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The NSA Eavesdropping Opinion, the FISA Claims, and the Separation of Powers / Inherent Power Claims:

As Orin pointed out last December, the strongest argument -- quite possibly an ultimately correct argument -- against the NSA program is that it violates not the Constitution, but the Foreign Intelligence Surveillance Act, which bans "engag[ing] in electronic surveillance under color of law except as authorized by statute." The government has responded that (1) the Authorization for the Use of Military Force implicitly authorizes certain warrantless surveillance, and that (2) the President in any case has inherent constitutional powers, powers that Congress can't limit (and that the Fourth Amendment doesn't limit, for reasons noted below, to engage in national security surveillance). Orin's post (a must-read) suggests that the government's responses are on balance not persuasive, and that the program probably violates FISA.

So it's possible that the court got the result right -- in my view, not on the First and Fourth Arguments, but on the FISA point. Nonetheless, if the court's FISA analysis is mistaken, then the other arguments (the separation of powers and the inherent power arguments) don't provide any independent basis for its decision. The separation of powers point rests on the assertion that "The President, undisputedly, has violated the provisions of FISA"; and the inherent power argument, which is long on rhetoric but short on detailed analysis, rests on the assertion that "Not only FISA, but the Constitution itself has been violated by the [program]." If the First and Fourth Amendment analyses are mistaken (as I think they are), and if the FISA analysis is mistaken, then the other analyses provide no independent foundation for striking down the program.

So, I think (as Orin's post suggested), the real foundation of this decision is FISA. If Congress prohibited this sort of eavesdropping via FISA, and didn't carve out an exception under the AUMF, then the program is indeed illegal (since I don't think the President's inherent power argument much works here, even as to violations of a statute). If FISA doesn't apply, though, then the program is permissible, because there's no First or Fourth Amendment violation here.

JunkYardLawDog (mail):
I am so sick of judges who want to get us all killed and destroy our society and culture. If only the times were such that Bush could just follow Lincoln's example and throw this [EV: gratuitous and vulgar personal insult of the judge removed] in a military prison.

Says the "Dog"

[JunkYardLawDog: Please calm down and avoid pointless personal insults.]
8.17.2006 4:15pm
Mr. X (www):
How does the rhetorical overreach in the opinion affect the potential for the injunction to be upheld based on the stronger FISA argument? In other words, does the fact that Judge Taylor found numerous problems with the program, some better supported than others, mean that an appellate court will focus in on the weak ones and reverse, or that they'll briefly dismiss the weak ones and uphold on the FISA claim?
8.17.2006 4:18pm
Dean Esmay (www):
I'll bet it doesn't stand on appeal.
8.17.2006 4:24pm
JunkYardLawDog (mail):
Does a federal judge have the constitutional authority to enjoin the executive from performing his duties as commander in chief? I see a separation of powers issue here and its this Judge's opinion and order attempting to encroach upon the Article II powers of the President. Well she's issued her order and the President should give it all the weight, concern, and deference to which it is entitled, right before they file it in the oval office trash bin. If she or any person through her seeks proof the government is complying with this order, the President should tell them to stick it where the sun doesn't shine. The President should just issue a statement that the executive branch's operations are being conducted in full compliance with the constitution and that is all the info they are going to provide at a time of war to this or any Judge.

Says the "Dog"
8.17.2006 4:27pm
Jason Fliegel (mail):
I haven't read the opinion or the briefs, but I do wonder whether the description of the government's arguments in the post above is comprehensive. That is, has the government really limited itself to saying 1) AUMF superseded FISA in certain respects, and 2) FISA was an unconstitutional encroachment on Article II powers?

If that's so then it is undisputed that the program violates FISA (although the government would contend that FISA is not operative law).
8.17.2006 4:27pm
miguel (mail) (www):
You state:


If FISA doesn't apply, though, then the program is permissible, because there's no First or Fourth Amendment violation here.


How is it possible that FISA could not apply to domestic warrantless wiretapping of communications of US citizens?

Do you claim that if FISA does not apply, no Fourth Amendment warrant requirement is implicated in the wiretapping of US citizens?
8.17.2006 4:36pm
Thorley Winston (mail) (www):
How is it possible that FISA could not apply to domestic warrantless wiretapping of communications of US citizens?


