminates Fourth Amendment protection, such that there was no reasonable expectation of privacy and therefore there would be no warrant required in an analogous criminal case. In that case, the tapping of the radio communication wouldn't count as "electronic surveillance." I don't think we know the details of how the communucations were obtained, so I think it's fair to say that the surveillance probably violated the basic proibition but it at least arguably depends on some of the technical details we don't know.
Now, on to the exceptions. 50 U.S.C. 1802(a)(1) provides in relevant part:
Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that--Does this exception permit the monitoring? Note that (i) and (ii) are both dealing with "foreign power, as defined in (a)(1), (2), or (3) of this title." FISA's definition of "foreign power" appears in 50 U.S.C. 1801:
(A) the electronic surveillance is solely directed at--
(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801(a)(1), (2), or (3) of this title; or
(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801(a)(1), (2), or (3) of this title; [and]
(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party.
(1) a foreign government or any component thereof, whether or not recognized by the United States;So as I read the statutes, Congress was trying to give an exception for monitoring foreign governments (a1, a2, a3) but not terrorist groups (a4, a5, a6), so long as no citizens or lawful permanent resident aliens were being monitored. There are interesting questions of how that might have applied to Al Qaeda in Afghanistan, but I don't think we need to reach them. It's my understanding that the program monitored both citizens and non-citizens, so I don't see how the exception is applicable.
(2) a faction of a foreign nation or nations, not substantially composed of United States persons;
(3) an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments;
(4) a group engaged in international terrorism or activities in preparation therefor;
(5) a foreign-based political organization, not substantially composed of United States persons; or
(6) an entity that is directed and controlled by a foreign government or governments.
(Aside: Remember back in 2003 when a copy of the Administration's "Domestic Security Enhancement Act" — sometimes dubbed "Patriot II" — was leaked to the press? Section 501 of that Act would have made "providing material support" to a terrorist group an automatic ground for terminating citizenship. This is just a guess, but I wonder if the thinking was that this would make the NSA warrantless monitoring program legal under FISA. An individual who made regular contact with Al Qaeda could be giving them material support, and the individual would then no longer be a United States person and could then be legally subject to monitoring. Just speculation, but it might explain the thinking behind the legislative proposal. Anyway, back to our regularly scheduled programming.)
Authorization to Use Military Force. The next question is whether the Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224, justified the monitoring. The authorizaton states in relevant part:
AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.I assume that the Administration's claim is that the AUMF counts as a "statute" that authorizes the surveillance: 50 U.S.C. 1809 states that "A person is guilty of an offense if he intentionally . . . engages in electronic surveillance under color of law except as authorized by statute," so if the AUMF authorized the electronic surveillance, then the NSA program didn't violate FISA.
(a) IN GENERAL.--That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
The Supreme Court considered the legal effect of the AUMF in Hamdi v. Rumsfeld. Yaser Hamdi was being held as an enemy combatant, and claimed that his detention violated 18 U.S.C. 4001. Section 4001(a) states that "[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." Given Justice Thomas's very broad reading of the AUMF in his dissent, I think the key interpretation is that of Justice O'Connor's plurality opinion, joined by Chief Justice Rehnquist, Justice Kennedy, and Justice Breyer. Justice O'Connor concluded that the the AUMF was "an act of Congress" that authorized Hamdi's detention, such that the detention did not violate 4001(a):
The AUMF authorizes the President to use "all necessary and appropriate force" against "nations, organizations, or persons" associated with the September 11, 2001, terrorist attacks. 115 Stat. 224. There can be no doubt that individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network responsible for those attacks, are individuals Congress sought to target in passing the AUMF. We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the "necessary and appropriate force" Congress has authorized the President to use.So does the AUMF authorize the surveillance? As often happens when you're trying to draw guidance from an O'Connor opinion, it's not entirely clear. Under her opinion, the key question is whether the act is "so fundamental and accepted an incident to war" that it falls within the authorization. But that depends on the level of generality you chose to use to define "the act." Is "the act" spying on the enemy? In that case, perhaps it is a fundamental incident to war. Or is "the act" conducting U.S. domestic surveillance of U.S. citizens? In that case, the answer is no, it's not a fundamental incident to war.
The capture and detention of lawful combatants and the capture, detention, and trial of unlawful combatants, by "universal agreement and practice," are "important incident[s] of war." Ex parte Quirin, 317 U. S., at 28. The purpose of detention is to prevent captured individuals from returning to the field of battle and taking up arms once again. . . .
. . .
In light of these principles, it is of no moment that the AUMF does not use specific language of detention. Because 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 unmistakably authorized detention in the narrow circumstances considered here.
. . .
Hamdi contends that the AUMF does not authorize indefinite or perpetual detention. Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized. Further, we understand Congress' grant of authority for the use of "necessary and appropriate force" to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles.
. . .
The United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who "engaged in an armed conflict against the United States." If the record establishes that United States troops are still involved in active combat in Afghanistan, those detentions are part of the exercise of "necessary and appropriate force," and therefore are authorized by the AUMF.
In the end, my best sense is that the AUMF doesn't extend to this. I have three reasons. First, O'Connor's opinion says the following about detention for interrogation: "Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized." It seems to me that surveillance and wiretapping is pretty similar to interrogation: the point of both is getting information about your enemy. Second, it doesn't seem like wiretapping counts as a "use of force." If you read the text of the AUMF, it doesn't seem to me that it authorizes wiretapping. Finally, note that Congress passed the Patriot Act about a month after passing the AUMF; if Congress had intended the AUMF to give the president wide authority to conduct domestic surveillance against Al Qaeda, I don't think they would have spent so much time amending FISA for terrorism investigations. So at bottom, I think the AUMF probably didn't authorize this, although the Hamdi case gives some colorable (if ultimately unpersuasive) arguments that it might.
