Thursday, March 09, 2006
A Thorough Debunking of the "Statutory" Argument for the NSA Surveillance Program -- But Alas, Congress Doesn't Care
Today's Washington Post reports that David Kris, DOJ's Associate Deputy Attorney General in charge of national security issues from 2000 to 2003 -- now a counsel at Time-Warner -- is "highly critical" of the legal arguments that DOJ has offered in support of the legality of the NSA domestic spying program. That's putting it mildly.
Let's see: Kris is receptive to the Article II arguments likely made in 2003, but finds the AUMF argument offered in 2006 to be unpersuasive. Somehow that's evidence that, if the Article II arguments had been presented to him in 2003, he would have objected to them at that time. Or something along those lines. I mean, everyone recognizes that the AUMF argument is more recent than the approval of the NSA program, and, thus, that some other rationale must originally have been adopted. But we're supposed to ignore that, in favor of some conspiracy of ignorance.
It isn't that you find the Article II analysis less fact-dependent than Kris does. To the contrary, your position, as far as I can tell, is that the facts don't make a difference *at all*. There's nothing in anything you've written--all of it in utter ignorance of what the underlying facts are--that signals any uncertainty.
What is more interesting is that the Congress is being much more sensible to limitations on its power than the academic commentators have been. It is clear that an overwhelming majority of the Congress believes, along with the president, the NSA program is essential to national security. Further, there is good reason to think that the NSA program as it presently exists couldn't be brought within FISA (e.g., Senator Specter's draft legislation). The latest developments indicate that Congress is interested in reasonable regulation of the program, and not interested in an unconstitutional overreach to end the program. Seen in this way, the proposed amendments are as much confession of error as indication of interest.
Marty, I don't see how what particular members of Congress thought is relevant (I thought Judge Easterbrook's fine work in this area settled this - there is no "intent" for a collective body, and those intenst never had to go through the process of bicameralism and presentment, so they are not "law"). The text of the AUMF is what governs and it is very broadly worded. Congress members undoubtedly did not think they were specifically authorizing the detention of American citizens with the AUMF, but SCOTUS said the language was broad enough to authorize it, despite the prior specific statute prohibiting it.
That is the same here: just as authorizing detention of belligerants is an incident of warmaking, so is intercepting enemy communications, even when one of the parties to that communication is in America (wiretapping was done by both sides in the Civil War, letters were intercepted before that - Hell, in WWII, all incoming mail to ths U.S. from overseas was intercepted and read).
The text of the AUMF is what governs and it is very broadly worded.
The AUMF authorizes force against "those nations, organizations, or persons [the president] determines planned, authorized, committed, or aided" the attacks of September 11, 2001. If the wiretapping is limited to those persons, then an argument could be made that wiretapping them is permitted. There are other problems with that position, not the least of them being whether Congress intended to override FISA without expressly saying so, but I'll grant it for the moment. In any case, the wiretapping seems to be much broader than this and therefore not covered by this language.
Even this argument is problematic because of the amendments Congress rejected before voting on the AUMF. There were two suggested by the Administration:
1. On September 12, 2001, to add a clause expanding the scope to allow the use of force to "deter and preempt any future acts of terrorism or aggression against the United States."
2. Just before the Senate vote, to add the words "in the United States and" after "appropriate force" in the text.
The rejection of these two amendments pretty well eliminates any claim that Congress authorized actions in the US, including warrantless wiretapping. It makes even less likely the assertion that Congress modified FISA without any mention that it was doing so.
The latest developments indicate that Congress is interested in reasonable regulation of the program, and not interested in an unconstitutional overreach to end the program. Seen in this way, the proposed amendments are as much confession of error as indication of interest.
This is an odd conclusion to reach regarding the Art. II issue. If Congress is drafting legislation to authorize the program, that legislation is a specific rejection of claims that the President has sole authority under Art. II. Congress is not "confessing error", it's stating "the President was wrong".
The web of domestic spying goes well beyond what NSA is up to.
Laura Rozen is untangling one of its darker corners:
March 10, 2006
I know you have been critical of Sen. Specter's draft bill, believing that its authorization of surveillance is potentially too broad.
However, Specter's approach does have the merit of forcing judicial review -- not only of the NSA "program" we know something about but any other "programs" we only suspect are out there. If the President wants to make the "Yoo" case for such programs, he could tell it to the judge (and would probably lose).
Given that the White House and its allies are coalescing around the DeWine bill -- which essentially deals the courts out completely at the President's discretion -- would you like to rethink your opinion of Specter's bill?
Congress needs your encouragement to wrap its arms around this polymorphic issue. I too had to wonder at the Senate Judiciary Committee reaction to the have-it-both-ways February hearing parsing of the AUMF override of FISA, with, as observed, above, and by you in your opening commentary, the Yoo unitary executive leitmotif throughout.
I think Congress is going to wait until there is a quiet Middle East and a Guantanamo depopulation after those issues are settled in court, before addressing a genuine rewrite of FISA so it too becomes realtime responsive; unless congress opts for secret laws to govern secret programs, sooner.
I see the DeWine and Specter measures and Frist's own recommendations, as cosmetic.
I see the current Supreme Court's getting involved but incrementally via all the habeas suits which it certs; and temporizing, as well, until there is some kind of peace and stability.
To me it is all extralegal, wherefrom the hue and cry and justly so, especially from former decisionmakers and a majority of the most respected longterm experts from academia, but the executive is winning realtime in the antiterrorism conflicts.
What do we do if NSA lofted the omnisnoop P10Cs on 9-12 and vacuumed and datamined every cellphone call from VA to MA,e.g.
I think this is why Graham and Frist are willing to acquiesce, predominantly, although there is caucus politics motivating much of their work.
Until there is an armistice, there will be no deep lawmaking. Not exactly the best time to blast the Yoo theory out of the firmament, though the evidence tainting will be the Achilles heel of that scoping of executive's reach: FISC will begin to reject 5th amendment violations, and SCOTUS will, as well; probably, why the reconstitution of the commissions has yet to occur; the executive as well is procrastinating while the clocks tick in Iraq, and toward primaries here ninety days from now.
And of course the President and congress, both, are going to write interim claims of responsibility for success and taut revisions of statute to apply to this innovative conflict in telecoms, and in Iraq, and in Afghanistan; the 'work'. I look forward to studying the materials at the Snowe site; I appreciate that link.
There may be a forgiveness session like the Iran-Contra hearings; sins will be outed; but destruction occurred in Nicaragua region, not Manhattan. I think that is the difference.
The sooner politics leads to a change of policies and officeholders, the more quickly the pressure on the Supreme Court will subside and the more thorough congress will become.
As you point out, at least if I am grasping the gist, the move and countermove for now are fairly transparently shells without much substance. Executive is prosecuting its course, one which likely is drawing to a close because five years is too much time now.
"Extralegal . . . shell" game, indeed.
More light on the dark corners:
Blogger Gets Education in Gestapo Tactics
Bush's Mysterious 'New Programs'
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