Because (a) it's not wiretapping and (b) the communications are international not domestic.
8.17.2006 4:51pm
JRL:
Just so I understand, does the following possibility exist:

1) The program is 'illegal' because it violates FISA
2) BUT, FISA, insofar as it reaches this program is unconstitutional as an infringement on the executives express powers
3) Therefore the program is proper

Is this a possible scenario?

Check the box, yes, no, maybe.
8.17.2006 4:55pm
srg (mail):
What about the question of standing? Was the judge correct here, or should she be overruled on appeal?
8.17.2006 5:12pm
srp (mail):
JRL: I would check the box "yes," insofar as NSA is pursuing tactical battlefield intel clearly under the purview of the Commander-in-Chief, as laid out in Article II. Interposing warrant requirements in the middle of a battle violates the separation of powers big time.

There are other arguments, although I'm not sure the Administration is making them or that they would stand up--for example, that FISA only applies to communications where there is a reasonable expectation of privacy, which cannot apply to international calls since foreign governments routinely intercept whatever they want without any warrants. Probably the lawyers here could explain why this argument doesn't fly.
8.17.2006 5:29pm
frankcross (mail):
You all should look into Ilya Somin's originalist analysis of the commander in chief power
8.17.2006 5:33pm
Greedy Clerk (mail):
The President should just issue a statement that the executive branch's operations are being conducted in full compliance with the constitution and that is all the info they are going to provide at a time of war to this or any Judge.

At the time the Supreme Court issued its unanimous opinion in Clinton v. Jones, we had troops in the field in several places, including conducting bombing runs in Iraq and had troops in Bosnia as well as elsewhere. Those were Congressionally authorized. Should the President have told the Supreme Court that the executive branch's operations are being conducted in full complinance with the constittuion and that is the info he is going to provide? If you don't believe so, why?

Interposing warrant requirements in the middle of a battle violates the separation of powers big time.

Under this reasoning, Congress has no power to regulate the President's conduct vis-a-vis US citizens in a "time of war." Under your definition of "battle" which is essentially the same as "time of war," the President can tell Congress to go f—- itself anytime it wants to surveil anyone anywhere by any means. Thus, the FBI could walk into your home, take your computers, guns, etc., and your attempt to appeal to Congressional statutes prohibiting that would be met with the argument you just adopted. Wow.
8.17.2006 5:41pm
Philistine (mail):
I would check the box "yes," insofar as NSA is pursuing tactical battlefield intel clearly under the purview of the Commander-in-Chief, as laid out in Article II. Interposing warrant requirements in the middle of a battle violates the separation of powers big time.



I'm not quite sure how it can be considered "tactical battlefield" intel when then information literally refers to the entire country (and beyond).

Also, why is a warrant requirement any more an imposition on "commander-in-chief" authority (and not instead a proper making of "rules for the government and regulation of the land and naval forces")--analagous to outlawing certain weapons on the battlefield (explosive small arms bullets, for example)?
8.17.2006 5:45pm
Steve:
The President should just issue a statement that the executive branch's operations are being conducted in full compliance with the constitution and that is all the info they are going to provide at a time of war to this or any Judge.

Isn't it amazing that there are people who actually believe our country should be run in this way? How pleased our Founders must have be to have thrown off the yoke of monarchy.
8.17.2006 5:45pm
Greedy Clerk (mail):
Have any of you adopting the argument that the "Commander-in-Chief" clause of Article II gives the President the power to ignore duly enacted Congressional statutes actually read the Constitution? or Article I and II thereof? I really suggest you take a look at it.

Here is the "Commander-in-Chief" clause which your entire argument hangs on:


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, and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.


Now, compare that clause to the following express grants of power to the Congress of the United States:

T

he Congress shall have power . . .

