No Monarchy Here:
I read Daily Kos only occasionally, so I just came across the post "A Little Bit of Monarchy" by Armando on the NSA surveillance program that includes some criticism of my long post last week. Armando's post is a week old, but the Daily Kos gets a jazillion readers, so I thought I would respond and explain Armando's misunderstanding. (Plus, I believe Charles Krauthammer may have had the same misunderstanding, so maybe it's a widespread misconception.)
Armando writes (with excerpts of my posts in italics):
In my post, I argued that the monitoring probably didn't violate the Constitution (and in particular, the Fourth Amendment), but that it probably did violate FISA. This doesn't mean that the monitoring was legal; it only means that of the two possible grounds that it could be illegal, I think it was probably illegal on one ground but not the other ground.
The distinction is a little tricky in this context because some are arguing that Article II renders FISA unconstitutional in some ways. But when I said that the monitoring was probably constitutional, I only meant that the monitoring probably didn't violate the Fourth Amendment; I didn't mean that the Constitution invalidates a statute that makes the monitoring illegal. As Armando notes, I rejected that argument. (And I'm glad to see that the Administration isn't relying on the Article II argument any more, at least if its letter to the Hill last week is an indication. Also, while we're on the topic, check out Joe Onek's very interesting response to the DOJ letter at ACSBlog.)
Finally, I've been meaning to post another write-up on the legality of the NSA program now that we seem to have more facts about what the program actually entailed. My quick skim of the Times' latest piece from Saturday suggests that the legal issues may be different from what I thought they were — or at least, that there is another set of legal issues to work through in addition to the ones I wrote about last week. I'mstuck fighting my way through enjoying reading a set of exams right now, but I hope to write another analysis sometime this week.
UPDATE: Thanks to Armando for posting an update.
Armando writes (with excerpts of my posts in italics):
Some conservatives, it appears, favor a little bit of monarchical powers for the President. Orin Kerr, a respected conservative lawyer who blogs at Volokh Conspiracy, appears to be one of those:Nope, no monarchy, and no contradiction. Let me explain a bit more. The legality of the NSA surveillance program raises two different questions: 1) Does the NSA's surveillance program violate a provision of the Constitution?, and 2) Does the NSA's surveillance program violate any constitutionalily valid statutes? The two are quite separate issues: Whether executive branch action violates a statute is different from whether it violates the Constitution. See Dalton v. Specter. (Hat tip: Madisonian)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.Say what? It is Constitutional for the President of the United States to violate a duly enacted federal law? How does that work exactly? Is FISA unconstitutional? Does the President have plenary powers when acting as Commander in Chief? Well, contradictorily, not according to Kerr:I have been unable to find any caselaw in support of this argument [that Congress has no power to legislate in a way that inteferes with the President's Commander-in-Chief power] Further, the argument has no support from the cases cited in the government's brief. . . . .So how does this work Mr. Kerr? Congress has passed a law that is consistent with the Constitution and the President can disregard it? That's a Constitutional action by the President? Even though the violation of FISA is a crime? Come again? Ahhh, a little bit of monarchy I suppose.
In my post, I argued that the monitoring probably didn't violate the Constitution (and in particular, the Fourth Amendment), but that it probably did violate FISA. This doesn't mean that the monitoring was legal; it only means that of the two possible grounds that it could be illegal, I think it was probably illegal on one ground but not the other ground.
The distinction is a little tricky in this context because some are arguing that Article II renders FISA unconstitutional in some ways. But when I said that the monitoring was probably constitutional, I only meant that the monitoring probably didn't violate the Fourth Amendment; I didn't mean that the Constitution invalidates a statute that makes the monitoring illegal. As Armando notes, I rejected that argument. (And I'm glad to see that the Administration isn't relying on the Article II argument any more, at least if its letter to the Hill last week is an indication. Also, while we're on the topic, check out Joe Onek's very interesting response to the DOJ letter at ACSBlog.)
Finally, I've been meaning to post another write-up on the legality of the NSA program now that we seem to have more facts about what the program actually entailed. My quick skim of the Times' latest piece from Saturday suggests that the legal issues may be different from what I thought they were — or at least, that there is another set of legal issues to work through in addition to the ones I wrote about last week. I'm
UPDATE: Thanks to Armando for posting an update.
[quote]"I cannot foresee all that it might entail if the Court should indorse this argument. Nothing in our Constitution is plainer than that declaration of a war is entrusted only to Congress. Of course, a state of war may in fact exist without a formal declaration. But no doctrine that the Court could promulgate would seem to me more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often even is unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation's armed forces to some foreign venture.
[...]
The essence of our free Government is "leave to live by no man's leave, underneath the law" - to be governed by those impersonal forces which we call law. Our Government is fashioned to fulfill this concept so far as humanly possible. The Executive, except for recommendation and veto, has no legislative power. The executive action we have here originates in the individual will of the President and represents an exercise of authority without law. No one, perhaps not even the President, knows the limits of the power he may seek to exert in this instance and the parties affected cannot learn the limit of their rights. We do not know today what powers over labor or property would be claimed to flow from Government possession if we should legalize it, what rights to compensation would be claimed or recognized, or on what contingency it would end. With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.
Such institutions may be destined to pass away. But it is the duty of the Court to be last, not first, to give them up"[/quote]
Powerful stuff, ain't it?
Quite frankly, I wish you had time to get an account in both places and state, in clear language that no one can misinterpret, your view of the situation.
I think the two-sentence summary you're looking for is: If there was a law that allowed the current NSA program, that law would (probably) be constitutional. But, given the current law, the current program is (probably) illegal.
I mean its not like the torture that other elements of the government are likely involved in - which violate the Constitution (if US Citizens are involved), the Convention Against Torture, the Geneva Convention, the Army field manual and probably the other armed service manuals, the Nuremberg Code, etc. (and if they're involved in messing with peoples' genitals it involves the "sexual violence" clauses of the genocide laws) - but its pretty naughty.