Article II. The final argument is that Article II of the Constitution gives the President inherent authority to conduct such monitoring. The Administration introduced this theory in a supplemental brief filed in the FISA Court of Review:
The President Has Inherent Authoritv to Conduct Warrantless Electronic Surveillance to Protect National Security from Foreign Threats.So the argument, as I understand it, is that Congress has no power to legislate in a way that inteferes with the President's Commander-in-Chief power, a judgment made, I suppose, by the President himself.
In considering the constitutionality of the amended FISA, it is important to understand that FISA is not required by the Constitution. Rather, the Constitution vests in the President inherent authority to conduct warrantless intelligence surveillance (electronic or otherwise) of foreign powers or their agents, and Congress cannot by statute extinguish that constitutional authority. Both before and after the enactment of FISA, courts have recognized the President's inherent authority to conduct foreign intelligence surveillance. See, e.g., Butenko, 494 F.2d at 608 (grounding exception to warrant requirement in the President's Commander-in-chief and foreign-affairs powers; noting that the country's self-defense needs weigh on the side of reasonableness); Truong, 629 F.2d at 914 (citing the President's foreign affairs power as justifying an exception to the warrant requirement); cf. United States v. United States District Court (Keith), 407 U.S. 297, 308 (1972)(reserving the question whether the President's foreign-affairs powers justify exception from warrant requirement).
I have been unable to find any caselaw in support of this argument. Further, the argument has no support from the cases cited in the government's brief. In all three of those cases — Butenko, Truong, and Keith - the Courts were talking about whether the President's interest in conducting foreign intelligence monitoring creates an exception to the Warrant Requirement of the Fourth Amendment. In other words, the issue in those case was whether the Constitution bars warrantless surveillance absent Congressional action, not whether Congressional prohibitons in this area cannot bind the Executive branch.
Consider the citation to the Butenko case. Here is the relevant section, from 494 F.2d at 608:
Both executive authority in the foreign affairs area and society's interest in privacy are of significance, and are equally worthy of judicial concern.As I read this analysis, it is entirely focused on the Fourth Amendment, and specifically whether the President's Commander in Chief power should trigger a relaxed Fourth Amendment standard. That seems quite different from a claim that Article II makes Congressional regulation inoperative. The same goes for the citation to Truong, 629 F.2d at 914. In the course of discussing whether the Courts should require a warant for foreig intelligence surveillance, the court tried to balance the ability of courts to regulate intelligence surveillance with the strong governmentg interest:
. . .
The importance of the President's responsibilities in the foreign affairs field requires the judicial branch to act with the utmost care when asked to place limitations on the President's powers in that area. As Commander-in-Chief, the President must guard the country from foreign aggression, sabotage, and espionage. Obligated to conduct this nation's foreign affairs, he must be aware of the posture of foreign nations toward the United States, the intelligence activities of foreign countries aimed at uncovering American secrets, and the policy positions of foreign states on a broad range of international issues.
To be sure, in the course of such wiretapping conversations of alien officials and agents, and perhaps of American citizens, will be overheard and to that extent, their privacy infringed. But the Fourth Amendment proscribes only 'unreasonable' searches and seizures. And balanced against this country's self-defense needs, we cannot say that the district court erred in concluding that the electronic surveillance here did not trench upon Ivanov's Fourth Amendment rights.
Perhaps most crucially, the executive branch not only has superior expertise in the area of foreign intelligence, it is also constitutionally designated as the pre-eminent authority in foreign affairs. The President and his deputies are charged by the constitution with the conduct of the foreign policy of the United States in times of war and peace. Just as the separation of powers in Keith forced the executive to recognize a judicial role when the President conducts domestic security surveillance, so the separation of powers requires us to acknowledge the principal responsibility of the President for foreign affairs and concomitantly for foreign intelligence surveillance.While the Court was recognizing the President's constitutional role, it was in a very specific context: balancing reasonableness in the context of Fourth Amendment law to determine whether the surveillance required a warrant. Again, this doesn't seem to go to whether Congress can impose binding statutory prohibitions beyond the Fourth Amendment.
In sum, because of the need of the executive branch for flexibility, its practical experience, and its constitutional competence, the courts should not require the executive to secure a warrant each time it conducts foreign intelligence surveillance.
Conclusion. Anyway, that's my tentative take; I hope it's helpful. It's entirely possible that I goofed the analysis somewhere along the way; FISA, the AUMF, and Article II aren't my area of expertise, so we should consider this post a work in progress. I look forward to comments — civil and respectful, please.
UPDATE: A lawyer I know who works in this area e-mails in additional thoughts:
Of course you’re right that Keith and Katz reserved the question whether the President may engage in warrantless surveillance of foreign-based threats to the national security. While the Supreme Court has never addressed the issue, a number of federal appellate courts, some of which you cite at the end of your post, answered that question in the affirmative in the years immediately after Keith. See, e.g., United States v. Brown, 484 F.2d 418 (5th Cir. 1973); United States v. Butenko, 494 F.2d 593 (3d Cir. 1974) (en banc); United States v. Buck, 548 F.2d 871 (9th Cir. 1977); United States v. Truong, 629 F.2d 908 (4th Cir. 1980). But see Zweibon v. Mitchell, 516 F.2d 594 (D.C. Cir. 1975).If you're in the mood for more, check out posts on this from Marty Lederman and Daniel Solove.
