Open Letter in Response to Cass Sunstein on the NSA and FISA

Marty Lederman

Dear Cass:

Thank you so much for that gracious and thoughtful response to my provocation. I greatly appreciate it, and that fact that you've agreed to continue this dialogue here on the blog.

Obviously, I'm pleased that our disagreements are diminishing on the question of the legality of the NSA program. I'll have more to say shortly about Hamdan and the NSA matter (see also Jack's post, which strikes me as entirely correct); but in the meantime, here are some quick, off-the-cuff reactions to the points on which we appear to continue to have some possible differences:

1. I'm surprised that you are so dismissive of Congress's actual intent. Of course it isn't conclusive on questions of statutory construction. But just as surely, an interpretation that virtually no legislator intended, that comes as a shock even to the strongest congressional supporters of the NSA program, and that could not possibly have secured anywhere close to a majority had it actually been on the table in Congress, ought at least to be strongly disfavored, no? Purposivism, even in its mildest form, ain't dead yet, is it? (Witness Hamdan.)

2. You begin your analysis with an "if FISA did not exist" counterfactual. I agree that if FISA did not exist, the AUMF would likely authorize at least certain applications of the NSA program. We critics have long conceded that point. But, as you acknowledge, the counterfactual begs the only question that matters, namely, whether the President must comply with a pre-existing statute (FISA) directly on point. It's as if one started the discussion of Hamdan with the hypothetical question of whether the commissions would be lawful if Congress had never enacted the UCMJ and if the Senate had never ratified the Geneva Conventions. In fact, Justice Stevens (appropriately) begins his analysis (page 28) by stating that the Court "need not answer" that question, because there is a statutory framework in place that renders that question immaterial.

Similarly, if there were not a slew of statutes and treaties regulating interrogation techniques, perhaps the AUMF could be read to authorize the President to engage in techniques approaching torture. But what would that prove, in light of the fact that such statutes and treaties do exist?

There is a very elaborate statutory regime in place both for interrogations and for electronic surveillance -- and the statutory question is whether a single, general, nonspecific sentence in an AUMF displaces that entire corpus of preexisting law. (I do not, of course, mean to suggest that you ignore this point -- obviously, you don't. I'm simply not sure why you think that before Hamdan it "made sense" to begin the statutory analysis by imagining that FISA did not exist. It's like the old "Try not to picture an elephant sitting in the middle of the room with pink pajamas" challenge. Hamlet without the prince. Etc.)

3. Part of the NSA program probably wouldn't be ok, even in the absence of FISA, because of the Fourth Amendment. Here's what I've written elsewhere (with David Cole) on this point:

It appears that the NSA program collects surveillance that would not be approved under FISA if the administration were to seek authorization by a FISA Court under the statute. According to the Administration, under the program the NSA must only find "reasonable grounds to believe" that at least one party to the communication is a member or agent of al Qaeda or an "affiliated terrorist organization"—a standard that could permit wiretaps of the phones of U.S. persons in the United States who are not themselves al Qaeda agents. Thus, it appears that NSA does not require in every case that there be probable cause to believe that the target of the electronic surveillance is a foreign power or an agent of a foreign power. Under FISA as currently written, the FISA Court could not approve such surveillance, and the leading judicial precedent indicates that without judicial approval such surveillance of U.S. persons would likely violate the Fourth Amendment. See Zweibon v. Mitchell, 516 F.2d 594, 614 (D.C. Cir. 1975) (en banc) (plurality opinion) ("[W]e hold today... that a warrant must be obtained before a wiretap is installed on a domestic organization that is neither the agent of nor acting in collaboration with a foreign power, even if the surveillance is installed under presidential directive in the name of foreign intelligence gathering for protection of the national security."); id. at 689 (Wilkey, J., concurring in pertinent part) (agreeing with plurality that if an exemption from the Fourth Amendment's warrant requirement exists, "it exists only for a narrow category of wiretaps on foreign agents or collaborators with a foreign power").