I mean, so far as I know, the government does not need to establish probable cause that both parties to a conversation are up to no good before it can get a warrant to monitor the conversation. It's enough that one of them is being naughty.
Now, if an international conversation is going on between a foreigner and a US citizen, and the government has reason to suspect the foreigner is up to no good, does the government also need reason to suspect the American is up to no good, too, before it can monitor the conversation? The answer is clearly yes if the government wants to prosecute the American. But I think the answer is equally clearly no if the government's purpose is national security operations against the foreigner.
1) Program doesn't violate any constitutional provisions, ignoring for the moment the existence of relevant statutes;
2) FISA is consistent with the constitution;
3) Program violates FISA;
4) Ergo program is illegal, but only because of #3, above.
According to FISA - even if the American is not targeted, the surveillance requires a FISA warrant if the interception occurs in the USA [see Definition (f)(2)]
No offense, your argument has always been exceptionally weak &Armando gutted it further. In United States v. United States District Court, 407 US 297 (1972), the Court explicitly rejected your argument holding it to be the arguments of monarchs not presidents.
The statute which Nixon asserted there contained the followig language:
As the Court ultimately held in US v USDCt, and the reason I think your argument is so freakin ludicrous, is that this type of assertion is one of the reasons we fought the revolution against England
Splunge nice to see you in this thread injecting a degree of common sense.
I would invite readers to read the previous thread that's been going on here all weekend. A lot of the finer points of devining the atomic nucleus have already been covered (nit picking).
If nothing else read the words of a great American President, Abraham Lincoln as to common sense in time of war.
*****
"What would Lincoln do? What Lincoln did."
HT Poweline
Thoughts re what a great US President did.
December 26, 2005
What Kuttner could learn from Lincoln
[...]
Here
*****
No sense in reinventing the wheel.
The "Special Needs" Exception
Here
Thank you for the clarification. I understood the distinction between whether the President, absent Congressional prohibition, has the power to act as he has - an open question, and whether he has the power to violate duly enacted federal law, to be critical here.
If, as you conclude, the President has violatd FISA, is it not fair to me to label such Presidential action as a violation of the Constitution as well, since the President is not being faithful to Article I and to his own duties under Article II?
But that is semantics. And I appreciate your clarifying this for me.
I will post on this today to set the record straight.
Armando at dailykos.
Huh?
The very first sentence of legal analysis in the Moschella letter is: "Under Article II of the Constitution, including in his capacity as Commander in Chief, the President has the responsibility to protect the Nation from further attacks, and the Constitution gives him all necessary authority to fulfill that duty."
How in any way is the Administration not relying on the Article II argument any more???
As I read Moschella's letter, it is saying the following: (i) the President's authority to order the surveillance is granted in Article II, (ii) that Article II authority is supplemented by the AUMF (especially in light of the Hamdi decision), (iii) the AUMF puts requires us to analyze the President's actions under Youngstown's Category 1, and (iv) neither FISA nor the Fourth Amendment are inconsistent with or act to prohibit the surveillance.
Lino_watcher, I believe that is an exceedingly broad reading of the PCA.
On your first point, the Posse Comitatus Act, 18 U.S.C. § 1385, prohibits the Army and Air Force from participating in civilian law enforcement activities unless authorized by Congress. "Participating in law enforcement activities" has been consistently construed in the case law as taking action that is "direct" or "pervasive" or "regulatory" in nature, see generally U.S. v. Red Feather, 392 F. Supp. 916 (D.S.D. 1975). Passive or "indirect" involvement in law enforcement activities is not prohibited. In essence, courts have held that soldiers and airmen may not be involved in manning traffic checkpoints, kicking in doors and directing a law enforcement operation (see e.g. Waco, Wounded Knee), but the courts have also held that passive involvement, including information sharing, is permitted.
It is possible to cite to 10 U.S.C. 375 to support your position. That statute is not the PCA, but mandates a regulatory version of the PCA for the Title 10 Armed Forces prohibiting involvement in "search, seizure or arrest." Does this prohibit general intelligence signals monitoring as a "search"? Not necessarily - "search" has a specific meaning under the 4th Amendment, and most of what NSA does appears to be outside the scope of that. Even if sigint monitoring did constitute a search per se, a concession made only arguendo, NSA could share relevant information with civilian law enforcement because 10 USC 371 gives the military authority to share intelligence information with law enforcement personnel if the intelligence information reveals a likely violation of the law:
This sure looks like express Congressional authorization of information sharing, in which Congress abrogates its prohibitions elsewhere on military involvement with civilian law enforcement.
Moreover, given that the Administration has cited to the AUMF as the rationale for this program, a fair argument can be made that at least the portion of the program relating to the monitoring of the phones of known overseas AQ operatives falls within the Independent Military Purpose exception to the PCA. That exception permits the military to be involved in direct law enforcement activities, so long as there is a valid independent military purpose for doing so. For example, a CID investigation into a drug ring that includes civilians, but sells drugs on a military base, would be permissible, and it is not a violation of the PCA. See U.S. v. Hitchcock, 286 F.3d 1064 (9th Cir. 2002), amended opinion at U.S. v. Hitchcock, 2002 U.S. App. LEXIS 15726 (U.S. App., 2002)
On your second point, I believe it generally is not a prohibited practice under the PCA to detail Title 10 military personnel to NSA, given first of all that NSA is an intelligence activity, not a law enforcement activity; and perhaps more importantly given that NSA is a Department of Defense organization.
Being a lwayer myself, I hope it is not a label of disparagement.
I did not refer to Professor Kerr as a Professor because, to be frank, I did not know he was a Professor. For some reason I thought he was in private practice. I am familiar with his Justice background.
