New York Times Editorial Page Gets It, Too (Mostly)

Marty Lederman

The feverish reports of presidential capitulation and compromise from earlier in the week are slowly giving way, on careful inspection, to the realizaation that, as the New York Times puts it in an editorial tomorrow, "the president has made it clear that he is not giving an inch of ground," notwithstanding the landmark decision in Hamdan.

The Times editorial is not limited to NSA wiretapping -- its larger subject is the Executive's aggrandizement of power and disdain for the system of checks and balances:

Over and over again, the same pattern emerges: Given a choice between following the rules or carving out some unprecedented executive power, the White House always shrugged off the legal constraints. Even when the only challenge was to get required approval from an ever-cooperative Congress, the president and his staff preferred to go it alone. While no one questions the determination of the White House to fight terrorism, the methods this administration has used to do it have been shaped by another, perverse determination: never to consult, never to ask and always to fight against any constraint on the executive branch. One result has been a frayed democratic fabric in a country founded on a constitutional system of checks and balances. Another has been a less effective war on terror.

On the Specter bill, the Times writes: "Senator Arlen Specter, chairman of the Senate Judiciary Committee, announced on Thursday that he had obtained a concession from Mr. Bush on how to handle this problem. Once again, the early perception that the president was going to bend to the rules turned out to be premature."

One fairly small caveat to an otherwise fine editorial: The Times writes that "while the [Specter] bill would establish new rules that Mr. Bush could voluntarily follow, it strips the federal courts of the right to hear legal challenges to the president’s wiretapping authority. The Supreme Court made it clear in the Guantánamo Bay case that this sort of meddling is unconstitutional."

Neither of those statements is accurate.

1. The Specter bill would not quite strip the federal courts of the power to hear challenges to the Executive's electronic surveillance. It would, however, allow the Attotney General to funnel all such suits into the FISA court system, where the courts (which do consist of federal judges, hand-picked by the Chief Justice) could dismiss them "for any reason." That's bad, but it's not quite federal-court-stripping.

2. The Supreme Court did not make clear that this sort of re-arranging of a series of federal court cases is unconstitutional. It didn't even hold that court-stripping would be unconstitutional (or that it would be constitutional, for that matter).

Indeed, the Court in Hamdan really did not issue any constitutional rulings at all, if one doesn't count the very strong and deliberate signal in footnote 23, and in the Kennedy concurrence, that the statutory constraints on the military commissions do not unconstitutionally impinge on the President's Article II powers. With that one small but significant quasi-exception, the conventional wisdom that Hamdan was a constitutional case is pretty much wrong: Hamdan certainly was momentous, as I argue here; nevertheless, it was almost entirely a case about interpretation of statutes (the DTA, the AUMF, and the UCMJ), and a treaty provision (Common Article 3). There may very well be some constitutional limits on what Congress and the President can now do to respond to the Hamdan decision in several dimensions (such as detention, interrogation, trials, surveillance, treaty-interpretation, court jurisdiction, etc.). But the Hamdan decision itself imposes virtually no constitutional constraints on the political branches.
Posted 9:45 PM by Marty Lederman [link] (0) comments

A Tale of Two Washington Posts

Marty Lederman

Finally.

The Washington Post editorial page (which, as I understand it, is entirely distinct from its news desks), today publishes a powerful and well-written editorial that should resonate with readers of this and other blogs, but that will make Post readers wonder if they have in their hands the same paper that they were reading on Friday. It's entitled "Wiretap Surrender," and the Post means legislative, not executive, surrender: "This bill is not a compromise but a full-fledged capitulation on the part of the legislative branch to executive claims of power."

But then . . . talk about schizophrenia.

Like clockwork, the national desk somehow manages to get the story 180 degrees backward for the second day running:

As an example of how, "after six years of White House dominance on the policies governing the war on terrorism, senators are suddenly feeling confident that they are gaining at least a say in such matters," the Post points to the Specter "deal":

"On Thursday, Specter won a promise from the White House that Bush would back his legislation placing the administration's warrantless domestic telephone and e-mail surveillance program under a secret court review process. Specter could move that legislation through his committee as early as Thursday.

'I don't want to talk about it in terms of [White House] concessions, because that suggests winners and losers,' Specter said yesterday. 'It's a big gain for constitutional government and a big gain for the country.'"