To constitute tribunals inferior to the Supreme Court;

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 make rules for the government and regulation of the land and naval forces;


Now, why do I think if Clinton or Carter were President, all of you would be, you know, taking the Constitution seriously. And not just pretending that the Constitution consists entirely of one sentence in Article II.
8.17.2006 5:49pm
Just an Observer:
JRL:
1) The program is 'illegal' because it violates FISA

2) BUT, FISA, insofar as it reaches this program is unconstitutional as an infringement on the executives express powers

3) Therefore the program is proper


Is this the government's position? Did they show up in court and actually make such an argument? (I'm not talking about making arguments in public and political venues, such as the 42-page press release called a "white paper.")

I know DOJ somehow defended the merits of its position in oral argument before Judge Taylor, but I don't know details beyond paraphrased new stories. As I understand it, the governemnt put most of its weight on the state-secrets-privilege, and was forced to argue the merits only because Taylor would not accept that claim of privilege up-front.

According to Taylor's opinion, the government merely ""suggested the unconstitutionality of FISA."

Perhaps now the administration will have to offer a more robust brief in a real court.
8.17.2006 5:52pm
Greedy Clerk (mail):
Isn't it amazing that there are people who actually believe our country should be run in this way? How pleased our Founders must have be to have thrown off the yoke of monarchy.

The only conclusion that can be reached is these people who believe that the only Constitutional clause relevant to any challenge to the President's conduct is the sentence that "The President shall be Commander in Chief of the Army and Navy of the United States" simply hate America -- or at least the America about which I was taught in the public schools of this country.
8.17.2006 5:53pm
A. Zarkov (mail):
I have some hypothetical questions. Suppose a foreign power invaded the US and had troops actively fighting the US armed forces. Would the President have to go to the FISA court, or any other court, to intercept enemy communications? Suppose the troops were part of an insurrection, like the Confederacy, where the combatants were US citizens. Would that make a difference? How big does an invasion or an insurrection have to get to treat it with the military instead of civil police actions? Suppose the enemies are members of the "Party of God," operating without uniforms and blending into the civilian masses. Can we treat them as an invading army or an insurrection? Would it matter if the POG were citizens, or had invaded clandestinely, say coming across the border from Mexico hidden in the masses than seem to pour in every day?

It seems to me that our old concepts and laws designed to fight national states in declared war don't apply to 21st Century asymmetric warfare. Am I missing something?
8.17.2006 6:16pm
abb3w:
I saw an amusing possibility in the reading of this. Assume that this holds; that this wiretapping has been done in violation of FISA and the fourth amendment. The president instituted this program under his authority as Commander in Chief and the AUMF. As such, doesn't that make the use of force unavoidably implied? And, as such, makes this a federal criminal violation of civil rights?

Yeah, I know, it's a stretch. I can dream, can't I?
8.17.2006 6:23pm
Thorley Winston (mail) (www):
At the time the Supreme Court issued its unanimous opinion in Clinton v. Jones, we had troops in the field in several places, including conducting bombing runs in Iraq and had troops in Bosnia as well as elsewhere. Those were Congressionally authorized. Should the President have told the Supreme Court that the executive branch's operations are being conducted in full complinance with the constittuion and that is the info he is going to provide? If you don't believe so, why?


Um, because in Clinton v Jones, then President Clinton tried to claim that he was immune from civil suits brought by a private citizen because he was the President. That he was Commander in Chief or trying to exercise his powers as Commander in Chief wasn't part of that issue. Also the military actions in Iraq and the Balkans occurred in 1998. The Supreme Court issued its unanimous ruling on Clinton v Jones in 1997.
8.17.2006 6:30pm
JunkYardLawDog (mail):
Greedy Clerk:

What Thorley Winston said.


Steve:

Its about throwing off the yoke of a monarchy run by a group of black robed oligarchs. Its in the tradition of the founders actions. You on the other fight to protect and extend the unelected monarchy of high law priests in black robes.

I think the founders would be proud of those who want to defend the country from its enemies at a time of war and want to take measures far less drastic than used by the UK and all of Europe to conduct enemy operations and security intelligence gathering. I think they would laugh themselves silly and then vote to impeach the federal judge so strikingly violating the separation of powers between the judiciary and the commander in chief. Then I think they would all get drunk a go to the judge's court and slap her/him silly.

Says the "Dog"
8.17.2006 7:00pm
Greedy Clerk (mail):
It seems to me that our old concepts and laws designed to fight national states in declared war don't apply to 21st Century asymmetric warfare.