I meant no disrespect to Professor Kerr. Indeed, I expressly noted that he was respected, as I understand him to , by persons of all ideological stripes.
I read his work quite closely, even though we disagree quite often - and likely will on Judge Alito, where I await the hearings.
Armando: Thanks for the reply. You have scored honesty points with me.
When it comes to surveillance, those who have nothing to hide have nothing to fear. There is no evidence that anyone besides terrorists has been the target of surveillance. The story about that boy in Dartmouth, MA who was suppopsedly being spied on turned to be a hoax.
I assume that is satire.
Though Cass Sunstein may be the source of your thoughts.
Limbaugh said something similar -- irony is dead. Consider his long fight to keep hidden his medical records. What is HE hiding?
Who's concerned here? The sentence can read either the officials are concerned, or the reporters are. The article needs a thorough, line-by-line Fisking to condense what little information it contains.
One possible reading of the NYT article is a total of one anonymous official "concerned about the legality" of the program; one Senator (Rockefeller) who hasn't commented one way or the other but did release a paper stating he didn't understand details of one of many briefings he was at; and one FISC judge, who's also not commented.
The NYT article could even be entirely about the changes the Patriot Act made; the elimination of the ong-standing criminal-intelligence 'wall' so criticized by the 911 Commission could be the "a sea change" the Times quotes.
Neither the original article or the followup makes allegations of warrantless purely domestic surveillance or illegal behavior.
Many readers --including those who should know better-- draw conclusions the article doesn't support. Many legal minds have read FISA, USC §1801 to §1811 to draw unwarranted, often diametrically opposed, conclusions.
Richelson's 1999 article is a good layman's introduction (attorneys not practicing surveillance law are laymen) to NSA surveillance operations.
Of the United States Signals Intelligence Directives (USSIDs), USSID 18 Legal Guidance and Minimization Procedures (1993) is mandatory to understanding the government surveillance terminology and procedures. Documents 11b - 11g amplify and provide examples of USSID 18's guidance.
At least one researcher believes FISA "...functions as a smokescreen, drawing attention away from important technical and constitutional issues" In that context the USSID's are critical; they provide details of what House and Senate bipartisan oversight Committees have approved of for the last dozen years.
You cannot compare Rush's desire to keep his medical records private to terrorists' desire to keep their plans to attack secret. That is the worst sort of bogus moral equivalence. Sadly, I've seen many on the left engage in this with respect to Rush. Let's see how they feel if they hever have to endure chronic pain.
How can anything be said to be illegal regarding this issue when noone is providing the context? is this a criminal proceeding? who is the aggrieved party? or is this whole debate a scandal-for-hire? WHO is being protected in this debate? And from what?
Let me post an analogy:
FISA or no FISA; An FBI agent follows around a foreign national while he visits various american citizens. He traces his every move, and, eventually, uses a tele-microphone and wiretap to listen in on his conversations, without a warrant. This information is found to reveal a plot to bomb a bridge (on behalf of foreign entity X). the plan is thwarted.
Scenario 2; The FBI agent follows this same national, doing the same thing, uses the surveillance equipment, and instead discovers a drug ring. arrests are made. Fourth Amendment analysis applies and this person's rights are hopefully protected once in court (along with the co-conspirators).
it seems to me the context is the most important aspect of this analysis. having read cases like In Re Sealed Case and Truong, it seems that context is the most important issue for the federal courts as well. Because in certain contexts, the entire analysis is irrelevant (national security), FISA or not.
Pink Floyd asked, years before I was born, "Mother, should I trust the government?" The answer has been, and ever shall remain, "emphatically not."
Unless you posit that everyone is a terrorist, I don't follow your point. If the Adminstration has reason to suspect someone is a terrorist, certainly FISA provides all you could ask for, including a 72 hour period of warrantless surveillance, or alternately, a 15 day period upon the certification of the Attorney General.
What do I have to hide? Many things, as do all humans. Privacy is a cherished right in our country. Indeed, Rush cherishes HIS privacy. So why is it wrong for me to cherish mine?
I see now that you are not in the satire business. I take it you are not in the legal business either?
My clarification is up - http://www.dailykos.com/storyonly/2005/12/27/112259/40.
Yes, FISA does provide all you need, if you were conducting a criminal investigation. If you were not, for what purpose would you get a warrant? If I recall first year law school, a warrant is used for a criminal investigation, not to conduct foreign intelligence. Obviously FISA was enacted to allow an administration to get a warrant (which it otherwise would not do), so that it would have an easier time in a criminal proceeding once an arrest had been made as a result of foreign intelligence.
Again, without the context of a criminal proceeding, FISA is wholly irrelevant.
And to say the government acted illegally (shock!) because it gathered information without a warrant, um, let's see, how many motions to suppress have I won, countless. I don't recall any police commissioner's being fired because they authorized such conduct, or DA's being disbarred for it, but I do know a judge said the evidence was inadmissible.
The whole monarchy line of reasoning might as well be an add-on to Goodwin's law.
You should reread the 4th Amendment. It reads:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
It does not say "this only applies for criminal investigations."
You should also reread FISA. Indeed, just consider the name of the law - Foreign Intelligence Surveillance Act. Its prupose is described in the title.
But these things have been hashed out quite ably at this site. This is not news from me.
Professor Kerr himself has explained why you reasoning is incorrect.
1. That depends on whether or not drug addiction is a serious crime, doesn't it? What was Rush's public opinion on that before he got caught?
