The Volokh Conspiracy

Resolving the Goldsmith Contradiction:

Some of Glenn Reynolds/Instapundit's readers claim that there is a contradiction between his claim that Jack Goldsmith's new book on the War On Terror criticizes excessive legal constraints on presidential wartime authority, and Jonathan Adler and Orin Kerr's characterization of Goldsmith as criticizing the Bush Administration's assertions of virtually unlimited presidential power in time of war.

In reality, there is no contradiction here. Glenn is right to point out that Goldsmith believes that pre-9/11 law constrained presidential wartime authority too much, and that some of the Bush Administration's efforts were undercut by those constraints. But Orin and Jonathan are also correct in pointing out that Goldsmith disapproved of the Bush Administration's response to the problem. Instead of working with Congress and the courts to change overly restrictive laws (Goldsmith's preferred strategy), the Administration chose to claim that they already had the power to do almost anything the president might want to, so long as it has even a remote connection to waging the war. As Goldsmith argues, this approach is bad law because the Constitution does in fact allow congressional and judicial restriction of the president's warmaking powers, and in some cases even requires it (for my take on these issues in a debate with John Yoo and others, see here).

Goldsmith also argues that the Bush Administration's approach was politically counterproductive and led to an actual diminution of the executive authority that the administration sought to enhance. Bush's overreaching generated a backlash in Congress and the courts that eventually led to stronger curbs on executive power than would have existed had the Administration tried to work with Congress early on and made less sweeping (but still broad) claims of inherent presidential power. As Goldsmith himself puts it, “They [the Bush Administration] embraced this vision because they wanted to leave the presidency stronger than when they assumed office, but the approach they took achieved exactly the opposite effect. The central irony is that people whose explicit goal was to expand presidential power have diminished it.”

In sum, Goldsmith believes that the War on Terror has been hobbled by excessive legal constraints, but also argues that the Bush Administration's response to the problem was both legally dubious and politically counterproductive. In my view, he is largely correct on both counts.

Related Posts (on one page):

  1. More from Jack Goldsmith:
  2. Resolving the Goldsmith Contradiction:
  3. The Conscience of Jack Goldsmith:
Henri Le Compte (mail):
Perhaps I am overly influenced by today's political bloodlust, but it is hard to imagine the Bush Administration and Congress working collaboratively on anything, even a topic as important as national defense. Instead, I forsee an attitude of mutual paranoia, as both sides worry excessively about how their "collaboration" could provide ammo for their critics, and domestic, partisan enemies.

The Goldsmith conclusion, seen from a slightly broader perspective, is just another outcome of our current hyperpartisan times.
9.7.2007 8:08am
PersonFromPorlock:
Because the President is the head of a co-equal branch of government while the Commander-in-Chief merely heads a component of government whose regulation is subject to Congress's Article I powers, I maintain that CinC is a separate position from the Presidency whose only qualification is that the CinC be President.

Mr. Bush has never grasped that when he puts on the Brass Hat he subordinates himself to Congress rather than increases his autonomy. The Presidency gains no power when the President functions as CinC.
9.7.2007 8:08am
A.S.:
<i>Bush's overreaching generated a backlash in Congress and the courts that eventually led to stronger curbs on executive power than would have existed had the Administration tried to work with Congress early on and made less sweeping (but still broad) claims of inherent presidential power.</i>

This is ridiculous. Bush most certainly DID work with Congress early on, and Congress passed the USA Patriot Act, which was passed with overwhelming majorities in both houses. And did Bush's working with Congress prevent a backlash? Absolutely not - the Democrats demogogued the Patriot Act to death. In fact, I'd argue that the Democrats' horrific demagoguery proved the Administration's point - working with Congress is an absolute mistake.
9.7.2007 8:16am
Temp Guest (mail):
As someone who was working on security-related issues in Washington post-9/11 and who observed from the periphery during the drafting and enactment of the PATRIOT ACT, I can honestly affirm that there was a very large contingent of liberal Democrats in Congress who fought all the significant enhancements of national security in the PATRIOT ACT and would have sabotaged any attempt of the President to work with Congress and the Courts in the manner that Goldsmith suggests was a possibility. It may have been a strategic mistake on the part of President Bush's administration to take the path they did. It was definitely not a tactical error and in the heat of battle sometimes tactical neccessity must temporarily trump strategic designs. Goldsmith appears to have amde this point from what little I have gleaned about his book's contents.
9.7.2007 8:21am
Bart (mail):
I believe the criticism was of the one sided and intentionally misleading NYT characterization of the Goldsmith book as one long criticism of the Bush decision to ignore pre 9/11 constrains on the Presidency, which multiple professors here and over at Balkinization appear to have taken at face value, when in fact Goldsmith is highly critical of the pre 9/11 constraints and simply disagrees with the the actual scope of Presidential power with some refreshingly human doubts about whether his take is actually correct.

For those who recall a similar one sided and intentionally misleading media spin on Ron Suskind's "One Percent Solution," all of this will be very familiar.

Believe anything the NYT has to say about the Bush Administration at the risk of looking foolish a couple days later.
9.7.2007 8:41am
Anderson (mail):
Gotta agree with Prof. Somin.

Temp Guest: "Very large"? How large was this contingent of the minority party? Which provisions of the Patriot Act, etc., were filibustered? "Would have sabotaged" how, exactly?
9.7.2007 9:01am
Steve:
I think Anderson has it right. What amazes me is that anyone could look at the way things actually turned out and still believe that Bush's "go it alone" strategy was the best.
9.7.2007 9:17am
David Sucher (mail) (www):
"...working with Congress is an absolute mistake."

And you are an American? That anyone can seriously say such a thing shows how far Bush-mind has succeeded in corroding the outlook of otherwise decent people.
9.7.2007 9:21am
J. F. Thomas (mail):
Glenn is right to point out that Goldsmith believes that pre-9/11 law constrained presidential wartime authority too much, and that some of the Bush Administration's efforts were undercut by those constraints.

Well I guess this is true if you believe the UCMJ constrains your hands too much and you want to torture people and suspend habeas in violation of the constitution. Otherwise, Goldsmith's argument is just that of someone who thinks the Constitution and our entire system of laws is just an inconvenience meant to be cast aside at upon the flimsiest pretense.
9.7.2007 9:27am
Bart (mail):
Bush failed to work with Congress? Are you kidding?

Do the AUMFs against al Qaeda and Iraq, briefings to Congress on the TSA, Patriot Acts, DTA, MCA, and FISA reform ring any bells?

Perhaps, the complaint is really not that Bush did not work with Congress, but rather that he had his way in Congress without many concessions to the Dem anti military left.
9.7.2007 9:31am
Anderson (mail):
That anyone can seriously say such a thing shows how far Bush-mind has succeeded in corroding the outlook of otherwise decent people.

David Sucher retains the ability to be shocked by the shocking; I had actually missed that little gem.

One sees dictatorship advocated so casually these days.

Oh, and Bart: we know what those "briefings" consisted of. Whom are you trying to kid?
9.7.2007 9:39am
TyWebb:
Bart,

The Detainee Treatment Act, The Military Commissions Act, TSA briefings, and FISA reform actually prove the point that Bush failed to work with Congress. They were responses to secret executive programs that resulted in the administration being caught with their hands in the cookie jar. Quoting that is like saying that Nature Boy Ric Flair is honestly Hulk Hogan's buddy when he's begging for mercy, even after pulling dirty tricks on the Hulkster for most of the match.

You can't decide you're going to go it alone, get caught, and then quote the conciliatory measures you use to save face as evidence that you were willing to collaborate all along.
9.7.2007 9:47am
Anderson (mail):
Back to Goldsmith: here's a little juxtaposition for ya.

Slate quotes from the book (yes, another grasp at the elephant):

[Addington] had unshakable beliefs about executive power, about the correctness of his legal positions, about the nature and severity of the terrorist threat, and about what was necessary to defeat the threat. He thought that others had less information than the White House did about the threat, and were motivated by concerns other than what would best protect the American people.

Remember our discussion a few threads back about deference to the executive on matters of national security? Addington convinced himself, as people in his position are wont to do, that he knew best because he knew most.

Now, by way of counterexample, click through to this story about the Iraqi minister, Sabri, who became an informant and told us the goods on Saddam's WMD's -- namely, that there weren't any.

On the eve of Sabri’s appearance at the United Nations in September 2002 to present Saddam’s case, the officer in charge of this operation met in New York with a “cutout” who had debriefed Sabri for the CIA. Then the officer flew to Washington, where he met with CIA deputy director John McLaughlin, who was “excited” about the report. Nonetheless, McLaughlin expressed his reservations. He said that Sabri’s information was at odds with “our best source.” That source was code-named “Curveball,” later exposed as a fabricator, con man and former Iraqi taxi driver posing as a chemical engineer.

The next day, Sept. 18, Tenet briefed Bush on Sabri. “Tenet told me he briefed the president personally,” said one of the former CIA officers. According to Tenet, Bush’s response was to call the information “the same old thing.” Bush insisted it was simply what Saddam wanted him to think. “The president had no interest in the intelligence,” said the CIA officer. The other officer said, “Bush didn’t give a fuck about the intelligence. He had his mind made up.”


