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The NSA Surveillance Program and the Article II Argument:
In yesterday's Wall Street Journal, Professor Robert Turner advances the argument that the President's Article II authority trumps FISA, and that therefore the NSA surveillance program as we know it is probably legal. Although Article II is not my area of expertise, I have different instincts on these issues. I thought I would quote from Turner's piece paragraph-by-paragraph and explain my questions and why I tend to disagree. To be clear, I'm not intending my questions and comments to be the last word on any of these issues. Rather, I hope they'll help advance the conversation and sharpen the debate; if my instincts are wrong, I hope commenters or other bloggers will carefully explain why.

  I'll skip over the first part of Turner's piece, which is more historical argument than a legal one, and start in with the fourth paragraph:
For nearly 200 years it was understood by all three branches that intelligence collection--especially in wartime--was an exclusive presidential prerogative vested in the president by Article II, Section 1 of the Constitution. Washington, Madison, Jefferson, Hamilton, John Marshall and many others recognized that the grant of "executive power" to the president included control over intelligence gathering. It was not by chance that there was no provision for congressional oversight of intelligence matters in the National Security Act of 1947.
  I don't have a reason to doubt that, but I'm not sure how it's relevant: Attitudes changed after the Nixon presidency, and the issue is the legality of post-Nixon legislative restrictions on executive power.
Space does not permit a discussion here of the congressional lawbreaking that took place in the wake of the Vietnam War. It is enough to observe that the Constitution is the highest law of the land, and when Congress attempts to usurp powers granted to the president, its members betray their oath of office. In certain cases, such as the War Powers Resolution and the Foreign Intelligence Surveillance Act, it might well have crossed that line.
  I think everyone agrees that the Constitution reigns supreme. Of course, the question is whether and why a law like FISA might violate the Constitution.
Keep in mind that while the Carter administration asked Congress to enact the FISA statute in 1978, Attorney General Griffin Bell emphasized that the law "does not take away the power of the president under the Constitution." And in 1994, when the Clinton administration invited Congress to expand FISA to cover physical as well as electronic searches, the associate attorney general testified: "Our seeking legislation in no way should suggest that we do not believe we have inherent authority" under the Constitution. "We do," she concluded.
  I'm not sure of the context of Bell's comment — I couldn't find it on westlaw, and it doesn't come up on google. But I think it's important to note what Gorelick was and was not arguing. As I understand it, Gorelick wasn't claiming that Congress couldn't regulate the President's authority to conduct physical searches. As the transcript of her testimony at that time suggests, she was arguing that absent statutory regulation, the executive had that power (as several circuit courts had held). In other words, Gorelick was using the phrase "inherent authority" to mean "not needing Congressional authorization," rather than "unable to be subject to Congressional regulation." And of course, whether past DOJ officials have claimed this power is much less relevant than whether courts have agreed.
I'm not saying that what the president authorized was unquestionably lawful. The Supreme Court in the 1972 "Keith case" held that a warrant was required for national security wiretaps involving purely domestic targets, but expressly distinguished the case from one involving wiretapping "foreign powers" or their agents in this country. In the 1980 Truong case, the Fourth U.S. Circuit Court of Appeals upheld the warrantless surveillance of a foreign power, its agent or collaborators (including U.S. citizens) when the "primary purpose" of the intercepts was for "foreign intelligence" rather than law enforcement purposes. Every court of appeals that has considered the issue has upheld an inherent presidential power to conduct warrantless foreign intelligence searches; and in 2002 the U.S. Foreign Intelligence Surveillance Court of Review, created by the FISA statute, accepted that "the president does have that authority" and noted "FISA could not encroach on the president's constitutional power."
  There are two separate issues here, I think. With the exception of the 9 words of dicta from the 2002 FISA court decision, all of those precedents were dealing with the Fourth Amendment's warrant requirement. Specifically, the issue was whether the Fourth Amendment requires a warrant when the government engages in foreign intelligence surveillance. That's not the issue here, I think, as most people seem to be focused on FISA rather than the Fourth Amendment.

  As for the 9 words of dicta from In re Sealed Case — "FISA could not encroach on the president's constitutional power" — I find it hard to know what to make of it. In that case, the government was arguing that the statutory warrant requirement of FISA made monitoring pursuant to that requirement constitutionally reasonable. Was the court claiming that Congress could not impose a warrant requirement where a warrant would not required under the Fourth Amendment? That would reverse the usual role of the Fourth Amendment: it would transform the Fourth Amendment from a floor on privacy protections into a ceiling. Or is the Court merely saying that if FISA were repealed, the President's constitutional power from pre-FISA days would still exist? I'm not entirely sure, and unfortunately the opinion doesn't carefully explain it. If this phrase stands for the view that Article II powers trump FISA's restrictions, then I would certainly want more authority than that; Congress thought it was binding the executive when it passed FISA, and it would be news justifying more than 9 words of dicta if this weren't the case.
For constitutional purposes, the joint resolution passed with but a single dissenting vote by Congress on Sept. 14, 2001, was the equivalent of a formal declaration of war. The Supreme Court held in 1800 (Bas v. Tingy), and again in 1801 (Talbot v. Seamen), that Congress could formally authorize war by joint resolution without passing a formal declaration of war; and in the post-U.N. Charter era no state has issued a formal declaration of war. Such declarations, in fact, have become as much an anachronism as the power of Congress to issue letters of marque and reprisal (outlawed by treaty in 1856). Formal declarations were historically only required when a state was initiating an aggressive war, which today is unlawful.

Section 1811 of the FISA statute recognizes that during a period of authorized war the president must have some authority to engage in electronic surveillance "without a court order." The question is whether Congress had the power to limit such authorizations to a 15-day period, which I think highly doubtful. It would be akin to Congress telling the president during wartime that he could attack a particular enemy stronghold for a maximum of 15 days.
  What is the best case for the view that Congress cannot limit monitoring to 15 days? And is domestic surveillance really the same as attacking a particular enemy stronghold? It seems to me that you can analogize the surveillance program in different ways, depending in part on details we don't yet know, and I'm not sure the "enemy stronghold" analogy is the best. For example, I gather that some critics would say that limiting surveillance monitoring is more like blocking the President from seizing steel mills to avoid a wartime stoppage of much-needed steel production. The Supreme Court held that this power exceeded Article II in Youngstown Sheet & Tube v. Sawyer; why isn't this a better analogy? Does it matter how widespread the monitoring was? When it was conducted? How it was conducted?
America is at war with a dangerous enemy. Since 9/11, the president, our intelligence services and our military forces have done a truly extraordinary job--taking the war to our enemies and keeping them from conducting a single attack within this country (so far). But we are still very much at risk, and those who seek partisan political advantage by portraying efforts to monitor communications between suspected foreign terrorists and (often unknown) Americans as being akin to Nixon's "enemies lists" are serving neither their party nor their country. The leakers of this sensitive national security activity and their Capitol Hill supporters seem determined to guarantee al Qaeda a secure communications channel into this country so long as they remember to include one sympathetic permanent resident alien not previously identified by NSA or the FBI as a foreign agent on their distribution list.
  First of all, the motives of the leakers and people on Capitol Hill obviously aren't relevant to the legality of the NSA program. But even as a political argument, it seems really unfair; I am also very uncomfortable with the leaks here, but I don't know how we can lump the leakers together with unnamed "Capitol Hill supporters." I gather this was meant to be exagerrated for effect, but the idea that "Capitol Hill" opponents of the program "seem determined to guarantee al Qaeda a secure communications channel" under any circumstances is preposterous.
Ultimately, as the courts have noted, the test is whether the legitimate government interest involved--in this instance, discovering and preventing new terrorist attacks that may endanger tens of thousands of American lives--outweighs the privacy interests of individuals who are communicating with al Qaeda terrorists. And just as those of us who fly on airplanes have accepted intrusive government searches of our luggage and person without the slightest showing of probable cause, those of us who communicate (knowingly or otherwise) with foreign terrorists will have to accept the fact that Uncle Sam may be listening.
  But "the courts" in question were all deciding cases under the Fourth Amendment, right? "The test" mentioned here was the Fourth Amendment test, not the test for legality. I agree that the program probably passes Fourth Amendment muster; it's the prohibitions of FISA that are the issue.
Our Constitution is the supreme law, and it cannot be amended by a simple statute like the FISA law. Every modern president and every court of appeals that has considered this issue has upheld the independent power of the president to collect foreign intelligence without a warrant. The Supreme Court may ultimately clarify the competing claims; but until then, the president is right to continue monitoring the communications of our nation's declared enemies, even when they elect to communicate with people within our country.
  Again, I think this claim confuses two different powers: powers to conduct surveillance absent congressional authorization, and powers to conduct surveillance in the face of congressional prohibition.

  Finally, if the issue is how the Supreme Court would rule, I don't think there is much doubt as to what the Supreme Court would do with the Article II argument. I think you would probably get an 8-1 vote against an expansive reading of Article II powers, and it's really hard to see where the Administration could get 5 votes for the claim. That's my ballpark guess, at least. We may find out as early as this summer, too; if the Court grants cert in Padilla, which it probably will, there may be some interesting opportunities for opinions that shed more light on these issues.

  To be clear, I think the legality of the NSA surveillance program is a very difficult question, and it depends on details we mostly don't yet know. But in constrast to the difficult issues involving FISA and the AUMF, I don't see the Article II claim as a close one based on existing law. Am I wrong? If you think so, please consider leaving a comment explaining why. I am particularly interested in case citations and arguments based on existing legal authorities.
Jack John (mail):

Was the court claiming that Congress could not impose a warrant requirement where a warrant would not required under the Fourth Amendment?



To the extent it conflicts with the President's Commander-in-Chief power during a time of war, yes.
12.29.2005 5:11pm
minnie:
I agree with the points Orin Kerr makes in this post, and in fact predicted a while ago on another blog that this would elicit an 8-1 opinion from the SC, the 1 being Alito. However, even he might go along with the others, since he would not want his true colors to stand out like a sore thumb so early in the game.
12.29.2005 5:24pm
OrinKerr:
Minnie,

FWIW, I was thinking the probable "1" would be Justice Thomas, not Alito.
12.29.2005 5:26pm
Joel B. (mail):
I don't think you're wrong at all Prof. Kerr. However, if I was going to argue that FISA is unconstitutional, I would argue that FISA unduly restricts the rights of subsequent executives and as such it is unenforceable. The Constitutional authority of the President overrides the statutory regulation.

The way I see the argument being played out, is that Congress can no more pass a law binding future Congress' to certain decrees. The most common example is congress passing by statute a law which prohibits (say) tax cuts with less than 60% vote. If Congress passed such a law, that was then signed by the President, and a subsequent Congress then passed a tax cut by 50%+1 votes the tax cut would still be effective. The prior legislative act was meaningless, it could not be effective.

I suppose this is also similar to the idea that certain duties are non-delegable, perhaps some duties are not restrictable, one of which being the authority of the President in war times.

Just as Congress can not bind future congresses the President and Congress can no more bind future presidents. (Importantly this is recongized in the fact that the standing rules of the Senate do no more bind the Senate then the fact that by a 50 + 1 vote all the standing rules can be swept away. By default the fact the rules still exist means that there does not exist 50 + 1 votes to change them).
12.29.2005 5:49pm
Joel B. (mail):
Actually, as I'm thinking through it even more, I think the Article II argument actually gets stronger. IF, the President's authority is one inherent in Article II then Congress can not restrict it absent constitutional amendment. The reason that Congress can restrict the Executive's action in most cases, is because the Executive's authority comes from his power to enforce the laws. But Here, the executive's authority does not flow from his law enforcement authority instead it flows from his commander in chief authority.

Imagine, for example, that Congress passed a law which created the office of Supreme Commander of American forces, later signed by the President, which created an office of greater authority then the commander-in-chief held by the speaker of the house no less. Would that, Could that statute take effect? Certainly Not, if Congress and even the sitting president wants to restrict the future president's authority as CIC they must amend the constitution a statute is wholly ineffective.
12.29.2005 5:56pm
DS (mail):
Doesn't Article I Section 8 of the Constitution specifically grant CONGRESS the ability to regulate the NSA?

Here's the text from this site.

Art. I Section 8 states in part, that Congress has the power:

...

To make Rules for the Government and Regulation of the land and naval Forces;

...


One could argue that the NSA is not part of the land and naval forces, but then how would the Commander and Chief power then apply since Article II makes the President Commander in Cheif of the Armed Forces not Commander of intelligence services?

What's most disturbing about the Bush Administration position is that they seem to be arguing that Congress has no inherent right to involvement in wartime decisions at all. But the many provisions of Article I, Section 8 dealing with war and the military would clearly seem to suggest that the intent was for Congress to have a large role in the conduct of war.
12.29.2005 5:56pm
Anderson (mail) (www):
Stepping back and looking at the Big Picture, it is just *astonishing* to see so many apparently smart people, making arguments that the President is not bound by the rule of law where "national security" is an issue.

Ever heard of the Reichstag Fire, people?

The Weimar constitution had an emergency-powers clause. Bad idea, that. Ours does not.

I keep imagining the Constitutional Convention's being briefed by John Yoo, or some of the VC's commenters, on the "inherent Article II powers of the President." They would ridicule the poor guy.
12.29.2005 6:07pm
Freder Frederson (mail):
You hang a whole lot on one designation in Article II. All article II says is that the President is Commander in Chief of the Navy and the Army (nothing about the Air Force by the way). Congress has a lot more explicit power over the military spelled out for it in Article I. As for non-delegable duties, nobody (except me) seems particularly bothered that the Congress has apparently delegated their duty to declare war to the President.
12.29.2005 6:07pm
JamesB:
John Jack said

To the extent it conflicts with the President's Commander-in-Chief power during a time of war, yes.


The problem is Congress did not declare war, matter of fact it went out of it's way not to declare war. The reason for that is simple, they did not want to grant the President complete war powers. Insted they passed an additional bill, the Patriot Act, to grant the additional powers they felt he would need. If Congress had declared war much that bill would be unnecessary.

In any case I agree with DS, according to the constitution Congress does have the authority to regulate how the governmental and military forces conduct themselves, even in a time of war. What they don't have is the authority to dictate tatics.
12.29.2005 6:08pm
Wintermute (www):
I have to give some props even to Harry Reid, who said he didn't believe that commander-in-chief powers trump the Fourth Amendment, which was after-passed; and I don't think the Supremes in this case are going to slide down the slippery slope they created with exceptions in other spheres. There are also the Necessary abd Proper and the Faithfully Execute clauses to work against Article II primacy. An argument could be made that Congress could only regulate surveillance against persons with Fourth Amendment rights; and the members of that class could be defined, all subject to the power of the Court to define the extent of the Fourth.

Of course, Congress always has the sole power of the purse and has had to use it before in the war context.

Perhaps someone can answer this: it takes a non-constitutional majority in both houses of Congress to declare war, right? But in the past has the President signed such passed declarations or resolutions? Has the President been thought able to veto such a declaration, forcing it to be passed by 2/3? Can a simple majority of Congress UN-declare war and so force a cessation of hostilities without having to resort to defunding, and would such an UN-declaration be subject to veto?

Oh, I might as well mention my recent scribbling in related matters, Who's Watching the Watchers?
12.29.2005 6:11pm
Unnamed Co-Conspirator:
Freder, nobody but you is bothered by it because it wasn't a delegation of power to declare war, but a declaration of war itself, or the closest thing we've seen to one since 1941. No major power has issued a declaration of war in the last half-century, so can we please stop pretending that there's some requirement that magic words in a Congressional act are necessary to permit the President to use the wartime powers given to him under the constitution? The joint resolution of Congress is enough to do that.
12.29.2005 6:15pm
KMAJ (mail):
Prof. Kerr, thank you for your well stated and reasoned analysis of Prof. Turner's opinion piece. I found it an enlightening exercise.

In my personal observation of this evolving constitutional dispute, it seems that all precedent and case law cited, except possibly 'Sealed Case', does not invoke a change in the construct created by the War on Terror and prevention of terrorist acts and pre-dates 9/11, which is the foundation of the current argument.

Won't the Supreme Court include that in any decision rendered ? If that is the case, would they see the Article II argument, not as an expansion, but a re-definition of executive branch powers ? This question would only hold true IF the scope of the NSA surveillance is only as narrow as the administration alleges. I would certainly agree the Supreme Court would strike down any broad expansion of executive authority, but the Article II argument as put forth is very narrow and explicit in assignation to terrorism related surveillance.

I think this legal issue, when (not if)it comes before the Supreme Court, is laying out new ground which will impact future rulings and affect the way we interpret and opine on constitutional legal issues in the future and the way we legally parse the semantics in legislation like AUMF or FISA.
12.29.2005 6:22pm
Gordon (mail):

Space does not permit a discussion here of the congressional lawbreaking that took place in the wake of the Vietnam War. It is enough to observe that the Constitution is the highest law of the land, and when Congress attempts to usurp powers granted to the president, its members betray their oath of office. In certain cases, such as the War Powers Resolution and the Foreign Intelligence Surveillance Act, it might well have crossed that line.


With this breathtakingly extreme statement, Professor Turner calls the rest of his article and assertions into question.
12.29.2005 6:23pm
JamesB:
Unnamed Co-Conspirator, We are a nation of laws and the Constitution spells out explicitly what must happen for the United States of America to be legally at war. Congress has not done so, therefore we are not at war.
12.29.2005 6:26pm
M. Lederman (mail):
Orin: Great post. I have a handful of minor additions/reactions.

First: Why did FISA include a 15-day war exception? After all, the President's need for intel through electronic surveillance presumably continues in full force even after 15 days, right? The answer is that Congress (and the President) specifically contemplated that FISA might need amending in times of war, and the 15 days was thought to be enough time for the President to offer an amendment and for Congress to consider it: The Conference Report explains that "[t]he Conferees intend that this [fifteen-day] period will allow time for consideration of any amendment to this act that may be appropriate during a wartime emergency. The conferees expect that such amendment would be reported with recommendations within 7 days and that each House would vote on the amendment within 7 days thereafter." H.R. Conf. Rep. No. 95-1720, at 34 (1978). The Conference Committee substituted the 15-day provision for the House version of the bill, which would have authorized the President to conduct warrantless electronic surveillance for the first year of a war. The point being that Congress did not wish to give the President carte blanche to run roughshod over FISA during war, but instead insisted that the law be subject to the (expedited) legislative process.

Rather than follow this course and seek an amendment to FISA here, the President simply acted unilaterally in contravention of FISA.

Second, the FISA Court dictum ("FISA could not encroach on the President’s constitutional power") was taken almost verbatim from the 1978 testimony of former Deputy Attorney General Laurence Silberman, who was virtually alone -- contra Attorney General Bell -- in testifying against the constitutionality of FISA. See Foreign Intelligence Electronic Surveillance: Hearings Before the House Subcomm. on Legislation of the Permanent Select Comm. On Intelligence, 95th Cong., 2d Sess. 223-224 (1978). Whadda ya know?: Silberman was one of the three judges on the panel in In re Sealed Case. Fancy that! Obviously, he was trying to insert a poison pill to revive his quarter-century-old constitutional objection -- but his constitutional view was rejected by legislature and executive alike in 1978 and has, as far as I know, not been embraced by anyone else in any of the three branches.

Third, I think it's very telling that DOJ has not (yet) embraced this Article II theory in its defense of NSA: No doubt they believe (and I agree) that to suggest that FISA is unconstitutional would be even more politically unpalatable than telling Congress that it inadvertently blew a huge whole through FISA when it enacted the AUMF.
12.29.2005 6:30pm
Unnamed Co-Conspirator:
Anderson, no one is suggesting that the President isn't bound by the rule of law, only that Congress is also not above the law -- the law including the Constitution and not just acts of Congress. Congress can no more modify the President's inherent powers than the President can modify Congress'. Even at what Justice Jackson called the lowest ebb of a president's constitutional power, that which it is exercised in opposition Congressional power, it shouldn't be controversial that a president may properly conduct surveillance of communications that cross our borders or communications involving foreign nationals or agents even if they also involve US persons, as long as the purpose of the surveillance is the protection of our national security. Congressional oversight can ensure that the scope and purpose of the surveillance are properly within the President's power, and of course, it has in this case. The complaints from the Democrat side of the aisle shouldn't be confused with anything to be taken seriously. If they were bona fide, they would have been raised when the Dems were first briefed on the program 3 years ago.
12.29.2005 6:37pm
LM:
Dumb question: My understanding is that Congress has amended FISA since Bush took office. Bush did not veto that legislation. If that's true, then he didn't think FISA was unconstitutional then. How can he now claim that it is?
12.29.2005 6:44pm
David M. Nieporent (www):
JamesB:
Unnamed Co-Conspirator, We are a nation of laws and the Constitution spells out explicitly what must happen for the United States of America to be legally at war. Congress has not done so, therefore we are not at war.
But the Constitution doesn't "spell out" anything of the kind. It "spells out" who get the power to do so. Congress. What do think Congress "has not done" here?

The Constitution in no way says, "The Congress shall have the power.... to declare war by passing a resolution with the words 'declaration of war' in it."

All it says is that Congress has the power to declare war. Why don't you think it did so?
12.29.2005 6:49pm
Just an Observer:
It is useful to recall the history of this matter, and the role Congress and the courts have played, before and after FISA.

The 1967 Katz case held that electronic surveillance is protected under the requirements of the Fourth Amendment.

The 1968 Omnibus Crime Control and Safe Streets Act of 1968 criminalized surveillance outside the color of law. But the legislation did not regulate foreign-intelligence surveillance, and included the following language acknowledging executive power in this area, codified as 18 U.S. Code 2511(3):


[N]othing contained in this chapter . . . shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities. Nor shall anything contained in this chapter be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government.


The landmark Keith case forbade warrantless national-security surveillance, but only in the limited situation with "no evidence of any involvement, directly or indirectly, of a foreign power." It left such foreign-power situations unresolved.

There were circuit cases on foreign-intelligence surveillance. United States v. Brown in the 5th Circuit in 1973 upheld the legality of warrantless surveillance for gathering foreign intelligence. That was followed by United States v. Truong Dinh Hung, which set certain rules for when such warrantless surveillance for the "primary purpose" of foreign-intelligence surveillance could be used in criminal prosecution. Some other circuits followed Truong.

But the issue never was resolved definitively by the Supreme Court.

Meanwhile, following the scandals of the 1970s, including the COINTELPRO excesses exposed by the Church Committee, Congress chose to enter the fray after all. The result was the enactment of FISA in 1978.

FISA repealed 2511(3) quoted above, and substituted the new structure of the FISC courts and its corresponding requirements for approving surveillance. In an area where Congress once was silent and deferred to the executive, it now chose to legislate.

Thus, it seems to me, if the claims of "inherent" Article II authority are considered within the framework of Justice Jackson's famous opinion in Youngstown, Congress used to be in Category 2. After passage of FISA, however, Congress had spoken. Category 2 is no longer a reasonable description. We are either in Category 1 (where the president and Congress are in agreement), or Category 3 (where they are in disagreement.)

Which of those is the case, after enactment of the 2001 AUMF, depends on whether the Bush administration is correct in its assertion that AUMF's general language satifies an exception to FISA, or not.

That, I believe, is where an analysis under the Youngstown precedent would leave us. The administration's argument for inherent Article II authority would be dependent on its argument for interpreting the statutes themselves. If their statutory argument fails, then the Article II authority fails with it.

However, it seems that the administration position goes further than this, implicitly rejecting the Youngstown framework. The president now seems to argue that its inherent Article II powers cannot be constrained by what Congress does.

Justice Jackson, meet John Yoo.
12.29.2005 6:53pm
David Hecht (mail):
"Congress thought it was binding the executive when it passed FISA, and it would be news justifying more than 9 words of dicta if this weren't the case."

Just because "Congress thought" doesn't make their action a constitutional one. Pace Gordon above, there's nothing "extreme" about suggesting that the Congress exceeded their own authority by passing the War Powers Act: every President--Democratic and Republican--who has held the office since its passage has asserted that the WPA does not bind him, though many have complied with its reporting requirements nevertheless.

By extension, it's certainly a colorable argument that FISA exceeds Congress' authority also.
12.29.2005 6:55pm
Gordon (mail):
Just an Observer: Thanks for bringing up the Youngstown Steel decision. It's existence has not been acknowledged by the administration, or its defenders such as Robert Turner.
12.29.2005 7:01pm
DS (mail):
Another question I have is how the Supreme Court could find an inherent authority to conduct warrantless wiretaps in Article II in the first place. The exact wording of the Commander in Chief clause is this:

"The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices ..."

I can see where from this you get the argument that the president controls intelligence, as that was probably part of the army at the time. But how from that, do you get the idea that the President can in the pursuit of intelligence ignore other parts of the Constitution, namely the Fourth Amendment?

In the case of FOREIGN intelligence it makes some sense, as non-US citizens are not covered by the Constitution. But the Bush Administration is arguing that its Commander in Chief powers give it the ability to ignore the Fourth Amendment of the Constitution even when it involves surveillance of Americans. And if they can ignore this part of the Constitution, what else can they ignore -- prohibitions against seizure of property without cause? prohibitions against detention of US citizens without cause? prohibitions against cruel and inhuman punishment?

Frankly, this interpretation of the Commander In Chief clause looks like a bit of judicial activism using a loose construction theory of the Constitution, and previously I understood conservatives to believe in strict construction.

But the other piece of this is the Bush Administration's conducting warrantless searches without judicial review. In effect, Bush sets himself up as the person who writes the rules governing the NSA program and then as the judge of whether NSA is within the rules. He puts all the power of the Legislature and Judiciary into his own hands, at least in this one area of law. So where does that leave the checks and balances of our government, especially if Bush is allowed to get away with this and emboldened to expand the principle to other areas of law?
12.29.2005 7:03pm
Marcus1:
Unnamed co-conspirator,

You don't believe the Framers would have allowed Congress to regulate domestic surveillance?

That seems rather strange to me. From my knowledge, I understand they wanted domestic policy decisions left up to Congress. I'm not aware of any "national security" exception.

Here we have a domestic policy decision which Congress has addressed. Sure, it implicates national security, but so what? Does it really interfere with the President's role as commander in chief of the armed forces as understood by our Constitutional framers?

I don't see how you read the Constitution and come away with the feeling that the President can do whatever he wants as long as it relates to "national security." To me, that sounds like a King. I'm pretty sure it would have sounded that way to our framers too.
12.29.2005 7:06pm
Jutblogger (www):
DS,
the DOJ has not claimed that there is no venue for judicial review. It has bypassed judicial review for a warrant, and, a warrant in itself. the act of instructing DOJ members to not seek warrants, when there is case law and an argument to make that they are not needed, is not, in itself, some usurpation of congressional authority. Indeed, when the defense attorneys for the alleged al qaeda members bring this issue to a head, i am certain the DOJ will not argue that the judge has no jurisdiction on the matter.
12.29.2005 7:08pm
Pooh (www):
Ultimately, as the courts have noted, the test is whether the legitimate government interest involved--in this instance, discovering and preventing new terrorist attacks that may endanger tens of thousands of American lives--outweighs the privacy interests of individuals who are communicating with al Qaeda terrorists.

This is the part of the whole thing that is maddening to me. The apologists almost universally assume the conclusion embodied in the bolded text. When you frame it that way, the argument flows to a degree - "well of course you have no reasonable expectation of privacy if you are a/communicating with terrorists." But not subjecting the initial determination to any sort of review creates a 'terrorist' exception which swallows the rule in one gulp. The "trust me, I'll get it right" argument just doesn't cut it.
12.29.2005 7:09pm
Marcus1:
David Nieporent,

Well, if this is a war, when does it end? When there is a peace accord?

You, apparently, would give the president unlimited war powers to ignore laws indefinitely within the United States. That's not quite how I read the Constitution.
12.29.2005 7:14pm
A.S.:
Third, I think it's very telling that DOJ has not (yet) embraced this Article II theory in its defense of NSA: No doubt they believe (and I agree) that to suggest that FISA is unconstitutional would be even more politically unpalatable than telling Congress that it inadvertently blew a huge whole through FISA when it enacted the AUMF.

Well, at least Marty Lederman is thinking this argument through a bit more than the last time he made it. A couple of days ago, he argued that it's "very telling" that DOJ (in the Moschella letter) didn't embrace the Article II theory in its defense of NSA program because the Article II theory was somehow preposterous. But, of course, it's not telling at all, since the Moschella letter had no reason to set forth the Article II theory, given that the actual theory set forth in the letter is that the warrantless surveillance is supported by Congressional action - the AUMF - and thus in Youngstown Category 1, rather than being contrary to Congressional action. And, since the warrantless surveillance is clearly legal in situations involving Youngstown Category 2 (and thus, also in Youngstown Category 1 situations), the only reason to take up the Article II theory is if the warrantless surveillance is in Youngstown Category 3 (i.e., contrary to to Congressional action).

At least now Lederman seems to acknowledge this fundamental fact. So he is reduced to arguing that DOJ ignored the Article II argument because it is "politically unpalatable". Well, duh. Is this a revelation? I mean, is it that shocking that DOJ would put out a letter to Congress saying, in effect, "Congress, we're doing something consistent with your authorization in the AUMF" rather than a letter saying "Congress, we can ignore you because the Constitution allows us to"? What politician (or, really, any person at all) wants to be told that they can be ignored? None. But for some incomprehensible reason, Lederman seems to think it "very telling" that the DOJ didn't want to say that in its letter.
12.29.2005 7:23pm
DS:
It's important in a discussions such as this that we get the facts straight.

Unnamed Co-Conspirator states that if this surveillance was truly a problem then Democrats would have protest and then claims they didn't. This is false.

Democrat Rockefeller has released his letter to the White House protesting this, which you can read here.

Nancy Pelosi has asked that her letter protesting this be declassified.

Tom Daschle has also said he protested and all three have stated they were given very sketchy information about the program.

They simply didn't protest PUBLICLY because the program was classified and that would have been breaking the law.

So lets stop with this the-Dems-didn't-protest argument as it's nonsense and beside the point anyway.

Also, I would not that it's a bit of a contradiction to argue for Congressional Oversite while claiming that Congress has no power to oversee the president in this area.
12.29.2005 7:23pm
Omar Bradley (mail):
Great post and comments.

i'd only add that I find it interesting that all of a sudden conservatives are bending over backwards to cite precedent after precedent and invoke stare decisis.

I thought conservatives loathed stare decisis and precedent and said it doesn't matter.

Which is it?

Or does precedent only matter when it supports your opinion and not matter when it opposes it?
12.29.2005 7:27pm
A.S.:
Finally, if the issue is how the Supreme Court would rule, I don't think there is much doubt as to what the Supreme Court would do with the Article II argument. I think you would probably get an 8-1 vote against an expansive reading of Article II powers, and it's really hard to see where the Administration could get 5 votes for the claim.

Also, let me add to what I wrote above about how DOJ is arguing that this is really a Youngstown Category ONE case, not a Category 3 case (which is the only time that the Article II argument would be heard), I think this is not only the best position politically vis-a-vis Congress, but it ALSO the best position at the Supreme Court.

I don't think the Supreme Court would ever decide the Article II argument, so Orin's prediction of an 8-1 ruling against it is irrelevant. In all likelihood, the Supreme Court would accept the Administration's argument that the AUMF authorized the surveillance (and thus that this is a Youngstown Category 1 case). It's a punt by the Supreme Court, to be sure. But a very easy punt. In essence, the Supreme Court is saying to Congress - if you REALLY think that Bush is ignoring the Legislative Branch, you solution is simple: pass a law (or even a resolution) withdrawing from the AUMF the authority to conduct this survaillance. Congress was unclear when it wrote the AUMF, and the President made a reasonable judgment that the ambiguity in the AUMF authorized his action. If that judgment is wrong, Congress can feel free to clarify the meaning of the AUMF at any time.
12.29.2005 7:32pm
minnie:
Wintermute, thanks for the link above to your interesting post "Who's Watching the Watchers?"

In it, you quote:

"President Bush and other top officials in his administration used the National Security Agency to secretly wiretap the home and office telephones and monitor private email accounts of members of the United Nations Security Council in early 2003 to determine how foreign delegates would vote on a U.N. resolution that paved the way for the U.S.-led war in Iraq, NSA documents show.

Two former NSA officials familiar with the agency's campaign to spy on U.N. members say then-National Security Adviser Condoleezza Rice authorized the plan at the request of President Bush, who wanted to know how delegates were going to vote. Rice did not immediately return a call for comment."

I don't get it. If this is true, why isn't there an uproar?

Orin Kerr, if this is true, what is your opinion on this and what should be done about it?
12.29.2005 7:38pm
jrose:
A.S.,

How can it be Category 1 when Section 1811 of FISA explicitly proihibts the action and Youngstown established that an implicit authorization (AUMF) does not override an explicit prohibition.
12.29.2005 7:44pm
Jack John (mail):
Jrose:
Because Hamdi changed everything.
12.29.2005 7:45pm
Jack John (mail):

Me: To the extent it conflicts with the President's Commander-in-Chief power during a time of war, yes.

Some Incorrect Dude: The problem is Congress did not declare war, matter of fact it went out of it's way not to declare war.


The President's powers escalate during war. That is a factual analysis. Either we are at war or we are not. The only time that Congress has to declare war is when the war is an aggressive war, which is now illegal -- so the Declar War Clause is a dead-letter. We are now at war and the war is one of self-defense (remember 9/11?), so even if the Declare War Clause were not a dead-letter, it does not apply in this context. Thus, there is no problem.
12.29.2005 7:51pm
A.S.:
OK, in for a penny, in for a pound. I might as well state why Orin is wrong substantive also, while I'm at it here.

Here's the statement of Orin's that I have the biggest problem with:

For example, I gather that some critics would say that limiting surveillance monitoring is more like blocking the President from seizing steel mills to avoid a wartime stoppage of much-needed steel production. The Supreme Court held that this power exceeded Article II in Youngstown Sheet &Tube v. Sawyer; why isn't this a better analogy?

The steel seizures at issue in Youngstown are a TERRIBLE analogy for the surveillance it issue presently. Every military that ever fought a war, from time immemorial, has conducted surveillance of its enemy (if that's an exaggeration, it probably only a slight one). Surveillance is AT THE VERY HEART of the concept of military action. Seizing domestic means of production is not even CLOSE to being at the heart of military action; it is peripheral at best.

It seems to me that Orin's argument is that the President as no authority AT ALL that is not subservient to Congress. And that seems to me to destroy the very idea of separation of powers. That is, if the Constitutional separation of powers means anything at all, then the President must have some independent power -- some power that Congress cannot regulate. If not here, then where? Does Orin think that there is ANYTHING AT ALL that the President does that Congress cannot regulate? If so, I'd like for him to explain which Presidential powers Congress can regulate and which Congress can't - and how he determines whether a Presidential power falls into one category or the other. And if Orin, on the other hand, thinks that Congress can regulate or prohibit everything the President may do, the I'd like Orin to tell us how he squares this with the concept of separation of powers.

It seems to me that those who argue that the conduct of foreign intelligence surveillance is solely the province of Congress - that the President cannot take any action at all in this area in the face of contradicting Congression action - are THEMSELVES setting up a dictatorship -- or, more acurately, an oligarchy. I think that separation of powers is a defining principle of our Constitution. And if it to mean anything, then the President must have some independent powers -- powers that Congress cannot interfere with. If conduct of something as central to war-fighting as surveillance is not something ceded to Presidential control, then the idea of separation of powers is dead in this country.
12.29.2005 7:52pm
Jay Louis (mail):
Doesn't the NSA domestic surveillance program seem unlikely to ever be litigated? It seems unlikely because it is difficult to think of a party that simultaneously has standing and KNOW he/she has standing. It would seem that the only actor that could address the permissibility of the surveillance program would be Congress through its oversight function. But perhaps there is a role for the courts to play in reviewing the constitutional and statutory permissibility of the surveillance program. Only time will tell. But from this vantage point, it seems like examining the permissibility of the President's program will be entirely up to Congress. Are there counterarguments for this viewpoint? Thank you.
12.29.2005 7:55pm
jrose:
Jack John,

Hamdi did not address the scope of AUMF's implicit authority when there exists a statute which explcitly forbids an action.
12.29.2005 7:57pm
Kazinski:
So if I'm reading Orin right the President has authority to order FI wiretaps under Art. II until Congress acts. Once Congress acts then they can restrict the Presidents Constitutionally derived authority. Right?

Now explain to me how this is different from Congress passing a law that removes from the Supreme Court the authority to review laws passed by Congress for constitutionality.

In both cases Congress is using its Article I power:

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.


The language of which seems to encompass the Supreme Court as much as it encompasses the President, in that neither is specifically mentioned, but can possibly be inferred.

So to paraphrase Orin:

I think this claim confuses two different powers: powers to conduct surveillance invalidate laws absent congressional authorization, and powers to conduct surveillance invalidate laws in the face of congressional prohibition.
12.29.2005 7:57pm
Just an Observer:
A.S.: "Congress was unclear when it wrote the AUMF, and the President made a reasonable judgment that the ambiguity in the AUMF authorized his action. If that judgment is wrong, Congress can feel free to clarify the meaning of the AUMF at any time."

I don't think that between FISA as AUMF, Congress was unclear at all, and I don't think the administration's statutory interpretation holds up.

But I acknowledge that you and I disagree on that. Those statutory arguments, pro and con, have been made here at length. My intention here is not to rehash them.

I do agree with you that if the Bush position on the statutes prevails, the Article II issue does not even arise as a legal matter to be decided.

The interesting part comes if that statutory position does not prevail. Logically, under the Youngstown framework, we would then be in Category 3. So within that framework, the case for Article II authority likely would fall with it.

The question is, under that scenario, would you and the President reject the Youngstown framework and argue that the will of Congress doesn't matter? That framework depends on the statutory-interpretation issue.

I do agree with your observation that Congress can clarify the statutory meaning either way, if it has the will. I fully expect some action in that regard when the Patriot Act renewal is debated next month.

If SCOTUS got this mess as a justiciable case tomorrow, I think the President would lose. But I can't see how the case would even get in the door.

It seems likely that Congress will act first. I don't know what it will do, and I don't know what Bush will do if he doesn't like the legislative outcome.
12.29.2005 8:02pm
A.S.:
jrose: I don't want to get into the statutory analysis of FISA. However, I thing you are dead wrong when you say:

Youngstown established that an implicit authorization (AUMF) does not override an explicit prohibition


The Youngstown opinion states exactly the opposite:


"There is no statute that expressly authorizes the President to take possession of property as he did here. Nor is there any act of Congress to which our attention has been directed from which such a power can fairly be implied. Indeed, we do not understand the Government to rely on statutory authorization for this seizure."
12.29.2005 8:06pm
Jack John (mail):

Hamdi did not address the scope of AUMF's implicit authority when there exists a statute which explcitly forbids an action.


So what? Brown did not address the 5th Amendment, yet we got Bollig v. Sharpe. Are you claiming that segregation is okay so long as contained to federal property?
12.29.2005 8:08pm
DS:
Jutblogger, how much do you want to bet on that?

In the infamous Bibee/John Yoo memo, Administration lawyers wrote:


The President's complete discretion in exercising the Commander-In-Chief power has been recognized by the courts. In the Prize Cases ... the Court explained that whether the President 'in fulfulling his duties as Commander-In-Chief' had appropriately responded to the rebellion of the southern states was a question to be 'decided by him' and which the Court could not question, but must leave to the 'political department of the Government to which this power was entrusted.' (my emphasis)


Of course, our current situation is alot different than a Civil War. Plus, I suspect the context of this case doesn't support the view they are suggesting, which appears to be that any armed conflict puts the President beyond the reach of the judiciary in matters regarding the conduct of war.