The answer is to change the laws by lobbying Congress. Re the hypotheticals you posed, those are situations that we are not in right now and we don't make law based on wild hypotheticals. Nevertheless, if it really concerns you, lobby the Congress to amend FISA to make clear that in the case of an actual foreign invasion of the United States or in the unlikely event of a civil war, the President has authority to intercept communications without FISA warrants. Democracy is a wonderful thing.
8.17.2006 7:08pm
Greedy Clerk (mail):
Thorley Wilson. No. We were involved in military engagements in the Balkans and Iraq (as well as other places) when Clinton v. Jones were decided. We also were involved in the same struggle against international terrorism that we are involved in today -- remember the WTC bombing of 1993? In any event, the point is according to you and "the Dog" the President could have answered the Supreme Court by saying, "I am President. I have executive immunity and my administration is complying with the law as I understand it. Thank you very much, and I will not be appearing for any 'civil suit' you think I should be appearing for." Hell, we were "at war" so the President's war powers were being interfered with by the rogue courts --- Commander in Chief clause trumps everything, remember?
8.17.2006 7:12pm
Anderson (mail) (www):
Does a federal judge have the constitutional authority to enjoin the executive from performing his duties as commander in chief?

That would be called "begging the question."

Suppose a foreign power invaded the US and had troops actively fighting the US armed forces. Would the President have to go to the FISA court, or any other court, to intercept enemy communications?

Assuming that such intercepts somehow violated FISA, the President could surely (1) intercept as needed and (2) ask Congress, at the earliest opportunity, to amend FISA for the exigency at hand. Similar to Lincoln's extra-constitutional activities during the Civil War.

But given that 9/11 was 5 years ago, and that Congress has had little trouble sitting, the hypothetical doesn't seem terribly on-point; perhaps it wasn't meant to be.

It seems to me that our old concepts and laws designed to fight national states in declared war don't apply to 21st Century asymmetric warfare. Am I missing something?

Let's see: FISA was passed in, what, 1978? After we'd fought Vietnam and had plenty of experience with Soviet infiltration of the U.S. How is 21st century asymmetric warfare so completely different? We didn't have terrorists before 1978?

Besides that, what you're "missing" is that, if the Executive thinks the framework needs to be changed, there are ways of doing that legally. The problem here is, and has been since the NSA program was blown, that the Executive decided it could unilaterally disobey the law.

If we're going to trade liberties for security, we need to be doing it in a public debate with the cards on the table. Otherwise, we might as well throw the Constitution into the shredder and let the President &Congress fight out whether we're a monarchy or an oligarchy.
8.17.2006 7:14pm
Greedy Clerk (mail):
"Dog" -- why don't you get off the rhetoric re "black robed oligarchs" and actually make an argument based on the Constitution. I referred you to some provisions. Explain how one sentence that states a very general proposition, i.e. that the "President shall be Commander in Chief of the Army and Navy of the United States" trumps the much more specific grants of authority to Congress to enact statutes such as FISA. Then go read Article III, and that part about the Judicial Branch having to decide "cases and controversies" in accordance with the law. Now explain why the sentence in the Constitution stating that the "President shall be Commander in Chief of the Army and Navy of the United States" somehow means that Congress has no power to enact a law such as FISA and that, moreover, courts should not even address the question at all even though there is a "case or controversy" before them raising the question. I know this is all probably over your canine head, but please I am just so curious to understand how even a dog can somehow miss everything else in the Constitution besides that one sentence you and your ilk keep pointing to as if it is a magic potion to any argument that George W Bush (but probably not any Democratic President) has overstepped his authority.
8.17.2006 7:20pm
Warmongering Lunatic (mail):
It's a rather, er, interesting opinion.

The entire separation of powers section of the decision depends on FISA . . . but the court specifically ruled that the constitutionality of FISA was irrelevant. Huh? If FISA is unconstitutional, it's because Congress has no power to act; if Congress has no power to act, then the President can't be violating the separation of powers by ignoring Congresss's act. So this portion of the opinion cannot hold unless FISA is constitutional; if the constitutionality of FISA is irrelevant, so is the separation of powers question.