Superior knowledge, indeed. Never forget the grim truth behind Asquith's snark re: the Imperial War Council: "They kept 3 sets of casualty figures, one with which to deceive Parliament, one with which to deceive the Cabinet, and the third with which to deceive themselves."
9.7.2007 9:54am
A.S.:
And you are an American?

Why does the left persist on questioning peoples' patriotism?

The President has inherent powers under the Constitution. I simply advocate using those inherent powers to the extent possible.

As I pointed out above, the Patriot Act shows the folly of trying to work with Congress on everything. Goldsmith's book, from what I gather so far without having read it, seems to me to be a Rodney King-like "Can't we all get along" plea. I mentioned on Adler's post the other day, seems an Ivory Tower reponse to what is, at heart, a political struggle.

Bush tried to extend a hand to work with the Democrats in Congress with the Patriot Act. He got his hand bitten in response. Once bitten, twice shy.
9.7.2007 10:00am
JosephSlater (mail):
Quoting that is like saying that Nature Boy Ric Flair is honestly Hulk Hogan's buddy when he's begging for mercy, even after pulling dirty tricks on the Hulkster for most of the match.

Best analogy of the week.
9.7.2007 10:33am
Daniel San:
A.S.:seems an Ivory Tower reponse to what is, at heart, a political struggle.

Call Goldsmith wrong or naive if that is what he is. But his book is certainly not a product of isolation in an Ivory Tower.
9.7.2007 10:39am
Oren (mail):

Best analogy of the week.
9.7.2007 10:43am
Montie (mail):

As someone who was working on security-related issues in Washington post-9/11 and who observed from the periphery during the drafting and enactment of the PATRIOT ACT, I can honestly affirm that there was a very large contingent of liberal Democrats in Congress who fought all the significant enhancements of national security in the PATRIOT ACT and would have sabotaged any attempt of the President to work with Congress and the Courts in the manner that Goldsmith suggests was a possibility.


I am playing Monday morning quarterback, but I think that the Bush administration should have taken them head on.

There were (and are) too many on the Left who are willing to take positions that they don't even believe to simply score points against the Administration. Consider the Swift payments system for example. There were many on the Left who (at least initially) implied that there was an absurdly broad right to privacy in financial transactions (e.g., many IRS programs to catch tax cheats would trample on this right). In situations such as these, the Administration should have directly called their opponents into account for their cynical positions.
9.7.2007 10:47am
Bart (mail):
TyWebb:

Bart, The Detainee Treatment Act, The Military Commissions Act, TSA briefings, and FISA reform actually prove the point that Bush failed to work with Congress. They were responses to secret executive programs that resulted in the administration being caught with their hands in the cookie jar.

Hand in the cookie jar?

The TSP briefings started when the TSP started.

The FISA reform request started immediately after the FISC reneged on a prior agreement to grant warrants to the TSP.

The intent to conduct trials of foreign unlawful enemy combatants by military commissions was well known and not secret.

The DTA and MCA were reactions to and corrections of aggressive court decisions extending habeas corpus for the first time in history to foreign enemy combatants challenging their wartime detention and holding that Congress somehow meant to extend military courts martials to foreign enemy combatants.
9.7.2007 10:53am
Just an Observer:

Goldsmith also argues that the Bush Administration's approach was politically counterproductive and led to an actual diminution of the executive authority that the administration sought to enhance. Bush's overreaching generated a backlash in Congress and the courts that eventually led to stronger curbs on executive power than would have existed had the Administration tried to work with Congress early on and made less sweeping (but still broad) claims of inherent presidential power.


I'm still having trouble with this concept. It seems to me that Bush has succeeded in thumbing his nose at Congress and the courts, and has done so with impunity.

In some cases, such as the "Terrorist Surveillance Program," he has blatantly violated the law and escaped judicial review or even political censure in Congress. In the matter of detainee treatment and trial, Bush has lost some cases in the Supreme Court (Rasul, Hamdan) on statutory grounds, but belatedly got about all he asked for from Congress to overturn those decisions in the MCA -- including habeas-stripping and a retroactive rewrite of the War Crimes Act to legalize past violations by the executive branch.

Even on FISA, Bush recently has obtained much of what he demanded from a Democratic Congress. He failed to get a more ambitious gutting of FISA passed last year, but the play is not over.

As for the courts, once it became apparent that the Addington/Yoo Article II theory cannot prevail in SCOTUS, the administration has successfully pursued a strategy of avoiding review of that theory, while continuing to proclaim it in public.

(The administration and its allies in Congress do seem destined to lose on another constitutional issue -- habeas review for Guantanamo detainees. Technically, if that happens, it is Congress that will be reined in for violating the Suspension Clause via the MCA as applied to Guantanamo.)

The USA-PATRIOT Act, a substantial toolkit of additional authority granted to the President, was passed and later reauthorized. (BTW, does A.S. in his comments above mean to argue that Bush should simply have assumed those additional powers by fiat, without legislation?)

In general, where are the "stronger curbs on executive power?" I can't find them. Bush will run out the clock without meaningful rebuke, leaving his successors with historical (if not legal) precedents for defying the rule of law by fait accompli.
9.7.2007 11:07am
Tom Cross (www):

As I pointed out above, the Patriot Act shows the folly of trying to work with Congress on everything.

Bush tried to extend a hand to work with the Democrats in Congress with the Patriot Act. He got his hand bitten in response. Once bitten, twice shy.

In other words, we will agree to "work with you" only if you agree to every single detail of everything that we ask for, without debate. If you are unwilling to agree to our proposals without critical analysis it is in our best interest to avoid dealing with you at all and simply govern by fiat. Obviously all of those asking for things like judicial oversight of NSLs, for example, are partisan marketing people who are sacrificing the safety of Americans in order to win elections. How could any serious thinking person disagree with any word in the Patriot act? Thinking people don't disagree. Thinking people do what they are told by us. We know whats good for you.
9.7.2007 11:15am
Steve:
Bush tried to extend a hand to work with the Democrats in Congress with the Patriot Act. He got his hand bitten in response. Once bitten, twice shy.

He got a 99-1 vote in favor, for the love of God.

The fact that later, some people starting having problems with antics like the rampant abuses of NSLs is hardly a reason to point the finger at Congress. They were the ones who, perhaps foolishly, believed the Executive Branch would use their new powers in good faith.

The administration had every chance to get Congressional approval for amendments to FISA, long before the warrantless wiretapping program became an issue. They chose not to because they wanted to set a precedent regarding presidential powers, not because they were afraid the Democrats would demagogue the issues. Indeed, anyone who remembers the 2006 campaign ("Democrats don't want to listen in on the terrorists!") would laugh at the notion that the White House was afraid of Democratic demagoguery on the issue.
9.7.2007 11:34am
Anderson (mail):
He got a 99-1 vote in favor, for the love of God.

No fair bringing in facts, Steve.
9.7.2007 11:36am
JB:
A.S: "Why does the Left persist on questioning peoples' patriotism?"

Oh, that's a good one. Which side has been calling opponents of the current administration traitors?

Seriously, tell another one. I need to split my other side laughing.
9.7.2007 11:36am
Benjamin Davis (mail):
How about a view from someone in Cambodia on what is going on in the US?
Best,
Ben



"The case of U.S. national security issues is now like the case of Democratic Kampuchea Regime from 1975 to 1979. Let's me briefly reveal you a bit about this regime: In that regime, there is not privacy, no privacy at all. Whatever you do is under the eyes of "Pineapple Organization." We call pineapple organization, because the eyes is everywhere to watch you. Your child may be the secrete agent, your husband may be a secrete agent, so when you talk bad about the regime, you will be known and be prosecuted.

At that time, everyone seems to be under the eyes of the regime. The enemies must be killed, just to sustain the regime. Why the regime do this? In order to stabilized, to sustain and to perfect the regime. The regime is too careful about the enemies, then he was alleged to be suffered from "political illness."

The case is now similar to us, where the Bush Administration is creating "Pineapple Organization.""
9.7.2007 11:42am
anduril (mail):
An important consideration to add to the mix: the Bush administration--in common with all previous administrations, Democratic and Republican alike--has refused to concede the constitutionality of FISA as it impinges on the President's national security responsibilities. Dicta in federal District and Appellate cases have supported that interpretation, most notably in Judge Silberman's Patriot Act decision In re Sealed Case. Moreover, the Bush administration is not the only administration to have violated provisions of FISA for what have been considered to be good reasons. The Clinton administration knowingly brushed FISA aside by conducting multiple warrantless searches of Aldrich Ames--yes, that's multiple, as in: the first search might have been an emergency, but the second and third and...

