Mother of Mercy, Is This the End of FISA?!*

Marty Lederman

*Hat tip: Edward G. Robinson.

The Washington Post reports today about legislation drafted by Senator Specter to respond to the NSA/FISA imbroglio. The Post makes it sound as if Senator Specter would be clamping down on the Administration:

The federal government would have to obtain permission from a secret court to continue a controversial form of surveillance, which the National Security Agency now conducts without warrants, under a bill being proposed by Senate Judiciary Committee Chairman Arlen Specter (R-Pa.). Specter's proposal would bring the four-year-old NSA program under the authority of the court created by the 1978 Foreign Intelligence Surveillance Act. The federal government would have to obtain permission from a secret court to continue a controversial form of surveillance, which the National Security Agency now conducts without warrants.

Although that might be technically true, the notion that the Specter bill would "bring the four-year-old NSA program under the authority of the [FISA] court" obscures what's so significant about the Specter bill -- namely, that it would bring the program "under the authority of the court" by providing statutory authorization for a program that is currently illegal.

The draft legislation isn't at all what Senator Specter has been talking about in recent weeks -- namely, a bill to facilitate judicial review of the legality of the current NSA docmestic surveillance program. This bill would appear to do absolutely nothing to address whether the current and ongoing program(s) is (are) permisisble under current law -- that is to say, it would not seek to facilitate judicial review of the AUMF and Article II arguments on which the Administration is relying.

As Glenn Greenwald notes, it is "disorientingly bizarre to hear about a proposed law requiring FISA warrants for eavesdropping because we already have a law in place which does exactly that. It's called FISA. That's the law the Administration has been deliberately breaking because they think they don't have to comply with it and that Congress has no power to make them."

But the Specter draft is even more alarming than Glenn suggests. According to Glenn, the Specter draft would "require[] (again) that the NSA program be conducted only within the FISA framework."

As I read the draft bill, however, this is wrong. It's not simply a a reenactment of the "FISA framework" -- instead, it's a wholesale dismantling of that framework, a substantive amendment to FISA that would vastly increase the surveillance authority of the President. It would give the Executive branch everything it has always wanted, and much more: The punishment for having broken the law with impunity would be a wholesale repeal of the law that has governed electronic surveillance for almost 30 years (and not only with respect to Al Qaeda or terrorism). In one fell swoop, the Specter legislation would undo the detailed regulatory scheme that both political branches have so carefully calibrated over more than a quarter-century.

A word of caution: I've barely had time to review the draft closely, and so perhaps I'm missing something significant. These comments are necessarily tentative and preliminary. But on first glance, this seems to be the major impact of the Specter bill:

Under FISA, in order for the federal government to engage in electronic surveillance targeted at someone here in the U.S. -- i.e., at phone calls and e-mails going out of the U.S. -- there must be probable cause that the person targeted is a foreign power or an agent of a foreign power. See 50 U.S.C. 1805(a)(3). The Specter bill would go much, much further. Under that bill, it would not be necessary for the NSA to show that either party to an intercepted phone call or e-mail has anything to do with Al Qaeda or any other terrorist organization. It would not even be necessary for the government to show probable cause -- or reason to believe, or any evidence -- that etiher party to the call or e-mail is a foreign power, an agent of a foreign power, or even associated with a foreign power.

Instead, the bill would permit domestic electronic surveillance targeted at U.S. persons merely upon a showing of "probable cause" that the surveillance program as a whole -- not even the particular targeted surveillance -- will intercept communications of anyone who has "had communication" with a foreign power or agent of a foreign power, as long as the government is seeking to monitor or detect that foreign power (or agent)! (See the new section 704: The standard for the FISA Court's review of the application is whether "there is probable cause to believe that the electronic surveillance program will intercept communications of the foreign power or agent of a foreign power specified in the application, or a person who has had communication with the foreign power or agent of a foreign power specified in the application.")

This is breathtakingly broad because the pre-existing definitions of "foreign power" and "agent of foreign power," which would not be changed, include not only terrorist organizations, but all components of a foreign government, all foreign-based political organizations, and all non-U.S. persons acting in the U.S. as agents of such govenrments and organizations.

Therefore, if I'm reading it correctly, if you've ever had any communication with a foreign government or organization, or its U.S. agents or employees -- that is to say, if there's "probable cause" that you live and breathe here in the U.S. -- this bill would permit the President to wiretap you indefinitely, without any showing that any of your phone calls have anything to do with a foreign entity, let alone Al Qaeda. [UPDATE: Not quite indefinitely. "Continuous" surveillance could only last 90 days, after which the NSA would have to obtain a traditional FISA order, or perhaps merely skip a day and start the surveillance anew, so that it's not "continuous" for more than 90 days.]

In other words, there would no longer be any meaningful substantive statutory restriction on the federal government's electronic domestic surveillance of U.S. persons -- the end of FISA as we know it. The only check would be an odd constitutional check: The FISA court would be required to certify that the program as a whole (again, not any particular surveillance) is "consistent with" the Fourth Amendment. This would, if I'm not mistaken, bring us right back to the pre-FISA days, when the Fourth Amendment was the only legal constraint on domestic electronic surveillance by the federal government. To be sure, under the Specter bill the Fourth Amemdent bona fides would have to be approved in advance, by the FISA court. But the proceedings would be secret, and ex parte. Moreover, the FISA Court could not possibly review the surveillance for, e.g., the "particularity" that the Fourth Amendment requires, because the FISA Court would be tasked not with determining whether any particular interception is constutitional, but somehow with making "wholesale" determinations that the program writ large is "consistent with" the Constitution. That seems untenable, at least on first glance.

If I'm reading this draft correctly, it goes far, far beyond what has been proposed by those, such as Richard Posner and Phillip Bobbitt, who think that FISA is outmoded and needs radical updating.

Moreover, the requirements of FISA Court approval in the Specter bill would be limited to the substance of communications -- and would expressly exclude interception of information identifying sender, recipient, date or time of the communication. See section 702(d)(2). Thus, I think it could be read to implicitly authorize all "data mining," without FISA court approval, of the latter category of information, which is currently covered by FISA at least some of the time. And it would appear not to include any of the prophylactic measures that Jack identified as necessary to ensure that such a data-mining program is constitutionally acceptable.

As Glenn describes it, reading of the Specter bill "is somewhat like hearing that a life-long, chronic bank-robber got arrested for robbing a bank over the weekend and, in response, a Senator introduces legislation to make it a crime to rob banks." I don't think that's quite right -- in fact, it's like hearing that a lifelong, chronic bankrobber was arrested for robbing a bank over the weekend and, in response, a Senator introduces legislation to make it lawful to rob banks. (Well, with all respect to Glenn, the bank-robbing analogy isn't the best, because the conduct in question here is not as inherently wrongful as grand theft. But the Specter initiative does respond to wanton illegality with a bill to make the conduct lawful.)

It may be that I'm misreading the bill. I hope so. I'd very much welcome comments showing why I'm wrong. (And I should note that the draft is said to be a work in progress -- it's possible that it does not currently reflect what Senator Specter wishes to accomplish.) [UPDATE: Glenn G. points out that the bill would give the FISA Court the authority not only to evaluate a "program" under the Fourth Amendment, but also to "consider the benefits" of the program "as reflected by the foreign intelligence information obtained." See proposed section 704(b)(3). That is a very odd provision. Insofar as it would give the FISA Court the power to reject surveillance because of the court's simple disagreement with the Administration that the "benefits" were worth the intrusion on privacy -- in Glenn's words, "vest[ing] the FISA court with rather broad discretion to approve or reject the eavesdropping programs submitted by the Administration" -- it would be of dubious constitutionality: It's not the role of an Article III court to be second-guessing the policy choices of the Executive branch. If, on the other hand, the FISA Court is to consider the "benefits" only as a component of its evaluation of the constitutional question -- e.g., considering an NSA "special needs" argument under the Fourth Amendment by looking, in part, at how necessary the surveillance is -- it's probably not unconstitutional; but in that case, the "consider the benefits" provision wouldn't provide the FISA Court with any discretionary authority to nix a surveillance program merely because it doesn't like the smell of it.]

So what's the alternative? How about this: A statute that facilitates prompt judicial review of the legality under current law of the NSA programs. Let's get a prompt Supreme Court evaluation of the current lay of the law and the land -- and only then should we begin the careful evaluation of how FISA might be amended to take account of the needs of the current conflict with Al Qaeda.
Posted 11:06 AM by Marty Lederman [link] (25) comments

The Definitive Fox News Screen Cap

Marty Lederman

(Hat tip: Opinio Juris.)
Posted 6:55 AM by Marty Lederman [link] (13) comments

But Jack, Abuse is Not Mistreatment

Marty Lederman

Jack, Jack -- you still don't get it, do you? Yes, of course this sort of abuse was promoted by Geoffrey Miller, and was sanctioned by high-level officials in the Pentagon (who told Miller, but not their own lawyers, about what was legally permissible under their nouveau theory of the Constitution).

But so what?

