Balkinization  

Saturday, May 27, 2006

So, What About the Merits?: Was the Search of Rep. Jefferson's Chambers Lawful?

Marty Lederman

I don't intend to answer the question here, only to provide some pointers for folks more interested in the nitty-gritty:

Rep. Jefferson's brief to the dstrict court can be found here.

Akhil Amar runs down most all of the possible arguments from originalist and structuralist perspectives here.

Bob Bauer explains here and here why he thinks there's more to the legal objections than meets the eye -- and further elaborates here on how our eyes should, in fact, be kept on "the big picture."

From what little I've read, the most serious constitutional argument appears to be that some of the materials in Rep. Jefferson's office are protected by the Speech or Debate Clause -- materials that DOJ purports not to be interested in searching; that such materials must be strictly segregated from those not so protected; and that the Administration's procedures for enforcing this separation were inadequate. (Those procedures are described in paragraphs 136-155, pages 74-82, of the affidavit in support of the government's application for the search warrant.) For a sense of the details of this argument, see Eugene Volokh's post (and some of the comments, esp. by "Medis") here.

For what it's worth, even if this argument is a valid one (and I haven't looked at the question closely enough to know whether it is), it hardly seems the stuff of high dudgeon or a constitutional shoot-out at the Rayburn Corral. Perhaps, if this were part of a concerted congressional effort to fight back against the tide of Executive aggrandizement, the outrage might be understandable. But Congress has been almost completely indifferent, for two years running now, with respect to very serious separation-of-powers challenges -- an Executive branch that has repeatedly asserted a constitutional power to ignore statutes regulating the conduct of war; that has kept virtually all of its dubious activities secret from the legislature and public; that has resisted any serious oversight; that has engaged in widespread surveillance of U.S. citizens without warrant or probable cause of wrongdoing (or that the U.S. persons are agents of al Qaeda); etc. And Congress has simply sat back and done nothing. If Denny Hastert, et al., had been fighting tooth and nail on torture, and oversight of Iraq, and the manipulation of intelligence, and the use of signing statements to signal noncompliance with scores of statutes, and violations by NSA of FISA and other statutes, etc., then perhaps this latest incident would rightly be seen as a straw that broke the camel's back. But as Jack has explained, Congress has instead allowed its own core constitutional powers -- such as the enactment of laws -- to be swept aside with impunity by an Administration with a strikingly aggressive view of Executive prerogatives. That legislators care much more about the sanctity of the contents of their offices than about the enforcement of the laws they have written is, perhaps, predictable, but nevertheless unfortunate. (Barney Frank to the same effect: "What we now have is a Congressional leadership, the Republican part of which has said it is okay for law enforcement to engage in warrantless searches of the average citizen, now objecting when a search, pursuant to a validly issued warrant, is conducted of a Member of Congress.")

For a significantly different take on it, however, see Bob Bauer's posts, linked above.

Why Did Bush Seal the Documents from the Jefferson Raid?

JB

Ostensibly Bush was worried that three of his advisors, including Attorney General Gonzales, would resign. But this is a White House known for its stringent demands of (and enforcement of) loyalty. The President might also have been worried that the House would demand that Gonzales resign, but calls for Bush cabinet officials to resign have hardly deterred this White House before (think Donald Rumsfeld).

A third, far more interesting reason-- also alluded to in Marty's previous post-- appears at the very end of this Washington Post story about the raid on Congressman Jefferson's office:

"If you tell the House to stick it where the sun don't shine, you're talking about a fundamentally corrosive relationship between two branches of government," the senior administration official said. "They could zero out funding; they could say, 'Okay, you can do subpoenas, so can we.' "

The one thing that this Administration fears more than anything is oversight.

Give Credit Where It's Due

Marty Lederman

Turns out it was none other than David Addington who was the official within the Executive branch questioning the legality of the search of Congressman Jefferson's office:
Vice President Cheney's chief of staff, David S. Addington, was among the leading White House critics of the FBI raid, telling officials at Justice and on Capitol Hill that he believed the search was questionable, several sources familiar with his views said. . . . Addington -- who had worked as a staffer in the House and whose boss, Cheney, once served as a congressman -- quickly emerged as a key internal critic of raiding the office of a sitting House member. He raised heated objections to the Justice Department's legal rationale for the search during a meeting Sunday with McNulty and others, according to several sources.
Perhaps this is simply the function of a very principled view of a very strict regime of separated powers, going in both directions.

Or perhaps Addington -- always on the lookout for threats to Executive prerogatives, no matter how speculative -- is looking ahead, contemplating the impact of this precedent if and when Congress starts subpoenaing documents from the Executive branch . . . .

