Friday, May 19, 2006
Michael Hayden and Article II
According to General Michael Hayden's testimony yesterday, in the days following September 11th, Hayden was of the view that FISA outlawed the sort of surveillance program that the NSA eventually implemented. UPDATE from the transcript:
Although you, Prof. Lederman, don't say it explicitly, that last question is obviously also of the rhetorical kind. The following is evidence of it:
“A front-page article in this morning's The Hill reports that Sen. Specter has finally made enough concessions to secure the support of the more right-wing members of the Judiciary Committee for his legislation that (along with a bill from Sen. DeWine) would render legal the NSA warrantless eavesdropping program. As part of this negotiation, what were these Bush allies (Hatch, Sessions, Cornyn, Kyl) holding out for? The removal from Sen. Specter's bill of a clause that would mandate that the FISA court rule on the legality and constitutionality of the NSA program. As usual, the thing which Bush supporters fear most - and which they most desperately seek to avoid - is a judicial ruling on the legality of the administration's behavior. […]”
Marty, two things:
(1)as to the language about the executive "violating" FISA, it is doing so in the same sense that, say, the Supreme COurt "violated" the Partial-Birth Abortion Ban in Stenberg v. Carhart by refusing to apply it. Do you disagree with the view, common throughout our history (and wonderfully explained by Judge Easterbrook in his law review article "Presidential Review", that each branch has its own independent suthority to interpret the Constitution within the sphere of its own powers? The President's chief power is to execute the laws, and he has discretion in applying those laws (we all know of prosecutorial discretion. Did all those state prosecutors violate the law when they declined to enforce state anti-sodomy laws upheld by SCOTUS in Bowers?). If the President determines that a statute is unconstitutional, doesn't that entitle him to refuse to enforce it? Jefferson refused to enforce the Alien and Sedition Acts because he felt they violated the First Amendment, even though every court that had examined them found no violation. Did Jefferson "violate" the law? What is your view as to all three branches having independent review?
(2) As to the disclosure requirements, would your opinion as their propriety be the same if, say, Congress required similar disclosures by the Supreme Court (say, to report to Congress whenever the Court relies on foreign law)? Wouldn't the Court view these required disclosures as a threat to its independence? Why should the Executive not view them similarly?
1. Yes, I believe that the President has the constitutional authority to violate statutes when he deems them unconstitutional. However:
i. It remains a violation of a statute. (For what it's worth, this is different from what the Court does: The Court doesn't violate a statute; when it declares a statute unconstitutional, it *enjoins the Executive (or a state) from enforcing the statute* (i.e., threatens contempt sanctions for such enforcement). But yes, in both cases, another branch disagrees with Congress. And there's nothing *necessarily* wrong with that.
ii. The decision not to violate, or to refuse to enforce, a statute is a solemn one, and should be invoked only rarely, and carefully. The question of when the Executive ought to do so -- rather than, say, the more common practice of enforcing the statute but then not defending it in court -- is a very difficult and sensitive one. For some of the best treatments, see the Dellinger OLC letter to Mikva circa 1994, and the colloquy a few years back in Law & Contemporary Problems between my former colleagues Dawn Johnsen and David Barron.
iii. If and when the President violates a statute on constitutional grounds, he should do so openly and candidly, and provide the rationale, so that the public and the other branches can assess, critique and respond to such a serious constitutional stalemate. (Knowing that he'll have to defend his nonenforcement in public will also ensure that the President doesn't take such a momentous step until he's certain it's correct, and defensible.) Needless to say, that hasn't been the practice in this Administration.
iv. My complaint about this Administration's examples is not the *fact* of statutory violation, but (i) that the proper proccedures have not been followed (see my initial posts from January 2005); (ii) it's been done in secret; and (iii) most importantly, that the Administration is *wrong on the merits* of the constitutional question. In other words, my critique has been based on substance and process, not on remedy (i.e., nonenforcement).
2. Yes, of course Congress could, by statute, require the Court to provide notification of all instances in which it relies on foreign law in its opinions -- although, since the opinions are already public, such a requirement would be fairly pointless, and thus an unnecessary slight to a coordinate branch.
I would add that the Dellinger opinion cited above considered the possibility of violating a statute deemed unconstitutional within the context of prospective judicial review. Violating the statute might provide the only way to test its constitutionality in court, for example.
But Bush has done the opposite, avoiding judicial review at all costs. The DOJ has had ample opportunity to initiate a test case in the FISA courts, where the government alone has standing, but has cowered from doing so.
Meanwhile, the administration fights third-party civil suits on procedural grounds, or claims state-secret privilege, and its allies in the Senate oppose legislative efforts to require judicial review in the future. (Although I can't see how the Article II argument would have been tested this way, anyway.)
Rather than honorably asserting a constitutional principle, Bush has adopted the legal strategy of a fugitive.
Jefferson refused to enforce the Alien and Sedition Acts because he felt they violated the First Amendment, even though every court that had examined them found no violation.
Quick footnote to this: Jefferson did not "refuse to enforce" the Sedition Act. It expired on its own terms before he took office.
