Thursday, March 09, 2006

A Thorough Debunking of the "Statutory" Argument for the NSA Surveillance Program -- But Alas, Congress Doesn't Care

Marty Lederman

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.

I worked with David at the Department of Justice. It's very safe to say he was one of the very best appellate lawyers in the Department -- and became one of the most trusted, most well-respected authorities in the Department on criminal law and electronic surveillance issues once he moved on to the DAG's Office. He's extremely thorough, careful, and impartial. And those qualities are on display in his recent analysis of the NSA program, contained in this series of e-mails to the Attorney General's Office in December and January, and, much more importantly, in this remarkable 23-page memo dated January 25, 2006. (All were written in his personal capacity, and do not reflect the views of DOJ or Time-Warner.)

David's memo is by a large measure the most thorough and careful -- and, for those reasons, the most effective -- critique anyone has yet offered of the DOJ argument that Congress statutorily authorized the NSA program. It largely confirms the statutory argument contained in two letters that I and 13 other academics and former government officials recently sent to Congress (here and here), but David's analysis is much more comprehensive than anything we could have done in that format -- it delves deep into the interstices and legislative history of FISA (a subject that David knows inside and out), and takes apart with precision all of the technical statutory arguments offered in the DOJ "White Paper" defense of the program.

Two things in particular stand out:

(i) David provides a comprehensive analysis of FISA's "exclusive means" provision (18 U.S.C. 2511(2)(f)), and shows both why that provision precludes the NSA program unless it was impliedly repealed, and why it was not repealed.

(ii) David pinpoints (pp. 6-7 & nns. 59-62) why the DOJ notion that Congress approved the NSA rogram in the 9/18/01 Authorization for Use of Military Force is undermined by the drafting, negotiation and enactment of the PATRIOT Act that was happening at approximately the same time. We've heard a lot in recent days about how critical it is that the PATRIOT Act be renewed to permit the President to fight the War on Terrorism. Just check out the President's remarks today on signing the renewal -- it's all about how the PATRIOT Act is so critical to the fight against the terrorists responsible for 9/11. (Hasn't the President heard the news that those authorities were already enacted in the AUMF?) We heard the same thing back in 2001, when the Act was first introduced. But the logic of the DOJ defense of the NSA program, if it were correct, would mean that many key provisions of the PATRIOT are largely superfluous. (Few observers have noted one of the most extraordinary aspects of the DOJ White Paper: In footnote 13 of that White Paper, DOJ responds to this PATRIOT-Act-is-superfluous argument by explaining that, in fact, the PATRIOT Act was not necessary for the "current armed conflict against Al Qaeda and its allies," and that it was instead merely a vehicle for removing "long-standing impediments to the effectiveness of FISA." In other words, the "necessary to defeat Al Qaeda" argument was merely a stalking horse, and the PATRIOT truly was, and remains, a DOJ wish-list to address issues that had long preceded September 11th. This doesn't mean that the PATRIOT Act should, or should not, have been renewed; it's merely to point out that, on DOJ's own reading of the AUMF, the PATRIOT Act is hardly necessary to address the current conflict with Al Qaeda.)

Another remarkable thing -- perhaps the most important thing -- about the Kris memo is that it is dated January 2006, rather than January 2003: David did not produce anything of the sort when he was actually at DOJ, when the legality of the program was being considered. That's not David's fault. Although he was the person in the DAG's office whose portfolio included FISA and electronic surveillance, and although DOJ often trotted David out to testify and speak on such matters well after September 11th, David was never so much as briefed on the NSA program. Now we have reason to understand why: Perhaps DOJ knew that if it ran its legal arguments by serious, trusted and objective lawyers in the Department -- those who knew FISA inside and out -- they would not have passed muster. It's hard to imagine any other reason why someone of David's skills, and in his position on these precise issues, would have been kept out of the loop. Once again, it's evidence of an Administration that is indifferent as to what the correct legal answers might be, but is instead looking only for some legal hook, no matter how tenuous, on which to hang its desired operational programs. See also, e.g., the legal justifications for torture and other unlawful means of interrogation that were reached without the input of those lawyers in the Administration with the most knowledge on the questions; and the finalization and use of the DoD Working Group Report without even informing the Working Group itself (which included several skeptics). This is a much more systemic problem than the particular NSA dispute at issue here.

