George Will on NSA Surveillance Program:
George Will has a column today criticizing the Bush Administration's defense of the NSA domestic surveillance program: No Checks, Many Imbalances. An excerpt:
Thanks to Crooked Timber for the link.
[T]errorism is not the only new danger of this era. Another is the administration's argument that because the president is commander in chief, he is the "sole organ for the nation in foreign affairs." That non sequitur is refuted by the Constitution's plain language, which empowers Congress to ratify treaties, declare war, fund and regulate military forces, and make laws "necessary and proper" for the execution of all presidential powers . Those powers do not include deciding that a law — FISA, for example — is somehow exempted from the presidential duty to "take care that the laws be faithfully executed."Will ends the column by calling on Congress to amend FISA to make the NSA program legal: "It should do so with language that does not stigmatize what [the Executive Branch] has been doing, but that implicitly refutes the doctrine that the authorization is superfluous."
The administration, in which mere obduracy sometimes serves as political philosophy, pushes the limits of assertion while disdaining collaboration.
Thanks to Crooked Timber for the link.
I'd also note that the "commander in chief" label is overused; the Constitution makes the President commander in chief of the military, not of the country at large. It's an extraordinary difference. I do not believe it was the intent of the framers in any way to create a president that was all of our "commander in chief."
This is particularly important, since the Constitution also explicitly allows the Congress to make regulations regarding the military. Thus, there simply is no unchecked "commander in chief" power. In the words of Rehnquist, addressing another extra-Constitutional phrase, it "is a metaphor based on bad history, a metaphor which has proved useless as a guide to judging. It should be frankly and explicitly abandoned."
Thank you. I try.
Marcus1,
Your point is particularly clear when one looks at the entire clause:
"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."
I think the conditional application of the clause to the state militias makes it clear that this clause is about the President's position on the table of organization, not a general grant of sweeping powers during war.
"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."
Along the lines of the oversight and legislative action Will urges, the major news of the day seems to be the failure of the Senate Intelligence Committee to agree to an investigation. Chairman Roberts said the White House was committed to unspecified legislation that somehow would "fix" FISA to cover the NSA program. It was unclear to me if this was based on Sen. DeWine's proposal.
Committee Democrats grumbled about a continued lack of meaningful oversight.
Meanwhile, VC commenter A.S. -- usually a reliable-but-deniable surrogate for the administration line, IMO -- is beginning to talk in terms of congressional "ratification" at this post, et seq.
Since the administration continues to claim that any legislation ultimately is trumped by "inherent" Article II powers, I think any meaningful legislation should embody a mechanism triggering judicial review if the President colors outside the lines of the new statute.
Although as I posted in the other thread, today McClellan seemed to suggest that the Administration still viewed the idea of additional legislation with considerable skepticism and wariness.
So, I actually wonder to what extent Roberts actually does have a deal, and to what extent he is just stalling for time on behalf of the Administration.
The story also covers the action or lack thereof on the Senate side, and at the White House.
"'The administration is now committed to legislation and has agreed to brief more Intelligence Committee members on the nature of the surveillance program,' Mr. Roberts said."
And this is from the White House transcript of McClellan's press briefing today:
"So we have spelled out the legal rationale behind this vital tool. We don't believe that congressional authorization is something that is necessary, because, as the President has spelled out, and others have spelled out, he already has the constitutional and the statutory authority to authorize the terrorist surveillance program.
The President also has said that we will continue working with Congress. We will -- we are open to ideas regarding legislation. The one thing the President said was that he would resist legislation if it would compromise this vital program that helps save lives and prevent attacks from happening.
But we have seen some good ideas presented by Senator DeWine, and we are committed to continuing to work with Congress on legislation that would not undermine the President's ability to protect Americans. And so we'll keep working with members of Congress as we move forward.
Q In short, though, the administration is open to the idea of some legislative adjustments?
MR. McCLELLAN: Well, we previously expressed that we will work with Congress on this, and we previously expressed that we're open to ideas. We've talked about how there's kind of a high bar to overcome. But at this point, we've only heard ideas from Senator DeWine. We think there's some good ideas, but we have not seen actual legislation."
Something tells me this may not have blown over by the time the Senate Intelligence Committee meets again on March 7.
Incidentally, I note that the staunch pro-Administration commentators here have frequently made the claim that public support for the NSA program has been growing. I assume that is a meme which is also being promoted on pro-Administration blogs and bulletin boards. So, I wonder if the Administration's strategy right now is to delay congressional action while the Administration "takes its case to the American people," ala Social Security reform.
OK, that was a loaded analogy. But I couldn't resist.
Like the 42-page DOJ "white paper," McCarthy also mentions the Constitution but neglects to mention Congress' enumerated power "to make rules for the government and regulation of the land and naval forces."
I guess they were both tight on space.
They omitted the quote from McClellan: "Chairman Roberts is a useful tool and we use him in the war on terror whenever appropriate."
[/satire]
First, it is a good thing you remembered to turn off satire. I'd hate to have a series of other posts turn unexpectedly satirical.
Anyway, the general picture I get is that both Roberts and Hoekstra are in a pretty serious fight to keep any semblance of control over their committees. I gather Roberts got DeWine and the other concerned Republicans to delay further investigation while DeWine worked on some sort of compromise legislation. But I can't imagine DeWine is perfectly thrilled with McClellan's press briefing, despite the shout out.
When he was on meet the press, there were at least three separate times where he said "we need to act in seconds" but was confronted with the proposition that the 72 hour requirement was retroactive. He would then respond with "well 3 days isn't fast enough, we need to act in seconds."
I don't understand what he's doing? Either he doesn't get it, or he's just lying, right? And he's not a dumb man, so it is almost certainly the latter. He understands what retroactive means.
I didn't understand why, each time, Russert appeard to cut Harmon off when she tried to point that out. Each time I assumed it was because Russert was going to explain that himself, but he just let it go.
