The Schumer NSA Bill and the Feingold Censure Resolution

Marty Lederman

There's a hearing in the Senate Judiciary Committee today on Senator Feingold's censure resolution, dealing with the NSA's extra-legal electronic surveillance program. As I explain below, I think the legal substance of the Feingold Resolution is unassailable, and the emergence of the censure resolution certainly plays a valuable role in keeping the issue in the public eye. Beyond that, I don't have enough information or political acumen to calculate whether the Feingold Resolution is a politically astute tactic -- but the one thing I'm fairly certain of is that, although it's well-intentioned, it will not lead to cessation of the NSA program, or to any serious and effective assertion of congressional war-powers prerogatives.

Accordingly, I return to the question I asked two months ago: What can Congress do about this conflict, anyway? I continue to think that what I wrote then was correct: The only way for Congress to prevail in this important war-powers stand-off is if the Supreme Court declares the President's conduct unlawful. Assuming that's correct, the only worthwhile thing for Congress to do is to pass a statute such as that proposed by David Barron, establishing statutory standing for parties reasonably chilled by the NSA program, and facilitating expedited Supreme Court review.

Enter Senator Schumer's new bill, S.2468, which would do just that. This is the bill that should be the top legislative priority. The bill is very simple:

Most importantly, it would create a statutory cause of action -- and thus statutory standing -- for certain persons with a "reasonable fear" that their communications are being intercepted, authorizing them to file an action asking a court to enjoin or declare unlawful the NSA program. A reasonable fear would be established by evidence that the plaintiff either has regular wire communications from the U.S. to Afghanistan, Iraq or Pakistan, in the course of paid employment involving research pertaining to terrorism or terrorist groups, or commercial transactions with a bank or financial institution in those countries.

The bill would provide that a three-judge court in the District of Columbia would hear such a suit, and would be required to handle the action with dispatch. Appeal from a final judgment would be directly to the Supreme Court, by way of a jurisdictional statement filed within 30 days after judgment.

As David Barron explains here, this bill would at the very least remove the very formidable statutory obstacles to suit that the current FISA may currently impose, and it might well have a significant effect, as well, on any Article III argument that the government would raise against the plaintiffs' standing. (See more from David here on why it's a good idea to tee up the question for the Court.)

If the bill were, by some miracle, to become law, it would lead to a judicial resolution of this landmark dispute -- the only sort of resolution that will affect the Administration's conduct -- and become a very important doctrinal marker affecting the allocation of powers between Congress and the President, alongside Youngstown, U.S. v. Nixon, the Pentagon papers case, Nixon v. Administrator, and Morrison v. Olson. It would also permit the Congress to consider amendments to FISA on a clean slate, with the current statutory and constitutional framework firmly established. (See, e.g., David Kris's proposal that I discuss here.)

More likely, the Schumer bill would be defeated on roughly a party-line vote. Or, it's possible the Schumer bill might pick up sufficient Republican support for passage -- it's very difficult to publicly articulate a compelling reason for opposing such legislation -- in which case presumably the President would veto it. This would, alas, mean that the bill would not become a law; but in that case, the Administration's constitutional hardball would be clearly seen for what it is -- so dedicated to opposing any checks on untrammeled Executive power either by statute or by the independent judiciary that the President is willing to cast his first veto to prevent any evaluation by the other branches of the lawfulness of his conduct. Such exposure would, I hope, be chastening, and a very important signal to the public of the profound constitutional distinctions between the President and his critics.

