an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Another Reason Why the AUMF Argument is Wrong, and Why This Surveillance Program is Lawless
I've previously argued that it's an insult to members of Congress to suggest that when they authorized military force in Afghanistan and against Al Qaeda, they also (inadvertently) intended to give the President the power to circumvent the carefully established FISA rules that require FISA court approval for interception of communications that are likely to involve U.S. persons.
The problems with the "AUMF-authorized-it" argument, however, are more fundamental than that. The Government's main line of argument is that these interceptions are analogous to the capture of Hamdi, a U.S. citizen, on the battlefield in Afghanistan, and that if the AUMF authorized the latter, it must have authorized the former, too -- because (i) both Executive actions are against persons covered by the AUMF -- "those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons"; and (ii) the AUMF authorized the President to exercise (in Justice O'Connor's words for the Hamdi plurality) "fundamental incident[s] of waging war," and both of these Executive actions are such "fundamental incidents" of waging war.
One of the parties to an intercepted communication is not (or need not be) in any way affiliated with, or part of, Al Qaeda, nor in any way connected to the attacks of 9/11. It could be you, or me, or our grandparents.
What about the other party to the communication? Here's what the Attorney General said:
"Another very important point to remember is that we have to have a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda."
"To the extent that there is a moderate and heavy communication involving an American citizen, it would be a communication where the other end of the call is outside the United States and where we believe that either the American citizen or the person outside the United States is somehow affiliated with al Qaeda."
"It is tied to communications where we believe one of the parties is affiliated with al Qaeda or part of an organization or group that is supportive of al Qaeda."
I don't think it's hard to understand from these carefully phrased formulations that many of the communications in question -- say, a phone call from me to someone who is not part of Al Qaeda, or working with Al Qaeda, but who is "part of" an organization "supportive of" Al Qaeda -- are between two people, neither of whom is covered under the terms of the AUMF. (Thanks to David Barron for bringing these broad formulations to my attention.)
And it's also not too hard to understand why this is just a wee bit distinguishable from the detention of a person fighting against U.S. troops on the Afghan battlefield.
(This is consistent with what we know from the New York Times's original story: "The C.I.A. seized the terrorists' computers, cellphones and personal phone directories, said the officials familiar with the program. The N.S.A. surveillance was intended to exploit those numbers and addresses as quickly as possible, they said. In addition to eavesdropping on those numbers and reading e-mail messages to and from the Qaeda figures, the N.S.A. began monitoring others linked to them, creating an expanding chain.")
This means at least three things:
1. Because it's not necessary that even one of the parties to the communication have been part of Al Qaeda, it explains why a FISA court would not have granted authority for these intercepts in the first place -- which is why the Administration could not work within the existing (very deferential, pro-government) authorities. (As General Hayden, Deputy Director of National Intelligence, put it in the press briefing, the criteria for a search here is a "subtly softer trigger" than for FISA approval. That wins the Euphemism-of-the-Week Award.)
2. Obviously, the NSA protocol is simply not covered by the terms of the AUMF itself, because it reaches conduct by NSA against communications of persons who are not "those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons."
3. It's also presumably not a "fundamental incident of war" for the Executive to wiretap a communication between two persons, neither of whom is suspected of being part of (or an agent of) the enemy (let alone the military arm of the enemy). This is not only another reason that the AUMF (and Hamdi) does not authorize these interceptions; it also means that not even the boldest assertion of Commander-in-Chief authority would support this program. Posted
by Marty Lederman [link]
"those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons."
When Congress used these words it is obvious that they did not know exactly who was responsible. Even today we do not know the full extent of the organizational chart of the forces loosely referred to as "Al Qaeda". Just looking at the words you quote indicates that the first job assigned to the President by Congress was to find out just exactly who were the nations, organizations, or persons responsible. In order to do that, the President had to gather intelligence.