Also, interestingly, Roberts refused to commit to the proposition that journalist should not go to jail for not revealing his sources. Whether that's right or wrong, I don't want to get into, but in light of his status as a former jurist, seems like a privilege of political expedience over a professional code of ethics that I find unusual.
Thank you so much for the NYT article. I was becoming very upset that the Senate was not going to look at this issue and then I read the NYT article. This is a very interesting situation. Maybe it's Boehner's influence that is moderating the House and allowing them to actually investigate the executive.
Noah
And the plain language of the Constitution was also apparently lost on Hamilton:
"The Legislative Department is not the organ of intercourse between the UStates and foreign nations. It is charged neither with making or interpreting Treaties...[The Executive Department is] the organ of intercourse between the nation and foreign Nations." (Pacificus I)
You take issue with:
(1) congressional supremacy is basic conservative tenet
(2) it is a constitutional fact
Thanks,
lee
And as for the president's claim that each branch has some ability to interpret the Constitution, doesn't that imply that the other two branches could interpret the Constitution such that the president doesn't have the inherent power to wiretap? If so, then Congress could certainly impeach the president, and the inherent powers defense would have no bearing on Congress' actions.
Note: This probably isn't a wise or desirable course of action. But somehow, impeaching the president seems more politically feasible than cutting funding for the military or the NSA, as John Yoo suggests would be Congress' course of action in a dispute.
No one is suggesting that Congress should negotiate or adjudicate treaties (although the courts can do the latter: "The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority"). Nor is anyone denying that the President is in charge of diplomatic communications with foreign nations (which is what "intercourse" means in this context).
What people are disputing is the notion that as soon as the words "foreign" and/or "international" apply to a situation in any way, the President can dismiss Congress and the judicial branch from further participation in the matter. And that proposition is indeed clearly wrong in light of the enumerated powers of Congress and Article III's grant of jurisdiction of the courts (in addition to the treaty clause, Article III also gives the courts jurisdiction over controversies "between a state, or the citizens thereof, and foreign states, citizens or subjects").
Hamilton's quote does not make Will's belief in Congressional supremacy less reasonable. A person I'm sure you admire held that same belief. When he was in the Revolutionary army, he abided by all of Congress's instructions despite the fact that he consistently was upset over their inability to supply their soldiers. When he was in the government, he disapproved of the executive vetoing any bills unless he felt that they were unconstitutional. This man was George Washington. Congressional supremacy was an idea that was widespread among Founders. So George Will has some good company. Although I don't hold this belief to hold is not illegitimate.
Noah
The Court in Nixon (the Judge Nixon case) basically ruled that it is up to Congress to define their impeachment and removal standards. And the Articles of Impeachment for both Presidents Nixon and Johnson included charges that they failed their duty to take care that the laws be faithfully executed. So, such a charge would not be unprecedented in an impeachment context.
I would also add that Article I Section 8 contains the foreign commerce clause, which constitutes an express grant of constitutional authority to regulate interstate communications.
Medis &Noah: As I've said before, I'm skeptical about the Administration's inherent executive authority argument (in my view, the Administration's case would be better if it invoked executive prerogative to violate the law because of military necessity and use the AUMF to buttress the claim that their violations of the law are truly necessary). But my Hamilton quote was directed at the very specific reference by Will about which branch of government is the organ for the nation in foreign affairs, not the Administration's broader claims. (And Noah, Washington did veto a spending bill for the armed forces by Congress not because he thought it was unconstitutional but because of the policy reason that it would reduce the size of the armed forces too much.)
Those who call Will a liberal are barking up the wrong tree. He is defintely a conservative, but certainly not mainstream. He has an air of elitism and snobbery about him. If one finds it necessary to pigeonhole him, having read his articles for many years, he is a l'aissez faire conservative with libertarian leanings.
That said, I did not find Will's article very informative nor very persuasive. I did find this article by moderate democrat editor of Roll Call at least informative.
Bush, Congress Should Legalize NSA Surveillance
By Mort Kondracke
February 17, 2006
When you're right, you're right. I would point out that this was not until his last year. I would further point out that Washington signed the bank bill even though he disagreed with based on the principle that it was constitutional.
Noah
I don't think anybody is arguing for a weak executive, and I think you know that.
I think people often ignore the arguments of Madison and Mason because they are invoked out of context, and not positioned in an exchange about how to limit the king's analogue in the new government. People love to cite the federalist papers, but I'm not sure how they are any more dispositive on the meaning of the constitution than is a given senator's remarks during a hearing are to the meaning of a statute. They don't tell you what the framers agreed upon, so to use them as indicia of contrary meaning when the text and structure of the constitution points in a different direction seems strange.
First, I am not suggesting a congressional supremacy argument and I do not see anyone else on this thread arguing arguing it either, except of course Will. I am arguing for Congressional equality. When the political branches pass a law, that law cannot be overturned by one branch, except for as prescribed by the Constitution.
Noah
Thus it appears that by whatever standard we try this doctrine, it must be condemned as no less vicious in theory than it would be dangerous in practice. It is countenanced neither by the writers on law; nor by the nature of the powers themselves; nor by any general arrangements, or particular expressions, or plausible analogies, to be found in the constitution.
How would an originalist choose between Madison and Hamilton?
But I do think that Will's argument for Congressional supremacy does result in a weak executive.
The Madison and Mason arguments are from the Constitutional Convention discussing Article I and Separation of Powers, not the Federalist Papers, so they are extremely relevant to Constitutional interpretation. The argument was all about the best way to prevent legislative branch encroachment on the other branches, not vice versa.
Noah,
No, you aren't arguing for Congressional equality, you are arguing for maintaining the post FISA status quo, which includes the executive branch at its weakest in the history of this country, thus a congressional supremacy argument. I challenge you to provide any evidence that the executive branch, even with the NSA program, is exerting any where near the authority of pre-FISA executive branches, all the way back to George Washington.
My analysis perhaps applies with more force to remarks made at the constitutional convention than it does to exchanges in the federalist papers.