From a national security standpoint the entire history of FISA is a narrative of the Executive Branch seeking to safeguard its powers against the encroachments of an increasingly imperialistic Legislative Branch, while avoiding provoking a Constitutional showdown. Why avoid such a showdown? Because it would have been played out in a superheated public forum, in which the usual civil liberties rhetoric (displayed so inappropriately by Judge Marrero in his latest opinion) would be deployed to force the Executive Branch to buckle. In such an event an appeal to the Judicial Branch might well result in a far reaching political defeat with Constitutional consequences, no matter what the Judicial Branch might rule. These are important considerations that are sadly missing from this forum's discussion. While Bush has been able to win some of these political struggles, it has not been easy and opposing arguments emanating from Congress have typically not been based on principled Constitutional analysis; rather, they have been presented for short term political advantage to the detriment (and it appears Professor Goldsmith would agree) of national security.

Not having access to Professor Goldsmith's book, I can't say how he addresses these issues. From what I've read on the internet, it appears that he may not take this bull by the horns. And that would be unfortunate.
9.7.2007 11:42am
Montie (mail):

The case of U.S. national security issues is now like the case of Democratic Kampuchea Regime from 1975 to 1979. Let's me briefly reveal you a bit about this regime: In that regime, there is not privacy, no privacy at all. Whatever you do is under the eyes of "Pineapple Organization." We call pineapple organization, because the eyes is everywhere to watch you. Your child may be the secrete agent, your husband may be a secrete agent, so when you talk bad about the regime, you will be known and be prosecuted.


Call me an administration stooge, but I really have to question the reliability of anyone who directly compares the current Administration to the Khmer Rouge.
9.7.2007 11:51am
srg:
A.S.,

How did the Democrats demagogue the Patriot Act to death? Congress passed it.
9.7.2007 11:52am
SG:
Yup, the Patriot act passed 99-1 and was still used by Democrats as an example of the proto-facist Bush administration running roughshod over our civil liberties. A shining example of Democratic good-faith there.

I don't support everything the Bush administration has done, but the oppostion has been completely feckless. I wish the Democrats (who do now control both branches of Congress) would actually do something about these horrible abuses they continually decry, like say, pass some legislation. Halt funding Iraq, overturn the Detainee Treatment Act, grant habeas to the entire world. There's lots of possibilities. Do something other than continually bitch about big bad Bush.

Of course, if they actually did something, then they might be held to account for those decisions. I suppose its safer politically to just keep throwing bombs at the President...
9.7.2007 12:00pm
Montie (mail):

How did the Democrats demagogue the Patriot Act to death? Congress passed it.


Well, there are some Democrats that voted for it and now say that they would have voted against it "had they had known" about some unspecified ramification. It is not unheard of for politicians to take both sides of an issue.
9.7.2007 12:01pm
Steve:
The Clinton administration knowingly brushed FISA aside by conducting multiple warrantless searches of Aldrich Ames--yes, that's multiple, as in: the first search might have been an emergency, but the second and third and...

Just so you know, FISA did not apply to physical searches prior to 1995, when Clinton signed an amendment into law. The Aldrich Ames search occurred in 1993.
9.7.2007 12:02pm
Tom Cross (www):

The case is now similar to us, where the Bush Administration is creating "Pineapple Organization.""

Well, thats obviously not true, but there seem to be many who would eagerly sign up for such an organization if it were. How far is it from "opposing arguments... have been presented for short term political advantage to the detriment of national security" to the conclusion that people who disagree with us must be prosecuted because they are enemies of the state?
9.7.2007 12:02pm
Just an Observer:
anduril:

An important consideration to add to the mix: the Bush administration--in common with all previous administrations, Democratic and Republican alike--has refused to concede the constitutionality of FISA as it impinges on the President's national security responsibilities. ... The Clinton administration knowingly brushed FISA aside by conducting multiple warrantless searches of Aldrich Ames ...

If you purport to provide "an important consideration to add to the mix," it would be better if you told the truth.

Please provide citations, after the passage of FISA in 1978, from the Carter, Reagan, Bush 41 and Clinton administrations where those presidents expressly "refused to concede the constitutionality of FISA." I don't believe there are any.

Nor do I believe that any president before Bush 43 ever violated FISA.

As for the Aldrich Ames search, that occurred before FISA was amended to bring such physical searches into its scope, an amendment supported by the Clinton administration.

If the current administration wants to be the first to challenge the constitutionality of FISA, let it do so in court. But Bush's lawyers avoid judicial consideration of that very question, because they know they would lose overwhelmingly in the Supreme Court.
9.7.2007 12:04pm
Tom Cross (www):
SG:

I wish the Democrats (who do now control both branches of Congress) would actually do something about these horrible abuses they continually decry, like say, pass some legislation.

There have been numerous Democratic proposals to amend the Patriot act. If you're wondering why they aren't busy right now passing laws that Bush would veto, the answer is because Bush would veto them.
9.7.2007 12:06pm
Montie (mail):

How far is it from "opposing arguments... have been presented for short term political advantage to the detriment of national security" to the conclusion that people who disagree with us must be prosecuted because they are enemies of the state?


About as close as saying that people who oppose social programs don't care about the poor is to the conclusion that people who disagree with social programs must be thrown in the Gulag.
9.7.2007 12:09pm
Bart (mail):
srg:

A.S., How did the Democrats demagogue the Patriot Act to death? Congress passed it.

Nothing prevents a Congressional Representative or Senator from demagoging a piece of legislation and then voting for it anyway. These are not mutually exclusive events.

Rather, it is merely yet another demonstration of the hypocrisy in which the modern Dem politician has to engage to satisfy his anti military base (a majority of his or her party, but a minority of the electorate) while not offending everyone else he or she needs to get reelected.
9.7.2007 12:12pm
SG:
And to echo Montie, does anyone else see any irony in someone making a stright faced comparison between the Khmer Rouge and the Bush Administration in posting under their own name to a public forum? Because if there's one thing the Khmer Rouge was renowned for, it was allowing open disparagement of the regime.
9.7.2007 12:12pm
Kazinski:
I guess what Goldsmith misses, is that the precedent of previous wars, and Supreme Court precedent all mostly supported the Bush Adminstration positions. Youngstown, Keith, Truong, Re-Sealed Case all provided the Adminstration solid ground for its positions.
9.7.2007 12:17pm
anduril (mail):
Steve, I stand corrected re the application of FISA to physical searches prior to 1995.

However...

The Ames case nevertheless makes my point. The Clinton administration argued that its warrantless searches did not violate existing search and seizure law because (they argued) the Executive has inherent power to conduct warrantless national security searches. This is the position that all administrations have so far refused to concede, most recently in the run-up to the amendments to the FISA law. The administration essentially asked--nay, strongarmed--Congress to amend FISA while refusing to concede its constitutionality. Just as the Clinton administration supported amendments to FISA but refused to concede its constitutionality. This isn't about Dem v. GOP or liberal v. conservative. Edward Levi, under Carter, took the same position: we support FISA but we won't concede that it's constitutional in its entirety.

Because it's a useful summary, here is an article by Byron York on this history:

In a little-remembered debate from 1994, the Clinton administration argued that the president has "inherent authority" to order physical searches — including break-ins at the homes of U.S. citizens — for foreign intelligence purposes without any warrant or permission from any outside body. Even after the administration ultimately agreed with Congress's decision to place the authority to pre-approve such searches in the Foreign Intelligence Surveillance Act (FISA) court, President Clinton still maintained that he had sufficient authority to order such searches on his own.

"The Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes," Deputy Attorney General Jamie Gorelick testified before the Senate Intelligence Committee on July 14, 1994, "and that the President may, as has been done, delegate this authority to the Attorney General."

"It is important to understand," Gorelick continued, "that the rules and methodology for criminal searches are inconsistent with the collection of foreign intelligence and would unduly frustrate the president in carrying out his foreign intelligence responsibilities."

Executive Order 12333, signed by Ronald Reagan in 1981, provides for such warrantless searches directed against "a foreign power or an agent of a foreign power."

Reporting the day after Gorelick's testimony, the Washington Post's headline — on page A-19 — read, "Administration Backing No-Warrant Spy Searches." The story began, "The Clinton administration, in a little-noticed facet of the debate on intelligence reforms, is seeking congressional authorization for U.S. spies to continue conducting clandestine searches at foreign embassies in Washington and other cities without a federal court order. The administration's quiet lobbying effort is aimed at modifying draft legislation that would require U.S. counterintelligence officials to get a court order before secretly snooping inside the homes or workplaces of suspected foreign agents or foreign powers."

In her testimony, Gorelick made clear that the president believed he had the power to order warrantless searches for the purpose of gathering intelligence, even if there was no reason to believe that the search might uncover evidence of a crime. "Intelligence is often long range, its exact targets are more difficult to identify, and its focus is less precise," Gorelick said. "Information gathering for policy making and prevention, rather than prosecution, are its primary focus."

The debate over warrantless searches came up after the case of CIA spy Aldrich Ames. Authorities had searched Ames's house without a warrant, and the Justice Department feared that Ames's lawyers would challenge the search in court. Meanwhile, Congress began discussing a measure under which the authorization for break-ins would be handled like the authorization for wiretaps, that is, by the FISA court. In her testimony, Gorelick signaled that the administration would go along a congressional decision to place such searches under the court — if, as she testified, it "does not restrict the president's ability to collect foreign intelligence necessary for the national security." In the end, Congress placed the searches under the FISA court, but the Clinton administration did not back down from its contention that the president had the authority to act when necessary.
9.7.2007 12:23pm
Anderson (mail):
srg: A.S., How did the Democrats demagogue the Patriot Act to death? Congress passed it.

