Balkinization  

Friday, March 31, 2006

The Schumer NSA Bill and the Feingold Censure Resolution

Marty Lederman

There's a hearing in the Senate Judiciary Committee today on Senator Feingold's censure resolution, dealing with the NSA's extra-legal electronic surveillance program. As I explain below, I think the legal substance of the Feingold Resolution is unassailable, and the emergence of the censure resolution certainly plays a valuable role in keeping the issue in the public eye. Beyond that, I don't have enough information or political acumen to calculate whether the Feingold Resolution is a politically astute tactic -- but the one thing I'm fairly certain of is that, although it's well-intentioned, it will not lead to cessation of the NSA program, or to any serious and effective assertion of congressional war-powers prerogatives.

Accordingly, I return to the question I asked two months ago: What can Congress do about this conflict, anyway? I continue to think that what I wrote then was correct: The only way for Congress to prevail in this important war-powers stand-off is if the Supreme Court declares the President's conduct unlawful. Assuming that's correct, the only worthwhile thing for Congress to do is to pass a statute such as that proposed by David Barron, establishing statutory standing for parties reasonably chilled by the NSA program, and facilitating expedited Supreme Court review.

Enter Senator Schumer's new bill, S.2468, which would do just that. This is the bill that should be the top legislative priority. The bill is very simple:

Most importantly, it would create a statutory cause of action -- and thus statutory standing -- for certain persons with a "reasonable fear" that their communications are being intercepted, authorizing them to file an action asking a court to enjoin or declare unlawful the NSA program. A reasonable fear would be established by evidence that the plaintiff either has regular wire communications from the U.S. to Afghanistan, Iraq or Pakistan, in the course of paid employment involving research pertaining to terrorism or terrorist groups, or commercial transactions with a bank or financial institution in those countries.

The bill would provide that a three-judge court in the District of Columbia would hear such a suit, and would be required to handle the action with dispatch. Appeal from a final judgment would be directly to the Supreme Court, by way of a jurisdictional statement filed within 30 days after judgment.

As David Barron explains here, this bill would at the very least remove the very formidable statutory obstacles to suit that the current FISA may currently impose, and it might well have a significant effect, as well, on any Article III argument that the government would raise against the plaintiffs' standing. (See more from David here on why it's a good idea to tee up the question for the Court.)

If the bill were, by some miracle, to become law, it would lead to a judicial resolution of this landmark dispute -- the only sort of resolution that will affect the Administration's conduct -- and become a very important doctrinal marker affecting the allocation of powers between Congress and the President, alongside Youngstown, U.S. v. Nixon, the Pentagon papers case, Nixon v. Administrator, and Morrison v. Olson. It would also permit the Congress to consider amendments to FISA on a clean slate, with the current statutory and constitutional framework firmly established. (See, e.g., David Kris's proposal that I discuss here.)

More likely, the Schumer bill would be defeated on roughly a party-line vote. Or, it's possible the Schumer bill might pick up sufficient Republican support for passage -- it's very difficult to publicly articulate a compelling reason for opposing such legislation -- in which case presumably the President would veto it. This would, alas, mean that the bill would not become a law; but in that case, the Administration's constitutional hardball would be clearly seen for what it is -- so dedicated to opposing any checks on untrammeled Executive power either by statute or by the independent judiciary that the President is willing to cast his first veto to prevent any evaluation by the other branches of the lawfulness of his conduct. Such exposure would, I hope, be chastening, and a very important signal to the public of the profound constitutional distinctions between the President and his critics.

OK, so a few quick words on the Feingold Resolution: There has been a great deal of discussion and debate in the blogosphere, including by Jack on this blog, with respect to two questions: the merits of the Feingold resolution and the politics of it. Actually, there's not much serious debate about the merits. Thus, as I've discussed in several posts, there's very little question that the President has authorized systematic violations of FISA. And unless I missed something, no one in Congress has so much as suggested otherwise. (If anyone has examples of any legislator agreeing with the Administration's AUMF argument, please let me know.) Therefore, as far as I can tell, everything in the Feingold Resolution is true. The only question even under serious discussion on the Hill -- obliquely raised by Senator Specter and more unequivocally embraced by Senator Roberts and, more recently, by Senator Hatch -- has been whether FISA (or any other law regulating intelligence-gathering and interrogation) is unconstitutional to the extent it constrains the President's discretion on how best to gather intelligence against the enemy. And even on that question, there hardly seems to be majority support in either the Republican Senate caucus or with the public for the Commander-in-Chief prerogative to circumvent statutory limits.