I mean, he says that Congress has the power to ratify treaties, for God's sake. Congress has no such power. That is such a misreading of the text. It says Senate and the President, and that's what the Court has held.
That is where I will respectfully disagree with you. I think their warnings should be heeded and carry much more weight than you wish to give.
One thing for sure if Roberts and Hoekstra don't get this ball rolling, then Reid and Pelosi will do everything in their power to get this authorization passed. The very last thing the Democrats want is to have this issue unresolved before the 2006 elections. Karl Rove is salivating about being able to use the NSA surveilence as an issue in November, and be able to calim that it is in peril.
But one question for all those that said that the NSA program violates the bill of rights, since when does Congress have the authority to set aside the Constitution?
The result I would like to see is for Congress to repeal all statutory guidance in the field of foreign surveillance, thereby both maximising the presidents flexibility and creating more possibilities for justiciable cases that may serve as a mechanism for adjudicating the constitutionality of the administration's activity.
How is this the weakest presidency in history? I would say you were joking, but you made this comment many times. Previous presidents did not have a huge federal bureaucracy or even a standing army. Most previous presidents did not have anywhere close to the power that this one has.
Furthermore, like I said the other day, the president cannot overturn a law by an executive order, just like the Congress cannot reorganize a law by a resolution. Their is process to make and to alter laws. This process includes both branches and cannot be changed by a single branch except for how the constitution lays it out.
Noah
Medis may not "get it" when his leg is being pulled, but please don't think that anyone else takes you seriously. They don't.
I don't understand.
Are you saying that I don't add anything to this discussion or are you saying that those who argue against me have tin ears? If it is the first I would point out that I have engaged in many substantive and intellectual arguments on this blog. If it is the second, I will continue to make my points and see what the opposition says and whether it will make me think or change my positions.
Noah
You are trying to make an illogical comparison due to different population and technology available. Certainly government has gotten much bigger in the entitlement area, but that is since FDR. We are talking about his executive powers during a time of war. I did notice you did not support your premise with any actual historical references to the legislative branch claiming a 'right' to infinge on executive branch powers. Did any pre-FISA president have such an imposition to gather foreign intelligence during war time ? I do not think so.
Your argument is flawed when you state as fact he overturned law. That is your opinion, which you have a right to, but that does not make it a fact. He is walking on solid ground having gotten advice from the DoJ and OLC. If Congress and the executive cannot come to an agreement, that is my preferred choice, personally, I would like to see FISA challenged on Constitutional grounds, not the NSA program. I think SCOTUS would rule parts of it unconstitutional.
In the area of foreign intelligence, I would point out that the foreign intelligence agencies were created by Congress with limits on their power and their ability to affect American citizens. Yet, aside from foreign intelligence, the Congress has in several instances prior to FISA limited the president's power over the military. The most obvious example are the Articles of War and the UCMJ. Another example is Posse Comitatus, which said that the President cannot use the military for police purposes. These are only two in a number of examples. The president is the initiator and the prime force in foreign affairs, but not the only force.
On the issue of overturning the law, FISA says that it is the "exclusive means" to conduct foreign intelligence on American soil. The president has circumvented FISA. They have a legal argument (one they were advised by members of the judiciary was not very strong) to support their circumvention, but this is a still an attempt to overturn the law. In fact, their "white paper" says that if their AUMF argument is not legitimate, then FISA is unconstitutional. It is a fact that they have overturned the language of FISA that states that it is the "exclusive means" to conduct foreign intelligence on U.S. soil. This is not my opinion, but the truth. If FISA did not contain this language, then they would not have overturned the law, but since it does they have. And thus, I say that they cannot do so by executive order.
Noah
Despite all the assertions to that President Bush is weak or weakend, I think that the Presidency is even stronger now than during the Clinton era, and proably akin to during the Reagan era. This debate would have been unthinkable under Ford or Carter, as they would have never made the assertions made by the Administration here, and if they had, would have backed down fairly quickly once Congress protested. But here, we have a president essentially challenging Congress, and possibly getting away with it. Bush is pushing the envelope on Executive power, and Congress isn't pushing back as hard as many expected.
Which is why impeachment is a pipe dream right now. The Democrats would need almost 220 seats in the House and 67 Senators to pull it off, and they don't come close, and it is unlikely that they will be much closer after the next election. Probably more likely 250 seats in the House and 70 Senate seats to compensate for the President's Bully Pulpit, where he could take the program to the people. In the end, I doubt that there is a lot of sentiment in this country for the civil rights of al Qaeda operatives calling home (which is how the Administration is framing the debate).
The executive has the authority to read the law and get advice, and say this is how we are going to apply it. You are arguing about a conflict over application. You say it does, they say it doesn't. The AUMF has put this country on a war footing. Intelligence gathering is a fundamental incident of war. This is the only war in the last century where this country is part of the theater. In WWII, after Pearl Harbor, there were no more threats on US soil where the US was the stated target. FISA, and it cannot be denied, is an inefficient vehicle for critical foreign intelligence gathering. I suggest you read the 9/11 Commission staff Monograph evaluation of FISA, especially if you want to hang your hat on the 72 hour clause. To paraphrase, it states FISA is slow and burdensome, with some warrants taking months. With that being the case, the executive branch has the authority determine it could cost lives, which would be contradictory to his plenary authority as CiC to protect and defend the people. In a time of war, that type of inefficiency could be fatal. It is why most members of Congress, since the full Intelligence Committees have been briefed, support the program and a re-write is gaining momentum.
For what it's worth, I'm quite prepared to argue explicitly for congressional supremacy. The following seem to me to be fundamental principles of (small-r) republican political theory: (1) that the primary goals of non-domination and non-arbitrariness are best served by obliging the State to follow determinate, publicly known general rules and (2) that a committee of many individuals, representing different interests, is better able, over the long run, to formulate those rules fairly than is a single individual. At its base, I think this should be less an issue of legal interpretation than of fundamental political-theoretical principles. I think that the balance between privacy in communications and anti-terrorism is a crucial question for contemporary socities, and one which is persisting and general and rather than an occasion for case-by-case discretion; as such, I hold that, in a just society, whatever kind of balance is ultimately struck, this decision must be deliberated upon publicly and reached by a representative body and not by a single individual, or by a single individual and his personally chosen subordinates, acting in secret.