David's memo also includes shorter discussions of the Fourth Amendment and Commander-in-Chief questions. I don't agree with quite all of what David writes in these respects -- in particular, I don't think the bona fides of the Article II argument are as fact-dependent as he suggests -- but his analysis is, again, serious, balanced, and well worth reading.

I would go into more detail on the Kris memo, but I'm afraid this is where the story turns sour. (More on the Kris e-mails from "georgia10" here.) You see, David's analysis is really beside the point now, for two reasons: the first comforting, the other disheartening.

First, as far as I'm aware no one in Congress has been persuaded by the Administration's statutory argument: It was dead on arrival. As Senators Graham and Specter, among others, have explained, they were present at the negotiation and enactment of the AUMF, and they guarantee that neither they nor their colleagues intended to authorize the sort of circumvention of FISA that the Administration has been engaged in for the past five years. (Attorney General Gonzales's testimony, in response to Graham's explanation to this effect, was basically that Congress unknowingly authorized a major restructuring of a central framework statute, and that actual legislative intent is irrelevant. You can imagine how well that notion went over in Congress.)

Second, it now appears that Congress simply (and unfortunately) doesn't care that the Administration's (secret) legal justification was implausible, nor does it care that the Executive branch treated the legislature (and its statutory enactments) with contempt. Republican Senators, including Roberts and Hagel, yesterday negotiated a "deal" with the White House for legislation that would actually authorize warrantless, virtually unlimited surveillance of Americans. According to a report in today's New York Times, the bill "would give Congressional approval to the eavesdropping program much as it was secretly authorized by Mr. Bush after the 2001 terrorist attacks, with limited notification to a handful of Congressional leaders. The N.S.A. would be permitted to intercept the international phone calls and e-mail messages of people in the United States if there was 'probable cause to believe that one party to the communication is a member, affiliate, or working in support of a terrorist group or organization,' according to a written summary of the proposal issued by its Republican sponsors. The finding of probable cause would not be reviewed by any court. [A]fter 45 days, the attorney general would be required to drop the eavesdropping on that target, seek a warrant from the Foreign Intelligence Surveillance Court or explain under oath to two new Congressional oversight subcommittees why he could not seek a warrant." Details on Senator Snowe's webiste.

Oh, and in "exchange" for affording the Administration this huge loophole in FISA, the Senate agrees not to investigate the NSA program, and not to look further into the Administration's past lawbreaking. Quite a deal, right? Here's the best part: On Tuesday, Senator Rockefeller remarked that the Senate Intel Committee Republicans were "under the control" of the White House. Senator Roberts responded on Wednesday that he resented being portrayed as what he called a "lap dog of the administration," explaining that Rockefeller "doesn't know how hard we worked."

I don't doubt that Roberts and Hagel did "work hard" to reach their "compromise." After all, look where they started the "negotiations": The Vice President's opening gambit was to scoff at Congress altogether, and to insist that the program would go forward come hell or high water, no matter how many legislators thought it was illegal. So Roberts, et al., actually secured a great victory: They've put an end to the Administration's lawbreaking . . . by amending the law to make the conduct legal. (That'll show 'em.) Checks and balances in living color. (Much, much more on this development over at Glenn Greenwald's site, which is fast becoming the locale for one-stop web shopping on the NSA issue.)

P.S. In signing the PATRIOT Act extension today, the President included this typical qualification:
"The executive branch shall construe the provisions of H.R. 3199 that call for furnishing information to entities outside the executive branch, such as sections 106A and 119, in a manner consistent with the President's constitutional authority to supervise the unitary executive branch and to withhold information the disclosure of which could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties."

Translation: There are numerous provisions of the Act that require the Department of Justice to provide information and documents to congressional committees for purposes of oversight. We will ignore those requirements when we conclude that it will "impair" what occurs in the Executive branch. Thanks for asking, though.

Don't be surprised when the President included similar language if and when he signs the touted NSA-surveillance "oversight" bill that Senators Roberts, Hagel and Snowe just worked so hard to negotiate.

P.P.S. I've been meaning also to link to this brief filed a couple of weeks ago with the Foreign Intelligence Surveillance Court by Hogan & Hartson on behalf of the Constitution Project and the Center for National Security Studies. The brief argues at length that the NSA program is unlawful, and urges the FISA court to hold NSA's electronic surveillance under the program to be unlawful "in any proceeding where the lawfulness of any such surveillance is at issue." More on this development from Lyle Denniston on SCOTUSblog.


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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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.
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