The interesting question is whether FISA somehow extinguishes this inherent Presidential power to conduct foreign-intelligence surveillance. There’s a respectable argument that it does. FISA repealed Title III’s reservation clause (18 USC 2511(3)), in which Congress expressly had forsworn any intent to regulate the collection of foreign intelligence. Given that repeal, we might be in Category Three from Justice Jackson’s Steel Seizure concurrence — "When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive Presidential control in such a case only by disabling the Congress from acting upon the subject."
All Related Posts (on one page) | Some Related Posts:
- Congressional Research Service Report on NSA Surveillance:
- Data-Mining, FISA, and the NSA Surveillance Program:
- New Risen Book Sheds Light on NSA Surveillance Program:...
- Great Post, and Very Good Comments:
- Legal Analysis of the NSA Domestic Surveillance Program:
- Deputy Attorney General Stepping Down:
- Staffing the Justice Department:
I stand by my comments in the prior post. The Prez has this power puruant to his authority as commander in chief of all laws supplemented by his power under the Supremacy Clause as supreme leader of the law of the land. Also remember we are at war and thus the President's authority is even greater. 9/11. Lots of people died. Can't happen again. 9/11.
Greedy Clerk, you're right that the administration will look for loopholes to fight the War on Terror, and that's probably partly why they have been so successful, but this policy is not a new one.
As everybody knows by now, Clinton misused Echelon, and Echelon stores virtually every phone call made.
If the Administration is really breaking the law, and it's too muddy an issue for anyone to seriously claim they are certain either way without a lot of homework, then they should advocate new laws (which they probably are), but also this effort should be seen in its historical context: Bush continued a program that sounds disturbing partly because of how its been misused in prior administrations.
I suspect that you mean that the program probably does not violate the 4th Amendment, but that doesn't mean it's constitutional.
I have been unable to find any caselaw in support of this argument.
Steel Seizure Case, no? I mean, when you are review the extent of the President's power under Article II vis-a-vis Congress's power, that's where you have to turn first.
As I commented on another thread, you could determine this is a Category 3 case under Steel Seizure (Jackson's case where the President's authority contradicts the express will of Congress), if you've determined that the President's exercise of his power contradicts Congress's express will under FISA. On the other hand, the Use of Force resolution could turn this into a Category 1 case, where the President in using the power to implement Congress's implied will.
Second Prof. Muller; Kerr was obviously working in haste, and I think "probably constitutional" means "probably not intrinsically unconstitutional."
And thanks, Professor.
As a practical matter, I doubt that very much.
But I am not sure I understand the basis of the conclusion on the Article II point. The absence of cases supporting the President's argument does not mean the argument is wrong. One might just as well point to the absence of cases going the other way. In other words, when has the Supreme Court held that the Congress may interfere with/detract from the President's power as Commander-in-Chief? I know of no such cases . . . Nor do I know of any cases holding that Congress may detract from, say, the President's power to nominate Supreme Court Justices or Appoint Ambassadors. See Public Citizen v. United States (Kennedy, J. concurring)(explaining why regulation of the Appointments Power violates Article II).
Absent cases, we have to argue from first principles, something many have been trying to do in comments to the previous post. So far I have seen no convincing argument that Congress may ignore the Constitution and order the President to refrain from exercising his power as Commander in chief when engaged in authorized military operations against a foe Congress itself has identified as such. Nor have I seen any convincing argument that the President must enforce unconstitutional laws, contrary to the Supremacy and Take Care Clauses.
So, I respectfully disagree on this point with the Professor.
On the subject of the intersection of the 2001 AUMF and 50 USC 1809, it seems to me 18 USC 2511 is also relevant. Specifically, 2511(2)(f) provides:
"... and procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted."
So, it seems to me that while 50 USC 1809, taken alone, allows one to look for statutory authorization anywhere, 18 USC 2511 limits where one can look for authorization to three places: chapters 119 and 121 of Title 18, and FISA.
Accordingly, I think 18 USC 2511 provides an additional barrier to holding that the 2001 AUMF provided statutory authorization as per 50 USC 1809. Specifically, one would have to hold that the general language of the AUMF somehow amended the more explicit language of 18 USC 2511. And I am pretty sure that violates several canons of statutory construction.
In other words, the issue in those case was whether the Constitution bars warrantless surveillance absent Congressional action, not whether Congressional prohibitons in this area cannot bind the Executive branch.
As I read it, what Orin is saying is that Butenko and Truong are both Steel Seizure Category 2 cases - where the court had to determine the extent of the Executive's power in absence of Congressional action. I take it, then, that Orin's objection to the citation of these cases is that we are now in Steel Seizure Category 3, not Category 2, so those cases are inapplicable.
True, as far as it goes. But I would think that an analysis of Category 3 would have to acknowledge that, under Category 2 circumstances, the courts have generally found the Executive to have the authority for warantless surveillance.
I'm not a lawyer, so a legal clarification would be appreciated.
Maybe I'm missing something, but it seems to me that an executive branch action can violate federal statutory law without violating the constitution. Eric, what constitutional provision do you think has been violated?
Note that 1801(f)(2) requires that "such acquisition occurs in the United States," as he quotes.
This seems like a major technical detail -- insofar as these are communications between the U.S. and foreigners, isn't it quite conceivable that the acquisition occurred *outside* the U.S., and therefore 1801(f)(2) does not apply at all?
No. Eschelon monitors calls in and outbound from the US, and only those using certain technologies. There is almost no long term storage capability in comparison to the volume of calls.
The AUMF is limited to "those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons . . . ." So, what of the wiretapping of an individual (a U.S. citizen) who, as part of a Basque terror group (or pick another, more plausible group that uses terrorist tactics but that has not been linked to 9/11) is involved in plotting activities? Can there be any argument that the AUMF applies to that person?