In any event, just as the Jefferson search was the alarm bell that finally and belatedly awoke the Congress to the notion that perhaps it has some institutional prerogatives worth fighting for, Addington's campaign to return the documents to Rep. Jefferson apparently was the straw that broke another camel's back -- about this matter, high-ranking DOJ officials were willing to stand up to Addington: Reportedly the Attorney General, Deputy Attorney General and Director of the FBI all threatened to resign if Addington prevailed.

Thursday, May 25, 2006

A corrupt Congress is shocked to discover a lawless Executive

JB

I've noticed several attempts in the news to connect the FBI's raid on Congressman Jefferson's office with the Bush Administration's heavy handed assertion of executive authority.

I think this is a distraction. There is no constitutional or legal bar to the search that I am aware of. The Speech and Debate Clause does not prohibit it. Although as a matter of tradition and comity, the Executive should avoid invading the offices of Congressmen and Senators whenever possible, in this case the warrant authorizing the search came only after Congressman Jefferson refused to obey a subpoena for documents. The Speech and Debate clause, and indeed, the principles of respect and comity between the branches should not be employed to insulate government officials from liability for acts of illegality and corruption.

And that is the real issue: Illegality and corruption, both by members of the Executive branch *and* by members of Congress.

The Bush Administration has, over the past six years, detained American citizens without any of the protections of the Bill of Rights, engaged in cruel, inhuman and degrading treatment of detainees, imposed new forms of secrecy to insulate itself from oversight both by the Press and by Congress, used the state secrets privilege to shut down any investigation into its mistreatment of detainees, hid and prevaricated about the evidence justifying, the reasons for, and the cost of Iraqi war, and begun a massive spying program on American citizens. Throughout all of these events, the United States Congress has been essentially supine, unable or unwilling to lift a finger to oppose an executive branch that was simultaneously incompetent, arrogant and out of control. And now, when the FBI catches redhanded a Congressman engaged in the most egregious act of corruption, *now* members of Congress are upset that the Executive is asserting too much authority.

They have their nerve.

Quite frankly, I find the bipartisan closing of ranks over this issue disgusting. If Congressmen are interested in Executive overreaching, they should start demanding that the President justify his NSA program; instead they doing everything they can to paper over its illegalities. They should hold hearings on how the Executive misused and manipulated intelligence reports, hearings that have repeatedly been promised and have repeatedly been postponed. They should hold hearings on the Administrations's policies of no-bid contracts in Iraq and elsewhere, and the many reports of corruption, incompetence, and war profiteering by these very same contractors who didn't have to engage in competition or oversight. They should investigate the President's decisions about torture, about rendition, about detention policies, about, well, you name it-- all the incompetent and corrupt activities of this most incompetent and corrupt Administration.

Instead of being upset about the President spying on Americans without a warrant, and in violation of federal law, the members of the U.S. Congress are upset about the FBI searching a Congressman's office with a legal warrant. Instead of being upset about the cruel, inhuman and degrading tactics of the CIA and military interrogators, members of the U.S. Congress are upset that a corrupt Congressman's office has been disturbed. Instead of being upset about abuses of government contracting and incompetence that have cost the tax payers countless sums of money and sapped resources from our troops overseas, members of Congress are busy protecting corruption in the halls of Congress itself.

Make no mistake: the real reason why Congress is so concerned about the raid on Jefferson's office is that many of them know that corruption within Congress is rampant. If the FBI and the Justice Department can start getting serious about investigating corruption in Congress, many of their colleagues (and possibly they themselves) could be next. Is it any accident, do you think, that instead of trumpeting corruption by a Democratic Congressman, Speaker Hastert-- who himself is rumored to be under investigation in the Abramoff affair-- is objecting loudly to the search of Jefferson's office?

The American Constitution is premised on the idea that any Executive overreaching that might take us on the path to tyranny and dictatorship would be met with Congressional objection and Congressional oversight. For six years we have been subjected to an arrogant, self-righteous, and incompetent Administration, which has grabbed for power and avoided accountability in every way it could, chipping away at Americans' proud traditions of freedom, harming our country's interests around the world and undermining the deliberative processes that produce sound policy and good governance. It is an Administration blinded by smug self-righteousness, devoted not to the development of competent and sound policies for the governance of our country, but to the concentration and perpetuation of its own power. But at the moment that we need the Congress most, it is feckless, corrupt, and venal, offering no resistance to mounting evidence of this Administration's illegality and incompetence. If Congress now finds that Executive power is encroaching a bit too close for comfort, it is poetic justice, for this Congress has thoroughly abdicated its constitutional responsibilities to protect the American people from Executive overreaching.