Apparently you have not yet reconciled yourself to the plain fact that abusive and degrading treatment, such as that described in these e-mails, is not only "humane," but is actually authorized by the Army Field Manual -- which in turn incorporates the standards prescribed for prisoners of war under the Geneva Conventions. It therefore follows that wrapping Muslim detainees in an Israeli flag and forcing them to watch gay pornography under strobe lights is humane treatment, consistent with the Geneva Conventions. Don't just take my word for it -- that's the conclusion of the Pentagon's own Schmidt Report (at least, the Executive Summary, which is all we've been permitted to see). This explains why the Pentagon spokesperson can shamelessly respond that these recent revelations are "old information" -- been there, done that.

Hey, these detainees were lucky -- at least they were not forced to wear a bra and a thong, stripped naked, and tied to a leash and forced to perform a series of dog tricks (all of which is -- repeat after me -- humane and authorized by longstanding Army rules).

So please, Jack, get with the program -- no more of this talk of "mistreatment."
Posted 5:59 PM by Marty Lederman [link] (16) comments

Don't be distracted by the gay porn

JB

The latest revelations about prisoner mistreatment at Guantanamo Bay are both weird and sad. The weird part is that military interrogators posing as FBI agents wrapped detainees in an Israeli flag and forced them to watch homosexual pornography under strobe lights during interrogation sessions that lasted as long as 18 hours.

But that weirdness shouldn't detract our attention from the more important revelations about the far harsher interrogation methods used at Gitmo. And the sad (and far more important) point that has come to light is that the prisoner mistreatment wasn't due to isolated misbehavior by low ranking officers, as the Administration has repeatedly asserted, but went up much higher:

The documents suggest that harsh interrogation methods were approved of and encouraged by high-ranking Pentagon officials and commanders. In an internal FBI memo dated May 2004, an unidentified bureau official complained that Defense Secretary Donald H. Rumsfeld's public pronouncements about interrogation policies were misleading.

"I know these techniques were approved at high levels within DoD and used" on specific prisoners, said the official, referring to the Department of Defense. The names of the author and recipients of the e-mail were blanked out on the version obtained and released by the ACLU, and no information was provided to indicate how the author knew the techniques were authorized at top levels.

In an e-mail from May 2003, Guantanamo's prison commander, Army Maj. Gen. Geoffrey D. Miller, was described as favoring aggressive methods "despite FBI assertions that such methods could easily result in the elicitation of unreliable and legally inadmissible information."

The real story is not the U.S. military's views about gay porn but the Defense Department's attempt to avoid responsibility for policies of prisoner abuse by trying to blame mistreatment on individual soldiers. The Administration is right about one thing: prisoner abuse at Gitmo and elsewhere was ultimately due to a few bad apples, but those bad apples are in the Pentagon and in the Bush Administration itself.
Posted 3:19 PM by JB [link] (13) comments

South Dakota's New Abortion Ban

JB

South Dakota's new abortion legislation has not yet been signed by the Governor. If it becomes law, it will not lead to a challenge to Roe v. Wade or Casey at the Supreme Court. Because the law bans almost all abortions, it will be immediately challenged in a declaratory judgment action, and a preliminary injunction will issue. That injunction will be upheld by the 8th Circuit, and the Supreme Court will deny certiorari. And that will be the end of the matter.

Why am I so certain that something like this will happen?

First, I am assuming that Justice Stevens will not retire in the next two years. If he does, then there will be only four votes for retaining Roe and Casey, and all bets are off. Indeed, South Dakota legislators may have been banking on precisely this possibility: They may be hoping that the case won't make it from the district court to the Eighth Circuit to the Supreme Court until after Stevens leaves the Court and after his successor is appointed by a Republican President and confirmed by a Republican controlled Congress. But we have no assurances of this happening yet, so we start with the fact that five Justices (including Kennedy) will vote to uphold the basic right to abortion. If that is so, then the most likely result is that the law will be struck down in the lower courts and the Supreme Court will deny cert.

Second, assuming that Stevens remains on the Court, if the goal of anti-abortion advocates is to overturn Roe, the most likely way this will happen is by chipping away at Roe and Casey slowly over time. The 8th Circuit's decision on the Federal Partial Birth Abortion statute, on which the Supreme Court has accepted certiorari, is a far better vehicle for undermining the doctrinal foundations of Roe and Casey through a series of doctrinal distinctions. Only after the Court has heard a number of these challenges, undermining Roe's and Casey's doctrinal basis, will it be likely to accept a case that challenges Roe and Casey head on. So a statute like South Dakota's might be the basis of a full on challenge to Roe in about five years or later, assuming that the Court upholds the Federal Partial Birth Abortion law (which they may do to some extent-- more about that in a later post) and takes a series of abortion cases in the next few Terms that serve to undermine Roe.

Again, if Stevens leaves, the Court may accelerate this process, as happened when Powell retired in 1987. This led, first, to Webster, and ultimately, to Casey, which did not overturn Roe but cut back on it significantly.

Nevertheless, the South Dakota bill, if it passes, is important for its symbolic effect. It signals that (some) pro-life forces are trying, yet again, for another all out assault on Roe. To win, they will have to gain a sustained majority of public support for overturning Roe, something they do not yet have, and they will have to ensure that the Republicans stay in power so that Republican Presidents and Republican-controlled Congresses stock the federal courts with pro-life judges. (The reason why sustained public support is important is that if the public is not behind overruling Roe, the Republicans will be far less likely to appoint people who will vote to overturn Roe and Casey). On the other hand, if the next Supreme Court appointment is made by a Democrat, the pro-life cause will be set back for a time, because the swing Justice will remain Justice Kennedy. Then the most that pro-life forces can hope for is a very slow chipping away at Roe.

Posted 2:14 PM by JB [link] (18) comments

How the Pentagon Came to Adopt Criminal Abuse as Official Policy

Marty Lederman

In this week's New Yorker, Jane Mayer has written a must-read, definitive article laying out in great detail how certain Pentagon lawyers, led by Navy General Counsel Alberto Mora, stood up to Donald Rumsfeld and Jim Haynes in January 2003 and pleaded that the criminal conduct approved by Rumsfeld be ceased. Mora's efforts, recounted in a remarkable memorandum that he wrote to the Church Commission in 2004, brought an end to the unlawful abuse at Guantanamo on January 15, 2003. But then the efforts of Mora and others were swiftly and unceremoniously undermined by the promulgation of the April Working Group Report, which concluded that many unlawful techniques were in fact legal -- that criminal conduct, including violations of the Uniform Code of Military Justice, could be excused by authority of the Commander in Chief and through doctrines of "necessity" and "self-defense."

The most important revelation of Mora's memo, and of Mayer's piece, is this startling fact:

The Working Group itself, including Mora -- in whose name the Report was drafted -- were never informed that it was finalized and issued on April 4, 2003. Indeed, they were deceived by Pentagon General Counsel Haynes into believing that the Report had been scrapped after their persistent objections. But in fact, the final version of the Report -- based principally on the extreme legal conclusions of the Office of Legal Counsel, which had aroused persistent outrage and objection from the career lawyers in the Pentagon -- was "signed out" on April 4th and "briefed" to Geoffrey Miller before he was assigned to Iraq.

Fancy that: For weeks, Pentagon lawyers complained to Rumsfeld and Haynes that the draft Report's conclusions were legally indefensible, and that the Report would sanction conduct that is plainly criminal. Rumsfeld and Haynes simply stopped speaking to those lawyers about the initiative, and conspicuously announced to the public (in a Haynes letter to Senator Leahy) that the Pentagon's policy is to refrain from torture and cruel, inhuman and degrading treatment. This assauged the Pentagon lawyers, who had been seeking just such a policy pronouncement all along. In the meantime, the Working Group Report is finalized and issued -- unbeknownest to the Working Group! -- and Geoffrey Miller is briefed on it. Miller -- having now been informed that the criminal law is a mere trifle that cannot stand in the way of the Commander in Chief's wishes -- is then sent to Iraq to "GTMOize" the interrogation operations there and to obtain more information from Iraqi detainees. (A further note below on how Miller might have used the Working Group Report.) And what do you know?: The vast majority of the criminal abuse in Iraq occurs between Miller's arrival and December 2003. (In December, new OLC head Jack Goldsmith informed the Pentagon that it should no longer rely on John Yoo's legal analysis.)

Coincidence?

Rumsfeld and Haynes chose to brief Miller on the Working Group Report -- but to keep its existence secret from the lawyers who comprised the Working Group itself, after they complained that it was sanctioning criminal conduct. Moreover, Rumsfeld and Haynes had expressly approved criminal coduct at GTMO back in December 2002. And Mayer's piece, together with the JAG memos from early 2003, demonstrates beyond any doubt that the top officials in the Pentagon welcomed OLC's legal advice that it was permisisble to employ interrogation techniques prohibited by criminal law and longstanding DoD policy -- and they were insistent that such legal advice form the basis of the Working Group Report, notwithstanding the serious objections of career DoD lawyers. Finally, recall the Schlesinger Report's finding that somehow, by hook or by crook, the Rumsfeld-approved directives from GTMO, which the Pentagon had ostensibly reneged in January 2003 when Mora threatened to draw attention to the matter, later "circulated" freely to Afghanistan and then to Iraq.