Bart: Nothing prevents a Congressional Representative or Senator from demagoging a piece of legislation and then voting for it anyway.

Did you miss "to death," Bart?

But really, I just came back to remark that The Goldsmith Contradiction is a great Robert Ludlum title.
9.7.2007 12:27pm
SG:
Tom Cross:

I don't care that Bush would veto the legislation at this point in time. There's going to be another election soon, lay down a marker. Passing legislation (even if vetoed) actually takes a stand and seizes the initiative. It shows the people where the Democrats intend to go which enables us (the voters) to make better informed decisions.
9.7.2007 12:29pm
Bart (mail):
"To Death" is usually used to demonstrate excessiveness and not generally meant literally.
9.7.2007 12:32pm
Thales (mail) (www):
Priceless, and hopefully intentionally ironic question:

"Why does the left persist on questioning peoples' patriotism?"

*Blink* Was this person awake during the period from 9/12/2001 to the present, especially during the 2002 midterm elections and the 2004 presidential elections?
9.7.2007 12:32pm
Steve:
Even after the administration ultimately agreed with Congress's decision to place the authority to pre-approve such searches in the Foreign Intelligence Surveillance Act (FISA) court, President Clinton still maintained that he had sufficient authority to order such searches on his own.

This sentence by York makes no sense. Clinton took the position in 1994 that he had the inherent authority to conduct physical searches. The statute wasn't amended until 1995.

Yes, Clinton tried to persuade Congress not to amend the statute, but there's no evidence to support the proposition that he felt he was entitled to disregard FISA even after it was amended. The "inherent authority" under discussion here is inherent authority in the ABSENCE of legislative action on the subject.
9.7.2007 12:32pm
Just an Observer:
anduril,

No one disputes that presidents possess inherent authority to conduct foreign intelligence surveillance. Gorelick's testimony -- which actually supported the then-proposed amendment to FISA covering physical searches -- is consistent with that.

But "inherent" does not mean exclusive or indefeasible. It just means that the authority in question is not explicit in the Constitution or expressly authorized by Congress.

But Congress still can regulate the application of that authority, which in this field it did for the first time when it enacted FISA. There is a huge difference between what the president can do when Congress has been silent, and what he can do after Congress has prohibited something, in this case warrantless surveillance. Read Youngstown.
9.7.2007 12:33pm
anduril (mail):
Just An Observer, my immediately preceding post answers your most substantive criticisms. It's important to note that, while the warrantless Ames searches did not violate FISA at that time, they did violate what was considered to be existing and well established search and seizure law in criminal investigations. While the Ames case was a national security matter, of course, it was also a criminal case--as evidenced by his conviction using evidence that was seized pursuant to the warrantless searches. The only reason that flew was because President Clinton claimed "inherent authority" to conduct warrantless searches in national security matters--even when the product of those searches would be used in a prosecution. So, let's be real here: does anyone doubt that the administration intended all along to prosecute Ames? Of course not.

Again, not to be too pompouse, but I'll quote myself: This isn't about Dem v. GOP or liberal v. conservative. It's about separation of powers and preservation of an effective Executive Branch in a dangerous world. And that's what Professor Goldsmith is attempting to address, from what I've read.

Is that honest enough for you?
9.7.2007 12:35pm
SG:
Thales,

There is no contradiction between saying the left questions peoples' patriotism and the right questioning peoples' patriotism. Both assertions can be true, and the truth of one has no bearing on the truth of the other. There is no contradiction nor any irony.
9.7.2007 12:35pm
anduril (mail):
Just an Observer, Congress may have been silent about warrantless searches, but neither the Constitution nor the Courts were/had been silent. I will state flatly that NO court would have refused a warrant in the circumstances of the Ames case, had the administration bothered to apply for one. They could have had a warrant virtually within minutes of even a verbal request and commitment to send paper ASAP.
9.7.2007 12:39pm
anduril (mail):
Steve, reread York. What the administration argued, through Gorelick, is that the Executive has the inherent authority to collect intelligence without warrants but that it would go along with a provision for applying for warrants in criminal cases. However, that leaves open the question of what would happen if evidence of a crime were to be discovered in the course of "inherent authority" warrantless searches. Throw it away? I think not. Gotta run.
9.7.2007 12:45pm
Thales (mail) (www):
"There is no contradiction between saying the left questions peoples' patriotism and the right questioning peoples' patriotism. Both assertions can be true, and the truth of one has no bearing on the truth of the other. There is no contradiction nor any irony."

Of course. I pointed out no logical contradiction and there was none. I'm merely drawing contextual attention to the fact that in today's political climate, and perhaps in most of modern American history, the right is usually the side that questions the patriotism of others, often without any credible justification (from Red Scares to Swiftboating). The left of course, tends to question the priorities and wisdom of the right, including the subordination of other values to military might and America Firstism. It's just a bit rich to accuse the left writ large of questioning patriotism.
9.7.2007 12:59pm
Tom Cross (www):

About as close as saying that people who oppose social programs don't care about the poor is to the conclusion that people who disagree with social programs must be thrown in the Gulag.

Perhaps you've made my point! Such an assumption about people who oppose social programs is just as wrongheaded as the assumption that those who criticize the Patriot Act don't care about national security! However, I don't think the situations are directly comparable. Generally speaking, we don't throw people in gulags for not caring about the poor. I'm not aware of any thing like that in history, with the possible exception of the French revolution. The "gulag" is where we throw people who undermine national security. At least, thats usually what gulags are used for.
9.7.2007 1:07pm
Just an Observer:
anduril,

You apparently have convinced yourself that FISA is unconstitutional, and I disagree. Since you subscribe to Byron York as a constitutional authority in the matter of inherent war powers, and I (along with every sitting member of the Supreme Court) favor Justice Jackson's framework from Youngstown, neither of us is going to convince the other on the merits.

My practical point, in the context of the Bush administration's history, is that Bush will not test this question in court, where it could be settled.

Meanwhile, I interjected originally because I just wanted to get certain facts straight. And I note that when challenged you failed to support your original statement that all presidents since Carter have "refused to concede the constitutionality of FISA." I didn't think you could, because, in fact, no president before Bush 43 has done so. Nor has any other president violated FISA, AFAIK.

(And as a footnote, just to correct your most recent factual error, the fruits of the Ames search were not, in fact, used in a prosecution. He pleaded guilty so the question of Fourth Amendment admissibility did not arise. Not that this is even relevant to the question at hand. As you now concede, FISA did not yet prohibit such a physical search without a warrant, so the search in no way implicated the statute's constitutionality as a separation-of-powers matter. It's really pretty simple: As far as FISA was concerned, the warrantless physical search was lawful when it was conducted, but would be unlawful today. Similarly, before 1978, warrantless electronic surveillance for foreign intelligence purposes was lawful; since FISA was enacted, it generally is not.)
9.7.2007 1:19pm
SG:
Thales:

I disagree strongly with you. The left is constantly comparing the right with Nazis, Facists, and all manner of American enemies. In just this thread we saw the current administration compared to the Khmer Rouge. This thread also brought up the Patriot Act which is laid at the feet of the right. Google shows 125,000 hits for ""patriot act" unamerican". Perhaps you can clarify how these don't qualify as the left questioning the right's patriotism?

I don't dispute that there are cases on the right as well (although some of the time what occurs is better described as "question[ing] the priorities and wisdom" of the left), but much of the left has been making its hay over last half dozen years through no end of ad hominems. Can you deny this?
9.7.2007 1:24pm
MacGuffin:
Congress may have been silent about warrantless searches, but neither the Constitution nor the Courts were/had been silent. I will state flatly that NO court would have refused a warrant in the circumstances of the Ames case, had the administration bothered to apply for one. They could have had a warrant virtually within minutes of even a verbal request and commitment to send paper ASAP.

Of course, the issue is not warrantless searches in the abstract, but the specific matter of warrantless searches directed against a foreign power or an agent of a foreign power for intelligence gathering purposes.

Which court are you presuming had jurisdiction to grant warrants for such searches and why?
9.7.2007 1:38pm
anduril (mail):

Of course, the issue is not warrantless searches in the abstract, but the specific matter of warrantless searches directed against a foreign power or an agent of a foreign power for intelligence gathering purposes.

Which court are you presuming had jurisdiction to grant warrants for such searches and why?

Even more specifically, the matter of the warrantless searches had to do with suspected violations of the Espionage Act, a criminal violation. The prosecutors/investigators could have gone to any available Federal Magistrate Judge in the relevant district to apply for the warrant(s), same as any other criminal case--with the proviso that they might have been required to find a Judge with the proper clearances to handle classified information.
9.7.2007 1:56pm
David Sucher (mail) (www):
What I found funny about A.S. plaintiff question ""Why does the left persist on questioning peoples' patriotism?" is that he would assume that I am part of "the left."