2. What makes you think the intercepts are only affecting terrorists? If they had good reason in advance to think each intercepted conversation did include a terrorist, they could comply with the law by applying for warrants - retroactively if necessary. So, what are the possible reasons they didn't get warrants:
a) It's too much paperwork. This excuse doesn't work for businessmen who missed one form in the mountains of paperwork the government imposes on them, why should it be accepted for the government?
b) Their reasons for expecting any particular wiretap to catch a relevant conversation are so ridiculous they don't dare write them down even for submission to a rubber-stamp FISA court. (Just what happens if their pet court doesn't grant a retroactive warrant?)
c) They are NOT just intercepting conversations related to terrorist suspects, but are intercepting as much as they can and using computerized word-searches to try to sort the terror-related material out of it. Obviously this technique wasn't anticipated by the writers of the Constitution, but it may be useful, and it may be constitutional when one endpoint of the intercepted transmission is overseas. However, it's forbidden by current law. If the administration wants to use it, they should have asked for legislation authorizing it.
"We reiterate that Truong dealt with a pre-FISA surveillance based on the President's constitutional responsibility to conduct the foreign affairs of the United States. 629 F.2d at 914. Although Truong suggested the line it drew was a constitutional minimum that would apply to a FISA surveillance, see id. at 914 n. 4, it had no occasion to consider the application of the statute carefully. 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. FN26 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. The question before us is the reverse, does FISA amplify the President's power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government's contention that FISA searches are constitutionally reasonable."
Indeed, having read both the fourth amendment and the cases that deal with FISA (post Patriot Act), it appears that FISA was intended, as I have argued, to amplify the president's inherent authority, and, as i have stated, make it easier for him to get that info into court.
Also, you have still not answered the fundamental question, who is being protected and from what specifically? in what venue? I find it highly unusual that you all go through these arguments without any context. Can you not provide one example or hypo to support your analysis?
Excuse me, but I notice you didn't find Krauthammer's misreading silly.
Indeed, I did not misread Kerr - I simply asked what he meant by that.
Let me put it this way, the 4th Amendment issue that has been the focus of many is, to me, of less importance, than the Constitutional issue of whether the President is bound to follow federal law that touches upon regulating the military.
To me that is the Constitutional question that is most important here. And for Kerr to label Bush's a ction as "constitutional" did create a certain confusion as to whether he believed the Article II C-i-C power is unfettered, as has been argued by the Administration, most infamously by John Yoo.
It is rather silly to ignore that context, as you do.
Enemies unfortunately don't follow rules. Signal/ intel intercepts are a fundamental necessity to successfully win a war.
I'm sorry but the level of info/intel/info mining that the NSA does is of such a high order the risk of any individual intrusion is very minor unless there is a connection with the enemy.
As TopCat said in the other thread these debates seem to be predicated on abuses of the executive power in the ward on drugs. I agree with this.
I don't give a rodent's rearend about folks' meth labs, marijuana patch, or who's shacking with who. I do care about a very determined enemy that seeks the violent overthrow of this government.
The administration is at fault for not cleary identifying the enemy (unPC) and its intent for worldwide domination of thought and the rejection of what most of the free world cherishes
THE FREE WILL OF MEN AND WOMEN
With that said I'm willing to give the government a little leeway in the framework of "transparent privacy." I think this was what one of the finest thinkers re the US Constitution was saying, Presiden Abraham Lincoln.
Sometimes its worth raising your heads above the law books and crack the world history text for a global picture of the world around us before someone knocks you senseless
In the real world I would be more concerned with our financial sector and how they handle priviledge infor that you think is secret. Go to the following site and just see how secure you are:
www.zabbasearch.com
Again I would invite folks to scroll the comment thread of the search/seizuare issues of the 4th Amendment. Also read from the link to Strata-Sphere re the actual operation of FISA.
If the question is addressed to me, I have 3 answers. First, the idea that an unfettered power requires amplification is utterly laughable. It is Silberman as his worst and I can not imagine anyone adopting that rationale.
Second, since Silberman himself rules that some restrictions of FISA apply to the Executive he contradicts himself.
Third, the Supreme Court's pronouncements, particulalry in Youngstown, completely contradict Silberman.
In short, you quote dicta that is particularly useless as it is contradicted by Supreme Court precedent.
No, rules don't flex, they are modified and/or amended by the established legal procedures.
Indeed, the whole exercise of the Patriot Act was precisely that type of rulechanging exercise.
I have not stated the authority is unfettered. it is, however, inherent, just as that authority was recognized in Youngstown. an inherent authority can be amplified, as FISA does, to allow the administration to combine it's foreign intelligence mandate with its role as supreme law enforcement agent.
Further, we have still not addressed an aggrieved party in this instance nor given a hypothetical. I assume if you did, it would entail a criminal investigation/proceeding. I also assume you don't want to admit that because it limits your argument and neutralizes the "I" word.
There's some small protections in CALEA, but it's mostly a mandate that companies maintain equipment so the government can seamlessly plug in. The Times' feverish technical information about "main arteries" and "switches" are just lay terms for CALEA's "telecommunications transmission or switching equipment", passed 11 years ago.
You say
"No court, and you cannot cite one, states that the president does not have the authority to conduct warrantless surveillance for foreign intelligence."
I don't say it. This is a red herring. The issue is can Congress restrict this power. Silberman said it could not. He is wrong.
The Federalist Papers No. 69, in which Hamilton contrasts the president's constitutional authority as commander in chief with that of the British monarch, states:
"The President is to be commander-in-chief of the army and navy of the United States. . . . It [the CIC power] would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature."
Federalist No. 69 would appear to debunk the myth of unlimited authority under the C-in-C clause.
Bush, as C-in-C, is no more than general in chief, subject to ALL regulations on the military's operations passed by Congress. See Art. I, Sec. 8.
Congress passed FISA. FISA covers the NSA. The NSA is part of the DOD.
Ergo, Bush -- and every president to follow -- has no more authority to order wiretapping as C-i-C than FISA allows.
This seems like pretty basic stuff . . . assuming the "framer's original intent" means anything here.
If not, well then, I suppose Cheney's view of Art II -- unlimited, uncheckable authority -- will prevail.