I only wish more people were willing to say, explicitly, that taming executive power and subjugating it to the determinate form of general norms matters, that excessive executive power is inherently unjust, regardless of whether it's used for good or for ill, and that we're willing to pull out all the stops in fighting against it.
As for the more specific constitutional argument about the program, I repeat a post I made earlier:
... plenary authority as CiC to protect and defend the people ...
And this would be in the Constitution where? If this were really what the Framers intended, which I think is absurd, then that would be either (a) an argument for a new Constitution or (b) an argument against originalism, since in no just state can authority over "protecting and defending" be confined to a single individual.
"The executive has the authority to read the law and get advice, and say this is how we are going to apply it."
This is true. The executive can read the law and apply it as he interprets it. Yet he can't read into the law. The president has done this in several instances and the other branches have already pushed back on this reading. Yet the fact remains, that the law says that FISA is the "exclusive means" and the law addresses what should happen when the U.S. is engaged in a war. The AUMF did not change that and if it did then the when Congress passed the Patriot Act that became the law. Nothing in the Patriot Act overturned FISA's "exclusive means" clause. I see you won't agree to this basic fact. Unfortunately, in today's age, facts are not obvious to everyone and people pick their own and ignore others.
Noah
I don't think that those here are, for the most part, experts on the subject, but many of us, by now, know more than 99+% of the populace on this subject, just by reading this blog and other similar sources, and, hopefully doing some research to hopefully add something to the debate. While many, if not most, of us have read FISA, the AUMF, Hamdi, Youngstown Steel, etc. by now, and maybe even understand much of their interaction, I doubt that Mr. Will has had a chance to read them, or if he has, to read them in the depth required to really understand their interaction.
That isn't his job. He is a pundit, which means that he is a generalist. He presumably depends on "experts" in this and other areas, but that puts him at the mercy of the politics and weaknesses of those experts. It is clear that Will didn't read the Steel case, because, as McCarthy points out, that the Executive's power was at its lowest in Category III is in Jackson's concurrance. That wasn't the holding of the case. Yes, maybe it has been picked up by some courts and some Justices since, but it still wasn't the holding of the case.
I don't blame Will. He probably heard that Jackson said in the Steel case something, or that cite from the case, and didn't read it himself to see the distinction (though he has a PhD, it is in politics - he isn't a lawyer). I have seen the same shortcut made here - but with the assumption that everyone here knew the difference and was just taking a shortcut. I will suggest that his major mistake was propounding about the law, when he is not personally equipped to do so. The rest of the piece revolves around politics and the like, where he probably is an expert (I don't have a PhD in politics from Princeton, and he does).
I support your right to your beliefs and commend you for the detail in explaining your poisiton. But it is the legislative branch the Framers feared more than the other two branches. To quote Madison:
As a matter of formal logic, it simply does not follow from evidence of the framers' skepticism of the legislature that they intended a particular equilibrium between article I and article II power, only that they did not contemplate I would always trump II.
- Majority: Detention is fine under AUMF, but not 5th Amdt. where Due Process requires a system for citizen detainees to refute their classification as enemy combatants.
- Scalia Dissent: AUMF doesn't suspend Habeas Corpus.
- Thomas Dissent: AUMF authorizes detentions, detention doesn't violate Constitution, and Executive has a lot of untapped power here.
- Souter &Ginsburg: AUMF doesn't provide for detention during hostilities. 18 U.S.C. § 4001(a) (Non-Detention Act) applies, and the Administration is probably violating the Geneva Conventions (in dicta).
Even with the lower wall, FISA does not do an adequate job differentiating between intelligence and law enforcement because terrorism blurs that difference in the fact that terrorism is a crime, but it is also the enemy in the war. Intelligence is extremely critical in fighting that war. Making it harder to get intelligence is simply illogical and could be disastrous. Some might say Bush should have vetoed it then, if it wasn't good enough. But that is simply illogical, too, because he would have had to veto the full Patriot Act and not just the FISA part of it, and that would have been foolish.
Hopefully, whatever they negotiate can address this in an effective way and end the politics on this issue. It's too important to be playing 'Gotcha' with.
I think one has to be precise with language in this context.
The term Hamilton used is "organ of intercourse between the nation and foreign Nations." Again, in this context "intercourse" means diplomatic communications between the United States and other nations.
In Curtiss-Wright, the Court used the term "organ of the federal government in the field of international relations." Again, that is a reference to diplomatic relations between the United States and other nations, and no one is contesting the proposition that the President is in charge of such diplomatic matters.
Will is examining the term, "organ for the nation in foreign affairs." If you took "foreign affairs" to mean the sort of diplomatic relations to which Hamilton and Curtiss-Wright are referring, then Will would indeed be on very shaky ground. But Will is rightly noting that in this context, people are treating "foreign affairs" as if it includes all things that somehow touch on foreign matters, and Will is absolutely right that the plain text of the Constitution refutes such a broad claim.
On "congressional supremacy":
I personally do not believe that "congressional supremacy" is a constitutional fact, as indeed I was recently arguing elsewhere here. My impression, however, is that such a claim has in fact long been a central tenet of certain brands of "conservative" constitutional theory--indeed, Justice Scalia, for example, appeals to this notion in support of his theories in A Matter of Interpretation.
But as I thought when I first read that book, and as I think now, the Constitution was in fact designed by people who were concerned as much with checking the power of the legislature as they were with authorizing the power of the legislature. So, I disagree with Scalia that we should push our interpretation of the Constitution toward the most "democratic" (ie, pro-legislature) result.