Monday, May 22, 2006

The Unfortunate Transparency of Law: Why They (Allegedly) Could Not Simply Amend FISA

Marty Lederman

So, why aren't the Senate Democrats making more of a fuss about the fact that the Attorney General and Michael Hayden determined to ignore FISA on the theory that the President has the constitutional power to violate such statutes? If Hayden's testimony is any indication, there appear to be two reasons:

First, it appears that Democrats such as Nancy Pelosi, Jane Harman, and Bob Graham were repeatedly briefed on the program. The Democrats have not yet come up with an adequate explanation of why their leaders did not object -- not even in private, to the Administration -- that the program violated FISA and was therefore unacceptable absent further statutory authorization. It could be that the program was described in such a way that it was not clear to the members of Congress that it did violate FISA. Or perhaps the Democratic leadership had no real opportunity to object. But if the Administration told the Democratic leadership that this program was not in compliance with FISA -- and that the authorization for the program derived from the authority of the Commander-in-Chief to ignore statutory constraints -- then it could be argued that the Democratic leadership would be complicit in the campaign to secretly circumvent FISA. If that's so, then it's predictable that the Democrats would now be reluctant to raise a fuss about the issue. They need a story that will explain the conduct of their own leaders -- and they might not yet have one (not a story that can be told in public, anyway).

Second, if Hayden is to be believed, the members of Congress who were briefed agreed with the Administration that: (i) The program was useful but in violation of FISA; (ii) The best way to deal with the program of FISA's obsolescence was to amend FISA to accommodate the program; but (iii) To amend FISA in such a way would risk public revelation of NSA methods that had to remain secret:
SEN. ROBERTS: [A]s you go down the list of people who were briefed -- and I'm just going to mention a few here: Ted Stevens, Dennis Hastert, Nancy Pelosi, Bob Graham, Dick Shelby, Jay Rockefeller, John Murtha, Harry Reid -- these are not shrinking violets. These are pretty independent people. And they say what is on their mind. So my question to you is: Basically, when you were doing the briefings, did anybody . . . express real opposition to this program?

HAYDEN: Sir, again, I don't want to get into private conversations, but the generalized questions asked and answered, concerns raised and addressed -- and I can tell you, in my heart of hearts, Senator, I never left those sessions thinking I had to change anything.

ROBERTS: Well, did anybody say, at any particular time that the program ought to be terminated?

HAYDEN: No, sir.

ROBERTS: That it was illegal?

HAYDEN: No, sir.

ROBERTS: There was, as I recall, a conversation unto the necessity of, perhaps, to fix FISA -- if that's not an oxymoron -- to improve FISA, to reform FISA. And that is an ongoing discussion in this committee and in the Judiciary Committee. And my memory is that it was members of Congress who gave you advice not to do that. Is that correct?

HAYDEN: Sir, that was in the large group in March of 2004. And there were discussions. FISA was considered to be one of the ways ahead. And my memory of the conversation is that there were concerns, I would say, almost universally raised, that it would be very difficult to do that and maintain the secrecy which was one of the advantages of the program.
* * * *
SEN. MIKULSKI: [I]n the five years that we've known each other and have talked about privacy versus security and the inhering tension, why didn't you come and ask for reform, either to any member of the committee or the committee and say, this, stabbing from what you've said -- and I don't want to put words in your mouth -- but FISA, in some ways, is dated. It's klutzy; it has choke points; technology has changed; the threat has changed.

Why didn't we get a request for reform?

HAYDEN: There were clear concerns [at DOJ], in which frankly, I shared, that attempts to change FISA would reveal important aspects of the program, eliminating key secrets that enabled us to do the kinds of things we were doing to an enemy whom I'm certain felt that this space was a safe haven for him. . . . And finally, in that March 2004 meeting that the chairman and Senator Hatch had mentioned where we had the senior leadership of the Congress there in addition to the leadership of the two intelligence committees, there was discussion about changes to FISA. And without getting into the details of the conversations, ma'am, there was a powerful and general consensus that an attempt to change the legislation would lead to revelations about the nature of the program, and thereby hurt its operational effectiveness.
Assuming that this account is accurate (and I have no way of knowing whether it is), it would raise two important questions.

First, Can it really be the case that any necessary amendment to FISA would reveal NSA secrets that would, in turn, cause Al Qaeda to act differently, thereby undermining NSA's efforts? That sure doesn't seem to be plausible.

For example: From all we can tell, the NSA program involves surveillance of persons ("targets," in FISA parlance) here in the United States, based upon a judgment of NSA experts that their calling patterns reveal that such targets might be conversing with Al Qaeda members (or with agents of undefined "affiliated organizations"). Under FISA, those patterns likely do not establish probable cause that the targeted U.S. persons are agents of a foreign power, nor that the targets' phones are used by agents of a foreign power. And without those two showings, the FISA Court could not approve the surveillance -- it would be unlawful.