So the real issue, among those debating the Feingold resolution, has reduced to the politics of the matter--i.e., whether pushing for and voting in favor of the Feingold motion would be good or bad for Democratic electoral prospects. See, for example, numerous posts on Unclaimed Territory, and Kevin Drum here. I don't have much of anything to add to what others have said in this respect: It doesn't seem like a political liability to me . . . but what do I know about such things -- particularly the politics in specific states and districts that will be competitive come November?

What no one appears to be writing about, however, is how the Feingold Resolution might affect the institutional interests of Congress and, more generally, the proper checks and balances of the federal government. Of course, it is a sad fact that few politicians in this town (save perhaps for Bobby Byrd) give even a moment's consideration to such factors. But to the extent one thinks such things matter at all, the recent controversies are a fairly big deal: The President is asserting the power to ignore duly enacted statutes whenever they impinge on his judgment about how to best defeat the enemy. Not only that, but he also asserts the right to do so in secret, without meaningful congressional oversight, and without any public knowledge that the laws are being superseded. Indeed, as the Feingold Resolution points out, the Administration has taken great pains over several years to convince the Congress and the public that it is abiding by FISA (just as it publicly insists -- with fingers crossed behind its back -- that it does not condone torture and complies with all international obligations and statutory restricitons on interrogation). And in response to the President's assertions of Executive power, not only is the Republican-controlled Congress not asserting any institutional prerogatives (which might be expected in an era in which partisan considerations greatly outweigh institutional loyalties), but even the Democrats are acting as if this is merely another in a series of policy disputes, rather than a more fundamental, structural challenge to the balance of powers.

Make no mistake, however: The Vice President and others in the Executive branch are very serious about the long-term strategy of Executive aggrandizement -- and, except in the rare cases in which they are rebuffed by the Supreme Court (e.g., Rasul), they are largely succeeding at changing the baseline of the debate--and with very little pushback, at that. And if Cheney, et al. can so thoroughly prevail in this basic separation-of-powers struggle when the President is at a 33% approval rating -- with the Executive ending up significantly more empowered after Congress has responded than it was before its malfeasance came to light -- one shudders to contemplate the executive-imperialist implications if this President ever approaches Clinton-like approval ratings.

OK, but even assuming I'm correct that this is a serious test of the separation of powers, what would that mean for the Feingold Resolution? Frankly, I don't know. Even if all of the Democratic Senators got on board, Senator Feingold must know that a vote on the resolution would fail -- and that would leave things worse than they are now, because it would be perceived by many (including perhaps even some courts) as an implicit congressional rejection of the idea that the NSA program is unlawful (or, at the very least, an implicit congressional signal that the legal question is a difficult one). And, of course, there won't be uniform Democratic support, which would make the results of a vote even more troubling.

Either way, the Resolution would do nothing to stop the NSA program (or bring it into conformity with the law), or to check the Executive power-grab, and would likely only exacerbate the problem. Indeed, even if, by some miracle, the Resolution were to win a majority in the Senate, it still wouldn't accomplish anything, because Cheney and company would respond: "Thanks very much, but we respectfully disagree and will continue business as usual."

Thus, I'm afraid that from the perspective of the future of the balance of constitutional powers, the Feingold Resolution could not improve things any, and might, if defeated, actually set Congress back even further. On the other hand, the Resolution does keep the issue in the public eye, and, frankly, at some point those who are concerned about the President's aggrandizement must do something to assert constitutional principles. In the absence of any other possible congressional options for dealing with the problem, it might well be worth the practical risks.

So, ultimately, I'm fairly agnostic on the tactical wisdom of the Feingold Resolution. But whether or not that Resolution remains viable, I think the efforts of those concerned about the Executive's power-grab -- e.g., Senators Feingold and Specter, among others -- would do well to put their energies to work in support of the Schumer bill. It's not an either/or choice.

Comments:

Great post. One point that might be worth emphasizing is that the institutional interests you identify should be part of any discussion of the merits of any Congressional action designed to reign in the executive branch. For example, you write that the merits of the Feingold resolution are strong because there is little doubt that Bush violated the law. This risks implying that the merits of censure depend on whether the president deserves to be scolded for his actions, as opposed to whether censure would succeed in addressing the institutional concerns you identify.