OK, so a few quick words on the Feingold Resolution: There has been a great deal of discussion and debate in the blogosphere, including by Jack on this blog, with respect to two questions: the merits of the Feingold resolution and the politics of it. Actually, there's not much serious debate about the merits. Thus, as I've discussed in several posts, there's very little question that the President has authorized systematic violations of FISA. And unless I missed something, no one in Congress has so much as suggested otherwise. (If anyone has examples of any legislator agreeing with the Administration's AUMF argument, please let me know.) Therefore, as far as I can tell, everything in the Feingold Resolution is true. The only question even under serious discussion on the Hill -- obliquely raised by Senator Specter and more unequivocally embraced by Senator Roberts and, more recently, by Senator Hatch -- has been whether FISA (or any other law regulating intelligence-gathering and interrogation) is unconstitutional to the extent it constrains the President's discretion on how best to gather intelligence against the enemy. And even on that question, there hardly seems to be majority support in either the Republican Senate caucus or with the public for the Commander-in-Chief prerogative to circumvent statutory limits.

So the real issue, among those debating the Feingold resolution, has reduced to the politics of the matter--i.e., whether pushing for and voting in favor of the Feingold motion would be good or bad for Democratic electoral prospects. See, for example, numerous posts on Unclaimed Territory, and Kevin Drum here. I don't have much of anything to add to what others have said in this respect: It doesn't seem like a political liability to me . . . but what do I know about such things -- particularly the politics in specific states and districts that will be competitive come November?

What no one appears to be writing about, however, is how the Feingold Resolution might affect the institutional interests of Congress and, more generally, the proper checks and balances of the federal government. Of course, it is a sad fact that few politicians in this town (save perhaps for Bobby Byrd) give even a moment's consideration to such factors. But to the extent one thinks such things matter at all, the recent controversies are a fairly big deal: The President is asserting the power to ignore duly enacted statutes whenever they impinge on his judgment about how to best defeat the enemy. Not only that, but he also asserts the right to do so in secret, without meaningful congressional oversight, and without any public knowledge that the laws are being superseded. Indeed, as the Feingold Resolution points out, the Administration has taken great pains over several years to convince the Congress and the public that it is abiding by FISA (just as it publicly insists -- with fingers crossed behind its back -- that it does not condone torture and complies with all international obligations and statutory restricitons on interrogation). And in response to the President's assertions of Executive power, not only is the Republican-controlled Congress not asserting any institutional prerogatives (which might be expected in an era in which partisan considerations greatly outweigh institutional loyalties), but even the Democrats are acting as if this is merely another in a series of policy disputes, rather than a more fundamental, structural challenge to the balance of powers.

Make no mistake, however: The Vice President and others in the Executive branch are very serious about the long-term strategy of Executive aggrandizement -- and, except in the rare cases in which they are rebuffed by the Supreme Court (e.g., Rasul), they are largely succeeding at changing the baseline of the debate--and with very little pushback, at that. And if Cheney, et al. can so thoroughly prevail in this basic separation-of-powers struggle when the President is at a 33% approval rating -- with the Executive ending up significantly more empowered after Congress has responded than it was before its malfeasance came to light -- one shudders to contemplate the executive-imperialist implications if this President ever approaches Clinton-like approval ratings.

OK, but even assuming I'm correct that this is a serious test of the separation of powers, what would that mean for the Feingold Resolution? Frankly, I don't know. Even if all of the Democratic Senators got on board, Senator Feingold must know that a vote on the resolution would fail -- and that would leave things worse than they are now, because it would be perceived by many (including perhaps even some courts) as an implicit congressional rejection of the idea that the NSA program is unlawful (or, at the very least, an implicit congressional signal that the legal question is a difficult one). And, of course, there won't be uniform Democratic support, which would make the results of a vote even more troubling.

Either way, the Resolution would do nothing to stop the NSA program (or bring it into conformity with the law), or to check the Executive power-grab, and would likely only exacerbate the problem. Indeed, even if, by some miracle, the Resolution were to win a majority in the Senate, it still wouldn't accomplish anything, because Cheney and company would respond: "Thanks very much, but we respectfully disagree and will continue business as usual."