Just as with the 2002 OLC Torture memo, anyone in the Administration who might have had knowledge of the legal difficulties -- and who might have complained that the interrogation policy was on shaky legal ground -- was cut out of the loop. The only ones who were informed of the governing legal conclusions were those assigned to oversee the interrogations. These dots are not too difficult to connect.

Which leads to another part of this scandal that should not be overlooked: The Church Commission chose not to connect them. During his investigation of these events, Admiral Church was given the Mora memo, the JAG memos, the OLC documents, and much more. He also presumably interviewed officers such as Mora and Miller. Therefore he has known for quite a while that Miller was briefed on the Working Group Report -- but that Mora, et al., were not even told that it was finalized. He also likely knows much more than he has let on about who briefed Miller, and how the legal judgments in the Working Group report were transformed into operational policy in Iraq. The fact that Church's Report, and, more importantly, the underlying documents supporting that report, including the various interrogation policies issued in Afghanistan and Iraq in 2003-2004, have not yet been made public -- and that the Congress has not made any effort to disclose those documents -- is, as far as I can tell, indefensible.

What I've written above barely scratches the surface. For anyone interested in the torture and abuse scandal, Mayer's piece and Mora's memo are indispensible reading. So go and read them.

For those interested in further details of the torture scandal as it relates to events in the Department of Defense, GTMO, Iraq and Afghanistan, see Posts Nos. 6, 11, 18-22, 25-28, 34-35, and 38, under my name over at our "Anti-Torture" Page.

NOTE on the "migration" of GTMO techniques to Iraq:

The Executive Summary of the Church Report -- which is all that has been made public -- reports that on September 14, 2003, Lieutenant General Ricardo Sanchez published the first CJTF-7 interrogation policy for Iraq, a policy "heavily influenced by the April 2003 JTF-GTMO interrogation policy, which MG Miller had provided during his visit." We don't know precisely which April 2003 GTMO "policy" influenced Sanchez's Iraq policy. In addition to the April 4th Working Group Report, Secretary Rumsfeld promulgated a more moderate memoradnum on April 16, 2003. Rumsfeld's memo approved only 24 of the 35 Working Group techniques, and reiterated that they must be applied "humanely." As we now know, the promise of "humane" treatment was worthless, since DoD considers virtually any technique, no matter how degrading and grotesque, to be "humane." Still, if Rumsfeld's memo were read narrowly, and if interrogations were limited to only what that memo approves, most of the abuse in Iraq would never have occurred. I suppose it is theoretically possible that Miller was instructed to adhere strictly to Rumsfeld's memo, and that Miller advised Sanchez to abide strictly by the letter of that memo. But I doubt it. Why, in that case, was Miller briefed on the much more aggressive legal conclusions of the Working Group Report? And why, when Sanchez promulgated his Iraq interrogation policy, did CENTCOM's Staff Judge Advocate almost immediately conclude that it was "overly aggressive"?
Posted 6:32 AM by Marty Lederman [link] (15) comments

After Neoconservatism

JB

Francis Fukayama's autopsy of neoconservatism is well worth reading, and makes many sensible points about the direction that American foreign policy should now take. What struck me though, in reading it, was how many of his claims about what was wrong with the Bush Administration's policies were available in 2001, and, indeed, were stated over and over again by critics of the Administration in the run up to the Iraq war. People in power simply didn't want to listen, or if they did listen, they discounted the advice because they were completely convinced of the correctness and righteousness of their own world view. They ridiculed their critics as naive, cowards, sore losers, weak-willed conciliators, unconcerned with America's national security, and sometimes even as traitors. And much of the country, which likes strong leadership, simply went along, trusting that its leaders had the knowledge, the wisdom, and the expertise to back up their bluster.

Fukayama makes the excellent point that neoconservatives were perhaps seduced by the ease with which Communism fell in the late 1980's and early 1990's. The fall of Communism was, after all the great confirmation of neoconservatives' fervent anti-communism and their belief that promoting American ideals of democracy and freedom could make the world better. But that very example also shows why the Bush Doctrine was so deeply unrealistic. The fall of communism began with Truman's policies of containment in the late 1940's, which were continued with various fits and starts along the way by every U.S. President thereafter for 40 more years. Only after a long and sustained strategy of opposition and containment, in which military force played only one role (and often, as in Korea and Vietnam, not an entirely successful one), did Soviet-style Communism finally give up the ghost. Neoconservatives were right to believe that it was worth fighting the Cold War, but they had forgotten why it was called a "cold" war-- that it did not primarily rely on the use of direct military force to topple your enemy.

That does not mean that the best way forward is the model of the Cold War in all of its aspects. The current struggle is different in many respects. What the failure of neoconservatism does teach us is the inevitable limits of an ideological approach to foreign policy, and indeed, to human betterment generally. Neoconservatives first emerged as disillusioned leftists who criticized the naivete of American liberalism, arguing that it was not enough merely to have good intentions to make the world better place; that society was far more complex than human foresight could comprehend, and that direct and massive interventions into social arrangements would inevitably produce unintended consequences. How ironic that this lesson of the first generation of neoconservatives was lost on the next generation, who boldly, blindly, and smugly led the United States into a foreign policy disaster.

Posted 8:57 AM by JB [link] (7) comments

New Media and Old

JB

My interview with National Journal's Blogometer appears here. The last question was an invitation to write an essay on the following: "How do you see the new media and old media affecting and influencing each other in the next five years?" This is what I said:

Although bloggers like to think of themselves as bravely checking and critiquing old media, and parts of old media still regard bloggers as uncouth, unaccountable, and unreliable, in fact new media and old media (viewed both as a set of distinctive technologies and as a set of persons and social practices) have effectively merged much more than either would care to admit.

Reporters now regularly use bloggers, particularly expert bloggers, as sources for their stories. Newspapers, television networks and newsmagazines increasingly incorporate interactive elements in their online versions, sponsor their own blogs, and provide linkbacks to the blogs that discuss their stories. These trends, which have begun in earnest in the past year or so, will only accelerate as time goes on, as traditional media organizations work out the kinks of how to integrate interactivity into their business models. (Eventually, of course, broadcast television and internet video will merge as content delivery methods, and online delivery of text will increasingly dominate paper delivery.)

The most heavily linked to opinion and expert blogs, and aggregator blogs (i.e., blogs which primarily collect links to what other blogs are doing) make it increasingly easy for mainstream media to know what is going on in the blogosphere and to use this as information sources, as ideas or raw materials for new stories, and as a rough estimate of public opinion.

Interactivity will transform old media, which will not give up the ghost, but will instead use its considerable political and financial clout to draw important elements of the blogosphere ever closer to it, coopting and transforming them, even though many parts of the blogosphere will always remain beyond old media's grasp.

What mainstream media has to offer the blogosphere are money, advertising and links (i.e., traffic). Although the structure of the Internet guarantees that bloggers can generate some degree of traffic on their own, mainstream media platforms, because of their prominence, will help secure a disproportionate share of traffic and attention, and therefore will become (even more than today) important nodal points in the blogosphere, much to the chagrin of some bloggers and the delight of others.

Of course, the more that old media tries to coopt the blogosphere, the more it will itself be transformed. The result, I am afraid, will not be an unalloyed victory for decentralization or democracy, nor will it represent the end of powerful shapers of public opinion who occasionally abuse their power. Rather, it will instead produce a different distribution of power and a different set of dangers and responsibilities.

Just as political parties learned how to manipulate mainstream media in order to structure public debate and deliver their preferred messages, they are learning how to coopt, manipulate (and in some cases become part of) the blogosphere in order to shape public opinion. Increasingly, opinion makers (both in political parties and in the business world) have a multi-pronged strategy that attempts to influence both old and new media. Although the blogosphere regards itself as far too large and too diffuse to be manipulated by powerful political and financial interests, this is surely not so, and the degree of this influence will become even more obvious as time goes on. Nevertheless, the decentralization of the blogosphere and its characteristic architecture (of log normal or powerlaw distributions) allows a degree of countervailing power, which, I continue to hope, will not be extinguished. The revolution is real.

Posted 11:16 AM by JB [link] (11) comments

The Horizontal Sweeping Clause

JB

A question recently asked on Conlawprof-- What gives the federal government power to create the Department of Education?-- offers me the opportunity to discuss a little known aspect of the U.S. Constitution.

To explain why Congress can create the Department of Education, you must first distinguish two questions: (1) What gives Congress the power to create any departments in the executive branch at all; and (2) What gives Congress the power to create the sort of laws that will be implemented by that department. The answer to (1) is the sweeping clause in its horizontal aspect, which gives Congress the power "[t]o make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, *or in any department or officer thereof.*" (emphasis added). We usually think about this clause in its vertical aspect, that is, how it divides power between the states and the federal government, but it is equally important in its horizontal aspect, in giving Congress power to create new executive departments. The "horizontal sweeping clause" is the source of Congress's power to create various administrative elements of the federal government above and beyond its powers to provide for an Army and Navy, and to create lower federal courts.

