Balkinization  

Thursday, March 09, 2006

A Thorough Debunking of the "Statutory" Argument for the NSA Surveillance Program -- But Alas, Congress Doesn't Care

Marty Lederman

Today's Washington Post reports that David Kris, DOJ's Associate Deputy Attorney General in charge of national security issues from 2000 to 2003 -- now a counsel at Time-Warner -- is "highly critical" of the legal arguments that DOJ has offered in support of the legality of the NSA domestic spying program. That's putting it mildly.

I worked with David at the Department of Justice. It's very safe to say he was one of the very best appellate lawyers in the Department -- and became one of the most trusted, most well-respected authorities in the Department on criminal law and electronic surveillance issues once he moved on to the DAG's Office. He's extremely thorough, careful, and impartial. And those qualities are on display in his recent analysis of the NSA program, contained in this series of e-mails to the Attorney General's Office in December and January, and, much more importantly, in this remarkable 23-page memo dated January 25, 2006. (All were written in his personal capacity, and do not reflect the views of DOJ or Time-Warner.)

David's memo is by a large measure the most thorough and careful -- and, for those reasons, the most effective -- critique anyone has yet offered of the DOJ argument that Congress statutorily authorized the NSA program. It largely confirms the statutory argument contained in two letters that I and 13 other academics and former government officials recently sent to Congress (here and here), but David's analysis is much more comprehensive than anything we could have done in that format -- it delves deep into the interstices and legislative history of FISA (a subject that David knows inside and out), and takes apart with precision all of the technical statutory arguments offered in the DOJ "White Paper" defense of the program.

Two things in particular stand out:

(i) David provides a comprehensive analysis of FISA's "exclusive means" provision (18 U.S.C. 2511(2)(f)), and shows both why that provision precludes the NSA program unless it was impliedly repealed, and why it was not repealed.

(ii) David pinpoints (pp. 6-7 & nns. 59-62) why the DOJ notion that Congress approved the NSA rogram in the 9/18/01 Authorization for Use of Military Force is undermined by the drafting, negotiation and enactment of the PATRIOT Act that was happening at approximately the same time. We've heard a lot in recent days about how critical it is that the PATRIOT Act be renewed to permit the President to fight the War on Terrorism. Just check out the President's remarks today on signing the renewal -- it's all about how the PATRIOT Act is so critical to the fight against the terrorists responsible for 9/11. (Hasn't the President heard the news that those authorities were already enacted in the AUMF?) We heard the same thing back in 2001, when the Act was first introduced. But the logic of the DOJ defense of the NSA program, if it were correct, would mean that many key provisions of the PATRIOT are largely superfluous. (Few observers have noted one of the most extraordinary aspects of the DOJ White Paper: In footnote 13 of that White Paper, DOJ responds to this PATRIOT-Act-is-superfluous argument by explaining that, in fact, the PATRIOT Act was not necessary for the "current armed conflict against Al Qaeda and its allies," and that it was instead merely a vehicle for removing "long-standing impediments to the effectiveness of FISA." In other words, the "necessary to defeat Al Qaeda" argument was merely a stalking horse, and the PATRIOT truly was, and remains, a DOJ wish-list to address issues that had long preceded September 11th. This doesn't mean that the PATRIOT Act should, or should not, have been renewed; it's merely to point out that, on DOJ's own reading of the AUMF, the PATRIOT Act is hardly necessary to address the current conflict with Al Qaeda.)

Another remarkable thing -- perhaps the most important thing -- about the Kris memo is that it is dated January 2006, rather than January 2003: David did not produce anything of the sort when he was actually at DOJ, when the legality of the program was being considered. That's not David's fault. Although he was the person in the DAG's office whose portfolio included FISA and electronic surveillance, and although DOJ often trotted David out to testify and speak on such matters well after September 11th, David was never so much as briefed on the NSA program. Now we have reason to understand why: Perhaps DOJ knew that if it ran its legal arguments by serious, trusted and objective lawyers in the Department -- those who knew FISA inside and out -- they would not have passed muster. It's hard to imagine any other reason why someone of David's skills, and in his position on these precise issues, would have been kept out of the loop. Once again, it's evidence of an Administration that is indifferent as to what the correct legal answers might be, but is instead looking only for some legal hook, no matter how tenuous, on which to hang its desired operational programs. See also, e.g., the legal justifications for torture and other unlawful means of interrogation that were reached without the input of those lawyers in the Administration with the most knowledge on the questions; and the finalization and use of the DoD Working Group Report without even informing the Working Group itself (which included several skeptics). This is a much more systemic problem than the particular NSA dispute at issue here.