What's is happening, A.S., is that vast numbers of people who do not think of themselves and objectively are not part of "the left" (e.g. moi) are fed up with Bush's incompetent defense of the nation and his attacks on the Constitution.

Btw, I wasn't attacking your "patriotism" but questioning literally whether you understand the magic of America -- that its foundation is an attempt to be a nation of laws, as in for example that the President must work with Congress -- it's not optional.
9.7.2007 2:05pm
Montie (mail):

I'm not aware of any thing like that in history, with the possible exception of the French revolution. The "gulag" is where we throw people who undermine national security. At least, thats usually what gulags are used for.


I would propose the repression of the Kulaks during the Great Purge would stand as another example. There are other events similar in focus (if not scope) to the Great Purge.
9.7.2007 2:09pm
Tom Cross (www):
Montie: Thanks for that. I'd never read about Kulaks.
9.7.2007 2:18pm
MacGuffin:
Even more specifically, the matter of the warrantless searches had to do with suspected violations of the Espionage Act, a criminal violation.

You're sure of that? I mean, you know for a fact that the FBI didn't already feel confident that it had enough on Ames to convict him for espionage, and that the search was instead intended to recover as much foreign intelligence as possible, even if it couldn't be used in a criminal prosecution -- perhaps because what the FBI was searching for was of a sensitive enough nature that they didn't want such classified matters addressed in open court? If the search weren't part of a criminal investigation, which court would have had jurisdiction to warrant the foreign intelligence search?
9.7.2007 2:39pm
anduril (mail):

My practical point, in the context of the Bush administration's history, is that Bush will not test this question in court, where it could be settled.

Gee, and I thought that was my point, too--for reasons given.


...when challenged you failed to support your original statement that all presidents since Carter have "refused to concede the constitutionality of FISA." I didn't think you could, because, in fact, no president before Bush 43 has done so.


One step at a time.

1. The constitutionality of FISA is not an all or nothing proposition.

2. You neglect to quote my original statement in its full relevant part:


the Bush administration--in common with all previous administrations, Democratic and Republican alike--has refused to concede the constitutionality of FISA as it impinges on the President's national security responsibilities.


I understand that selective quotation may bolster your argument, but that's not telling the truth, is it?

3. As for conceding the constitutionality of FISA as it impinges on the President's inherent national security responsibilities, I did in fact provide a concrete example from the Clinton administration, in which Deputy AG Gorelick drew distinctions between criminal investigations and intelligence gathering. In fact, the terms of the FISA statute make no such distinction. Gorelick's testimony put Congress on notice that the administration did not concede the reach of FISA to all the President's inherent authority.

A former Associate AG in the Clinton administration, John Schmidt, has also addressed that issue:


In the Supreme Court's 1972 Keith decision holding that the president does not have inherent authority to order wiretapping without warrants to combat domestic threats, the court said explicitly that it was not questioning the president's authority to take such action in response to threats from abroad.

Four federal courts of appeal subsequently faced the issue squarely and held that the president has inherent authority to authorize wiretapping for foreign intelligence purposes without judicial warrant.

In the most recent judicial statement on the issue, the Foreign Intelligence Surveillance Court of Review, composed of three federal appellate court judges, said in 2002 that "All the ... courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence ... We take for granted that the president does have that authority."

The passage of the Foreign Intelligence Surveillance Act in 1978 did not alter the constitutional situation. That law created the Foreign Intelligence Surveillance Court that can authorize surveillance directed at an "agent of a foreign power," which includes a foreign terrorist group. Thus, Congress put its weight behind the constitutionality of such surveillance in compliance with the law's procedures.

But as the 2002 Court of Review noted, if the president has inherent authority to conduct warrantless searches, "FISA could not encroach on the president's constitutional power."

Every president since FISA's passage has asserted that he retained inherent power to go beyond the act's terms. Under President Clinton, deputy Atty. Gen. Jamie Gorelick testified that "the Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes."

FISA contains a provision making it illegal to "engage in electronic surveillance under color of law except as authorized by statute." The term "electronic surveillance" is defined to exclude interception outside the U.S., as done by the NSA, unless there is interception of a communication "sent by or intended to be received by a particular, known United States person" (a U.S. citizen or permanent resident) and the communication is intercepted by "intentionally targeting that United States person." The cryptic descriptions of the NSA program leave unclear whether it involves targeting of identified U.S. citizens. If the surveillance is based upon other kinds of evidence, it would fall outside what a FISA court could authorize and also outside the act's prohibition on electronic surveillance.


And again, in a very interesting discussion of AG Edward Levi's suggestions for a FISA type regime:


Although Levi supported legislation in the foreign intelligence area, he rejected the position of Bush critics that the president's authority to order warrantless foreign intelligence surveillance can be limited by Congress to a statutory procedure. Levi told the Church Committee that the president has inherent constitutional authority to conduct such surveillance. Asked by Sen. Frank Church "if the constitutional powers in the area of foreign intelligence are exclusive to the executive or whether they are concurrent with the legislative branch," Levi replied:

"They are sufficiently concurrent so that legislation by the Congress would be influential . . . You are asking me whether I think there is presidential power beyond that, and my answer is `Yes.'"




So, there's the Carter administration, too. I'm not going to bother with Reagan and Bush 1.

Finally:


And as a footnote, just to correct your most recent factual error, the fruits of the Ames search were not, in fact, used in a prosecution. He pleaded guilty so the question of Fourth Amendment admissibility did not arise.


I'm sure Ames, currently still imprisoned in Allentown Federal Pen, would be surprised to learn that he was never "prosecuted." He would no doubt be equally surprised to learn that the threatened use at trial of evidence seized pursuant to the warrantless searches had no influence on his guilty plea. The fact is, it was that evidence that persuaded Ames to plead rather than go to trial, and it was the threat of a constitutional challenge to the warrantless searches of the residence of a US citizen being investigated for a criminal violation that persuaded the government not to seek the death penalty. As in most plea bargains, there was something in the Ames plea for both sides. That unfortunate precedent probably saved Hanssen from the death penalty, as well, on the claim that it was unfair to execute him when Ames had received life.
9.7.2007 3:01pm
anduril (mail):
MacGuffin, go read accounts of the Ames investigation. The FBI was looking for evidence. They had no way of knowing what they might find in Ames' house--beyond parallels to other cases espionage cases. The Espionage Act is very specific in its requirements, which is why some have questions of its applicability to, say, journalists. Yes, I'm sure.
9.7.2007 3:06pm
anduril (mail):
Regarding Youngstown, Justice Jackson's concurring opinion, in which no other Justices joined, is of questionable value as precedent. I would like to extend a Just an Observer style challenge. Just an Observer asserts that all sitting justices buy into Justice Jackson's reasoning. I would be interested in some documentation. as that might not be totally reassuring to those who are concerned about a rogue Executive Branch. I say that based on Professor John Eastman's testimony re Youngstown:


Justice Jackson famously described a three-tiered system for assessing the separation of powers issues that lie at the intersection of presidential and congressional power. Obviously, the President’s authority is at its peak when he acts both pursuant to his own authority under the Constitution and by virtue of additional statutory authority given to him by Congress—Justice Jackson’s Category 1. Less strong, but no less certain, is when the President acts by virtue of his own constitutional powers, in the face of congressional silence—Category 2. Finally, Justice Jackson even conceded that, at times, the President could act pursuant to his Article II constitutional powers despite an explicit act of Congress to the contrary—Category 3. Congress cannot pass a law that curtails powers the President has directly from the Constitution itself. The problem for Truman, according to Justice Jackson, was not that he exceeded statutory authority, but that his constitutional war powers did not, under the circumstances, permit him to trump the mechanisms of the relevant congressional statute. Congress had not authorized the war, and the nation’s steel mills were too far removed from the “theater of war” to fall under the President’s power as Commander- in-Chief.


From this it would follow that, if Congress gave a President, oh, let's say an AUMF, all bets might be off as to what his actions could be.
9.7.2007 3:14pm
Ilya Somin:
I would propose the repression of the Kulaks during the Great Purge would stand as another example. There are other events similar in focus (if not scope) to the Great Purge.

The repression of the Kulaks was not caused by differences in wealth, but by the communists' desire to a abolish all private property, whether among the wealthy or not. Most of the kulaks were actually fairly poor.
9.7.2007 3:15pm
Mark Field (mail):

Justice Jackson's concurring opinion, in which no other Justices joined, is of questionable value as precedent.


Might want to use that Sword to solve your troll problem.
9.7.2007 3:23pm
Mark Field (mail):

Most of the kulaks were actually fairly poor.


That's not the standard view.
9.7.2007 3:26pm
MacGuffin:
MacGuffin, go read accounts of the Ames investigation.

I have. They indicate that the physical search was conducted after considerable evidence against Ames had already been collected, including via wiretaps conducted under FISA court order.

Please answer the questions I put to you.
9.7.2007 3:28pm
Anderson (mail):
Regarding Youngstown, Justice Jackson's concurring opinion, in which no other Justices joined, is of questionable value as precedent.