Insofar as the AUMF as the source of authority is concerned, the president's actions would have to turn on the meaning of the AUMF's grant empowering the President to “use all necessary and appropriate force” against persons that he “determines planned, authorized, committed, or aided” in the September 11, 2001, al Qaeda terrorist attacks.
It seems the key phrase is "necessary and appropriate" -- assuming for the sake of argument that the AUMF covers all persons suspected of aiding Al Qaeda post-9/11 (that is, persons who pre-9/11 had no association with anyone connected with or supportive of Al Qaeda].
In his dissent in Gonzales v. Raich, Justice Thomas said that the Constitution's "necessary and proper" clause meant that Congress could only adopt means to carry out one enumerated power not already expressly prohibited by the letter or spirit of some other Constitutional provision. 125 SCt at 2231.
It seems fair/reasonable to posit that AUMF's "necessary and appropriate" language should be read the same way as the Constitution's N-and-P clause.
If that's so, then the president's unenumerated implied powers under AUMF were cabined by already enumerated statutes regulating not only the military but the US government generally, such as FISA, unless expressly overruled.
Any other reading of the AUMF's N-and-A language would subsume all of the U.S. Code -- leaving the President free to be, well, a monarch.
As policy, what Bush authorized may be sound. But as law, what the administration did would not seem to be. Congress needed to be brought in.
In sum: the president has the authority to conduct foreign intelligence, the president does not have the unfettered right to a warrant to do so (which, if acquired, removes any fourth amendment discussion regarding the retrieval of the evidence for the purposes of admissibility).
1. Orin's original post was clear. He thought the Fourth Amendment question was close but that there were reasonable arguments (principally, the "border search" exception) that might support the Administration; that the NSA program almost certainly violates FISA; and that the argument that FISA violates Article II has virtually no support. That's a pretty damning indictment of the Administration's program, if you ask me. If Orin made any mistake, it was that he should have immediately called out Krauthammer when CK invoked Orin as support for his ridiculous defense. But in any event, the record now is clear.
2. Orin: I, too, think the Ramsey/Ickes argument appeared to be the strongest defense under the Fourth Amendment -- although it gets tenuous once the search is for content of communications rather than contraband, because the implications would be that all our international mail, phone calls and emails would become searchable without any warrant or probable cause: an alarming prospect. But I found it very telling that DOJ doesn't even invoke Ramsey, or border searches, preferring to rely instead only on a broad notion of "special needs" that doesn't really get them there. What do you think is up with that?
3. AS: The DOJ letter argues that the President has "inherent" constitutional authority to do such wiretapping in the absence of statutory restriction, which is fairly uncontroversial (at least as to some types of intercepts), but never really comes out and argues that if FISA prohibits this form of surveilannce -- which it does -- then FISA is unconstitutional. The closest it comes is a vague sentence about construing the AUMF to avoid a constitutional question. But that's a very weak argument, because (i) the avoidance canon only applies where, unlike here, the statute is ambiguous; (ii) the avoidance canon only applies where the constitutional question is serious, and DOJ (for good reason) makes no effort to argue that the Article II question is serious; and (iii) obviously, construing the AUMF to authorize this program would raise a serious Fourth Amendment question (something on which everyone, including Orin and DOJ, concurs), and thus, if anything, the avoidance canon cuts the other way.
4. Jutblogger: As you note, in support of his unorthodox suggestion that FISA is unconstitutional, Silberman in In re Sealed Case cites only Truong. But the Truong court specifically indicated that FISA’s restrictions were constitutional: “[T]the complexity of the statute also suggests that the imposition of a warrant requirement, beyond the constitutional minimum described in this opinion, should be left to the intricate balancing performed in the course of the legislative process by Congress and the President. The elaborate structure of the statute demonstrates that the political branches need great flexibility to reach the compromises and formulate the standards which will govern foreign intelligence surveillance.” 629 F.2d at 915 n.4. Truong is correct; the dictum in In re Sealed Case is wrong; and DOJ does not argue otherwise.
My reading of the DOJ letter is the opposite. It seems to me that the Bush administration relies on its Article II justification primarily, and the statutory justification (the AUMF resolution) only secondarily.
The letter first lays out the constitutional claim:
Then the letter adds:
I have written about 10 posts on the issue. I address Silberman in one of them, I don't remember which.
On Krauthammer, of course he was not "sneering" - he was cting Kerr incorrectly but approvingly. Being wrong is ok I suppose as long as you are approvingly wrong?
Marty Lederman:
As for Kerr's post being clear, it is as far as it goes, but it did not make a clear statement on the Article II/Congressional power assertion, or rather it muddies the water with the legal/Constitutional language.
An illustration: the exercies of power by the Congress beyond thse granted under the Commerce Clause and Article I, Section 8 is rightly called unconstitutional.
Here the President may have Constitutional power to act as he did, but the ultimate question is can Congress restrict that power. It is, ultimately a Constitutional question and to declare the President's actions as illegal but Constitutional is unnecessarily confusing IMO.
First, nowhere does the president limit his own authority by stating it can be restricted by statute. The letter is quite clear, and, in fact, cites the very dictum I cite above. However, it does note that FISA makes such a limitation.
The letter goes on to state that it is unclear whether such a statement does limit the power as it relates to this particular NSA program, and then states that any such ambiguity must fall in favor of article II, and the inherent authority to conduct such searches.
It also appears that one cannot simply dismiss the "dictum" of In re Sealed Case, because the administration certainly does not, the supreme court has not overruled it, i have not found a distinguishing case from sealed case, and, until such is done, it is posturing to simply say: it is wrong.
like minds agree it is not.
My point is that Yoo and others who argue as he does have made precisely the argument that violating FISA (and the Torture staute) is constitutional.
I agree with you that it is boneheaded.
Kerr was not clear on that point IMO, because he used the legal/constitutional language.