Moving on, the question of the AUMF vis-a-vis FISA runs into the problem that if FISA's validity is not relevant to the decision, wheether the AUMF modifies it or not is irrelevant. So another portion of the decision is, by the decision itself, irrelevant.

Now, as mentioned elsewhere, the First Amendment violation is dependent on the Fourth Amendment violation. So this section of the decision is a side issue; it is only relevant if the Fourth Amendment is violated.

So what's left? Well, the Fourth Amendment portion of the decision repeatedly cites FISA violations. All these specifit cites are similarly irrelevant, because whether FISA is of legal force is, according to the opinion itself, irrelevant.

What does that leave us with? The only part of the opinion that survives the opinion's own declaration of FISA's irrelevance is the claim that the Fourth Amendment requires warrants for searches. But case law is clear that it is not always the case, and no post-Keith precedent on foreign intelligence surveilance is cited even once that I noticed. All that is made is the statement that warrantless searches are to be considered unreasonable on their face.

That's the sole leg this decision stands on, having cut off its others by declaring FISA's constiutionality irrelevant.
8.17.2006 7:24pm
A. Zarkov (mail):
Re the hypotheticals you posed, those are situations that we are not in right now and we don't make law based on wild hypotheticals.

So I take it that your answer is "yes," absent new legislation, we would need to get a FISA warrant, perhaps retroactively, to monitor the communications of an invading army. Do you suppose we intercepted the communications of the British during the War of 1812, and these intercepts violated the constitution? In any case, my "wild hypotheticals" (why are they wild?) are only a start. I asked where the boundaries are. We might already have POG combatants as "sleeper" cells in the US, in other words, members of an invading army out of uniform. As things stand, we can't intercept their communications without a warrant. What's more troubling is how do you get a warrant for "data mining" where you don't know the target and the exact nature of the material.
8.17.2006 8:14pm
Just an Observer:
Warmongering Lunatic: The entire separation of powers section of the decision depends on FISA . . . but the court specifically ruled that the constitutionality of FISA was irrelevant. ... That's the sole leg this decision stands on, having cut off its others by declaring FISA's constiutionality irrelevant.

AFAIK, the administration did not actually argue in court that FISA is unconstitutional. It has not even made that claim forthrightly in its out-of-court PR statements.

Judge Taylor's opinion said the government merely "suggested the unconstitutionality of FISA." As I understand this case from paraphrased press reports, DOJ did not want to argue the merits at all, putting its weight on the procedural question of state-secrets privilege. DOJ lawyers made some sort of defense on the merits after Taylor refused to dismiss on those grounds. Whateever they said, apparently it was said without conviction.

The entire strategy of the administration has been to avoid judicial review of such core legal arguments, while spinning them in public and playing for a political solution in Congress. Perhaps now it will be obliged to brief the question robustly in a real court. If DOJ wants to claim that FISA is unconstitutional, a claim no administration has ever made, let it actually make the claim.
8.17.2006 8:16pm
srp (mail):
Greedy Clerk needs to go back and look at the previous, long threads where I explained my views on C-in-C in discussion with the more-sophisticated Medis. I hesitate to repeat the same points over and over. Cutting it short, I believe the Congress can ban electronic eavesdropping either directly or through its funding powers; it can exempt whole countries or classes of targets from surveillance; it can require detailed logs be kept of surveillance activities so that military justice can be applied to those who illegally surveil.

What the Congress cannot do is interpose itself (or the courts) into real-time tactical decisions about whom to surveil within these broad legal parameters. The very meaning of Commander-in-Chief entails exclusive supreme authority over military decisions taken during the course of operations. We can't have judges ruling on individual artillery strikes or bombing missions or communications intercepts. That is neutering the executive branch in one of its core functions, and is a clear violation of the separation of powers.
8.17.2006 9:03pm
Christopher Cooke (mail):
The "commander in chief" argument against FISA and Congress being able to regulate communications interceptions originating in the US or coming into the US is very thin. It essentially ignores all of the express powers granted to Congress under Article I (to regulate commerce, to establish the rules of war, etc) in favor of an expansive reading an "implied" authority that the President is viewed to hold because of his status as commander in chief, which is granted under Article II. Regarding the NSA program, the NSA, last I looked, is not part of the armed forces. So, how, may I ask, is the President's authority to be commander of the ARMED FORCES relevant to a civilian agency's ability to intercept communications involving US persons in the US?