We know that the Constitution contemplates creation of executive departments from the opinions clause of Article II, section 2, which gives the President the power to "require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices." Because the number of executive departments is not specified in the Constitution itself, Congress is given the power to create new ones (or abolish old ones).

The test for whether an exercise of the horizontal sweeping clause is constitutional is the test of McCulloch v. Maryland. This brings us to question (2). If the Constitution gives the federal government no powers at all in the field of education, then it would not be appropriate under the horizontal sweeping clause to create a department of education. However, because the Constitution gives Congress powers to regulate education under the taxing and spending clause (as well as the commerce clause to some extent) it may create an Executive department which implements laws which it passes dealing with education.

The horizontal sweeping clause is important for another reason: It helps us understand why Alexander Hamilton was right that the words "necessary and proper" do not mean "absolutely necessary" or "required" but rather "convenient," "helpful," or "appropriate," essentially the doctrine created in McCulloch v. Maryland. We ordinarily think of the Necessary and Proper Clause in terms of debates about federal power vis a vis the states, but the same words govern Congress's powers to set up the Executive and Judicial branches and to create new departments. The test for what Congress may do in setting up these departments cannot be whether doing so is necessary in the sense of "absolutely necessary" or "required." Rather, Congress must be given broad discretion in what departments it creates and now many, and how it divides up responsibilities between the various departments.

Since the words "necessary and proper" apply both to the clause's horizontal and vertical aspects, presumptively they have the same relatively broad meaning in both of these aspects. However, when the clause is invoked in its vertical aspect, it must also be read in conjunction with principles of federalism (which are articulated in the Tenth Amendment); when it is invoked in its horizontal aspect, it must be read in conjunction with principles of separation of powers.

Posted 3:52 PM by JB [link] (13) comments

DOJ Memo Defends Cheney Shooting

JB

Frankly, I don't understand all the fuss about Vice President Cheney's shooting of Harry Whittington. This unsigned Department of Justice Memorandum, which was slipped under my door this morning, explains it all:

* * * * *

Under the unitary executive theory of Article II, the President of the United States, as Commander-in-Chief, has inherent authority to shoot anyone he likes, and he may surely delegate that authority to his second in command, the Vice President of the United States. Indeed, to the extent that federal law or state tort law is to the contrary, we must read all such laws in harmony with the inherent powers of the President as head of the unitary executive in order to avoid any potential constitutional conflict. As the President himself noted in his recent signing statement to the McCain Amendment, laws that purport to limit the President's authority to use force in time of war must be construed "in a manner consistent with the constitutional authority of the president to supervise the unitary executive branch and as commander in chief."

The Executive's ability to identify enemy combatants and apprehend or, if necessary, shoot them on the field of battle is fully recognized under the laws of war. There is no doubt that it is fully within the President's powers under the laws of war to identify enemy combatants and apprehend, or if necessary, shoot them in order to prevent them from returning to the battlefield where they may do harm to the interests of the United States. In this case, it is undisputed that Harry Whittington (if that is his *real* name) was carrying arms in close proximity to the Vice President of the United States, and, moreover, in the very same state as the President's Crawford, Texas, residence.

It was therefore completely within the Vice-President's discretion to determine that the said Whittington was an enemy combatant who posed a threat, whether real, potential, imagined or fictitious, to the national security of the United States. Media accounts do not reveal what Harry Whittington's name was before he changed it; it is entirely possible, however, that his real name is Ari Al-Whittington and that he is an Al Qaeda operative, or is associated with groups who are associated with Al Qaeda, or is associated with groups who are associated with groups who are associated with Al Qaeda. And so on.

The objection that Al-Whittington was found on American soil is completely without merit. We are dealing with questions of war, not the criminal or civil process. What so-called "civil libertarians" still don't understand is that 9-11 changed everything. Thousands of people died in the World Trade Center *on American soil.* Discovering Al Qaeda operatives on American soil, or those that executive suspects, whether reasonably or unreasonably, to be Al Qaeda operatives, does not bestow upon such "persons" the "right" to call upon the criminal justice system, much less the civil tort system. We note, moreover, that the President's constitutional obligation in Article II, section 3, to "take care that the laws be faithfully executed" fully supports these conclusions. If the President is constitutionally authorized to execute "laws," a fortiori he is clearly authorized to execute "persons" by shooting them at his discretion.

Nor is the fact that Al-Whittington is a 78 year old businessman who has made substantial contributions to the Republican Party a reason to doubt the Vice-President's plenary determination that Al-Whittington may have links to Al Qaeda, or links to links to links to Al Qaeda. After all, if Al Qaeda wished to infiltrate the Executive branch it would be entirely logical to plant operatives posing as Republican businessmen who gave money to Republican causes because everyone knows that in this Administration the best way to gain access to Administration officials is to buy your way in. Indeed, precisely because money buys access in this Administration, the more money a businessman gives, the more justified the suspicion that the businessman is in fact in league with Al Qaeda, groups associated with Al Qaeda, groups associated with groups associated with Al Qaeda, and so on. The Vice-President's determination, whether reasonable, unreasonable, or completely under the influence of drugs, is therefore plenary and unreviewable, as is made clear by the text of the Constitution, which fails to say anything to the contrary.

Finally, even if one doubts the inherent authority of the unitary executive to identify and shoot persons like Al-Whittington, the September 18th, 2001 Authorization for the Use of Military Force (hereinafter "AUMF") clearly gives the President authority "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." This authorization clearly includes persons like Al-Whittington, since the letters in the authorization can be rearranged to spell "Al-Whittington," not to mention "Al-Gore." (But we digress). Such Congressional authorization clearly trumps any federal or state law to the contrary, and all state or federal laws which may be passed in the future. In particular, the AUMF clearly obviates the need for Vice President Cheney to have purchased a hunting license from the State of Texas.

In sum, because of the President's inherent authority to supervise and direct the Unitary Executive Branch as Commander-in-Chief under Article II of the Constitution, Vice President Cheney was clearly authorized to shoot Ari Al-Whittington, enemy of the people, under the laws of war. Any suggestions to the contrary show ignorance of the original understanding of the United States Constitution, serve to give our enemies in the Global War on Terror aid and comfort, and in and of themselves constitute grounds for detention as an enemy combatant. We're serious. Don't f*ck with us.

Department of Justice
John Yoo Building
Washington, D.C.

Posted 2:33 PM by JB [link] (24) comments

Q: When is a Bill Signed by the President Not a Law?

Marty Lederman

A. When it has not been passed by both the House and the Senate. U.S. Const. Art. I, sec. 7, cl. 2.

Civics 101 lesson:

On Wednesday, the President signed S. 1932, the Deficit Reduction Act of 2005. It is, by all accounts, an extremely significant, $39 billion piece of legislation, which sharply divided the legislature. The bill passed the Senate back in December only on the tie-breaking vote of the Vice President. It then went to the House, which purported to agree to the Senate amendment by a vote of 216 to 214 on February 1st. In other words, it doesn't get much closer than that.

But there's a catch -- namely, that the House apparently did not vote for the bill that had passed the Senate.

Section 5101(b)(1)(B) of the bill would limit Medicare payment for rental of oxygen equipment to a period of 36 months, after which the supplier of the equipment must transfer title to the recipient. This had been a controversial provision. Under pre-existing law, Medicare paid for oxygen supply, tanks and maintenance for as long as an eligible patient uses them; and the average usage period is 30 months. The House-Senate Conference had capped payments at 18 months, which caused Sen. George Voinovich, R-Ohio, "normally an immovable budget hawk," to threaten to derail the entire $40 billion deficit-cutting bill. Hence, the 36-month solution in the Senate bill.

For rental of (almost) all other "durable medical equipment," however (e.g., wheelchairs), section 5101(a)(1) of the Senate bill capped payment at 13 months.

Here's the rub: When the Senate sent S.1932 over to the House, the "36 months" language for oxygen tanks in section 5101(b) was included, but that same language was also inserted into section 5101(a), so that the bill provides for reimbursement for other durable medical equipment for the same 36 months as is available for oxygen tanks. (This blurb in yesterday's Washington Post tells the story, but mistakenly refers to the discrepancy as appearing in the oxygen-tank provision, rather than in the catch-all provision.)

Oops.

The Post story reports that "when the mistake was discovered, a . . . clerk scribbled out '36 months' and wrote in '13 months.'" But that's not quite right. According to a Congressional Quarterly story, the mistake apparently was discovered in mid-January, but was not then corrected, because "no agreement could be reached between the House and Senate about how to resolve the difference from the Senate version other than passing a corrective measure after enacting the reconciliation bill." So the different bill was considered by the House, where it was approved by just two votes.

After the House passed the bill, the Senate clerk "corrected" the error and, according to CQ, "[i]t was then certified by House Speaker J. Dennis Hastert, R-Ill., and Sen. Ted Stevens, R-Alaska, acting in his capacity as president pro-tempore of the Senate, as the correct bill and sent to the president."