Thus, I'm afraid that from the perspective of the future of the balance of constitutional powers, the Feingold Resolution could not improve things any, and might, if defeated, actually set Congress back even further. On the other hand, the Resolution does keep the issue in the public eye, and, frankly, at some point those who are concerned about the President's aggrandizement must do something to assert constitutional principles. In the absence of any other possible congressional options for dealing with the problem, it might well be worth the practical risks.

So, ultimately, I'm fairly agnostic on the tactical wisdom of the Feingold Resolution. But whether or not that Resolution remains viable, I think the efforts of those concerned about the Executive's power-grab -- e.g., Senators Feingold and Specter, among others -- would do well to put their energies to work in support of the Schumer bill. It's not an either/or choice.
Posted 9:02 AM by Marty Lederman [link] (15) comments

The Hamdan Oral Argument

JB

I must begin by saying that, in my opinion, Neal Katyal gave an excellent performance. Paul Clement was very polished too, but he soon found himself buffeted about by some very skeptical Justices. The only person who came to his aid was Justice Scalia, who, if one is to believe his ex parte statements, had already prejudged the case before the oral argument even began.

The two most interesting features of the Hamdan oral argument were, first, that despite the Detainee Treatment Act of 2005, the Justices seemed to downplay the idea that they lacked jurisdiction to decide anything. Justice Souter in particular tried to throw cold water on the idea that Congress had suspended the writ of habeas corpus, even though that seems to be precisely what Congress had in mind in passing the Detainee Treatment Act. It sought to deny the extension of statutory habeas to noncitizens held outside the United States. What was quite unclear is whether the Justices were assuming that Eisentrager was no longer good law, or that to eliminate the statutory right of habeas the Court found in Rasul was tantamount to suspending the writ itself.

Second, aside from comments by Justice Scalia, the Justices who spoke seemed to assume that the President did indeed have to comply with Geneva Conventions. The reason, as I understand it, is that if that Congress has authorized military tribunals because such tribunals are consistent with the laws of war, then the Geneva Conventions are part of the laws of war, or, in the alternative, they are strong evidence of what the laws of war require. Hence, by the end of the oral argument it seemed that the Court was likely to hold (contrary to the D.C. Circuit decision) that the Geneva Conventions did matter, and it was irrelevant whether or not they were self-executing.

If the Geneva Conventions apply as part of the laws of war, and the September 18, 2001 Authorization for the Use of Military Force (AUMF) only permits the President to act according to the laws of war, then this places important limits what the President may do, unless the Court holds that the President has inherent authority that goes beyond the September 18, 2001 AUMF. My guess is that a majority of the Court will try to avoid saying anything about the latter question. Instead, the Justices seem to be doing what they did in Hamdi, namely, construing the scope of Congressional authorization as a limit on what the President can do without reaching the question of unilateral executive authority.

Put another way, in Hamdi (and apparently in this case as well) the Court construes an agreement between the President and Congress, and then defers to the agreement it has constructed. Since the Court interprets the AUMF as allowing the President to do what is consistent with the laws of war, that means that the military tribunals must be consistent with the laws of war and the President may only try individuals in such tribunals for violations of the laws of war.

One might well ask why a Republican-appointed Justice like Kennedy (or in Hamdi, Sandra Day O'Connor and William Rehnquist) would sign on so readily to significant limits on Presidential power. The answer is that maximizing presidential power in the War on Terror was not the reason why Reagan and Bush I chose their nominees. As a result these nominees have split on this issue, with only Thomas making the strongest arguments for presidential power in Hamdi (In this case, he may be joined by Scalia, although it is worth remembering that Scalia's opinion in Hamdi was not at all favorable to claims of executive power.). George W. Bush, by contrast, did hope to use his Supreme Court appointments to maximize executive power. Therefore we can expect that Justice Samuel Alito will support the Administration's position, as one suspects, would Chief Justice Roberts. Ironically, Roberts recused himself from this case precisely because shortly before being nominated, he had demonstrated his pro-executive views by joining the strongly pro-executive decision in the D.C. Circuit below.