Everyone should read the entire section V of this memo to get a feel for how this administration really thinks on these issues.

It's an amazing document in which they argue that Congress cannot regulate the interrogation of prisoners even though Article I expressly gives Congress the power to set rules for the capture of combatants.

My favorite is the argument that any power traditionally seen as an executive power is automatically granted to the executive unless explicitly given to Congress. Never mind that part of the Constitution that says that any power not enumerated goes to the states or the people.

A close second is the use of the "necessary and proper" clause to suggest support for expanded presidential power even though that clause is in Article I, the article providing Congressional powers.
12.29.2005 8:13pm
A.S.:
Just an Observer: The question is, under that scenario, would you and the President reject the Youngstown framework and argue that the will of Congress doesn't matter? That framework depends on the statutory-interpretation issue.

I wouldn't "reject the Youngtown framework". I think that everyone accepts that the Youngstown framework, as set forth in Jackson's three categories, controls the analysis. The statutory analysis only determines which of the three Jackson categories we are in. And, as I've mentioned before, I think that the President should win even if the case fell in Jackson's Category 3. The reason is set forth more fully in my 7:52 post.

What I'm saying is that I would accept the framework of Youngstown, but I think the result in that case is distinguishable from this.
12.29.2005 8:13pm
Kazinski:
Just an Observer:
Why is the Youngstown framework legally relevent? Jackson laid out the framework in his concurrance that wasn't joined by anyother of the justices. Has it been adopted as the law of the land by any subsequent majority opinions?
12.29.2005 8:14pm
TC (mail):

Unnamed Co-Conspirator, We are a nation of laws and the Constitution spells out explicitly what must happen for the United States of America to be legally at war. Congress has not done so, therefore we are not at war.


That's not what the Constitution says, and that's not how the Supreme Court has interpreted it. See, e.g., Prize Cases.
12.29.2005 8:18pm
Tom Holsinger (mail):
The 15-day rule in FISA is every bit as Constitutional as legislation limiting the terms of federal judges to 15 days, or limiting Presidential use of force against armed enemies to 15 days.

One of George Washington's rare interventions in debate at the Constitutional Convention occurred when a delegate proposed that the size of the regular army be limited to 5,000 men. Washington proposed an amendment prohibiting enemies from invading "with a greater force."

Congress can withhold the money for a war. It can't prohibit a President from waging one.

Congress can prohibit use of information derived from warrantless electronic surveillance in criminal prosecutions. It can provide a civil remedy in damages for performance of warrantless electronic surveillance. It can try to withhold funds for warrantless electronic surveillance. It can't prohibit a President from performing warrantless electronic surveillance.

And it can't limit Presidential discretion in the means he uses to prosecute a war.
12.29.2005 8:22pm
A.S.:
Kazinski: Jackson's opinion was given weight (as was Black's opinion for the Court in Youngstown) in Dames &Moore v. Regan 453 US 654 (1981). In Dames &Moore, Rehnquist noted that the three Jackson categories are an oversimplification (and, indeed, Jackson himself said this). But, even as an oversimplification, they are useful.
12.29.2005 8:28pm
Marcus1:
A.S.

Making steel isn't at the heart of waging war? How do you wage war without steel?

How to conduct domestic surveillance is a domestic policy decision. These are decisions that Congress makes.

I think you're misconstruing the nature of our separation of powers. The executive does not get to flout Congress in making domestic policy decisions. Under our Constitution, there is very little that the executive can do when Congress explicitly tells it not to. That's how our system was designed, with King George firmly in mind.

Our Framers did not think that the executive knew better than Congress in matters of national security. They thought he was quicker and more efficient. Where Congress gets its act together and speaks, though, he is not free simply to ignore them indefinitely in secret. He is not free to overrule them. That is not his purpose.
12.29.2005 8:28pm
A.S.:
Making steel isn't at the heart of waging war? How do you wage war without steel?

I don't think "making steel" was the issue; rather, it was getting steel through the seizure of private property.

How to conduct domestic surveillance is a domestic policy decision.

But this isn't domestic surveillance. That was covered by Keith, right?

I think you're misconstruing the nature of our separation of powers. The executive does not get to flout Congress in making domestic policy decisions. Under our Constitution, there is very little that the executive can do when Congress explicitly tells it not to. That's how our system was designed, with King George firmly in mind.

Again, this isn't a domestic policy decision. I simply disagree with you that "there is very little that the executive can do when Congress explicitly tells it not to". I think that separation of powers, to be meaningful, must mean that there are certain things that the President is able to do regardless of what Congress thinks. And I think that essential war fighting activities (such as foreign surveillance) is one of those things.
12.29.2005 8:38pm
Just an Observer:
A.S.: "I think that the President should win even if the case fell in Jackson's Category 3. The reason is set forth more fully in my 7:52 post."

I have reread that post, and I confess that I don't understand how it supports your argument that the President should win even in a Category 3. Could you recap that specifically?
12.29.2005 8:39pm
lralston (mail):
Non-lawyer here. I find myself supporting the observations of Just an Obserer. By the way, I have become a Volokh junkie (will have to consider applying my AA program to this 'new'addiction. I was a WRECK while the site was down!
12.29.2005 8:45pm
OrinKerr:
A.S.,

I am not making the argument you imagine me to be making in your 7:42pm post. My point is not that no independent Article II authority exists; rather, I don't know what authority people are relying on when they claim that it exists and that it is broad enough to cover this. What cases would you cite for that?
12.29.2005 8:50pm
jrose:
A.S.,

Youngstown: It is one thing to draw an intention of Congress from general language and to say that Congress would have explicitly written what is inferred, where Congress has not addressed itself to a specific situation. It is quite impossible, however, when Congress did specifically address itself to a problem, as Congress did to that of seizure, to find secreted in the interstices of legislation the very grant of power which Congress consciously withheld. To find authority so explicitly withheld is not merely to disregard in a particular instance the clear will of Congress. It is to disrespect the whole legislative process and the constitutional division of authority between President and Congress.
12.29.2005 8:55pm
Just an Observer:
Professor Kerr,

The cases about which you inquire are all circuit cases, since SCOTUS never addressed the issue. And they are pre-FISA.

I have found the following law review article a useful guide to the legal history.
12.29.2005 9:10pm
John Lederer (mail):
"And is domestic surveillance really the same as attacking a particular enemy stronghold? It seems to me that you can analogize the surveillance program in different ways, depending in part on details we don't yet know, and I'm not sure the "enemy stronghold" analogy is the best."

Couple of pertinent facts:

1. Surveillance has led directly to tactical operations in Southwest Asia, and in the United States. Al Qaeda figures have been killed or detained because of such intercepts, e.g. http://archives.cnn.com/2002/LAW/09/18/buffalo.terror.probe/

The principal reason Bin Laden was believed to be in Tora Bora was an intercept. A later intercept led officials to believe he was in Baluchistan. SIGINT may not be a direct assualt on a stronghold, but it is how we have been identifying strongholds to atatck and locations of people to kill or capture.

2. The United States is very much a theater of war in this war. It is still the location of the majority of our casualties. From a military point of view "domestic" merely means that the enemy is close to an attack where we are most vulnerable.


"For example, I gather that some critics would say that limiting surveillance monitoring is more like blocking the President from seizing steel mills to avoid a wartime stoppage of much-needed steel production. The Supreme Court held that this power exceeded Article II in Youngstown Sheet &Tube v. Sawyer; why isn't this a better analogy?"

Differences from the Youngstown Steel case:

1. We are in a congressionally declared state of war (yes, the resolution is a declaration of war). Such was not the case in Korea. In Youngstown the solicitor general specifically disavowed relying on the President's power during war time, a fact the court found distinguished it from seizures by President Roosevelt during WWII:

"Down to the World War II period, then, the record is barren of instances comparable to the one before us. Of twelve seizures by President Roosevelt prior to the enactment of the War Labor Disputes Act in June, 1943, three were sanctioned by existing law, and six others [343 U.S. 579, 613] were effected after Congress, on December 8, 1941, had declared the existence of a state of war. In this case, reliance on the powers that flow from declared war has been commendably disclaimed by the Solicitor General."


The President's Article II power is different when at war than when at peace.

2. Congress's power concerning the army specifically includes its supply ("raise and support armies:, "creat and maintain a Navy") . Youngstown is about supplying the war effort, and thus much more about a Congressional power during war rather than being about an executive military function.. Surveillance is SIGINT -- an inherent part of military operations, like reconnaissance or screening.

3. In Youngstown the court found it pertinent that the seizure was not in a war zone. The US in this war with Al Qaeda and its ilk is in the war zone.
12.29.2005 9:13pm
Armando (mail):
Kazinski writes:

So if I'm reading Orin right the President has authority to order FI wiretaps under Art. II until Congress acts. Once Congress acts then they can restrict the Presidents Constitutionally derived authority. Right?

Now explain to me how this is different from Congress passing a law that removes from the Supreme Court the authority to review laws passed by Congress for constitutionality.


Hmmmm:

Realizing that a constitutional amendment banning gay marriage faces little chance of passing soon, if ever, House Republicans yesterday discussed alternative approaches, including stripping federal courts of jurisdiction over the issue, passing a federal law to define marriage and using the appropriations process to ban gay marriage in Washington.

All the legislative action on gay marriage is currently in the Senate, but the House GOP is rapidly developing its own tactics. Leaders will take their first step next week when they take up Rep. John Hostettler’s (R-Ind.) “jurisdiction stripping” bill. This would bar federal courts from hearing lawsuits related to gay sex and marriage.


Oh. That's different . . . .

john shinkle
Sen. John Cornyn (R-Texas), left, Rep. Jim DeMint (R-S.C.), center, and Sen. Wayne Allard (R-Colo.), supporters of a constitutional ban of gay marriage, await a press briefing in Russell Park after yesterday’s vote.
12.29.2005 9:17pm
jrose:
Jack John,

Brown and Bolling were decided on Constitutional considerations. In contrast, Hamdi is statutory analysis. There is nothing in Brown nor Bolling that even remotely suggests Hamdi's statutory analysis (implied authorization applies where no explicit prohibition exists) requires implied authorization to supercede an explicit prohibition.

Moreover, Youngstown says the explicit prohibition supercedes the implied authority - and Hamdi did not overrule Youngstown.
12.29.2005 9:18pm
Armando (mail):
Kazinski:

And this:


Thursday, Sep. 23, 2004

Last week, the House Judiciary Committee voted to send the Pledge Protection Act to the full House, which is likely to take it up today. The Act -- a bill that has many cosponsors -- would deprive all federal courts, even the Supreme Court, of jurisdiction to hear constitutional challenges to the "under God" Pledge of Allegiance. This is only the latest attempt by Congress to force a pluralist society into a one-size-fits-all set of beliefs.
12.29.2005 9:19pm
Armando (mail):
Kazinski:

And this:



The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 stripped federal courts of jurisdiction over Immigration and Naturalization Service (INS) decisions on whether and to whom to grant asylum. Effectively, the INS can decide not to grant an individual asylum, and that decision can no longer be reviewed by a federal court. Other examples of jurisdiction stripping include the Prison Litigation Reform Act of 1996 (PLRA) and the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Briefly, the PLRA restricts the remedies that a judge can provide in civil litigation relating to prison conditions. The AEDPA limits the number of habeas petitions filed by state prisoners in federal courts, in addition to other limits on federal court authority related to such petitions. Habeas petitions are requests a prisoner makes asking a court to determine whether his constitutional rights are being deprived as a result of his incarceration.
12.29.2005 9:22pm
Medis:
Just an aside, but I also don't see how ensuring a steady supply of steel, or any other necessary war material, is less a part of war than surveillance. Indeed, if we call such activities "provisioning", "procurement", and "logistics", it even sounds nice and military.

But I also don't think it matters, since I think it is clear in the Constitution that Congress can regulate core military activities.
12.29.2005 9:24pm
Marcus1:
A.S.,

>I don't think "making steel" was the issue; rather, it was getting steel through the seizure of private property. <

Kind of like the issue here is not whether the President can gather information, but rather whether he can conduct warrantless searches of United States citizens? You must see the transparency of your distinction here.

>But this isn't domestic surveillance. That was covered by Keith, right?<

Really? Keith seems to suggest that there could be an issue regarding foreign surveillance, without explaining at all... is that the best you can offer?

It looks to me like you're hiding behind dicta where it's convenient, and ignoring precedent everywhere else. My question is whether as a fundamental matter you really think our Framers would not have allowed Congress to address this issue. I would ask, like Prof. Kerr, what exactly you point to when you assert this. I'm less concerned with offhand comments by the Supreme Court, though, than where you actually find this in the Constitution.

>I think that separation of powers, to be meaningful, must mean that there are certain things that the President is able to do regardless of what Congress thinks.<

Do you also think the Judiciary must have this kind of power in order for our separation of powers to be meaningful?

I'd like to see a better historian than myself weigh in on this issue, because I think this is really at the heart of the disagreement. It seems to be a last stand for those who want to defend the President, and it needs to be debunked.
12.29.2005 9:28pm
OrinKerr:
Just an Observer,

I know about the Fourth Amendment circuit court cases pre-FISA; as I explained in my first post on this issue last week, those cases don't go very far on the Article II issue, as they are Fourth Amendment decisions on the warrant requirement. Where are the Article II cases?
12.29.2005 9:30pm
Marcus1:
That is, the separation of powers issue.
12.29.2005 9:33pm
Just an Observer:
Professor Kerr,

I thought these cases touched on both Article II and the Fourth Amendment, since by definition there could be no presidential authority except for Article II or legislation.

In any event, I think these cases, plus the dictum in Sealed Case, are all there is.
12.29.2005 9:35pm
Marcus1:
Medis,

>But I also don't think it matters, since I think it is clear in the Constitution that Congress can regulate core military activities.<

Absolutely.
12.29.2005 9:38pm
Just an Observer:
Several proponents of the Bush administration case here question the applicability of the Youngstown framework in evaluating the administration's Article II claims for the NSA surveillance program. In general, those same proponents argue that such intelligence-gathering is central to warmaking (more so than steel production).

The DOJ letter makes a similar claim, citing the recent Hamdi decision as an on-point analogy demonstrating that the AUMF should be construed to authorize such surveillance. It cites the language of the Hamdi opinion in that regard:


At least five Justices concluded that the AUMF authorized the President to detain a U.S. citizen in the United States because "detention to prevent a combatant's return to the battlefield is a fundamental incident of waging war" and is therefore included in the "necessary and appropriate force" authorized by the Congress. ...

Communications intelligence targeted at the enemy is a fundamental incident of the use of military force.


But when you follow the Hamdi precedent more closely, the trail leads right back to Youngstown! See what O'Connor's opinion in Hamdi also said:


In so holding, we necessarily reject the Government's assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances. Indeed, the position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens. Youngstown Sheet &Tube, 343 U. S., at 587. 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.


The administration argument that "Communications intelligence targeted at the enemy is a fundamental incident of the use of military force" is thus no argument for unilateral powers by the executive.
12.29.2005 9:44pm
Armando (mail):
Just An Observer:

On Hamdi, I've said this repeatedly. Professor Sunstein cites Hamdi as supporting Bush's position when in fact, as you point out, it utterly debunks Bush's position.

Professor Sunstein seemed not ot have read the entire opinion.
12.29.2005 9:53pm
Medis:
Marcus1,

On the issue of history, others have quoted Hamilton's Federalist #69, but it may be worth quoting it again. I might note as an aside that Hamilton was hardly opposed to a strong executive in general.

Anyway, he writes:

"The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It 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."

This passage simply confirms what the structure and text of the Constitution already strongly implied: the division of powers between the Congress and the President in war is not one of subject matter. Rather, the division of powers is the same basic one which runs throughout the Constitution: the President is an executive officer with a power to issue specific directions, and the Congress is a legislature with the power to issue general regulations.

So, in my view the question is not whether surveillance is more central to war than procurement (as if such a question even made sense). Rather, the question is whether FISA is a general regulation, or whether it is a specific order directing the military to do some particular thing.

And the obvious answer is that FISA is a general regulation, not a particular order. Which I think is the end of the inquiry.
12.29.2005 9:56pm
Armando (mail):
Professor Tim Boylan wrote in 2001:


The Law: Constitutional Understandings of the War Power

TIMOTHY S. BOYLAN

Recent war powers debates have seen the emergence of two opposing viewpoints. Those who advocate close adherence to the Constitution and who assume congressional predominance in matters of war have squared off against those who point to modern political realities that require presidential independence and power. This article argues that the resulting interpretive dichotomy is both false and unnecessary. The Constitution created a vigorous executive in the conduct of foreign affairs, checked and balanced by an equally powerful Congress. This is borne out by analysis of the language of the Constitution, by an examination of its intent, and by judicial doctrine. An additional method of interpretation, structural argument, integrates text, intent, and doctrine and provides a theoretically sound and politically feasible framework for the exercise of the war power by the political branches.
12.29.2005 10:00pm
Marcus1:
Medis,

Ha! I had just copied that passage to paste in here on my own. Decided to become my own historian and google "executive power federalist papers."

"First General and admiral of the confederacy." Which of course, is entirely consistent with the idea of an executive, as opposed to the legislative branch.

Of course, the President does have legislative power, through the veto power, etc. The idea that he can simply ignore Congress, though, on the ground of "national security," when Congress has passed a law directly on point? Even Hamilton would have blushed.
12.29.2005 10:14pm
DS:
A.S. raises an interesting argument when he states that the President must have independent powers for the checks and balances of our system to work.

It's a clever argument but misconstrues the nature of our government. What makes the checks and balances work is the fact that NONE of the three branches of government have powers completely independent of each other.

Congress can pass laws but without the President's signature and his execution of the laws as well as the judicial branch's recognition of those laws, they will not go into effect.

The President can negotiate treaties and appoint justices, but without Congressional action the treaties and appointments have no effect.

The judicial branch can review the Constitutionality of laws, but as the Court has long been aware, it cannot enforce it's rulings without at least one of the other branches.

There are many other examples.

Our forefathers create ONE government with the powers of that government divided into three branches NOT three independent governments that check each other's power.

Because each branch of government needs the other to get anything done, they are forced to listen to each other, to work to establish consensus before acting, to deliberate and debate and to respect each other's peragotives. This makes action and decision-making slow, but that is how our Forefathers believed it should be because decisions made as the result of deliberation and debate, which hones everyone's thinking the way this forum is honing all of our thoughts, makes for better law and better decisions.

Just think about how much better the planning and decision making might have been if there had been more deliberation and debate before the Iraq war.

So the Constitution's division of power favors deliberation and that should be our preference except where quick action is necessary such as in time of war. That's why the Commander-In-Chief power exists because sometimes quick action is needed and in that circumstance the President must have the authority to act.


But under Article I, Section 8, giving Congress the authority to regulate the armed forces, Congress can set the rules, the parameters or what we might call the framework under which the President acts. And that framework can include limits so long as those limits don't have the effect of eliminating the President's power.

No one here is arguing that Congress can tell the president where to concentrate our forces or dictate the battle plan. No one is saying that Congress has the right to decide what assignments CIA agents or NSA staff are given.

But there's no evidence that that is the case here. The FISA court allows warrants to be issued retroactively 72-hours after placing a wiretap. Thousands of wiretaps have been allowed in the past under FISA.

If a branch of government can act independently of the other branches then that means there is no check on its power. Separation of Powers requires dependence.
12.29.2005 10:19pm
Medis:
Marcus1,

Indeed, and the President also has available the less heralded, but more often used, Recommendations Clause. In this particular case, in fact, I'd say that was the obvious remedy to any perceived defects in FISA: the President could recommend such changes as he thought necessary and expedient.
12.29.2005 10:24pm
Kazinski:
Armando:
I'm glad you bit on that. So if you think, like I do, that Congress does not have the power to redefine the Supreme Courts Article III power via statute then you would have to agree Congress can not redefine the President's Article II powers via statute, wouldn't you?

I don't see any difference.

As for the rest of the federal courts I think Congress can do whatever it wishes with them, as they were created by acts of Congress. For instance Congress could make itself the Court of last appeal for decisions made by the Federal Courts and restrict the Supreme Court to matters where it has original jurisdiction. I mean it could do that constitutionally, not that it would be a good idea.
12.29.2005 10:30pm
Medis:
Kaz,

But regulating the conduct of the armed forces (or NSA) does not redefine the President's Article II powers in any constitutional sense.
12.29.2005 10:35pm
Marcus1:
Federalist 69 also answers A.S.'s question of exactly what power the President has, if he lacks unchecked power to protect our national security.

In his summary at the end, after offering all the different reasons why Americans should not fear that they were creating another King George, Hamilton states:


The President of the United States would be an officer elected by the people for four years; the king of Great Britain is a perpetual and hereditary prince. The one would be amenable to personal punishment and disgrace; the person of the other is sacred and inviolable. The one would have a qualified negative upon the acts of the legislative body; the other has an absolute negative. The one would have a right to command the military and naval forces of the nation; the other, in addition to this right, possesses that of declaring war, and of raising and regulating fleets and armies by his own authority. The one would have a concurrent power with a branch of the legislature in the formation of treaties; the other is the sole possessor of the power of making treaties. The one would have a like concurrent authority in appointing to offices; the other is the sole author of all appointments. The one can confer no privileges whatever; the other can make denizens of aliens, noblemen of commoners; can erect corporations with all the rights incident to corporate bodies. The one can prescribe no rules concerning the commerce or currency of the nation; the other is in several respects the arbiter of commerce, and in this capacity can establish markets and fairs, can regulate weights and measures, can lay embargoes for a limited time, can coin money, can authorize or prohibit the circulation of foreign coin. The one has no particle of spiritual jurisdiction; the other is the supreme head and governor of the national church!


So there you have it, what the power of the President was sold as.

Of course, Hamilton may stress the limits, but I'd hardly call it nothing to speak of. Imagine, though, if Hamilton had added at the end: "Finally, the president has the unchecked power to act in protection of our national security without regard for anything else in the Constitution or set forth by Congress." I bet that would have gone over!
12.29.2005 10:38pm
John Lederer (mail):
Seems like there is some focus on the constitutional schwerpunkt.
Congress is responsible for declaring war, raising and supporting the army, governing and regulating it (the last clause I think generally interpreted as extending to military law and ranks, authority, and personnel)

The President is responsible for operations (the conduct of campaigns in the old verbiage, strategy and tactics, command and control).

One need only determine where electronic surveillance falls. If its purpose is principally criminal in scope (arrest people about to commit crimes) I have little trouble saying it is Congress' baliwick. If its purpose is principally military (identify and find the enemy, determine and frustrate his plans) then it would seem to be within the President's bailiwick.

Obviously it can be either depending on the precise circumstance, and, even then, stay a stubborn blend.
12.29.2005 10:46pm
Jeff_M:
First, I want to thank everyone here for the enlightening discourse. The internet is an incredible tool for democracy.

I find myself in agreement with Marcus1 and Medis; our framers did not contemplate setting up another King. Very much the opposite is true. The legislature is first among equals in our system, and the executive has very limited powers.

Marcus1's earlier question is begging to be answered. WHEN DOES IT END? I can understand some of you wanting the enhanced security that granting our President these expansive powers in time of war (however imperfectly declared) provides. So when can US citizens no longer be imprisoned indefinitely on only the whim of the executive; when do these surveillance powers that clearly violate FISA's provisions wane?

My answer: it's never going to end. The threat of terrorism as it's defined by our President is going to continue forever. That's what's bothering me. How can we give up our cherished freedoms so meekly?
12.29.2005 10:48pm
Marcus1:
Lederer,

So can Congress ban the President's use of torture in foreign countries?
12.29.2005 10:49pm
Kazinski:
Just an Observer and Gordon,

I think we can can use Jackson's Youngstown Framework as a useful way to look at the problem if we like, but the Administration is perfectly free to ignore it because it has no force of law or precedent. The Youngstown Framework was not part of a majority decision, nor, as far as I know, has it been incorporated into any subsequent decisions as to give it any force of law.
12.29.2005 10:53pm
John Lederer (mail):
Medis:

"So, in my view the question is not whether surveillance is more central to war than procurement (as if such a question even made sense). Rather, the question is whether FISA is a general regulation, or whether it is a specific order directing the military to do some particular thing.

And the obvious answer is that FISA is a general regulation, not a particular order. Which I think is the end of the inquiry."


Would a law in the Civil War directing Lincoln not to use artillery on occupied towns be a general regulation or a particular order?

How about one directing him not to apply his blockade of southern ports to ships owned by "English persons" unless he first obtains a court determination that they are likely to be carrying contraband?
12.29.2005 10:59pm
Armando (mail):
Kaz:

No. I think it is clear that Congress CAN regulate the jurisdiction of the inferior Article III courts SO LONG AS it does not disturb the Supreme Court's exclusive judicial power.

What does that mean? The Congress can not strip the Supreme Court of jurisdiction. And what does THAT mean? It mean it can eliminate INFERIOR federal courts if it so chooses BUT it can not interfere with the Supreme Court's ability to hear cases that come from the state courts nor can it interfere with the Supreme Court's original jurisdiction.

What other restrictions limit Congress' power in this area? The requirements of due process. For example, where can federal prosecutors prosecute violations of federal law? No federal courts? Well guess what? Then no federal crimes.

What of the Bill of Rights? Where does a citizen go for recourse? The state courts. And if they do not provide remedies, then Congress must provide due process. Without due process, the Congress is unable to much that it does. Without courts, where are its laws enforced? Without courts, how does the Executive enforce the laws Congress enacts. Remember, only the Judiciary has the power to adjudicate. this power is expressly denied the Legislative and Executive branches.

I always get a chuckle when I hear folks argue that Congress and the President have the power to interpret laws and the Constitution. My answer? Oh really? When the Constitution vests all judicial power in the Supreme Court? How?

Now, you might ask, since Congress cannot interfere with the Supreme Court's judicial power, how is it that it can interfere with the President's Commander-in-Chief power? Very simple. The Supreme Court has UNFETTERED and EXCLUSIVE judicial power. The President does not have unfettered and exclusive power over the military and foreign affairs.

Article II says:


The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States . . .

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls


Article I, Section 7 says:


Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a law.



Article I, Section 8 says:

The Congress shall have Power To . . . provide for the common Defence and general Welfare of the United States

. . . To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

. . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

To complete the picture, Article III says:


Section 1. The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.



It is a beautiful structure of checks and balances. The President can NOT exercise legislative authority but he can CHECK the exercise of such authority by the Congress through the veto power.

The Congress can NOT exercise executive authority but it can regulate and LIMIT the exercise of executive authority by the President, including his Commander in Chief powers, by legislating. Such legislation must be "faithfully executed by the President."

Neither the President nor the Congress can exercise the Judicial power, but through the power of appointment and confirmation, the Executive and Legislative Branches have strong influences on the character of the judiciary without interfering with its functional independence.

Those Founders were pretty smart cookies.
12.29.2005 11:09pm
Marcus1:
Lederer,

I'll answer your hypo if you'll answer mine a few posts above, which seems much more likely.

Could Congress ban the use of artilery? Sure, why not? I suppose it would depend on what they were trying to do. If they thought they could better run the specific strategy, then maybe the President would be justified in ignoring them. If they had some broader purpose for not using artilery on a particular city, though?

I think the answer under the Constitution is that, if it's a specific strategic question, the President may be justified in ignoring Congress. If there is a general policy question, though, it seems that it has to be up to Congress.

How about whether or not to invade a particular city? Could Congress tell the president what to do? It seems fairly obvious to me that where Congress weighs in, it must have the power to tell the President almost anything. The power of the President, and the limit of Congress, is that Congress isn't capable of saying everything.

I see a danger here of a pretty long tangent though...
12.29.2005 11:15pm
Another observer (mail):
Kaz - the Jackson Youngstown Concurrence was adopted as the majority rule in Dames and Moore v. Regan, around 1981, with slight changes (ie, not 3 categories, but a spectrum running from explicit Congressional authorization to explicit Congressional prohibition).
12.29.2005 11:16pm
Armando (mail):
BTW:

Let me commend in the highest terms the discourse at this blog. It is a credit to its owners and its members.

I knew the site only by reputation and by reading the posts.

This is the tops for intelligent, civil, clever and acceptably sharp commentary.

Perhaps this is due to the fact that Professor Kerr has taken a position that may not sit well with his natural constituency. But in any event, it is truly outstanding.

Coming from a blog that is highly charged and partisan, in no small measure because of me, I salute you all.
12.29.2005 11:17pm
Marcus1:
Armando,

>To make rules for the government and regulation of the land and naval forces.<

That's in the Constitution? I hadn't noticed that!

I mean, doesn't that kind of answer the question? The President is the Commander in Chief of the military, but Congress sets the rules and regulations. How can one possibly then say that Congress is acting beyond its power here?

It certainly seems to answer John Lederer's hypos...
12.29.2005 11:36pm
Medis:
John L.,

Those both sound like laws of general applicability to me. So, it might be worth providing a clear case of a law directing military operations--that would be something like, "The Army shall invade Germany on August 11th of this year," or, alternatively, "The President shall order the Army to invade Germany on August 11th of this year." Those would be clear cases of Congress trying to issue specific orders.

But I should note there is a potential problem: a specific order could be dressed up as a general law. So, for example, Congress might pass a law providing, "It shall be a crime for anyone commanding the Army to not issue an order commanding it to invade Germany on August 11th of this year." Still, in that case it would be easy to see the real intent and import of the law.

Nonetheless, I don't want to imply that this distinction is always going to be perfectly clear. My point is just that this is the right question to ask--is Congress providing a general regulation, or is it trying to issue specific orders?
12.29.2005 11:39pm
Evelyn Blaine:
John Lederer wrote:


How about one directing him not to apply his blockade of southern ports to ships owned by "English persons" unless he first obtains a court determination that they are likely to be carrying contraband?


I think that, under settled law, this would be within Congressional power. The Prize Cases concerned the ability of the President to impose a blockade given Congressional silence (a Youngstown category II case). For express Congressional disapproval (category III), Little v. Bareme, 2 Cr. 170 (1804), controls:



It is by no means clear that the President of the United States, whose high duty it is to "take care that the laws be faithfully executed," and who is commander-in-chief of the armies and navies of the United States, might not, without any special authority for that purpose, in the then existing state of things, have empowered the officers commanding the armed vessels of the United States, to seize and send into port for adjudication, American vessels which were forfeited by being engaged in this illicit commerce. But when it is observed that the general clause of the 1st section of the "act, which declares that such vessels may be seized, and may be prosecuted in any district or circuit court, which shall be holden within or for the district where the seizure shall be made," obviously contemplates a seizure within the United States; and that the 5th section gives a special authority to seize on the high seas, and limits that authority to the seizure of vessels bound, or sailing to, a French port, the legislature seem to have prescribed that the manner in which this law shall be carried into execution, was to exclude a seizure of any vessel not bound to a French port.

12.29.2005 11:40pm
Jutblogger (www):
Professor, you asked for some citation regarding difference of opinion. Regarding Article II, I think this case has not yet been discussed for its dictum, but it seems prescient:

"It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an *320 exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations-a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution. It is quite apparent that if, in the maintenance of our international relations, embarrassment-perhaps serious embarrassment-is to be avoided and success for our aims achieved, congressional legislation which is to be made effective through negotiation and inquiry within the international field must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved. Moreover, he, not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries, and especially is this true in time of war. He has his confidential sources of information. He has his agents in the form of diplomatic, consular and other officials. Secrecy in respect of information gathered by them may be highly necessary, and the premature disclosure of it productive of harmful results. Indeed, so clearly is this true that the first President refused to accede to a request to lay before the House of Representatives the instructions, correspondence and documents relating to the negotiation of the Jay Treaty-a refusal the wisdom of which was recognized by the House itself and has never since been doubted. In his reply to the request, President Washington said:
‘The nature of foreign negotiations requires caution, and their success must often depend on secrecy; and even when brought to a conclusion a full disclosure of all the measures, demands, or eventual concessions which may have been proposed or contemplated would be extremely *321 impolitic; for this might have a pernicious influence on future negotiations, or produce immediate inconveniences, perhaps danger and mischief, in relation to other powers. The necessity of such caution and secrecy was one cogent reason for vesting the power of making treaties in the President, with the advice and consent of the Senate, the principle on which that body was formed confining it to a small number of members. To admit, then, a right in the House of Representatives to demand and to have as a matter of course all the papers respecting a negotiation with a foreign power would be to establish a dangerous precedent.’ 1 Messages and Papers of the Presidents, p. 194.
The marked difference between foreign affairs and domestic affairs in this respect is recognized by both houses of Congress in the very form of their requisitions for information from the executive departments. In the case of every department except the Department of State, the resolution directs the official to furnish the information. In the case of the State Department, dealing with foreign affairs, the President is requested to furnish the information ‘if not incompatible with the public interest.’ A statement that to furnish the information is not compatible with the public interest rarely, if ever, is questioned.
When the President is to be authorized by legislation to act in respect of a matter intended to affect a situation in foreign territory, the legislator properly bears in mind the important consideration that the form of the President's action-or, indeed, whether he shall act at all-may well depend, among other things, upon the nature of the confidential information which he has or may thereafter receive, or upon the effect which his action may have upon our foreign relations. This consideration, in connection with what we have already said on the subject discloses the unwisdom of requiring Congress in this field *322 of governmental power to lay down narrowly definite standards by which the President is to be governed."

U.S. v. Curtiss-Wright, 299 U.S. 304 (1936)

In Curtiss, in a case presenting nearly the opposite set of facts, I read the Supreme Court as allowing Congress to seemingly grant the President legislative powers because those powers were solely related to his powers under Article II. The Court conluded:

"We deem it unnecessary to consider, seriatim, the several clauses which are said to evidence the unconstitutionality of the Joint Resolution as involving an unlawful delegation of legislative power. It is enough to summarize by saying that, both upon principle and in accordance with precedent, we conclude there is sufficient warrant for the broad discretion vested in the President to determine whether the enforcement of the statute will have a beneficial effect upon the re-establishment of peace in the affected countries; whether he shall make proclamation to bring the resolution into operation; whether and when the resolution shall cease to operate and to make proclamation accordingly; and to prescribe limitations and exceptions to which the enforcement of the resolution shall be subject."

My point being, the President's long standing authority under Article II (for foreign affairs) is, in my reading, subject only to the tests under the constitution, and may not be restricted by legislation. I personally think Youngstown supports this as well, as does Clinton v. City of New York.
12.29.2005 11:42pm
Omar Bradley (mail):
I'd add 2 points about the Federalist:

1. Madison himself warned a friend not to read too much into it because as he said it was "infected with the zeal of advocates". In other words, it's pretty much propaganda designed to sell the Constitution to the anti-federalists and the skeptics.

2. Hamilton's #69 is ironic considering that in his original plan of union he proposed a President appointed for life by the Senate and having monarch-like powers. I guess an "originalist" might use that to support the WH's view.
12.29.2005 11:47pm
Armando (mail):
Jut:

What a remarkably obtuse statement from a Supreme Court:


but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations


That is demonstrably false. Article II itself says:


He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls




Article I, Section 8 says:

The Congress shall have Power To . . . provide for the common Defence and general Welfare of the United States

. . . To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
. . . To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions

And, of course the power:



. . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.



What a remarkably stupid statement by the Supreme Court in that case.
12.29.2005 11:54pm
Marcus1:
Omar Bradley,

>2. Hamilton's #69 is ironic considering that in his original plan of union he proposed a President appointed for life by the Senate and having monarch-like powers. I guess an "originalist" might use that to support the WH's view.<

Originalism based in earlier rejected proposals? Now there's a cannon of construction I haven't heard before.
12.29.2005 11:55pm
Jutblogger (www):
Armando,
I wouldn't venture to make such a condemnation of jurisprudence myself, as I've never been asked to personally weigh on such matters and make a determination (except to write a bench memo), but it is, nevertheless, good law and has only been "declined to extend". I don't count the labor law case (if i recall correctly) calling it into doubt as any weighted negative history.

And that case dealt with Roosevelt changing the conditions upon which a statute was enforced, via proclamation, which was so clearly the exercise of legislative power. Anyhow, as you can see by reading it, because the otherwise unconstitutional delegation involved foreign affairs (solely), it was upheld. curious case indeed.
12.29.2005 11:58pm
Jutblogger (www):
Also, they do note the advice and consent portion i believe, but only then to note that such advice and consent is done so on such limited circumstances and to a very limited number of people (emphasizing the secrecy of the negotiations and their process).
12.30.2005 12:00am
Armando (mail):
Jut:

Actually I only read the part you excerpted and the statement I highlight is just plain false.

You can read the Constitution as easily as I can.

As for the statement that "advice and consent is done so on such limited circumstances and to a very limited number of people" that too is false.

The ratification of a treaty requires 2/3 approval of those present on the Senate floor. It is subject to filibuster. Treaties HAVE been filibustered. A name for you - Jesse Helms.

The case seems filled with wild inaccuracies. I'll go read it now.
12.30.2005 12:05am
Armando (mail):
Jut:

So much for "plenary and exclusive power":

On Oct. 13, 1999, the American people got a reminder of the toxic political atmosphere that settled over Washington in 1998.

After a quicky debate, the Republican-controlled Senate decisively rejected the Nuclear Test Ban Treaty.
Officially, the Republican leaders insisted that the treaty was flawed and not in America's best interests. But in private, the vote touched off a celebration over how clumsily President Clinton had stumbled into a legislative trap set by Senate Majority Leader Trent Lott, R-Miss.

Sen. Jesse Helms, R-N.C., added insult to Clinton's injury on the floor of the Senate. The chairman of the Senate Foreign Relations Committee suggested that Great Britain's pro-treaty Prime Minister Tony Blair might have ended a hypothetical conversation with the president by saying, “give Monica [Lewinsky] my regards.”


The more I think on it, the stupider the statement becomes. not 16 years before, President Woodrow Wilson was stymied by the Congress in his effort to have the U.S. enter the League of Nations.

Sheesh.
12.30.2005 12:13am
Evelyn Blaine:
That passage in Curtiss-Wright has been a godsend to executive power apologists for the best part of a century, but the best response to it was (I think) Corwin, who, when teaching it in class, always reminded his students: "Just because Justice Sutherland writes clearly, don't believe that he thinks clearly." The holding of the case simply stands for the fairly uncontroversial proposition that Congress has much broader delegation authority in foreign affairs than in domestic matters; the dicta are very tendentious, and in any case stand at most for the President's exclusive power in the negotiation (but not the ratification) of treaties and recognition of governments ("foreign affairs" proper), not in conducting war, which is clearly a shared power.
12.30.2005 12:19am
Armando (mail):
Here is an example of President's power over foreign affairs AND military matters being fettered by the Senate:

May 8, 2003

The Protocols to the North Atlantic Treaty of 1949 on the Accession of Bulgaria, Estonia, Latvia, Lithuania, Romania, Slovakia and Slovenia were ratified this morning in the U.S. Senate by a vote of 96-0. With this, Estonia, Latvia, Lithuania and four other countries from Central and Eastern Europe have received conclusive support from the United States to join the Alliance.


Please note this was AFTER the enactment of the AUMF.
12.30.2005 12:20am
JunkYardLawDog (mail):
With respect to Professor Kerr and the many other reputable scholars here, I don't think you've analyzed the mood and pre-dispositions of the Supreme Court correctly:

1. All cases decided after the end of WWII and before 9/11 are and will be distinguished, if necessary to support the lawfulness of the President's actions. With the exception of WWII and Pearl Harbor, none of these cases were decided in a climate where the enemy had not and was not thought to be capable of attacking us on our home soil. Since 9/11 we know we are facing an enemy who can and will attack us on our home soil. The psychological effect of this in the mind of the country and the minds of the Supreme Court should not be underestimated.