Under the institutional-interests metric, censure is warranted if it would force the president to change his behavior. I take it that you are actually applying this metric, instead of one that regards censure as deserved scolding. For instance, despite your initial conclusion that censure is merited, you conclude that Schumer's bill is more significant than Feingold's resolution because the former stands a better chance of curtailing executive power. Along these lines, my view is that if Bush publicly abandoned tomorrow his expansive view of Article II, the case for censure (or impeachment) would be weakened, notwithstanding the prior lawbreaking. (I say "weakened," instead of "erased," to leave room for some scolding or other non-deterrent component.)

I would suggest only that you make this point more explicit to your readers when you discuss political hot potatoes like censure (or impeachment, to take another example). If the point is left implicit, people will continue to regard censure, impeachment, and other direct action against the executive simply as mere political cheap shots by a bitter opposition convinced that the president "deserves" to be punished. But, as your post explains, these actions are particularly warranted to the extent they reign in an overreaching executive.
 

Censure alone probably won't solve the problem of executive aggrandizement. Only impeachment will do that. The impeachment needn't be that of Bush; though it should be the President, the Attorney General might suffice.

The scandal here is that the only resolution up for discussion is censure when it should be impeachment.
 

I find Schumer's bill attractive as a means of facilitating judicial review of the underlying merits today. It is judicial review, or the lack thereof, that is the core of the whole mess.

But we must also recognize a looming question of mootness. It seems almost inevitable that Congress somehow will legalize at least some of what is going on de facto, whether in Specter's bill or DeWine's much more dangerous ratification bill. Any legislative strategy that fails to recognize that political reality seems unrealistic.

Even if Congress does choose, as a policy matter, to broaden surveillance authorized by FISA going forward, the most important threat to liberty is in the President's untested assertion of unfettered Article II authority. It is that issue that cries out for settlement in the courts.

The suits that would be aided by Schumer's bill presumably would seek injunctions to halt unlawful surveillance, but they likely would face a serious mootness barrier after Congress enacts whatever it does. Perhaps there is a cure for this problem, but I have not thought of it.
 

I'm of the "aah! do something, do something!" school, so largely supportive of Feingold.

The Schumer bill has a better chance of passing--still not good at all of course--and much more of a substantive result. But the argument that the Democrats are likely to make for it, I'm guessing, is going to be a bit of a cop-out: we don't know if it's legal or not, it'd be premature to say either and premature to legalize it, so let's ask a court.

That's hard to argue against, but it's also not going to catch the press's or the public's imagination. And given that neither of these bills is at all likely to pass, sending out the distress call to the press and public is crucial. That distress call needn't have taken the form of a censure resolution, of course, but it has, and I really wish the Democrats would line up seriously behind BOTH efforts. That means Feingold should realize that Schumer's bill actually does more than his proposal and get fully on board with it, and Schumer and the rest of the Dems on judiciary should at least fricking bother to show up to the hearings on the Feingold resolution. Not doing so sends the signal that Feingold's fears about separation of powers are trivial and marginal, and if the press & public are convinced of that, DeWine's bill or something almost as bad is going to pass, and Schumer's will fail.

Reading about this and Hamdan this week, and remembering the events surrounding the Graham amendment, it struck me: when it comes to defending individual rights and the rule of law in wartime, the Democratic party has been silent, whereas the AmLaw 100 has come through in a big way. I never would have guessed that one.
 

If the chief rational for such increased executive power is a state of war, why is the question of under what conditions that state of war is over so seldom asked? Are we expected to believe that a state of war will exist so long as there are terrorists on the earth? If that's the case, then it seems to me that any debate regarding what to do about executive power is not particularily relavent, as the state of war argument can be applied on an indefinetly ongoing basis to prevent any balance of powers from checking executive authority.
 

I don't think Cheney would "respectfully" disagree.

Great post otherwise.
 

To add to Mark Field's comment: Impeachment would not be sufficient. If Bush were the leader of any other nation, we'd be demanding a war crimes trial before an international tribunal, and that's what we should demand for him too. (OK, the attorney general might suffice.) Of course it is absurd to expect this, but if we're going to call for symbolic acts like censuring, then let's push the envelope. It will at least make censuring or impeachment seem less radical.
 

To add to Mark Field's comment: Impeachment would not be sufficient. If Bush were the leader of any other nation, we'd be demanding a war crimes trial before an international tribunal, and that's what we should demand for him too.

"The greatest danger is to be feared from those who mask a secret aversion to any reform under a zeal for such a one as they know will be rejected."
-- James Madison
 

Marty, whatever your views on the legality of the President's actions, wouldn't you agree that saying he was operating without meaningful congressional oversight is a bit disingenuous?
 