The enrolled version that was transmitted to the President tracks the Senate version.

But the House never passed the actual Senate-passed version.

Article I provides that, in order to become a law, a "Bill . . . shall have passed the House of Representatives and the Senate." (For those of you needing a refresher course, listen here.) Has S.1932, which the President signed on Wednesday, passed the House of Representatives?

If not, what comes of it?

[UPDATE: Tom Johnson, in the Comments, cites Field v. Clark for the proposition that "the version of the bill signed by the leaders of both houses and presented to the president is the authoritative text of the act, and the courts have no authority to look to committee reports or other parol evidence to impeach it." "Therefore," Tom writes, "if the version signed by the President included the 13 month language, then that would appear to be the law."

Close, but not quite. Tom is probably correct in suggesting that the courts will enforce the bill as signed by the President, at least if and when the bill is deposited in the public Archives. That's the holding of Field v. Clark, 143 U.S. 649 (1892), in which the first Justice Harlan held for the Court that, once a bill is deposited in the public Archives, a court should not look behind the President's signature, and the attestation of the Speaker and President Pro Tem, to question whether the bill was in fact passed by both houses. (The signed bill in Field v. Clark apparently omitted a section that had been in the version approved by both houses of Congress.)

But that does not determine whether or not the Deficit Reduction Act is a law. The Field rule is an evidentiary rule, motivated by the "respect due to a coordinate branch of the government." The Court explained that for it to look behind the signatures would suggest the possibility of "a deliberate conspiracy" of the presiding congressional officers to send to the President a bill that had not, in fact, been passed by both houses -- something the Court was understandably loathe to do. Id. at 672-673.

Which goes to show, at most, that Hastert and Stevens, et al., might get away with what is, in fact, a "conspiracy" to violate the Constitution. That is to say, Dennis Hastert has violated his constitutional oath by attesting to the accuracy of the bill, knowing that the House version was different (and having intentionally avoided fixing the discrepancy when it came to his attention before the House vote). And Stevens and the President are coconspirators, assuming they, too, knew about the problem before they attested to and signed the bill, respectively.

What's the authority for my conclusion that the bill is not a law? None other than Field v. Clark itself, in which the Court agreed that "it cannot be doubted" that a bill signed by the President "does not become a law of the United States if it ha[s] not in fact been passed by Congress. . . . There is no authority in the presiding officers of the House of Representatives and the Senate to attest by their signatures, nor in the President to approve, nor in the Secretary of State to receive and cause to be published, as a legislative act, any bill not passed by Congress." Id. at 669.

Just because something won't be remedied by the judiciary doesn't mean it's constitutional -- and doesn't mean the President and officers of the Congress can lawfully ignore their constitutional obligations.]
Posted 10:33 AM by Marty Lederman [link] (25) comments

Congressional Oversight, Party Loyalty, and Separation of Powers

JB

There are at least two different explanations for resistance among Republicans to the President's NSA program. The first is that there are some public spirited public officials who genuinely believe that the program violates the law and/or the Constitution, and are worried that the Administration is dangerously aggrandizing power, and are willing to risk the disfavor of the Administration in saying so. The second is that Republican members of Congress increasingly understand that their political fortunes are not tied to that of the Bush administration and that what is good for their interests in reelection may differ from the Administration's. This President, after all, will never run for reelection while Congressmen and Senators must continually do so.

Our constitutional system is premised on the idea that the first explanation-- of simple public spiritedness and courage-- will not always be sufficient and that the second explanation-- of political self-interest-- will often be necessary to counteract overreaching by another branch of government.

The problem, however, is that in contemporary politics party loyalty has often proved much stronger than institutional rivalry between Congress and the President. After the Republican Party succeeded in capturing both Houses of Congress and the Presidency (not to mention a majority of the Supreme Court), the basic strategy was for the political branches to work together. Karl Rove used 9-11 and the War on Terror to create a new set of themes that Republicans could unite around and run on to the disadvantage of Democrats.

To a significant extent, the Administration is still using that same playbook-- repeatedly sending the message that Republicans are serious about protecting Americans, while Democrats are not. Using these themes, the President ran on behalf of Republican candidates in 2002 with considerable success, and he managed to increase Congressional margins in 2004.

As a result, Republicans in Congress have, until recently, been unwilling to perform the function of Congress in a system of separated powers-- to oversee, expose, or push back against Administration overreaching, bad judgment or incompetence. Because this natural check and balance of the political system has been overcome by party politics, the result has been repeated instances of all three-- overreaching, bad judgment and incompetence.

Many have worried that the successful political strategies we have seen in this Administration mean that the logic of the constitutional system is breaking down and that we can no longer depend on separation of powers to check the other branches. That is why the recent developments are so important. They suggest that although a movement party like the Republicans can work together for a while, at some point repeated election cycles drive a wedge between the interests of Congress and the President controlled by the same party, particularly when the Administration is a lame duck Administration.

Although I have not been a fan of the Twenty Second Amendment, which limits Presidential terms to two, it does have the unintended effect of helping to create this sort of wedge. Even if a movement party controlling both Congress and the Presidency can march in a relatively secure lockstep during a President's first term, differences will almost certainly arise in the second term. And of course, if the public becomes sufficiently aroused and unhappy with what the movement party has done, it may break up the constitutional trifecta and hand one House or the Presidency to the other party.

The question is whether this mechanism is enough to do all the work that the framers of the 1787 Constitution originally hoped it would. (We must remember that the framers didn't even believe that there would be poiltical parties, so the fact that the system of separated powers has done much of the work it was intended to do is something of a miracle). Although the signs are hopeful, the jury, alas, is still out on this question. Republicans and Democrats alike have worked hard to ensure a large number of safe seats in the House; moreover, the contemporary system of campaign finance favors incumbents and allows Congressional leaders to keep Congressmen and Senators in marginal constituencies in line. Hence the Rovian model of a relatively disciplined party in which the President and Congressional Republicans work in lockstep may still have considerable staying power. And it is that Rovian model that has undermined the system of checks and balances that helps keep Presidents honest. Even though some Republicans are now objecting to this President's repeated acts of overreaching and incompetence, I am not yet convinced that the Congress as a whole will be able to perform its oversight function in a sustained fashion. Only time will tell.

Posted 8:30 AM by JB [link] (10) comments

Shorter Attorney General Gonzales

JB

What we did was legal, or, in our opinion, could have been legal. Since there are arguments on both sides, we will rely on our opinion. However, we won't let a court decide the question, because then we wouldn't be able to rely on our own opinion.

We won't answer hypothetical questions about what we can do legally or constitutionally. We also won't tell you what we've actually done or plan to do; hence every question you ask will about legality be in effect a hypothetical, and therefore we can refuse to answer it.

Posted 8:54 AM by JB [link] (12) comments

Rebuilding New Orleans: Competing Visions

Anonymous

In the wake of the State of the Union address, there was a flurry of activity which brought into sharper focus the competing visions on how to rebuild New Orleans and southeast Louisiana generally. There was a sharp negative reaction in Louisiana to the State of the Union because President Bush said so little about Hurricane Katrina and its aftermath. He did not recognize those American citizens who died or those who had risked their lives to save thousands. He did not reaffirm his September pledge to rebuild New Orleans. Instead, he referred to the total amount of money that has been authorized by the federal government so far – $85 billion. In Louisiana, we are heartily sick of hearing this figure.

First, this is money authorized, not spent. Second, it is for all the states affected by Hurricanes Katrina and Rita, not just Louisiana and certainly not just New Orleans. Third, about $20 billion is for tax credits, mostly for business, which are of dubious value given the most substantial problem facing the state – housing. Fourth, a substantial fraction of the money goes to FEMA simply to pay the ordinary expenses of running the agency. Fifth, the rest is largely devoted to three necessary, but not very productive, items: (1) picking up debris; (2) fixing some important infrastructure like bridges and roads; and (3) temporary housing. The last point is important. What New Orleans and Louisiana need is a solution to the problem of the vast number of destroyed and damaged permanent housing, not temporary trailers (which, for New Orleans, haven’t arrived yet). And eventually New Orleans in particular will need some funding to make any local plan happen.

Today’s New York Times says the mayor’s plan has been abandoned, but I see no evidence of that. True, building permits are being handed out not in accordance with the plan, but it was never very likely that they would be suspended. The mayor’s Bring New Orleans Back Commission finished submitting a fine set of reports last week (available on the web) and the mayor will announce what parts he accepts or rejects shortly. The main point is that any local plan will require federal funding. So far, the federal answer has been roughly $6 billion in Community Development Block Grants. These are basically all-purpose grants to the state. This is almost certainly not enough to fulfill Bush’s September pledge.

Hence the flurry of activity last week. The Bush administration touted the CDBGs and trashed the comprehensive solution sponsored by Representative Richard Baker. The basic difference between these approaches is that the most the CDBGs can provide is a small grant to homeowners, while the Baker bill provides up to a 60% return on equity, a chance to buy back the redeveloped property and, most important, a chance to redevelop whole areas of the city rather than depend on the actions of outmatched homeowners. So far, the alternative to the Baker bill appears to be mass foreclosures, no chance at any comprehensive plan, and a terrible plague of housing blight. This issue may come to a head at a February 15 Senate hearing scheduled on the Baker bill.

