Why the Administration is stonewalling on its justifications for the NSA program

JB

One reason is that the memos contain classified material, but that material can be redacted. We are particularly interested in the legal reasoning, not the classified data.

Another reason is that the legal advice given to the President must remain confidential in order to encourage frankness by his lawyers. But that argument is undermined by the wide range of OLC memos that are publicly available as a matter of course, and also by the fact that the White House claims that the legal advice in that memo is the same as that contained in the January 2006 response. Indeed, if the President is directing his subordinates to act on legal advice that affects the civil liberties of American citizens, there is a strong argument that citizens have a right to know the basis of his reasoning that their rights are not being violated.

Another, more interesting possibility, adverted to by Anonymous Liberal here, is that the defense of the NSA program is premised on the same legal arguments as Assistant Attorney General John Yoo's (in)famous but as yet undisclosed March 14th, 2003 legal memo, which Marty has described here.

As best we can tell, that memo-- which probably dealt with the Uniform Code of Military Justice and the Federal assault statute-- offered an extremely strong Article II argument which authorized the President to disregard statutes (including criminal laws) that he felt interfered with his authority as Commander in Chief. That memo was disavowed by Jack Goldsmith (and others) at the OLC in December 2003; but, notably, the constitutional claims made in Yoo's memo were never specifically disavowed by the Administration, and, indeed, Attorney General Gonzales dodged the ultimate legal question of the President's Article II authority to disregard criminal statutes when it was posed to him at his confirmation hearings.

The Justice Department's current position is twofold. First, it argues that Congress's September 18th, Authorization for the Use of Military Force (AUMF) provides the President with all the authority he needs to conduct surveillance of American citizens. Second, it retains a modified version of Yoo's Article II on steroids theory-- so that the AUMF is actually unnecessary to justify surveillance-- but the argument has now been made more complex. It is now posed as the claim that one should construe FISA and the AUMF as in perfect harmony with each other and with the President's Commander-in-Chief powers under Article II so to avoid possible constitutional problems. (It also argues, however, that if the constitutional question is not avoided, FISA is *unconstitutional* to the extent it interferes with the Commander-in-Chief power).

If all this is true, why can't we see the March 2003 memo? One likely reason is that if the original basis for the NSA program was indeed Yoo's Executive power on steroids theory, it would be extremely embarrassing to the Administration. First, the theory as Yoo originally proposed it has no logical stopping point. Second, were the original memo to see the light of day, it would make clear that the full throated version of the theory-- that the President is not bound by criminal laws when acting as Commander-in-Chief-- was never, in fact, disavowed by the OLC or by the Administration. One can only imagine the political fallout from such a revelation. It would put, for example, the President's signing statement accompanying the McCain Amendment in a particularly bad light.

But political embarrassment is not a sufficient reason to stonewall when constitutional theories this radical are driving the Executive's actions. It is incumbent on the Administration to state its constitutional claims forthrightly and have them debated publicly, rather than to concoct them surreptitiously and direct its employees and agents to disregard federal law on the sly. If the members of the Administration secretly believe that the Commander in Chief power cannot be constrained by criminal laws-- particularly those limiting domestic surveillance-- the American public needs to know the sort of people in whom it has entrusted Executive power.