On the other hand, I also don't think we can follow the critical legal studiesesque approach of people like KMAJ and simply rewrite the Constitution as we see fit in order to further the end result of a "stronger" Executive and a "weaker" Congress. Because of their concerns with legislative power, the Framers wrote certain specific limits and checks on the legislative power into the Constitution. So, those are the tools we can use to deal with legislative excesses.
But we are not free to simply make up new tools and imply them into the Constitution because of the fact that the Framers had a general wariness about the legislature. In that sense, I disagree with both Scalia and the likes of KMAJ. We shouldn't be pushing our interpretation of the Constitution either toward enhancing congressional power or toward enhancing executive power by wrapping our policy preferences in the shrouds of the Framers.
What the Framers actually intended to do, and what they actually did, is lay out a complicated system of institutional checks and balances. And we should be giving effect to that actual structure as written into the Constitution, not remaking that structure in the name of furthering their broader purposes as we imagine them.
Bruce,
I'm not sure why you think that quote is relevant to the conflict between Will and McCarthy. In any event, we have discussed many times how that portion of the holding in Hamdi should apply in light of the applicable statutes in this case.
Incidentally, this is just a small aside, but it is actually a plurality, not majority, in Hamdi.
Given the fact that virtually all preceding American Presidents have asserted the right during wartime to intercept enemy communications, as integral to their task of fighting a war, and considering that during World Wars I and II first Wilson's and then the Franklin Roosevelt administration intercepted all wire communications between the U.S. and overseas (i.e., what opponents in this debate like to call “domestic communications”) — not just some small percentage as with the present program — my view of the situation is that, just as Tocqueville feared and foretold, what's precisely happening here is an attempt by the legislative assembly, the Congress (each member of whom represents only a tiny district, as opposed to the President, the only constitutional officer elected by the country as a whole) to unconstitutionally take over the government. It should be opposed.
It's also worth refuting, I think, Noah Klein's assertion above that the Congress has every right to try (unconstitutionally in my view) to rein in the modern Presidency because, as he says, “Previous presidents did not have a huge federal bureaucracy or even a standing army. Most previous presidents did not have anywhere close to the power that this one has.”
It's not clear to me how the size of the federal bureaucracy gives the President huge powers, but beyond that, the argument that there was no standing army in the past is certainly false. The United States has had a standing army basically forever, and though small, except during wartime, it was there. Moreover, wartime is exactly what we're talking about! The country is legally, constitutionally, really at war. Let's look at some earlier wars. During the Civil War, for example, there were 2.8 million in the military on the Union side (out of a population less than one-tenth the present size); during World War II, nearly 16.4 million were under arms (within a population less than half the current size). It's ludicrous to suggest that FDR didn't wield enormous power — arguably far more than the present administration.
In our constitutional system, the Presidency is a co-equal branch to the legislature. Any attempt by the legislative bodies to reduce the Presidency to the status of a mere servant of the Congress is clearly unconstitutional.
I think there is an interesting non sequitur in your reasoning. De Tocqueville in that passage concludes, "This dependence of the executive power is one of the inherent vices of republican constitutions. The Americans could not eliminate that tendency . . . ." But then you seem to assume in the remainder of your discussion, contra to de Tocqueville, that we DID eliminate this "inherent vice" from our Constitution.
This is one of the things I find very interesting about this sort of argument. "Conservative" commentators have long criticized "liberal" constitutional theorists for implicitly starting with the assumption that the Constitution must contain an answer for every problem (while noting that by happy coincidence, those answers tend to align with the policy preferences of the theorist in question). But commentators like de Tocqueville, and the Framers themselves, had acknowledged that it is expecting too much of a constitution for it to be a perfect document with a specific answer for every problem.
But now pro-Administration commentators seem to be adopting this implicit assumption. They make arguments for how things ought to be, and then tag on the claim that surely any other result is "unconstitutional". And this is the exact sort of assumption--that if a result would be bad, it must be unconstitutional--that "conservative" commentators had previously resisted.
And that, I think, is a large part of why "conservatives" like Will are not going along for the ride. They remember where they have heard such arguments before--and they can imagine where they might hear such arguments again in the future.
It used to be that conservatives stood for limited government. To the extent that the constitution and laws made in pursuance thereof disable the executive from acting usurpatiously, the traditional conservative would not say that this implies a "power grab" by the legislature. To the contrary, and in plain terms, it is simply a denial of unlimited executive power.
The neoconservative stance has inverted this concept and now claims to limit congressional authority by literally grabbing power for the executive without limitation.
I don't think anyone suggested that Hamdi rejected the AUMF. In fact, the plurality in Hamdi said that the AUMF authorized military detention of such a citizen prisoner taken on a foreign battlefield, and we all know that. Adding in Thomas, that made a 5-4 majority for the holding that the prisoner could be detained in military custody.
The suggestion was that McCarthy ignored the other holding in Hamdi, which was explicitly a separation-of-powers holding. You err in characterizing this as merely a "due process" issue. The government had claimed that the judiciary had no authority in the matter, and only Thomas agreed with that claim.
O'Connor's plurality opinion explicitly referred to the issue this way : "In so holding, we necessarily reject the Government’s assertion that separation of powers principles ..." That was the section, and the on-point holding, that McCarthy conveniently omitted.
I had always thought that legislative supremacy was a "constitutional fact." That such a principle has greatly changed under the modern preisdency does not, in my mind, change the likely intent of our Framers. One (of several) reasons for a bicameral legislature was that the legislature is naturally preeminent, and thus in need of further checks and balances. For God's sake, there was not even a consensus on the creation of federal military forces, and the President was almost selected from within the legislature. Can anyone seriously suggest that the Founders would have approved of the power of the current Presidency (in domestic or foreign affairs), or have thought that an attempt by Congress to make the President comply with its own law an "attempt to reduce the President to a "mere servant"?
I would be grateful if anyone could point to any serious orginalist or historical scholarship that posits the contrary.