The worst part of the Bush administration’s rejection of the Baker bill has to do with the claim, made in a Washington Post editorial by Donald Powell (the administration’s Katrina coordinator), that it was a heavy-handed federal solution to a problem that must be solved through comprehensive plans adopted by state and local government. In fact, the plans put forward by both the mayor of New Orleans and the governor of Louisiana explicitly depend on the enactment of the Baker bill. Indeed, the Urban Land Institute that assisted the mayor’s well-qualified commission endorsed the Baker bill and the plan of the mayor’s commission cannot go forward without it. In other words, by rejecting the Baker bill, the Bush administration bypassed the state and local plans as developed so far and made them irrelevant. So a truly “federal” coordinated response to the massive tragedy of Katrina has been made impossible. The Brookings Institution reported on February 1 that:

"Hundreds of thousands of households continue to face major obstacles restarting their lives. Nearly 750,000 households remain displaced by Katrina, of which about 650,000 are receiving rental assistance, or about $800 a month. Mortgage delinquency rates skyrocketed between the second and third quarter of the calendar year. In the state of Louisiana, for instance, nearly one out of every four loans is now 30 or more days past due."

So far, the Bush administration has no solution to this problem.
Posted 8:37 PM by Anonymous [link] (10) comments

The status of Puerto Rico within the American Union

Sandy Levinson

I strongly recommend a story in today's Boston Globe by Bryan Bender tellingly titled "As its war sacrifices rise, Puerto Rico debates US tie: Some seek more political rights."

The story points out that "[t]he 3.9 million residents of Puerto Rico are losing a disproportionately high number of soldiers in Iraq and Afghanistan -- at least 48, including those who lived in Puerto Rico but signed up for the military on the US mainland." This is leading to renewed calls for Puerto Rican statehood. "Next week, Puerto Rican leaders plan to lobby Congress to act on a recent White House task force that recommends giving Puerto Ricans the chance to decide, through a referendum mandated by Congress, whether they want Puerto Rico to remain a commonwealth or to change its political status. And if Puerto Ricans want a change, the panel recommended, Congress should set up another plebiscite to let them choose full independence or becoming the 51st state."

Needless to say, there would be nothing binding about these votes. It is ultimately up to Congress to decide whether to admit Puerto Rico. The political and quasi-constitutional issues would be enormous: Although Puerto Rico's non-voting delegate to the House of Representatives is a Republican, it is hard to believe that the approximately 7 represenatives that a state would be entitled to wouldn't be largely Democratic (not to mention the two Senators), given the economic needs of what would instantly be the US's poorest state. (This hasn't stopped the Deep South from turning Republican, but that is almost certainly the result of racial and religious politics more than a "rational assessment" that tax cuts for the rich are really the best way to bring economic development to Alabama and Mississippi.) Even more to the point, of course, is the fact that Puerto Rico is largely Spanish-speaking, and any serious move toward Puerto Rican statehood is guaranteed to bring the politics of language to center state, with, I suspect, accompanying acrimony. Could/would Congress condition statehood on adopting English as its official language? Langauge politics played a role in the delayed admission of New Mexico and Arizona, and Utah, notably, had to renounce polygamy before being admitted in 1890. Could/should Congress be so heavy-handed in today's world?

And would Puerto Rico be allowed to declare its independence if rejected for statehood? Can one imagine, for example, an independent Puerto Rico being allowed to establish warm relations with the Chavez government in Venezuela or kicking the US Navy out of its bases there? Taney is Dred Scott argued that the Constitution didn't allow the US to possess long-term colonies; the dissenters in the 1901 Insular Cases embraced this aspect of Dred Scott to protest the acquiescence by the majority in an "imperial vision" of the US that allowed us to become just like Great Britain, France, Germany, and other expansionist powers with their subordinate colonies. Will the US find itself in the position of allowing neither statehood nor independence to Puerto Ricans, whatever may be their wishes because, after all, "we" have our own conception of "our" interests that includes neither possibility.

Puerto Rico, though the world's largest remaining colony--in the specific sense that its residents have no formal rights to participate in the politics of the country that claims sovereignty over it--usually remains way off the radar screen of most Americans (who will undoubtedly be surprised to learn that the island has its own Olympic team, which would presumably be disallowed if it joined the Union). The Globe piece suggests that we could all find ourselves thinking more about Puerto Rico in the future, with significant consequences for the American polity.
Posted 10:09 AM by Sandy Levinson [link] (4) comments

Senator Roberts Declares FISA Unconstitutional

Marty Lederman

Senator Pat Roberts of Kansas, Chairman of the Senate Intelligence Committee, today issued a 19-page letter to the Senate Judiciary Committee in which he became (as far as I know) the first member of Congress to opine that the NSA's doemstic wiretapping program is lawful. Senator Roberts's argument is, almost in its entirety, that to the extent FISA purports to provide the "exclusive means" for the President to engage in electronic surveillance -- and Senator Roberts agrees that FISA does so (pp. 10-11) -- FISA is unconstitutional. (For a contrary view, sent to the Congress yesterday by 14 constitutional law professors and former government lawyers, see here.)

Notably, Senator Roberts does not really indulge DOJ's untenable argument that Congress gave the President the authority to override FISA -- and that Congress impliedly repealed the "exclusive means" provision of FISA -- when it enacted the force authorization related to Al Qaeda on September 18, 2001. To be sure, in the Conclusion to his letter, Senator Roberts mentions en passant that he "do[es] not discount" the AUMF argument -- but he doesn't try to defend it in the slightest. Indeed, he does not even suggest that when he himself voted for the AUMF, he intended -- or had any inkling -- that FISA was being overriden and in part repealed. His argument, instead, is that the President's constitutional authorities "should be the beginning and end of our legislative inquiry into the 'legality' of this program. It is quite clear to me that Congress could not, through passage of FISA, extinguish the President’s constitutional authority to conduct the terrorist surveillance program at issue." Senator Roberts concludes (p.13) that the Supreme Court would, "even after FISA, determine that Congress cannot define the 'exclusive means' for the conduct" of the President's electronic surveillance within the United States.

[UPDATE: On a closer read of the letter, something -- or rather, the absence of something -- jumped out at me: There's no argument -- none at all -- about why FISA is unconstitutional. Senator Roberts argues that the President had the constitutional authority to engage in such surveillance prior to FISA; that FISA was specifically designed to limit that Executive authority by statute; that therefore the President's authority is at its "lowest ebb" as described in Justice Jackson's Youngstown concurrence; and that the surveillance in question is very important. But he nowhere explains why the President prevails in the constitutional analysis even at the "lowest ebb." Did I miss an argument in there somewhere to support the "I believe the Supreme Court would recognize" assertion? (In a parenthetical, Roberts suggests that the Court "arguably has recognized" that Congress violated the Constitution by enacting FISA. But his only citation for that suggestion consists of the denials of certiorari in Truong and Butenko, neither of which raised the question of FISA's constitutionality because both cases involved surveillance prior to FISA's enactment.)]

It's a rather remarkable and unusual event when the Chair of a congressional intelligence committee asserts that the landmark framework statute over which his committee has jurisdiction is unconstitutional. But that is what we've seen today. (One wonders why Senator Roberts did not, over the past five years, respond to the several enacted and proposed amendments to FISA, including in the PATRIOT Act, by saying they were unnecessary because FISA cannot limit the President's foreign-terrorism-related electronic surveillance.)

One other important thing about the Roberts letter: He reveals what many of us had suspected -- namely, that one reason the Administration is circumventing FISA is because it is engaged in interceptions that the FISA Court could not approve under the law as currently drafted: "FISA’s burden of proof -– probable cause that [the targeted] individual is an agent of a foreign power -– is higher than the 'reasonableness' the Fourth Amendment requires and does not enable surveillance of all the assistants and collaborators of our enemies that the President should target for intelligence collection."

Now, it should be understood what Roberts is saying here: FISA does not regulate at all the surveillance of "all the assistants and collaborators of our enemies" insofar as the interceptions occur overseas -- even if the communications are with persons in the U.S., NSA may freely intercept those calls (or that's my understanding, anyway). And even if the interception is made here in the U.S., FISA allows for a judicial order upon a showing of probable cause that the person in the United States whose phone or computer is targeted is "an assistant or collaborator of our enemies." Therefore, what's at issue here is (i) the targeting of U.S. persons who are not suspected of being Al Qaeda assistants or collaborators, but who are calling persons overseas who are suspected of being such; and/or (ii) the targeting of U.S. persons who the NSA suspects of being "assistants or collaborators," but where there is not probable cause to believe it.