4. The 15-day war provision in FISA, 50 U.S.C. 1811, is dispositive, even if one doesn't buy all the other pro-FISA arguments. That's why it's a centerpiece of the letters I've written to Congress with Geoff Stone and others. I genuinely don't see what the plausible response to it might be, other than returning to the claim that the AUMF implicitly supersedes even that provision.

You don't mention the "exclusive means" provision of FISA, 18 U.S.C. 2511(2)(f); but that provision, too, would have to have been impliedly repealed by the AUMF -- an argument that Hamdan pretty much eliminates (see the top of page 30 of the slip opinion).

5. Most importantly, I was very much aware of your Harvard and Supreme Court Review articles; and that's why I found your AUMF/NSA argument so surprising.

I don't agree with your strong reading of Chevron as applied to war. It's certainly undermined by Hamdan, in which the Court gave virtually no deference to the President's interpretations of ambiguous provisions -- even of treaty provisions!

Be that as it may, however, I was understandably sympathetic to the notion you expressed in those articles that where individual liberties are seriously implicated, the President can't act without clear congressional warrant. Alas, I'm afraid I can't quite agree with you that Hamdan speaks to this question -- particularly since the case only involved the rights of aliens detained at GTMO, whose constitutional protections are still uncertain (but cf. footnote 15 of Rasul). Because the case is about violations of statutory restrictions (Jackson's Category III), and because no claim of constitutional protections was in the mix, the Court had no occasion to suggest, or even speak to, any such clear-authorization requirement.

But if this is your view -- and in the New Republic piece you seem to embrace it strongly, even as applied to the rights of a detained alien in Hamdan -- then why doesn't that simply settle the FISA/NSA question? We might disagree on some matters, but I would have thought we would surely concur on at least this much:

(1) The the NSA program seriously implicates individual rights -- indeed, constitutional rights of citizens.

and

(2) However strongly one might read the AUMF, Congress has not clearly authorized the President to ignore the "exclusive means" for electronic surveillance that FISA prescribes.

On your own view of the "clear authority" doctrine -- and let's hope you're right that the Court will one day embrace it! -- why was the NSA program legal, even before Hamdan?

6. I agree that, as weak as DOJ's AUMF defense of the NSA program may be, "it's far better than some of the ludicrous passages in the 2002 memorandum by OLC on coercive interrogation." But talk about damning with faint praise! I don't even doubt that, as you suggest, DOJ crafted the AUMF argument in good faith. But you had previously stated that DOJ "probably has the better argument," and that if "FISA is interpreted as preventing the president from doing what he did here, then the president does have an argument that the FISA so interpreted is unconstitutional." As I understand it, these aren't your current views, especially in the wake of Hamdan. If so, I'm heartened to hear of it. And if not . . . well, then let's continue the debate!

7. One other thing, which is a bit ancillary to the specific NSA question: In your previous remarks, you stated that "the Department of Justice is the president's lawyer, and they have a duty, the lawyers there, to protect the president's Constitutional prerogatives." I concede that, at least on issues realting to national security and foreign affairs, it is not hard to find historical instances, in Democratic and Republican Administrations alike, where it appears this is how OLC understood its role.

But I think it's mistaken. OLC's task is to assist the President in fulfilling his constitutional obligation to faithfully execute the law. Of course, one might adopt the view, often attributed to Madison, that the law itself -- the Constitution -- contemplates that each of the political branches will (should?) interpret the law so as to best protect its own prerogatives. I don't entirely agree, for reasons I've begun to express elsewhere; but I concede that it is a rich, complex and unresolved question. For now, I simply don't want everyone to simply assume the truth of the oft-heard canard that OLC's proper role in construing the law is to press as hard as possible in the direction of presidential prerogatives.

Thanks again for engaging me on these issues. I look forward to further discussion.

Best,

Marty
Posted 6:19 AM by Marty Lederman [link]