I don't see any reference in Will's piece to Jackson's concurrence. He is just citing the holding--as, in fact, the Court itself does in Hamdi, in the quote that McCarthy conveniently overlooks. Moreover, given that the Court itself adopted Jackson's framework in Dames &Moore, I don't see why citing Jackson's concurrence would be "egregious" in any event.
Of course, we have gone through all this before. So maybe we can lay out a template for future reference:
Pro-Administration Commentator 1 (P1): FISA is unconstitutional to the extent it applies to international communications because the President has plenary power over foreign affairs.
Critical Commentator 1 (C1): But the text of the Constitution explicitly gives power to all three branches of government with respect to various foreign affairs.
P2: But in Curtiss-Wright, the Supreme Court said the President was the "sole organ of the federal government in the field of international relations."
C2: But in Youngstown, the Court clarified that the President does not have exclusive power over all matters involving foreign nations, but rather just over certain specific roles, like negotiating treaties. And that is true even during war.
P3: Well, Youngstown was really just about domestic matters.
C3: Even if that was true in Youngstown itself, the Court in Dames &Moore explicitly extended the Youngstown framework to foreign matters. And in Hamdi, the Court explicitly extended the Youngstown framework to the current War on Terror.
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So, Bruce, whenever you feel inclined to reiterate P1, P2, or P3, feel free to mentally assume the response will be C1, C2, or C3 respectively, and keep moving forward through the template until you reach the end.
Of course, if you have a P4 to offer, I'd be interested to hear it.
And as always, it is worth noting that even Justice Thomas in Hamdi distinguished the courts from Congress, and implied that he would also apply the rule in Youngstown if it had been Congress instead of the courts. So, the likely vote count against McCarthy and Co was actually 9-0, not just 8-1.
On the first part of your question, to my knowledge there is no statute prohibiting such searches.
On the second part of your question: the 4th Amendment as applied to warrantless air travel searches has a complicated history. My impression is that very early on, such searches were justified in part on a Terry-style "minimal intrusion" rationale. But quickly they migrated over into an administrative/implied-consent rationale, the basic idea being that by choosing such a heavily-regulated means of travel, one has consented to such warrantless searches. As with many applications of the 4th Amendment, there is a bit of circularity here: the fact that people know they are subject to these searches if they travel by airplane implies their consent, and that consent in turn gives rise to the justification for conducting such searches in the first place.
But in any event, there are at least two key components of these cases that distinguish them from the NSA program at issue. One is that in order for there to be consent, there has to be notice--people have to know that they will be subject to such searches before they choose to engage in the activity. The NSA program, of course, was a complete secret, and therefore people had no notice and could not provide implied consent.
A second key component of the air travel cases is the claim (realistic or not) that people have a choice about whether or not they use this mode of travel, and they can choose another means if they want to avoid the intrusion associated with the searches. Of course, we don't know the details of the NSA program, but as far as we know there are no means of communication that are outside of the scope of the program, and hence there apparently is no ability to opt out of the regime. Indeed, this point works in conjunction with the first--even if there are means of communication outside of the program, the mere fact that we do not know what they are suggests that we are not giving our implied consent to surveillance by choosing a particular means of communication which is covered by the program.
But as a final aside--as I have noted before, I think the Terry "minimal intrusion" framework may well be applicable in some way to this issue. The Terry rule still seems to be that any such searches would have to be reasonable and subject to some sort of judicial review, but that judicial review could be retroactive. So, something like that analytic approach, which was present in the early air travel cases but has since been more or less dropped, could be applicable to this case.
Many other people arguing on behalf of the Administration have relied on the President's powers under Article II, Section 2, as the Commander in Chief of the Army and Navy. Thus, Will responds to arguments to arguments about the CIC power by referring to powers granted to Congress in Article I, Section 8, concerning the military. McCarthy relies more generally on the executive's authority with regard to foreign relations.
This shift on McCarthy's part only works if you can characterize what the NSA has been doing as inherently foreign -- i.e., the interception of communications that are entirely foreign or cross-border. Many of the Administration's defenders suggest that this is the case, and analogize the NSA program to, e.g., battlefield electronic surveillance. Many of the Administration's critics use the terms "domestic spying" or "domestic electronic surveillance," and suggest that the Administration has opened a home front in the global war on terror. Can anyone point to reporting that will resolve this question? Is the problem that we are talking about cross-border telephone calls which are both domestic and international, depending on your perspective?
While we disagree on what the outcome of such a court case would be, I agree wholeheartedly that the separation-of-powers issue sorely needs judicial review.
The shortest route to such review -- as I think you might agree after reading your comments in the recent threads about the FISC chief judges -- would be for the goverment to initiate a test case in the FISA courts under existing law. That is something DOJ has avoided for four years.
As for a legislative compromise, it is hard for me to see how it would resolve the festering crisis unless it included some mechanism to force the constitutional issues into court.
Absent something to get the constitutional merits resolved there, the conundrum remains: If Bush's claim that "inherent" powers in this area trump any legislation is literally correct, how can Congress legislate meaningful provisions at all?
The collateral question is: How can the President "agree" to such a compromise while reserving the right to break it?
The only way I can see legislation conforming to Bush's asserteed principle would be effectively to repeal FISA -- or carve out an anti-Al Qaeda exception -- and restore the explicit deference to such executive power that Congress repealed when it enacted FISA.
I doubt that would fly politically, and many would oppose it on civil-liberties grounds. In general, I fail to see how such an carve-out from FISA and Title III would be justifiably distinguishable from the case of state-based actors, such as North Korean or Iranian agents, or even from domestic terrorists such as Timothy McVeigh.
In the case of surveilling domestic terrorists, the court has ruled in the Keith case; Title III warrants are required. In the case of FISA, if it is unconstitutional we should repeal it or strike it down.
Kazinski: But one question for all those that said that the NSA program violates the bill of rights, since when does Congress have the authority to set aside the Constitution?
I am not sure that the NSA program directly violates the Bill of Rights, but the point is arguable. In any event, the Fourth Amendment limits both Congress and the President. Congress would have to take care in legislating to honor the parallel requirements in the Fourth: that searches not be "unreasonable," and that "warrants" require "probable cause."