2. Only the FIS Court of Review opinion is post 9/11. How many of you thought the Supreme Court would rule in Hamdi that the President had inherent authority to detain enemy combatants indefinitely? Warrantless wiretaps present a much smaller level of intrusion into personal liberty than the situation in Hamdi. The FIS Dicta is much more likely to be controlling thought today than the dicta that is known as Judge Jackson's concurring opinion in Youngstown. At its heart, Youngstown stands for the proposition that a mere indirect government interest in steel production vis-à-vis a war (not involving direct threats to the homeland) does not trump the private property rights and labor/union rights of citizens in this country. Now consider what the court in Youngstown might have done had the compelling government interest sought to be protected was the direct detection and prevention of enemy attacks on USA citizens here at home. That is a HUGE difference from Youngstown in the type of compelling government interest that needs to be balanced against the liberty rights of a few citizens. Finally, in Youngstown the rights of the citizens of private property ownership and freedom of association and organization would have been completely eviscerated by the government's action, and again this is very different from the situation today wherein the intrusion on liberty by this surveillance is so minor and so inconsequential as to be undetectable. It is almost a theoretical only diminution of liberty for those affected by the NSA surveillance.

So in summary in Youngstown you have an indirect government war interest balancing against an almost complete evisceration of certain citizens' liberty and private property rights, and in the current situation you have a direct government interest in detecting and preventing enemy attacks on USA citizens in the homeland versus an invasion of personal liberty so minor and unobtrusive that it is virtually only a theoretical loss of liberty by the innocent US Persons affected by the surveillance.

In predicting what the Supreme Court would do you must also consider the following. I guarantee you the court will consider the following whether they admit to it or not:

1. Given the popularity of the President's decision to protect the country through this surveillance with the populace in general;

2. Given the potential good of detecting and preventing homeland attacks by the enemy at a time of war versus the loss of liberty so minor and inconsequential that a large majority of the populace supports the surveillance and the added protection resulting therefrom; and

3. Given the Court's understandable reluctance to create a constitutional crisis at a time of war over an issue that will NOT BE FAVORABLY RECEIVED BY THE CITIZENS if the court fails to allow the President to protect us.

The Supreme Court will NEVER find that President Bush broke the law. They will NOT write an opinion that says President Bush broke the law. The most likely opinion they will write will be:

A. President Bush does have inherent authority to do that which he needs to do to detect and prevent enemy attacks on USA citizens in the homeland and that includes warrantless surveillance on parties wholly within the USA as well as surveillance on international connections.

B. They may offer some broad attempts at defining the boundaries of the President's inherent authority in this area and the Congress' very limited authority, if any, as they will define it to enact legislation in this area.

C. If any part of their opinion could be construed as a basis for an allegation that the President may have exceeded his authority under law or constitution, they will make that part of their decision PROSPECTIVE ONLY.


Take it to the bank fella's, this is how the Supreme's will sing this particular tune. Bet on it.

So sayeth "the Dog"
12.30.2005 12:35am
Kazinski:
Armando, Sure the courts have been given judicial power but I can't find "exclusive" or "unfettered" or any synonyms in my copy of art. III. But in terms of Congressional power to regulate the President and the Supreme Court, there really is no difference between the Constitution's formulation for the President:

The executive Power shall be vested in a President of the United States of America.... The President shall be Commander in Chief of the Army and Navy of the United States...

and the Supreme Court:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.


So I maintain if the Article I entity can use its power "To make all Laws which shall be necessary and proper" to constrain the Article II entity in the exercise of its Article II powers, then it certainly can constrain the Article III entity in the exercise of its Article III conferred powers. And I think that would be a bad thing. A dictatorial congress isn't any better than a dictatorial president.

And yes Eugene, Orin and the other co-conspiritors have a pretty good thing going here. I've been over to your site plenty of times before and its a lot different. In fact I think that difference is why you may get plenty of attention over there, but you don't have much influence. Influence in terms of swaying the debate, I guess Kos' fund raising ability certainly influences Democratic politicians, but it isn't going to change any minds. I'm not one that holds a blogger responsible for every commentor or link, but advocating oppo research on Jack Roberts seems pretty typical of the level of discourse over there.
12.30.2005 12:45am
Armando (mail):
Dog:

On Hamdi, I was shocked that the Court granted Hamdi habeas rights. He was captured on a foreign field of battle.

I can't imagine an action more in keeping with the C-i-C power, more authorized by the Congress, more reasonable from the President's perspective than the argument that Hamdi was a prisoner of war with no habeas rights.

In short, I disagreed with Hamdi's FETTERING of the President.

I agree it is a signal, but to me it is the exact opposite of the one you see.

Capture of a foreign fighter in a foreign field of battle with the express authorization of Congress vs. warrantless domestic surveillance of American citizens in express contravention of a federal law.

Yes the cases are quite different.

For the record, the difficult detention case for Bush is Padilla, who was detained in the Chicago airport.
12.30.2005 12:48am
Kazinski:
Armando:
Here is an example of President's power over foreign affairs AND military matters being fettered by the Senate.

Try not to take this badly but don't be ridiculous. Congress was ratifying a treaty the President signed. That is not fettering, that is deferring. Show me an example of Congress trying to ratify a treaty the President hasn't signed.
12.30.2005 12:53am
Armando (mail):
Kas:

Who has influence and how do you know?

To hear some of your ideological comrades tell it, kos and I run the Democratic Party.

I think we fall somewhere in the middle of that view and yours.
12.30.2005 12:54am
Armando (mail):
Kas:

Ridiculous? Let's not lower the discourse.

But I welcome your analogy:

Congress can't sign treaties. But it can stop them.

Congress can't engage in warrantless surveillances. But it can srop them.

Did you read my comment on checks and balances? It is all about STOPPING the exercise of power, not about exercising the powers of other branches.
12.30.2005 12:58am
Anonymouse:
A question from a curious observer:

What legal force do the decisions of the FISA court have? Are the 9 words in the Sealed Case decision, for example, anything more than persuasive authority for normal Article III courts (even if we were to imagine that they were more than mere dicta)?

As Professor Kerr mentions, those words seem to provide the strongest case for an Article II argument for FISA's unconstitutionality. But if they are just dicta from a court that has no authority outside of the limited ability to grant or reject FISA surveillance applications, where does that leave the Article II argument?
12.30.2005 1:12am
John Lederer (mail):
Evelyn Blaine,

Excellent catch. I confess I had forgotten Congress power " to grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water" while mentally concentrating on Lincoln's unsanctioned by Congress declaration of a blockade..
12.30.2005 1:22am
John Lederer (mail):
Does not the provision in 50 USC 1811 cut two ways?


On the one hand it means that Congress meant FISA to continue to exist in war time. On the other hand it also means that Congress anticipated that it would be inadequate or inappropiate in war time and would require amendment or partial repeal.

Congress may say "gotcha" by arguing that it was the executive's duty to suggest amendments so that a war could be prosecuted, but might not the executive as easily say "Not my job to rewrite statutes that interfere with my duties, You guys knew it wouldn't work. I am disregarding it, and going about my constitutional duty of defending the country."

I suspect that a court would be willing to do a lot of construction of what AUMF implies in order to avoid that consitutional cat fight.


Note that war normally means the violation of a lot of statutes, generally excused by necessity. For instance, the government gave orders to shoot down Flight 93. I am sure that violated some laws, but was excused by necessity ( I recognize, of course, that that was "in the heat of action" but I suspect that there are still similar orders in certain similar situations, and no modification of the statutes.).
12.30.2005 1:39am
ficus:
JunkYardLawDog:

Excellent post. As a non-lawyer, I find this argument fascinating, and it seems to shed light on a host of questions that are of greater interest to me than most lawyerly arguments. I think it is a great thread.

That being said, I can't escape the feeling that it is more a debate among theologians, or philosophers, than among practical people. The perception that we are at risk of another 9/11, valid or not, is common; I think it is valid. Under these circumstances, the president, or any president, will do what it takes to protect us, the law be damned. That, IMHO, is the real American system. Past actions by presidents are the most important precedents, not judicial opinions.

In this respect, I suppose it is fair to say that we regard him somewhat as a king, not just as the dry executive of Article II. The worse the danger, the more we tend so to regard him.
12.30.2005 1:43am
Kazinski:
Armando,
I guess I should have explained myself a little better what I meant by not having a lot of influence. By that I mean nobody is ever going to go over to your site because they are trying to make up their mind and want to get a well rounded view of an issue. In terms of influncing the Democratic party and politicians, well just like my party, the only thing that speaks louder than money is voters, and they're not usually paying attention.

As for your checks and balances argument, I addresed it here:


So I maintain if the Article I entity can use its power "To make all Laws which shall be necessary and proper" to constrain the Article II entity in the exercise of its Article II powers, then it certainly can constrain the Article III entity in the exercise of its Article III conferred powers. And I think that would be a bad thing. A dictatorial congress isn't any better than a dictatorial president.


And sorry about the "ridiculous" comment, I hadn't noticed you were taking SCOTUS to task (for good reason), I thought you were providing an example of Congress modifying Art II. power.
12.30.2005 2:06am
JunkYardLawDog (mail):
Armondo;

I agree with you about the Hamdi habeas stuff. I also thought that was judicial futzing around and ignoring precedent where the courts have no expertise or business making rulings. That was cutting the other way as you put it. However, I still think a lot of the people here predicting the President loses 8-1 are dead wrong and those people were quite surprised when the court in Hamdi said yes the president can treat him as an enemy combatant and detain him indefinitely.

I think Hamdi had dual US and Saudi citizenship didn't he?

So sayeth, "the Dog"
12.30.2005 3:16am
Wikstrom (mail):
...seems quite confusing; if even well-educated Americans here have such sharp disagreement as to what American "law" says on this major issue — how can it be asserted that America functions under the rule-of-law at all, rather than the temporal rule-of-men ?

The fundamental issue would appear to be the basic "legality"
of domestic surveillance/search of innocent Americans by government agents.... rather than a mere balance-of-power issue among the employees of the 3 branches of American federal government.

State governments and state citizens seem entirely to be non-players in this federal-power kabuki dance, although the federal government supposedly exists to protect their interests.

Orginators of the U.S. Constitution indicated heavy concern about strong central governments and standing armies — what were they so worried about ?
12.30.2005 7:33am
Medis:
John L.,

I don't see the constitutional problem in your scenario. Under the Recommendations Clause, it is in fact part of the President's job to recommend legislation, so Congress giving him that opportunity following a declaration of war is just asking him to do his job. And, of course, that is basically what happened: the USA-PATRIOT Act modified FISA.

Although I might note that it took a bit more than 15 days to pass the USA-PATRIOT Act, and the President might have an argument based on the 2001 AUMF if he had temporarily authorized bypassing FISA (pre-amendment) during this time. But once FISA as amended was in place, it is no longer plausible that the 2001 AUMF authorized him to continue to bypass FISA (as amended).

Similarly, if FISA did not have emergency procedures in place, then a court might well allow a necessity exception in limited circumstances--this would be called an assumption about congressional intent (ie, the claim would be that Congress would not intend to make it a crime to bypass FISA out of the relevant necessity). But FISA already contains emergency procedures, and FISA as amended clearly applies those procedures to the problem of dealing with groups like Al Qaeda. So, the President cannot bypass those emergency procedures and substitute his own, claiming that Congress would not have intended them to apply to post-9/11 challenges, because that is exactly what they intended in the USA-PATRIOT Act.
12.30.2005 8:25am
George Gregg (mail):
In view of Article I Section 8, would it be possible for the Congress to pass a law that says, in essence, "We, the American People, viewing the use of waterboarding to be a repugnant and bestial practice, do hereby prohibit this practice from use by any US citizen, whether in peacetime or war, and any such practice shall result in criminal penalties."

Would that not be an acceptable circumscription of the President's power to use a specific technique during wartime?

If so, why can not Congress say that warrantless wiretaps are an affront to the basic American value of privacy and freeedom from government intrusion and therefore to circumscribe the practice in peace and war?

The arguments being used to allow the President plenary constitutional powers IN SPITE of a directly on-point law (FISA) seem, if you will pardon the pun, tortuous in the extreme, given the clear wording of Article I Section 8, which allows Congress the specific authority to legislate such restrictions to the way war is waged.
12.30.2005 8:28am
Medis:
Wikstrom,

Overall, I'm not sure the law in fact is actually unclear. I think what you are really seeing is people arguing about what the law SHOULD be, and of course there is often widespread disagreement about the proper answer to that sort of question. But as for what the law actually IS ... despite their best efforts, I don't think the Administration's defenders have come up with a plausible argument yet.
12.30.2005 8:31am
Medis:
George,

That is part of why Orin and others think the Article II argument is bound to lose (badly) if tested in court. In other words, Justice Jackson's articulation of what to do in a "Category Three" case is soundly based on the text, structure, and history of the Constitution.

And as I implied to Wikstrom, I think what is really going on in the Article II argument is not an attempt to actually read the Constitution faithfully, and do whatever it provides. Rather, I think that those making this argument are starting with a view about what the President SHOULD be allowed to do in war, and trying to work back from that view to some sort of marginally plausible reading of the Constitution that supports their view. And even then, I think they fail because of the plain text of the Constitution.

Finally, as others have noted, this is all very interesting in light of the broader dialogue in our country about "judical activism", "the living Constitution", and so on.
12.30.2005 8:40am
Unnamed Co-Conspirator:
DS, are you suggesting that because the subject matter was classified info, there was no means for Senators or Representatives to make a meaningful objection to the surveillance program? That's absurd. An objection doesn't have to be public in order to be meaningful. Putting a sealed letter in a safe doesn't amount to a serious objection. I'd like to see Pelosi's and Rockefeller's objections -- see if you can get odds in Vegas that either of them present any credible case that the surveillance was for any purpose not related to national security or that it was domestic (i.e., that it did not involve cross-border communications or communications involving a non-US person). Rockefeller might be able to articulate some argument that there were insufficient controls on the program (probably a computer program, don't you think?) to prevent purely domestic communications from being picked up, but I'll bet that Pelosi's objection was simply that warrants weren't obtained -- she's among the dimmest bulbs in Congress, and she probably thinks that the government should have obtained a warrant before it listened to Osama's cell phone calls.

Marcus, nowhere in my comment did I suggest that Congress lacks the power to regulate domestic surveillance. In the future, please respond to the remarks I actually make, rather than those that I don't make but which are convenient to your viewpoint. Surveillance of communications that cross the border or that otherwise involve non-US persons is within the President's Article II powers when it is conducted for the purpose of national security. Even if this is a third category power under Justice Jackson's Youngstown concurrence, it's still a power that the President has to enable him to discharge the most important duty he has under the constitution, which is to protect the nation from foreign enemies. Surveillance of communications involving non-US persons the President believes to be foreign enemies or their agents, even (and especially) when those communications also involve persons in the US, isn't like steel production; it's more like military action.

Jack John, I'm not sure the provisions regarding declared war are a dead letter because any such war would be illegal -- the declaration of war against Japan in 1941 would not have been considered "illegal" (except perhaps by Kofi Annan). I think it's a dead letter because, as a practical matter, any attack against the US will not be from anyone with a return address and if such a thing were to happen, the war would likely be over before it is declared. The joint resolution authorizing the use of force is the nearest thing to a declaration of war that we'll ever see.
12.30.2005 9:45am
George Gregg (mail):
Unnamed,

You can find the text of the letter, and why Rockefeller felt he was constrained from making a more overt objection, at this link.

From the thread:

Sen. Jay Rockefeller (D-WV), the vice chairman of the Senate Select Committee on Intelligence, first learned of the Bush administration’s warrantless domestic spying program on July 17, 2003.

That day, he wrote a letter to the White House (it was handwritten, since he couldn’t share details about the program with his staff). Rockefeller warned of “profound oversight issues,” and said he was “unable to evaluate, much less endorse these activities.”


The letter can be downloaded as a pdf via a link near the bottom of the upper portion of the thread.

So, there you go.
12.30.2005 9:51am
Mark Buehner (mail) (www):
The "trust me, I'll get it right" argument just doesn't cut it.


Dont all of the Presidents Commander in Chief responsibilities during wartime, particularly overseas, ultimately come down to 'trust me'? Lets take a look at the intent of Article II, section 2. Is it not to give the executive supreme authority to conduct the war, along the very wise premise that trying to fight a war by committee (ie Congress) would be disasterous? We give the president the authority to choose where and when thousands of Americans will die, the power of life or death over our enemies via conventional or nonconventioal force, and for that matter we give him a nuclear button capable of destroying the world... but we dont trust the president to handle intercepts of enemy communications?
12.30.2005 9:54am
George Gregg (mail):
And, the last I heard, Osama Bin Laden is not a citizen of the US. So, not sure where you're going with that except to engage in further ad hominem on Pelosi (e.g. "dimmest bulb").
12.30.2005 9:55am
Mark Buehner (mail) (www):
You can find the text of the letter, and why Rockefeller felt he was constrained from making a more overt objection

Yeh and its absurd. Lets not forget democrats ran the senate at the time. Someone used the term 'feigning helplessness' and that exactly right. Lets be honest, Rockefeller wanted no part of opposing anything used to battle AQ post 911, so he locked his little note in a safe against just such an occasional as we have now. As far as we no he did nothing else to seek further information or impeed this program. Why bother having an Intelligence Committee if indeed they are powerless? They arent. This is a case of either political cowardice or historical revisionism by the good Senator. Claiming to be useless doesnt seem the wisest political course to me.
12.30.2005 10:03am
OrinKerr:
JunkYardLawDog,

Two thoughts:

First, my primary interest is in understanding the legality of the program based on existing law, not predicting what the Supreme Court might do.

Second, if the issue is what the Supreme Court might do, I think I have a relatively good sense of where the current court is on these issues -- and it's not where you think it is.
12.30.2005 10:17am
Unnamed Co-Conspirator:
Marcus, a clarification: Prof. Kerr referred to "domestic" surveillance and uses that term to mean communications involving a US person. The Article II argument is essentially that the dividing line isn't whether a US person is involved; rather, it's whether a foreign agent is involved or whether the communication crosses the border. That should make it a "foreign" communication, regardless of Congressional action to the contrary. That doesn't mean that Congress has no authority, but if surveillance of those communications is made for the purpose of protecting the nation from a foreign threat, the President doesn't need Congress' approval. The joint resolution authorizing the use of force was Congress' acknowledgment of the existence of the foreign threat. In light of that acknowledgment (but not necessarily because of it), the purposes of Congressional oversight should be: first, to ensure that the purpose of the surveillance is indeed the protection of the nation's security (and not, for example, spying on political opponents of the President), and second, that the surveillance is designed to exclude purely domestic communications, that is, communications between US persons within the US. If those in Congress opposing the surveillance want it to end, they should start by trying to withdraw the authorization to use force, the implication of such a move being that the foreign threat no longer exists, so the surveillance isn't necessary (the President is empowered to respond to clear and present dangers, but in the absence of such a danger, the Constitution gives Congress, not the President, the power to declare war, which they have done, in effect).

Betcha they won't do that. We can conclude that the primary reason for the opposition to the program isn't to protect anyone's civil liberties, but rather to weaken a President the critics of the surveillance despise.

Particularly to those who are using Justice Jackson's Youngstown concurrence to oppose the legality of the surveillance, consider Jackson, following WWII, pointed out that that without security, the rule of law couldn't survive. Those involved in administering the surveillance at issue have said that it has enabled the government to prevent attacks on the US, right here at home. Do you believe them? If not, but if you're wrong, and a successful attack is made following the curtailment of the surveillance program, do you think the response demanded by the overwhelming majority of US voters will be one that is careful to protect the privacy of "domestic" communications?
12.30.2005 10:22am
Mark Buehner (mail) (www):
Or they could withhold funding to the program. Which they wont do either.
12.30.2005 10:27am
Unnamed Co-Conspirator:
George Gregg,

Oh, please. Pelosi is a dim bulb.

But the comment regarding Osama not being a US person raises an important issue. In my previous comment, I argue that the Article II distinguishes communications not on the basis of whether a US person is involved, but whether a non-US person is involved or if the communication crosses the border. If Osama's call is to a US person in the US (or if a US person in the US calls Osama in his cave, whether or not the cave is in the US), are we going to pretend that Congress, having authorized the use of force (thereby acknowledging the foreign threat), can require the President to get permission from the FISA Court to monitor the call?
12.30.2005 10:28am
Mark Buehner (mail) (www):
Or to change the example, if a German Uboat was sending signals during WW2 to an infiltrator or collaborator on US soil. This argument would require the executive to aquire a warrant before decoding/reading the communication.
12.30.2005 10:32am
Medis:
Unnamed,

You write, "In light of that acknowledgment (but not necessarily because of it), the purposes of Congressional oversight should be: first, to ensure that the purpose of the surveillance is indeed the protection of the nation's security (and not, for example, spying on political opponents of the President). . . ."

But isn't that EXACTLY the purpose of FISA as amended by the USA-PATRIOT Act? The procedures in FISA are NOT designed to prevent the President from ordering surveillance of agents of foreign powers inside the United States in the name of national security. Just the opposite: FISA is specifically designed to ALLOW the government to conduct such surveillance and for that very purpose. But FISA also puts certain procedures in place to make sure that is indeed what the government is doing (eg, the warrant procedures).

So, the precise issue is not whether Congress is trying to stop such surveillance, because they aren't. Rather, the precise issue is whether the President can order people to conduct such surveillance without following the FISA procedures--and on your theory, wasn't Congress entitled to require the government to follow such procedures as part of fulfilling its oversight role?
12.30.2005 10:38am
Medis:
Mark and Unnamed,

I don't understand why you think these hypos create a problem for FISA. In either of those cases, the President could immediately order surveillance, and would just need to get a warrant within 72 hours. And provided the facts are as you described, the conditions for getting a FISA warrant would be met.

Indeed, all the warrant procedures in FISA actually do is ensure that the government is only conducting such surveillance in similar situations. So why do you think these hypotheticals expose a problem with FISA?
12.30.2005 10:43am
Unnamed Co-Conspirator:
George Gregg,

Rockefeller's belatedly released protest was answered effectively by Pat Roberts. It's absurd to suggest that the secrecy of the program, coupled with Rockefeller's own ignorance of law and technology (from Rockefeller's letter: "I feel unable to fully evaluate, much less endorse, these activities. . . As you know, I am neither a technician nor an attorney.") prevented the Vice-Chairman of the Senate Intelligence Committee from fulfilling his oversight responsibilities. You do understand that that's what Rockefeller is offering as his excuse, don't you?
12.30.2005 10:44am
Medis:
Unnamed,

So what exactly should Rockefeller have done aside from protesting directly to the Administration?
12.30.2005 10:50am
Challenge:
"But in constrast to the difficult issues involving FISA and the AUMF, I don't see the Article II claim as a close one based on existing law. Am I wrong?"

Yes, very wrong. See Kazinski's excellent comment:


"So I maintain if the Article I entity can use its power "To make all Laws which shall be necessary and proper" to constrain the Article II entity in the exercise of its Article II powers, then it certainly can constrain the Article III entity in the exercise of its Article III conferred powers. And I think that would be a bad thing. A dictatorial congress isn't any better than a dictatorial president."
12.30.2005 10:53am
Mark Buehner (mail) (www):
So what exactly should Rockefeller have done aside from protesting directly to the Administration?

If he perceived this story to be the biggest thing since Watergate as he is implying now, he might have called in the head of the NSA to explain things to him, for starters. Or Cheney. If he really had a problem with it he could have engineered withholding the funds for the program. Its an undefined line item but he could have gotten it stricken. When the head of the intel committee tells his caucus there is something bad going on in the Intelligence community that he cant talk about, but vote to withhold this funding, he will be listened to.

We might also remember Democrats found the 'political will' to force a closed session of Congress to bash Bush's prewar intelligence failures. Apparently they have power even as a minorty when it comes to political grandstanding, but when there is a potential heavy price to pay (as there certainly would have been had this come up in 2002), that so called courage seems absent.
12.30.2005 10:56am
George Gregg (mail):
Unnamed, that's the very question we're addressing and the refutation of your position is woven and repeated throughout this thread (and by much more learned and eloquent advocates than myself).

The answer, it seems, is in the plain text of FISA, notwithstanding the inferences drawn from AUMF. FISA was amended by the PATRIOT Act post 9/11, with the express view in mind to make it more relevant to the War on Terror. If you disagree with the plain text of FISA on Article II constitutional grounds, then that is one possible stance to take. But while you and others might favor that stance, it sounds like Article I, Section 8 pulls the rug out from under you unrepentantly.

The Constitution is pretty clear about (1) allowing Congress the authority to determine generally the rules by which wars are conducted, (2) that the President is beholden to enact such laws faithfully and that (3) the President, in wartime, is a C-in-C of the Army and Navy, but not a supreme, plenary monarch over all civilians, etc. The SCOTUS has clarified as much, too, in both Youngstown and in Hamdi.

To make the argument that the President, by virtue of Article II, in wartime holds essentially unreviewable authority to ignore any law of Congress as long as he makes the putative assertion that it is for the security of the Republic is farcical on its face. Yet that is exactly the implication that the "plenary war powers" argument teases out, in spite of some pretty clear Constitutional history and text, as well as case law, to the contrary.
12.30.2005 10:57am
George Gregg (mail):
Mark: This argument would require the executive to aquire a warrant before decoding/reading the communication.

Before? No, that's a straw man.

FISA doesn't require prior approval by warrant for surveillance of a US citizen. In fact, FISA expressly allows such a surveillance to occur and then deal with the warrant afterward.

Furthermore, FISA allows warrantless surveillance on US persons as long as they were not specifically targeted.

So, in both the German U-Boat case and with Unnamed's OBL hypo, as long as the US person wasn't being specifically targeted by the wiretap, FISA doesn't circumscribe the Executive at all, in war OR in peace. Ergo, no controversy.
12.30.2005 11:06am
Unnamed Co-Conspirator:
Medis,

I'm not sure that there's a problem with FISA, unless you try to apply it to curtail the President's Article II powers where there is an acknowledged foreign threat to national security, as there is now. Given the existence of such a threat, surveillance of the suspected foreign threats or their agents is among the President's Article II powers. The significance of the joint resolution isn't that it authorized the surveillance, but that it acknowledged the existence of the threat.

I doubt that it this issue will be resolved by any Court; rather the resolution will be a political one between the President and Congress, with changes to the surveillance program, if any, being agreed upon through the oversight process. I suspect that the oversight process has indeed functioned throughout the life of the program at issue, but that some Democrats, including Rockefeller and Pelosi, are merely using the leak as an opportunity to try to damage the President politically. I would have picked an issue on which the President didn't have overwhelming public support, but maybe that's why I don't have Howard Dean's job.
12.30.2005 11:09am
Medis:
Challenge,

But, of course, Congress does in fact constrain Article III courts in their exercise of judicial power. For one thing, Congress does that whenever it validly makes one thing legal or another thing illegal. In such cases, the Article III courts have to apply the laws as passed by Congress to their cases--just as the President has to faithfully execute those laws. For another thing, Congress can pass all sorts of procedural laws relating to the courts. So, it is well-recognized that Article III courts are subject to Congress in all sorts of ways.

Mark,

You propose: "When the head of the intel committee tells his caucus there is something bad going on in the Intelligence community that he cant talk about . . . ." The problem is that Rockfeller can't even say that much as the result of a classified briefing. He also can't just contact other people in the government, like the head of the NSA, to discuss these matters.

So, you need to come up with something he was actually allowed to do--which has to involve not talking, and not even hinting, about the contents of his briefing to anyone.
12.30.2005 11:15am
Mark Buehner (mail) (www):
"So, in both the German U-Boat case and with Unnamed's OBL hypo, as long as the US person wasn't being specifically targeted by the wiretap"

Is there any evidence this program was used to target US individuals? As opposed to targetting overseas individuals in communication with US individuals?
12.30.2005 11:16am
Anderson (mail) (www):
Medis hits the nail on the head:
I think what is really going on in the Article II argument is not an attempt to actually read the Constitution faithfully, and do whatever it provides. Rather, I think that those making this argument are starting with a view about what the President SHOULD be allowed to do in war, and trying to work back from that view to some sort of marginally plausible reading of the Constitution that supports their view.
Y'all get to work on your War Powers Amendment to the Constitution &report back to us, okay?

Mark Buehner, I thought I shot down the U-boat argument on another thread, but maybe you refuted it? FISA allows interception first and warrant 72 hours later in emergencies. Besides which, intercepting radio signals isn't "wiretapping."
12.30.2005 11:16am
Andrew Hyman (mail) (www):
Medis (and Orin if you're listening):

As you know, I've tried to emphasize the fact that Congress wrote an AUMF that specifically included a final clause that attempted to preserve the requirements of the War Powers Resolution, which indicates (to me) that Congress did not intend to preserve other purported requirements, such as FISA's 15-day limit on wartime surveillance (at least "as applied" to Al Qaeda). At first I argued this point based on the doctrine of expressio unius, but subsequently I realized that a stronger way to argue this point is by asking whether Congress intended the last five words of the AUMF to be surplusage. But, Medis was still not persuaded.

Thinking about this some more, I think there is an even stronger way to argue the point, so let's see. My question for Medis is this: when the AUMF uses the words "all necessary and appropriate force" do you think that means "all necessary and appropriate force under pre-existing law" or instead means "all necessary and appropriate force notwithstanding pre-existing law"? If the former, why on Earth would Congress have included the entire last sentence of the AUMF?
12.30.2005 11:19am
Mark Buehner (mail) (www):
"The problem is that Rockfeller can't even say that much as the result of a classified briefing. He also can't just contact other people in the government, like the head of the NSA, to discuss these matters"

Yet he can produce a letter written to Dick Cheney on the subject? Please tell me exactly why he cant have a secret program defunded. And what use the Intelligence Committee is if that is the case?

"He also can't just contact other people in the government, like the head of the NSA, to discuss these matters.

So, you need to come up with something he was actually allowed to do"

You are suggesting to me that the Chairman of the Intelligence Committee is not allowed to subpeona the head of the National Security Agency? Thats flatly wrong, and rather silly if you think about it.
12.30.2005 11:20am
Medis:
Unnamed,

But what exactly do you mean by "curtail the President's Article II powers"? If a law says, "the NSA can do X, but it has to follow procedure Y in order to do X," does that "curtail" the President's powers?

And I might note the Constitution clearly provides that the Congress can make laws for governing and regulating the armed forces.
12.30.2005 11:21am
Mark Buehner (mail) (www):
"Mark Buehner, I thought I shot down the U-boat argument on another thread, but maybe you refuted it? FISA allows interception first and warrant 72 hours later in emergencies. Besides which, intercepting radio signals isn't "wiretapping."

Sorry Andrew I might have lost track of the thread during the downtime, never saw it.

-Because Congress allows something already within the Presidents inherint powers does not mean the Presidents powers are confined by it.
-In that case cell phone calls arent "wiretapping" either. Neither is international communication via satellite.
12.30.2005 11:24am
Unnamed Co-Conspirator:
George Gregg said:

"To make the argument that the President, by virtue of Article II, in wartime holds essentially unreviewable authority to ignore any law of Congress as long as he makes the putative assertion that it is for the security of the Republic is farcical on its face."

Straw man, George.
12.30.2005 11:24am
Just an Observer:
I think it is useful to read closely what Justice Jackson said about Category 3 scenarios:



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 [343 U.S. 579, 638] 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.


Thus, if President Bush did violate FISA as a statutory matter, and Jackson's framework is applied, he is in a box. The only way out is to argue successfully that the congressional action was itself unconstitutional.

Notably, no official spokesman for the Bush administration has had the chutzpa to argue this on the record. Rather, the viability of the argument is being tested in surrogate venues such as Professor Turner's op-ed.

Perhaps the key to the analysis is not what Article II allows the President, but what can be effectively denied to Congress under Article I. How would such a separation-of-powers issue be litigated?
12.30.2005 11:25am
Tom Holsinger (mail):
George Gregg,

You said:
"To make the argument that the President, by virtue of Article II, in wartime holds essentially unreviewable authority to ignore any law of Congress as long as he makes the putative assertion that it is for the security of the Republic is farcical on its face. Yet that is exactly the implication that the "plenary war powers" argument teases out, in spite of some pretty clear Constitutional history and text, as well as case law, to the contrary."

Abraham Lincoln disagreed. That was a good thing. Franklin Roosevelt was the most duplicitous President we ever had, i.e., he wasn't as public about it as Lincoln. This too was a good thing. Much depends on the situation at the time. Presidential authority is not immutable.

The difference between the letter of the law and its practical application is commonly called "politics". Finley Peter Dunne's Mr. Dooley put it this way: "The Soopreme Court follows th' iliction returns."

Your knowledge of history affects the weight given your opinions.
12.30.2005 11:26am
Jack John (mail):

the declaration of war against Japan in 1941 would not have been considered "illegal"



That is because it was a war of self-defense after Pearl Harbor. In such a case, the President would not have actually needed Congress' declaration to go to war. That he chose to obtain it as a political matter is irrelevant to interpreting the scope of his powers under the Constitution. Had it been an aggressive war, e.g., attacking Canada simply because we wanted to, a declaration by Congress would been necessary and it would have violated international laws, including treaties to which the US is a signatory. Like I said, the Declare War Clause is a dead-letter.
12.30.2005 11:28am
Jack John (mail):

Brown and Bolling were decided on Constitutional considerations. In contrast, Hamdi is statutory analysis.



How is that relevant to the purpose for which I was employing the analogy? If I say that you are like a dog in that you have fleas, it makes little sense to note that dogs cannot sing Frank Sinatra tunes as well as you can.
12.30.2005 11:31am
Medis:
Mark,

Rockefeller could send the letter to Cheney because Cheney had participated in briefing him. And he probbaly could subpoena the head of the NSA to appear before the Committee (although I don't really know anything about how congressional subpoenas are issued), but he couldn't discuss his classified meeting with the head of the NSA before the Committee. Seriously, when you get a classified briefing, you cannot discuss it with anyone else besides those in the briefing.

And yes, when all you do is give the Chairmen of the Select Committee on Intelligence a classified briefing, but do not authorize the Chairmen to share that information with the rest of the Committee, that makes it pretty much impossible for the Committee to serve its oversight function. Which I suspect was rather the point.
12.30.2005 11:32am
Another observer (mail):

It seems the older comments sections seems to be dying out, so I'm bringing my comments over here regarding the question of how broadly to construe the AUMF.

Medis,

You write: "Still, that does not end the inquiry, because there is also the possibility of implicit repeal."

We agree on that. You go on to write:

"But implicit repeal requires clear congressional intent. And the bottomline is that there is no real indication of such an intent in the text or legislative history of the 2001 AUMF"

But this gets us back to the Hamdi holding, and the rule that can be derived from it. Where in Hamdi does the Court base its decision that AUMF allows detention (or as you put it, the Congressional intent was to allow detention through the AUMF), in spite of the Non-Detention Act, from the text or legislative history of the AUMF? It didn't. The plurality + Thomas reasoned, first, use of force means killing people on a battlefield. There is a long history in warfare of detaining combatants without criminal charges to prevent them from returning to the battlefield, and common sense tells us that detaining someone is a lesser deprivation of liberty that taking their life.

The same legal analysis can be doen with surveillence, and there's no need to look at the legislative history of the AUMF - it's sufficient to note that the background principles against which the Congress legislated the AUMF include many things that are "fundamental incidents of war." You are simply not addressing the argument, and you are creating a rule that would have led to a different legal holding in Hamdi (I know you don't claim to be doing so, but you haven't explained where the Court did a review of the legislative history of the AUMF in Hamdi, your argument is the same used by the dissents and the overruled Court of Appeal in Hamdi, while I am consistently citing and quoting the Hamdi plurality to support my argument).

I don't think that it is relevant that the FISA declares itself to be the "exclusive" means of wiretapping. Pre-AUMF it was the exclusive statutory means. Post-AUMF, it certain circumstances, it may not be. Pre-AUMF, the Non-Detention Act, plus all other statutes on the books that allow detention, were the "exclusive" means for federal authorities to detain. Post-AUMF and Hamdi, there clearly is one additonal statute. Your argument might be relevant if the Administration was pointing to a pre-FISA statute to support its contention that it was acting with statutory authority to surveil. But the Administration isn't - it's pointing to the AUMF, which is post-FISA.

I've also noted that yes, the FISA provision about how to handle a war situation makes the analysis more difficult, and different, than the relationship between the Non-Detention Act and the AUMF. But it does not end the analysis. If Congress passed a law saying that future Declarations of War wouldn't actually mean we were at war (in a legal sense) with another country, and a subsequent Congress declared war, it could impliedly repeal the earlier Congress' attempted redefinition of war.

Your Patriot Act argument has holes in it. Specifically, the AUMF was limited to a certain category of nations, organizations, and persons (indeed, the real interesting question will be if there is a person who can show injury from the wiretapping who doesn't fit within the AUMF ambit). The USA-PATRIOT Act, and the FISA, govern how to proceed with a much larger group of persons. I.E., Basque separatists, although they may engage in terrorist activities, do not fall within the AUMF. But the Patriot Act and FISA powers can extend to them. So I've provided a reason why the Patriot Act amendments could be needed that doesn't supercede the purpose of the AUMF, and thus avoided a Constitutional question - a primary canon of statutory construction.

Finally, as to the mystical Congressional intent. The context for the AUMF is crucial. We had just suffered devastating attacks on U.S. soil from persons who were permanent residents of the U.S. My memory is that at the time the AUMF passed, everyone expected further attacks. The AUMF was specifically designed to prevent similar further attacks. If a second team of terrorists were made up similar people who were associated with those who carried out the 9/11 attacks (thus falling within the AUMF ambit), with the distinction that some had gotten naturalized, I don't understand your argument that the AUMF did not empower the President to lawfully kill them prior to an attack. I am not arguing about the extent of the President's Article II authority, nor am I positing some ridiculous nuclear weapon hypothetical - I think this is exactly what we all assumed in the days after 9/11.
12.30.2005 11:34am
George Gregg (mail):
For those advocating Article II plenary powers, Article I, Section 8 is still just sitting there, daring you to challenge it, which no one yet has effectively done.

As has been mentioned, Article I, Section 8 clearly says that Congress has the power "to provide for the common Defence and general Welfare of the United States...to define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations; To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions", and the power "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

There it is in black and white, folks. Congress has the explicit Constitutional authority to make laws to be used by the President in his execution of Executive powers vested in him by the Constitution. I just don't know how you can get any clearer than that. The willful blindness to what this section says simply confounds reason.

How, then, can FISA be in any way be considered to be beyond the Congress's power? Or that Article II somehow renders Congress' power to legislate the rules of war null? The plain text of the Constitution flat refutes such an argument.

I can understand (even as I strongly disagree with) some people wanting the Executive to have supreme, plenary wartime powers. Or for them to disagree with the way a certain law is formulated and want it to not apply. But to have legitimacy in suggesting that the law doesn't or can't apply to the President, you're going to need a Constitutional amendment.

These tortured inferences from between the lines of the text aren't going to do it for you.
12.30.2005 11:41am
Medis:
Andrew,

You write:

My question for Medis is this: when the AUMF uses the words "all necessary and appropriate force" do you think that means "all necessary and appropriate force under pre-existing law" or instead means "all necessary and appropriate force notwithstanding pre-existing law"?

My answer:

Neither. As I have noted before, I don't think the 2001 AUMF takes a global stand on how it would interact with every possible "pre-existing law". Both of the interpretations you suggest require the 2001 AUMF to take such a global stand, and since I don't think it takes such a stand, neither of your interpretations seems correct to me.