Or, what happens with a somewhat tougher call--perhaps an individual who has been linked in some way to Hammas? Is the President's determination of a relationship to 9/11 subject to any later review by a tribunal? I'd assume the administration's answer would be "of course not" and that the President has discretion. But is the discretion boundless? Could the hypothetical Basque obtain review? Presumably, one argument would be that the discretion and judgment is unlimited and unreviewable because Congress did not explicitly build in any form of review. (Perhaps the detention opinions would support this?).
(1) Check out the Whereas Clause to the September 18th, 2001 AUMF: "Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States … ." Presumably, Congress is referring to the same Article II powers that President Bush mentioned in his recent speech.
(2) On a related note, consider: “[U]nless Congress specifically has provided otherwise, courts have traditionally been reluctant to intrude upon the authority of the Executive in military and national security affairs.” Dept’ of Navy v. Egan; cf. Rostker v. Goldberg. On the issue of whether Congress has "provided otherwise," how does the AUMF relate to FISA?
(3) In general, see In re Neagle regarding the protective power of the President.
(4) Some commenters have been quick to accuse this President of being particularly prone to the aggrandizement of Article II power. Right or wrong, I think it's hard to justify such a stance without taking a look at OLC opinions from other administrations (including Clinton's, see, e.g., Somalia Opinion).
Sorry this is so disorganized -- I look forward to thinking about this more once finals are done, and to seeing what Kerr and the Commenters come up with!
From a first read, this confirms the quick analysis by Marty over at Balkinization (wrt to FISA) and my (ill-informed) read of the Article II issue. The AUMF argument also can prove too much.
To clear up the terminology, the bottom line is that the actions are presumptively illegal -- and therefore a misuse/abuse of power -- though, if authorized (which it is not clear is the case), possibly constitutional.
"So it's a program that's limited, and you brought up something that I want to stress, and that is, is that these calls are not intercepted within the country. They are from outside the country to in the country, or vice versa."
Just a slip of the tongue and he meant to say what the subsequent sentence says, or a fact that under your analysis would make the program legal?
I agree. I took you to mean that had Congress authorized such searches, they would be constitutional. On the facts as we have them thus far, this seems at least plausible. I'm assuming no purely domestic surveillance such as would fall under the Keith case.
What if the targeting is not by person, but by phone number or email address? Assume they know Osama's phone number and every call going to or originating from such number is intercepted. Same for email. The government wouldn't know in advance the person's identity, so no particular person is targetted. (If they did a normal FISA warrant would suffice, right?)
As others have said, such an intercept could be happening in other countries and by foeign nationals.
Indeed, we know from Dalton v. Specter, 511 U.S. 462, 472 (1994), that the Supreme Court most certainly does not accept "the proposition that every action by the President, or by another executive official, in excess of his statutory authority is ipso facto in violation of the Constitution." On the contrary, the Court has "often distinguished between claims of constitutional violations and claims that an official has acted in excess of his statutory authority."
Sorry, but not relevant: Gonzalez:The whole thing is fascinating, in a depraved kind of way.
We'd have no trouble saying that government action was "unconstitutional" if it was congressional power that exceeded the scope of Article I.
We should have no trouble saying the same of this government action, even though it was undertaken by the executive in excess of his Article II powers.
With modern sattelite celphones, many carry such phones in this country which have phone numbers issued by non-US carriers.
A surveillance of calls coming, e.g., from a Bin Laden Lieutenant in Pakistan to such a celphone would not be properly reached by FISA unless the interceptor had knowledge that that phone was linked to a "US Person" located in the USA at the time the call's interception. The information in the intercepted call could be used for intelligence purposes until the receiver's identity were known to be a "US Person".
What in FISA prohibits interceptions under this fact situation?
I think Eric Muller is mistaken. Truong and Butenko establish that conducting warrantless surveillance IS within the President's Article II powers in the absence of a statute prohibiting such conduct. That's not an issue.
Orin's question, as I understand it, is whether, even though conducting warrantless surveillance is within the President's Article II powers in the absence of a statute, the statute prohibiting such conduct (assuming that FISA does, in fact, prohibit such conduct) would override the President's power, thus prohibiting the President from engaging in such conduct.
I thought Prof. Kerr addressed this with his discussion of the Keith case etc. They may be implied under Article II. What is an "unreasonable" search or seizure in the context of the GWOT? The SCOTUS seems to have left it open for there to be a broader sense of "reasonable" for extra-domestic surveillance in such a context.
The problem for the Prez is that FISA is meant to fill that gap, and he's kicked FISA to the curb.
I disagree. Beyond Madisonian's citation to Dalton v. Specter, 511 U.S. 462, 472 (1994), I think the case of Article I is different. Legislation is only valid under the constitution if it falls within the Article I power, so exceeding the Article I power renders a law unconstitutional. The President has a role in passing legislation -- signing it or vetoing it -- but complying with statutory rules after legislation had been enacted is a question of statutory law, not constitutional law.
To take a completely frivolous example -- hey, I just wrote the world's longest blog post, let me be frivolous -- imagine Congress authorizes the Department of the Interior to order 1,000 #2 pencils every year. The DOI doesn't follow the law on year, and instead orders 1,001 pencils. We would say that the pencil order violated the statutory authorization, not that it was "unconstitutional."
I don't know if it is currently being done, but it is certainly possible to cheaply store a huge amount of voice traffic using commercial off the shelf equipment. Go to any computer electronics website. You'll see that you can get a 500GB hard drive for about $350 dollars. Let's round that up to $500 just to be safe. That turns out to be about $1 per gigabyte of storate. The digital vocoder in your cellphone operates at 8 kilobits/sec or 1 kilobyte/sec. Certainly cell phone sound quality should be good enough for most purposes. The costs to record one year's worth of continuous calling would be...