It does seem to me that if a given search is unreasonable because there was no probable cause to issue a warrant, it does not become reasonable just because no warrant is involved. Others may disagree, and argue that there is no linkage between the two Fourth Amendment tenets. It does not seem to be a simple question.
Beyond the warrant requirements of FISA, there are disclosure provisions designed to protect against secret violation of civil liberties. Under the 72-hour emergency procedure we have heard so much about, there is this provision: If the government conducts such surveillance, and the FISC court disapproves it retroactively because there was no probable cause, the court then has a duty to inform the surveilled parties unless the government can show cause not to. The information gleaned from such surveillance cannot be used for any purpose.
I suspect that a major reason the government has gone around the FISA procedures is that following them would have required notification of hundreds or thousands of citizens, perhaps including some soccer moms in Dearborn, who are not Al Qaeda agents at all.
So under a "legalized" NSA program to surveill U.S. citizens here, another issue is how to provide similar protection to innocent victims caught in the dragnet. Current law at least provides them notification.
I can understand why you might think that Scalia is arguing for a kind of Congressional supremacy, but that pales in comparison to Will's version.
Second, the one source that is rarely seen in this debate, but is widely acknowledged as the most influential source for the separation of powers doctrine, is Charles Montesqieu. The premise he put forth in "The Spirit of the Laws" is the foundation for the tripartite system of government and its checks and balances. While Madison and Hamilton had different views on the executive and other aspects of the separation of powers, the one view they both agreed upon, and most of the Founding Fathers (sorry, I don't buy in to the revisionist PC 'Framers' designation), was a desire to prevent legislative supremacy. It is through Montesqieu's view of checks and balances that they sought to achieve that.
Third, we never seem to insert into the debate, that the legislative branch still holds the ultimate check, the trump card that overrides everything else. It is not the right to make law, which are subject to interpretation, but their control of the purse. Though they can repeal the AUMF, which would still leave the executive options, they have the final authority to refuse to fund any program, effectively ending and trumping any executive branch claims. So, any logical point to be gained by defenders of legislative intrusion into executive branch powers is standing on slightly flawed ground. The legislative branch is not powerless, in fact, in the power of the purse they hold the final word within their grasp. Should they choose to exercise that power, the people will then render their verdict in the next election.
Yes, Congress' lawmaking power is to be regarded as advisory upon the President, according to how he chooses to interpret legislation in light of his unique theories of Constitutional construction. But their power over the purse, the Congressional control over the Department of the Treasury... Oh. Wait. Well, the Advice and Consent of the Senate in the appointment of the Secretary of the Treasury at least... Well, that's some power. Unless the Secretary gets appointed during a Congressional snacktime recess or something, I guess.
I understand your reasoning, though Jefferson may not be a good example, even though his presence was not physically there at the Constituional Convention, his Declaration of Independence played a role in the framing. Contrarily, that attempted delineation is not historically grounded, as the distinction is a rather recent creation due to political pressure, primarily by feminists, to remove gender identification, hence my reference to revisionist PC. The terms were interchangeable and considered synonymous. I will continue to use Founding Fathers as a protestation of the subtle thought control propigated by the PC revisionist school.
I am not sure what your point is. The secretary of the treasury has no power over the legislative branch's power of the purse. His influence is in planning the budget for the president, which the president presents to Congress as a proposal. The Congress has the final say in how much will be spent, and on what programs it may or may not be spent. It is within the legislative branches power to refuse to fund anything, if it so chooses, in the extreme, but it has the power of refusal to fund specific programs.
My unanswered question: How can anyone think that the disputed program is monitoring purely domestic conversations when a) the Administration has been reported to have asked for and received hundreds of FISA warrants to do such domestic surveillance, b) none of the opponents who have been briefed (e.g. Rockefeller) has specifically asserted that such is being done, and c) none of the examples offered by the Administration is purely domestic?
These three lines of evidence lead to the conclusion that in fact we have a program of tracing communciations from known or suspected enemies abroad to domestic phone numbers, and back again. This could possibly violate FISA, on my reading, only if the technical means for doing it is on US soil or if sometimes an outward set of overseas calls from a single domestic target previously identified by an incoming call are tracked. This would be in the nature of tracing relayed battlefield communications.
Even under a view of Congressional supremacy, the executive is still explicitly the sole Constitutional agent for making tactical military decisions on the battlefield--which in this case spans Afghanistan, Pakistan, Iraq, Yemen, the Phillipines, etc. Among these decisions is the allocation of signal intelligence resources to different targets within the sphere of the campaign. Otherwise, the C-in-C provision is a meaningless figleaf read right out of the text.
Either FISA doesn't really prohibit the disputed program--my best guess--or FISA is unconstitutional, even under a theory of Congressional supremacy. The Congress cannot intervene directly, nor can it create courts to intervene directly, in ongoing battlefield tactics. It can refuse to fund various aspects of the NSA, or prohibit signals intelligence outright, but it cannot enter the tactical decision-making loop without transgressing Article II.
srp,
Would you please explain more clearly what you meant by the following:
"These three lines of evidence lead to the conclusion that in fact we have a program of tracing communciations from known or suspected enemies abroad to domestic phone numbers, and back again. This could possibly violate FISA, on my reading, only if the technical means for doing it is on US soil or if sometimes an outward set of overseas calls from a single domestic target previously identified by an incoming call are tracked. This would be in the nature of tracing relayed battlefield communications."
Unless the executive chooses to interpret the Constitution in a novel way so as to ignore Congressional budgetary authorization, of course. Because the Department of the Treasury has the actual purse itself, through the issuance of T-bills and collection of internal revenues. Then Congress becomes fully advisory to the discretion of the executive.