Again, my alternative approach (to your attempt to articulate a global approach) is to evaluate each other particular law in light of the actual substantive language of the 2001 AUMF, perhaps as supplemented by legislative history, to see if it was explicitly or implicitly superceded or repealed.

Incidentally, as an aside, if the 2001 AUMF really just referred to "pre-existing" laws, then that would not, of course, include FISA as amended by the USA-PATRIOT Act (which came after the 2001 AUMF).
12.30.2005 11:43am
Evelyn Blaine:
Rockefeller's claim that "the limited members who were told of the program were prohibited by the Administration from sharing any information about it with our colleagues, including other members of the Intelligence Committees" (link here) is at best disingenuous. Under the speech and debate clause, the Administration had absolutely no legal power to keep him from saying whatever he wanted about the classified briefing to any other member of Congress or any of his aides. [*] In principle, he could even read it aloud in open session if he wanted. Of course, if he did these things, he might suffer repercussions from his Senate colleagues, maybe even losing his committee post, but that's not what most people would think of when they hear the words "I was prohibited by the Administration".

[*] "[F]or the purpose of construing the privilege a Member and his aide are to be 'treated as one'." Gravel v. United States, 408 U.S. 606, 616 (1972).
12.30.2005 11:47am
Jack John (mail):

I don't think the 2001 AUMF takes a global stand on how it would interact with every possible "pre-existing law".



Then it makes no sense why, as Andrew Hyman, Another Observer, and I have repeatedly pointed out -- after incorporating your replies and meeting them head-on (but please feel free to repeat them without reconstruction), after Hamdi AUMF would not supercede 2511 on an as applied basis.
12.30.2005 11:53am
Mark Buehner (mail) (www):
Rockefeller could send the letter to Cheney because Cheney had participated in briefing him.

No, I meant how can Rockefeller release the letter to the media. I assume the program is still heavily classified despite the leak.

"And he probbaly could subpoena the head of the NSA to appear before the Committee (although I don't really know anything about how congressional subpoenas are issued),"

He certainly could. Thats his job.

"but he couldn't discuss his classified meeting with the head of the NSA before the Committee. Seriously, when you get a classified briefing, you cannot discuss it with anyone else besides those in the briefing."

Rockefeller as Chairman (and now as vice Chairman) had the power to subpoena whomever he wanted and have his questions answered privately.

Intelligence Committee Rule 3


"And yes, when all you do is give the Chairmen of the Select Committee on Intelligence a classified briefing, but do not authorize the Chairmen to share that information with the rest of the Committee"

I dont see any evidence that that is the case. In fact the Senate Rules indicate the opposite
"9.3 Each member of the Committee shall at all times have access to all papers and other material received from any source."
"For purposes of this paragraph, members and staff of the Committee may disclose classified information in the possession of the Committee only to persons with appropriate security clearances who have a need-to-know such information for an official governmental purpose related to the work of the Committee" (9.6)

"that makes it pretty much impossible for the Committee to serve its oversight function. Which I suspect was rather the point."

I think you are under a misaprehension about what the Committee is empowered to do, versus what it has done in this instance. Someone can correct me if i'm wrong, but the Chairman and Vice-Chairman can disclose any intelligence information they have been briefed on to the rest of the committee at their discretion. I dont see how the executive branch could dictate to the legislative in this manner, particularly in the case of oversite.
The fact that in this instance they may not have done that does not indicate it is illegal to do so. Per senate rules this seems correct, and certainly every member of the committee has the highest security clearances. All the wording of the Senate rules indicate the 'need to know' provisions are to the judgement of the committee, and/or its chair/vice-chair, as is appropriate. It seems extremely likely the Rockefeller and whoever else knew kept this quite from the rest of the committee, not because they had to, but because they chose in deference to the wishes of the White House.

Think about what you are suggesting. The oversight would indeed be an empty gesture if the executive branch can withhold information the way you indicate, or hold hostage the chairman not allowing him to do his work. Again, unless I am missing something this is exactly what the Intel Committee is for.
12.30.2005 11:56am
davidgmills (mail):
What 3 Supreme Court Justices Had To Say About Presidential Warrantless Wiretaps

The year was 1967. The case was KATZ v. UNITED STATES, 389 U.S. 347 (1967)

The issue was not about whether the President had the authority to wiretap without a warrant. One justice didn't care; he was going to wax eloquently about the issue anyway. Two other justices were not about to let him get away with it.


.................................................

Footnote 23 makes it clear this is not an issue in the case.

[ Footnote 23 ] Whether safeguards other than prior authorization by a magistrate would satisfy the Fourth Amendment in a situation involving the national security is a question not presented by this case.
.................................................

But Justice White, (watch the segue here), finds a way to address it anyway.

MR. JUSTICE WHITE, concurring
In this connection, in footnote 23 the Court points out that today's decision does not reach national security cases. 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. See Berger v. New York, 388 U.S. 41, 112 -118 (1967) (WHITE, J., [389 U.S. 347, 364] dissenting). 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.
............................................

Not about to let this stand unchallenged, Justice Douglas, joined by Justice Brennan had this to say:

MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN joins, concurring.
While I join the opinion of the Court, I feel compelled to reply to the separate concurring opinion of my Brother WHITE, which I view as a wholly unwarranted green light for the Executive Branch to resort to electronic eaves-dropping without a warrant in cases which the Executive Branch itself labels "national security" matters.
Neither the President nor the Attorney General is a magistrate. In matters where they believe national security may be involved they are not detached, disinterested, and neutral as a court or magistrate must be. Under the separation of powers created by the Constitution, the Executive Branch is not supposed to be neutral and disinterested. Rather it should vigorously investigate [389 U.S. 347, 360] and prevent breaches of national security and prosecute those who violate the pertinent federal laws. The President and Attorney General are properly interested parties, cast in the role of adversary, in national security cases. They may even be the intended victims of subversive action. Since spies and saboteurs are as entitled to the protection of the Fourth Amendment as suspected gamblers like petitioner, I cannot agree that where spies and saboteurs are involved adequate protection of Fourth Amendment rights is assured when the President and Attorney General assume both the position of adversary-and-prosecutor and disinterested, neutral magistrate.

.......................

So now you know how we got here.
12.30.2005 11:58am
John Lederer (mail):
It might aid discussion to mention what General Hayden said about the 72 hour "intercept first, get a warrant later" provision:

GENERAL HAYDEN: FISA involves the process — FISA involves marshaling arguments; FISA involves looping paperwork around, even in the case of emergency authorizations from the Attorney General. And beyond that, it's a little — it's difficult for me to get into further discussions as to why this is more optimized under this process without, frankly, revealing too much about what it is we do and why and how we do it.
***
Q And who determined that these targets were al Qaeda? Did you wiretap them?

GENERAL HAYDEN: The judgment is made by the operational work force at the National Security Agency using the information available to them at the time, and the standard that they apply — and it's a two-person standard that must be signed off by a shift supervisor, and carefully recorded as to what created the operational imperative to cover any target, but particularly with regard to those inside the United States.



My sense is that Gen. Hayden is saying that the decisions are made in real time or near real time. I surmise that they may also be being made , or presented for decision, by a computer program.

The AG's 72 hr authority does not require action by the court but it does require the AG to jump through some hoops— the principal one is that he must satisfy himself that he can meet all the requirements of the factual basis for the issuance of a warrant. The factual basis is not simple.

That may seem trivial, but not if the circumstance is "Terrorist A is on a cell phone with Terrorist B. See whom B calls when A hangs up." That sort of surveillance requires approval in seconds.
12.30.2005 12:02pm
Medis:
Another observer,

You write:

I don't think that it is relevant that the FISA declares itself to be the "exclusive" means of wiretapping. Pre-AUMF it was the exclusive statutory means. Post-AUMF, it certain circumstances, it may not be. Pre-AUMF, the Non-Detention Act, plus all other statutes on the books that allow detention, were the "exclusive" means for federal authorities to detain. Post-AUMF and Hamdi, there clearly is one additonal statute.

My answer:

First, to be precise, it is 18 USC 2511 that contains the "exclusive means" language, not FISA itself. In any event, I think you are clearly misusing the word "exclusive" in the Hamdi context. To my knowledge, there was no detention law declaring that some set of procedures were the "exclusive means" of carrying out detentions. And that is important precisely because that makes all the prior detention provisions NON-exclusive, and therefore you can add new detention provisions without having to nullify anything in the old provisions.

All of which just suggests that Hamdi was not an implied repeal case. Which is pretty obvious, actually--no one in Hamdi, to my knowledge, is talking about repeal of 4001. But this case WOULD involve a need to repeal prior statutes--at least 18 USC 2511(2)(f), and probably 50 USC 1811 as well.

And that is a real problem, because the standard for implied repeal is a lot higher than the normal standard for statutory interpretation. Of course, that really makes a lot of sense: if Congress intends not just to add to existing law, but also to nullify some portion of existing law, it need to make that intention clear.

On the USA-PATRIOT Act: I agree that it was intended to deal with more than just Al Qaeda and the threat of a followup to 9/11. But that is not the relevant question. The question is whether dealing with Al Qaeda and the threat of a followup to 9/11 was AMONG the purposes of the USA-PATRIOT Act. And very, very clearly, that was one of the stated purposes of the USA-PATRIOT Act.

So, the idea that the USA-PATRIOT Act was ONLY about other threats, and NOT about Al Qaeda and associated threats, is just not plausible.
12.30.2005 12:04pm
Andrew Hyman (mail) (www):
Medis,

Then my understanding of your approach is to say that
the words "all necessary and appropriate force" mean "all necessary and appropriate force under pre-existing law with such exceptions to pre-existing law as may be implied herein or revealed by legislative history."

If the President reasonably determines that the electronic surveillance program is necessary and appropriate for defeating Al Qaeda, and the program is consistent with the Fourth Amendment, then the program seems like an implied exception to the pre-existing laws that constrain the President. Do we have to find some legislative history specifically discussing this exception?

Incidentally, I don't find discussion of the Patriot Act amendments to FISA as particularly relevant. The Patriot Act dealth with law enforcement matters, whereas the AUMF did not.
12.30.2005 12:05pm
Mark Buehner (mail) (www):
Intelligence Committee Rule 3

Should read rule 7.
12.30.2005 12:06pm
George Gregg (mail):
Tom: Your knowledge of history affects the weight given your opinions.

Thank you for this criticism, Tom. You are most assuredly right, in as far as this statement is a general principle. In my specific case, I am working to improve my knowledge of history and the law.

But is it really my perceived level of "knowledge of history" that requires you to give little weight to my opinions, or is it that you simply disagree with my opinions, per se? Perhaps you could tell me how many degrees in History I would need before you will agree with me? :)

In any event, quite aside from what Lincoln or Roosevelt may have thought, if you could address the substance of the of the statutory and Constitutional legalities of the issue at hand, which was my focus as well as most of the others' in this thread, I would be happy to interact with and learn from that.

Within my admittedly limited knowledge and capacity, of course.
12.30.2005 12:07pm
Medis:
Another observer,

One point I forgot to address. You write: "I don't understand your argument that the AUMF did not empower the President to lawfully kill them prior to an attack." But I never argued that. Nor did I argue that the AUMF did not empower the President to LAWFULLY conduct surveillance (although I'm not sure it needed to, since FISA does so on its own). My whole point is just that FISA as amended by the USA-PATRIOT Act defines what sruveillance is LAWFUL in this context.

Mark and Evelyn,

It may be true that the Administration could not lawfully impose such a prohibition on Rockefeller. In that case, if Rockefeller is telling the truth about the Administration attempting to impose such a prohibition, then Rockefeller was apparently obeying an unlawful prohibition. Assuming all this is true, then I would in fact allocate responsibility for the lack of oversight to both the Administration, for seeking to impose the prohibition, and Rockefeller, for complying with an unlawful prohibition.
12.30.2005 12:14pm
davidgmills (mail):
My still unanswered question (on a number of blogs)is this:

If the President as Commander in Chief, can ignore the fourth for national security purposes,, can he also ignore the third regarding the prohibition against quartering of soldiers?
12.30.2005 12:15pm
Wikstrom (mail):
...concerning Congressional enactment of FISA:


- what is the Constitutional authority for creating 'secret' courts for FISA judicial warrants ?

- what is the Constitutional authority for FISA courts to issue 'retroactive search-warrants', under the 72-hour rule ?
12.30.2005 12:17pm
Anderson (mail) (www):
Mark, you may have a point about cell phone calls, but we'll have to disagree about Congress's power to limit the Executive.

Hm. Radio waves are sent out to be heard by anyone who happens to have a receiver tuned to the correct frequency. Is this the case with cell phones? I confess to tech illiteracy.
12.30.2005 12:23pm
Medis:
Andrew,

That is almost an accurate gloss on my reading of the 2001 AUMF, except that I would say that in order for the 2001 AUMF to actually repeal or nullify any provision of pre-existing law, that would have to be done explicitly, or the intention to do so would have to be clear, in accord with the doctrine of implied repeal. So, it is not enough to say Congress might have such an intention. Rather, there must be evidence clearly establishing that intention. In that sense, legislative history might be quite helpful, although it is not necessary.

On the USA-PATRIOT Act:

Maybe it is worth remembering what that acronym actually stands for: "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism." Improving law enforcement is certainly one of the purposes of the USA-PATRIOT Act. But the argument that the USA-PATRIOT Act is SOLELY about law enforcement, and has nothing to do with actually PREVENTING another 9/11 from occurring, is just not plausible.
12.30.2005 12:25pm
Mark Buehner (mail) (www):
In that case, if Rockefeller is telling the truth about the Administration attempting to impose such a prohibition, then Rockefeller was apparently obeying an unlawful prohibition. Assuming all this is true, then I would in fact allocate responsibility for the lack of oversight to both the Administration, for seeking to impose the prohibition, and Rockefeller, for complying with an unlawful prohibition.

Come on. You are seriously suggesting the WH attempted to hoodwink the Chairman of the Intelligence committee into believing they have the authority to give him marching orders? Please. Occam is spinning on his razor. Rockefellar isnt stupid. Senators know their powers and perogatives better than anyone. You think if Cheney ordered Rockefellar to rake the South Lawn he'd buy that too? There is no such thing as the white house issuing an 'unlawful prohibition'. They can tell people to do whatever they want, whether it is illegal to disobey is simply a matter of law, which in this case the law is clear. Lets quit playing hide and seek here and call a spade a spade. Bush et al briefed Rockefellar and whoever else, asking them to keep the program to themselves. The Congress folk complied. This isnt an unusual situation, it happens in super secret stuff and unless there is a good reason not to the members comply. Obviously at the time Rockefellar didnt feel there was a good enough reason to mess with this program by subjecting it to further scrutiny. In the environment after 911 that makes perfect sense. Far more plausible than the possiblily of the Chairman of the Intel Committee believing the WH had the power to order him about.
12.30.2005 12:29pm
Unnamed Co-Conspirator:
Medis,

Laws for governing and regulating the armed forces -- Do you mean, for example, the UMCJ, or laws regarding funding, raising, arming the military forces, or using the military within the US? Do you also also mean laws specifying where the President may use the armed forces to defend the nation against attack by foreign enemies? Or laws regarding which communications of suspected foreign enemies the forces at the President's command are permitted to monitor?

If the "domestic" communications at issue are those involving no foreign person and made and received within the US, then no, I don't support the position that the President may intercept them without complying with Congressionally mandated safeguards. But I don't think those are the communications at issue. If the President may intercept communications between foreign persons suspected of being enemies based solely on his Article II power, then the involvement of a US person in such a communication doesn't render that communication protected from interception.

In Youngstown, Truman determined that the steel strike would jeopardize national security, so he authorized the siezure of the steel mills. Cold War was hot, in Korea, but there hadn't been an attack on US soil nor had there been a Congressional acknowledgment of a threat of such an attack (not the same thing as a general apprehension of such an attack). I think there is an Article II justification for this particular executive power exercised in an effort to protect the nation from a threat that Congress has acknowledged, even if the action of the President may conflict with some requirements of an act of Congress. To the extent that the Congressional act predates the recognition of the threat, the President's case gets stronger, as that would tend to put the action into Justice Jackson's second category or even the first, rather than the third.

The best approach by the Courts would be to leave this case alone. As I mentioned above, unlike the Youngstown Co. case, Congress has recognized a threat and has authorized the President to act to protect the nation from that threat. It is up to Congress, not the Courts, to determine if the actions taken by the President in doing so intrude upon Congress' power under Article I. Should any judge disable a surveillance program that the President has implemented, has asserted is necessary and has actually resulted in the detection and prevention of attacks, while a threat recognized by Congress is apparently continuing? This is a political question -- if Congress disapproves of what the President is doing, then Congress should take political responsibility for stopping the program, rather than passing the buck to relatively non-accountable Courts. Insulating Congress from political responsibility for decisions that may jeopardize national security is not among the good reasons for the independence of the judiciary.
12.30.2005 12:29pm
George Gregg (mail):

I said: "To make the argument that the President, by virtue of Article II, in wartime holds essentially unreviewable authority to ignore any law of Congress as long as he makes the putative assertion that it is for the security of the Republic is farcical on its face."

Unnamed said: "Straw man, George."

My mistake, I guess. That did seem to be the implication of much of the reasoning in this thread, but perhaps I simply misconstrued where those arguments were heading.

I will accept at face value, though, that you do not agree that the President should, during wartime, have plenary powers to ignore laws as long as he uses the argument of "national security".

However, like davidgmills, all of this has me wondering where is the end of this line of argument. If warrantless wiretaps on US citizens is a constitutionally permissible power of the Executive when we are at wartime, what other laws or constitutional amendments may be held in abeyance at such times?

I think this is the crux of the issue, for me. Where does this power stop? May the President dissolve lower courts who rule against him if he decides it is crucial to do so for national security? Ca he jail senators for talking about NSA intelligence because that undermines his sense of national security? Which constitutional or statutory provisions, if any, are held inviolate from the Executive even in wartime?
12.30.2005 12:33pm
Medis:
Mark,

I didn't say Rockefeller believed the prohibition was lawful. Like I said, if the law invalidated this attempted prohibition, then I hold Rockefeller responsible for his part in complying with it.

But what is your basis for claiming the Administration did not try to prohibit Rockefeller from sharing this information, as opposed to merely requesting that he not do so?
12.30.2005 12:34pm
DS:
Rockefeller says he wasn't informed of the program until July 2003, which was AFTER Democrats lost control of the Senate. So he was NOT chairman of the intelligence committee. He was vice chairman under Republican Roberts. He could not subpoena or call hearings because the Democrats were not in the majority.

And additionally, he -- like the other Democrats -- has stated that he wasn't given enough information about the program to determine if would be for it or against it. What's more it's clear from the letter that Rockefeller and other Democrats were told that the White House was informing them of the program NOT asking their permission. Clearly it was the position of the White House that they didn't need the permission of Congress to implement a secret program without direct Congressional oversite or judicial review -- and it is THAT position -- not the narrow question of whether the wiretapping is good or bad -- that is the real question.

And Evelyn, the Congress passed a law a long time ago stating that nobody, even Senators, could not reveal National Security secrets.

So are we now arguing that Senators, as well as the President, can ignore the laws of Congress. (Senate rules are not laws)

If you're argument is that The First Amendment protects his right to speak, I suppose that's a valid point. And I will concede that Democrats should have had stronger backbones on such an important matter. But they didn't. So what else is new?

That's really beside the point of the Constitutional Separation of Powers question at hand.

As for how could Rockefeller release the letter now, it's simple. Once the program was out in the public anyway, the law on revealing secrets no longer applied because the secret was already revealed. That's why everyone can talk about the Plame case as well.
12.30.2005 12:35pm
Armando (mail):
On the discussion of constraining the Judiciary versus constraining the Executive, Hamilton proved himself a mart man:



Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power1; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers."2 And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.


The Judiciary, by its very nature, is constrained.
12.30.2005 12:35pm
George Gregg (mail):
And I pose those questions somewhat rhetorically, recognizing that both Youngstown and Hamdi have already noted that the President does have legitimate restrictions on his war powers...
12.30.2005 12:38pm
Another observer (mail):
Medis,

Well at least we've narrowed it down to the crux of our disagreement.

You wrote: "There was no detention law declaring that some set of procedures were the "exclusive means" of carrying out detentions. And that is important precisely because that makes all the prior detention provisions NON-exclusive, and therefore you can add new detention provisions without having to nullify anything in the old provisions.

All of which just suggests that Hamdi was not an implied repeal case. Which is pretty obvious, actually—no one in Hamdi, to my knowledge, is talking about repeal of 4001. But this case WOULD involve a need to repeal prior statutes—at least 18 USC 2511(2)(f), and probably 50 USC 1811 as well."

Given the statutory analysis done by the Court in Hamdi, I just don't agree that AUMF was not an implied change to the law that was very large (I'll refrain from using repeal), so large that it is substantively more similar than not to the legal effect AUMF may have had on the FISA statutes.

Here's Souter in dissent in Hamdi: "When, therefore, Congress repealed the 1950 Act and adopted § 4001(a) for the purpose of avoiding another Korematsu, it intended to preclude reliance on vague congressional authority...as authority for detention or imprisonment at the discretion of the Executive (maintaining detention camps of American citizens, for example). In requiring that any Executive detention be “pursuant to an Act of Congress,” then, Congress necessarily meant to require a congressional enactment that clearly authorized detention or imprisonment. When Congress passed § 4001(a) it was acting in light of an interpretive regime that subjected enactments limiting liberty in wartime to the requirement of a clear statement and it presumably intended § 4001(a) to be read accordingly. This need for clarity was unmistakably expressed in Ex parte Endo, supra, decided the same day as Korematsu."

And Souter quotes the Endo decision: "We must assume, when asked to find implied powers in a grant of legislative or executive authority, that the law makers intended to place no greater restraint on the citizen than was clearly and unmistakably indicated by the language they used."

Regarding the AUMF, he says: "it never so much as uses the word detention, and there is no reason to think Congress might have perceived any need to augment Executive power to deal with dangerous citizens within the United States, given the well-stocked statutory arsenal of defined criminal offenses covering the gamut of actions that a citizen sympathetic to terrorists might commit."

And he ends with this kicker: "It is worth adding a further reason for requiring the Government to bear the burden of clearly justifying its claim to be exercising recognized war powers before declaring § 4001(a) satisfied. Thirty-eight days after adopting the Force Resolution, Congress passed the statute entitled Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT ACT), 115 Stat. 272; that Act authorized the detention of alien terrorists for no more than seven days in the absence of criminal charges or deportation proceedings, 8 U.S.C. § 1226a(a)(5) (2000 ed., Supp. I). It is very difficult to believe that the same Congress that carefully circumscribed Executive power over alien terrorists on home soil would not have meant to require the Government to justify clearly its detention of an American citizen held on home soil incommunicado."

Sound familiar? These are colorable, reasonable arguments in dissent, and they are the same arguments that you are making. They are not, however, the best reading of the law based on the actual holding of the Court in Hamdi.
12.30.2005 12:41pm
Medis:
Unnamed,

Sure: any law regulating the armed forces would count. Of course, some specific issues would overlap with other enumerated powers, particularly as supplemented by the NPC. So, a law in the UCMJ making the misappropriation of military funds by military personnel a crime would both be a regulation of the armed forces and a NPC extension of Congress's military funding power. Similarly, a law in the UCMJ making it a crime to violate the UN Convention Against Torture would be both a regulation of the armed forces and also an extension of the power to define offenses against the laws of nations. And so on.

Incidentally, I agree with you that if the President is in fact ordering people in the NSA to commit crimes, then adjudicating his conduct would not be a matter for the courts. It would be a matter for the Congress under the impeachment and removal provisions--and whether they would in fact do that would indeed be a political issue.
12.30.2005 12:45pm
Mark Buehner (mail) (www):
But what is your basis for claiming the Administration did not try to prohibit Rockefeller from sharing this information, as opposed to merely requesting that he not do so?

What is your basis for claiming this phantom order ever existed? I believe the burden of proof is on you, i cant prove a negative. What i can attest to is it would be farsicle and absurd for the WH to give an order to a Senator knowing full well they had no authority to do so, and even more insane to expect the Senator to comply apparently because he wouldnt be expected to understand the very basics of seperation of powers, much less his oversight job. The entire scenario is fantasy. What if i asked you to disprove that Bill Clinton ordered the Supreme Court to rule a certain way in some case? This is a 'when did you stop beating your wife with stolen plutonium' argument, both illogical and implausible.
12.30.2005 12:46pm
Medis:
Another observer,

But that is precisely my point: the plurality in Hamdi did not accept Souter's argument that the 2001 AUMF needed to meet a higher burden in order to simply authorize detention under 4001(a). But I am not making the "same argument" precisely because the statutes in question are different.

So, we have to ask, counterfactually, whether Souter would have had a much better argument to make in Hamdi if Hamdi had actually been an implied repeal case. And my argument is simply that in light of the doctrine of implied repeal, that is certainly the case.
12.30.2005 1:00pm
Mark Buehner (mail) (www):
Rockefeller says he wasn't informed of the program until July 2003, which was AFTER Democrats lost control of the Senate.

First, Rockefeller didnt assume the chair until 2003 which is why he was briefed in 2003. Second, what did Democrat Bob Graham know when he was Chairman of the Committee and what does he have to say. Was some phantom order issued to him by the White House as well, and why isnt he screaming bloody murder about it? Thirdly, according to Senate rules the Vice-Chairman has equal subpoena powers to the Chairman. The bottom line remains, if Rockefellar was so disturbed by this program, why didnt he do anything about it?
12.30.2005 1:03pm
Medis:
Mark,

My only basis is what Rockefeller actually claimed, which is, "The limited members who were told of the program were prohibited by the Administration from sharing any information about it with our colleagues, including other members of the Intelligence Committees."

Personally, I don't know what the law actually says about Senators and classified briefings. I also don't have any independent sources with respect to Rockefeller's claim. That is why I phrased my statement as a conditional ("It may be true that the Administration could not lawfully impose such a prohibition on Rockefeller. In that case, if Rockefeller is telling the truth about the Administration attempting to impose such a prohibition, then Rockefeller was apparently obeying an unlawful prohibition. Assuming all this is true, then I would in fact allocate responsibility for the lack of oversight to both the Administration, for seeking to impose the prohibition, and Rockefeller, for complying with an unlawful prohibition.").
12.30.2005 1:07pm
Just an Observer:
Andrew,

You and the Bush administration propose an expansive reading of the language of the AUMF:


[T]he 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.


Is it your contention that this language is a broader grant of authority, with respect to foreign-intelligence surveillance of one or more parties in the U.S., than would have been provided by the general language of the declaration of war against Germany?


[T]he President is hereby authorized and directed to employ the entire naval and military forces of the government to carry on war against the Government of Germany; and to bring the conflict to a successful termination, all of the resources of the country are hereby pledged by the Congress of the United States


The latter language, mirrored in the declaration of war against Japan, seems quite sweeping to me. It is hard to imagine that Congress intended greater authority by the AUMF. (None of these resolutions use the word surveillance, which must be inferred.)

Yet, knowing what authorizations had been included in such historical declarations of war, Congress still specified that in the event of such a declaration and in the absence of specific legislation redefining the President's authority, he had only a limited window for warrantless surveillance.

From the plain language of 50 USC 1811, it is easy to see that Congress meant the specific provisions of 1811 to govern in the event of a general declaration of war, which it reasonably expected to contain sweeping general authority to wage war.
12.30.2005 1:08pm
Evelyn Blaine:
DS wrote:


And Evelyn, the Congress passed a law a long time ago stating that nobody, even Senators, could not reveal National Security secrets.


In general, this is untrue: there is no general statute against revealing classified information. There is a complex hodgepodge of statutes prohibiting disclosure of various kinds of information, and disclosure by federal employees who have signed nondisclosure agreements, but we have (thankfully) no equivalent of the British Official Secrets Act.

But, in any case, it is black-letter law that the Speech and Debate clause means just what it says: in Gravel, a U.S. senator read the Pentagon Papers into the record of his subcommittee and (allegedly) tried to arrange for their private publication. The Supreme Court held that the later was not a legislative act and thus not privileged, but as for the former, "The Speech or Debate Clause was designed to assure a co-equal branch of the government wide freedom of speech, debate, and deliberation without intimidation or threats from the Executive Branch. It thus protects Members against prosecutions that directly impinge upon or threaten the legislative process. We have no doubt that Senator Gravel may not be made to answer - either in terms of questions or in terms of defending himself from prosecution - for the events that occurred at the subcommittee meeting." 408 U.S. 606, 616.
12.30.2005 1:12pm
Medis:
JaO,

And although I have not belabored with point with Andrew, even if it is true that the 2001 AUMF contemplated that it would supercede some unnamed federal statutes, it seems clear that unless it was actually intended to nullify 1811, then it was not intended to supercede FISA in particular.

Or to put the point another way, if there was ANY sort of statute something like the AUMF was NOT implicitly repealing, one would think it would be something like FISA, which specifically provides for how it interacts with a declaration of war.
12.30.2005 1:14pm
bojess (mail):
It seems those advocating for the president's "inherent" authority to spy outside of FISA are relying on a president's unique constitutional role in dealing with foreign powers. (See US v. Curtis-Wright Export Co., 229 US 304 (1936).)

This is the issue left open in the "Keith" case, where the SCOTUS prohibited warrantless spying for domestic intelligence.

But "foreign powers" are nations, countries, foreign states, or call them what you will.

Al Qaeda is NOT a "foreign power."

Al Qaeda members/sympathizers/enablers -- including Americans -- are stateless actors. In constitutional terms, Al Qaeda are no different in this respect than pirates trolling the high seas in the 18th century.

Pirates were covered by the laws of nations -- at least according to the Constitution.

Art. I, Sec. 8, cl. 10 is explicit about that.

And "pirates" included persons affecting "any act of hostility" against the US or its citizens, not just boat-stealing. (See "The Crimes Act of 1790, § 9, 1 Stat. at Large, 114.)

It was said by the Supreme Court, in this regard, "The common law, too, recognises and punishes piracy as an offence, not against its own municipal code, but as an offence against the law of nations, (which is part of the common law,) as an offence against the universal law of society, a pirate being deemed an enemy of the human race." [US v. Smith, 18 US 153, 161 (1820)(Story, J.).]

Vis-a-vis Al Qaeda, as individuals acting without the authority of a nation-state behind them, the Constitution is clear that Congress most definitely has a huge role in dealing with them.

Arguments, IMHO, that the president is acting as CIC change nothing -- given the character of Al Qaeda as stateless actors acting in violation of the law of nations.

And insofar as American citizens are "adhering" to Al Qaeda by giving them aid and comfort (see Ex Parte Bollman, 4 Cranch 75 (1807) (Marshall, CJ)), these Americans are traitors. And should be treated as traitors.

But the rule of law, layed down in the Constitution and by Congress, still controls how the executive branch is obliged to deal with treasonous Americans and those who conspire to commit treason. (see Ex parte Bollman, 4 Cranch at 126-27).

Endless detention or, hypothetically, summary execution of treasonous Americans are not among those options -- and anyone favoring "inherent", i.e., unlimited, executive authority can offer no limiting principle proving that summary execution would not be within such "inherent" authority.

Bottom line. Defense of our country from stateless actors was expressly covered by the framers. Wisely, the framers gave both the Congress and Executive a role in the defense of our country in the case of stateless actors and treasonous Americans.

As we are not at "war" with a nation-state, but dealing only with tactical use of force by stateless actors and treasonous Americans, it would seem Congress has quite alot to say on the subject of just what the president may do in the name of self-defense.

Otherwise -- as Hamilton points out in Federalist No. 69 -- we'd have a monarchy.

(None of this is to suggest that in emergent situations, a president cannot act without express congressional approval. Surely he can, should, and must.

Nor is any of the foregoing to suggest that as a matter of POLICY, what the NSA has done is not a good idea.

The point is merely that the Constitution gives the Congress the primary role of setting policy. The president's duty is to execute that policy -- not make-up his own laws after telling 4 congressmen.)
12.30.2005 1:20pm
DS:
Mark,

I don't see where the Senate rules say what you claim. They say that subpoenas must be authorized by the Committee and anyone the committee designates, including the vice chairman, can serve them. But the committee as a whole must approve them. (My emphasis)


Rule 6. Investigations

No investigation shall be initiated by the Committee unless at least five members of the Committee have specifically requested the Chairman or the Vice Chairman to authorize such an investigation. Authorized investigations may be conducted by members of the Committee and/or designated Committee staff members.

Rule 7. Subpoenas

Subpoenas authorized by the Committee for the attendance of witnesses or the production of memoranda, documents, records or any other material may be issued by the Chairman, the Vice Chairman, or any member of the Committee designated by the Chairman, and may be served by any person designated by the Chairman. Vice Chairman or member issuing the subpoenas. Each subpoena shall have attached thereto a copy of S. Res. 400, 94th Congress, 2d Session and a copy of these rules.
12.30.2005 1:21pm
George Gregg (mail):
Mark: Second, what did Democrat Bob Graham know when he was Chairman of the Committee and what does he have to say.

Google is a pretty good tool, you know. :)

Graham left the committee in 2003 and the Senate at the end of 2004. But during his chairmanship of the Intelligence Committee in 2001 and 2002, he said, "I was not notified that they were going to abandon the FISA process and utilize warrantless intercepts of conversations."

So it sounds like while Graham was Chair, he says he was informed of the program, but with the implication that it accorded with FISA. According to him, he was never told that FISA was being circumvented by the use of warrantless wiretaps against US citizens.
12.30.2005 1:29pm
Jack John (mail):

But I am not making the "same argument" precisely because the statutes in question are different. So, we have to ask, counterfactually,



No, we don't. The statutes are not sufficiently different, because post-Hamdi AUMF is so broad as to swallow up the difference (i.e., you are effectively making the "same" argument). The only thing you have going for you is the dissent in Hamdi and your presumption that in a counterfactual world things would proceed precisely how you need them to be in order to satisfy the conditions sufficient to make your argument even remotely plausible. That is a fallacy: it is called begging the question.
12.30.2005 1:29pm
Just an Observer:
Medis,

With respect to 50 USC 1811, my comment was addressed to Andrew just because he happens to be the one here right now defending the administration's expansive reading of AUMF.

But it is worth noting that the administration's official defense of its position -- in the DOJ letter and from the White House podium -- has never addressed 1811 at all.
12.30.2005 1:39pm
George Gregg (mail):
Thank you, bojess. That's an excellent insight I haven't heard elaborated yet, at all.

Perhaps in allowing the President to frame the crime of organized terrorism by al Qaeda as "war" we have permitted an equivocation that muddies a more straightforward separation of powers in dealing with those criminals.

I'd be very interested in what others think of your views.
12.30.2005 1:41pm
Medis:
Jack John,

Actually, what I have "going for" my argument is the texts of the relevant statutes.
12.30.2005 1:43pm
JunkYardLawDog (mail):
OrinKerr:

Well, if I needed to place a bet between your knowledge of where the court is on this and mine, even I would bet on you. Certainly on paper that would be the smart bet.

I still think I'm correct in where the court will come out, in effect, but perhaps that's wishful thinking on my part. We may never find out who is right.

I think its a mistake to analyze current case law without taking into account the differences in the political climate in which the prior cases were decided. That is a real distinguishable difference, imho.

There is enough meddling where the Supreme Court doesn't belong and has no constitutional authoriy, imho, in the Hamdi case to certainly give one pause as to my predictions on this.

Its going to be interesting, either way.

So sayeth "the Dog"
12.30.2005 1:44pm
Unnamed Co-Conspirator:
George, the Medis provided the answer to your rhetorical questions, I think.

Medis, I agree, although there's a lot Congress can do short of impeachment. And if the President's actions are taken in a good faith effort to discharge his duty to protect the nation from a foreign threat after having been authorized by Congress to use force against that threat, impeachment isn't likely get any serious consideration.
12.30.2005 1:46pm
af -- other one:
Here is my way to compare the steel seizure case to this case. Imagine if the steel plant being seized was not in Ohio, but was in Korea. Then, there would be no question that the President could seize it (assuming a lawfully declared war). And there is no question that legislation designed to address domestic property seizures would not really even be relevant to the question. Thus Justice Jackson recognized that the President's authority over "foreigin affairs is * * * largely uncontrolled" but this power -- stemming from Commander in Chief clause -- cannot serve to "enlarge his mastery over the internal affairs of the country." 343 U.S. at 642. See also id. at 644 (Commander in chief does not make president "also commander in chief of the country, its industries and its inhabitants"); id. ("military powers of the Commander-in-Chiefe were not to supersede representative government of internal affairs"); id. at 645 (recognizing the "widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society"). Here, the communications being intercepted are of the same nature as the steel plant in Korea -- not the plant in Ohio -- they exist outside of the United States, where the President's authority, even as recognized by Justice Jackson, is at its peak, particularly in wartime. Even the FISA recognizes this by limiting its applicability to communications within the United States.

Additionally, Justice Jackson specifically addressed Congress's Article I authority over the matter -- noting that Congress is authorized to "raise and support Armies" which includes "responsibility for supplying the armed forces." 343 U.S. at 643. Where is the Article I authority that Congress has to decide how declared wars are fought? Congress can "declare War" but it is the President who is the "Commander in Chief" once the military is called into service. See Youngstown, 343 U.S. at 644 ("While Congress cannot deprive the PResident of the command of the army* * * only Congress can provide him an army or navy to command"). The only arguable provision is the provision to make rules ofr the "government and Regulation of the land and naval Forces." I don't know what this provision means, but would guess it has to do more with personnel and rank-type regulation, and not the actual conducting of a war.
12.30.2005 1:53pm
DS:
Unnamed,

You are right in saying that if the President's actions are a good faith effort to discharge his duty and a good faith interpretation of the Constitution, then there is no grounds for impeachment.

But if the President continues to operate this NSA program without Congressional authority, oversite or judicial review and/or if he authorizes torture after the passage of the McCain Amendment, then what credibility will Congress' powers to check the executive have in the future if they don't impeach?

Why would any President, Democrat of Republican, ever worry about following the laws of Congress during war time in the future if they know they can openly flout Congress in this manner and get away with it?

This is especially true if the Supreme Court does in fact rule that the President has gone beyond his Constitutional powers.

Yes, there are possibly other things that could be done, such as cutting funds for programs, but are these better for the country then forcing the president to respect the laws directly by impeaching him?
12.30.2005 1:59pm
Medis:
Unnamed,

I suppose they could try passing a law specifically stating that the 2001 AUMF did not authorize the President to bypass FISA. But if the President insisted that FISA as amended was unconstitutional (something they have not said quite yet, but hinted at), and continued to authorize the program, then I think they are out of remedies short of impeachment.

As for whether impeachment would be warranted for anything before a "clarification" of the 2001 AUMF: I think the basic charge would be that the President failed to faithfully execute the laws. I agree that if it was only a Hamdi-type issue, impeachment would not be on the table at all. I even think 18 USC 2511 probably does not make this an impeachment issue, although I do think it makes the Administration's statutory argument much weaker than it was in Hamdi.

But I really think 1811 plus the USA-PATRIOT Act makes this all a much more serious problem--why didn't the President at least ask for a change in FISA if that was the problem?

Regardless, it is tough to imagine a Republican Congress going along with impeachment as yet--but we have yet to get all the relevant information.
12.30.2005 2:01pm
Jack John (mail):


what I have "going for" my argument is the texts of the relevant statutes.




Yes, absent a reading of Hamdi. In a similar fashion, one might say that a plain reading of the text of the 11th Amendment is sufficient to determine its legal impact; one would be demonstrably wrong. As are you.
12.30.2005 2:09pm
Andrew Hyman (mail) (www):
Just an Observer:

I think it's significant that 1811 was enacted not just prior to the AUMF, but also prior to the attack on 9/11. 1811 did not anticipate something that never happened before in US history: a huge attack by a subnational group that had infiltrated into the United States. To think that Congress intended the AUMF to incorporate or leave untouched all the laws of war that had hitherto been applied only with respect to warfare between nations is not self-evident.