If that's the case, why couldn't FISA be amended, for example, along the lines proposed by former DOJ FISA expert David Kris? Under one variant of Kris's proposal -- which is based on the very standards that NSA is said to have been using -- the FISA Court would be required to grant approval upon probable cause that the communications to be intercepted involve at least one party who is a member or agent of Al Qaeda or an affiliated terrorist organization. Or, if for some reason probable cause is too high a standard, then the statute could merely require a reasonable basis to believe that the communications to be intercepted involve at least one party who is a member or agent of Al Qaeda or an affiliated terrorist organization. If that formulation doesn't quite cover what NSA wishes to do, surely there are other possibilities, as well.

Why would such a statutory amendment -- any more than the numerous other amedments to FISA over the years, including in the PATRIOT Act -- reveal state secrets in a way that would undermine NSA's SIGINT capabilities? The statute need not describe the methods by which NSA develops its evidence, nor the computer algorithms that provide the reason to believe that conversations with Al Qaeda are afoot. For many, many decades, agencies such as the CIA and NSA have engaged in extensive classified conduct, pursuant to general statutory authorizations, without any suggestion that the existence of the law itself reveals too much about sources and methods: It has not been necessary for such agencies to act outside the law.

In his testimony, Hayden suggested that the NSA is working in a "space" that Al Qaeda believes is "a safe haven" -- presumably beyond the reach of the law -- and that an amendment to FISA would tip off Al Qaeda that the haven is no longer so safe. But even assuming arguendo what we have no reason to assume -- namely, that Al Qaeda knows the ins and outs of FISA's complex statutory scheme -- why would terrorists have any reason to believe that they currently have a "safe haven" for their international phone calls? After all, the NSA can currently lawfully intercept those very same calls if the interception takes place overseas -- indeed, FISA does not even apply to such surveillance. Why, then, would an amendment such as Kris's proposal or something similar appreciably alter Al Qaeda's calling patterns?

Second, and more fundamentally, let's assume that Hayden, and the members of Congress who have been briefed, are correct that an amendment to FISA would itself reveal too much about the NSA's capabilities, to a point where terrorists would actually take steps to make their communications less susceptible to surveillance. OK, but what should happen then? Indeed, further assume what appears to be the case here: that the very reason a statutory amendment would be detrimental is that it benefits our intelligence operations to have the enemy believe that what our intelligence agencies are doing is unlawful. (This same scenario is playing itself out in the context of torture and other coercive interrogation techniques. The Administration goes around the world trumpeting that it does not torture, that it treats all detainees humanely, and that it does not engage in cruel, inhuman and degrading treatment. But if we actually abided by all of those norms, Al Qaeda would know that there are certain limits to our interrogation methods -- and such interrogations are far less effective if the detainee knows that the interrogator has legal limits. Therefore, we secretly adopt very counterintuitive notions of "torture" and "humane" treatment -- which permits us to use techniques such as waterboarding and hypothermia against surprised Al Qaeda suspects who (understandably) assume that such horrific techniques are legally proscribed. More importantly, we refuse to publicly discuss whether such techniques are off-limits. We may insist in our every utterance that we do not torture, but in the very next breath we also insist that to publicly explain what we mean by "torture" would be to give away critical state secrets.)

In other words, assume what might well be the case: that the Administration (and possibly some in Congress) did not wish to amend FISA to make the NSA program lawful because there is a genuine and distinct tactical advantage in having our enemies think that we are abiding by the rule of law declared in the U.S. Code, when in fact we are not doing so.

So here's the question: Is it acceptable in a liberal democracy for a nation's positive law to announce to the world that Conduct X is unlawful, but for the government to secretly engage in such conduct nonetheless? Assume you are a member of Congress who agrees that the NSA program is valuable, agrees that it is currently proscribed by FISA, and agrees that any amendment to FISA would give away the store. What should you do? (This is not a rhetorical question. Although I'm certainly inclined to say that this is one of the costs of the rule of law, I genuinely think it's a difficult question, and one that needs thoughtful responses because, justifiably or not, it appears to be arising more frequently these days.)

Price Gouging is Not a Disparate Impact Defense

Ian Ayres

In certain markets, disparate impact law prohibits policies that disproportionately burden protected groups -- unless those policies have a sufficient business justification.

Some people -- including some judges like Richard Posner -- have suggested that any policy which increases a firm's profits should satisfy the business justification requirement.

But in an article that has just been accepted by the California Law Review, I argue that policies which enhance profits by exploiting market power should not constitute a business justification.

Price gouging is not business justified -- even if greatly enhances a firms profits.

The article applies this idea to employment, but it grows out of work that I did as an expertwitness on a series of auto financing cases. The article discusses these cases and the arguments of three opposing experts: Richard Epstein, James Heckman and George Priest.

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