The moral of the story is that when Justices are appointed by a previous President, they are often appointed for reasons that may have little to do with the constitutional issues that arise later on. This makes what they do in those later cases far less predictable.

Posted 8:45 PM by JB [link] (12) comments

Kris Testimony on NSA Surveillance and Possible Amendments to FISA

Marty Lederman

Several weeks ago, I blogged about a superlative statutory analysis of the NSA surveillance program written by David Kris, who had been the Associate Deputy Attorney General in charge of national security issues from 2000 to 2003. Kris is currently testifying before the Senate Judiciary Committee on the same issues. The first portion of his testimony recapitulates his analysis of the legality of the NSA program. Although I don't necessarily agree with all of the details of Kris’s testimony (in particular, certain aspects of his Article II analysis), his statutory analysis is indispensable. Kris concludes that "I do not believe the statutory law will bear the government's weight. It is very hard to read the AUMF as authorizing 'electronic surveillance' in light of the nearly simultaneous enactment of the Patriot Act. It is essentially impossible to read it as repealing FISA's exclusivity provision. And the AUMF suffers further in light of FISA's express wartime provisions. Even with the benefit of constitutional avoidance doctrine, I do not think that Congress can be said to have authorized the NSA surveillance."

Unfortunately, the Department of Justice did not have the benefit of Kris's analysis while he worked in the Department, because Kris was not "read into" the NSA program, despite the fact that he was one of the highest-ranking, most respected Department attorneys on matters relating to FISA and national security.

The second portion of Kris's testimony is perhaps equally important. It consists of a very elaborate proposal on how FISA might be amended to permit the Administration to intercept communications involving Al Qaeda agents in cases where such interceptions might now be foreclosed under the FISA standards, in a manner that could satisfy Fourth Amendment concerns. Kris's proposed substantive standards are not nearly as open-ended as those in Senator Specter's bill, which would permit indiscriminate surveillance of any U.S. person who has ever communicated with an agent of a foreign power (i.e., virtually everyone). Kris's proposal also improves on the Specter proposal in several other respects, and candidly identifies the possible constitutional obstacles that such legislation would raise, including a serious Article III question about whether a court can pre-approve a surveillance "program" writ large, rather than (as under FISA) evaluating interceptions on a case-by-case individualized basis. I don't have time over the next few days to blog further about Kris's draft proposal. I welcome others' comments on it in the interim.
Posted 12:32 PM by Marty Lederman [link] (3) comments

R.I.P. Lena Tobol

Mark Graber

My Aunt Lee was the last New Dealer. I was always fascinated by her stories of my grandfather, who I never knew, and of life in the New York of the New Deal, which I could only read about. One thing was very clear. At some point in the 1930s or early 1940s, the Democrats did something that made Aunt Lee and numerous other Americans of her generation lifelong loyalists. For the next sixty years, my aunt religiously voted for FDR or whatever Democrat happened to occupy FDR's rightful place on the ballot. Democrats were the source of everything good in the world. Republicans, particularly Ronald Reagan (my exotic aunt lived in California), were the source of all evil. The younger members of her family also vote for Democrats, but with much less passion. In truth, the Democrats have done nothing since the Great Society to merit the passion and loyalty my aunt demonstrated throughout her life. When thinking of a progressive revival, we ought to think about what drove my Aunt Lee, a poor child of immigrants, who despite poverty, illness, and social pressures against women, fought for an education, fought to educate her children, and fought for a decent life for her and her community.

Aunt Lee died last week after a long illness. She was an exceptionally kind and decent person, giving everything she had to her family, liberal causes, and the Jewish community. When 90 years old and suffering from very painful arthritis, she would nevertheless spend every Friday evening driving other senior citizens to temple for religious services and much needed companionship. One can only hope that as her divine reward, she will now spend eternity playing her beloved scrabble with the Roosevelts. Eleanor had better bone up on her two letter words!
Posted 8:05 AM by Mark Graber [link] (3) comments