Also, if you want to go with the "we are at war" argument, does it matter that Congress has not formally declared war, it has only issued an Authorization to Use Military Force. For those who say there is no difference, I say, look again. The Congress Research Office wrote a long paper on these historic differences between an AUMF and a Declaration of War. And, how is the NSA' interception of communications in the US a "use of military force"? It is not.
8.18.2006 12:05am
Bruce Hayden (mail) (www):
Repeating what has been rehashed here for months, but it is not just the CinC duty/power that is impacted here, but also the president's oath to "preserve, protect and defend the Constitution of the United States" has been interpreted to be a plenary duty and responsibility to preserve, protect, and defend the United States. Note the significant difference here between his duty to preserve, protect, and defend the Constitution of the U.S., and Congress', et al. oath to merely support it.

And that is part of the reason that you just can't say, CinC on his side of the ledger and then Commerce Clause on Congress' side, and then when you add in regulating the military, etc. it tilts to Congress. Because, in that case, Congress, having more power granting clauses, will always win. But that would defeat the whole concept of an Executive.

Of course, Judge Taylor ignored this, just mentioning the CinC role, and just slid around the entire debate by mentioning Jackson's Youngstown concurrence.
8.18.2006 12:35am
Just an Observer:
Bruce Hayden,

Judge Taylor can hardly be faulted for not analyzing and answering "what has been rehashed here for months."

Can you point to any arguments the government actually made in her court that resemble those you just rehashed above?
8.18.2006 1:04am
Steve:
So I take it that your answer is "yes," absent new legislation, we would need to get a FISA warrant, perhaps retroactively, to monitor the communications of an invading army. Do you suppose we intercepted the communications of the British during the War of 1812, and these intercepts violated the constitution?

Do you really think this silly argument is likely to persuade anyone of anything? Of course an invading army is not entitled to constitutional protections, nor to the protections of the FISA statute. If you want to claim that, improbably, the definitional sections of FISA actually apply to members of an invading army, you're going to have to cite something.

We might already have POG combatants as "sleeper" cells in the US, in other words, members of an invading army out of uniform. As things stand, we can't intercept their communications without a warrant.

It's a virtual certainty that al-Qaeda and Hezbollah, among others, have agents in the U.S. If they're citizens, whether we like it or not, they have constitutional rights. If they fit the definition of persons protected by the FISA statute, then they have rights under that statute.

I'm not thrilled about it - I wish we had some foolproof process by which we could line these people up and shoot them. But if you're going to say that a U.S. citizen forfeits their constitutional rights by aligning themselves with al-Qaeda, then you set us up for a Jose Padilla scenario where the government, by unilaterally declaring someone guilty, can free itself of the obligation to actually prove them guilty. You or I could be deemed to be members of al-Qaeda and we would have no process to allow us to prove otherwise. It would be an untenable situation.
8.18.2006 1:29am
Medis:
JaO is, of course, right about the meta-story.

We've had our fun here, but I think the Administration is well aware that testing its various Article II theories in court is only likely to generate even more unfavorable precedents.
8.18.2006 1:44am
JunkYardLawDog (mail):
EV, I did originally have the word in question spelled in the normal manner, but I thought that people might view that as over the top so I changed the spelling to modern slang that is subject to some interpretation.

I was trying to play nice, or at least that thought did occur to me.

Believe me what you have termed a gratuitous insult is about 1/1000th of what I think this particular federal judge deserves and what her unconstitutional order enjoining the commander in chief from gathering battlefield intelligence at a time of war deserves to have said about her and it.

I can't think of a more bizarre and offensive power grab by this judge and many in the judiciary than to violate the separation of powers embedded in the constitution by attempting to order what battlefield intelligence gathering can be done by the commander in chief at a time of war. It is no different than ordering the commander in chief to deploy troops in specific numbers and arrangements and to order the president at a time of war how, when, where, and with what he can engage the enemy.

Says the "Dog"
8.18.2006 2:36pm