an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Dear Senator Specter: On several occasions, most recently at yesterday's hearing with the Attorney General, you have articulated the following reasoning in (possible) support of the legality of the NSA surveillance program:
1. Several courts of appeals held, pre-FISA, that the President has "inherent" constitutional authority to engage in warrantless electronic surveillance for purposes of foreign affairs or national security, even where such surveillance might intercept communications of U.S. persons -- at least as long as the surveillance passes Fourth Amendment muster. (NOTE: The leading pre-FISA case, Zweibon v. Mitchell, held that such warrantless surveillance would not satisfy Fourth Amendment scrutiny where the target of the surveillance is not a foreign power or agent of a foreign power. See page 1356 n.10 here.)
2. If the President has an "inherent power" to engage in certain conduct, then a duly enacted statute may not restrict the President's exercise of that conduct.
3. FISA restricts such conduct.
4. If the courts of appeals were correct that the President has an "inherent" power to engage in such warrantless surveillance, FISA's restrictions of it are unconstitutional. As you put it yesterday, if the President has such an inherent power, then the provision of FISA establishing the "exclusive means" of electronic surveillance is "superseded."
This is not correct, because premise No. 2 is wrong -- a category error.
The President has a great number of constitutional powers -- call them "inherent" (or , as in Hamdan, "independent") powers -- that he may exercise in the absence of statutory restriction. (This is basically what's described in "Category II" of Jackson's Youngstown concurrence.)
But the fact that a power is "inherent" does not mean that it is exclusive, or non-defeasible.
For examaple, under the Commander-in-Chief Clause alone -- at least as it has come to be understood in modern times -- the President has "inherent" authority: to set rules for the military; to establish courts martial and (possibly) military tribunals; to deploy troops; to govern and make rules for occupied territory; to seize enemy property (think of the Emancipation Proclamation); to engage in defensive military measures; even, to some undetermined and contested degree, to introduce troops into hostilities (e.g., Korea, Bosnia, Haiti, Somalia, etc.); and so on.
But this does not mean that Congress may not enact statutes to regulate these functions. Of course it can. For exmaple, the Court held in Swaim v. United States, 165 U.S. 553 (1897), that the President has inherent authority to convene courts-martial in the absence of statutory authority. But that doesn't mean that Congress cannot, by statute, regulate how such courts-martial will operate. And once it does so, the President is bound to comply with statutory limits. See Loving v. United States, 517 U.S. 738 (1996).
Similarly, in Hamdan itself, the Court assumed for purposes of argument (see top of page 28) what has been assumed since the Civil War, namely, that the President may constitutionally convene military commissions to try suspected enemies for violations of the laws of war without the sanction of Congress in cases of controlling necessity. But, the Court went on to explain, "Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 637 (1952) (Jackson, J., concurring)."
In other words, deciding that a presidential power is "inherent" or "independent" does not begin to answer the question of whether it is defeasible, or regulable, by statute.
Thus, even if those courts of appeals you cite were correct that the President would have "inherent" constitutional authority to engage in warrantless electronic surveiilance, FISA placed limits on such surveillance and specifically restricted the President from doing what his "inherent" powers might allow. That limitation is perfectly constitutional. Nor did the courts of appeals in those cases suggest otherwise. To the contrary, in the one case decided after enactment of FISA, United States v. Truong Dihn Hung, the court indicated that FISA’s restrictions were constitutional. See 629 F.2d at 915 n.4 (noting that "the imposition of a warrant requirement, beyond the constitutional minimum described in this opinion, should be left to the intricate balancing performed in the course of the legislative process by Congress and the President").
Therefore the provisions of your bill that would elimimate that "exclusive means" restriction, and that would expressly reinstate a provision ceding the President the right to act in accord with his inherent powers, would undo FISA altogether and work a radical change in the law that has governed surveillance for almost 30 years. Perhaps that would be advisable social policy; perhaps not. But it would decidedly not be business as usual. See my previous post here, and Patrick Keefe in Slate today, summarizing the radical changes in the Specter bill.
For further explanation, see our letters here and (most recently) here, and Jack Balkin's Youngstown primer post here. And Walter Dellinger to similar effect (with a similar plea to Senator Specter) in the immediate wake of Hamdan.
Hope this clarifies matters. At the very least, all this confusion with respect to the notion of "inherent" powers -- as if such an adjective were in the Constitution itself! -- is proof-positive that we ought to heed Justice Jackson’s caution that "[l]oose and irresponsible use of adjectives colors all non-legal and much legal discussion of presidential powers," and that terms such as "'[i]nherent' powers, 'implied' powers, 'incidental' powers, 'plenary' powers, 'war' powers and 'emergency' powers" are often bandied about "without fixed or ascertainable meanings." 343 U.S. at 646-647.
Whatever else we might think about Arlen Specter, he is not dumb. We may safely assume that he knows everything about the law you explain in your note, but chooses to look the other way for political reasons.
Specter does not deserve the benefit of the doubt that the principle of Hanlon's Razor might afford someone else.
As pointed out by some kind commentators here, desirous of some input from judiciary Specter may be trying to find a way around the state secrets privilege*.
No legal challenge to the NSA domestic spying can be expected to survive in regular US courts when the government invokes it. This effectively assures that no case will ever reach the SC where such invocation would be politically impossible.