(By the way, Roberts confirms that "assistant or collarborator" is defined very broadly, to include not only members of Al Qaeda or those who assist in Al Qaeda's terrorist operations, but also persons "affiliated with" Al Qaeda and persons who are members of "organizations affiliated with Al Qaeda." Thus, some of the intercepted calls might not involve any party who is in league with Al Qaeda or who is otherwise even suspected of having had anything to do with the attacks of September 11, 2001.)
Posted 4:16 PM by Marty Lederman [link] (25) comments

In defense of underlying principles

JB

Randy Barnett's recent Taft Lecture, available here, is a good short introduction to his contributions to constitutional theory. It is couched as a criticism of Justice Scalia, but in fact it's really an excellent summary of the main themes of Randy's book, Restoring the Lost Constitution. I was particularly interested in it because Randy offers a new foil to distinguish his theory of original meaning originalism. He calls it the "underlying principles" approach, which in his words, "discern[s] from the text the deeper underlying principles that underlie is particular injunctions." He claims that this is a very widespread approach, which, indeed, it is. More controversially, he also claims that adherents of this approach "appeal to these underlying principles to limit the scope of the text or ignore it altogether," while his approach is presumably more faithful to the constitutional text.

Randy does not identify any particular adherents of this underlying principles approach, although he claims that it is very common. He might well have picked me as his foil, for as I have argued here, the combination of the original meaning of the constitutional text plus underlying principles is a pretty fair first approximation of my normative approach to constitutional interpretation. (As opposed to my positive theories of how the Constitution actually changes over time).

So I want to use this opportunity to defend what I shall call the "text and principles" approach from Randy's criticism. But I want to do more than this. I want to suggest that Randy's own approach is actually quite close to if not indistinguishable from the "text and principles" approach he seems to criticize. That is, if Randy believes that I am now an originalist, I want to claim that he is actually an adherent of the text and principles approach, or, at the very least he should be.

I begin by considering why Randy thinks the underlying principles approach is objectionable. He offers three reasons:

First, as his account suggests, he is worried that an appeal to underlying principles will be used "to limit the scope of the text or ignore it altogether."

Second, he argues that "because the underlying principles are not themselves in writing and are often far from incontestable, it is hard to be sure they are not just the preference of whoever is doing the 'interpreting.'"

Third, he argues that "since the underlying principles, even if correct, are usually very abstract, how they are to be applied in particular cases can be very uncertain." Thus, "if pretty much anyone can play this game to reach virtually any result, then the Constitution is no longer the source of law for law-makers. Instead it is those in the courts who discern the underlying principles who are the real arbiters of government power."

These are all valid concerns. But it is hardly clear that an appeal to underlying principles per se creates any of these dangers, or, to put the point more bluntly, that it creates any of these dangers more than the direct appeal to the original meaning of the text, particularly where the text is open-ended as the privileges or immunities clause and the Ninth Amendment are. Indeed, as I shall argue, the point of appealing to underlying principles is that they help articulate and limit the discretion of judges and legal decisionmakers when the relatively abstract provisions of the text do not provide much guidance.

In fact, Randy has no objection to the use of underlying principles to the extent that "we often do need to consider the principles underlying the text to make sense of it." His real concern is that the principles will displace the text. But for this displacement to occur we have to know what the text really means independent from the principles that it promotes. Sometimes that is easy to do when the text is relatively clear cut. The Framers said that the President must be 35, and perhaps the underlying principle is that he or she be relatively mature. However, the specific age limit controls, and it may not be displaced by the more general principle it enacts.

But when we move to the more abstract and general features of the constitutional text, like the Equal Protection Clause or the guarantee of freedom of speech-- to say nothing of the Privileges or Immunities Clause, or the Ninth Amendment-- it is much harder to see when the underlying principles are displacing the text. Indeed, we need such principles in order to understand how to apply the text to concrete circumstances.

Let me take two examples that Randy offers. First, he asks whether restrictions on paid political advertisements (issue ads) within 60 days of a federal election violate the first amendment. He seems to think that underlying principles would justify the restriction while the original meaning of the text of the first amendment would not. Since I am probably more likely to be on the same side as Randy on the merits, let me play devil's advocate. We don't know whether the limits on issue ads is an abridgment of the textual protection of the "freedom of speech" until we figure out what underlying principles the text promotes. Note that the text of the first amendment guarantees not "speech" but "the freedom of speech," as Alexander Meiklejohn famously pointed out. That freedom does not include every act of speech, and it is subject to reasonable regulations. To decide whether the ban on issue ads violates "the freedom of speech" we need to generate a theory about what kinds of regulations are reasonable and what kinds are not. To do that we will have to figure out what principles underlie the first amendment's text. But we are not done yet. We will also have to come up with some implementing rules in the form of doctrines that will help us apply the text and its underlying principles to concrete cases. Much of the work of courts that is called "interpretation" is actually the construction of these implementing rules. These implementing rules are not foolproof, and they are often controversial, and their scope and reach change over time. But they are necessary to the workaday task of articulating and applying an abstract textual guarantee. For example, if we think that time place and manner regulations are consistent with "the freedom of speech," and we believe that the 60 day limit on issue ads is part of a more general scheme of time place and manner regulation, then the limit is not inconsistent with "the freedom of speech." In fact, I am fairly dubious that this is so for reasons I cannot get into here, but that is how you would go about thinking about the problem.

Or take Brown v. Board of Education. The text of the Equal Protection Clause does not tell us which inequalities violate the Fourteenth Amendment; moreover, the law abounds in practices and statutes that treat things differently. To understand how the Fourteenth Amendment applies to the case of school segregation (and, here, in particular, we would have to look to the Privileges and Immunities Clause as well as the Equal Protection Clause) we have to have some sense of the underlying principles that animate the amendment. If, for example, the amendment promotes a conception of equal citizenship and is designed to prohibit class legislation that creates or maintains a caste of citizens by operation of law, then we have to go on and ask whether school segregation by race does this. And we will need implementing rules just as in the First Amendment case. It is by no means clear that the original meaning of the Fourteenth Amendment conclusively decides Brown v. Board of Education unless we also look to underlying principles to help give us a sense of what the text means. Even when we get to very controversial issues like affirmative action in state institutions of higher education, it is by no means clear that the original meaning of the text definitively tells us how to decide the case. And, more to the point, if we must make use of these underlying principles and implementing rules to decide the case, it is hardly clear that either is trumping or causing us to ignore the original meaning of the text in the manner of my previous example of the 35 year age limit for the Presidency.

I agree with Randy that underlying principles (and, for that matter, implementing rules in doctrine) should not cause us to "ignore or trump" the original meaning of the text. And when it is clear that this has occurred, that is a reason to rethink the principles and modify or even discard the implementing rules. But I do not believe that it is always so clear when this has occurred, when we are interpreting and applying a relatively abstract text like the First Amendment, or the Fourteenth Amendment's equal protection clause, precisely because we need these principles and implementing rules to help us understand how the text applies in concrete circumstances. What Randy does not emphasize sufficiently, I think, is that in many cases we cannot treat underlying principles and implementing rules as a merely extraneous element, unnecessary to the practical task of fidelity to the original meaning of the constitutional text. They are required by the goal of fidelity. Discovering, developing, and applying them is how we can be faithful in our own time. We cannot apply the Constitution's most abstract provisions without the use of principles and implementing rules.

Not only will I agree with Randy that underlying principles and implementing rules may not allow us to "ignore or trump" the original meaning of the text, I will assert that this precept is, in fact, my general view of when constitutional change through interpretation is authorized. Like Randy, I do not believe that stare decisis is an inexorable command when it is inconsistent with the Constitution's meaning, and unlike many liberal constitutionalists these days, I do not think that the best way of preserving the Constitution's guarantees is to force judges to swear at their confirmation hearings that they will respect precedent above all else. We should discard old doctrines when we come to recognize that they no longer comport with the original meaning of the text and the principles underlying the Constitution (principles which themselves must always be consistent with the original meaning of the text.). People regularly disagree about when this has happened, and that is why people fight over existing doctrines and seek to overrule and change them. Social movements (and political parties) organize around the belief that their view of the constitutional text and underlying principles is more correct, and they seek to persuade others that their views are the best ones. Constitutional revolutions occur when they succeed in persuading enough people. That does not guarantee that the positive law of the Constitution always reflects the best interpretation of the Constitution. What our system does do is allow everyone a chance to have a say in the interpretation and application of constitutional doctrine in addition to their ability to participate in actual changes to the constitutional text through constitutional amendment.

Randy concludes his essay by arguing that people are tempted to look to underlying principles because "it appears to yield better results than respecting the text and nothing but the text." He gives Brown as an example. But he is wrong to suggest that the choice is either underlying principles or "the text and nothing but the text." As I have argued, we cannot look only to the text when it is relatively abstract. We need both underlying principles and implementing rules to decide concrete cases. We need them to be faithful to the original meaning of the text. The requirement of fidelity demands that the underlying principles and implementing rules must always be consistent with the text. However, as, I have also argued, people will often disagree about the best way to do this and each group will insist that the other side is ignoring the original meaning when in fact they are offering competing interpretations of what it means to be faithful to that meaning in current circumstances. Therefore much constitutional interpretation requires persuasion over long periods of time, both in courts and in the public sphere generally.