A little learning *is* a dangerous thing, isn't it?
9.7.2007 4:36pm
Just an Observer:
Me: My practical point, in the context of the Bush administration's history, is that Bush will not test this question in court, where it could be settled.

anduril: Gee, and I thought that was my point, too--for reasons given.

And as I understand your "reasons given," they are essentially the same as mine: The administration will not test this question in court because it fears that the theory you propound would lose there!

anduril: Regarding Youngstown, Justice Jackson's concurring opinion, in which no other Justices joined, is of questionable value as precedent.

Its precedential value lies in the fact that it is cited as precedent by subsequent court decisions and opinions, notably forming the foundation of the court's holding in Dames &Moore v. Regan, written by Rehnquist.

Additionally, Jackson's Youngstown concurrence was cited by the plurality and dissents in Hamdi, as well as almost every justice writing in Hamdan (even by Thomas, who expressly placed his dissent within Jackson's framework). Jackson's Youngstown framework is cited by every sitting justice on the court today. Roberts fairly worships the opinion, as evidenced by his confirmation-hearing remarks. Alito even said during his own hearing that if he had to consider the FISA controversy, he would do so within Jackson's framework from Youngstown.

So if you don't mind, I'll take these justices' respect for this precedent above your own conclusory statement. (Notably, John Yoo essentially dismisses the Youngstown framework as you do, which only shows how far from the conservative mainstream his radical constitutional theories are.)

From this it would follow that, if Congress gave a President, oh, let's say an AUMF, all bets might be off as to what his actions could be.

That is a very different question, one of statutory interpretation. As Alito explained at his hearing, that statutory analysis would be the first step in a general analysis under Youngstown.

If the courts should find that the 2001 AUMF was an implied repeal of FISA, then the constitutional question would not be reached. (The compatible way of viewing that scenario under Youngstown is that such a statutory holding would place the case under Category 1, where the president acts in accord with congressional action. The president's actions would be upheld based on the threshold reading of the statutes.)

But there has been no such statutory holding.

From what most observers surmise about Goldsmith, he is believed to have rejected Yoo's constitutional view that Article II trumped FISA, but rather formed a more limited opinion based on an expansive statutory reading of the AUMF. (A theory which also lacks judicial and congressional support, to put it mildly.)

But in any event, this theory is hugely different than your original assertion that FISA is unconstitutional.

If the AUMF theory fails, then the case of violating FISA is analyzed squarely in Youngstown Category 3, which is a roadmap to ruling against the administration. In order to prevail in that situation, DOJ would have to prove either that Congress lacked authority to regulate surveillance in the first place, or did actually impinge on an indefeasible power of the president. But that is precisely the constitutional argument the administration is afraid to tee up for SCOTUS review, because is would likely lose by at least 8-1.

Elsewhere, you persist in mischaracterizing Gorelick's testimony by placing your own false interpretation on the word "inherent." No one -- not me, not Deputy AG Gorelick -- argues that absent congressional action the president lacks such "inherent" power. But "inherent" does not mean "exclusive" or "indefeasible." (As Jackson said in Youngstown, the president's powers vary, depending on what Congress has done.) In fact, Gorelick testified in favor of bringing physical searches under FISA's binding requirements.

You make a similar error in your cut-and-past of Schmidt's testimony -- all of which involved pre-FISA cases.

As for Schmidt's personal opinion today about the constitutional scope of FISA, he is not president and never has been, and was not speaking for his former administration. (BTW, Levi was speaking before FISA was finally enacted, and he was in the Ford administration, not Carter's. Carter spoke for himself in signing FISA, declaring that the legislation resolved the matter.) So, once again, please show where President Clinton (or Carter, or Reagan or Bush 41, has taken a position that FISA is unconstitutional. I will also accept an OLC opinion issued under their administrations making such a claim. Hint: There are no such statements.

There certainly was a minority view when FISA was being considered that it could not bind the president, and a minority reasserts that view today in political venues. If the president wants to assert that minority view, he is free to do so in court, but will not because he knows he would lose. His entire strategy has been to avoid judicial review of that question, while seeking a legislative fix. Congress is free to repeal or amend FISA, and that is where Bush has placed his marbles.
9.7.2007 4:50pm
anduril (mail):

[anduril:]MacGuffin, go read accounts of the Ames investigation.

[MacGuffin:]I have. They indicate that the physical search was conducted after considerable evidence against Ames had already been collected, including via wiretaps conducted under FISA court order.

Please answer the questions I put to you.


LOL!!

So this is an interrogation? Let's see:

Q &A #1:

Which court are you presuming had jurisdiction to grant warrants for such searches and why?

...the matter of the warrantless searches had to do with suspected violations of the Espionage Act, a criminal violation. The prosecutors/investigators could have gone to any available Federal Magistrate Judge in the relevant district to apply for the warrant(s), same as any other criminal case--with the proviso that they might have been required to find a Judge with the proper clearances to handle classified information.


Q &A #2:


...the matter of the warrantless searches had to do with suspected violations of the Espionage Act, a criminal violation.


You're sure of that? I mean, you know for a fact that the FBI didn't already feel confident that it had enough on Ames to convict him for espionage, and that the search was instead intended to recover as much foreign intelligence as possible, even if it couldn't be used in a criminal prosecution -- perhaps because what the FBI was searching for was of a sensitive enough nature that they didn't want such classified matters addressed in open court? If the search weren't part of a criminal investigation, which court would have had jurisdiction to warrant the foreign intelligence search?


My response was:

The FBI was looking for evidence. They had no way of knowing what they might find in Ames' house--beyond parallels to other cases espionage cases. The Espionage Act is very specific in its requirements, which is why some have questions of its applicability to, say, journalists. Yes, I'm sure.


Perhaps that sounded brusque, so I'll spell it out. The Espionage Act is 18 USC 793. I won't paste it in, but if you read it you'll see why the FBI desperately wanted to search Ames' house: no matter what the take from the electronic FISA, the Espionage Act requires proof of the taking of documents and their delivery "with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation." That is not always an easy matter to prove--especially in the absence of actual documents. Any number of explanations can be made for what the Government might claim to be incriminating statements captured by the FISA, but a cache of sensitive documents at the suspect's house goes a long way toward proving the violation, since such documents would normally not be allowed to leave government premises. The government, in such circumstances, would NEVER feel confident that it had enough evidence until they had actual documents in their hot little hands. And since the only reason to show the suspect's actual possession of such documents would be for use in prosecuting the suspect, yes, I'm sure they entered his house SEVERAL TIMES because they were looking for evidence.

As to whether the searches might not have been part of a criminal investigation--THEY WERE. Get over it. I know this. The importance of the electronic FISA was that it confirmed to the FBI that they were on the right track and not barking up the wrong tree. Ames made suggestive statements on the phone, but he didn't make a confession and, even if he had the prosecutors would still need prove that the confession was true. In an Espionage case that means that you better be able to produce identifiable documents plus show the requisite intent. I can imagine situations in which the documents might be indirectly proven, but IMO that would be very dicey. This is why the FBI, even after 1) recovering from a Russian informant KGB materials with Hanssen's fingerprints on them and 2) a KGB recording of a contact with Hanssen, still waited to catch Hanssen in an actual delivery of real documents. They did this because, due to the nature of the Espionage Act, short of such circumstances they could never be sure that they had enough evidence. Prosecutors do not want to go to trial on espionage cases--they want guilty pleas. Why? Try to wrap your mind around these two names and the lessons every prosecutor has learned from them: Wen Ho Lee and Katrina Leung. Then reread what I just wrote about the need for documents in an espionage case.
9.7.2007 4:59pm
CapnDick (mail):
I find it singularly striking that NO ONE refers to the powers exercised by past Presidents in such situations. FDR and Truman would be appalled at the legalezz of today's society. which seems to have a goal of neutering the country's ability to respond to enemies. Roosevelt put some extreme antagonists and security risks in mental institutions for the duration. He used the FBI prior to the entry into the war for terminations.
9.7.2007 5:02pm
Just an Observer:
anduril,

Everything you say about the Ames case is quite irrelevant to the separation-of-powers question that underlies the constitutionality of FISA. You have already conceded that FISA did not purport to regulate such a physical search. And no other statute forbade it. After FISA was amended to require warrants for physical searches, then there was such as statute (expressly supported by the Clinton administration).

Repeating yourself at greater length does not make the irrelevant facts about the search relevant.
9.7.2007 5:17pm
Anderson (mail):
Dick -- can I call you that? -- did you consider maybe that the actions you fondly reminisce of, are *precisely* what we *don't* want presidents doing today?

JaO, you are patience personified. I hope I grow up to be like you!
9.7.2007 5:30pm
MacGuffin:
Actually, anduril, by the time the FBI searched Ames' house in October of 1993, the CIA and FBI had already accumulated a huge amount of information and evidence against Ames. This included numerous documents that Ames had taken without authorization, as well as his written and wiretapped indications of intent to deliver those materials.