...or $31.53. The average voice phone call lasts about 6 minutes, so that $31.53 buys you the equivalent of 87,600 individual calls. Finally, $31 million dollars buys you about 87 billion calls. It only gets more cost effective if you consider storing that data on tape instead of hard disks, and compress the data even further.
I have been unable to find any caselaw in support of this argument.
Orin: there is at least dicta supporting this argument in the decision of the Foreign Intelligence Surveillance Court of Review case about the "wall" (In re Sealed Case No. 02-001):
The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.26 It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.
(emphasis added) (Sorry, I couldn't readily find the citation - the quote is on p.48 and the link is here.)
Read strictly enough, FISA would pretty much make Project Echelon unConstutional much or most of the time. But clearly, Project Echelon has existed for decades, doing things FISA cleary says are illegal. The same project also technically violates several other laws and court decisions, yet it goes on unmolested.
It's pretty clear how: you have one of the other governments who's part of the project monitor the conversations you care about. That's the loophole they're almost certainly using here--and I fully applaud them for doing it.
The ultimate question comes down to what liberty or Constitutional rights of U.S. persons are being violated. The answer here is, of course, none. Echelon's been monitoring any out-of-the-country calls you've ever since at least the 1980s. Numerous examples of case law and other statues make it clear that the Feds cannot use data gathered from phone calls you made without a warrant, and the administration's made it abundantly clear that they do not use this to prosecute U.S. persons--they use it to locate and kill enemy combatants.
No problem.
The Court of Review ultimately concluded:
While it's dicta, the Court of Review's opinion suggests that it buys the administration's "inherent authority" argument. Which would explain why the FISA court largely went along with the "special collection program."
You have three arguments why Congress' AUMF did not allow the Commander-in-Chief to eavesdrop on American jihadists.
i. "It seems to me that surveillance and wiretapping is pretty similar to interrogation: the point of both is getting information about your enemy."
Well both apples and oranges are fruits, but that doesn't mean they are the same. Indefinite interrogations in Guantanamo after you've caught the jihadists occur after the warrior has left the field of battle. That was not included in the AUMF. In contrast, the American Jihadists the NSA eavesdropped on are currently on the field of battle. Whether in Deerborn, Michigan, or Falls Church, Virginia, the jihadists are currently engaged in war. Yes, if we were to arrest an individual jihadist and then hold her indefinitely seeking information there would need to be other authorization. (For example, if the jihadist committed a crime the US attorney’s office may gamble with a criminal prosecution. Of course most of the jihadists are warriors, not criminals. The criminal prosecution option is usually not available with jihadists. See the al-Arian case.)
ii. “[I]t doesn't seem like wiretapping counts as a ‘use of force.’”
Come on, you can’t be serious. Does use of force only mean tanks, or horses. Does use of force only mean a particular machine gun, or a specific make of rifle. Clearly not. Just like there were signal corps during WWII intercepting messages—as an incident of war—so too the NSA intercepted messages of the jihadists – a well accepted accoutrement of war.
iii. “Congress passed the Patriot Act about a month after passing the AUMF”
Congress’ decision to enact a procedure that might be available under certain cases – where there is probable cause, for example – doesn’t diminish the broader grant in the AUMF—where there is no probable cause, for example.
Since I'm a lawyer, I'll leave the technical analysis to others. But the legal analysis is pretty easy — and probably a pretty good guide for the technical types of eavesdropping that Congress wants the President to engage in, in the first place.
Look at all for subsections of section 1809 and ask the question: based on the statutory language, what types of electronic surveillance are permitted? The statute proscribes electronic eavesdropping of: 1) wire or radio communications if they target "a particular, known U.S. person;" or 2) wire communications if the surveillance occurs in the United States; or 3) radio communication where there is a reasonable expectation of privacy (with other qualifiers that probably protect a myriad of eavesdropping techniques — not discussed here); or 4) a communication by neither wire nor radio.
So what's reasonably permissible, based only on the language and obvious structure of section 1809? 1) Wiretapping conducted physically outside the United States; and 2) radio interception of cell phone calls if the callers are not "particular, known U.S. persons."
I'll bet that these are the types of intercepts that we currently engage in. Remember: you have no reasonable expectation of privacy in your cell phone calls. (If you don't believe me, ask Charles and Camilla Parker-Bowles about Charles' envy for a particular feminine hygiene product — or certain Senators who have had their cell phone calls intercepted.) So long as our electronic surveillance is not targeting "particular, known" "U.S. persons," then sifting through cell phone calls (or targeting the calls of "particular, unknown" persons or "particular, known non-U.S. persons") is permitted (intentionally so, I would bet) under the plain language and structure of section 1809. That's probably the big enchilada. As for wiretapping outside the U.S., the Professor has covered that one thoroughly.
Therefore, because we know that the FISA court gets a lot of warrant requests for "particular, known U.S. persons," I'll bet that our current practices are confined to: 1) wiretaps outside the U.S. (say, along a trans-Atlantic cable in international waters), 2) domestic cell-phone "sifting," and 3) domestic cell-phone interceptions of "unknown" or "non-U.S." persons. Having "reverse engineered" from the blatant statutory loopholes, and having looked at public reports of the FISA-court warrants that have been sought to date by the United States, I am pretty confident that our current practices do not violate FISA (pace the Professor).
Maybe President Bush, and the many lawyers who have advised him on this subject, are right, after all. I say, "Shame on the New York Times." But the Times has no shame.
Mark
Who has standing to bring an action? Only those persons who have been the targets of the NSA activity? If that is so, it is hard to see this matter being raised any time soon, let alone resolved.