David's memo also includes shorter discussions of the Fourth Amendment and Commander-in-Chief questions. I don't agree with quite all of what David writes in these respects -- in particular, I don't think the bona fides of the Article II argument are as fact-dependent as he suggests -- but his analysis is, again, serious, balanced, and well worth reading.

I would go into more detail on the Kris memo, but I'm afraid this is where the story turns sour. (More on the Kris e-mails from "georgia10" here.) You see, David's analysis is really beside the point now, for two reasons: the first comforting, the other disheartening.

First, as far as I'm aware no one in Congress has been persuaded by the Administration's statutory argument: It was dead on arrival. As Senators Graham and Specter, among others, have explained, they were present at the negotiation and enactment of the AUMF, and they guarantee that neither they nor their colleagues intended to authorize the sort of circumvention of FISA that the Administration has been engaged in for the past five years. (Attorney General Gonzales's testimony, in response to Graham's explanation to this effect, was basically that Congress unknowingly authorized a major restructuring of a central framework statute, and that actual legislative intent is irrelevant. You can imagine how well that notion went over in Congress.)

Second, it now appears that Congress simply (and unfortunately) doesn't care that the Administration's (secret) legal justification was implausible, nor does it care that the Executive branch treated the legislature (and its statutory enactments) with contempt. Republican Senators, including Roberts and Hagel, yesterday negotiated a "deal" with the White House for legislation that would actually authorize warrantless, virtually unlimited surveillance of Americans. According to a report in today's New York Times, the bill "would give Congressional approval to the eavesdropping program much as it was secretly authorized by Mr. Bush after the 2001 terrorist attacks, with limited notification to a handful of Congressional leaders. The N.S.A. would be permitted to intercept the international phone calls and e-mail messages of people in the United States if there was 'probable cause to believe that one party to the communication is a member, affiliate, or working in support of a terrorist group or organization,' according to a written summary of the proposal issued by its Republican sponsors. The finding of probable cause would not be reviewed by any court. [A]fter 45 days, the attorney general would be required to drop the eavesdropping on that target, seek a warrant from the Foreign Intelligence Surveillance Court or explain under oath to two new Congressional oversight subcommittees why he could not seek a warrant." Details on Senator Snowe's webiste.

Oh, and in "exchange" for affording the Administration this huge loophole in FISA, the Senate agrees not to investigate the NSA program, and not to look further into the Administration's past lawbreaking. Quite a deal, right? Here's the best part: On Tuesday, Senator Rockefeller remarked that the Senate Intel Committee Republicans were "under the control" of the White House. Senator Roberts responded on Wednesday that he resented being portrayed as what he called a "lap dog of the administration," explaining that Rockefeller "doesn't know how hard we worked."

I don't doubt that Roberts and Hagel did "work hard" to reach their "compromise." After all, look where they started the "negotiations": The Vice President's opening gambit was to scoff at Congress altogether, and to insist that the program would go forward come hell or high water, no matter how many legislators thought it was illegal. So Roberts, et al., actually secured a great victory: They've put an end to the Administration's lawbreaking . . . by amending the law to make the conduct legal. (That'll show 'em.) Checks and balances in living color. (Much, much more on this development over at Glenn Greenwald's site, which is fast becoming the locale for one-stop web shopping on the NSA issue.)

P.S. In signing the PATRIOT Act extension today, the President included this typical qualification:
"The executive branch shall construe the provisions of H.R. 3199 that call for furnishing information to entities outside the executive branch, such as sections 106A and 119, in a manner consistent with the President's constitutional authority to supervise the unitary executive branch and to withhold information the disclosure of which could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties."

