New York Times Editorial Page Gets It, Too (Mostly)

Marty Lederman

The feverish reports of presidential capitulation and compromise from earlier in the week are slowly giving way, on careful inspection, to the realizaation that, as the New York Times puts it in an editorial tomorrow, "the president has made it clear that he is not giving an inch of ground," notwithstanding the landmark decision in Hamdan.

The Times editorial is not limited to NSA wiretapping -- its larger subject is the Executive's aggrandizement of power and disdain for the system of checks and balances:

Over and over again, the same pattern emerges: Given a choice between following the rules or carving out some unprecedented executive power, the White House always shrugged off the legal constraints. Even when the only challenge was to get required approval from an ever-cooperative Congress, the president and his staff preferred to go it alone. While no one questions the determination of the White House to fight terrorism, the methods this administration has used to do it have been shaped by another, perverse determination: never to consult, never to ask and always to fight against any constraint on the executive branch. One result has been a frayed democratic fabric in a country founded on a constitutional system of checks and balances. Another has been a less effective war on terror.

On the Specter bill, the Times writes: "Senator Arlen Specter, chairman of the Senate Judiciary Committee, announced on Thursday that he had obtained a concession from Mr. Bush on how to handle this problem. Once again, the early perception that the president was going to bend to the rules turned out to be premature."

One fairly small caveat to an otherwise fine editorial: The Times writes that "while the [Specter] bill would establish new rules that Mr. Bush could voluntarily follow, it strips the federal courts of the right to hear legal challenges to the president’s wiretapping authority. The Supreme Court made it clear in the Guantánamo Bay case that this sort of meddling is unconstitutional."

Neither of those statements is accurate.

1. The Specter bill would not quite strip the federal courts of the power to hear challenges to the Executive's electronic surveillance. It would, however, allow the Attotney General to funnel all such suits into the FISA court system, where the courts (which do consist of federal judges, hand-picked by the Chief Justice) could dismiss them "for any reason." That's bad, but it's not quite federal-court-stripping.

2. The Supreme Court did not make clear that this sort of re-arranging of a series of federal court cases is unconstitutional. It didn't even hold that court-stripping would be unconstitutional (or that it would be constitutional, for that matter).

Indeed, the Court in Hamdan really did not issue any constitutional rulings at all, if one doesn't count the very strong and deliberate signal in footnote 23, and in the Kennedy concurrence, that the statutory constraints on the military commissions do not unconstitutionally impinge on the President's Article II powers. With that one small but significant quasi-exception, the conventional wisdom that Hamdan was a constitutional case is pretty much wrong: Hamdan certainly was momentous, as I argue here; nevertheless, it was almost entirely a case about interpretation of statutes (the DTA, the AUMF, and the UCMJ), and a treaty provision (Common Article 3). There may very well be some constitutional limits on what Congress and the President can now do to respond to the Hamdan decision in several dimensions (such as detention, interrogation, trials, surveillance, treaty-interpretation, court jurisdiction, etc.). But the Hamdan decision itself imposes virtually no constitutional constraints on the political branches.
Posted 9:45 PM by Marty Lederman [link]