Dictum from an appellate court is not likely to be ruled upon by the Supreme Court. Indeed, it really can not be. I t can be commented on but since it is not a rul that the Supreme Court will face, unless adopted as a holding, you are waiting for Godot on that one.
As for arguments against the dictum, you kow they havebeen made. Indeed, the argument I have been facing here is that Kerr obviously made the argument and I was "boneheaded" not to realize it.
1. Actually, the DOJ letter conspicuously does not cite the portion of the In re Sealed Case dictum suggesting that FISA can't limit the President's power ("FISA could not encroach on the President's constitutional power").
2. The reasons there are no cases "distinguishing" In re Sealed Case's dictum is because (i) the law is fairly clear that restrictions such as those in FISA are fully constitutional (as even Truong explains); (ii) it is a dictum; (iii) the Congress and the President agreed that FISA was constitutional when they negotiated and enacted it; (iv) no one, certainly not DOJ, has been so bold (or reckless) as to argue to any court that FISA unconstitutionally restricts the President, and therefore there has been simply no occasion for any court (or commentator, for that matter) to contend with the "argument" (if you could call it that). Nor do I imagine there will be -- not even DOJ has the gumption to take the argument seriously, or to make it expressly. (I wouldn't be surprised if there were an internal John Yoo memo making the argument back in 2001 or 2002 -- but I think it's very telling that DOJ isn't releasing any such memo, or making any such argument, now.)
This sums up today's left perfectly.
Silly
Ignorant
Morons
The ultimate question here, still not answered, is: in what venue and under what auspices will this administration have to deal with this question? I also think the administration does not want to make any admissions or limit itself with any particular arguments before any such matter would come before a judicial officer.
Re: United States v. United States District Court
Not sure what your missing about internal security matters.
I suggest you lookup "internal" and get back to us.
Or re-read this portion:
I am at this point literally astounded that people are still arguing over this and that it is "illegal."
>I understood the distinction between whether the President, absent Congressional prohibition, has the power to act as he has - an open question, and whether he has the power to violate duly enacted federal law, to be critical here.<
Even that first question wasn't really addressed by Prof. Kerr. Just because something doesn't violate the 4th amendment doesn't mean the President has the power to do it.
The program was not constitutional unless the President had the constitutional authority to enact it. If FISA prohibits it, and the Article II argument fails, then the fact that it doesn't violate the 4th amendment doesn't make it probably constitutional.
It's more than semantics.
The fact that Bush violated a statute doesn't settle the question to most people. They want to know whether he had the right to do that. The final answer to that has to be, "No, Bush's actions were unconstitutional."
It seems Prof. Kerr would rather not state that conclusion. Unfortunately, that has lead many people to misread him.
Since the long post of December 19 appeared, Attorney General Gonzales is widely reported to have said that the administration considered asking Congress to amend FISA, but rejected that option as politically unlikely to succeed. That raises profound concerns about this administration's contempt for separation of powers and the rule of law itself.
The situation is complicated by the absence of an effective legal remedy. The exclusionary rule would apply to any criminal prosecution; however, the Justice Department (perhaps for that reason) does not appear to be inclined to prosecute based upon information which is acknowledged to have been obtained through the surveillance methods in question. The secrecy surrounding the program renders it difficult to identify aggrieved parties who would arguably have standing to sue for declaratory or injunctive relief. (The burden of showing that the harm is capable of repetition as to a particular individual or entity is also problematic.) Suit for damages is in all likelihood foreclosed by Nixon v. Fitzgerald.
That leaves the remedy that the founders reserved to the Congress in cases of treason, bribery, high crimes, misdemeanors and fellatio. Impeachment, however, is always a political question, and the political will to sustain that course of action is absent.
Which letter are you reading?
1. Actually, the DOJ letter conspicuously does not cite the portion of the In re Sealed Case dictum suggesting that FISA can't limit the President's power ("FISA could not encroach on the President's constitutional power").
HUH?
GO TO PARAGRAPH 5:
Wow, literally amazing.
Do you people even read what you write?
Or more appropriately, read-up on the topics on which you're opining?
You mean Supreme Court dictum don't you? I don't agree with you that the dictum in Sealed Case mean anything to any court except the FISa appeals court and the FISA court.
And its dictum is pretty meaningless there as the very FISA court itself is created by statute.
To be honest, it is a clear throwaway line by Silberman IMO.
The constitutional issue might not be raised in the criminal case -- that section is quite clear as to what an officier of the United States may rely upon as a defense, and a preemptive get-out-of-jail-free card from Mr. Yoo won't work. In a civil action, though, I would expect Mr. Rumsfeld to claim in his defense that his authorization of the tap was immunized by the President.
information" -- a proposition that is unremarkable, undisputed, and that would not, in itself, suggest any constitutional authority to ignore FISA -- and the letter then conspicuously fails to quote the remainder of the Sealed Case dictum, which is where that court went off the rails, i.e., "FISA could not encroach on the President's constitutional power."
DOJ does not, in other words, argue that "FISA could not encroach on the President's constitutional power" -- because that would be an audacious and wrong argument.
Or am I missing something?
http://strata-sphere.com/blog/index.php/archives/1090
You're missing the fundamental nature of our three branches of government: Congress writes the laws, the President executes them, and the courts interpret them.
This is the very basic nature of our government: Congress tells the executive what to do. Not the other way around.
The President only has authority which is given to him either by the Consitution or by Congress. As Prof. Kerr noted, there simply is no grant of authority from either source which would allow the President to create this program.
True, supreme court dicta matters most. Until, however, any such case would reach the S. Ct., the dicta of the court(s) of jurisdiction would be guiding. i.e., FISA lower through appellate. likewise, if the second circuit hasn't ruled on a particular issue, but mentioned the issue in a prior decision, a future decision might cite that case to either agree, disagree, adopt, modify, what have you.
that being said, my point being, I am not arguing the power is absolute, there are restrictions set upon the power by the constitution itself, as Youngstown makes clear. However, FISA cannot prohibit warrantless surveillance, and doesn't attempt to, it merely restricts the administration's ability to acquire a warrant (IMO).
my argument rests on the purpose of that restriction:
is it because the executive should not be allowed to conduct such searches without a warrant? or, is it because a warrant would make the evidence obtained admissible, and, thus, is an actual enhancement of the power (by expediting/limiting the procedure needed to attain a warrant)?
my argument is that it is the latter.