I think I understand where you're coming from here: you view 1811 as a very explicit command to the President regarding how to conduct a war, and you believe the President violated that command. But the War Powers Resolution also purports to be such a command, and yet Congress for some reason felt the need to reiterate that command in the AUMF, while not reiterating 1811. The only reason I can think of why Congress would have written the AUMF like that is because Congress meant the words "all necessary and appropriate force" to not have some technical legal meaning, but rather to have a real-world meaning; Congress did not want prior laws to hamstring the president, to such a degree that the President couldn't use all necessary and appropriate force against Al Qaeda. That doesn't mean 1811 was repealed; it was only superceded "as applied" to Al Qaeda, in my opinion.

Is it my contention that the AUMF is a broader grant of authority, with respect to foreign-intelligence surveillance of one or more parties in the U.S., than would have been provided by the general language of the declaration of war against Germany? No. The declaration of war against Germany left President Roosevelt free to monitor communications from Hitler to people inside the U.S. without probable cause, court approval, and a warrant. You and Medis seem to be saying that Bush --- unlike Roosevelt --- is not free to monitor communications from Osama Bin Laden to people in the U.S. without probable cause, court approval, and a warrant. You seem to be saying that the AUMF and other statutes give Bush less authority than Roosevelt had, with respect to surveillance.

Medis, you quote Alexander Hamilton, who indeed was a very smart person. He said, "The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated." That is quite different from the judiciary of today, which conjures up rules from the void of provisions that the judiciary itself has gutted (i.e. deprived of their original meaning). I don't think Hamitlon would be pleased. And I don't think the courts should imagine that the AUMF and FISA to combine so as to impose restraints on the President that are not obvious from that combination, and which infringe on war powers that presdients have traditionally exercised.
12.30.2005 2:10pm
Jack John (mail):

But it is worth noting that the administration's official defense of its position -- in the DOJ letter and from the White House podium -- has never addressed 1811 at all.



That's because post-Hamdi, it does not matter.
12.30.2005 2:10pm
Medis:
af,

Actually, see the quotes in Hamilton's Federalist #69--he had an expansive sense of what "regulating" the armed forces meant in comparison to the President's commander in chief role.

As for nondomestic military action during times of war, here are two additional enumerated powers:

"To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water."

Accordingly, it is quite clear that the Constitution did not place the regulation of the conduct of war--even aspects of war going on outside the United States, and even issues involving what we could do to our foreign enemies--outside the scope of congressional power.
12.30.2005 2:16pm
bojess (mail):
According to Justice Joseph Story, "war" -- as that term was understood at the common law and, thus, by the framers -- involved one nation fighting another nation. United States v. Smith, 18 U.S. 153, 163 n. h (1820)(quoting Rutherforth (Inst. b. 2. c. 9. s. 9. p. 481.).

This is an important Constitutional distinction because it suggests the entire conversation we're having about a president's "inherent" autority as C-in-C may be built on a false paradigm -- that being, that we are at "war".

But as that term was originally understood in 1789, it does not appear we are at "war" at all.

The correct constitutional paradigm would seem to be that we, as a nation, are acting in defense of ourselves against private, non-state actors.

This is not a new idea.

On this point, Justice Story said in the Smith case:

"speaking with reference to the law of nations, says, 'All wars of a nation against its external enemies are not public wars. To make a war a public one, both the contending parties must be public persons; that is, it must be a war of one nation against another, &c. Where a nation makes war upon pirates or other robbers, though these are external enemies, the war will be a mixed one; it is public on one side, because a nation or public person is one of the parties; but it is private on the other side, because the parties on this side are private persons, who act together occasionally, and are not united into a civil society. A band of robbers or a company of pirates may in fact be united to one another by compact, &c. But they are still, by the law of nature, only a number of unconnected individuals; and consequently, in the view of the law of nations they are not considered as a collective body or public person. For the compact by which they unite themselves is void, because the matter of it is unlawful, &c. &c. The common benefit which a band of robbers or a company of pirates propose to themselves consists in doing harm to the rest of mankind.'"
12.30.2005 2:21pm
Unnamed Co-Conspirator:
The authors of the Constitution were informed by, among other things, the experience of the Continental Congress' attempts to micromanage the conduct of the war for independence, as well as General Washington's willingness to comply with the wishes of that body, despite its demonstrated ineptitude (that is, before it granted broad authority to Washington himself). There, Washington provided yet another example of what can be called our good fortune (or what Washington might have referred to as Providence's favor) in our first commander in chief. Bush should follow that example (does anyone really think he won't?), when and if Congress takes any action regarding the surveillance program.

Hopefully, someone in Congress will have the good sense to question whether it would be wise to restrain the President's ad hoc approach by explicitly asserting the applicability of the FISA requirements to the surveillance program, or to sanction the program by carving out an exception to FISA, thereby asserting Congress' power over the subject matter (whether or not the President's action is supported), or if the better course would be to leave FISA alone, defer any assertion of its applicability, while using the oversight process to ensure that the program is used in a manner acceptable to responsible members from both parties. This is probably exactly what was happening until the leak, Rockefeller's silliness notwithstanding.
12.30.2005 2:21pm
minnie:
bojess, that is the most fascinating post about "stateless actors". That's the first time I have seen that point introduced. If present day terrorists are in fact "stateless actors" according to the Constitution, then the "War on Terrorism", which is likely to last forever, would not have to be viewed as a War at all, with all the attendant surrender of personal liberties that some feel War entails, and your analysis would be the definitive solution to the whole Executive v. Legislative v. monaracy current dilemma. You write:

"Defense of our country from stateless actors was expressly covered by the framers. Wisely, the framers gave both the Congress and Executive a role in the defense of our country in the case of stateless actors and treasonous Americans. The point is merely that the Constitution gives the Congress the primary role of setting policy. The president's duty is to execute that policy -- not make-up his own laws after telling 4 congressmen."

Why isn't everyone discussing this? Evelyn?
12.30.2005 2:23pm
Just an Observer:
Andrew: "You seem to be saying that the AUMF and other statutes give Bush less authority than Roosevelt had, with respect to surveillance."

I am saying this: What plainly gave the President less authority was FISA. Prior to the passage of FISA, Congress had deferred to the executive in this area. But in passing FISA, Congress chose to legislate directly. That legislation included specific and prescriptive language covering what would happen to its provisions in the event that war was declared.

If FISA had been the law of the land in 1941, Roosevelt would have been bound by it.

Do you assert the opposite in such a hypothetical?
12.30.2005 2:25pm
Andrew Hyman (mail) (www):
Oops, last paragraph of my 2:10 PM comment should have been directed to "Armando" instead of "Medi." Sorry. So much stuff going on....
12.30.2005 2:25pm
George Gregg (mail):
Unnamed,

Yes, and I tend to agree with Medis' arguments on this. In fact, his points just above (at 2:16) is what I've also been saying for the past couple of hours. And which have yet to be effctively refuted, as far as I can see.
12.30.2005 2:27pm
Medis:
Andrew,

Ah, but look at the noun in that sentence ... Hamilton says it is the LEGISLATURE which gets to define the rules by which the rights of citizens are to be regulated. And yet here you have the PRESIDENT claiming the right to define those rules, despite what appears to be a clear Act of Congress on that very same subject (the USA-PATRIOT Act).

So, this would not just be a case of a court having to ask whether it should defer to the legislature. Rather, this would be a case where the court has to ask whether and how the legislature has spoken. And so the court's duty to allow the LEGISLATURE to make these rules does not mean they should defer to the PRESIDENT'S claim that he has wide authority to make his own rules--a claim he is making despite the existence of a much more specific Act of Congress on the very same subject subsequent to the 2001 AUMF.
12.30.2005 2:28pm
Just an Observer:
Me: "But it is worth noting that the administration's official defense of its position -- in the DOJ letter and from the White House podium -- has never addressed 1811 at all."

Jack John: "That's because post-Hamdi, it does not matter."

Let me requote what O'Connor's opinion in Hamdi said about the issue:


In so holding, we necessarily reject the Government's assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances. Indeed, the position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens. Youngstown Sheet &Tube, 343 U. S., at 587. 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.


Hamdi was not a precedent for unilateral license by the executive branch to ignore laws passed by Congress.
12.30.2005 2:33pm
George Gregg (mail):
Absolutely, minnie.

Folks, bojess is dropping science on perhaps the most innovative take on this I've yet heard. I'm hoping some of the high-power legal minds in this thread can engage on his points.
12.30.2005 2:36pm
Medis:
bojess,

Let me just echo the others who are applauding your contributions to these discussions. Although I think Article I in general makes it clear that Congress has legislative power over military action in the broad sense, it is always helpful to focus on specific provisions where possible. So, locating this issue more precisely within the scope of the "offenses against the laws of nation" clause really seems helpful.
12.30.2005 2:36pm
Medis:
So teasing this out a bit:

The initial relevant clause would be, "To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations." It seems important to note that this congressional power extends not just to defining such offenses, but also to punishing them.

So, one immediate thing to note is that this clause does not contemplate that Congress would simply identify dangerous stateless actors and then authorize the President to take whatever actions he sees fit. Rather, Congress also has the power to make laws with respect to the "punishment" phase--what we will actually do to go after these stateless bad actors.
12.30.2005 2:44pm
Jack John (mail):
JaO:

Your quote only proves my point. O'Connor is responding to the question: how much should the Courts defer:


In so holding, we necessarily reject the Government's assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances.



O'Connor is not saying that the Executive should not have greater say than Congress, which is the issue we are discussing here. As to the role of Congress, all O'Connor notes is that there is "a role for all three branches when individual liberties are at stake." No one is arguing that Congress has or should have no role whatsoever in this process, so citing O'Connor in this debate is pointless.
12.30.2005 2:50pm
Jack John (mail):

the court's duty to allow the LEGISLATURE to make these rules does not mean they should defer to the PRESIDENT'S claim that he has wide authority to make his own rules--



Except that is a cheap and self-serving description. Here you have SCOTUS precedent that already determined what the legislature did (in Hamdi). That determination is binding. The President has a constitutional duty to abide by that SCOTUS determination. Since you are relying on Hamdi's dissent for your argument, the problem is that you disagree with the President's adherence to Hamdi.

But a President who follows SCOTUS precedent is not making up his own rules in defiance of Congress.
12.30.2005 2:54pm
Jack John (mail):

I am saying this: What plainly gave the President less authority was FISA.



If FISA limits the President's Article II powers then FISA is unconstitutional.
12.30.2005 2:56pm
Jack John (mail):

Accordingly, it is quite clear that the Constitution did not place the regulation of the conduct of war--even aspects of war going on outside the United States, and even issues involving what we could do to our foreign enemies--outside the scope of congressional power.



Except the Federalist Papers clearly note that the President has executive power to manage diplomatic affairs, espionage, state secrets, and ad hoc agreements with heads of state. Intelligence gathering is both an incident to war AND the President has independent Executive authority to collect intel. Some of it is out of reach of Congress. Read ALL the FP. In-co-her-ent.
12.30.2005 3:02pm
Medis:
Jack John,

If Article I authorizes Congress to pass FISA, would it still be unconstitutional in your view?
12.30.2005 3:03pm
Unnamed Co-Conspirator:
Ok, bojess, so we're not at war. And, yes, let's treat AQ as pirates and any Americans who provide aid and comfort to them as traitors. Let's make sure that while we're refusing to treat our efforts to eradicate AQ as a "war," we don't fall back to the default position of "if it's not war, it must be crime."

There were reasons for abandoning the criminal justice model of fighting terrorists. I'll assume that you're not advocating a return to that model. So, AQ members don't get the benefit of the protections we provide to those suspected of ordinary crimes (ordinary crimes being those not directed at restoring the Caliphate or otherwise bringing about the end of Western civilization as we know it).

The problem of course is that long ago we forgot how to addressing the problem of piracy (understandable, since we thought we had run out of pirates); we now treat it as though it were just another crime.

Another problem with your assertion that we're not at "war" because AQ isn't a nation state is that until we decided that this was indeed a war, AQ did obtain support from nation-states. In a time when it's possible for a "pirate" to destroy an entire city, it is utterly irresponsible to persist in the fiction that the sort of piracy we call terrorism doesn't hold the destructive possibilities of a war. From the viewpoint of the terrorists and, more particularly, from their nation-state sponsors, it is war, only it's war made without leaving a return address for a Trident missile. President Bush's declaration of war on terror has all kinds of problems, including the ones you mentioned (when is it over? for example -- that one is a good argument for Congressional involvement in policies such as the one at issue here), but it does have the effect of discouraging nation-states from conducting war against us through what were once considered "deniable" terrorist agents.

But if you solve that problem -- if you can make the distinction between piracy and crime, and improve on our present policy without returning us to our pre 9/11 approach of defending our society with one hand tied, then by all means, I'll join what I imagine to be many others here in recommending to Congress bojess' Constitutionally Correct solution to the war on terror.
12.30.2005 3:05pm
Jack John (mail):

If Article I authorizes Congress to pass FISA, would it still be unconstitutional in your view?



You must not have read my latest post. To the extent that some intelligence gathering during war is outside of the reach of Article I, it would be unconstitutional in those cases.
12.30.2005 3:07pm
Jack John (mail):
Or not during war.
12.30.2005 3:09pm
John Lederer (mail):
I think you will find that "offenses against the law of nations" meant three general categories of offenses at the time of the Constitution: (1) violation of safe conduct or passports(in their original sense) (2) violation of ambassadors and (3) piracy.

Arguably, at a later point in time slave trafficing could be added to that.

Note that extending the power to "define and punish" offenses against the law of nations is a very dangerous power if Congress is free to define most anything as violating the law of nations. Congress has the power to define and punish, exclusive of the courts and the criminal justice system and its rights..

So instead of the pirates swinging from the yardarm, we could have the editors of the NY Times swinging for intemperate language regarding Congress.
12.30.2005 3:13pm
Unnamed Co-Conspirator:
John, we can think of better reasons than that to string up the editors of the NYTimes. Or at least to cancel our subscriptions.
12.30.2005 3:22pm
Medis:
Unnamed,

I agree with you on the big picture. The threat posed by terrorist groups like Al Qaeda fits neither into the war paradigm nor the ordinary crime paradigm. And so Congress should be exercising its Article I powers to define a new legal framework tailor-built to deal with terrorism. Indeed, by its own name the USA-PATRIOT Act was a first step in that process, and while I may not agree with all the details in that Act, the very idea that Congress would start working this project is one I support.

And that is really what bothers me the most about the current issue: when the President is making his own rules and bypassing Congress, then we are no longer operating under the rule of law as envisioned by the Constitution. And ultimately, leaving lawmaking to Congress and the execution of the laws to the President has served us quite well, and I am very reluctant to abandon that approach.

Jack John,

What defines the reach of the relevant provisions in Article I?
12.30.2005 3:23pm
Just an Observer:
Jack John: "O'Connor is not saying that the Executive should not have greater say than Congress, which is the issue we are discussing here."

O'Connor is saying that it is a shared authority. She cites Youngstown, in which Justice Jackson famously laid the framework for weighing the positions of the President and Congress.

Your way of dealing with the Youngstown scenario is to make the blanket assertion that "If FISA limits the President's Article II powers then FISA is unconstitutional." (That argument successfully upheld by the courts is what Jackson declared to be the only way the executive can prevail in a Category 3 case.)

The problem for the administration on that point is twofold:

1) Bush has not had the political temerity to make the same explicit assertion you have, although some of his Article II arguments would seem logically to require such a statement.

2) If that issue ever did get to court, SCOTUS likely would reject it decisively.
12.30.2005 3:24pm
Medis:
John L.,

I don't see why crimes against the laws of nation as defined by Congress would be outside the jurisdiction of the federal courts. Indeed, those would just be federal laws squarely inside Article III jurisdiction.

Justice Story's analysis in Smith also seems to address your NYT concern. As he analyzes it, this clause basically applies to nonstate actors who are external enemies of the United States. So, despite the occasional loose assertion to the contrary, I don't think the editors of the NYT would count as such external enemies.
12.30.2005 3:32pm
Jack John (mail):
JaO:
Ok. You think it's unlikely to prevail in a Category 3 situation, I disagree. But I'm not just making a Category 3 argument. (But your characterization of my argument in that respect is fair; I would quibble only by noting that sharing does not mean perfect equality. I can share by giving you 10% and keeping 90%.)

Medis,
"What defines the reach of the relevant provisions in Article I?"
1. This is the wrong analysis, because it seems to preume that the legislature is omnicompetent in the absence of explicit prohibition. That contradicts the idea of limited enumerated powers constraining the legislature, the fact that the President has a veto, the First Amendment singling out Congress as a potential oppressor of free speech, the fact that amendment to the Constitution requires a burdensome Article V procedure that garners the explicit consent of the States, and the Ninth and Tenth Amendments, which limit the carve out of power from the States to the federal government and permit states to grant greater benefits than those conferred by the federal government.
2. Notwithstanding point 1, it is rather obvious that Congress cannot steal away purely Executive powers, e.g., legislative vetoes are invalid, because the Eexcutive power is vested purely in the Executive. The Executive could delegate that power away, e.g., to an agency over which it has some indirect check, but there is no argument that the Executive has done that by signing FISA into law. (Hence the "every Executive since Carter has claimed FISA does not overrule the President's inherent authority" arguments, e.g., Clinton official John Schmidt in the Chicago Tribune.) It is simply a fact that the Executive has some core powers that are beyond the limited enumerated powers of Article I, e.g., state secrets, managing diplomacy, entering into executive ad hoc agreements with other heads of state, etc. Intel gathering is included in this, that has been the understanding since the Founding and was the background understanding in Tenet v. Doe. It just isn't a controversial argument.
3. The way you phrase the question "What defines the reach of the relevant provisions in Article I?" opens it to broader attack as well. Sovereign immunity can define the reach of Article I. See Seminole Tribe. So there certainly is no presumption in favor of Congress having absolute power in the face of exclusively executive authority, e.g., deciding to enter into an ad hoc executive agreement instead of signing a treaty (both of which have equal binding-ness) or deciding to send spies to a particular region of unrest.

In short, sometimes Article I can regulate the Executive and sometimes it can't.
12.30.2005 3:48pm
Jack John (mail):
But I would stress that in the cases under discussion, the reach of Article I is irrelevant, because these are cases in which Article I simply does not apply.
12.30.2005 3:52pm
Jack John (mail):
Let me be clearer: a case where Article I CANNOT apply is different from a case where Article I could have applied but Congress was silent or disagreed with the President.
12.30.2005 3:57pm
Kazinski:
Bojess takes a pass at making a sematic and historical arguement that we can't be at war with Al Qaeda. That makes for an interesting discussion until a court rules on the matter and that has happened. The Supreme Court was very clear in Hamdi, that we are at war with Al Qaeda, and that Al Qaeda is a foreign power.

Besides if you look at the facts about Al Qaeda in Afghanistan, they exercised a level of power that made them a co-regieme. They controlled territory, had armies, collected taxes, and made law, either independently or in conjuction with the Taliban. The fact that we recognized neither the Taliban or Al Qaeda doesn't detract from that reality.
12.30.2005 4:00pm
Medis:
Jack John,

So how do you identify the times when Article I can regulate the Executive and the times when it can't? And how do you identify the cases where Article I does apply, and the cases where it simply does not apply?
12.30.2005 4:03pm
Tom Holsinger (mail):
George,

My underlying point is that disputes involving Presidential war powers issues are rarely resolved in a tidy legal fashion - instead that usually happens through a messy political process. Which is something the attorneys posting on this legal board tend to miss - a "can't see the forest for the trees" issue.

They're lawyers and there is case authority in Youngstown on a legal challenges to a President's extravagent war powers claim, so by gum that's how to resolve the current war powers dispute. "If your only tool is a hammer, every problem looks like a nail."

Note how no one else in this discussion picked up on David Hecht's point about the War Powers Act:
"... every President--Democratic and Republican--who has held the office since its passage has asserted that the WPA does not bind him, though many have complied with its reporting requirements nevertheless."

President Clinton openly ignored the War Powers Act during his intervention in Kosovo, but there were no meaningful challenges to this and the WPA is effectively dead.

IMO the same will happen to FISA's 15-day rule - President Bush is ignoring it, there will be no meaningful challenges to it, and it will henceforth be ignored.

THAT is how such disputes are generally resolved. Fussing by attorneys means nothing. The same happened with President Lincoln's alleged unConstitutional exercises of power during the Civil War, and with President Franklin Roosevelt's more Constitutionally sinister acts in 1940-41.

John Yoo makes somewhat the same point in the war powers chapter of his recent book, The Powers of War and Peace.
12.30.2005 4:05pm
Andrew Hyman (mail) (www):
JaO:

You:

If FISA had been the law of the land in 1941, Roosevelt would have been bound by it. Do you assert the opposite in such a hypothetical?


It may depend on what part of 1941 you're talking about.
12.30.2005 4:06pm
davidgmills (mail):
Bojess: When you first pointed out above the Constutional provisions regarding piracy and Laws of nations I had the same thought. I have always thought there to be a valid distinction between a war involving two nations and a hostility betweeen a nation state and a group or consortium not aligned with a nation. In this manner, our war on terror is no different than our war on drugs. Arguably the drug lords who export their products here have killed more Americans than al Qeada.

Every time I hear the terms war on terror and war on drugs, it infuriates me becasue the implications are that this is a war in the same sense that nation states have wars.

Where your piracy approach gets us, I am not quite sure, but I think all arguments about the powers of the President as Commander in Chief must address it first.

What I also do not agree with is that notion this is a sepration of powers issue between Congress and the Executive. It clearly is a separation of powers issue but foremost in my mind is the attempt by the executive to encroach upon the judiciary.

Ultimately, the fourth amendment must be invovled in the analysis. There is one word of the fourth that is constantly overlooked. The word unreasonable. The fourth prevents unreasonable searches and seizures. Presumably, searches with warrants are reasonable. Searches with probable cause as to the commission of a crime (committted or about to be committed) are reasonable. Now by extention, searches against foreign powers and their agents are reasonable (FISA). (Does the piracy issue mean that searches against non-state alligned powers are not reasonable? Don't know, just asking for the moment).

On one website was positied the question of whether the President would be able without a warrant to use surveillance upon a building where nuclear weapons were housed. The answer appears to be yes because reasonable men would likely not conclude that under the circumstances the search was unreasonable.

So that is the clear case about when the President might be able to use surveillance without a warrant. But what about the case that is not clear? Who gets to decide what is reasonable? Since Marbury, the Supreme Court, not Congress, not the executive, and I would like to keep it that way.
12.30.2005 4:06pm
Kazinski:
JAO:
Jackson's Youngstown Category 3 might be a good debating point or intellectual exercise but it doesn't enter in any legal debate. It is not law, and it is not precedent. If any standard should be followed it is from Black's majority opinion in Youngstown which did set the legal standard. As quoted by Rehnquist in DAMES &MOORE v. REGAN
:


"[t]he President's power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself."
12.30.2005 4:10pm
Jack John (mail):

Jack John,

So how do you identify the times when Article I can regulate the Executive and the times when it can't? And how do you identify the cases where Article I does apply, and the cases where it simply does not apply?



1. The President "shall take Care that the Laws be faithfully executed".
2. This gets back to my point about you forcing unreasonable burdens on your opponents. I don't have to limn every possible hypothetical or counterfactual scenario under which the President can rightly assert exclusive authority under separation of powers and Article II. I can certainly make the case with regard to intelligence gathering for urgent or grave national security purposes. I don't have to identify a far-reaching principle that explains away every conceivable case. Indeed, the burden would be on the plaintiff (you) to show that there is no conceivable legitimate basis for the government act, if and only if you could first get into court.
3. There are many underenforced or underdetermined clauses of the Constitution that either will or will not be properly enforced or respected by Congress or the President. Such clauses have little or a hard to fully limn operating principle because failure of a politician to adhere to her constitutional duty is usually not actionable in court (because generalized greivances fall outside of Article III "cases or controversies") and so the court has not spoken defintively or squarely on the issue -- and never will. You cannot get into court, so the only remedy is political: vote that person out of office.

You don't like how Bush executes the law? Vote for someone unlike Bush next time around.
12.30.2005 4:16pm
Just an Observer:
Andrew: "It may depend on what part of 1941 you're talking about."

Sorry I wasn't clear. I was talking about a hypothetical in which FISA was the law of the land before the declarations of war.

I believe Roosevelt would have been bound by the requirements of FISA before and after passage the declarations, which would have triggered the provisions of Section 1811 and automatically allowed warrantless surveillance for 15 days. After that, without additional legislative authority amending FISA, he would have been subject to the law's requirements to obtain FISC court approval for such surveillance.

What do you think?
12.30.2005 4:18pm
Medis:
davidgmills,

I think part of what is so interesting about this case is that people seem to be defending not just the President's power to conduct electronic surveillance, because of course he actually has that power under FISA. Rather, they seem to be defending the notion that he should be able to exercise that power without any sort of "interference" (or without this power being "curtailed", or "limited", or various other words to similar effect).

I'm actually still not sure what they really mean by that. Is it "interference" whenever the President wants to do something, and some law or court contradicts his will? In other words, are there any restrictions on the activities of the President that would not count as "interference"?
12.30.2005 4:19pm
davidgmills (mail):
Kazinski:

Is al Qaeda a nation-state now since it has no country? Unless Hamdi addressed the piracy issue head on, I would have to conclude, that it's holding was at most dicta. But in any event, al Qaeda no longer exists with respect to a particular state, if it ever did.
12.30.2005 4:19pm
Jack John (mail):
I would stress here that The Take Care clause is not just a shibboleth to excuse Executive power, the President has top-flight legal minds at his disposal: at OLC, at DOJ, etc.
12.30.2005 4:21pm
Jack John (mail):

Is it "interference" whenever the President wants to do something, and some law or court contradicts his will? In other words, are there any restrictions on the activities of the President that would not count as "interference"?



This is such a straw-man. I hope no one responds to it.
12.30.2005 4:22pm
Medis:
Kaz,

Of course, Rhenquist's majority opinion in Dames &Moore specifically discusses Jackson's concurrence. I think anyone discussing these issues has to consider Jackson's analytic framework at least as it was incorporated in Dames &Moore.
12.30.2005 4:27pm
Jack John (mail):
Jackson's analytic framework


Again: a case where Article I CANNOT apply is different from a case where Article I could have applied but Congress was silent or disagreed with the President.
12.30.2005 4:29pm
Just an Observer:
JAO: "Jackson's Youngstown Category 3 might be a good debating point or intellectual exercise but it doesn't enter in any legal debate."

I will continue to follow Jackson's guidance in my analysis, especially since the DOJ letter of Dec. 22 cited it -- albeit in the context of a more rosy Category 1 scenario.

Chief Justice Roberts quoted from Jackson's guidance in his confirmation hearings.

Justice O'Connor's citation to Youngstown in Hamdi, although it didn't mention Jackson's framework directly, did say: "We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens. ... 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."

Within this thread, Professor Kerr cited Youngstown in this spirit. Even A.S., who generally has argued in favor of Bush's position, says Jackson's framework is controlling in this matter.

So it seems to be you who is outside the mainstream of analysis. I'll stick with Justice Jackson.
12.30.2005 4:36pm
Just an Observer:
Oops. That last post was supposed to be addressed to Kaz. Sorry.
12.30.2005 4:37pm
Jack John (mail):
JaO:

Category 3 is a category of Executive-Legislative "interaction". It does not describe cases in which the Legislature and the Executive cannot interact, e.g., giving the President a line-item veto.
12.30.2005 4:39pm
bojess (mail):
UNNAMED Co-Conspirator--

My post about Al Qaeda being stateless actors akin to pirates is to make three points, none of which should commend to Al Qaeda the protections of the Bill of Rights.

First, use of a "foreign-powers" paradigm or "war" paradigm [in the law-of-nations sense described by Justice Story in US v. Smith] ease the administration's claims of authority that, in a hot war against a nation-state, may be more readily acceptable precisely because history has taught that wars against nation-states come to a definitive end -- and usually in just a few years.

But there is no definitive end on the 50-year horizon for the "war on terror," as presently presented to the American people by this administration or as understood by the American people regardless of what this adminstration says.

So my problem with these paradigms are not only that they're not supported by the Constitution's terms, as understood in 1789, but for that reason these paradigms raise the limiting-principle problem on an the "inherent powers in war-time" argument that many on this blog have recognized.

Second, my reliance on the law-of-nations clause is intended to highlight the essential role of Congress in this endeavor and to cabin the administration's argument that it has inherent, uncheckable authority precisely because this is a "war" against a "foreign power." It is neither, as no nation-state opposes us (at this moment, anyway).

Finally, and to address the concern about a law-enforcement paradigm being substituted, let me say two things.

One, my invocation of the law-of-nations clause points, historically, to what the framers and early Presidents no doubt understood wwere "necessary and appropriate" means for combating stateless actors threating and committing hostilities against the US and its citizens in violation of the law of nations.

For example, in 1805, President Jefferson sent the Marines to North Africa to fight and defeat the Barbary pirates. (Hence, the Marine Hymn's first line, " . . . to the shores of Tripoli . . . .") No "war" occurred, necessitating the president to invoke "inherent" authority. He used reasonable force to eradicate what Story says the law recognized as "enemies of mankind, and, consequently, persons whose acts of violence are manifestly unjust, which authorizes all nations to treat them as enemies."

Two, should a nation-state, as the Taliban did through the machinery of official Afghanistan, provide the means and state-sanctioned support for Al Qaeda, or any other organized group, then we no longer are dealing with self-defense as Justice Story describes it in US v. Smith. We would instead be in a "public war" against a foreign power -- the paradigm being used now by the administration -- which is something squarely within the Constitution's framework as well.

I don't claim to have this figured out. I'm just looking for a way to talk about presidential action over the next 50 years that does not inch us into a world in which the executive branch can effectively suspend, expressly or secretly and through clever arguments, the role of Congress and the Courts.
12.30.2005 4:41pm
Jack John (mail):
Oh, well, JaO, I replied, anyway, even though it didn't seem directed toward or particularly relevant to my argument, since we already established a baseline of partial agreement. Good thing I was nice.
12.30.2005 4:41pm
Medis:
Jack John,

I'm actually just hoping that the people who make such claims can clarify what they have in mind.
12.30.2005 4:41pm
Jack John (mail):

I'm just looking for a way to talk about presidential action over the next 50 years that does not inch us into a world in which the executive branch can effectively suspend, expressly or secretly and through clever arguments, the role of Congress and the Courts.



It's called The Presidential Election!
12.30.2005 4:42pm
Jack John (mail):

I'm actually just hoping that the people who make such claims can clarify what they have in mind.



My argument is clear. It is not omniscient. It need not be.
12.30.2005 4:44pm
Andrew Hyman (mail) (www):
Medis, the term "data-mining" is coming up with increasing frequency. In other words, NSA's computers would listen to every tidbit of communication going in and out of the United States, looking for particular keywords, or particular senders. Once there's a "hit" then maybe a human being would get involved. If NSA were to acknowledge that a warrant is required at each step of this process, that would be admitting that the "probable cause" standard in the Fourth Amendment is applicable. It would also require that mountains of paperwork be filled out. These seem to be the primary practical reasons for wanting to avoid the warrant requirement, which most people (e.g. Professor Kerr) agree is not required by the 4th Amendment. But if a warrant is required by statute, then the 4th Amendment's probable cause requirement is triggered.

Just an Observer, here again is the Declaration of War against Germany:

Resolved, ... That the state of war between the United States and the Government of Germany which has thus been thrust upon the United States is hereby formally declared; and the President is hereby authorized and directed to employ the entire naval and military forces of the United States and the resources of the Government to carry on war against the Government of Germany; and, to bring the conflict to a successful termination, all of the resources of the country are hereby pledged by the Congress of the United States.


First of all, I don't think that Congress would have been sufficiently misguided in 1941 as to prevent the President from conducting unwarranted electronic surveillance of international communications fifteen days after the declarations of war. But supposing that FISA had been in effect on December 6, 1941, it's ambiguous whether the above-quoted declaration of war would have superceded it. Certainly, the superceding effect of the AUMF is much stronger, because the AUMF explicitly exempts the War Powers Resolution from being superceded (which wouldn't make sense unless SOMETHING was indeed superceded).

Anyway, I can't tell you how much work I have to do now. I'd much rather hang out here and conspire with all of the Volokh Conspirators, but duty calls. HAPPY NEW YEAR, everyone (even Apodaca and Greedy Clerk!). :-)
12.30.2005 4:44pm
Just an Observer:
Jack John: "Category 3 is a category of Executive-Legislative "interaction". It does not describe cases in which the Legislature and the Executive cannot interact, e.g., giving the President a line-item veto"

I really don't understand what that means, or why a line-item veto is at all relevant. Could you rephrase?
12.30.2005 4:44pm
bojess (mail):
Kazinski:

The war in Afghanistan -- which involved none of uniformed ground troops except in assist in Air Support -- is OVER. We, or more correctly, the Afghans we supported won. Al Qaeda no longer has the sanction of a nation-state behind it (except for Saudi Arabia, perhaps).

So my point about "war" is hardly semantical. It is grounded in the Constitution and what the term "war" meant when the Constitution was adopted.

That said, as my subsequent post explains, none of this really makes a difference insofar as the executive employing our troops are concerned. Stateless actors who violate the law of nations -- as Al Qaeda is dedicated to do -- are fair game for bombs and bullets. Jefferson recognized as much at Tripoli.

The essential point here is what role shall Congress, and to a much smaller degree the Courts, play in this endeavor.

If you believe that Congress (and courts) should have no role until the president says the "war" is over -- whenever that is -- then I suggest to you, you are unnecessarily sacrificing our not our liberties per se. You are forfeiting the essential brilliance of the Constitution.
12.30.2005 4:54pm
Jack John (mail):
Easy.

Congress can't exceed its limited enumerated powers in Article I. Giving the President a line-item veto would do that. Because this constraint works both ways, Congress also cannot exercise a veto on legislation (veto power is an exclusively Executive Article II power). Either way, Congress cannot exceed its limited enumerated powers in Article I.

Legislative-Executive "interaction" includes only cases where Congress has not exceeded its limited enumerated powers in Article I. Jackson's framework deals with Legislative-Executive "interaction". It's not so hard to understand: the Legislature can only inter-act if it can act in the first place.
12.30.2005 4:59pm
Medis:
JaO,

It might also be worth quoting Jackson's Category 3 discussion. He writes:

"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."

So, the way Category 3 analysis works according to Jackson, the first thing you must ask is whether Congress is exercising any of its "constitutional powers . . . over the matter". If so, you then subtract that power from the President's power. But not all exercises of an enumerated power are constitutional. So, for example, in Clinton v. City of New York, the Court held the line item veto was unconstitutional.
12.30.2005 5:02pm
Jack John (mail):
While that is more or less correct, Medis, I would disagree that one is necessarily in a Category 3 case simply because Congress has acted unconstitutionally. One could argue that exempts one from the analysis altogether.

Dames &Moore v. Regan claims that the framework applies to Legislative-Executive "interaction," which renders it susceptible to Kaz's interpretation (or at least my reconstruction of it).
12.30.2005 5:08pm
Just an Observer:
Andrew: "The term "data-mining" is coming up with increasing frequency. In other words, NSA's computers would listen to every tidbit of communication going in and out of the United States, looking for particular keywords, or particular senders."

Just to be clear, if such data-mining is what has been going on, such activity itself is covered as surveillance within the definitions of FISA: "acquisition by an electronic, mechanical, or other surveillance device."

As for your War Powers argument, I have stayed out of that discussion between you and Medis, but I disagree completely with your argument. (I was relieved to see you stop tilting at that windmill, at least, and argue more forthrightly along the same lines as the Bush DOJ does. I am sorry now to see you resume that other line of reasoning, because it is going nowhere.)

But since you now resurrect that argument, here is my own response: Plainly, Congress chose to make clear that the AUMF authorization was a species of the general class of such authorizations contemplated by the War Powers Resolution. The language says what it means, and means nothing more.
12.30.2005 5:09pm
Jack John (mail):
There is also a distinction between misusing a power one has (unconstitutional) and lacking the power to act (nonconstitutional)(?).
12.30.2005 5:10pm
Tom Holsinger (mail):
Medis,

That is a two-way street. Many people, including many here, contend that warrantless surveillance of foreign commuications is illegal and/or unconsitutional. That is every bit as much an extreme position as what you decry.

The real issue is warrantless electronic surveillance of domestic to domestic communications, which is somewhat hard to directly address for many reasons, such as

(a) FISA's many statutory exceptions to the warrant requirement (whether a given resident alien's visa has expired or was obtained under false pretenses, etc.),

(b) technical issues (does it matter for warrant purposes, and should it matter, who owns or uses a given cell phone, etc.),

(c) a President's inherent Constitutional authority to perform warrantless searches of foreign resident enemies in wartime, etc., etc.

And there is the issue of error and obstructionism by the FISA judges, which evidently did not stop with 310 F.3d 717.

IMO part of the latter is caused by the adage I referred to in my response to George Gregg above, "If your only tool is a hammer, every problem looks like a nail." It is hard for judges to adjust away from the familiar principles of criminal law to new &certainly nebulous legal princples concerning foreign intelligence, especially when investigations are intended to lead to normal criminal prosecution.

We are dealing with new issues here which would be difficult to address even absent partisan behavior. There is room for disagreement, but the price of error here can be slaughter of civilians by armed enemies as or more easily than unnecessary dimunition of freedom.

IMO the nature of the investigative process here should change from warrants aka prior judicial review of search applications to "disclosure", with any judicial review taking place only if charges are later brought against an accused before a criminal or military tribunal.

A potential problem remains of remedies available to third parties from investigative abuse. There I am open to ideas.
12.30.2005 5:19pm
Klyle Henderson (mail):
Remedies. How about deportation (e.g., to seek aslyum in another nation)?
12.30.2005 5:23pm
Just an Observer:
Jack john: "While that is more or less correct, Medis, I would disagree that one is necessarily in a Category 3 case simply because Congress has acted unconstitutionally. One could argue that exempts one from the analysis altogether."

I don't think anyone is arguing that we are in a Category 3 case because Congress has acted unconstitutionally. We are in a Category 3 case because the President has taken measures "incompatible with the expressed or implied will of Congress." Congress passed FISA; he violated it.

It is you who argues that FISA's restrictions are unconstitutional. If you are right, that resolves the tension in Category 3.

The problem is how to determine if you are right, or even if anyone with more standing than the tooth fairy will make the claim. (So far, the administration stops short of making the same assertion you do.) The definitive resolution Jackson contemplated in such a case was: "Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject."

The Catch 22 in the current situation is that no one seems to see how the current controversy can ever get to court in the first place, so there is no hope for any such resolution soon. (Forgive me if I don't accept your own ruling on the constitutionality.)
12.30.2005 5:31pm
Andrew Hyman (mail) (www):
P.S. Just an Observer, I agree Congress made clear that the AUMF authorization was a species of the general class of such authorizations contemplated by the War Powers Resolution. That language is in section b1 of the AUMF. In contrast, section b2 does something else: it clarifies that, to the extent the AUMF supercedes prior statutes, such a superceding effect is not intended to alter anything in the War Powers Act.

(b) War Powers Resolution Requirements-

(1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.