Shouldn't authorization to use military force of necessity authorize gathering military intelligence? Communications from or to terrorists overseas or suspected terrorists or their supporters overseas would seem to me to be fair game intelligence information.
Are you saying that OBL, for example, can be wiretapped so long as he doesn't contact anyone in the US? Assume you are monitoring a phone in Afghanistan that he or Mullah Omar have been known to use. A call is made to country X. It is taped. They hang up and call the US. Call can't be taped? And we are supposed to use "military force" against that target wihtout that intelligence information?
You shouldn't assume that just because the Bush Administration makes the argument that "the entire world is a battlefield" that it actually is one. Accepting that argument means junking well-established territorial restrictions on US power. Indeed, in its strongest iteration, it would mean that the President can basically assume the powers of a dictator-- imprisoning people without trial, confiscating guns, performing warrantless searches, torturing people, ordering summary executions, etc.-- even with respect to persons and actions on US soil. While it may be true that the AUMF applies to members of terrorist organizations responsible for 9/11 who are within the United States, that is very different-- and much more limited-- than assuming that the AUMF trumps all legal restrictions on the President's conduct within US territory or permits the same actions and policies that it would permit on a foreign battlefield.
Second-- and this goes beyond your post to something that I hear just about every defender of the Administration's policy say-- we have no idea WHO the targets of these wiretaps were. Indeed, the Bush Administration will fight tooth and nail to prevent us from ever knowing. And, of course, there is a very good reason, in general, for secrecy with respect to national security wiretaps. That said, however, I don't see how defenders of Bush can speak with certainty that these wiretaps were used against Al Qaeda members (or even "Jihadists"-- a category that includes may people who are not even covered by the AUMF). You guys have no idea who was being wiretapped-- neither do I, for that matter. And the possibility of the President ordering wiretaps against people who are NOT legitimate targets of surveillance is, of course, one of the main reasons we have a FISA court.
Two questions are still outstanding:
1. Why didn't the NSA just get warrants for these wiretaps?
2. Considering this was done domestically, why did the NSA do it instead of the FBI? Technical competence?
We certainly do "know" who the targets were - according to the President himself - those with "known al Qaeda ties and/or affiliates". Were you against Clinton's use of ESCHELON? FDR's spying on Americans during WWII?
Uh. No. Echelon monitors communication globally.
Congress wrote this law, they included reporting requirements. The attorney general must report to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence 30 days prior to the surveillance, except in cases of emergency, when he must report immediately. He must furthermore "fully inform" those committees on a semiannual basis thereafter, per section 1808 subsection (a). He must also send a copy of the surveillance authorization under seal to the so-called FISA Court as established in section 1803; not for a warrant, but to remain under seal unless certification is necessary under future court actions from aggrieved parties under section 1806 (f).
Appears that there are reporting requirements for Warrantless searches.
The most obvious possible answer to #1 is that they didn't think they could meet the standard for getting FISA warrants.
Mark,
You seem to start with the assumption that all of the surveillance was allowed by FISA, and work back from there to what that surveillance must have been. But the Administration has not claimed that all of the surveillance was allowed by FISA. So, I'm not sure where you are getting that initial assumption.
"When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system."
Therefore, if the President has committed statutory violations, the only way the President could win his case is if it is determined that Congress has no authority on these questions of domestic surveillance. It is patently clear that Congress can act when it comes to domestic surveillance of terrorists. Therefore, if the President has committed statutory violations, then the President's actions went beyond the bounds of his Article II power, and consequently his actions would be unconstitutional.
This NSA surveillance program is a very important constitutional issue because the vitality of the Constitution's separation of powers hangs in the balance. To quote Justice Jackson, "what is at stake is the equilibrium established by our constitutional system."
If the US govt was not monitoring a US Person, or if they immediately stopped monitoring once they learned they were monitoring a US person .. This program appears legal.
If they monitored a US person, intentionally without a warrant then the President might have broken the law..might.
I would rather have international calls monitored, instead of another 3000 dead.
the FISA Court did comment on this program, it declined to accept some evidence gathered, which caused the program to modified.
Another possible answer to #1 is that they could meet the standard for getting an FISA warrant, but did not want to to chance that becoming public.
You and I clearly agree on more than we disagree on. Surely, Article II and the AUMF did not give the President absolute power to do whatever he wants. You listed specific things that allegedly he can't do. Let's analyze them:
i. Imprison[] people without trial.
Well, assuming the magistrate judge is okay with it, presumably he can hold people before trial. But I assume you mean we can't imprison people without probable cause? You're right, even with the AUMF he probably cannot. This is really the crux of the matter. The constitution says even though there are warriors in the United States, we need probable cause for an arrest. I agree with you. Another few attacks, though, and you can look forward to an amendment.
ii. Confiscat[e] guns.
Well, there is the Second Amendment, and the possible chilling effect on lawful gun ownership. Can the president create a "do not fly"-style "do not carry gun" list? Not so sure, he probably can.
iii. Perform[] warrantless searches.
Absolutely. The only remedy is at a suppression hearing, but this is not a criminal prosecution, this is a war. And even at the suppression hearing, the attorney general would argue (i) a warrantless search was reasonable notwithstanding the absence of probable cause; (ii) "reasonable suspicion" was present; (iii) Weeks doesn't attach in the national security context.
iv. Torturing people.
It depends on what you mean by torture, but the president probably cannot do that.
v. Ordering summary executions.
Absolutely he can. Look at the incident at the airport earlier this month. What do you think a war is? Boom, boom and the enemy or apparent enemy is dead. No judge, no jury, no appeal -- and all perfectly lawful.
I would rather have international calls monitored, instead of another 3000 dead.
Agreed.
Isn't this case much more like the latter than the former? I would think that a President would need a much greater anchor in Article II to do the latter than he would to do the former. And he lacks it here.