I think Marty Lederman needs to think this through a bit further. DOJ does not argue that "FISA could not encroach on the President's constitutional power" because they don't need to. DOJ's argument is that the surveillance is consistent with FISA; if the surveillance is consistent with FISA, then whether FISA "encroaches" on the President's Article II power is irrelevant.
All of the discussion about whether FISA "encroaches" is in an alternative in which we assume that the surveillance is illegal under FISA. Since DOJ doesn't accept that assumption, it doesn't need to make the argument regarding "encroaching". DOJ argues that we are in Youngstown Category ONE, not three - where Congress and the President are acting in concert, not at odds.
Are you saying -- and do you think it is the administration's argument -- that the inherent Article II authority for the NSA activities in question only obtains if we accept Bush's legislative-interpretation claim that AUMF superceded FISA's requirements?
The way I read the DOJ letter, its primary claim is that the Article II power is itself sufficient, and that the AUMF was merely icing on the cake: "The President's constitutional authority to direct the NSA to conduct the activities he described is supplemented by statutory authority under the AUMF."
Also, regarding the declaration of war against Al Qaeda, what exactly does a declaration of war allow the President to do that he otherwise could not have done? Just mobilize troops and attack someone? Or does it not encompass a wider range of authority? If Korematsu upheld the right of FDR to herd up American citizens in a time of war - an act clearly illegal under any number of laws in a time of peace - why wouldn't an act of war implicitly over-ride legislative acts like FISA inconsistent with the powers necessary to wage that war?
I tell you, though. If we raid an Al Qaeda safe house in Kabul or somewhere and recover a cell phone, and we look at the ingoing/outgoing calls and see a recently placed call to a New York or Las Vegas phone number, I'd want a tap on that phone immediately. FISA requires probable cause for a warrant, but I doubt the mere fact that an Al Qaeda member called someone qualifies as probable cause under any criminal standard. Under that scenario, it sounds like Bush did what I suspect 90% of Americans would demand he do. Maybe the practicalities and potential consequences here are so huge that I'm willing to interpret the law in any way possible to allow it, but at the end of the day, we'd better be doing this. I suspect that's why no Democrat has called on Bush to stop it.
Some people think since 9/11 we have to take the slightest threat of terrorism so seriously that the President must be able to do warrantless searches, FISA or whatever be damned. Others, say no (or at least not while Bush is President).
So, I think we are in one of those "constitutional moments" that Bruce Ackerman (I think) talks about: people either will or will not let the President use warrantless domestic surveillance.
I'm not sure what I think (though I'd feel better if we had another person as President in this situation), but in addition to 9/11, the attacks in Madrid and London should also be factored in. I also think if we had more than one Oklahoma City bombing during a three-five year period, we'd be doing warrantless domestic surveillance of suspected domestic terrorists (actually, I'd be surprised if we didn't in the wake of Oklahoma City).
If an American citizen is forced to use voice-recognition device on a computer, which is on a wireless card, and otherwise uses cell phone, all due to use of these devices in a home aboard a vessel on navigable waters, and we assume these transmissions are bouncing in and out of the domestic US while ECHELON data mining, keyword searches, and other electronic surveillance is applied to this particular target US person and the family -- how does this change the equation of lawfulness of the surveillance?
I am extremely interested in this, particularly in light of the failed admiralty provisions on the rejected Patriot reauthorization. Obviously the fact they were included in the draft legislation was of significance.
Recalling the Titanic case, US federal court exercised jurisdition in admiralty salvage over sunken ship far beyond US jurisdictional waters, I am wondering if in the above scenario, due to the wireless and cellular transmissions transmitting from a vessel within admiralty jurisdiction, even if they bounce in and out of the US internationally, wouldn't the extra-territorial reach of the admiralty jurisdiction extend the 4th Amendment and FISA warrant requirements to even the bouncing transmissions? (Assuming here, there is no emergency cause for a warrantless surveillance).
Another bit if curiosity, if the disabled person is forced to use such a device for a disability (sort of like a paraplegic would use a wheelchair), only this particular type of device hapens to be at the core of electronic transmissions, and the device is used wireless in the home (as well as elsewhere), what authority does the President and NSA (ECHELON) and/or FBI (renamed CARNIVORE) have to constantly at every moment be subjecting the disabled person to domestic surveillance through her disbaility device which she is forced to use to accommodate her disability? Also, wouldn't this type of domestic surveillance by NSA amount a vioation of the Third Amendment (in essence, quartering military soldiers through the disability wireless computer device in her home?) No less, her home aboard a vessel on navigable waters?
I apologize for throwing a curve ball into the discussion, but I am a voracious reader on these things since my father worked for IBM from late 1950s through the present (employee, then contractor) on what I believe to be portions of ECHELON.
I am also very curious in terms of ECHELON and the data mining, of what effect, for example, linking this domestic surveillance into certain banking electronic networks, e.g., Bank of America's massive database, serviced by IBM, would have on the scope and privacy issues involved in this discussion.
Let me guess, you have a degree in history, right?
The Court held in Youngstown that a President's acts are entitled to greatest judicial deference when those are done pursuant to express or implied Congressional authorization. I.e., his constitutional war powers are enhanced, to the extent they can be, by an AUMF.
John Yoo makes a good argument that a President's war powers are inherent in the Constitution. I buy his argument concerning use of military force against armed enemies - there an AUMF adds nothing, and the War Powers Act is unconstitutional (as well as being effectively dead after President Clinton ignored it over Kosovo).