Translation: There are numerous provisions of the Act that require the Department of Justice to provide information and documents to congressional committees for purposes of oversight. We will ignore those requirements when we conclude that it will "impair" what occurs in the Executive branch. Thanks for asking, though.

Don't be surprised when the President included similar language if and when he signs the touted NSA-surveillance "oversight" bill that Senators Roberts, Hagel and Snowe just worked so hard to negotiate.

P.P.S. I've been meaning also to link to this brief filed a couple of weeks ago with the Foreign Intelligence Surveillance Court by Hogan & Hartson on behalf of the Constitution Project and the Center for National Security Studies. The brief argues at length that the NSA program is unlawful, and urges the FISA court to hold NSA's electronic surveillance under the program to be unlawful "in any proceeding where the lawfulness of any such surveillance is at issue." More on this development from Lyle Denniston on SCOTUSblog.

A FAIR Thought

Mark Graber

My favorite new book, Jon Gould's SPEAK NO EVIL: THE TRIUMPH OF HATE SPEECH REGULATION, documents how, on most campuses, speech codes restricting racist (etc.) expression were more vigorously championed by administrators seeking to pacify various constituencies and keep up with the Jones, than critical race theorists and minority activists who had more important fish to fry. Reading that book in light of the recent FAIR litigation, I wonder whether something similar may have taken place with respect to military recruitment on campus. My sense of the universe is that while most liberal law professors, like myself, believed that campuses could deny military recruitment consistent with the statute (the military had to obey the same rules as other employers, which meant no discrimination against gays and lesbians) that we were very queasy, to say the least about the spending clause argument (since the government's pocketbook has been used for more liberal good than bad, at least in my judgment). So a question to which I do not know the answer, but would welcome reader input. Was the constitutional attack (as opposed to the statutory attack) on the right of the military to recruit on campus largely driven by professors who believed the spending clause argument or by academic administrators looking to make a largely symbolic protest?

Monday, March 06, 2006

The unraveling begins

JB

Many are now wringing their hands over South Dakota's new abortion law, fearing that it means the end for abortion rights in this country. But the people who should really be cowering in fear are Republican political candidates. For South Dakota has begun the process of undermining the Republican Party nationally.

In response to the controversy over South Dakota's new law, three potential GOP candidates for President in 2008 have recently suggested they would sign a bill that banned almost all abortions:

Virginia Sen. George Allen's (R) chief of staff, Dick Wadhams, a national GOP strategist, said Allen "has consistently supported the rights of the people in their states to pass laws which reflect their views and values." A spokeswoman for Massachusetts Gov. Mitt Romney (R) said that if Romney were the governor of South Dakota, "he would sign it. [Romney] believes that states should have the right to be pro-life if that is the will of the people."

A spokesperson said Sen. John McCain, R-Ariz., would have signed the South Dakota legislation, "but [he] would also take the appropriate steps under state law -- in whatever state -- to ensure that the exceptions of rape, incest or life of the mother were included." (Exactly how such "steps" would be received by this bill's sponsors remains unclear).

Not far from their minds is the early-primary state of South Carolina, one of the most anti-abortion states in the country, where voters in 1994 elected a governor (Republican David Beasley) who wanted to outlaw all abortions -- even those endangering a woman's life.

"And there are lots of people here who agree with [Beasley]," said Henry McMaster, the state's attorney general and former GOP chairman. "This is a heavily pro-life state. Any presidential candidate who isn't, who doesn't prove himself on this issue, will suffer."


They might indeed suffer in the primaries. But what about the general election? Most Americans may want abortions more difficult to obtain (as they imagine current circumstances) but they don't want almost all abortions criminalized. If Republican presidential candidates announce their support for criminalizing abortions in the primaries in order to win the votes of the pro-life faithful, their Democratic opponents will be more than happy to remind the public of that position when the general election comes round. That, I predict, will help split the Republican coalition that has governed the country for years.