(2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supercedes any requirement of the War Powers Resolution.
12.30.2005 5:32pm
Jack John (mail):

I don't think anyone is arguing that we are in a Category 3 case because Congress has acted unconstitutionally. We are in a Category 3 case because the President has taken measures "incompatible with the expressed or implied will of Congress." Congress passed FISA; he violated it.


No, you missed the whole point.

1. Let's say that some intelligence gathering (A) falls within the overlapping area of stuff regulated both by Article I and Article II and some intelligence gathering (B) falls exclusively within Article II. To the extent that FISA covers A, it is constitutional; to the extent that FISA covers B, it is not, because Congress has exceeded its limited enumerated powers in Article I.
2. The President could only violate FISA if we were talking about A. We aren't. (At least I'm not. I'm explicitly talking about B.)
3. It is categorically impossible, if we are talking about B, that the President violated FISA. As far as responding to my argument, it is simply wrong to say that "took measures incompatible with the expressed or implied will of Congress." Congress has no legally valid will -- express or implied -- with regard to B. That Russ Fiengold is personally offended is meaningless.
4. If you want to talk about A, which I was talking about before, there is no proof with regard to A that the President took measures incompatible with the expressed or implied will of Congress. We would have to look to FISA itself and other relevant legislation in light of prevailing SCOTUS precedent. Again, this gets to the "How broad is Hamdi?" argument that Andrew Hyman, Another Observer, and I have been making. (Please let's not go back over that!)
5. Jackson's framework applies in evaluating FISA in the A situation. Jackson's framework -- Category 3 or not --does not apply with regard to situation B, in light of Dames &Moore v. Regan. Just above I made a distinction that perhaps you missed: "There is ... a distinction between misusing a power one has (unconstitutional) [e.g., it conflicts with another provision of the Constitution] and lacking the power to act (nonconstitutional) [e.g., no provision of the Constitution supports your claim]".
12.30.2005 5:44pm
Jack John (mail):
JaO:

The Catch 22 in the current situation is that no one seems to see how the current controversy can ever get to court in the first place,


That is not a "Catch-22". It is a part of our conception of democratic constitutionalism. Because there is no court remedy, the remedy is political: elect a President you trust to Take Care that the law is faithfully executed.
12.30.2005 5:48pm
Just an Observer:
Andrew,

I agree that b2 also does what you say. But after reading every word you have written on this for days, I cannot see that anything in the whole section b implies anything at all about anything except how to interpret the AUMF and the War Powers Resolution together.

FISA is not implicated, nor is the tax code or any other body of law. The section is captioned "War Powers Resolution Requirements" because that is all it is about. There is nothing more to be read into it.
12.30.2005 5:50pm
Jack John (mail):
FISA is not implicated, nor is the tax code or any other body of law.





You cannot seriously equate the relevance of FISA to AUMF with the tax code to AUMF. That is a facetious, hyperbolic argument, and you know it.
12.30.2005 5:51pm
Kazinski:
Bojess: nice try. AUMF doesn't even mention Afghanistan. The war is over when the President says it is over, or possibly when Congress says it is over. Neither of those things have happened yet, or even been proposed.

JAO:
I'm not saying that the Youngstown Framework can't be part of the discussion, but it is less than dicta because it is not even in a majority opinion. Any sort of suggestion that somehow the Administration has to address the Youngstown Framework in its response is just wishful thinking. It is Black's Youngstown opinion that bears on the debate. As to Rehnquist referencing the Youngstown Framework, indeed he does but not in a manner that gives it any weight at all, and less prominently than he references Black's opinion, which is as it should be.
12.30.2005 6:15pm
Just an Observer:
"That is a facetious, hyperbolic argument, and you know it."

Yup. It is also a true statement.

Poor Andrew is also frustrated, I think. He hasn't yet learned how to bill for his blogging time. :-)
12.30.2005 6:15pm
George Gregg (mail):
Tom,

I appreciate what appears to be your interest in evaluating these issues in a way that is not strictly limited to legal realities. I'm especially sensitive to the role that history may play here. Though you may prefer to imagine that those of us who are advocating the view that FISA is not inherently unconstitutional are somehow devoid of what you feel to be the requisite historic grounding, I would tend to emphasize the history and context of the Constitution itself and the relevant laws and cases, as do most of the folks in this thread.

Not that political and historic realities aren't germane. But I somehow think that how Lincoln may have interpreted Article II of the Constituton is rather less germane than what the Supreme Court has historically said it meant (it being their Constitutional role to interpret it, after all).

Second, as a matter of simple fact, I'm not aware of any significant amount of support, in the broader discourse or in this thread in specific, for the idea that the President may not engage in warrantless wiretaps on foreign enemies (non-US-citizens) as part of his wartime powers. Indeed, I certainly don't subscribe to that view. Most of the people who are arguing against the NSA program are doing so because of the concern about US citizens having been warrantlessly wiretapped, in ostensible contradiction of a clearly worded federal law (FISA) that prohibits such behavior.

If it is your understanding that the lion's share of people who are objecting in this matter also "contend that warrantless surveillance of foreign commuications is illegal and/or unconsitutional", then your view makes much more sense. But that really isn't where I think most people are coming from.

Third, your (apparent) premise seems to be that the FISA law is just too technically complex for judges to be able to handle it and "adjust" to the quirks of the contexts in which such laws must be adjudicated, and furthermore the FISA court is prone to error and obstruction, anyway. The idea, though, is pretty facile. The FISA law is pretty clearly worded, notwithstanding some complexity. The FISA judges are top-notch judges appointed for their very competence at being able to understand the issues involved. And the FISA court itself is a separate structure in a special process formulated recognizing the particular challenge and distinctiveness of the issues involved.

So your analogy of using the hammer is flawed. The Congress, the Judiciary and the Executive have crafted and have been working in a specialized process (via FISA) to handle this specialized emergent need. They have, effectively, created a screwdriver to handle screws. The problem is that the President seems to be dissatisfied witht he screwdriver that has been thus created and wants to use his own, without review or oversight by the other two branches.

Fourth, your suggestion that "the nature of the investigative process here should change from warrants aka prior judicial review of search applications to 'disclosure'" neglects the fact that FISA expressly provides for exactly this. In a rather bold recognition of the emergent need for allowing warrants after the fact, FISA allows them to be applied for 72 hours after the surveillance is conducted.

But, all of the above notwithstanding, I commend what I think I heard you say in rejecting partisanship and being willing to consider the issue more broadly than just within rigid legal tropes. In that regard, I think bojess has hit on something with the more focused non-state aggression analysis of Section I Article 8. If there is merit to that view, it would seem that this is not a "new kind of war" at all, but simply an old one that we have forgotten how to fight.

And THAT'S a classic, historic perspective which should please historians such as yourself. :)
12.30.2005 6:22pm
George Gregg (mail):
That should be "Article I, Section 8", of course.
12.30.2005 6:27pm
Jack John (mail):
I disagree, JaO. Hamdi clearly makes AUMF relevant -- the DOJ letter refers to Hamdi. You can't assume it out of the picture.

I agree, Kaz, that Jackson's framework has less application than JaO claims in situation A. But I think Dames &Moore strongly implies it has no application to situation B. (See my "interaction" argument above.)

Ok, I am going to get drunk and [use imagination here]. I wish you all the same. Well, not together. That would be disgusting.
12.30.2005 6:30pm
davidgmills (mail):
Consider the word blackmail. Blackmail corrupts. Blackmail corrupts the legal process (how much veracity should be given to a witness who is being blackmailed?), corrupts the political process (threatening to disclose the senator's mistress), and has a chilling effect on first amendment speech (who really wants to talk frankly when they are afraid someone could be listening?).

Even if statements are innocently made, they can be harmful in their implication. And in today's world innocuous statements and videos can be digitally modified to facilitate blackmail.

I believe the founding fathers understood blackmail quite well. I also believe it is no accident that the third and fourth amendments are in succession. Having that soldier in your house, snooping, searching, getting that evidence for blackmail, having that soldier searching without a warrant just to get evidence for blackmail,... it must have been a frightening time for our forefathers.

There have been discusssions about the benefits of the acquisition of information for the purpose of criminal investigations, discussions of the benefits of the acquistion of information for foreign intelligence, but no discussion of the evils of the acquistion of information for blackmail.

What are the deterents to illegally obtained information in criminal cases: the exclusionary rule and its derivatives.

What are the deterents to obtaining information by "surveillance for national security"? None. There are no deterrents to obtaining information for blackmail under the auspices of "national security." That is why one commentator I read believed that warrants were far more necessary in national security cases than in ordinary criminal cases. I think he was right.
12.30.2005 6:39pm
Apodaca:
Tom Holsinger writes:
Many people, including many here, contend that warrantless surveillance of foreign commuications is illegal and/or unconsitutional. That is every bit as much an extreme position as what you decry.

The real issue is warrantless electronic surveillance of domestic to domestic communications[...]
By foreign communications, one assumes you mean comms between a US endpoint and a foreign endpoint. And since you raise it, I feel honor-bound to point out that you never adequately answered my respectful, germane question elsewhere about your position. For your benefit, here it is again:
Let me understand your position: You contend that nothing in the Constitution, including the Fourth Amendment, bars the government from conducting eavesdropping within the United States against any and all communications directed/addressed to a foreign destination. You contend that this applies across the board to all such communications, including those involving United States citizens here in the US. And, as a result, you contend that a citizen subjected to such eavesdropping would have no constitutional claim of entitlement to civil remedies (under Bivens), and that the recordings (and any evidence derived from them) could -- consistent with the Constitution -- be used as evidence to criminally prosecute that US citizen.

Have I got that right?
Your last response was an opaque statement that yes, this is your position as to "electronic communications" (whatever that means). So I'll ask again: please explain what definition you're using for that quoted phrase, lest any of us misunderstand your position.
12.30.2005 7:02pm
bojess (mail):
Kaz:

Here's what you said:

"nice try. AUMF doesn't even mention Afghanistan. The war is over when the President says it is over, or possibly when Congress says it is over. Neither of those things have happened yet, or even been proposed."

Here's what what Hamdi says at 542 US 507, 521 (2004):

"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."

Hamdi refused to address the govt's "inherent war powers" argument. 542 US at 517.

But Hamdi was all about a "war" paradigm -- and rightly so.

And Hamdi is important because the Court understands that, under a "war" paradigm, when "active combat" is over, so is the "war". And so was the president's authority to detain Hamdi.

That said, you're really missing my point.

The AUMF empowers the president to use force against stateless actors. It is, in essence, Congress's legislative response to Al Qaeda's violation of the law of nations.

But the AUMF -- as Hamdi construed it -- tied the president's actions against specific individuals to both (1) "active combat operations" in a particular theater of war, and (2) that individual's connection to that theater of war.

So outside an active war theater where American troops are in combat, Hamdi gives no blanket grant of unlimited power to the president to ignore Congress.

Instead, Hamdi ties "war" as in "war power" to an active combat theater.

America is no such theater, at least under Hamdi's analysis.

So, according to Hamdi, the "foreign powers" or "war" paradigm that the Administration is using to spy on treasonous Americans does not apply here.

Hamdi supports exactly what I've said. What works constitutionally, as far as fighting stateless actors in the U.S. is concerned, is what Congress has authorized.
12.30.2005 7:02pm
Jack John (mail):
Blackmail must be in the enamanations of the penumbras of the 3rd, 4th, and 5th Amendments.
12.30.2005 7:21pm
Jack John (mail):
Right next to abortion!
12.30.2005 7:21pm
Jack John (mail):
Now I really must go.
12.30.2005 7:21pm
davidgmills (mail):
The 1820 Piracy statute can be found

here

"...[I]f any person shall, upon the high seas, or in any open roadstead, or in any haven, basin, or bay, or in any river where the sea ebbs and flows, commit the crime of robbery, in or upon any ship or vessel, or upon any of the ship's company of any ship or vessel, or the lading thereof, such person shall be adjudged a pirate: and, being thereof convicted before the circuit court of the United States for the district into which he shall be brought, or in which he shall be found, shall suffer death.

Nothing like "enemy combatant." Actually got a trial in the US Courts. Didn't see Guantanamo mentioned anywhere.
12.30.2005 7:23pm
bojess (mail):
davidgmills:

try looking at the the law of nations on piracy around 1800 -- when the Constitution was adopted and the law of nations incorporated into Art. I, Sec. 8. And check Sec. 9 of The Crimes Act of 1790.

the point, which i maybe you're getting or maybe you're missing, is the law of nations addresses stateless combatants -- i.e., individuals acting without authorization of or in the name of any nation.

Sound familiar?
12.30.2005 7:30pm
davidgmills (mail):
Law review article on the 1789 Alien Tort Crime Act and the Law of nations:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=666146
12.30.2005 7:48pm
davidgmills (mail):
Tort Claims not Tort Crimes. I'm a personal injury lawyer -- how did I mess that up?

Article appears to be an abstract but says that law of nations is a precursor to international law.
12.30.2005 7:55pm
Apodaca:
Jack John says:
Blackmail must be in the enamanations of the penumbras of the 3rd, 4th, and 5th Amendments.
I think it ill behooves certain people -- specifically, those who contend that the AUMF supersedes FISA absent even the most gossamer reference thereto -- to wax sardonic about emanations and penumbras.
12.30.2005 7:58pm
Noah Klein (mail):
I wanted to thank DS and others that have posted that the "inherent authority" the president has over the U.S.'s land and naval forces does not prevent Congress from limiting those branches from doing things.

Why can't homosexuals serve in the U.S. military? Because Congress wrote the Uniform Code of Military Justice, which makes homosexuality a crime for a person in the military. Even though President Clinton wanted to decriminalize homosexuals in the military, he could not because Congress would not let him. This fact demonstrates that the president does not have absolute authority over the military and all other forces used to defend this country.

Congress was granted several powers when it comes to war-making authority and foreign policy. In the area of war-making, Article I grants Congress the authority "to provide for the common Defence," "to define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations," "to declare war, grant Letters of marque and Reprisal, and make Rules concerning Captures on Land and Water;" "to raise and support Armies," "to provide and maintain a Navy;" "To make...Regulation of the land and naval forces" and various other powers concerning the militias of the U.S.

All of these powers have been used several times throughout the history of the U.S. to limit the president's authority to use Forces in the United States. Congress in the beginning of our history used to stand down the military to a couple hundred or a couple thousand people after wars. Also they wrote all rules governing how the military would operate. In 1878, Congress passed and the president signed the Posse Commitatus Act which established that the U.S. military could not be used within the United States. And it was Congress that wrote and passed the National Security Act of 1947 that created the Defense Department and the various intelligence agencies and the rules under which they operate. And Congress has to continually reauthorize these agencies.

Why would Congress have all the authority to pass all those laws and yet not the FISA law?

P.S. Professor Robert Turner stated during his argument in the Wall Street Journal that Congress' constitutional authority to "grant Letters of marque and Reprisal" was outlawed by a Treaty in 1856. If this specific constitutional authority was outlawed by a treaty, than why couldn't an unwritten authority to conduct intelligence in whatever manner a president desires be outlawed by a law of Congress?
12.30.2005 8:42pm
George Gregg (mail):
Noah,

Posse Comitatus does raise a very interesting point. As you say, that's a case of Congress clearly limiting the way the President may conduct himself as C-in-C.

If Posse Comitatus is a circumscription of Executive war power that is clearly within the constitutional powers of Congress, how in the world could FISA then be considered unconstitutional?
12.30.2005 8:57pm
subpatre (mail):
Good grief! The Posse Comitatus is a restriction on using the armed services for civilian law enforcement duties inside the US. It has no effect on military operations in war, so it doesn't even approach a "circumscription of Executive war power"
12.30.2005 9:47pm
davidgmills (mail):
The Law of Nations is a five book treatise written by a Swiss Legal Philospher, Emmerich de Vattel, in 1758 a copy of which you can find here:

http://www.constitution.org/vattel/vattel.htm

It was heavily relied upon by the founders.

Each book is divided into sections, most of which number 2-300.

The case Bojess mentioned, United States v. Smith, in 1819, was a case where the defendant was charged with piracy under the Crimes act of 1790. The Crimes Act of 1790 defined piracy as it was understood in the Law of Nations. Unfortunately, I could find no definition of piracy there, and in fact neither could the dissenting justice, who thought that crimes out to be defined, especially a capital crime.

Perhaps that is why the Piracy act of 1820, the following year, defined the crime.

But the Law of Nations does have some interesting things to say about war between soverign nations and what it terms as private wars and who it defines as enemies.

In Book 111, the Book governing War, are the following interesting sections:

§ 2. Public war.(136)
Public war is that which takes place between nations or sovereigns, and which is carried on in the name of the public power, and by its order. This is the war we are here to consider: — private war, or that which is carried on between private individuals, belongs to the law of nature properly so called.

§ 27. What war is unjust.
The immediate consequence of the premises is, that if a nation takes up arms when she has received no injury, nor is threatened with any, she undertakes an unjust war. Those alone, to whom an injury is done or intended, have a right to make war.

§ 69. Who is an enemy.(147)
THE enemy is he with whom a nation is at open war. The Latins had a particular term (Hostis) to denote a public enemy, and distinguished him from a private enemy (Inimicus). Our language affords but one word for these two classes of persons, who ought, nevertheless to be carefully distinguished. A private enemy is one who seeks to hurt us, and takes pleasure in the evil that befalls us. A public enemy forms claims against us, or rejects ours, and maintains his real or pretended rights by force of arms. The former is never innocent; he fosters rancour and hatred in his heart. It is possible that the public enemy may be free from such odious sentiments, that he does not wish us ill, and only seeks to maintain his rights. This observation is necessary in order to regulate the dispositions of our heart towards a public enemy.

§ 179. Spies.
The employment of spies is a kind of clandestine practice or deceit in war. These find means to insinuate themselves among the enemy, in order to discover the state of his affairs, to pry into his designs, and then give intelligence to their employer. Spies are generally condemned to capital punishment, and with great justice, since we have scarcely any other means of guarding against the mischief they may do us (§ 155). For this reason, a man of honour, who is unwilling to expose himself to an ignominious death from the hand of a common executioner, ever declines serving as a spy; and, moreover, he looks upon the office as unworthy of him, because it cannot be performed without some degree of treachery The sovereign, therefore, has no right to require such a service of his subjects, unless, perhaps, in some singular case, and that of the highest importance. It remains for him to hold out the temptation of a reward, as an inducement to mercenary souls to engage in the business. If those whom he employs make a voluntary tender of their services, or if they be neither subject to, nor in any wise connected with the enemy, he may unquestionably take advantage of their exertions, without any violation of justice or honour. But is it lawful, is it honourable, to solicit the enemy's subjects to act as spies and betray him? To this question the following section will furnish an answer.

§ 183. An unjust war gives no right whatever.
HE who is engaged in war derives all his right from the justice of his cause. The unjust adversary who attacks or threatens him, — who withholds what belongs to him, — in a word, who does him an injury, — lays him under the necessity of defending himself, or of doing himself justice, by force of arms; he authorizes him in all the acts of hostility necessary for obtaining complete satisfaction. Whoever therefore takes up arms without a lawful cause, can absolutely have no right whatever: every act of hostility that he commits is an act of injustice.
12.30.2005 10:12pm
Noah Klein (mail):
Posse Commitatus may be a limitation of the President's power to use the Armed Forces for "law enforcement" as you say. Yet, it still limits the president's power to use the military as he sees fit. Thus it consistutes a limitation on his authority as commander-in-chief, which was all I was trying to demonstrate.
12.30.2005 10:14pm
Tom Holsinger (mail):
George,

IMO it is a legal reality to realize when a dispute is going nowhere. IMO there is no dispute over the 15-day rule. The Executive and Legislative branches are both ignoring the 15-day rule, so the Judicial branch will too. That is what happened to the lawsuits filed by individual Congressmen and Senators over President Clinton's flouting of the War Powers Act - they were found to present a "non-justiceable controversy".

If I'm right, Professor Kerr's major question in opening this thread - "What is the best case for the view that Congress cannot limit monitoring to 15 days?" is effectively of academic interest only.

But he had secondary questions about warrantless searches in the national security aka foreign intelligence field in general, and I am definitely interested in discussing that for domestic searches.

Attacks on electronic surveillance of foreign communications are flat out laughable. NONE of the people doing so have at all considered the applicability of foreign law here, or the intelligence agreements we have with foreign governments.

Foreign commmunications - those to and from the U.S. - have two ends, here and in some foreign country. 50 USC 1801(f) requires a "reasonable expectation of privacy" for there to be any warrant requirement, so it is necessary to consider the law of the foreign countries involved, not ours alone, in determining whether there is a privacy expectation.

And there isn't. Foreign governments can SECRETLY monitor phone calls and email to their countries from other countries. I am not aware of ANY foreign country whose government is subject to any check whatever on secret monitoring of phone and email traffic involving other countries. Some have laws creating, for purposes of 50 USC 1801(f), reasonable expectations of privacy for phone calls which take place entirely within their national boundaries, but none have any restrictions on monitoring of foreign (for them) communications.

Furthermore foreign governments can grant other governments the right to monitor the same communications, and many have. With us. The United States government has intelligence agreements with lots and lots of countries which expressly allow the U.S. government to monitor all their foreign communications, and in many instances their domestic traffic as well.

The neat thing about 50 USC 1801(f) is that it defines "electronic surveillance" as only that surveillance of communications in which there is a reasonable expectation of privacy (provided the surveillance takes place outside the U.S., which is almost always the case). If there is no privacy expectation, listening to 'em is NOT "electronic surveillance" and so not at all subject to FISA.

FISA has a great big built-in loophole for foreign communications - those between the U.S. and other countries. It does not in any way limit the government from monitoring those communications. It does not apply at all to foreign communications.

Those here who continue to contend that FISA applies to foreign communications are wasting their time, and ours.

Phone calls and emails which originate and terminate in the U.S. are domestic communications and so subject to FISA's warrant requirement for surveillance, albeit with many exceptions.

I didn't say FISA was too complex for judges to handle. I said both that they don't wanna and that it is easier for them to apply the procedures they know. If they wanted to do the work necessary to develop all the new procedures to make FISA work the way it was intended, they could, but they don't want to.

This is without considering FISA's structural problems. IMO it can't be made to work the way it was intended even if the judges do develop the requisite procedures. The structural problems are rooted in the speed requirements of war against terrorist conspiracies originating mostly at home, as opposed to espionage conspiracies coordinated from abroad, and technological advances over the past 30 years.

IMO the FISA court problem originated with Judge Lambreth's dreadful experience in the BIA trust fund litigation making him hypersensitive to the chaos, confusion and confusion of war expressed in the FISA documents submitted to him by DOJ.

Which is where you err concerning the 72 hour ex post facto rule. It is just not possible for DOJ to put warrant applications together that fast capable of withstanding the nit-picking scrutiny Lambreth and the other FISA judges use. They just don't understand that this is war, not criminal justice.

The Judicial branch's core mission involves deliberation. Deliberation is incompatible with the speed requirements of war.

Which is why IMO the Judicial branch should be only minimally involved concerning domestic surveillance. It should have power to act concerning surveillance only when charges are brought against individuals. But something like a FISA court - an independent body charged with monitoring the Executive branch's domestic surveillance, and issuing periodic secret reports to Congress - should be notified of all surveillance and the results while those are occurring.

I personally favor way more than that, but this is not the place to discuss those proposals.

Apodaca,

I was unaware of the statutory definition of "electronic communications" in FISA. I focused on the definition of "electronic surveillance" in 50 USC 1801(f).

IMO the privacy expectation requirement in section 1801(f) together with foreign law as I understand it utterly negate any and all civil liability under Blivens for electronic surveillance of any sort of electronic communication to or from a foreign country, and that evidence gathered thereby can probably be used in criminal prosecution. I say "probably" on the latter because it depends on the law of the foreign country involved and the terms of its intelligence agreements, if any, with us.

When a foreign government delegates its own authority to monitor electronic communications originating or terminating within its jurisdiction to the U.S. govt., the U.S. govt. acts as an agent of the foreign power in gathering that information and the Fourth Amendment does not apply to the search. It is not a FISA search for reasons mentioned above.

Information obtained by third parties in a fashion which would be unlawful when done by the government is admissible. When the U.S. govt. acts as the agent of a foreign power in gathering information inside the geographic jurisdiction of the foreign power, it is as admissible in a criminal proceeding in this country as if the foreign government had gathered it.
12.30.2005 10:19pm
Pierre Legrand (mail) (www):
Certainly out of my depth in these discussions of the law but in reading this post to get some idea of the issues involved I found this post breathtaking.


Unnamed Co-Conspirator, We are a nation of laws and the Constitution spells out explicitly what must happen for the United States of America to be legally at war. Congress has not done so, therefore we are not at war.


Someone forgot to tell those who are intent on murdering us by the thousands that we are not at war yet. Apparently the terrorists are not operating under the same constraints as we are. Oh well I guess the Constitution really is a suicide pact.
12.30.2005 10:30pm
davidgmills (mail):
Tom: The major problem with your analysis is that you conclude we are in a war. Phoey. I say this is no war. You war hawks want to turn every little skirmish into a war. I'm surprised that Timothy McVeigh was not a war for you guys. Killing 3000 people doesn't make something a war either, otherwise we would declare war on the auto manufactuers. Automobiles kill more people in the US every month than were killed on 9/11.

The Law of Nations clearly distinguished between wars against soverigns and wars against private entities and declared the latter not to be a true war. Our war with al Qaeda is like the latter just like our war on drugs. I am not willing to give up my fourth amendment rights for private wars. If you are, let them tap your phones.
12.30.2005 10:52pm
George Gregg (mail):
subpatre,

Yes, that was an unfortunately imprecise use of terminology on my part - I retract that phrasing.

It's perhaps the result of what appears to be a generalized conflation between war powers and law enforcement powers which this whole issue seems to be suffering from, though.

Basically, in Posse Comitatus, Congress has specifically circumscribed how the President may (not) use his military when US citizens are concerned. If that is constitutional, then how could FISA be considered unconstitutional because it circumscribes ?

And it's not just Posse Comitatus, but a wide variety of other examples, as Noah mentioned, illustrate that Congress has this kind of authority. So I think he's raised a question worth considering in the context of whether FISA is a constitutional law.
12.30.2005 11:03pm
Just an Observer:
Tom Holsinger,

I don't know enough to say for sure, but I think you may have identified a huge loophole in "reasonable expectation of privacy" and its interplay with foreign governments. I hope this is an area that the Senate Judiciary Committee will explore in its hearings.

Even if the situation you describe turns out to be more marginal, the administration surely would exploit it to at least the legal limits.
12.30.2005 11:25pm
Noah Klein (mail):
Tom: You bring up a very good point about the wiretaps due to the fact that they are between the U.S. and foreigners. Yet I think that the "reasonable expectation of privacy" standard means a reasonable expectation of privacy from the government. The fact that governments, companies or private individuals do or can tap phones does not mean that it is unreasonable that a person should reasonably expect privacy from their own government tapping their phone. Furthermore, FISA in the section concerning electronic surveilance states that regardless of other laws the procedure laid out in FISA is the controlling law.
12.30.2005 11:44pm
minnie:
bojess, your follow up posts are equally fascinating, as noted by Medis and GG, etc. Unfortunately they been met mostly with sardonic, sarcastic irrelevant comments -"Oh well I guess the Constitution really is a suicide pact" or "It's called The Presidential Election!"-and your powerful, illuminative insights gets lost ....

Hopefully, your idea will find better soil on another blog which is not so weighed down by this tedious back and forth that goes nowhere...

JunkYardLawDog points out that different times may elicit different solutions, although he reaches, imo, the wrong conclusion.

Thus far in our nation's history, there has been the concept that there are two different states of being for our nation: wartime and peacetime.

We now have a different situation: they are one. What those who feel we are now "at war" call "war" is not going to end in any of our lifetimes, if ever.

A new question presents itself: how do we deal with life in a society where there is no longer any difference between wartime and peacetime? What personal liberties are we willing to give up knowing that, once gone, they are not coming back?

That is what bojess, medis, GG, Elaine and others try to address in their thinking.

Hopefully, when they have time, Eugene and Orin will address bojess's point.
12.30.2005 11:48pm
subpatre (mail):
George - I think you're on a wild-goose chase. Can Congress pass laws that effect the President's action? Sure, I'm not aware of any argument to the contrary.

The issue has been Executive war power. If the US is invaded, Maryland devastated, and then retaken by US forces; does Posse Commitatus still hold? In a war zone without civilian authority, you're claiming the Army can't detain or arrest looters, robbers, or rapists?

Note that I don't hold with unlimited Executive, and agree that Congress can circumscribe other Powers. I don't believe it's a black-or-white situation, there's a variable balance --certainly with Posse Commitatus-- that depends on circumstance.


davidgmills writes..."Phoey. I say this is no war."

Nobody cares. Congress believes they Constitutionaly declared war, the President thinks so, and at least 7 Supreme Court Justices think so.

Not War: You
War: Entire US Government.
Hmmmmm...
12.30.2005 11:49pm
Noah Klein (mail):
In reading the comments from many people, I think that they miss the point when it comes to classified material. Classified material is not allowed to be discussed with any person who does not have the same classification status. Thus when Congressional Democrats and Republicans were informed of the NSA program, they could not discuss with their colleagues, even those colleagues on the intelligence committees. Therefore, the intelligence committees could not conduct oversight or restrict this activity, because not everybody in the committee was allowed to know about the program, which is essential to conduct oversight.
12.31.2005 12:11am
Tom Holsinger (mail):
Observer,

FISA was IMO intentionally written so as to not interfere with the NSA's on-going surveillance of foreign communications. At least some of these intelligence agreements existed at that time.

Noah,

This is my day job. The legal "reasonable man" standard is objective, not subjective. Ignorance of the law is no excuse. A reasonable expectation of privacy presumes knowledge of all pertinent laws. It doesn't matter that most Americans think the Constitution protects them overseas, and that they need only shout louder in English to make foreigners understand them.

Among the concepts here is that the law presumes,

(a) reasonable men know when they don't know the law, and

(b) reasonable men try to learn the law they don't know if it is pertinent to what they are doing, and

(c) reasonable men don't presume that foreign law is just like American law when they know they are ignorant of foreign law.

I realize this is contrary to everything you learned in school. That's why it's the law.
12.31.2005 12:33am
Pierre Owner Bouncer Pink Flamingo Bar & Grill (www):
It is fascinating watching the Mandarins of Law discuss the meaning of the law. For instance this post is illuminating on so many different levels.
Tom: The major problem with your analysis is that you conclude we are in a war. Phoey. I say this is no war. You war hawks want to turn every little skirmish into a war. I'm surprised that Timothy McVeigh was not a war for you guys. Killing 3000 people doesn't make something a war either, otherwise we would declare war on the auto manufactuers. Automobiles kill more people in the US every month than were killed on 9/11.

An enemy who has managed to do what no other has done in our history is compared to a car accident. Whew. I would have never made it in Law School..not able to see such comparisons. Perhaps I am confused, but didn't the enemy manage to attack us in the center of our largest city, dropping two of the tallest buildings in the world on national tv, murdering nearly 2,800 people in less than two hours. As lagniappe didn't we get to watch fellow citizens, those we promised to protect as they promised to protect us, jumping to their deaths in flames? Car accident? Didn't those same "reckless drivers" attack the center of our National Military headquarters, summoning out a Cabinet Member of the most powerful nation on earth and head of said military to do triage? Car accident? Wow no doubt I would not have done well in Law School.
The Law of Nations clearly distinguished between wars against soverigns and wars against private entities and declared the latter not to be a true war. Our war with al Qaeda is like the latter just like our war on drugs. I am not willing to give up my fourth amendment rights for private wars. If you are, let them tap your phones.

Private wars? You sure? No state involvement? You probably discount that same enemy's threats to kill millions? After all so far whats happened are not even up to the standards of car accidents.
12.31.2005 12:38am
George Gregg (mail):
subpatre,

I guess when we have a war such that suspending Posse Comitatus might make sense, then suspending FISA and any number of other laws would probably make sense, too. Are we there yet? Because, you know, I'm wondering if I should set out extra place settings and blankets for the troops that are going to be quartered in my home in the name of "national security".

Rather than continuing to hack my way through this jungle with what is, I confess, becoming a rather dull machete with the approach of dawn, I'll simply offer this article as a compelling insight into the "Nixonian" approach to war powers that are being argued.

Thank you all for a very stimulating discussion and I bid you all good night (morning)!
12.31.2005 12:39am
davidgmills (mail):
Pierre:

Let me guess. You probably believed Iraq had WMD. So you will no doube believe that al Queda will has it too.
12.31.2005 12:54am
subpatre (mail):
Noah - That's ridiculous. Rule 9 covers classified material. It disallows disclosure of testimony, witness names, the contents of papers or materials, except "as authorized by the Committee in accordance with section 8 of S. Res. 400 of the 94th Congress"

There is no prohibition of discussing that there's incomplete or troublesome oversight, that a program's legality is dubious, or that privacy issues are being compromised.

Nor is there any bar on discussion with other Committee members : "9.6. No member of the Committee or of the Committee staff shall disclose.... to any person not a member of the Committee or the Committee staff..."

Further, the Senate approved changes on October 9, 2004. "....we believed the Committee should make more frequent reports to the Senate. Therefore, we amended S. Res. 400 to require quarterly reports to the Senate."

Just what was Rockefeller reporting --to his fellow Congressmen-- quarterly over the last year if he had "profound concerns" about oversight?
12.31.2005 12:57am
davidgmills (mail):
Pierre: you want to bellittle traffic deaths? Here are the US traffic deaths for the last eleven years going backwards from 2004:

42,636, 42,884, 43,005, 42,196, 41,945, 41,717, 41,501, 42,013, 42,065, 41,817, 40,716

http://www-fars.nhtsa.dot.gov/main.cfm
12.31.2005 1:04am
subpatre (mail):
Something's being missed in all this, or more properly, somebody's ignoring a lot.

Anybody that would parse the sources (NYT article and followup) the way they've studied FISA and related statutes would see:
- No allegations of warrantless domestic surveillance.
- Major shift in American intelligence-gathering practices
- Concern "surveillance has stretched, if not crossed, constitutional limits on legal searches"

The queer thing is the NY Times' sources are intimately familiar with FISA, yet the sources --intelligence officials who deal with FISA-- never allege FISA violations; just 4th Amendment questions.
12.31.2005 1:40am
bp (mail):
This has been an incredible read (that I have not yet finished). Thank you all for posting.

I am not a lawyer, but it seems to me that the rub is that a communication that is being surveilled involves 2 people. I think most people would agree that the president has power to warrantlessly surveil the alleged Al Qaeda member (probably as a battlefield combatant, or some such), just as he could kill him as commander in chief. The question is if he is communicating with a domestic individual, then is this violating the citizen's civil rights? To me this seems akin to having a warrant against the Mob Boss and the individual who speaks to him is inadvertantly surveilled also, whether he is an actual accomplice or a pizza delivery person. There was no warrant for that person, he was surveilled as collateral damage, as it were. So, getting back to the alleged Al Qaeda terrorist. Is the whole FISA argument about whether congress can regulate that surveillance and if it can regulate it can it also regulate the ability to shoot at or certainly kill alleged foreign terrorists? I am not trying to be facetious, but I am trying to understand the legal arguments in a general context. Thank you, for your enlightenment
12.31.2005 1:52am
Lester Dent (mail):
I realize it is arcane, but by dwelling upon the CIC powers, we are overlooking the Executive power as conceptualized by the Founders.

Hamilton and Jefferson reached the same end through different means in discussion how the President would handle emergencies. Both recognized that the President would need to take extra-legal actions to defend the people of the US and discharge their duties in times of emergency.

Jefferson saw such actions as violative of the Constitution, and felt that the President should, after the fact, present his arguments to the people and gain approval. Hamilton saw this as placing the President in the position of being a "constitutional criminal" even if later exonerated. He viewed the "presidential prerogative" in more expansive terms (more Blackstonian than Lockian, in my view). But Hamilton understood that the President must be free to act in ways that could not be anticipated. I don't have the exact quotes at my fingertips as I write this, but off the top of my head you can read Federalist 23, 26, 79, and "The Farmer Refuted", as well as the transcript of the debate of the NY ratification convention in 1788.

Hamilton was also against the Jeffersonian approach because he felt it would lead to judicial restraints upon future executives in unforseen exigencies.

Sometimes we get so caught up in the judicial limitations of constitutional authority that we forget what the original intent was.

LD
12.31.2005 1:57am
sgpi11 (mail):
so let me get this straight. If we were invaded by members of an Islamic army, and they were here on our sovereign soil, the President COULDN'T, by statute, nor by the powers granted to him as CIC, intercept their elecronic communications, if those communications were to citizens of this country? How absurd is that? Come on folks, get a little common sense, get over your Bush-hatred, and give the man credit.
12.31.2005 2:06am
Noah Klein (mail):
Tom: You obviously proved me wrong as to the fact that a reasonable man should not expect privacy in a call, because foreign governments may be listening. Yet you did not answer my charge as to the fact that FISA states clearly that it is the controlling law on the issue of wiretaps on U.S. persons.

subparte: To end any further discussion of whether a Chairperson or Vice-Chairperson is authorized to discuss an issue with the rest of their committee, let me cite the relevant portion of the National Security Act. Title V Section 503, subsection (c) (2) clearly states "if the president determines that it is essential to limit access to the finding [this is a finding that a covert action is necessary] to meet the extraordinary circumstances affecting vital interests of the United States, the finding may be reported to the chairmen and the ranking minority members of the intelligence committees, the Speaker and minority leader of the House of Representatives, the majority and minority leader of the Senate, and such other member or members of the congressional leadership as may be included by the President."

Thus the president can make a finding that it is necessary to limit access to information and inform those which law describes or those that he feels he should include, but this information can not go any further to other members of the committee, otherwise this provision of the law would not be needed.

Furthermore, subparte I have not conducted an ad hominem attack on any other person's argument and I do not think it is necessary to do so to me. If I am wrong prove me wrong, but don't conduct specious attacks.
12.31.2005 2:40am
davidgmills (mail):
sgpi11

The fourth amendment prohibits unreasonable searches and as I have said already there may be situations where it is reasonable to search without a warrant. Information that there is a nuclear bomb housed in a bulding would probably be viewed as a reasonable search under the circumstances.

If foreign troops are on our soil, there are no doubt instances where a search might be deemed reasonable under the circumstances by all reasonable men.

Neither of these situations are our facts.

I want the judiciary determining what is reasonable in most cases, because I think the cases where reasonable men could not differ about reasonableness are few.
12.31.2005 3:30am
Evelyn Blaine:
Noah Klein:

The statute you cited - 50 USC 413B (c) (2) - merely refers to the question of the president's freedom to choose to inform only certain Congressmen. It does not impose any restriction on those to whom whom the Congressmen may subsequently convey that information; in any case, if it did, such a restriction, as applied to other Congressmen or aides, would be unconstitutional under the speech and debate clause.
12.31.2005 5:23am
Apodaca:
Tom Holsinger writes:
FISA has a great big built-in loophole for foreign communications - those between the U.S. and other countries. It does not in any way limit the government from monitoring those communications. It does not apply at all to foreign communications.

Those here who continue to contend that FISA applies to foreign communications are wasting their time, and ours.
Let's break this down. You argue that a) there's no reasonable expectation of privacy (REP) in US-foreign comms, and therefore b) FISA by its own terms is thus inapplicable to US-foreign comms.

I'll dispatch the second of these claims -- the statutory one. You have claimed repeatedly that FISA applies only to comms for which there's an underlying constitutional REP. Unfortunately, FISA clearly is not so limited. Here's the annotated text of section 1801(f):
“Electronic surveillance” means—
(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;
(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, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511 (2)(i) of title 18;
(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or
(4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.
Notice that subparagraphs 1, 3, and 4 require an REP -- but subparagraph 2 has no such requirement. In other words, by its own terms FISA applies to certain communications even if there is no REP. Even assuming arguendo your debatable constitutional claim -- US-foreign comms enjoy no REP -- this doesn't mean FISA is inapplicable.

