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
Abbe Gluck abbe.gluck 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
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Well, Now It's Clear: Hamdan's Just a Bump in the Road
As I noted the other day, virtually all observers agreed that the Court's decision in Hamdan appeared to tear the legs out from under the dual justifications that the Department of Justice has offered in support of the legality of the recently revealed NSA domestic electronic surveillance program. Since then, Cass Sunstein, once perhaps the most surprising defender of the Department's views, came awfully close on this blog to shutting the door on the legal defense, and even Andy McCarthy, perhaps the program's most vociferous supporter, lamented today that "Hamdan sounds the death knell for the NSA’s Terrorist Surveillance Program."
Not so fast, Andy: You're underestimating the creativity of the Office of Legal Counsel! David Barron has the goods over at LawCulture -- he links to this letter from DOJ standing firm on all of its legal defenses, and more. Astoundingly, DOJ asserts that the Court’s decision in Hamdan "does not affect our analysis of the Terrorist Surveillance Program"!
Whatever else one may think of the DOJ’s arguments in support of the NSA program, the notion that Hamdan "does not affect" the relevant legal analysis is so implausible as to suggest either bad faith or an audacious design by the Administration to provoke a confrontation with the Court (a confrontation that the Administration must suspect it would almost certainly lose if the case were considered by the current array of SCOTUS Justices).
I'll have more to say on this in the days to come. In the meantime, here's David:
-- That the AUMF overrides FISA (even though, per Hamdan, it does not override the UCMJ);
-- That, in any event, Congress has no Article I power to enact FISA, at least with respect to the President's wartime surveillance practices (even though Congress did have the power to prescribe limits on military commissions);
-- That even if Congress did have an Article I power to enact FISA, the President's Article II power as Commander-in-Chief and as the "Executive" entitles him to disregard FISA in wartime (a position DOJ contends is still valid because Hamdan does not even require the Administration to comply with the UCMJ if it conflicts with his Commander-in-Chief powers or his constitutional duty to protect the nation).
There has been a lot of talk about Hamdan being the modern-day Youngstown. Youngstown, however, had the advantage of a President with a modicum of modesty.
As for Hamdan being a "modern day Youngstown," I have thought that to be hyperbole. Rather, it seems to me that everything Justices Stevens and Kennedy wrote about the constitutional issue had been well established in Youngtown 54 years ago.
It should surprise no one that the court majority applied Justice Jackson's Youngstown framework and found that the President's inherent war powers are regulable by Congress -- or that the minority did not dispute this principle. Jackson's Youngstown framework, as adopted and applied in later cases including Dames & Moore and Hamdi, is well settled law and is embraced by every current justice. Even Thomas' dissent, focusing purely on the threshhold statutory issues, adopted Jackson's analytical framework.
A radical theory has been advanced during the Bush administration, pushed by Cheney, Addington and Yoo, that brazenly ignores the Youngstwon precedent. But that theory never has gained traction in the courts. It is largely because Bush's partisan apologists, such as Andrew McCarthy, believe their own propaganda and have been successful promoting it politically that this is even perceived to be an issue.
There has been little doubt in my mind -- before and after Hamdan -- that if Bush's constitutional theory were presented squarely to this Supreme Court, even the "conservative" bloc would join in rejecting it 8-1 or 9-0.
That is why the adminstration's entire legal strategy on the NSA matter is to avoid judicial review of this constitutional question at all costs.
Is it true that the recent analysis of U.S. v. Grubbs, 547 us (Mar. 21, 2006), 04-1414 controls the legality of The Program?
Delineating the standard for probable cause needed to issue an anticipatory warrant to search the house of a suspect who would receive child porn in the mail, J. Scalia writes:
"Anticipatory warrants are, therefore, no different in principle from ordinary warrants. They require the magistrate to determine (1) that it is now probable that (2) contraband, evidence of a crime, or a fugitive will be on the described premises (3) when the warrant is executed. It should be noted, however, that where the anticipatory warrant places a condition (other than the mere passage of time) upon its execution, the first of these determinations goes not merely to what will probably be found if the condition is met. (If that were the extent of the probability determination, an anticipatory warrant could be issued for every house in the country, authorizing search and seizure if contraband should be delivered? though for any single location there is no likelihood that contraband will be delivered.)
"Rather, the probability determination for a conditioned anticipatory warrant looks also to the likelihood that the condition will occur, and thus that a proper object of seizure will be on the described premises. It must be true not only that if the triggering condition occurs ?there is a fair probability that contraband or evidence of a crime will be found in a particular place, . . . but also that there is probable cause to believe the triggering condition will occur."
The occurrence of the "triggering condition" — successful delivery of child porn by the USPS — would plainly establish probable cause for the search, and the affidavit established probable cause to believe the triggering condition would be satisfied. Grubbs at 3–7.
It seems a warrant-issuing court (even a secret one, presumably) must believe that a party on the phone is actually a terrorist or that some other crime will occur (e.g. RICO, conspiracy), not just that there are terrorists who use phones. After all, there are some pedophiles somewhere who receive mail but you still need a warrant to search.
Or would Bush answer that he doesn't need a warrant at all for the reasons in USDOJ's memo to Sen. Schumer?