So this is not at all a case of a President misapplying or overreading or pushing out past the limits of congressional policy. This is a case of a President rejecting congressional policy wholesale in favor of a system of his own creation. That's why, to my eyes, it's a bit underwhelming to describe this as a case about "complying with statutory rules after legislation has been enacted," as you do. It does not capture the essence of what the President has done here, which is to set up his own shadow program entirely within the executive branch.
Here's a question.
Tomorrow morning the New York Times -- in violation of federal law -- is going to reveal more about our government's anti-jihadist surveillance. (See the Drudge Report). That crime is going to cause me damage because it will put me at greater risk of being murdered. Can I seek an injunction tonight to prevent Mssrs. Keller and Sulzberger from committing this crime?
This may be the most pernicious meme that is circulating right about now. What is it that leads people to think that one must choose between these two things? Certainly not experience. International calls were fully monitorable under FISA before 9/11, and warrants were never refused. Yet 9/11 happened. Before buying into any sort of argument grounded in necessity, we should ask for a clear showing of how the limitations in FISA contributed to the inability to detect the planning of the 9/11 attacks.
The strong Yoo formulation of inherent executive in war time troubles me a great deal. I don't think we're ruled by evil would-be dictators, but I don't think that is a remotely safe assertion of power. Even if I myself got to make all of these decisions, I shouldn't have that authority.
Also, in Hamdi, O'Connor held that some sort of habeas was necessary to challenge the EC determination, right? Is there any limiting principle to the wiretapping at all?
I'm a law student, and I've studied some of these issues, but I would appreciate it if someone could direct me to any legal scholarship explaining: if the "War on Terror," once authorized as a War by the AUMF, gives inherent unreviewable plenary Executive authority to conduct "the war", and the Executive has unreviewable authority to determine what constitutes conducting that war, then is there anything other than repealing the AUMF that can limit it in any way?
I'd much appreciate any insight. While I don't agree with a lot of what this administration does, I think this formulation is unacceptable for whoever sits in the White House (and I think the "what if Hillary did this?" hypothetical is useful as well - I wouldn't want her to have this power, either). Maybe I'm too much of a Madisonian, but I don't think that the War On Terror as is will ever end. If 9/11 perpetrators = AQ, and the executive decides who's AQ, and any terrorist who ever acts is evidence that AQ is still around, when will the war ever end? One donation from a Colombian drug lord to bib Laden in 1998 would mean the War on Drugs is covered by the AUMF as well no? Terror is a tactic, not an enemy.
Anyway, sorry for the longest comment ever. I've been thinking about this a lot for class, and it freaks me out. I'm sort of attached to the checks, balances, and separation of powers, and I think that once you pick up a hammer, everything starts to look like a nail.
Thanks for the analysis, Professor. It is a rare pleasure to read a legal analysis which is not completely corrupted by complete hatred of Bush or the NYT.
"In view of the ease, expedition and safety with which Congress can grant and has granted large emergency powers, certainly ample to embrace this crisis, I am quite unimpressed with the argument that we should affirm possession of them without statute. Such power either has no beginning or it has no end. If it exists, it need submit to no legal restraint. I am not alarmed that it would plunge us straightway into dictatorship, but it is at least a step in that wrong direction."
Justice Jackson was speaking of Harry Truman's seizure of the steel mills in order to avert a strike during the Korean War. I am inclined to believe that Jackson's language equally applies to President Bush's NSA surveillance program.
As an aside, as noted elsewhere, FISA allows emergency surveillance provided you get a warrant within 72 hours.
Anyway, you say, "Another possible answer to #1 is that they could meet the standard for getting an FISA warrant, but did not want to to chance that becoming public."
Are you suggesting that the FISC (the special court which issues FISA warrants) might leak the information? If so, do you have any knowledge that such a thing has ever happened?
It has been reported that 8 FISA warrants have been turned down.
Medis:
An actual "leak" was not the only concern.
I think you are more correct here - in the history of the secret warrant court only one request had ever been turned down. What the Bush Administration wanted to avoid was an easy to access record of who was being tapped. It was done for the purpose of obfuscation and is being presented same: note Bush talking as if they couldn't get this information previously. Shoot, the Act even allows for surveillance to start before asking for a warrant. They could be doing exactly what they did do legally, but that would mean having a warrant trail.
This is about keeping secrets from the American people and eroding the system of checks and balances that protect them from excesses of government, not 'protecting' them from terrorists.
Also, as for the reasons why the Administration may not have sought FISA warrants, here is a quote from Byron York's column at NRO:
Again, we don't know the details of this program. We don't know the procedures that were followed as far as how the communications to be monitored were selected, how they were monitored, and any post-monitoring oversight and supervision (as well as reporting to Congress).
Ultimately, if I were a law enforcement official chasing down terrorists, I might be willing to violate the law and risk the consequences in order to prevent another 9/11 and hope that I could rely on the "necessity" defense.
Bottom line - NSA is intercepting communication overseas involving members of an enemy military force with which the United States is at War. What exactly is the constitutional basis for a court warrant to be required before any military action, combat or intelligence?! Exactly where does Article III grant any court the right to approve or disapprove of military action, let alone establish a requirement for pre-approval. That is within the perview of the Commander-in-Chief, and Congress is free to cut off the purse strings any time it wishes to take that kind of political hit.
The only action that Courts supervise is the legal process. Thus any information gathered without a warrant cannot be used in any legal proceedings. Fine by me. The courts should use their right to exclude any evidence that is gathered though unapproved means.