Despite your strident, though unsupported, assertions of knowledge that the FBI search of Ames' house was intended to collect criminal evidence, it is entirely conceivable that the search was conducted for its high foreign intelligence value even if the fruit of the search could not be used in a criminal court. Speculations on intent aside, we do know that the results of the search of Ames' house were not, in fact, used in criminal court. There was no need for a court order allowing for such a foreign intelligence search, nor was there a court with the jurisdiction to make such an order.

Of course, this is all an historical tangent, since JaO's is correct in his observation as to relevance.
9.7.2007 5:57pm
anduril (mail):
Just an Observer:

I think you're placing too much weight on Youngstown. It's one thing for the Court to cite Jackson's unsupported concurrence in a situation in which Congress and the Executive are on the same side and in which the Executive Orders in question were issued in response to what were clear Acts of War by a foreign nation. There would be no such clarity or unanimity if FISA came before the Court on a constitutional challenge--which is precisely why (as I said) no president, not just Bush, is eager to challenge FISA in court. On the other hand, the fact of the presidential briefings of the Congressional leadership and the leaderships acquiescence in the Executive's actions (OK, Rockefeller wrote a memo to himself) illustrate that it isn't just the Executive who has doubts about the full reach of FISA. Congress isn't eager to take this to the Court either. In other words, this is a political controversy as much or more than a legal one.

Why then do so many justices give as much deference to Youngstown as they do? Probably because, as Rehnquist noted in Regan,

The questions presented by this case touch fundamentally upon the manner in which our Republic is to be governed. Throughout the nearly two centuries of our Nation's existence under the Constitution, this subject has generated considerable debate. We have had the benefit of commentators such as John Jay, Alexander Hamilton, and James Madison writing in The Federalist Papers at the Nation's very inception, the benefit of astute foreign observers of our system such as [453 U.S. 654, 660] Alexis de Tocqueville and James Bryce writing during the first century of the Nation's existence, and the benefit of many other treatises as well as more than 400 volumes of reports of decisions of this Court. As these writings reveal it is doubtless both futile and perhaps dangerous to find any epigrammatical explanation of how this country has been governed. Indeed, as Justice Jackson noted, "[a] judge . . . may be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of executive power as they actually present themselves." Youngstown Sheet &Tube Co. v. Sawyer, 343 U.S. 579, 634 (1952) (concurring opinion).


In other words, they were looking for a safe resolution of a specific case, not to make new law:

Our decision today will not dramatically alter this situation, for the Framers "did not make the judiciary the overseer of our government." Id., at 594 (Frankfurter, J., concurring).


Below, we will see J. Thomas using Regan to argue against a mechanical interpretation of Youngstown.

Regarding Hamdan, I think you overstate your case. The Court's opinion was highly divided. Youngstown was referred to in a footnote by Souter--the other two concurring opinions don't cite Youngstown so, in the circumstances, it's difficult to say how much weight to place on that. Thomas also cites Youngstown--in dissent. The other two dissenting Justices, Scalia and Alito, make no reference to Youngstown.

In Hamdi the Court's opinion only cites Youngstown for the general proposition that the Executive has no "blank check" when it comes to war powers (the phrase "blank check" however is not used in Youngstown). Justice Thomas' dissent, on the other hand, in citing Youngstown, uses Regan to argue against any mechanical reading of Youngstown:

...because "Congress cannot anticipate and legislate with regard to every possible action the President may find it necessary to take or every possible situation in which he might act," it should come as no surprise that "[s]uch failure of Congress ... does not, 'especially ... in the areas of foreign policy and national security,' imply 'congressional disapproval' of action taken by the Executive." Dames &Moore v. Regan, 453 U. S. 654, 678 (1981)(quoting Agee, 453 U. S., at 291). Rather, in these domains, the fact that Congress has provided the President with broad authorities does not imply--and the Judicial Branch should not infer--that Congress intended to deprive him of particular powers not specifically enumerated. See Dames &Moore, 453 U. S., at 678. As far as the courts are concerned, "the enactment of legislation closely related to the question of the President's authority in a particular case which evinces legislative intent to accord the President broad discretion may be considered to 'invite' 'measures on independent presidential responsibility.' " Ibid. (quoting Youngstown, 343 U. S., at 637 (Jackson, J., concurring)).


Clearly the precedent of Youngstown cannot be taken too far. Especially, as Professor Eastman notes, it must be closely considered just what Youngstown stands for. While it is commonly considered to be a limit on the Executive, due to its outcome, the actual language of Justice Jackson is now used to support expansive Executive powers. Respect for Youngstown is very much of a two edged sword, and for that reason I again assert that it's value as precedent is overrated--it can be made to mean what the Court wants it to mean to justify rather various outcomes.

You accuse me of mischaracterizing Gorelick's testimony:

Elsewhere, you persist in mischaracterizing Gorelick's testimony by placing your own false interpretation on the word "inherent." No one -- not me, not Deputy AG Gorelick -- argues that absent congressional action the president lacks such "inherent" power. But "inherent" does not mean "exclusive" or "indefeasible." (As Jackson said in Youngstown, the president's powers vary, depending on what Congress has done.) In fact, Gorelick testified in favor of bringing physical searches under FISA's binding requirements.


Here again you're trying to box me in to an all or nothing approach to FISA. Gorelick was trying to establish a principled approach to FISA. She had no objection to physical searches within the US being controlled by FISA, but she also made it clear that intelligence gathering was another matter entirely because it would "restrict the president's ability to collect foreign intelligence necessary for the national security." What more was she supposed to do--throw down the gauntlet? No, just as Bush has done with his signing statements the Clinton administration was signaling what it could accept and what it couldn't. A Congressional hearing is not a legal opinion--it's political give and take between the two Branches, who are also looking to establish a position in the event of legal challenges.

The entire intent of my initial post was that this matter should be placed within a political context. Thus, when you state:

You make a similar error in your cut-and-past of Schmidt's testimony -- all of which involved pre-FISA cases.

As for Schmidt's personal opinion today about the constitutional scope of FISA, he is not president and never has been, and was not speaking for his former administration. (BTW, Levi was speaking before FISA was finally enacted, and he was in the Ford administration, not Carter's. Carter spoke for himself in signing FISA, declaring that the legislation resolved the matter.) So, once again, please show where President Clinton (or Carter, or Reagan or Bush 41, has taken a position that FISA is unconstitutional. I will also accept an OLC opinion issued under their administrations making such a claim. Hint: There are no such statements.


you are ignoring the political nature of our constitutional system. Thus, I will not accept your hierarchy of authorities. In this context no one should expect any President to make a speech challenging the constitutionality of FISA or certain aspects of it. Nor should one expect OLC to issue a written opinion on such a subject. On the other hand, Congress, or the Gang of Eight Leaders, knew what the administration was doing and kept their mouths shut. Why? Because they didn't want to be tarred as soft on terror--with good reason, as we saw this summer. The result is a political tug of war, which you want to transform into a judiciable case. Ain't gonna happen, most likely. In safe times Congress will push FISA and the Executive will be conciliatory, but in times of danger the Executive will take courage and Congress will dissemble--that's why they built in the escape clause to FISA. Nobody wants to be left holding the bag.

As to Levi, yes, he was AG under Ford. However, President Carter did, in his signing statement, specifically note Levi's fine work on FISA--something he needn't have done.
9.7.2007 6:43pm
anduril (mail):

anduril,

Everything you say about the Ames case is quite irrelevant to the separation-of-powers question that underlies the constitutionality of FISA. You have already conceded that FISA did not purport to regulate such a physical search. And no other statute forbade it. After FISA was amended to require warrants for physical searches, then there was such as statute (expressly supported by the Clinton administration).

Repeating yourself at greater length does not make the irrelevant facts about the search relevant.


I also stated that warrantless searches such as in the Ames case arguably violated a long line of cases decided by the Supreme Court, and that that was a factor in the eagerness of the Government to accept a plea rather than go for the max. You don't address that. 4th amendment jurisprudence is largely based on constitutional interpretation, not statutory.
9.7.2007 6:48pm
anduril (mail):
Further clarification re Ames:

My posts re Ames (after the initial reference) were largely responses to MacGuff's interest in that case. I never claimed that Ames had anything to do with the constitutionality of FISA. While I was mistaken in asserting that the Clinton administration had ignored FISA in the Ames case, I am correct in asserting that the warrantless searches of Ames' residence very arguably violated what was considered settled 4th amendment jurisprudence. The administration's argument, that they had "inherent authority" to conduct warrantless searches if the underlying matter involves national security does, in fact, involve separation of power issues.
9.7.2007 7:37pm
Anderson (mail):
Anduril, have you considered changing your name to Narsil?
9.7.2007 7:48pm
anduril (mail):
MacGuffin
Actually, anduril, by the time the FBI searched Ames' house in October of 1993, the CIA and FBI had already accumulated a huge amount of information and evidence against Ames. This included numerous documents that Ames had taken without authorization, as well as his written and wiretapped indications of intent to deliver those materials.