I do not know anyone who has said that this program is monitoring purely domestic communications. I am saying that it is targeting U.S. persons. I say this because the administration admits that this monitoring is under the definition of FISA. This would violate FISA and thus there's an issue. Mr. Bamford, Tom's favorite author, has noted that it is legal under FISA to surveil an overseas target who calls into the United States. This surveillance was conducted both prior to and after 9/11 and the AUMF. The issue at hand is that U.S. persons are being targeted and/or the monitoring is conducted in the United States. This being the case the program violates FISA and the reasoning put forward by the administration (that the AUMF fulfills a clause of FISA which refers to another statute) is weak and does not pass the smell test.
Noah
Do buy the administration's argument that the AUMF is the statute referred to in FISA?
Noah
are you arguing gathering intelligence on the enemy is not a function of war?
If yes: you are a fool
If no: your point about "Commander in Chief" is irrelevant.
I'm sure lots of other stuff is going on, too, but these are two possibilities that seem to me consistent with the public facts. In either case, it is constitutionally impermissible for Congress or a court to regulate, in the midst of an engagement, tactical decisions about which signals to track, even under a Congressional supremacy view of the Constitution. Otherwise, being the top military commander is meaningless.
Of course it is. And Congress has the power to regulate the functions of war, as part of its power to choose, if it so desires, to authorize limited as opposed to general hostilities. (Of course, whether it did so in this case is arguable.)
The comments from Roberts and Olympia Snowe on Friday were extremely interesting. It sounds like Snowe, contra to DeWine, thinks there should be some sort of ongoing judicial review, and Roberts is suggesting that is the dominant view in Congress.
So, it is no surprise that the White House was giving shout outs to DeWine, whose proposal requires only congressional review. But it looks like Congress is not willing to go so far with a compromise, and that may set up a real clash with the Administration, and explain why they are still being so wary when talking about legislation.
In the meantime, my own sense is that some sort of judicial review may well be a requirement of the 4th Amendment, even if it is only retroactive. So, insofar as Specter succeeds in getting this into the courts, what appears to be the dominant view in Congress may also get constitutional backing.
This is all very interesting. I'm getting to the point where I am wondering if the dominant view might be veto-proof, and what would happen next if the Administration refused to capitulate when it comes to judicial review.
It is understandable that the White House would view the DeWine proposal as its favorite vehicle, which then could be spun as "ratification." That, coupled with a signing statement reasserting a Supreme Article II power, probably would seem like a "win" to Bush.
Apparently there are many proposals all over the board.
I continue to believe there must be some means to force judicial review. I wish I knew what was in Specter's draft.
AFAIK, his proposal still deals with testing legality of the NSA program under existing law. Conceivably there could be a hybrid that put teeth into an amended law.
What if the act authorized augmented surveillance under FISC review somehow, and also imposed a duty on the AG to report to the federal courts (and Congress) any surveillance meeting the "exclusive means" definitions of Title III and FISA but not following their specified procedures?
The legislation then could impose a duty on those courts to notify the surveilled parties unless the government could show cause not to (similar to existing duty defined for 72-hour emergency surveillance that is later disapproved under FISA). Perhaps the legislation could also explicitly authorize the courts to enjoin such unauthorized surveillance? That part I am not sure of.
This is just my own uninformed speculation, but is seems that once Congress starts tweaking the FISA courts' jurisdiction, it could enable judicial review there in ways that do not depend on third parties to sue.
As an aside, if the Administration now views even just the DeWine approach favorably, that is a major retreat from the original Cheney/Gonzales position. I suspect the Administration must be somewhat surprised by how many Republicans are taking an independent approach (despite the White House's "But we could beat the Democrats with this issue!" message).
Anyway, I'm also not sure yet what legislation including judicial review could or should look like yet, in part because I don't really think we know yet what this program looks like. But if you believe Gonzales, it seems like you might be able to just relax the standards for initiating emergency surveillance (and perhaps specifically allow others beside the AG to initiate emergency surveillance). You might also want to change the procedures for when orders are denied in light of the relaxed initial standard.
How any of that would fit with Specter's project I couldn't say. And I also suspect this is not what the Administration wants precisely because it would authorize "this program" (the confirmed one), but nothing more.
I understand that the considerations of preventing an imminent attack are different from those of prosecuting someone after the commission of a crime. However, if evidence is acquired extrajudicially it may not be admissible later.
If the target of the surveillance is a foreign national it may be possible that deportation proceedings could still be brought. But what if the surveillance were to implicate the involvement of an American citizen? What recourse would the administration have to prosecute that person for conspiring to commit terrorism unless some other agency independently acquired evidence which was not tainted by the earlier surveillance? Should the administration just declare the person an "enemy combatant" and deprive him of a trial?
Even evidence of ordinary criminal activity which was uncovered could be suppressed, though. If the surveillance uncovered that the person was molesting children, for instance, what then? Executive detention in this case couldn't remotely be justified on military grounds, but if the person were not stopped children would continue to be harmed.
I am not entirely sure that the system you laid out fits into the proper mode of the courts. You seem to call for a judicial ruling on being notified by the executive, but I am not sure if this would meet the standard of cases and constroversies. Also I don't think it's likely that a method, such as informing surveiled targets, would be conducive to protecting national security. Finally, if there is no other party who would plead the case the appeals court if the case is appealed.
Perseus,
Without the AUMF argument and the inherent executive authority argument, how do you think the administration can justify this program? I would think that they could use Lincoln's argument of military necessity, yet that would not justify continuing this program for four years without requesting congressional approval.
Noah
One, the US is part of the theater of war, unlike any other modern (20th century on) war, the targets for enemy actions and attacks are within our borders, thus risk assessment and the threat matrix carry a large measure of weight and relevance.
Two, we all talk about legislative brnach power to regulate, within that power, is it not the legislative branch's responsibility to provide the necessary tools to protect and defend, as well as win the war ? Is the legislative branch negligent if they hinder or obstruct the ability to do so ? The DeWine proposal is the first attempt that I have seen of combining the power to regulate with the responsibility to provide the tools necessary for the executive branch to effectively carry out its oath.
Three, doesn't the executive branch, as a co-equal branch, have the a