Would not 28 USC 530D (e) excuse the President in this case? It reads:
Applicability to the President and to Executive Agencies and Military Departments.—
The reporting, declaration, and other provisions of this section relating to the Attorney General and other officers of the Department of Justice shall apply to the President (but only with respect to the promulgation of any unclassified Executive order or similar memorandum or order) ...
Classifying the executive order seems to be a convenient loophole.
BTW, in your experience, has 28 USC 530D generally been honored by various administrations? This would seem to be relevant to the Judiciary Committee's upcoming hearing on presidential signing statements.
The Alien and Sedition Acts provided that they would cease to be effective on the date of the inauguration of the next President, March 3, 1801, but added that "expiration of the Act shall not prevent or defeat a prosecution and punishment of any offense against the law, during the time it shall be in force." 1 Stat. 596, 597 (1798). Jefferson therefore issued directions to cease prosecutions, including the pending sedition prosecution of William Duane, which had been initiated at the request of the Senate.
He also pardoned those who had been previously convicted: "I discharged every person under punishment or prosecution under the Sedition law, because I considered, and now consider, that law to be a nullity as absolute and as palpable as if Congress had ordered us to fall down and worship a golden image; and that it was as much my duty to arrest its execution in every stage, as it would have been to have rescued from the fiery furnace those who should have been cast into it for refusing to worship the image." Letter to Abigail Adams (July 22, 1804), in
11 The Writings of Thomas Jefferson 43-44 (Albert Ellery Bergh ed., 1907).
Not much attention has been paid so far to discrepancies between Hayden's previous testimony or remarks and what is now known. Is my recollection wrong about this? If not, I leave the implications to the reader.
The Milbank story on closed sessions underlined something Tom Oliphant (which his co-commentator David Brooks agreed with, also noting the lack of true oversight) said as part of his commentary of the hearings on PBS yesterday: leaks turn out to be the only (and therefore essential) way for the public to truly know what is going on. It's telling how some, including Chairmen Roberts (who refuses to release "Phase 2" of the report on use of pre-war intel after promising to do so), rail against such leaks (some clearly semi-official in nature, and not just re the Plame business).
Ackerman's editorial against confirmation is rather striking (it in part addresses this concern) btw since even many liberal leaning sorts (e.g., Joe Conanson in Salon) support the confirmation.
The May 18, 2006 public session testimony transcript from the Washington Post is in two sections, and is caveated as incomplete and in progress. This is the day after your article, so perhaps you have found this material already, as well. Some of the Feinstein material is split part in section I, part in section II.
I admit to a sense of puzzlement at the fact that after 200+ years
these things haven't been sorted out yet. Strange.
So thinking aloud in my 7th grade civics way.
Congress passes a public law. Three possible scenarios.
a) The executive doesn't like it for whatever reasons -- public policy for example -- so they veto it. Fine, their right and obligation to evaluate every new statue and object to it if they don't like it. Congress then can come back and override it on a 2/3 vote thus forcing its will (and will of people they represent) on the executive. This is quite sensible arrangement. Everybody has a voice and chance to weigh in.
b) The executive finds it unconstitutional.
In European legal systems this is usually resolved by requiring the objector to submit its objections to a third party for adjudication. That third party is typically a special constitutional tribunal. Its decisions are final and binding on both the legislature and executive.
Our problems arise from the fact that no equivalent mechanism exists in this country. Under the US system the executive is tacitly permitted to assert unconstitutionality of any statue. Which presumably leaves them free from having to implement it as otherwise would be required by the constitution. It is not clear how the disagreement is supposed to be resolved which gives the executive the power to effectively ignore everything the legislature does willy nilly.
Needless to say if neither a) or b) applies the statue has a full force of law and the executive is required to implement it.
Note that Alito's signing statements do not enter here an any way. Their only proper function is to help the judiciary in evaluating the law's original intent, in case somebody in the future questions how that law was applied after it was implemented. That is signing statements can only contain "we understand this law to mean such and such". They can not, per se, contain any statement of the type "we are going to implement it any which way we want" or "we think this may be unconstitutional so we are going to ignore it". Unfortunately this is precisely how Bush administration has been using them. Pure unadulterated abuse of the instrument imho.
As to the last comment, interestingly, some wished to have some sort of federal panel of review to submit legislation (even state laws) in respect to its constitutionality.
But, there are ways to deal with the alleged unconstitutional law. First off, I think by signing it into law the President in some fashion might in effect waive claims of unconstitutionality. Deciding, even when the writers of the law clearly didn't intend as such, hidden exceptions seems to be cheating.
Anyway, the President can submit the law to a court. The surveillance program and torture measures, for instance, could easily have be dealt in this fashion. FISA and current litigation involving enemy combatants.
Likewise, various affected people can have standing to challenge. The President can encourage this, such as the proposed law (by Prof. Lederman) that anyone potentially harmed by the survelliance program will have standing to challenge it. Test cases to settle the status of unclear laws have been around since the 1790s.
Of course, if the President refuses to carry out laws deemed constitutional or to submit them to some third party for clarification, Congress actually has the power to impeach or pressure him in some other fashion.
Imperfection, surely, but the system has avenues if people actually wanted to use them. This President does not. This Congress does not.
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