If you don't know who you are looking for, then you will necessarily gather some information about people who are not involved. The only way to avoid that is to know in advance who is not involved, which would then be the same as knowing who is involved.
So it seems to me that the President did exactly what Congress asked him to do. He used signals intelligence to attempt to determine who was responsible. There is no other feasible mechanism for accomplishing the mission assigned to him. Yes he may overshoot the target, but the only way to avoid that is to do absolutely nothing at all.
Accepting Gonzales's rationale for the moment using those broadly framed standards, shouldn't the administration be rounding up those people in America on the phone supporting Al Qaeda?
The administration knows, apparently, who they are. The administration's position is that Art II and AUMF (pick one) given them the authority to take "war-time" actions against the enemy and enemy supporters.
Why then is this president locking up these people . . . and protecting the rest of us?
Marty really doesn't like Hamdi. Really doesn't like it.
Here's the question Hamdi addressed:
"The threshold question before us is whether the Executive has the authority to detain citizens who qualify as “enemy combatants.” There is some debate as to the proper scope of this term, and the Government has never provided any court with the full criteria that it uses in classifying individuals as such. It has made clear, however, that, for purposes of this case, the “enemy combatant” that it is seeking to detain is an individual who, it alleges, was “ ‘part of or supporting forces hostile to the United States or coalition partners’ ” in Afghanistan and who “ ‘engaged in an armed conflict against the United States’ ” there. Brief for Respondents 3. We therefore answer only the narrow question before us: whether the detention of citizens falling within that definition is authorized."
Yikes. Look at that: "part of or supporting forces hostile to"
Yes, the "carefully formulated" and "broad" language comes from Hamdi!
SOC upheld detention of citizens *on the battlefield* who were, in the SG's words “‘part of or supporting forces hostile to the United States or coalition partners’” in Afghanistan *and who* “‘engaged in an armed conflict against the United States’” in Afghanistan.
I'd be willing to wager a pretty penny that *none* of the hundreds or thousands of U.S. persons whose communications have been intercepted have engaged in armed conflict against the U.S. in Afghanistan -- and that the vast, vast majority of the calls do not involve *any* party who has done so.
Because courts and warrants are part of the criminal justice system, and the President wasn't told by Congress to arrest someone, he was told to use military force. Consider Mohammed Atef. He was head of the terrorist group in Kandahar that Jose Padilla was training in from June to Nov 2001. On Nov 16 US forces (presumably from signals intelligence) conducted an airstrike that killed him. That certainly falls within the scope of using military force against one of the people responsible for 9/11.
Now you are a US signals intelligence officer trying to locate Atef. You know that he may be called by a list of people some of whom may be in the US. So now you are saying that the military should go to a Court and get and order that allows them to locate and kill someone. Well, that's how war works, but its not how courts work. Its not just that I think it is unconstitutional for the Courts to be placed in any supervisory role over the normal internal operations of the military at war. Its also that I don't think the courts should be formally involved in a process that kills people summarily and without process. There should be a boundary between the judicial process and the military conduct of war or both sides suffer.
Article III provides absolutely no authority for the Courts to supervise the tactics, strategy, intelligence, logistics, planning, or conduct of military operations. That is exclusively a Presidential authority. Congress cannot give the Courts authority over military intelligence gathering, targeting, or other operational procedures.
There is one point. Any intercept that is not obtained with a warrant cannot be used to bring criminal charges against anyone in the US who is involved with Al Qaeda. It is silly to assume that the primary purpose of the President's intelligence gathering was directed against anyone in the US. After all, nobody in the US has been blown up by an airstrike recently. It is more reasonable to assume that the military is using whatever intelligence it gathers from international calls to find military targets overseas.
Hey, if anyone knows Osama's number and wants to call him up and congratulate him, give him support, or even promise to send him money, I am all for it. I don't think he should be afraid of any legal consequences. I will even pay for the call out of my own pocket. But will you please wait a few minutes before you dial the number. We have to get a couple of F-16's in the right position.