For this we can thank the wonderful folks in the South Dakota legislature, who have put the criminalization of abortion squarely on the table for public discussion. By making it important for Republican politicians to take a stand-- not on the relatively popular issues of partial birth abortion bans and parental notification requirements, but on the far less popular question of criminalizing abortion-- South Dakota has managed to do what years of Democratic politics could not-- create a wedge issue that will destroy the Republican party's winning coalition nationally.

Parental Notice and Consent Requirements: Neither Pro-choice nor Pro-life

JB

This New York Times article argues that passage of parental notification and parental consent laws following Casey has not had a significant effect in reducing abortions among teenagers, at least when judged in comparison to similar rates of abortion among 18 and 19 year olds who are not subject to the laws.

Parental notice and consent laws, which are quite popular, are premised on an idea of choice, but the relevant actor is the family instead of the individual woman. The family decides whether the woman will get an abortion. That sort of paternalism is unacceptable for adults, but many Americans embrace it for minor children, on the grounds that parents are asked to consent for other significant surgeries their children undergo.

Abortion rights groups are worried that parents will prevent children from having abortions they would otherwise choose (just as pro-life groups are hoping this will be the case) but the statistics from the Times suggest that the cumulative effect of the laws is not very great; indeed, the story reports, some parents urge their children to have abortions.

Thus even if parental notification and consent laws cause some minors not to have abortions, they may also cause some minors to have abortions when their parents would prefer it. In one sense, that's not what either pro-choice or pro-life people wanted. Pro-life people wanted to reduce the total number of abortions, while pro-choice people want the decision to be made by the individual woman and not forced on her by her family.

Parental notification and consent laws, however, are only one arrow in the quiver of pro-life groups. Bans on partial birth abortion, which the Supreme Court will revisit later this year, are another. However, these laws affect only a very small number of women each year, and the lack of a health exception in the Federal law may actually prevent almost no abortions; if the partial birth abortion procedure is safer in some small number of cases, banning it would simply make a small number of late term abortions that would happen anyway less safe. Thus, like parental notification and consent laws, these laws may have largely symbolic effects.

It would be well worth doing surveys that compare the effect of parental notification and consent laws with TRAP (Targeted Regulation of Abortion Providers) laws that impose fairly burdensome licensing and inspection obligations on abortion clinics, and with waiting periods laws that require women to make multiple trips to obtain abortions (which can be especially burdensome for women in rural areas). It is possible that these laws have the greatest impact on reducing the number of abortions by constricting opportunities for poor women and women in rural areas. If so, they may do comparatively little to hinder women in large urban areas or women who are comparatively affluent however. Once again, the effect on the overall number of abortions may not be as great as pro-life advocates have hoped; the effect of TRAP laws and waiting period laws may be mostly to make access to abortions difficult for the poorest women and for those with the fewest resources to raise children on their own.

Finally, it is worth considering that the reform that has done more to reduce the total number of abortions in the years since abortion was legalized in the United States is better access to and education about contraception. If pro-life forces are particularly interested in reducing the total number of abortions, they might join with pro-choice groups to promote the use of contraception and prevent unwanted pregnancies from happening in the first place. Abstinence programs aimed at teenagers can be a part of a larger effort at reducing total unwanted pregnancies, but by themselves they are unlikely to do the job.

Increased focus on making contraception widely available, especially to young people, educating them in how to use contraception, and emphasizing the importance of using it is probably the single most effective reform that the pro-life movement might make to reduce the total number of abortions in the United States.

Such a program might be acceptable to significant parts of the pro-life movement, but it may be unpalatable to others, either because they have moral and religious qualms about contraception, or because promoting contraceptive use does nothing to stem sexual activity by unmarried people or encourage greater chastity among women. That is to say, for important segments of the pro-life movement, the fight over abortion is not just a fight about reducing abortions, but is connected to a larger struggle about proper behavior, particularly the sexual behavior of women. For these parts of the pro-life movement, the discovery that parental notification and consent laws are not significantly reducing the number of teenage abortions may be doubly upsetting, for it also suggests that these laws are not significantly affecting the sexual behavior of teenagers.


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