The FISA take was not enough to get a conviction. They could have searched the house after the arrest, so why were they prolonging the investigation and endangering the materials in the house--Ames could have given them the slip, as he did on many occasions, and delivered the high value documents. Besides, you're simply wrong.

MacGuffin
Despite your strident, though unsupported, assertions of knowledge that the FBI search of Ames' house was intended to collect criminal evidence, it is entirely conceivable that the search was conducted for its high foreign intelligence value even if the fruit of the search could not be used in a criminal court. Speculations on intent aside, we do know that the results of the search of Ames' house were not, in fact, used in criminal court. There was no need for a court order allowing for such a foreign intelligence search, nor was there a court with the jurisdiction to make such an order.


1. The congressional reaction to the Ames searches--revision of FISA to cover such searches--illustrates clearly how ill-advised the warrantless searches were.

2. Since when is there no court with jurisdiction to issue a search warrant in an espionage investigation? You state that the FBI had already collected valuable information both from FISA wiretaps and (probably) trash covers--enough, in your expert opinion, to convict Ames. Ergo: plenty of probably cause to get a warrant to search his house and seize even more evidence that could be used without serious challenge. No, they were looking for more evidence.
9.7.2007 7:51pm
anduril (mail):
Anderson: yes, but I rejected the idea. why do you ask?
9.7.2007 7:53pm
anduril (mail):
Clever, Anderson. I think I just "got" the drift of your inquiry while I was away taking a leak.
9.7.2007 8:00pm
Just an Observer:
anduril:

You are ignoring the political nature of our constitutional system. Thus, I will not accept your hierarchy of authorities. In this context no one should expect any President to make a speech challenging the constitutionality of FISA or certain aspects of it. Nor should one expect OLC to issue a written opinion on such a subject. On the other hand, Congress, or the Gang of Eight Leaders, knew what the administration was doing and kept their mouths shut.


Just for the record, I note that you have entirely given up on producing documentary support for your original, sweeping and falacious statement. So there is no need to argue that factual point any longer; you simply cannot marshall such facts because they don't exist.

Now, you shift ground to argue instead that the "political nature" of things trumps the law. I agree that there are political factors keeping congressional leaders from challenging Bush more forthrightly, and the Gang of 8 briefings are part of that. Not being a Democrat, I am entirely unmotivated to give Nancy Pelosi, et al, a pass for their complicity in lawbreaking.

If these political pressures prevail, Congress may well give Bush what he is seeking -- a legislative fix providing what he cannot possibly win in court. That is precisely my point about the administration's strategy. Bush, while evading judicial review, may get Congress to amend or repeal FISA retroactively. That is the proper result of such a political process in the political branches -- duly enacted legislation.

However, such political factors did not erase the legal force of statutes in place at the time FISA was violated. There is nothing in the Constitution that empowers eight legislators, meeting in secret with administration officials, to suspend the operation of a statute.

As for your continued spin on Gorelick, and Clinton's signature on the final bill, your opinion obviously is not amenable to facts. You persist in imagining, without evidence, that either Clinton or his subordinate silently asserted a power to violate FISA. Believe what you want; the rest of us can read the record and find no such imaginary intent.

On the Ames case, having failed to demonstrate any relevance to the separation-of-powers question underlying FISA's constitutionality, you shift ground again to "4th amendment jurisprudence." Irrelevant again. FISA's constitutionality has nothing to do with, and does not depend on, the Fourth Amendment.

Finally, In a bizarre effort to ignore your own factual error about Levi, you bizarrely and irrelevantly say, "As to Levi, yes, he was AG under Ford. However, President Carter did, in his signing statement, specifically note Levi's fine work on FISA--something he needn't have done." LMAO.

More pertinently, in that signing statement, Carter declared:

The bill requires, for the first time, a prior judicial warrant for all electronic surveillance for foreign intelligence or counterintelligence purposes in the United States in which communications of U.S. persons might be intercepted. It clarifies the Executive's authority to gather foreign intelligence by electronic surveillance in the United States. [Emphasis in original]


No president until Bush 43 has ever backed down from that flat declaration of what FISA "requires" for "all" such surveillance, and no one else has ever violated FISA. Those are facts, which you simply cannot dispute. Enjoy your imaginary universe.
9.7.2007 8:14pm
Just an Observer:
I almost overlooked this hilarious whopper from anduril:


I think you're placing too much weight on Youngstown. It's one thing for the Court to cite Jackson's unsupported concurrence in a situation in which Congress and the Executive are on the same side and in which the Executive Orders in question were issued in response to what were clear Acts of War by a foreign nation. There would be no such clarity or unanimity if FISA came before the Court on a constitutional challenge--which is precisely why (as I said) no president, not just Bush, is eager to challenge FISA in court.


Gee, I guess Justice Jackson included Categories 2 and 3 just for laughs, not to be taken seriously as part of the framework. LMAO again. The reason the framework exists is to span the range from cases where the president acts in accord with Congress to those where they are at loggerheads.

It is not a lack of "clarity" that prevents Bush from challenging FISA -- which almost certainly would be analyzed under Category 3 after the AUMF theory was disposed of -- but rather an overwhelming clarity. If Yoo's radical constitutional theory were presented squarely, it would lose 8-1 or 9-0, and both Paul Clement and Jack Goldsmith knew it.
9.7.2007 8:30pm
nunzio:
Just an Observer and Anduril:

Just an Observer is right that Clinton administration's warrantless entry into Ames home didn't violate FISA.

It also would not violate the 4th Amendment if it were for Foreign Intelligence gathering. It would violate the 4th Amendment if it were not, regardless of whether it was ultimately used in a criminal prosecution.

So the questions are how do we know why they entered Ames' residence and why should we trust the explanation of the FBI, DOJ, or President Clinton?

I don't believe the Clinton administration and I don't believe the Bush administration. I don't trust the President, the Congress, or the Courts. But that's just me.
9.7.2007 9:00pm
Just an Observer:

Regarding Hamdan, I think you overstate your case. The Court's opinion was highly divided. Youngstown was referred to in a footnote by Souter--the other two concurring opinions don't cite Youngstown so, in the circumstances, it's difficult to say how much weight to place on that. Thomas also cites Youngstown--in dissent. The other two dissenting Justices, Scalia and Alito, make no reference to Youngstown


Sheesh, I can't keep up. There is simply no end to this guy's misstatement of the law and the facts. (Scalia, BTW, joined Thomas' dissent, which expressly was grounded in the Youngstown framework. It is just that those dissenters, disagreeing with the majority's statutory reading of the AUMF and UCMJ, believed Hamdan to fall in Category 1 within the framework.)

anduril (deliberately?) overlooks Stevens writing for the court in Hamdan, which opinion stated in footnote 23, clearly referring to Jackson's Category 3:

Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers. See Youngstown Sheet &Tube Co. v. Sawyer, 343 U. S. 579, 637 (1952) (Jackson, J., concurring). The Government does not argue otherwise.


And Justice Kennedy's concurrence stated forthrightly:

The proper framework for assessing whether Executive actions are authorized is the three-part scheme used by Justice Jackson in his opinion in Youngstown Sheet &Tube Co. v. Sawyer, 343 U. S. 579 (1952). [The three categories are then summarized.]


The only justice participating in Hamdan not to join in citing to Jackson in Youngstown was Alito, who confined himself to a narrow and technical dissent. And we know that he would apply the Youngstown framework to FISA, because he told us so in his confirmation hearing.

anduril remains in deep denial about Youngstown. Citations he cannot risibly rationalize away (who cares if Youngstown didn't say "blank check?") he simply pretends not to exist.

The plain truth is that Jackson's Youngstown framework is unanimously accepted as such by the members of the current Supreme Court. It is bedrock gospel, held across the ideological spectrum.
9.7.2007 9:17pm
anduril (mail):

Now, you shift ground to argue instead that the "political nature" of things trumps the law.

That's simply dishonest. I never said any such thing and you know it. The point of my initial post was that an important factor to be considered in the Terror Presidency debate is inter-branch disagreement over constitutional interpretation. How is this to be resolved? To think that such matters will or are resolved in court is simply naive.

That is the proper result of such a political process in the political branches -- duly enacted legislation.

That's a very expansive view of the legislative branch's role.

However, such political factors did not erase the legal force of statutes in place at the time FISA was violated. There is nothing in the Constitution that empowers eight legislators, meeting in secret with administration officials, to suspend the operation of a statute.

What is the legal force of a statute that is in whole or in part unconstitutional? What is the Executive's duty as to such a statute? Is it illegitimate to play it out politically rather than defying it to stage a test case? Might it not be the better course for the Executive to avoid a showdown in the interests of fulfilling his constitutional duties--if the Executive deems that the proper time for a challenge is not at hand? After all, the reality is that all three branches are political players.

You persist in imagining, without evidence, that either Clinton or his subordinate silently asserted a power to violate FISA.

Silently? I cited Gorelick's words.

On the Ames case, having failed to demonstrate any relevance to the separation-of-powers question underlying FISA's constitutionality, you shift ground again to "4th amendment jurisprudence." Irrelevant again. FISA's constitutionality has no