Two comments: First, I find this very frustrating: if "the legal substance of the Feingold Resolution is unassailable," and there is "very little serious debate" about the merits of the resolution, then 1- how come the "experts" called before the Judiciary committee today were split 2 in favor, and 3 against censure? I know the answer is that the hearing was run by Specter, a Republican, and we are lucky he is responsible enough to have a hearing at all, but it is still frustrating. The way Republicans frame this argument, by creating the appearance of a scholarly disagreement where in truth none exists, reminds me of their tactics in debating both Global Warming and Evolution...

The other comment I have is about Schumer's proposal. While I think it has some merit- I don't think Schumer and Feingold's proposals are mutualy exclusive. Both should be accepted, along w/ whatever other means are necessary to curb this power-grab by the Executive branch. I personally prefer Feingold's approach, because I think Schumer's proposal is a somewhat spineless punt. When the case is this clear that the President broke the law, if Congress is afraid to say so then who knows if the Courts will be as well. With the Executive branch being as power-hunrgy as it currently is, I believe it will take the combined strength of BOTH other branches to preserve the delicate constitutional balance.
 

A reasonable fear would be established by evidence that the plaintiff either has regular wire communications from the U.S. to Afghanistan, Iraq or Pakistan, in the course of paid employment involving research pertaining to terrorism or terrorist groups, or commercial transactions with a bank or financial institution in those countries.

So if I send Western Union to my grandmother regularly in Afghanistan, I have standing? Where is the injury, exactly?
 

This continues the above dialogue with Mark Field. I am reading Father Abraham: Lincoln's Relentless Struggle to End Slavery, by Richard Striner. Striner's thesis is that Lincoln, at least from 1854, was unequivocally against slavery, and any remarks he made to the contrary were strategic compromises designed to advance the goal of ending slavery. Striner contrasts Lincoln's pragmatic approach with the morally uncompromising but less potent stand of the abolitionists. Nevertheless. he quotes Reinhold Niebuhr: "Throughout the whole course of history mankind has ... reserved its highest admiration for those heroes who resisted evil at the risk or price of fortune and without too much hope of success. Sometimes their very indifference to the issue of success or failure provided the stamina which made success possible."
 

Katherine said: the Democratic party has been silent, whereas the AmLaw 100 has come through in a big way.

No disagreement on the party. Who are "the AmLaw 100"?
 

Nell: google and ye shall find.
 


First Drunk Driving Conviction
Your first conviction for driving while intoxicated (DWI) in the State of New York with a BAC of .08 percent or higher is a misdemeanor. You will be fined from $500 to $1,000 and you could spend up to 1 year in jail. Your drivers license will be suspended for a minimum of 6 months and you will be ordered to pay a mandatory conviction surcharge. You will also be ordered alcohol screening and evaluation prior to sentencing.
Second Drunk Driving Conviction
Your second conviction for a DWI in New York State within 10 years of the first DWI will be a Class E Felony. This felony will cost you a minimum fine of $1,000 or up to $5,000. You will also receive a minimum jail sentence of 10 days in jail or be ordered to perform 60 days of community service. The minimum 10 day jail sentence can be increased by the court up to 7 years in jail. Your driver license will be revoked for a minimum of 1 year plus you will have to pay for an ignition interlock device that will be placed on your vehicle once your suspension is over. The court will also have you pay for your alcohol assessment.


Third Drunk Driving Conviction
A 3rd drunk driving conviction in New York is a class D felony. You will be fined a minimum of $2,000 up to $10,000. You could be sentenced up to 7 years in jail, 10 days of which is mandatory. The court may also order you to serve 60 days of community service. Your driver license will be revoked for a minimum of 1 year plus you will have to pay for an ignition interlock device that will be placed on your vehicle once your suspension is over.
The State of New York prohibits driving with a blood alcohol concentration (BAC) of .08 percent or above. The .08 limit is used throughout the United States as the benchmark for the "impaired" driver. New York State has lower limits for Commercial drivers (.04) and drivers under the age of 21 (.02). The laws for drivers under 21 are effectively a zero tolerance law and a minor could lose the privilege to drive until they become an adult. The New York law also addresses driving under the influence of drugs, alcohol or both.
Like other states across the country, New York State has an implied consent law. This law means that all drivers on the roadways of New York agree to submit to a chemical test of their blood, breath or urine of an officer of the law suspects the driver is under the influence of alcohol or drugs. If you refuse such a test you drivers license will be suspended in court and revoked for a minimum of 1 year. You will also be fined $500 on your first refusal and $750 for your second

 

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