Randy gives Dred Scott, Plessy, and Korematsu as three examples of cases where courts used an underlying principles approach and substituted underlying principles for original meaning. I wish he would spell this argument out in more detail, for although I agree that all three of these cases are wrongly decided, I don't think that any of these cases actually involved judges who said they would not follow the text's original meaning. Korematsu, after all, was written by Justice Black who always believed that what he was doing was applying original meaning. Chief Justice Taney insisted that blacks could not be citizens because precisely because the court could not "give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted." At most he is making an (bad) argument from original intention, but he is certainly not abandoning originalism for some underlying principles that could change over time. And Justice Brown's opinion in Plessy says nothing about displacing original meaning in favor of underlying principles; quite the contrary, he assumed that the principle that the Constitution did not secure social equality between the races was fully consistent with the text of the Fourteenth Amendment. And, I am afraid to say it, but his views about the original meaning of the Fourteenth Amendment (and the exclusion of social equality from its requirements) was not altogether uncommon at the time he wrote Plessy. (Indeed, the case was decided 7-1.)

The Justices in these cases may have gotten the meaning wrong, but that does not mean that they are members of the underlying principles school that Randy wishes to criticize. Indeed, the examples of Dred Scott, Plessy, and Korematsu serve only to show that people who all seek to enforce the text's meaning will sometimes have very different views about what the original meaning of open ended clauses of the Constitution requires. And as fallible human beings influenced by the political demands of their day, they will sometimes be right and sometimes be wrong.

Near the end of his lecture, Randy gets to the heart of why Scalia has adopted his approach. Scalia wants to protect democratic majorities, and he wants to promote judicial restraint and cabin in judicial discretion. What Randy's original meaning approach does not do, particularly with respect to the open ended clauses of the Ninth Amendment and the Privileges and Immunities Clause, is suggest how to cabin in that discretion. Randy points out that "broad as both these provisions are, they are neither unlimited nor entirely open-ended." I think someone like Scalia would concede the point but respond that they are plenty open-ended enough for judges to impose their personal values in the guise of constitutional interpretation. Randy responds that this discretion "is not a bug" but "a feature." I think he is right about that. However, this is the sort of thing that software companies often say to end users who find their software defective, and for many users it is cold comfort. And in the same way, telling someone like Scalia that of course unelected jurists will have discretion in filling in the meaning of open ended clauses is a feature not a bug will be cold comfort to him.

And that brings me to the point on which I will close, and about which I hope to write more. We ask theories of interpretation to do several different things. We ask them to articulate basic rights and structures of government and apply them to concrete cases, and we ask them to constrain interpreters in performing this function. It turns out that given the Constitution and legal system we have, it is very difficult to do all these things at once. Therefore my view is that the work of constraining interpreters can only be partially achieved by the theory of interpretation. That is a good thing too, because the work of the Supreme Court, as a multimember body, is unlikely over time to correspond with the products of any single coherent theory of constitutional interpretation. Rather, we should look for the mechanisms of constraint elsewhere in the constitutional system. As I've explained elsewhere, the most important sources of constraint come from constitutional structure-- the combination of the party system and the appointments process, which continually pushes the Supreme Court toward the views of the national political coalition. This constraint is not the same as a constraint that forces judges only to produce correct interpretations of the original meaning of the Constitution, but it is, on the whole, a more reliable constraint than announcing the best theory and expecting a multimember court to apply it faithfully over time.

Posted 3:31 PM by JB [link] (12) comments

Scholars' Reply to DOJ "White Paper" on NSA, FISA, the AUMF and Article II

Marty Lederman

I'm honored to be part of a diverse group of 14 constitutional scholars and former government officials who have joined together to question the legality of the NSA domestic eavesdropping program. I've previously posted about our original letter to Congress, which can be found here. The Department of Justice thereafter made public an unsigned "White Paper" attempting to provide a legal justification for the NSA program and addressing several of the arguments we had made.

Today, we sent to Congress this letter in which we respond to the DOJ White Paper. Here's the Summary:

The administration has continued to refuse to disclose the details of the program, and therefore this letter, like our initial letter, is confined to responding to the DOJ’s arguments. The DOJ Memo, while much more detailed than its initial letter, continues to advance the same flawed arguments, and only confirms that the NSA program lacks any plausible legal justification.

In our initial letter, we concluded that the Authorization to Use Military Force against al Qaeda (AUMF) could not reasonably be understood to authorize unlimited warrantless electronic surveillance of persons within the United States, because Congress had clearly denied precisely such authority in the Foreign Intelligence Surveillance Act (FISA), and had specifically addressed the question of electronic surveillance during wartime. We also found unpersuasive the DOJ’s contentions that the AUMF and FISA should be construed to authorize such surveillance in order to avoid constitutional concerns. FISA is not ambiguous on this subject, and therefore the constitutional avoidance doctrine does not apply. And even if it did apply, the constitutional avoidance doctrine would confirm FISA’s plain meaning, because the Fourth Amendment concerns raised by permitting warrantless domestic wiretapping are far more serious than any purported concerns raised by subjecting domestic wiretapping to the reasonable regulations established by FISA. The Supreme Court has never upheld warrantless domestic wiretapping, and has never held that a President acting as Commander in Chief can violate a criminal statute limiting his conduct.

As explained below, these conclusions are only confirmed by the more extended explication provided in the DOJ Memo. To find the NSA domestic surveillance program statutorily authorized on the ground advocated by the DOJ would require a radical rewriting of clear and specific legislation to the contrary. And to find warrantless wiretapping constitutionally permissible in the face of that contrary legislation would require even more radical revisions of established separation-of-powers doctrine.

Posted 5:08 PM by Marty Lederman [link] (12) comments

Why the Administration is stonewalling on its justifications for the NSA program

JB

This New York Times article notes that the Bush Administration is unwilling to provide the Office of Legal Counsel's original legal justifications for its NSA program, arguing that a memo released last month contains all the relevant legal arguments. If that is so, one wonders why it is so unwilling to release the original memos, like many other OLC memos that are publicly available.

One reason is that the memos contain classified material, but that material can be redacted. We are particularly interested in the legal reasoning, not the classified data.

Another reason is that the legal advice given to the President must remain confidential in order to encourage frankness by his lawyers. But that argument is undermined by the wide range of OLC memos that are publicly available as a matter of course, and also by the fact that the White House claims that the legal advice in that memo is the same as that contained in the January 2006 response. Indeed, if the President is directing his subordinates to act on legal advice that affects the civil liberties of American citizens, there is a strong argument that citizens have a right to know the basis of his reasoning that their rights are not being violated.

Another, more interesting possibility, adverted to by Anonymous Liberal here, is that the defense of the NSA program is premised on the same legal arguments as Assistant Attorney General John Yoo's (in)famous but as yet undisclosed March 14th, 2003 legal memo, which Marty has described here.

As best we can tell, that memo-- which probably dealt with the Uniform Code of Military Justice and the Federal assault statute-- offered an extremely strong Article II argument which authorized the President to disregard statutes (including criminal laws) that he felt interfered with his authority as Commander in Chief. That memo was disavowed by Jack Goldsmith (and others) at the OLC in December 2003; but, notably, the constitutional claims made in Yoo's memo were never specifically disavowed by the Administration, and, indeed, Attorney General Gonzales dodged the ultimate legal question of the President's Article II authority to disregard criminal statutes when it was posed to him at his confirmation hearings.

The Justice Department's current position is twofold. First, it argues that Congress's September 18th, Authorization for the Use of Military Force (AUMF) provides the President with all the authority he needs to conduct surveillance of American citizens. Second, it retains a modified version of Yoo's Article II on steroids theory-- so that the AUMF is actually unnecessary to justify surveillance-- but the argument has now been made more complex. It is now posed as the claim that one should construe FISA and the AUMF as in perfect harmony with each other and with the President's Commander-in-Chief powers under Article II so to avoid possible constitutional problems. (It also argues, however, that if the constitutional question is not avoided, FISA is *unconstitutional* to the extent it interferes with the Commander-in-Chief power).

If all this is true, why can't we see the March 2003 memo? One likely reason is that if the original basis for the NSA program was indeed Yoo's Executive power on steroids theory, it would be extremely embarrassing to the Administration. First, the theory as Yoo originally proposed it has no logical stopping point. Second, were the original memo to see the light of day, it would make clear that the full throated version of the theory-- that the President is not bound by criminal laws when acting as Commander-in-Chief-- was never, in fact, disavowed by the OLC or by the Administration. One can only imagine the political fallout from such a revelation. It would put, for example, the President's signing statement accompanying the McCain Amendment in a particularly bad light.

But political embarrassment is not a sufficient reason to stonewall when constitutional theories this radical are driving the Executive's actions. It is incumbent on the Administration to state its constitutional claims forthrightly and have them debated publicly, rather than to concoct them surreptitiously and direct its employees and agents to disregard federal law on the sly. If the members of the Administration secretly believe that the Commander in Chief power cannot be constrained by criminal laws-- particularly those limiting domestic surveillance-- the American public needs to know the sort of people in whom it has entrusted Executive power.

Posted 10:28 AM by JB [link] (9) comments