(In the interests of saving time, I'll note that the carve-out in (f)(2) for computer trespassers does exclude one subset of comms as to which there's no REP. See 18 USC 2510(21)(A). This doesn't prove that all non-REP comms are excluded from the scope of FISA section 1801(f)(2) -- quite the contrary. So please don't bother offering that as a rebuttal.)

Further to the applicability of FISA to US-foreign comms: why does FISA's central definition say this?
“Wire communication” means any communication while it is being carried by a wire, cable, or other like connection furnished or operated by any person engaged as a common carrier in providing or operating such facilities for the transmission of interstate or foreign communications.
If US-to-overseas comms aren't covered by FISA, what's that "or foreign" doing there? Is it your position that it's mere surplusage? (Paging Andrew Hyman...).

And while you have the text of 1801(f) in front of you, note also that one category of "electronic surveillance" (1801(f)(3)) applies to radio comms for which "both the sender and all intended recipients are located within the United States." By contrast, non-radio ("wire") comms "to or from a person in the United States" fall within FISA's coverage (per 1801(f)(2)). Would you agree that the difference in the definitions is meanignful here? If not, why not?

This post is quite long enough already, so I'll leave your second claim -- that US-overseas comms enjoy no REP -- for another day. In the meantime, Happy New Year.
12.31.2005 8:32am
davidgmills (mail):
More interesting sections from Book III of the Law of Nations:

§ 51. Declaration of war.
....As it is possible that the present fear of our arms may make an impression on the mind of our adversary, and induce him to do us justice, — we owe this further regard to humanity, and especially to the lives and peace of the subjects, to declare to that unjust nation, or its chief, that we are at length going to have recourse to the last remedy, and make use of open force, for the purpose of bringing him to reason. This is called declaring war. All this is included in the Roman manner of proceeding, regulated in their fecial law. They first sent the chief of the feciales, or heralds, called pater patratus, to demand satisfaction of the nation who had offended them; and if, within the space of thirty-three days, that nation did not return a satisfactory answer, the herald called the gods to be witnesses of the injustice, and came away, saying that the Romans would consider what measures they should adopt.

§ 57. Defensive war requires no declarations.
He who is attacked and only wages defensive war, needs not to make any hostile declaration, — the state of warfare being sufficiently ascertained by the enemy's declaration, or open hostilities. In modern times, however, the sovereign who is attacked, seldom omits to declare war in his turn, whether from an idea of dignity, or for the direction of his subjects.

§ 114. Searching
We cannot prevent the conveyance of contraband goods, without searching neutral vessels that we meet at sea: we have therefore a right to search them. Some powerful nations have indeed, at different times, refused to submit to this search. "After the peace of Vervins, Queen Elizabeth, continuing the war against Spain, requested permission of the king of France to cause all French ships bound for Spain to be searched, in order to discover whether they secretly carried any military stores to that country: but this was refused, as an injury to trade, and a favourable occasion for pillage."5 At present a neutral ship refusing to be searched, would from that proceeding alone be condemned as a lawful prize.(154) But, to avoid inconveniences, oppression, and every other abuse, the manner of the search is settled in the treaties of navigation and commerce. It is the established custom at present to give full credit to the certificates, bills of lading, &c., produced by the master of the ship, unless any fraud appear in them, or there be good reasons for suspecting it.(155)

§ 115. Enemy's property on
If we find an enemy's effects on board a neutral ship, we seize them by the rights of war: (156) but we are naturally bound to pay the freight to the master of the vessel, who is not to suffer by such seizure.6(157)

§ 140. Limits of this right.
But the very manner in which the right to kill our enemies is proved, points out the limits of that right. On an enemy's submitting and laying down his arms, we cannot with justice take away his life. Thus, in a battle, quarter is to be given to those who lay down their arms; and, in a siege, a garrison offering to capitulate are never to be refused their lives. The humanity with which most nations in Europe carry on their wars at present cannot be too much commended. If, sometimes, in the heat of action, the soldier refuses to give quarter, it is always contrary to the inclination of the officers, who eagerly interpose to save the lives of such enemies as have laid down their arms.1

§ 144. Fugitives and deserters.
Fugitives and deserters, found by the victor among his enemies, are guilty of a crime against him; and he has undoubtedly a right to put them to death. But they are not properly considered as enemies: they are rather perfidious citizens traitors to their country; and their enlistment with the enemy cannot obliterate that character, or exempt them from the punishment they have deserved. At present, however, desertion being unhappily too common, the number of the delinquents renders it in some measure necessary to show clemency; and, in capitulations, it is usual to indulge the evacuating garrison with a certain number of covered wagons, in which they save the deserters.

§ 149. A prisoner of war not to be put to death.
As soon as your enemy has laid down his arms and surrendered his person, you have no longer any right over his life (§ 140), unless he should give you such right by some new attempt, or had before committed against you a crime deserving death (§ 141). It was therefore a dreadful error of antiquity, a most unjust and savage claim, to assume a right of putting prisoners of war to death, and even by the hand of the executioner. More just and humane principles, however, have long since been adopted. Charles I., king of Naples, having defeated and taken prisoner Conradin, his competitor, caused him to be publicly beheaded at Naples, together with Frederic of Austria, his fellow-prisoner. This barbarity raised a universal horror; and Peter III., king of Arragon, reproached Charles with it as a detestable crime, and till then unheard of among Christian princes.15 The case, however, was that of a dangerous rival, who contended with him for the throne. But supposing even the claims of that rival were unjust, Charles might have kept him in prison till he had renounced them, and given security for his future behaviour.

§ 150. How prisoners of war are to be treated.
Prisoners may be secured; and for this purpose they may be put into confinement, and even fettered, if there be reason to apprehend that they will rise on their captors, or make their escape. But they are not to be treated harshly, unless personally guilty of some crime against him who has them in his power. In this case, he is at liberty to punish them: otherwise, he should remember that they are men, and unfortunate.16
12.31.2005 9:22am
subpatre (mail):
Noah - Whatever you think's ad hominem I apologize for.

It's beyond belief that people are advancing the argument that Senators, charged with oversight of intelligence and reporting on that to the Senate, can't exersize oversight or report their concerns to the Senate. It's like a grown-up version of "I can tell you but I'd have to kill you".

The most cursory glance of Committee Rules shows a person has to severely misrepresent them to arrive at the conclusion that Rockefeller was prevented from speaking about his concerns to the Senate.

Disclosing the contents or details of classified meetings or material isn't allowed; but it's the Committee members' duty to report oversight concerns and progress to their fellows.

Certainly the Church Committee, part its work which led to Rockefeller's committee, released a lot of classified information; directly against Presidential advice, and without sanctions or punishments.

Rockefeller had a duty to tell the Senate of his concerns. Either they weren't serious enough for him to do so, or he did and the Senate did not act.
12.31.2005 9:44am
subpatre (mail):
Apodaca - You're not reading the statute as it's written.
"Drawing instruments" means--
(1)Pencils of wood and graphite ;
(2)Pens with ink ;
(3)Crayons of wax ; OR
(4)Chalk .
Your argument is that all drawing instruments must use ink.
12.31.2005 10:04am
Polaris (mail):
Apodoca,

Sorry but you and most of the others here are incorrect and Tom is correct. I can say that having actually worked at NSA.

Let's break down 1801 (f) section 2.

(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, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511 (2)(i) of title 18;


I have bolded the relevant text here.

Section two only applies if the intercepts:

1. Happen to designated US persons (which is a narrow category under NSA regs).

2. Occured in US Territory.

Without going into details which are (very) classified, suffice it to say that virtually no intercepts are made in US Territory which renders section 2 moot. That means that the other sections apply, and a reasonable expectation of privacy must exist....and it does not for international communications.

What's more, NSA Personelle act under treaty agreements with other nations and act as agents of said nation (with regard to surveillance) which renders FISA moot.

You might not like it (and I am not thrilled which is one reason I no longer work for the NSA), but under the strictest letter of the regulation and law what Bush is doing IS LEGAL. FISA doesn't apply to international communication regardless of what the stated intent of FISA was. What's more it never has. I can attest to that from personal experience.

-Polaris
12.31.2005 10:37am
anonymouslawyer (mail):
Professor Kerr, I don't necessarily disagree with your conclusion as a normative matter, but I think it is highly debatable as a descriptive matter.

If this issue ever were to be litigated, the courts most certainly will have to attempt to divine the meaning of the FISA Court of Review's dictum and, as to that question, I find your analysis somewhat unsatisfying. The most natural reading of the court's dictum is that it means what it says, that "the President does have that authority [to conduct warrantless to obtain foreign intelligence information] and, assuming that is so, FISA could not encroach on the President's constitutional power." In re Sealed Case, 310 F.3d 717, 742 (FISCR 2002). As you note, this can't mean that Congress could not impose a warrant requirement where a warrant would not required under the Fourth Amendment; that would reverse the role of the Fourth Amendment and make little sense. I also don't think it can be read to suggest that, if FISA were repealed, the President's constitutional power from pre-FISA days would still exist, as such a reading would render meaningless the statement that "FISA could not encroach on the President's constitutional power."

That said, you make a very good point that, if the court was indeed suggesting that the President's inherent authority under Article II could trump the FISA, it would be "news justifying more than 9 words of dicta." But criticisms of the courts for not adequately explaining their decisions are nearly as old as the Republic. Indeed, scholars of the legal process school strongly critiqued the Warren Court on this ground for years, as perhaps best exemplified by the Forewords written by Henry Hart and Philip Kurland in the Harvard Law Review in 1959 and 1964. But that didn't mean that the lower courts did not have to follow the Court's decisions.

Nor does the fact that the statement was merely dictum mean that it isn't worthy of serious consideration. Even dicta is worthy of respect by the lower courts and, here, where there is no definitive statement by the Supreme Court on the subject, every federal court will be obligated to give weight to this language, inasmuch as it was rendered by the court of appeals with specialized jurisdiction in this area.

Once again, I am not saying here that the FISA Court of Review's dictum was right on the Article II question, or that, if the court was indeed advancing the notion that FISA could not trump the President's constitutional authority, it should have explained that analysis in far greater detail. I do think, however, that given that the court's dictum does appear to support the President's position, your conclusion that the Article II question is not a close one "based on existing law" — which I take to be a descriptive rather than normative claim — is questionable.
12.31.2005 10:39am
Apodaca:
Subpatre, try again. FISA has four separate categories of what constitutes "electronic surveillance." One of them clearly does not require that the US person on one end have a reasonable expectation of privacy. The statute thus applies even in some cases -- not all cases, but plainly a non-zero set of cases -- where an REP is lacking.

Holsinger claims that FISA applies only to communications subject to an REP. He is wrong, and your inapt analogy to crayons and ink does nothing to rehabilitate him.
12.31.2005 10:56am
Polaris (mail):
Apodaca,

Sorry, but 1801(f) section 2 is moot because it only applies to intercepts done in US territory and that is meaningless in today's telecommunications environment. That's particularly true since almost all of NSA's work is done outside the US.

This is from someone that worked for NSA.

-Polaris
12.31.2005 11:06am
Apodaca:
Polaris writes:
Without going into details which are (very) classified, suffice it to say that virtually no intercepts are made in US Territory which renders section 2 moot. That means that the other sections apply, and a reasonable expectation of privacy must exist....and it does not for international communications.
I think you missed the point. I don't contend that FISA applies outside the US; plainly it does not, and I've remarked on it in prior VC comment threads.

No, the point under discussion is this: Tom Holsinger insists that such collections inside the US of foreign-bound comms are not covered by FISA. He is mistaken, and you don't advance his cause by insisting that the NSA doesn't collect inside the US. That's irrelevant to Tom's categorical legal claim.

Just answer this question: Does FISA apply to the collection of US-to-foreign wire comms if the collection is performed inside the US? Your comment suggests that you believe so, which means that you disagree with Tom Holsinger.
12.31.2005 11:11am
Polaris (mail):
Apodoca,

No. I agree with Tom entirely. Further as a fact of the matter FISA does not apply to International Communications. That's because in a modern telecommunications environment, it is dead easy to ensure that all intercepts are technically done outside the US.

That makes Section 2 of FISA moot and since no REP applies to international communications, FISA doesn't apply.

In addition, what's the big story here? It's the fact that the Bush administration authorized NSA to go after international communications vis a vis AQ even if the originator was inside the US. As long as NSA intercepted outside the US which is almost always the case, then it doesn't matter.

The point is that with modern technology and TK systems (which I really can't go into), FISA is a dead letter....and has been for decades.

-Polaris
12.31.2005 11:16am
Apodaca:
Tom Holsinger said:
FISA has a great big built-in loophole for foreign communications - those between the U.S. and other countries. It does not in any way limit the government from monitoring those communications. It does not apply at all to foreign communications.

Those here who continue to contend that FISA applies to foreign communications are wasting their time, and ours.
Polaris said:
Sorry, but 1801(f) section 2 is moot because it only applies to intercepts done in US territory
In other words, Polaris, you agree that section 2 imposes restrictions in cases where Tom Holsinger insists that it doesn't. Thank you.
12.31.2005 11:17am
Polaris (mail):
Apodoca,

No. I am saying that 1801 (f) Section 2 is moot and that makes Tom's position completely correct.

Don't fish for agreement when there isn't any.

-Polaris
12.31.2005 11:20am
Polaris (mail):
Everyone,

Let me explain why 1801 (f) Section 2 is moot. Even in the heart of CONUS (say Kansas for example), it is extremely easy with the right (and very classified) systems to actually gather my intell from outside US borders even though the personelle and such are in the US, i.e. the actual "tap" is outside the US border. Furthermore with the net (and there is a SCI net), you can controll monitering that is occuring outside the US from inside the US.

Result: The distinction between inside and outside the US is meaningless and so section 2 is moot.

-Polaris
12.31.2005 11:27am
Just an Observer:
Apodaca: "Notice that subparagraphs 1, 3, and 4 require an REP -- but subparagraph 2 has no such requirement."

Just playing devil's advocate, I note that subparagraph 2 does have an additional condition - "if such acquisition occurs in the United States."

So that exception to the REP requirement would still seem to obtain if the intercept occurs outside the United States. It might be possible, as Tom suggests, to employ devices installed abroad with the cooperation of friendly host governments. (But if the intercept occurred here, such as at a U.S.-located communications switch, it would seem to be covered by FISA.)

My own perspective on the general question of such technical loopholes is not quite the same as Tom's, although I commend him for bringing these details to our attention. Tom seems confident that the situtation he describes definitely lets the Bush administration off the hook legally. I remain skeptical, but open, on this general proposition. (Notably, the Bush administration has not made any such argument publicly; that could be for reasons of misinformation.)

Since we know little about the technical details of the intercepts, this is hard for us to evaluate.

What seems interesting to me at a higher level of analysis is that the NSA program is, perhaps, marginally or arguably legal. The question is, who is deciding the legality, under what process and with what checks and balances?

The overall stance of the Bush administration in the whole set of legal issues related to the war on terror has been to take an agressive position at the edge of the law. We can see that for ourselves in several cases, and such an attitude was illustrated in yesterday's Washington Post:


Gen. Michael V. Hayden, deputy director of national intelligence, has described the administration's philosophy in public and private meetings, including a session with human rights groups.

"We're going to live on the edge," Hayden told the groups, according to notes taken by Human Rights Watch and confirmed by Hayden's office. "My spikes will have chalk on them. . . . We're pretty aggressive within the law. As a professional, I'm troubled if I'm not using the full authority allowed by law."


What is disconcerting is that, by nature of the secrecy and the assertion of unilateral executive power, there seems to be little meaningful oversight, and certainly little opportunity for a traditional adverserial check on such aggressive tactics. If Gen. Hayden has chalk on his spikes, where are the referees?
12.31.2005 11:34am
Polaris (mail):
Just an Observer,

I can tell you that it definately take the Bush administration off the hook legally. The reason you haven't heard the argument is that a FULL explaination requires a TS/SCI (TK) clearence. I have come about as close as I could to explaining it without breaking the law myself. Suffice it to say that all the major switches for modern telecommunications for international calls are NOT (technically) in the US. That's what makes 1801 (f) 2 a dead letter.

-Polaris
12.31.2005 11:40am
davidgmills (mail):
If anyone still cares, (Bojess are you still around? ) I finally found how the Law of Nations addresses piracy and wars by soverign nations against persons or organizations who engage in warfare not part of the military of a soverign nation. Alberto Gonzales might consider these sections quaint, but in some respects they support the administration's arguments. Under the Law of Nations, the punishment for any warfare by an individual who was not part of a soverign military, was death. So today that punsihment may well be either death or life imprisonment.

The constitutional problem though for the administration is that it is Congress who has the right to define and punish for offenses under the law of Nations, not the executive. Article 1 Section 8. Congress, under the Piracy laws also guaranteed that the question of whether one was a pirate was a question for the courts.

But here are the pertinent sections:

§ 67. It is to be distinguished from informal and unlawful war.
Legitimate and formal warfare must be carefully distinguished from those illegitimate and informal wars, or rather predatory expeditions, undertaken either without lawful authority or without apparent cause, as likewise without the usual formalities, and solely with a view to plunder. Grotius relates several instances of the latter.5 Such were the enterprises of the grandes compagnies which had assembled in France during the wars with the English, — armies of banditti, who ranged about Europe, purely for spoil and plunder: such were the cruises of the buccaneers, without commission, and in time of peace; and such in general are the depredations of pirates. To the same class belong almost all the expeditions of the Barbary corsairs: though authorized by a sovereign, they are undertaken without any apparent cause, and from no other motive than the lust of plunder. These two species of war, I say, — the lawful and the illegitimate, — are to be carefully distinguished, as the effects and the rights arising from each are very different.

§ 68. Grounds of this distinction.
In order fully to conceive the grounds of this distinction, it is necessary to recollect the nature and object of lawful war. It is only as the last remedy against obstinate injustice that the law of nature allows of war. Hence arise the rights which it gives, as we shall explain in the sequel: hence, likewise, the rules to be observed in it. Since it is equally possible that either of the parties may have right on his side, — and since, in consequence of the independence of nations, that point is not to be decided by others (§ 40), — the condition of the two enemies is the same, while the war lasts. Thus, when a nation, or a sovereign, has declared war against another sovereign on account of a difference arisen between them, their war is what among nations is called a lawful and formal war; and its effects are, by the voluntary law of nations, the same on both sides, independently of the justice of the cause, as we shall more fully show in the sequel.6 Nothing of this kind is the case in an informal and illegitimate war, which is more properly called depredation. Undertaken without any right, without even an apparent cause, it can be productive of no lawful effect, nor give any right to the author of it. A nation attacked by such sort of enemies is not under any obligation to observe towards them the rules prescribed in formal warfare. She may treat them as robbers,(146a) The inhabitants of Geneva, after defeating the famous attempt to take their city by escalade,7 caused all the prisoners whom they took from the Savoyards on that occasion to be hanged up as robbers, who had come to attack them without cause and without a declaration of war. Nor were the Genevese censured for this proceeding, which would have been detested in a formal war.
12.31.2005 12:05pm
George Gregg (mail):
Polaris,

What you seem to be saying is that 1801 (f) Section 2 is technically circumventable, because taps of in-country comms can technically be achieved while one is physically outside of the country.

But that doesn't seem to make the subsection necessarily legally moot in principle. It doesn't change the fact that if one is, in fact, conducting the wiretap from within the US, then the subsection is relevant.

Perhaps I'm misunderstanding you, though. If you could answer this question, it would help me to understand:

If an NSA agent were sitting in Virginia and running a wiretap on a US person in Kansas, would 1801 (f) Section 2 be "moot"?
12.31.2005 12:31pm
George Gregg (mail):
Recognizing, of course, your comment that this doesn't really happen. I'm just trying to understand your argument better.
12.31.2005 12:51pm
Tom Holsinger (mail):
Noah, you said: "Yet you did not answer my charge as to the fact that FISA states clearly that it is the controlling law on the issue of wiretaps on U.S. persons."

America has a long standing tradition of fools believing that American law restrains the conduct of foreigners. There was a wonderful example of this at the Constitutional Convention. An idiot proposed a resolution that the Constitution limit the size of the regular army to 5000 men. George Washington silenced the idiot by proposing an amendment to the resolution prohibitng enemies from attacking "with a greater force."

There is a class taught all first year law students called Civil Procedure. It includes a subject called "jurisdiction". I recommend you study that.

Apodoca,

You desperately, desperately, wish that the NSA performs surveillance of foreign communications from interception stations within the U.S. It doesn't. It intercepts them from stations in other countries. I suggest you read either James Bamford's The Puzzle Palace or his Body of Secrets. You should learn more about the mechanics of NSA surveillance.

Ah, I see Polaris agrees with me based on his personal experience working for the NSA.
12.31.2005 1:12pm
Tom Holsinger (mail):
George,

It's like a service call center where calls to SBC's DSL help line in Austin are routed to Bangladore, India. You call your Mom in London where she is doing tourist stuff. An NSA doo-hickey in the innards of the British phone system routs a copy of the call to an NSA installation in Bethesda, Maryland, where computers scan it and decide there is nothing of interest.

Or Abdul Amir in Topeka, Kansas, calls Ibhramin Ahmad in London, whereupon the same doo-hickey routs a copy to Maryland where the NSA computers scan it and the program starts flashing red lights on umpteen computer screens monitored by humans, one of which is Polaris'.
12.31.2005 1:38pm
John Lederer (mail):
Things that we don't know:

50 U.S.C. 1801 has the following definition:

(l) “Wire communication” means any communication while it is being carried by a wire, cable, or other like connection furnished or operated by any person engaged as a common carrier in providing or operating such facilities for the transmission of interstate or foreign communications.


In capacity one of the principal transatlantic cables is AC-2. (By a huge margin fiber optic cables are the main method of transmitting long distance international data and phone traffic—they have far greater bandwidth than satellites), I note the following from an FCC order :

10.We grant the Joint Applicants' request to modify the cable landing license to add GT Landing
II as a licensee. We conclude that adding GT Landing II to the U.S.-U.K. cable raises no competitive
concerns, and does not provide a basis for altering the non-common carrier status of the cable.


So, is the interception of communications at the landing station of a submarine cable electronic surveillance under FISA?. Perhaps because of the presence of a "device? Is a software program a "device"?

(Caution: My knowledge of telecommunications law is de minimis, though courtesy of Google, I now know that submarine cables are attacked by crocodile sharks off the Canary Islands)
12.31.2005 2:14pm
Kazinski:
JAO:
I like Hayden's "chalk on the spikes" analogy. It bespeaks a professional that is going to do whatever he can within the limits of the law to protect the American people.

This whole debate seems to have 4 sides:
1) Those who trust the President and think he should be allowed a fair amount of leeway, under the constitution, to protect the country, short of suspending habeus corpus.

2) Those that trust the President but think a strict adherence to every peacetime statute is the most important issue.

3) Those that don't trust the President and think a strict adherence to every peacetime statute is essential to keep him from going to far.

4) Those that loathe the Presdident, and why can't the rest of us see the Nazi armband on his suit?

Looks like most of us are 1's and 2's and 3's. Not many 4's at all.

Oh and then there is Bodess and davidgmills that want to debate why the 1823 piracy statute trumps every law, declaration of war and court decision since and we can't possibly be at war because they don't want us to be, no matter what Congress and the President say.

As for Holsinger's and Polaris' arguement, it is pretty convincing, but it is such a fine line that it wouldn't constrain any court that wanted to rule on Congress' intent rather than the technical language of the statute and the very technical details of the intercepts.
12.31.2005 2:36pm
Just an Observer:
It may be that in spite of the historical NSA actions reported by Tom and Polaris, which I have no grounds to dispute. But the recent NSA program in question reportedly does tap communications switches within the United States.

Note the following from the NYT story of 12/24:


Several officials said that after President Bush's order authorizing the N.S.A. program, senior government officials arranged with officials of some of the nation's largest telecommunications companies to gain access to switches that act as gateways at the borders between the United States' communications networks and international networks. The identities of the corporations involved could not be determined.

The switches are some of the main arteries for moving voice and some Internet traffic into and out of the United States, and, with the globalization of the telecommunications industry in recent years, many international-to-international calls are also routed through such American switches.

One outside expert on communications privacy who previously worked at the N.S.A. said that to exploit its technological capabilities, the American government had in the last few years been quietly encouraging the telecommunications industry to increase the amount of international traffic that is routed through American-based switches.

The growth of that transit traffic had become a major issue for the intelligence community, officials say, because it had not been fully addressed by 1970's-era laws and regulations governing the N.S.A. Now that foreign calls were being routed through switches on American soil, some judges and law enforcement officials regarded eavesdropping on those calls as a possible violation of those decades-old restrictions, including the Foreign Intelligence Surveillance Act, which requires court-approved warrants for domestic surveillance.

Historically, the American intelligence community has had close relationships with many communications and computer firms and related technical industries. But the N.S.A.'s backdoor access to major telecommunications switches on American soil with the cooperation of major corporations represents a significant expansion of the agency's operational capability, according to current and former government officials.


So the historical loophole may well have existed, but the expanded post-2001 actions by the NSA may have exceeded its protection.
12.31.2005 2:53pm
Just an Observer:
Kazinki: "I like Hayden's 'chalk on the spikes' analogy. It bespeaks a professional that is going to do whatever he can within the limits of the law to protect the American people."

As far as Gen. Hayden's own stance goes, within the sphere of his professional interest, I don't fault him either.

My concern is more systemic. When the executive is pushing the limits on such matters, it is all the more important that this branch does not have unilateral and final authority to decide when the white line has been crossed.

When this NSA surveillance story broke, I thought of it first as a civil-liberties issue, which it is. But more and more, I am worried about its structural implications -- separation-of-powers, checks and balances, and judicial review. As such, the surveillance program and how it was implemented comprise one facet of the Bush administration's general effort to aggrandize executive power.
12.31.2005 3:08pm
George Gregg (mail):
Tom,

Thanks for your analysis, but I'm not completely ignorant of the technology under discussion and the technology wasn't the crux of my question, anyway.

It was, essentially, "would it violate FISA if, indeed, the act of tapping comms took place within the US?" My reading of FISA is that it would.

Hence, what Polaris seems to be arguing is for mootness based on the technical aspects of where he believes these wiretaps were being conducted (i.e., out of the country).

The reason I mention this, and where I'm going with this line of thought, is exactly what Just an Observer noted above. Polaris may be calling FISA's 1801 (f) Section 2 moot based on where he believes all of the wiretapping is being conducted from. But, while he may have direct experience working with NSA, there appear to be recent revelations, as Observer mentioned, that there are some switch taps that are happening WITHIN the US.

Hence, while 1801 (f) Section 2 may be moot for the cases Polaris is aware of, it may not be moot at all if there is actually wiretaps being undertaken on switches in the US with the complicity of US telecom companies.

I have no evidence (other than the reports that have come to light) that warrantless wiretaps are being conducted within the US on US persons. But I am not arguing dogmatically that this is occurring - I am merely depbating whether it WOULD be legal if it were occurring.

But Polaris' position is a dogmatic one, in that he asserts definitively that 1801 (f) Section 2 is moot. But unless Polaris happens to know about ALL wiretaps being undertaken by NSA, and can attest that NONE of them are being conducted within the US on US persons without warrants, then his experience with NSA is hardly able to completely rule out the possibility, nor to categorically dismiss 1801 (f) Section 2 as moot.
12.31.2005 3:17pm
bojess (mail):
Kazinski:

You've persuaded me. Let's let the president do whatever he wants.

Kazinski says we can trust him.
12.31.2005 3:18pm
davidgmills (mail):
Professor:

As my earlier posts on the Law of Nations have pointed out, I think you would be more than correct in your assessment that the Article II arguments don't carry much weight.

Of this I am sure. Neither Yoo, nor Turner, nor most our justices have ever read it. If they had, they would quickly realize how truly silly (I can't think of a more appropriate word) these Article II arguments are. When you read the Law of Nations and you discover all the war related matters that are covered by it, the real question is whether the President, as Commander in Chief, was intended to be anything other than a military figurehead.

The Law of Nations covers just about every military issue most of us could ever think of. If you want to know whether a soldier of a soverign state is to be treated differently from "enemy combatants" the answer is clearly yes and the treatment is starkly different. The soldier of a soverign state is to be freed upon the end of hostilities, the enemy combatant, is to be put to death. The Taliban must be set free, and Al Qaeda face death.

Pick your war issue. It is covered. How to treat women and children. Covered. Deserters. Covered. Bombardment of a city. Covered. Taking of enemy property. Covered.
Declaring war. Covered in every way imaginable. How to treat neutral countries. Covered. On and on and on. Nearly three hundred sections on war alone.

It also covers how to build an army, pay for an army, tax for an army, pay soldiers, care for injured soldiers, hire mercenariies. All covered.

And clearly Congress In Article I Section 8 was given the authority to define offenses under it and provide for the punishments for the offenses it defined. Nearly everything addressed in Article I Section 8 can be found in the Law of Nations.

Now lest you think the founders didn't know about it, I suggest you read the section on persuit of happiness and pursuit of property. Google Jefferson, Madison or Hamiltion and Law of Nations. Jefferson and Madison wrote each other about it's application to the Barbary Pirates situation.

Great topic for a law review article and certainly relevant for today. And it certainly gives one a different perspective on all the statutes addressed here.
12.31.2005 5:01pm
John Lederer (mail):
George Gregg:

1) Assume that the principal communications at issue are carried by submarine cable

2) Assume that the submarine cables are not operated as common carriers (e.g. this traffic is neither wire nor radio as defined in FISA)

3) Assume that the actual method of interception is programming on the carriers' switches that cause certain traffic to be sent to two locations, the real destination and NSA somewhere,.

Do you still see a violation of US law?
12.31.2005 6:47pm
Noah Klein (mail):
Tom: You obviously are a lawyer and I would hope a very good one. And I am only a mere college student. Yet I think that it is not necessary for you to insult me as if I can't even read what I put out or your responses. I have read FISA and I think that George and several others have pointed out several things throughout this thread that have yet to be answered. The applicability of Section 1801 subsection (f)(2) has been demonstrated by various people more intelligent than me. The basic fact is that this is a tap on U.S. persons conducted WITHIN THE U.S. If this was not the case, then the New York Times would not have reported on it and nobody would have any concerns about the program.

Evelyn: The finding by the president that whatever activity he is informing those specific members means that it is classified and thus cannot be told to other members of Congress. If the Congress that wrote the law, felt that in the most secret cases it was fine for the President or the members he tells to tell the whole committee and/or the whole Congress than the law would have said that the President needs to inform the whole committee. The previous section lays out the procedure for telling the whole committee. Why would Congress waste its time clarifying who the president needs to talk to in the case of a top secret covert action, if those people could just turn around and tell whoever they want? Classified means classified. The information cannot go beyond the few people that need to know.
12.31.2005 7:02pm
Polaris (mail):
Guys,

No. The actual switching doesn't occure in the US. It occures above the US. I have already said way too much, but this fact makes the program legal.

-Polaris
12.31.2005 7:06pm
Polaris (mail):
Noah,

I can tell you from personal experience that that is not true. American based switches are often (indeed generally) not based in the US and such a distinction is completely meaningless in modern telecommunications.

What's more (and I am sure the lawyers can say much more about this), FISA restricts the government rather than private citizens. If a private citizen (such as a TeleCom) saw something possibly criminal and turned it over to the government, that is not illegal as I understand the law. [Just as private citizens are not bound by the 4th amendment.]

I am telling both from my personal experience in the NSA and as a technical matter of fact that 1801 (f)(2) is completely meaningless. FISA is a dead letter to the NSA and always has been.

-Polaris
12.31.2005 7:15pm
Apodaca:
Tom Holsinger sets up a straw man:
You desperately, desperately, wish that the NSA performs surveillance of foreign communications from interception stations within the U.S.
Hardly. I don't much care whether the intercept occurs inside the US or outside, so long as the NSA complies with FISA when collecting inside the US.

No, what I really wish is that you'd admit your wild overstatement when you insisted that
FISA has a great big built-in loophole for foreign communications - those between the U.S. and other countries. It does not in any way limit the government from monitoring those communications. It does not apply at all to foreign communications. [emphasis added]
FISA doesn't restrict monitoring those comms at overseas collection points, but it damn sure imposes limits on collection against those same comms when performed within the US. (Hint: that's part of why the NSA avoids the latter, as attested by Polaris. Far from being moot, 1801(f)(2) is much of the reason for that avoidance.)

That you are incapable of admitting your error on this point defies belief. (And thanks for the suggestion that I acquaint myself with Bamford -- but I still have the copy of Puzzle Palace I first read 2 decades ago. Save the condescension for someone else.)
12.31.2005 7:23pm
Polaris (mail):
Noah,

The NYTimes would have reported anything to the greatest disadvantage of the administration possible whether it was technically legal or not. What's more the original article made no mention of FISA violations (becuase there weren't any) but of possible fourth amendment violations (and we all seem to agree that is passes 4th amendment muster).

As for switching, most of it isn't *technically* done in the US even for US switches. I have said way too much on that already.

-Polaris
12.31.2005 7:24pm
Noah Klein (mail):
Polaris:

The fact that the NSA surveils the satellite through the telecommunications of the world travel does not mean that it is perfectly fine for them to listen in on the calls from U.S. persons within the U.S. The fact the switches that they are listening to are not physically within the U.S. does not give the administration carte blanche to surveil the communications of U.S. citizens or resident aliens without first determining that they are terrorists and are thus agents of a foreign power.

Noah
12.31.2005 7:29pm
Polaris (mail):
John,

I can't comment directly on the NSA vis a vis AC-2 cables but suffice it to say that there are more holes in FISA with regard to them and FISA than swiss cheese. FISA literally doesn't apply to such cables as a fact of the matter and is yet one more more example of how technology makes 1801(f)(2) moot.

-Polaris
12.31.2005 7:32pm
Polaris (mail):
Noah,

Yes it does. The supposed sattilites are NOT in the US and therefore NOT subject to 1801 (f)(2) and no Reasonable Expectation of Privacy exists.

Thus such surviellance is legal. QED.

-Polaris
12.31.2005 7:36pm
Noah Klein (mail):
Polaris:

The news media is very biased and the NYTimes is one of those that are more biased. Yet most members of the media, including those working at the "paper of record" will report what is true. Furthermore, they are not going to published classified material, if they do not think that the activity being conducted is possibly illegal or that citizens of the U.S. deserve to know what their government is doing. Just as Fox News, the Washington Times and the National Journal have reported on the scandals of President Bush, the NYTimes, Washington Post and LATimes has reported on the scandals of the Clinton Era. While the person who leaked classified material on this subject should be punished as all people who leaked classified material should be punished, the release of the information is not the issue. The legality of the program is the issue.
12.31.2005 7:37pm
Polaris (mail):
Noah,

NO. The media can and has published classified information before. Read up on the Pentagon Papers if you doubt this. Futhermore (CBS anyone), the Media can and has reported things as fact that turned out not to be true.

Whoever leaked the story to the NYTimes broke the law, and they are not protected in any way because of the TS/SCI nature of the information (read title 18 US code).

-Polaris
12.31.2005 7:40pm
Noah Klein (mail):
Polaris,

No the fact that the information is collected from sources not within the U.S. is not the issue. The definition of "electronic surveilance" states clearly in subparagraphs 1,2 and 3 that "in which a person would have a reasonable expectation of privacy and a warrant would be required for law enforcement purposes." Are you suggesting that for law enforcement purposes these communications would not require a warrant? Furthermore, this statute is supposed to govern the surveilance of communication that is both internal and international. Do you think that the people who updated this statute after September 11 did not know that other countries were tapping the communications going into those countries? Of course, they knew yet a person should still a reasonable expectation of privacy from their government.

Noah
12.31.2005 7:49pm
subpatre (mail):
Polaris - The real questions to me are:
In your opinion (of which everyone has one) are current operations, though legal, targeting people for non-security, non-serious criminal, or political reasons?

The second question is about keeping ops legitimate or fixing them as needed: Are the oversight committees doing their job? And if possible to answer, in what way?
12.31.2005 7:51pm
Noah Klein (mail):
Polaris:

Yes, the media has published classified material in the past. I was saying that they do not publish it willy-nilly. According to the ethics of their profession, they will not publish this material for the simple reason that they feel like it or that they want to hurt the current administration. They release material that they feel is necessary for the American people to know. The example you use is a perfect example. The Pentagon Papers, which was a classified history of how the U.S. got into the Vietnam War, described how the government had lied to the American people about the attacks on our destroyers in Vietnam Gulf. When a majority of the public were already disagreeing with the continuation of the war, I think this fact was important for the American people to know. You may disagree, but the NYTimes, which published it felt it meet that standard.
Also the media endeavours to ensure that its publication of classified material will not endanger the U.S. This is why the Post did not publish the fact that nuclear weapons were in Cuba and the Post did not publish the countries in which the CIA "black sites" were.
Finally, while the media may/often get things wrong, they try not to. That is why the CBS thing and the NYTimes Jayson Blair/Judy Miller incidents were so big. If the media consistently gets things wrong, then why do you read them.

Noah
12.31.2005 7:59pm
Polaris (mail):
Noah,

As Tom already explain at length, whenEVER you cross international boundries (be it travel, mail, or electronic communications), you VOID any "reasonable expectation for privacy". That means that 1,3,4 do not apply to the communications in question. Thus as long as the actual mechanical intercept occures outside the US...no matter how much on a technicality...it's legal.

Subpatre,

The current operations bother me. As I said, it's one reason I don't work for NSA any longer. However, I do not think they are being used for any non-security purpose at this time. That doesn't mean I think that everyone in government is a saint...far from. Rather, it's because the volume is simply too great to do what many fear.

As for oversight, I do have fault with the oversight. The problem, however, is as old as secret operations itself. Mainly it's an old saw amoung those familiar with OPSEC that in OPSEC you have safety, security, convenience....pick any two. If we want to have convienent intelligence (which is necessary in order to prosecute a war against terrior), and we want it SECURE (which should be obvious), then, unfortunately (and my inner libertarian cringes at this), the safety (oversight) is going to be lacking.

-Polaris
12.31.2005 8:00pm
Noah Klein (mail):
Polaris:

My 7:49 post was supposed to say subparagraphs 1,3 and 4.
12.31.2005 8:02pm
Polaris (mail):
Noah,

So you trust the NYTimes to keep our national secrets but not the government.

Nice. That's all I needed to know. I now know not to take you seriously any longer.

Seriously, in recent years, the Press has shown no sign of it's traditional ethics...and point in fact I DON'T trust any MSM story without factchecking it first. Not any more.

-Polaris
12.31.2005 8:04pm
Polaris (mail):
Noah,

The FACT is that whenever your communication crosses international boundries, you lose any reasonable expectation of privacy. Period. Tom has already explained this far better than I ever could.

The best analogy is that of customs. You can be searched by US customs for any or no reason (and the same applies in the foreign country as well). You have no fourth amendment rights because you have no expectation of privacy. Same, same.

-Polaris
12.31.2005 8:08pm
Noah Klein (mail):
Polaris:

I am sorry that you won't take me seriously any more, because you misinterpreted what I said. I never said I truted the NYTimes to keep our national secrets or that I did not trust the government to keep our secrets.

I believe that the ethics of the institution and its reputation and its business concerns would all conspire to keep the media from trying to endanger the U.S.

Furthermore, I trust the government to keep secrets. That was your job and is the job of all people vested with that information. I do not trust the government to use it investigative powers without a check on them from one or the other branch of government. I do not trust this because throughout history when an executive has had such unchecked powers they abused it.