Specter seems to go on the assumption that the government would also hesitate to invoke it in the FISC of Review**. I'm not so sure, recall that proceedings before that court are totally secret, always ex parte (except the government of course) and decisions are generally sealed forever. Under such condition the government could invoke anything and nobody would be any wiser except those three special judges in Washington DC.
All this is a direct consequence of how courts apply the state secret privilege, or rather how they were told to apply it. The SC should revisit the issue de novo (from scratch) and implement something akin to Youngstown categorization where some balancing of competing interests is required.
As currently implemented the state secret privilege is way too blunt of the instrument to leave it alone, if we want to keep this government honest.
* (given the rest of his bill, this actually may be severely misreading his true intentions)
** (another possibility is that Specter is pushing FISC because he is sure that court will do everything possible to placate the executive)
jao said: Bush has ample opportunity to initiate a test case in the FISC court today, under existing law. Yet he refuses to do so.
Gonzales repeated several times that the administration is perfectly happy now with the idea of FISA court reviewing their program.
When asked (and indignantly so) by the Committee why haven't you done it yet, he offered a quite dismissive view of that court -- "its only statutorily mandated function is to verify that government applications for secret warrants are complete. Nothing more."
This flies in the face of how US judiciary likes to think of themselves. As final arbiters of constitutionality of things that is.
Gonzales, however, reflected the long prevailing view of the FISA system in the executive and its security agencies. That is FISA court as an unfortunate consequence of Hoover's FBI alleged excesses, that can be tolerated only as long as it is limited to counting the number of attachments in government applications. FISA, they claim, was supposed to create an illusion of judicial review in security cases involving US persons, not provide it.
Gonzales got a point here, I think, as sad as it is.
All this brings back the problem of the lack of workable mechanism for resolving constitutional disputes in this country. True the Constitution says that the Supreme Court is there precisely to adjudicate such disputes ("controversies" as the Constitution puts it), but the system as it evolved over centuries does not provide sure-fire access to such adjudication.
Lesser courts need to be involved first. Which in the age of unrestrained "state secrets privilege" means that the executive can easily block the Supreme Court from ever adjudicating what the executive doesn't want adjudicated.
Giving the Congress the right to directly submit adjudication requests to the SC when, say, at least 20 senators think a constitutional "controversy" exists is long overdue, imho.
I fully agree with your other point, that of Specter shamelessly capitulating to the executive by proposing to make it entirely voluntary for the government to seek judicial review of its current and future domestic spying operations.
I'm humbled, the unthinkable and unexpected has happened , a court in San Francisco DENIED the request of the government to dismiss the AT&T case on "state secrets privilege" grounds and the identical request by the AT&T on a number of other grounds.
Unbelievable! Especially that it was Bush cousin who rendered it.
The opinion appears extensively documented. Some notes.
-- The court refused to blindly apply the SS privilege, instead it performed exhaustive balancing as a result of which it refused to grant it. I admit I didn't think this was likely or even possible in US courts in the present legal climate.
-- the administration explicitly invoked its right to engage in warrantless surveillance of US persons. The court did not address this at this point in time, but reserved the right to pronounce on it in the future.
-- the court fully expects Congress to do something in the near future that will significantly affect its future deliberations. Hopefully this won't be Sen. Specter. Rep. Harman?
-- I'm very heartened by the court's refusal to accept that old government position that secrets are always secrets regardless how common the public knowledge of them is. Finally judiciary injecting some rationality here.
-- The court said nothing about collection of "meta data" (communication records) simply because the government refused to deny or confirm it. Technically correct but this doesn't bode well for the future.
It appears that Sen. Specter was downright wrong, it is entirely possible for regular courts to responsibly handle domestic spying cases. Just let the normal system works as it was always supposed to work. With their time tested procedures, appeal possibilities including the SC, etc. The whole shebang.
A seminal decision that is likely to reverberate in the legal community for decades to come.
More reasons for the right wing to get another Alito installed on the SC.
It seems to me vast extrapolation for CinC powers invocation as the means to assure utter stealth to administrative fiat, which is what I see in Specter's draft: whatever Gonzales swears belongs only before FISC goes there for one year without review. That's working from the ten-minute draft Sen Specter published almost a week ago. I need to do as ML and others have done, and review the subsequent hearing which has taken place. I would be agreeing more with the Specterization of FISC if I trusted every future AG to hew to the letter of the law and make secret only what is essential to seal. As I read the VWalker decision from the denial of MTD in the ATT secrets case issued today, I observed that there is a separate place on the internet that shows what Air Force claimed were secrets when later released under FOIA so some widows could read the cause of a plane crash, turned out to be not so secret, but more the kind of classification that belonged mostly in a rearguard action file. Judge Walker's history cites that case based on the kinds of tests it clarified; but, that document, as well, I continue studying. I am glad your associates are on the forefront exposing the specious turns of phrase and convenient absence of precedents in Sen Specter's draft. After the Harman thread the other day, I reviewed that link; it was their side of the aisle's draft from months ago; though I have yet to find the Heather Wilson reproposal along Republican thoughtways, promised for reading yesterday in the lower chamber. The entire Specter view in the FISA matter continues to evoke the same sensibility that JB pegged a few weeks ago nearby, that once lubricated the executive unitary way of effecting regulatory exercise of power is a self propagating modality that plunges ever farther away from the fairness standards of ordinary checks and balances, all in the name of the worrisome counterpoint of civil insult caused by terrorists. It is as if only part of the government is functioning, and mostly in secret here.