Meanwhile, the President is free to gather military intelligence in order to more effectively direct military action in time of war. I don't remember any Court that issued a Warrant to the British when they cracked the Enigma code and listened in on the Germans. I don't remember any Court that issued a warrant to the US codebreakers that cracked the Japanese naval codes and led to the victory at Midway.
This is not an example of a President overstepping the bounds of his authority. This is an example of another group so ideologically focused on an argument that they fail to realize when they have long passed the point of reductio ad absurdum.
Then I am not sure what you mean. Can you explain?
Here's a question....Can I seek an injunction tonight to prevent Mssrs. Keller and Sulzberger from committing this crime?
Here's the answer: No.
You ask a great question. As it turns out there is a little known clause in the constitution that provides an out.
The obscure "election" clause is at Art. II, Sec. 1:
"The executive power shall be vested in a President of the United States of America. He shall hold his office during the term of four years, and, together with the Vice President, chosen for the same term, be elected . . . "
Pretty crazy, huh?
As it turns out the Constitution leaves running the country up to an elected President (and an elected Congress). It sounds a little off the wall, I know, but according to the Constitution the media is not in charge. Neither is the Judiciary, for that matter. (The judiciary has a eensy, weensy, little, tiny role to play in the unusual situation where there is some confusion about what the Constitution means, and there is a case or controversy, and there is standing and all the rest of it. Aside from that extreme and unusual circumstance the only people who decide how this Republic works is the elected President and the Congress.)
I'm shocked, shocked that so-called conservatives want unchecked uncontrolled executive power. What's next, blank search warrants, selling blank arrest/detention warrants to political supporters?
I don't think it is necessarily some nefarious plot - during World War II, the Allies would go to great lengths to make sure the Germans never realized that their codes were broken. The Allies would learn about U-boat positions, but wouldn't bomb the U-boats until they spotted the U-boat by some other means . . . otherwise the Nazis might get suspicious. Can you at least understand the rationale behind that?
There's a story about Winston Churchill and the bombing of Coventry: supposedly he knew the city would be bombed but could not warn its citizens and many perished. The story is apocryphal, but is a good indication of the extreme measures countries take to protect the secret that they can read an enemy's secrets.
I'm not the government. I'm asking for civil relief. i.e. Judge, tell Mr. Sulzberger not to punch me.
Read my last 2 posts and let me know antyhing you don't understand.
However, why do you think that Congress's power here should override the President's power? Jackson himself wrote only that the action "must be scrutinized with caution." Jackson did NOT say that Congress's act automatically overrides the President's power.
As I posted above, I am not so certain that this is a Category 3 case. I think that there is a good argument that the AUMF makes this actually a Category ONE case:
"When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate"
At the very least, Congress has acted ambiguously, by passing FISA but also passing the AUMF.
I have been unable to find any caselaw in support of this argument."
In United States v. Klein, 80 U.S. (13 Wall.) 128 (1871), the Court struck down legislation precluding the introduction of a pardon (by former Confederates) in the Court of Claims (seeking to reclaim property seized by Yankee military units) in part because it impaired the Executive power to grant pardons. Likewise, legislation telling the President where to place military units would probably violate the separation of powers because placement of military units is the president's job by virtue of the Commander-in-Chief clause.
Wire-tapping of U.S. citizens, however, probably is not permissible without judicial oversight. As the Court said in response to Nixon's domestic wiretapping in 1972, "The Fourth Amendment contemplates a prior judicial judgment, not the risk that executive discretion may be reasonably exercised. This judicial role accords with our basic constitutional doctrine that individual freedoms will best be preserved through a separation of powers and division of functions among the different branches and levels of Government." In other words, like the detention of U.S. citizens seized on foreign battlefields, the wiretapping of U.S. citizens' communications likely cannot occur legally without oversight by the judiciary. Even in the context of a new "war on terror." As the Hamdi plurality explained, "Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake." So, the administration's claim to unilateral authority by virtue of Article II would likely be rejected (hence the SG's effort to punt the Padilla case?).
I would be very surprised if Hamdi gets the same treatment from those sitting on the SCOTUS now - if he does, I would expect Bush to do his best to ignore that particular ruling.
That the goverment can keep secrets temporarily? Sure agree 100%. That's why the warrants are issued by a secret court. That it should avoid the process that would document what they did historically by avoiding the court entirely? The hallmark of 'nefarious' as far as governments are concerned.
Yes the government has the right to keep temporary secrets, but it don't have the right to avoid the systems designed to document what it does do. How many founding father quotes do we need know that relinquishing our rights to a secretive, overly powerful central government leaving us dependent on its operatives' 'good will' is an incredibly bad idea?
We cross-posted. I was specifically asking about this statement: "An actual 'leak' was not the only concern." My question is: if the FISC does not leak, what would be their additional concern?
A.S.,
I'm not sure I see the ambiguity. Did the 2001 AUMF implicity repeal or amend every federal law as the President deems necessary? If not, then why think it repealed or amended FISA and 18 USC 2511?
He's an interesting judge. It's interesting how he has handled the Indian Trust case, but this is neither here nor there.
(Thanks, Prof. Kerr for the commentary in your post.)
There are STILL secrets classified from WWII - eventually it will all come out, though, so it is all "temporary" from a certain point of view. Did you see above that 8 FISA warrants have been turned down?
Medis:
The FISA Court is not the only party involved in said warrants - that's all I am hypothesizing.
Hamdi is safely in Saudi Arabia attending college, but if he weren't, the addition of Chief Justice Roberts and possibly Judge Alito doesn't add up to five votes for Justice Thomas' view that no judicial review is warranted. Kennedy, Breyer, Ginsburg, and Souter all voted in favor of judicial review, and Scalia and Stevens said the government didn't have the power to detain a U.S. citizen as an enemy combatant at all.