Finally, you do read the MSM story first, right? Finally, how do you factcheck classified material to which you cannot have access.

Noah
12.31.2005 8:13pm
Noah Klein (mail):
Polaris:

Electronic communications are different from physically reentering or entering a country.

Noah
12.31.2005 8:14pm
punslinger:
Noah

"Also the media endeavours to ensure that its publication of classified material will not endanger the U.S. This is why the Post did not publish the fact that nuclear weapons were in Cuba and the Post did not publish the countries in which the CIA "black sites" were. "

Would this then be an argument that Robert Novaks alleged outing of Valerie Plame did not endanger the US in any way? Or the New York Times fromt page articles about CIA rendition planes did not endanger the US in any way. Or that revealing the topic discussed in this thread did not endanger the US in any way?
12.31.2005 8:24pm
Noah Klein (mail):
Polaris:

I may be wrong. I am not omniscient. Although so far the Administration has called this a circumvention of the FISA law, so if FISA did not apply, I do not know why they would defend this activity the way it has. Why would they need to say that the AUMF gave them authority to conduct this surveilance, if it did not violate FISA. Finally, on its fact it is unreasaonble to assume that founders would have thought it was perfectly alright to conduct surveilance on U.S. persons without some type of check by the other branches of government.

I hope that I am wrong, because if I am completely misinterpreting what has happened here than there is no real issue. If I am right though, this means that the president has unilaterally granted himself authority that neither Congress nor the Constitution granted him.

To Everyone:

Thank you for the very entertaining and interesting conversation over the past few days. While we all have been heated at times, I am very glad this conversation has remained intellectual rather than falling into a complete free-for-all. I wish every a Happy New Year and I hope to talk to you all again in the near future.
12.31.2005 8:25pm
Noah Klein (mail):
Polaris:

You compelled me to respond one more time. That is why I said endeavours. I think they did not feel it endangered national security.
12.31.2005 8:27pm
subpatre (mail):
Thanks Polaris, I appreciate the answer.

On the oversight, I was thinking more of the Congressional side of things. In the long run that makes the most difference, supervisors who actually pay attention to what's going on. I often get the impression that committee members are there for personal advantage or prestige rather than expertise or interest; witness Rockefeller's letter and subsequent inaction.

Remembering the Church investigations (if you're old enough), the central concern over improper acts was very real; but the uses that Church's recommendations were heavily political. As I recall, FISA was relatively useless when enacted; the embedded holes were intentional.

The whole affair was --politically-- a lot of sound and fury to appease the populace that something was being done; while actually doing little or nothing. Bamford's contention that FISA's a smokescreen may be exaggerated, but not by much.
12.31.2005 8:36pm
Polaris (mail):
Noah,

Gathering intelligence from sources that are technically outside the US is in fact a circumvention of FISA. It is intentional and it is not new. De FACTO, NSA has never been subject to FISA.

As for the hypothetical opererator in Kansas, he would not be subject to FISA. Why? Because the actual gathering of information is completely automated Since the operator has nothing to do with the actual gathering of information, he is not subject to FISA. Once the intelligence is gathered, it can be analysed anywhere.

Now does every see why FISA is a dead letter with regard to *international* communcications and NSA?

As to why the administration isn't pushing it, I have said WAAAY too much on this thread already. I have done my utmost to uphold the law and my NDA with the government, but I have committed several EEFIs doing so. It should be no wonder that POTUS and DIRNSA are saying as little as possible.

Prediction: Nothing comes out of the congressional investigations because they will have the exculpatory information that I can not post here.

Prediction: Several NYTimes reporters will go to jail for contempt and some formor NSA people/Dem supporters will be going to jail for 10 years hard labour.

-Polaris
1.1.2006 12:00am
Polaris (mail):
Noah,

Electronic communications are not different from mailing a letter to another country or visiting it in one important respect:

There is NO reasonable expectation of privacy.

Even the founders accepted that when you leave the country, you were subject to search and even seizure at any time. That's one reason the 4th amendment was written the way it was.

As Tom has explained at length, when one end (either end) is outside the US, there is no expectation of privacy because no foriegn government protects these communications. {US to US does fall under FISA but that isn't in question nor is it the issue.}

-Polaris
1.1.2006 12:09am
Tom Holsinger (mail):
FISA was written, like many other statutes pertaining to intelligence, so as not to interfere with on-going operations.

My father was the AA for a Congressman on the House Intelligence Committee at the time, and I was then in private practice. The NSA's surveillance of all communications traffic to and from the U.S. at that time was public knowledge - it was the subject of litigation. There was a public debate in 1978 about FISA's relationship to this surveillance while FISA was going through Congress. I was familiar with this debate while it was going on.

You people have a choice. You can persist in contending that there is somehow something illegal with the NSA's surveillance of foreign communications, though it has been going on for 38 years and been public knowledge for almost the entire time, or

you can believe Polaris and I, who are thoroughly familiar with the law and the facts here. We say there is NO ****ING WAY that it is illegal. You can also try reading Jim Bamford's books.

What is your bottom line? How much proof do you need? Are you so wedded to partisan fantasies that nothing, NOTHING, can convince you to give it up?

I expect the Bush administration will go too far in domestic surveillance. They're big government conservatives - that's what they do. And the feds will be feds. They like power. They always have. And they like to abuse it.

Democrats and lefties are no help in this at all. The Democrats pretty clearly want power at any price - their only objection to purported misuse of federal surveillance power is that they're not the ones doing it. It was clear during the Clinton administration that Democrats love to do this given the chance, though that was also true during the Carter administration. I was there, and a Democrat at the time. It was very disillusioning.

Democrats only object to this NSA program now because it is a handy vehicle to help them (they think) get back into power. Fat chance. The Rasmussen Poll's figure of 76% of the public paying some to close attention to this issue is absolutely astounding to those of us who know how to count.

And the lefties just want us to lose.

So it's up to Republicans alone to protect the country from abuses of domestic surveillance.

Thanks a bunch.
1.1.2006 12:50am
Polaris (mail):
Tom,

To add to what you said, I left the NSA because I didn't like some of what was going on (or more accurately I turned down flat a job at Ft. Meade after I finished my degree...and they weren't happy about that...especially given my prior experience).

The problem is this: By crying WOLF on things that are clearly legal and have been for decades, a backlash is invited and it gives the Executive (of either party) the chance to take powers that really DO threaten our civil liberties.

In addition to Bamford, try reading Aesop's fables. The Dems are being *stupid* on this issue and everyone is hurt.

-Polaris
1.1.2006 12:56am
Tom Holsinger (mail):
Polaris,

It can get much worse than you suspect, and has. While I appreciate the help, you should CYA.
1.1.2006 2:57am
Polaris (mail):
Tom,

Per CYA, I am. I still have copies of my NDA so I know what I can and can not say. However, you are right and I am pretty sure about how bad it can get. That was my point really....*stupidity* like this actually makes real violations of civil liberties that much easier which was your point as well I think.

-Polaris
1.1.2006 4:14am
minnie:
Now does every see why FISA is a dead letter with regard to *international* communcications and NSA?

Uh, no.

BTW, what are the educational requirements for a person to be hired by NSA and get security clearance?
1.1.2006 5:02am
Polaris (mail):
Minnie,

The first requirement to get a TS/SCI clearence (other than being a US Citizen with no criminal record of course) is a pattern of utter trustworthiness. Given your snark, I would say that you would not qualify.

If this isn't as clear as day, then I suggest you go back and read the prior posts slowly. The only provision in FISA that does not have a "Reasonable Expectation of Privacy" requirement is 1801 (f)(2) which is quoted above.

However, that applies if and only if the actual interception is done in the US. In the modern Telecommunications environment, this is completely meaningless. I have already explained why at length. Go read Bamford's books as well. He goes into details that I simply can not because of my agreement with the government.

-Polaris
1.1.2006 5:08am
Polaris (mail):
Minnie,

To put it even more simply (as Tom alluded to), the NSA has never been subject to FISA and FISA was deliberately in such a way that the NSA could ignore it with near impunity (because the NSA deals with international communications).

BTW, when the NYTimes and the like calls it "domestic wiretapping", it's a lie. Not a mistruth or misunderstanding. It's a LIE. As long as either end of a communication is outside the US, it's *not* domestic; it's international and thus no Reasonable Expection of Privacy exists.

-Polaris
1.1.2006 5:14am
Polaris (mail):
Ack, PIMF! I meant to say above that FISA was deliberately written in such a way that it would not apply to the NSA.

-Polaris
1.1.2006 5:20am
George Gregg (mail):
Tom: "You people have a choice. You can persist in contending that there is somehow something illegal with the NSA's surveillance of foreign communications, though it has been going on for 38 years and been public knowledge for almost the entire time, or

you can believe Polaris and I, who are thoroughly familiar with the law and the facts here. We say there is NO ****ING WAY that it is illegal. You can also try reading Jim Bamford's books.

What is your bottom line? How much proof do you need? Are you so wedded to partisan fantasies that nothing, NOTHING, can convince you to give it up?"



Tom, how many times do I have to say that I'm talking about my concerns with DOMESTIC comms. D.O.M.E.S.T.I.C. Involving US persons, without warrants. When someone mentions the issue about domestic warrantless wiretaps, and you come back with an argument about why "foreign" communications are not illegal under FISA, do you see how your response is irrelevant?

You ascribe to the rest of us a partisan bias because we somehow want to keep harping on the issue. Yet it seems that your own cognitive bias that is somehow preventing you from seeing the distinction of what some of us are concerned with.

Polaris is doing something similar. When we talk about the legality of warrantless domestic wiretaps and he responds that they are not technically occurring. Well, fine, his expertise is very much appreciated. And if Polaris knows about every wiretap NSA is conducting and can attest categorically to the fact that there are NO domestic wiretaps being conducted, it renders the issue moot. But it does NOT address the legal question of whether domestic wiretaps, if they were being conducted, would be illegal.

Yet when someone raises this issue, Polaris shoots back that they're simply not occurring. Yes, we HEARD him. But again, a cognitive bias is preventing him (and you) from distinguishing the legal question being asked. Perhaps Polaris is correct and there are no domestic warrantless wiretaps being conducted on US persons by the NSA. Since Polaris isn't currently working for the NSA, I'm assuming he isn't completely aware of what's going on there, but he could be absolutely correct. If he is, I'm ecstatic.

But regardless of whether he is or isn't correct, there is some question as to whether the current Administration has the POWER to conduct such surveillance (either based on Article II, on AUMF or on putative Congressional silence). So aside from the finding of fact about what is actually going on is the question of whether it would be legal IF it were going on. As I have said upthread, I have no evidence relating to the former question. My comments have generally been addressed, I think, to the latter.

After making the case for why we are all failing to get through our thick heads what you're saying (when it's been addressed primarily at an issue which is not in controversy), you then go on a bit of a partisan jag, in which you finally get on the same page with the rest of us and say:

"I expect the Bush administration will go too far in domestic surveillance. They're big government conservatives - that's what they do. And the feds will be feds. They like power. They always have. And they like to abuse it."

NO KIDDING. Finally, that's really what we're discussing here - the issue of whether the President has the constitutional or statutory power to "go too far" in domestic surveillance. Or what does "going too far" actually mean, with regard to the US Constitution and case law. Does President Bush have the power to authorize warrantless wiretaps on US citizens within the US? Does Article II allow it? Does AUMF? Does any putative loophole in FISA act as Congressional silence in which the President may so act?

Now, I'd very much like to hear the benefit of your legal mind on THESE questions, since they're pretty much the key ones that many of us have been trying to address in this thread.

And by the way, your partisan screed notwithstanding, I happen to be a life-long, conservative, red-state Republican. My Dad worked on the Nixon campaign and "Dit Nitson" were among the first words I ever spoke. Just so you know that my concerns with warrantless domestic wiretaps of US citizens (IF they are occurring) is not because I'm some leftie who "just wants us to lose."

I'm just a guy who's interested in making sure that al Qaeda doesn't get to (functionally) rewrite portions of our Constitution.
1.1.2006 8:07am
George Gregg (mail):
And, for what it's worth, Polaris himself seems to be indicating some concern for how NSA may be commencing to go too far as one reason he is no longer working there.

All the more reason why this debate is crucial, imho.
1.1.2006 8:10am
davidgmills (mail):
Polaris:

The mail intersting alalogy. However, the real analogy should be the use of a private carrier like FedEx. Say I mail a private lettter via Fed Ex to Europe or someone from Europe mails to me.

Do I not have an expectation of privacy?
1.1.2006 8:26am
George Gregg (mail):
Actually, in reading some of Polaris' more recent comments, he does appear to be addressing the actual legality of FISA, which is germane. There are some legitimate points, there, I think.

It also raises two questions in my mind, then:

1. If FISA is rendered completely irrelevant by the way NSA conducts its wiretaps, does that just mean that FISA was never intended ot apply to the circumstances in which NSA is acting OR does it mean that NSA is using technical means to circumvent the wording of FISA, but is nevertheless violating the intent of the law.

2. When "switching" occurs in a satellite, does that render moot the fact that there may be US-based agents or infrastructures complicit in effecting this program? Perhaps this is the case - I'm ignorant of how the law tends to view this kind of thing.

Another possible (and possibly flawed) analogy might be a satellite-based missile launched using a radio signal from the US. Does the fact that the missile physically might be launched from space (outside of the US borders) mean that the decision-makers and infrastructure that might have been in the US are completely ungovernable by US law?
1.1.2006 9:14am
jrose:
Polaris,

Why couldn't Bush have said "we do not intercept in the US" without compromising SIGNIT methods?

You claim, "in the modern Telecommunications environment, this [intercepting in the USA] is completely meaningless." Can you please summarize why.
1.1.2006 10:04am
George Gregg (mail):
Tom,

Just to clarify, I realize there is a legitimate question related to whether what we are talking about is actually "foreign" or "domestic" surveillance. FISA is concerned with "foreign" (hence the "F" in the acronym).

But FISA has 1801(f)(2), which expressly includes within its treatment of foreign surveillance stipulations on domestic targets and domestic sources. It is for these domestic elements that I primarily concerned, somewhat smappishly (I apologize), above.

There is some inherent confusion, I believe, in what constitutes foreign vs. domestic wiretapping. Some of it is brought by the wording of FISA (such as I just mentioned), some of it is introduced by NSA technology (such as Polaris' comments that domestic sources can be entirely surveilled from outside of the US making the distinction moot for some purposes) and some of it is introduced by equivocations and conflations within the discourse as people present their arguments.

While I have accused you of this last point, I confess to exhibiting some of this in my own comments, as well.

In many ways, given the fact that we don't actually have the facts on the complete extent to what NSA is currently doing (Polaris' comments notwithstanding), I think that's why I've tended to prefer to focus on what Article II does or does not allow (as is the indicated topic of this thread). If we can figure out those parameters, then once we learn what the President has been authorizing, we will be in somewhat better consdition to know whether it is legal.

I think this has been the primary focus of most people in this thread: does Article II permit the President to warrantlessly wiretap US citizens in the US? Does AUMF expressly permit him to do so? Does FISA expressly forbid him to do so?

Inasmuch as your and Polaris' points have addressed that last question, they are germane and I have appreciated them. Thank you.

(I would say, again, that categorical denunciations of those who disagree with you as succumbing to partisan bias is neither accurate nor constructive. I'm not in the habit of being called a leftist who just wants the US to lose the War on Terror, simply because I'm raising questions of my Constitutional rights. But I am becoming somewhat more accustomed to hearing those kinds of comments lately, alas.)
1.1.2006 10:10am
George Gregg (mail):
Ugh.

That word near the end of my second paragraph should be "snappishly".
1.1.2006 10:15am
davidgmills (mail):
Since no one has responded yet to my FedEx query....

Maybe it is because I am a Memphis attorney and FedEx's home is here and we have the FedEx forum and we FedEx alot and I have Fed Ex accounts, that perhaps I have an advantage over other people. But I seriously doubt it.

If I feel that in thinking about this issue for only a couple of days now I have figured out a way to drive a FedEx truck or fly a FedEx 747 through the arguments here, I wonder how long ago al Qaeda figured it out.

If I really wanted to get a secret message overseas or to New York by tomorrow at 10AM would I use the telephone? Hell no. I would simply write out my secret put it an envelope, take it down the street to Kinko's put it in a FedEx envelope and send it FedEx, using fictitious names of course. The only thing that would have to be correct is the address. I have never had to show ID to send a package or to receive one if the poackage was set to the address where I am.

And for this, I am told that I must give up my fourth amendment rights. I am told I must not expect my phone calls to be private because at any time during the transmission they could go wireless and then they are fair game. And I am told I must now soon expect to need a universal ID.

Only in today's America.
1.1.2006 10:35am
subpatre (mail):
davidgmills - "I wonder how long ago al Qaeda figured it out."

Apparently AQ has depended --past tense-- on protectionist FISA arguments, such as those that've dominated here; else the program wouldn't have worked at all.

davidgmills - "And for this, I am told that I must give up my fourth amendment rights. I am told I must not expect my phone calls to be private..."

Trying to plead an American protection --the Fourth Amendment or any other-- in order to destroy all of them by passing foreign intelligence information, gets little sympathy from me.
1.1.2006 11:28am
davidgmills (mail):
subparte:

I'm not sure I understand your argument. But stopping communications between individuals is a little like spraying for roaches in Apartment 121. They simply move to 122 or 120 or 221.
1.1.2006 11:45am
subpatre (mail):
George Gregg "I think this has been the primary focus of most people in this thread: does Article II permit the President to warrantlessly wiretap US citizens in the US? Does AUMF expressly permit him to do so? Does FISA expressly forbid him to do so?"

Sometimes. More than before. Sometimes.

I disagree about the primary focus, the vast majority seem to
A) Made assumptions about what's happening
B) Arguing the assumed acts are wrong, using FISA and Youngstown text

Keeping in mind the NY Times isn't using statute language, re-read their article. Why aren't the Times' anonymous intelligence experts, where FISA is stock in trade, alleging anything about FISA?

For that matter, what's the Times actually alleging at all?
1.1.2006 11:53am
Polaris (mail):
George,

Sorry but that's not what D.O.M.E.S.T.I.C. means in context of telecommunications and FISA. For a communication to be DOMESTIC, it must involve US Persons (a very exact designation in the NSA) and both ends must be in the US!

There is no contention by the NYTimes that *Domestic* communications were intercepted without a warrent (at least not deliberately which is what matters here).

No one is questioning that DOMESTIC communications are covered by FISA, but the Bush administration isn't alleged to have intercepted DOMESTIC communications as defined by FISA and the NSA.

jrose,

I can't explain in detail why 1801 (f)(2) is moot because that is classified. Suffice it to say that the NSA collects ALL intercepts in such a way that they all can be done within seconds from technically non-US collection points.

As for the partisan issue, sorry, but I am seeing some really ugly partisanship here. The NSA has *never* been subject to FISA (de facto) and that has been known for almost thirty years even without access to classified information. To say that the NYTimes timing and publishing of this is suspect is understating the case by a couple of orders of magnitude.

What this DOES do is create a backlash that permits *real* violations of civil liberties to occure later.

Thanks a bunch guys.

-Polaris
1.1.2006 12:23pm
Polaris (mail):
davidgmills,

I have sent packages overseas via UPS. I can tell you for a FACT that all packages and letters are subject to search and customs for any (or no) reason. To my knowledge (and I have quite a bit of practical knowledge here if not legal knowlege), there is no Reasonable Expectation for Privacy for International Mail.

-Polaris
1.1.2006 12:28pm
Polaris (mail):
jrose,

The reason POTUS doesn't say "we do not intercept in the US" is because that doesn't address the supposed civil liberties issue raised. POTUS and DIRNSA would then be required to explain in excruciating detail in public why this made a difference and how the NSA insured this.

The damage to national security would be catastropic.

Even my own comments cut right on the razor's edge of what I can and can not say. I suggest you read some of Bamford's books on the subject.

-Polaris
1.1.2006 12:33pm
George Gregg (mail):
Thanks a bunch guys.

-Polaris



See, this is completely inappropriate. We're trying to consider and elucidate the legal extent of our civil liberties by discussing and debating the constitutionality of certain behavior. You're implying that we're somehow undermining the safety of the country in doing so.

We all get that you disagree with some of the positions being discussed, okay? And as I said above, I think you have some legitimate points. Your implication, though, that well-intentioned, concerned citizens are somehow undermining the country by having these discussions is just outrageous.

I, for one, find it extremely tiresome to be dismissed as a partisan provocateur or a leftist or somehow unpatriotic because I'm raising these kinds of issues. Perhaps you long ago learned to just suck it up and keep your mouth shut about these important issues, but I never signed an NDA when it came to my constitutional rights.
1.1.2006 1:29pm
subpatre (mail):
George Gregg - "See, this is completely inappropriate. We're trying to consider and elucidate the legal extent of our civil liberties by discussing and debating the constitutionality of certain behavior."

You're also saying you intend to have "chalk on your cleats" in the use of your civil liberties. Unlike NSA and DoD, or the President, Justices and Congress; you've not signed non-disclosures, nor oath to uphold the Constitution. You want benefits without responsibility. So be it.

It also means that you chance the 'cleat chalk' being called "out". The discussion may provide information (US capabilities and/or tactics) with a reasonable expectation that the information may help enemies.

See the thread above where Noah and George Gregg claim a TS clearance Senator can't discuss the issue --even the existence of the issue-- with other TS Senators; yet now George Gregg believes it's appropriate for an internet blog.

To then complain that it's "...tiresome to be dismissed as a partisan provocateur or a leftist or somehow unpatriotic" is beyond the pale.
1.1.2006 2:24pm
subpatre (mail):
George Gregg writes "A top Justice Department official objected in 2004 to aspects of the National Security Agency's domestic surveillance program..."

OK, the article shows (gasp!) the oversight system works.

A new-to-the-job legal deputy, unfamiliar with the program, objects. The operation is shut down to give time for a re-evaluation of the program's legal standing; as opposed to re-evaluating while the program continues, the usual judicial procedure. The program is re-started when legal authorization to continue is obtained.

In addition, the program's reviewed every 45 days and the Justice Department ran a secret audit that showed no signs of abuse. What's the problem?

[Claiming civil rights dangers because of abundant controls is like arguing to ban cars because of safety equipment]
1.1.2006 3:07pm
George Gregg (mail):
See the thread above where Noah and George Gregg claim a TS clearance Senator can't discuss the issue --even the existence of the issue-- with other TS Senators; yet now George Gregg believes it's appropriate for an internet blog.


Er...what? I've never advocated any such thing, as far as I can tell. I don't think I've been asking Polaris to ever spill his guts about any classified information. I'm not sure anyone else in the thread has done so, either.

Are you seriously suggesting that discussing the parameters of Article II gives aid to the enemy? Or that citizens who engage in such discussions about their Constitutional rights are being hypocritical about security of the country? Have I been divulging state secrets or asking others to do so? The mind boggles!

As to your specific accusations, I don't think I ever asserted that Senators could not discuss intelligence issues among other cleared Senators/staff. I noted what Rockefeller said, and I've noted what Graham said, but I don't think I've ever commented dogmatically on the law in that regard.

I tend to agree with the comments above that suggested that, if Rockefeller neglected to exercise legitimate oversight when he had the legal leeway to do so, then he was in the wrong. But I frankly don't have a clear understanding of that law to be able to be certain about it and can't see where I have been so in this thread. Perhaps if you could point out the passage to which you're referring, I can clarify my intent for you.

In any event, I don't generally think it would be appropriate to reveal classified information on an internet blog. Nor am I advocating doing so. I'm talking about the legal question of whether Article II or AUMF or FISA would actually support/prohibit warrantless wiretaps on US citizens in the US.

As for any classified information, the only thing I've actually been discussing is what appears to have already been revealed (to the degree that anything has been revealed), either by the Times or by the Administration themselves. In fact, I have repeatedly said that I am more focused on the legal aspect of what Article II, AUMF and FISA permit or prohibit, fully recognizing that we don't have all the FACTS of this specific case. That's the basic position Orin took when he initiated the thread, too. There are serious legal questions being raised which can be discussed, recognizing that the people who can hold the President accountable don't have all the facts yet to determine whether he broke the law.

But on the topic of revealing classified info, if you found out, while under a government NDA, that the government was conducting illegal activities, would you advocating keeping your mouth shut about it because the enemy would be comforted or aided by the revelation? I might, sometimes, if I felt that the wrong was slight enough and the potential damage was great enough to warrant my keeping quiet. Yes, that's a pragmatic, all-too-human call. And maybe that's the situation we're in here. I'd really like for the Senate to actually evaluate it (which they intend to do) so that there are some checks and balances on such a call. Because, you know what? I don't trust human beings in power - even really nice ones - any more than our Constitution does.

In that regard, there seems to be a distinction between someone simply leaking information out of negligence or for partisan gain vs. someone whistleblowing what might be a violation of a federal law or constitutional prohibition. The former I have no sympathy for (nor does the law). The latter has some legal protections, however, and may be for the better weal of the country.

In short, your comments are pretty misrepresentative of my positions. And, no longer content with discussing the legality of Article II, FISA or AUMF, you've shifted to calling into question the very act of engaging in the discussion at all and presuming to imply that those people who DO discuss it partisans or unpatriotic or cleat-chalkers or whatever.

Given our Constitution and the history of our country, ont to mention the history of human government long before our country ever came into being, that's what I find outrageous. But maybe it's just the symptom of a thread that's approaching 400 comments, that frustrations begin to diverge some from talking about the topic of the thread and begin instead to engage in ad hominem attacks on the motives of the other participants or recapitulating their arguments as straw men.

I think I'll close my participation in this thread at this point, simply noting that I've seen nothing in the thread that materially undermines Orin's original analysis when he said:

"To be clear, I think the legality of the NSA surveillance program is a very difficult question, and it depends on details we mostly don't yet know. But in constrast to the difficult issues involving FISA and the AUMF, I don't see the Article II claim as a close one based on existing law."

That still sounds about the right conclusion, with the right balance between certitude and tentativeness, to me. Thank you, Orin, for initiating a very stimulating and very educational discussion. I wish you and everyone else on the thread a Happy New Year!
1.1.2006 3:13pm
Tom Holsinger (mail):
"Captain Kirk, the chattering of tribils is getting louder! It's something about "foreign communications"!

The noise to signal ratio is dropping fast!"

ALL COMMUNICATIONS WITH PRAXIS ARE LOST.

THIS TRANSMISSION ENDS
1.1.2006 4:06pm
Polaris (mail):
George,

There have always been legal secure avenues to complain if you think that the law/regulation has been broken. [Think OSI for starters.] What's more since 1998, even a person from the NSA such as myself had the legal authority to discuss classified information with the appropriate congressmen and their staff with the proper clearences. So don't tell me about oversight. This was illegally leaked to the press and there is no excuse for it.

What's more, intercepting *foreign* communications is completely legal and FISA was explicitly designed to allow the NSA to do just that.....US Persons or no. I admit that President Bush is pushing this the the very limit...and I will say that I find it unsettling, but I can tell you from personal practical experience that he didn't go over.

As for the rest, there is a HUGE difference between *MY* saying something from a position of explicit experience and *YOU* saying something from speculation. When it comes to NSA means and methods, who do you think could do more damage if A-Q decided to read this thread.

THINK about it. Not all comments are created equal. That's why I had to sign an NDA and why I am doing my best to follow it while explaining the facts of life.

-Polaris
1.1.2006 7:32pm
Polaris (mail):
George,

Oh, one more thing. The sources for the NYTimes are not whistleblowers and are not protected as such. The statute explicitly doesn't apply to NSA, CIA, FBI, or DoD personelle.

-Polaris
1.1.2006 7:35pm
jrose:
Polaris,

Why would Bush have to address civil liberties issues (any more then he does now) if he said "we do not intercept in the US"? He can easily explain why intercepting outside the USA makes a difference (it makes 1801(f)(2) inapplicable) without compromising national security. Why would he have to detail how the NSA insures intercepts are made outside the USA? Can you please summarize the relevant points from Bamford?
1.1.2006 7:38pm
minnie:
There's an old proverb: "Whenever you hear someone talking about a lot of cherries, carry a small basket."

If "Polaris" worked for NSA, I'm on the Supreme Court.

GG and Noah, enjoy your interesting, thoughtful posts. Hopefully, someone truly knowledgeable will show up to address those valid issues you raise.
1.1.2006 7:55pm
Polaris (mail):
Minnie,

I didn't know you served on Scotus. You must be Justice Ginsberg then. Point in fact I did work for NSA out of the 381st in Elmendorf. Look it up.

-Polaris
1.1.2006 8:46pm
Polaris (mail):
jrose,

Because in order to sell that explaination, he'd have to reveal methods that the NSA uses that would have a catastropic on our national security. POTUS is deliberately saying much less than he knows as he should.

-Polaris
1.1.2006 8:48pm
minnie:
Minnie,

I didn't know you served on Scotus. You must be Justice Ginsberg then. Point in fact I did work for NSA out of the 381st in Elmendorf. Look it up.

-Polaris


Glad to do that. I will need your real name to proceed. Please provide same.

Many thanks,
Ruthie
1.1.2006 9:32pm
Polaris (mail):
Minnie,

Actually you don't need my real name if you have any kind of computer savvy.

-Polaris
1.1.2006 10:18pm
Polaris (mail):
Minnie,

OK, no reason not to say. Look up SrA I.A. Chapman under the 381st (it was changed from the 6981st recently). You will find me there.

-Polaris
1.1.2006 10:21pm
Noah Klein (mail):
Hi everyone,

I am very glad to rejoin and I hope you have all had a very satisfying beginning to the new year. I have been reading the posts made by Tom, Polaris, subparte, George Gregg and Minnie.

I am very sorry to see that despite the efforts of some like George Gregg and David Mills who has tried to keep this discussion about the issue presented by Professor Kerr, it has begun to descend into a free-for-all. I am going to try to stay on topic. To clarify, and perhaps this is a mistake, because everyone who in the past or future agrees with me on this blog will so be label, I am a very proud liberal Democrat from Southern California. Furthermore, I have even worked for a Democratic campaign in Oklahoma. Yet like George David, Minnie and even I think Polaris, I am very concerned about the legality of this program.

Polaris: I wanted to ask you why you were so concerned about the program under discussion even though you feel it is legal? I am among I think a vast majority of Americans who think that every procedure that is in accordance with the Constitution and U.S. laws and treaties should be used even if it is on the edge. Why do think this program should no longer be used? Also you could cite the law that granted you the authority to discuss with Congresspeople Top Secret information.

What's more since 1998, even a person from the NSA such as myself had the legal authority to discuss classified information with the appropriate congressmen and their staff with the proper clearences.

subparte: The relevant law concerning the required reporting of intelligence material is located in Section 503 of the National Security Act of 1947.

Here is a copy of the law which concerns the reporting to Congress:

1) shall keep the congressional intelligence committees fully and currently informed of all covert actions which are the responsibility of, are engaged in by, or are carried out for or on behalf of, any department, agency, or entity of the United States Government, including significant failures; and

(2) shall furnish to the congressional intelligence committees any information or material concerning covert actions which is in the possession custody, or control of any department, agency, or entity of the United States Government and which is requested by either of the congressional intelligence committees in order to carry out its authorized responsibilities.

(c)(1) The President shall ensure that any finding approved pursuant to subsection (a) shall be reported to the congressional intelligence committees as soon as possible after such approval and before the initiation of the covert action authorized by the finding, except as otherwise provided in paragraph (2) and paragraph (3).

(2) if the President determines that it is essential to limit access to the finding to meet extraordinary circumstances affecting vital interests of the United States, the finding may be reported to the chairmen and ranking minority members of the congressional intelligence committees, the Speaker and minority leader of the House of Representatives, the majority and minority leaders of the Senate, and such other member or members of the congressional leadership as may be included by the President

No one as far as I can see has answered the question I posed earlier, which was "if the intelligence chairperson and vice-chairperson could go on to tell any person they want about the information why would the law limit the people the president is required to tell to those people listed above? Also U.S. Law always and forever trumps House and Senate Rules since those rules are only agreed to by one house, while U.S. law is passed by the whole legislature and the executive or at least two-thirds of the legislature.

Tom: Even though you are gone I would like to attempt in perhaps an oafish manner to refute the claim that a U.S. person has no reasonable expectation of privacy.

When you first brought up the issue you stated that there was no reasonable expectation of privacy because

(a) reasonable men know when they don't know the law, and

(b) reasonable men try to learn the law they don't know if it is pertinent to what they are doing, and

(c) reasonable men don't presume that foreign law is just like American law when they know they are ignorant of foreign law.

This seemed reasonable to me, because my father who is a lawyer told me throughout my childhood "that ignorance of the law is no defense for breaking it." Yet then I was watching TV today and I saw a Law &Order episode where the detectives were reading their rights. I thought according a reasonable man should know his rights, but the Court has said that a person must be made aware of his rights and if not any evidence collected invalid unless a good faith error was made.

Furthermore, when I asked my father about this he said that I was right ignorance of law, especially foreign law does not destroy the expectation of privacy. A person, even a reasonable person, is allowed to be ignorant of the law. The only thing is that ignorance of the law does not allow you to break it. Tom or anyone else if I am wrong please cite the relevant law

And finally, I was reading one of his old Gilbert Torts books, which demonstrated that the tapping of Ralph Nader's phone by GM was an invasion of privacy, because he had a reasonable expectation of privacy.

Noah
1.1.2006 10:48pm
Noah Klein (mail):
Polaris,

That was supposed to be Elmendorf Air Force Base in Alaska, right? I have gone to the website and I can't seem to find the section that lists the personnel or the 381st. Could you please help me?
1.1.2006 10:55pm
Noah Klein (mail):
Never mind I found the 381st in Elmendorf.
1.1.2006 10:58pm
Noah Klein (mail):
Polaris:

I am sorry when I wrote to ask you about how to find the information concerning your service in the NSA I forgot that the NSA is the most secret of our known National Intelligence Agency. I know this because when I saw Jim Bamford who you have often mentioned on C-SPAN he said that was so. Furthermore, he said that the organization was so secret that its existence was denied by our government until only recently (within the past decade or two). This makes me think that there would not be a list of personnel that is available to the public. Is their a list of personnel available to the public?

Noah
1.1.2006 11:18pm
Noah Klein (mail):
Everyone,

I am very sorry for the plethra of posts that I have made recently. I will attempt to not post for a while and just read what others post. I wanted to post this final time to put up a definition of "expectation of privacy" that I have retrieved from FindLaw:

a belief in the existence of freedom from unwanted esp. governmental intrusion in some thing or place
(compare zone of privacy)
Note: In order to successfully challenge a search or seizure as a violation of the Fourth Amendment to the U.S. Constitution, a plaintiff must show that he or she had manifested a subjective expectation of privacy in the area of the search or the object seized and that the expectation is one that society is willing to recognize as reasonable or legitimate.

I think that the word subjective in this definition is very telling. Now if a person is ignorant of a foreign law which allows that government to listen in on their communications than subjectively that person should still have a reasonable expectation of privacy from their own government.

Finally, I will leave you with a definition of "zone of privacy" which once again comes from FindLaw:

: an area or aspect of life that is held to be protected from intrusion by a specific constitutional guarantee (as of the right to be secure in one's person, house, papers, or effects against unreasonable searches or seizures) or is the object of an expectation of privacy
Example: allowed disclosure of medical records, records which were deemed to fall within a zone of privacy, upon a showing of proper government interest -- Stenger v. Lehigh Valley Hosp. Ctr., 609 A.2d 796 (1992)
1.1.2006 11:25pm
davidgmills (mail):
I agree we have gotten off topic. Here's what the Professor said he was concerned about:

"Robert Turner advances the argument that the President's Article II authority trumps FISA" and the Profesor went on to say that he suspected this line of reasoning to be faulty. He also stated that Article II was not really his area of expertise.

That is the very reason I went back to the Constitution and tried to figure out what powers the founders gave to Congress and the Executive. The Constitution states as part ofthe Congressional Powers Congress gets to determine waht are offenses and punishments uner the "Law of Nations" which seemed very pertinent to the issue of what powers the founders intended to give Congress on matters concerning the proper conduct of war.

While many of you are interested in the statutory aspects of this matter, I am primarily interested in the constitutional isssues. If this republic lasts, the statutes will have their day, just like the Piracy Act of 1820 had its day, and will eventually have served their usefulness. Indeed many of you claim their time has already come and gone.

But the real issue and I think the one the professor was getting at is the constitutional one about the limits, if any Congress can put on the executive on matters concerning war and the use of military force. My conclusion after reading the Law of Nations is that the founders intended most of the war power to reside in Congress and that the founders intended the executive to be emasculated to the point where he was mostly a military figurehead.

I will readily concede that there is a paucity of case discussion pertaining to the Law of Nations. So I am curious as to why it never caught on as part of our common law. But I have to believe that it was very important to our founders and they intended to use it as a guide on matters concerning war and conduct with other countries. And if you are concerned about strict construction of the Constitution (its pros and cons), then you should be concerned about what the framers really thought about this clause. I really believe it holds the key to this issue.
1.1.2006 11:34pm
Polaris (mail):
Noah,

A "reasonable" person would not be ignorant. On a subsequent thread Orin dragged out case law (involving Canada) that backs my general position.

As for the NSA, suffice it to say that most are not listed officially as NSA but rather as military members in their respective branches. I was one such.

-Polaris
1.1.2006 11:34pm
Noah Klein (mail):
Polaris:

Thanks for the clarification on the aspect of the listing of personnel of the NSA. I found when I went to the Air Intelligence Agency website and the website for Elmendorf Air Force Base that to discover the personnel of those agencies would require calling a number that listed and paying a $3.50 fee. I am not so interested in your identity that I will expend that much effort or funds, but if someone else will that is there option.

Furthermore, Polaris could you please direct me in some way to that thread that I may read for myself what Professor Kerr says about the "reasonable man."

Noah
1.1.2006 11:46pm
John Lederer (mail):
A suggestion that NSA may be tapping submarine cables at sea.
The second message has a 2001 WSJ article on the subject.
http://cryptome.org/nsa-fibertap.htm
1.2.2006 12:15am
davidgmills (mail):
The Professor, points to a curious quote by Turner for the propsition that Congress has not needed to formally declare war since 1801. Here's what Turner said:

The Supreme Court held in 1800 (Bas v. Tingy), and again in 1801 (Talbot v. Seamen), that Congress could formally authorize war by joint resolution without passing a formal declaration of war.

Talbot was a law of nations case. In Talbot, the US had seized a French ship that was armed and beleived to be hostile to the US. Here's what the Supreme court said:

"It is true that a violation of the law of nations by one power does not justify its violation by another; but that remonstrance is the proper course to be pursued, and this is the course which has been pursued. America did remonstrate, most earnestly remonstrate to France against the injuries committed on her; but remonstrance having failed, she appealed to a higher tribunal, and authorised limited hostilities. This was not violating the law of nations, but conforming to it. In the course of these limited hostilities the Amelia has been recaptured, and the inquiry now is, not whether the conduct of France would justify a departure from the law of nations, but what is the real law in the case."

Under the Law of nations, when acting defensively, a formal declaration of war was not deemed necessary. Here's the section from Book III.

§ 57. Defensive war requires no declarations.
He who is attacked and only wages defensive war, needs not to make any hostile declaration, — the state of warfare being sufficiently ascertained by the enemy's declaration, or open hostilities.

So by early case law, the clause in the Constitution which allows for the declaration of war by Congress has also been interpreted pursuant to the Law of Nations on that issue even on the issue of whether a formal declaration is necessary.
1.2.2006 7:14am