Domestically I'm not so sure, and suspect that an AUMF adds a degree of judicial deference to a President's use of war powers domestically which it would not otherwise merit. My analogy here is to the truly vast domestic war powers a President obtains pursuant to statutes which take effect only upon a formal Congressional declaration of war. Congress may not reduce a President's constitutional war powers by legislative act, but it can enhance them.
Well, that's open to interpretation.
The letter is very clearly noting that a court has ruled on the "inherent authority" matter.
I defer to A.S's comments above.
They are dead on accurate on the matter.
The left is assuming without evidence, the President has ordered warrentless domestic surveillance in violation of the law.
Pure specualtion and silliness to a very high degree.
Isn't it funny that the right is now relying on Korematsu as the precedent justifying the President's actions. Korematsu is rightly regarded as one of the biggest black marks on the history of the Supreme Court, right up there with Dred Scott and Plessy v. Ferguson. Indeed, President Reagan himself apologized for the government's actions and stated that in the (then) administration's view the rights of the Japanese to due process were violated -- thus, that Korematsu was dead wrong. In fact, a lower court later vactated Korematsu's conviction (which the Reagan administration did not appeal) because it was based on lies by FDR's Justice Department. Funny that the same thing is happening now. . . . . And there is no irony at all that Korematsu is being dragged out as the case that justifies it. I can't wait to read the internal Yoo memo that cites Korematsu as precedent!
In fact, I think he was just doing the same thing I was, in a different way. He wanted to pretend he was sticking to FISA while watering down its probable cause standard to a degree not intended by that statute. I think a lot of Bush's critics are doing that - defending a FISA statute that does not exist in order to suggest that Bush could easily have complied with that law and still kept us safe.
There's no substantive difference between bypassing FISA and obtaining a FISA warrant with the judge winking at you the whole time. I see it this way. You're Bush. You need these taps. You rarely have probable cause and FISA generally takes 24 hours anyway. A debate in Congress to expand FISA would reveal exactly what you intend to do. You have a good-faith constitutional argument from your AG, and no case law right on point against you. How can anyone fairly disagree with Bush's decision to go ahead?
On this formulation al Qaeda will join the Judeo-Bolshevik conspiracy and the Windmill Wreckers as one of the great excuses of all time.
Straw
Man.
Re-read article I
You should ask the question every other way. Can Congress refuse to authorize funding for the Supreme Court and thereby close it down? Can Congress pass a law barring judicial review? Can the President issue an executive order banning filibusters or changing the number of members of Congress? Can the courts revoke Article 2 of the Constitution? The anarchy you fear is nothing more than recognizing that each branch of government has powers that the other branches can't restrict, and national security is entrusted to the President. Intercepting enemy communications in a time of war is hardly a tortured reading of the powers inherent in national security.
Intercepting the Japanese communications through MAGIC was one of our greatest weapons in WWII, and I highly doubt we turned off the microphone when one of those calls went to a US Citizen in the US.
IMO the present problems with the FISA statute establish that the law enforcement model cannot function in war. Speed of execution is critical in war. Deliberation is critical in law enforcement.
The speed issue, given the 72-hour retroactive capability, does not seem to be the real reason that warrants were not sought. That is mostly a red herring argument for PR purposes.
The substantive issue is that these NSA activities, as they have been reported, would not satisfy probable cause requirements for a FISA warrant.
We're really speculating here because I don't know exactly what was going on, but the two issues you raise seem inter-related. The speed issue is directly implicated by the need to obtain probable cause. How long would it take to obtain, organize and present a case for probably cause, if ever? 72 hours? more? I'm sure it varies in each case.
I suspect you're correct that FISA was bypassed not exclusively for speed reasons, but if the machinery of FISA is only being used when probable cause and enough time exists and ignored when they don't, why pay fake homage to the statute? As I understand it, Bush did seek retroactive FISA review, but even this must have been pro forma if he believed he didn't need their approval anyway.
It reminds of of when Bush the Elder publicly claimed he didn't need congressional authorization for the Persian Gulf War and then submitted it to Congress anyway. Basically, he said "I'm going to do it, but you can authorize it if you want". Ditto for W, the Iraq War and the UN Security Council.
I suggest you take that up with the D.C. Circuit. They held in 2002 that the president has "inherent constitutional authority to conduct warrantless foreign intelligence surveillance."
You can also try winning enough elections to amend the Constitution so it says what you want.
Here's how I see the legal issues (in the order they were presented in the letter):
1. In the absence of any Congressional acts (either supporting him or contradicting him), does the President have authority to conduct the surveillance?
2. Does the AUMF add to the President's authority?
3. Does FISA detract from the President's authority?
4. Does the 4th Amendment detract from the President's authority?
DOJ answers the first two issues as follows: first, in the absence of Congressional action (i.e., under Category 2 of Youngstown), the President has authority. Second, the AUMF adds to the President's authority (i.e., it moves the case from Category 2 of Youngstown to Category 1).
The third issue is where all the controversy here today is. DOJ argues that FISA does NOT detract from the President's authority because FISA wasn't breached (i.e., since there was no breach of FISA, the case is NOT moved to Category 3 of Youngstown). This is where Marty Lederman is hung up. Lederman believes that FISA was breached, and then proceeds to the next question (call it issue 3b) - does Congress's contradicting statute (FISA) detract from the President's authority sufficiently such that the President may no longer constitutionally conduct the warrantless surveillance, or does FISA "encroach" on the President's authority such that FISA is unconstitutional (as applied to this specific case - not in general)? All I am trying to say is that DOJ never reaches that subsequent issue 3b, and thus doesn't supply the quotation from In re Sealed Case that applies to it, because DOJ argues that FISA wasn't breached.
It is not just the speed of the Court in making rulings. The speed required to pr