The NSA and Hamdan

Guest Blogger

Cass Sunstein

Marty Lederman, who has not been entirely thrilled with my tentative thoughts on the NSA surveillance, has asked for my views on the relevance of the Hamdan decision to that controversy. I'm grateful to him for asking and to Jack Balkin for providing me with an opportunity to answer. I'll get to the real question shortly, but let me begin with some background.

1. I hope that we can agree, perhaps especially in this area, on the law-politics distinction. The Clinton impeachment was clearly unconstitutional, but very few conservative law professors (or lawyers) were willing to say so, at least in public. Their own political views, and their dislike of President Clinton, led them to silence themselves or instead to support an indefensible view of the law. (Let's not even mention Bush v. Gore.) In this light, law professors who did not vote for President Bush might understand themselves to have a special obligation to try to put their own political views entirely to one side -- and to accuse the President of violating the law, or acting without a good-faith legal argument, only when they are certain that they would say exactly the same thing if their favorite Democrat were president.

2. Before Hamdan, it made sense to analyze the NSA question in the following way.

(a) Suppose that FISA did not exist. If not, the AUMF probably carries with it the authority to monitor conversations involving Al Qaeda, on the theory that such surveillance is a legitimate incident of the use of force. (Hamdi supports this argument, because the plurality found the AUMF to authorize detention, even though it is hardly explicit on that topic.) This argument might not be entirely convincing by itself, but it is strengthened by the fact that several lower courts have said that the President has the inherent power to engage in foreign surveillance. Putting these decisions together with the AUMF, the issue is pretty straightforward if FISA is put to one side. (There's also a Fourth Amendment issue but the President is probably on solid ground here.)

(b) FISA does make the issue much harder for the President. There's a plausible argument that FISA (i) overcomes the AUMF, because it's more specific and (ii) is constitutional, because it doesn't intrude on any authority that the President has under Article II. The contrary argument, which also seems to me plausible, is (i) that the AUMF is in a way more specific than FISA (because it deals with Al Qaeda), (ii) that the AUMF is the later enactment and hence trumps FISA in the event of conflict, and (iii) that the two statutes should be construed together in a way that fits, if fairly possible, with what might be part of the President's power as Commander-in-Chief. (Recall that lower courts have said that foreign surveillance is included within the power of the Chief Executive.) On this view, FISA does not ban the President from engaging in surveillance if he is monitoring conservations that involve Al Qaeda.

The specific intentions of the legislators who voted for the AUMF don't much matter (see Hamdi, refusing to ask about those specific intentions; see also Bradley and Goldsmith in the Harvard Law Review, carefully parsing the meaning of the AUMF without asking about specific intentions). But a powerful objection to this argument in favor of the legality of the NSA surveillance is made by Geoffrey Stone, who points out that FISA has a particular provision governing war. Maybe that provision means that the AUMF has to be fit with FISA -- and that so long as FISA, construed as applicable to foreign surveillance involving Al Qaeda, is constitutional (as I believe it probably is), then the program is unlawful after all. That's a reasonable argument, and in the end it might well be right. But the President has some possible responses here too.

What seems to me clear, on the basis of all this, is that even if the President's argument is unconvincing, it can be offered in good faith. It's far better than some of the ludicrous passages in the 2002 memorandum by OLC on coercive interrogation, and than other over-the-top OLC arguments, in the same general period, about the President's broad power to protect national security. It's probably better than President Truman's argument in the Steel Seizure Case. It's hardly a clear winner, but it's also not an entirely clear loser in the Supreme Court (would anyone be shocked, or faint, if it attracted two, three, or more votes?).

3. After Hamdan, the defense of the NSA foreign surveillance program is much more difficult. Justice Thomas took a route very similar to that sketched by the most plausible arguments for the NSA program -- and his view was squarely rejected by a majority. The Court refused to construe the AUMF as overriding the Uniform Code of Military Justice -- and it would be easy to say that the AUMF has the same relationship to FISA as to the UCMJ (that is, it leaves it 100% intact). The Court gave little attention to the claim that the President has full authority to create military tribunals in the face of congressional restrictions on that power -- and it would be easy to say the same thing for foreign surveillance. (The President does have historical support for his surveillance claim, but he also had such support for creating military tribunals. Maybe the historical support is stronger for surveillance -- but that is not clear.)

Perhaps most important, the Hamdan Court seemed to demand clear congressional support for the presidential action at issue, and the President does not have clear congressional support for foreign surveillance. (In case it's of any interest, I defend a general requirement of clear congressional authorization, at least when constitutionally sensitive rights are at issue, in a paper in the 2004 Supreme Court Review.)

The upshot is that after Hamdan, the NSA surveillance program, while still not entirely indefensible, seems to be on very shaky ground, and it would not be easy to argue on its behalf in light of the analysis in Hamdan. On the other hand, the Court was divided 5-3 (and on the lower court, Chief Justice Roberts voted with the 3). It remains to be seen whether and to what extent the analysis in Hamdan will stand the test of time -- especially if the composition of the Court changes.
Posted 4:22 PM by Guest Blogger [link]