Senator Specter: You might want to avoid talking about it in terms of White House concessions because there weren't any. The legislation does not place the NSA program "under a secret court review process." It removes the program from the "process" it's currently in -- you know, litigation in federal court, where the courts will almost certainly declare the program lawless if they reach the merits -- and gives the President the option of seeking FISA court rubberstamping under a system in which all substantive restrictions are eliminated and the FISA court decision has no legal effect.

Not that I want to suggest any winners and losers, or anything.
Posted 6:55 AM by Marty Lederman [link] (6) comments

Has the Onion Infiltrated the Offices of Time Magazine?

Marty Lederman

This Time Magazine story about the Specter/Administration negotiations basically concedes that the Specter bill gives the President unlimited authority -- indeed, authority even greater than that he enjoyed in the mid-1970's, before FISA was enacted. (Why greater powers than pre-1978? Because under the Specter bill, the constitutional challenges that were common then, and that at least imposed modest limits on such wiretapping, could be transferred to the FISA court, with secret proceedings, strict confidentiality rules, and the power to dismiss such claims "for any reason.")

The story correctly states that the bill "limits presidential power in only narrow, almost symbolic ways [mainly, a requirement of "twice yearly" reports to the Intel Committees, which might not be any more onerous than the present requirements] — which is surely why Bush signed on for it." The article is even entitled "Why the Eavesdropping Deal May Have More Bark Than Bite."

But then it can't help adding the nonsensical subhead "The wiretapping deal is just the latest sign of how the White House is losing ground in the fight over wartime powers." And the lede?:

It was as much a sign of White House desperation as anything. In the final, face-to-face negotiations between President Bush and Pennsylvania Republican Senator Arlen Specter on Tuesday for oversight of Bush's controversial domestic eavesdropping program, the President made one final attempt to retain near-absolute wartime powers. The White House had argued throughout the months of staff-level negotiations that Bush needed explicit acknowledgement of his wartime powers in the Specter bill at the heart of the deal. Once again, Specter rejected it, as his staff had from the start — and Bush capitulated.

Hello? He didn't get "explicit acknowledgement" of his wartime powers. Instead, he got:

Repeal of the FISA provision limiting his wartime powers.

Repeal of the all-important FISA provision making the statute the "exclusive means" of electronic surveillance.

Re-insertion of a provision giving him constitutional authority to ignore any statutory limits.

Elimination of any substantive statutory restrictions.

A voluntary and powerless FISA court review.

Effective elimination of all private suits challenging the electronic surveillance.

Etc.

Does that sound to you like "just the latest sign of how the ground is slipping out from under the White House"?

(See here for more on the Time story.)
Posted 6:32 AM by Marty Lederman [link] (1) comments

Two More Hamdan Myths

Marty Lederman

I've written previously of various myths cropping up about the Hamdan decision, particularly as it relates to questions about treatment of detainees.

For those who are interested, I've written another post addressing two more myths that are becoming increasingly prominent:

1. That the Court in Hamdan allowed international law to trump domestic law.

and

2. That the dissenting Justices in Hamdan agreed with the notion, so prominent in the Bush Administration Executive power debates, that Congress cannot limit the manner in which the Commander-in-Chief deals with the enemy.
Posted 6:10 AM by Marty Lederman [link] (0) comments

Representative Harman on the Specter Bill

Guest Blogger

Congresswoman Jane Harman

Senator Arlen Specter is a careful lawyer who has been one of the few Republicans willing to take on the President when he sees an executive branch power-grab.

That's why I was so disappointed to read his legislation on the NSA program. Not only does it fail to force the President to comply with the law, but it actually authorizes the President to make an end-run around FISA and gives him a blank check to conduct warrantless spying on Americans.

The Bush Administration has refused to brief Senator Specter on the details of the NSA program. As a result, he's legislating in the dark.

Had he been briefed -- as I have been -- he would understand that the surveillance the President wants to conduct can be done completely under the current FISA system. If the President needs more resources -- staff, computers, etc. -- to process warrants more efficiently, Congress should provide those resources.

The Specter bill contains two provisions which, in effect, repeal FISA outright.

The first provision says that the FISA Court can issue an order authorizing the President to conduct a surveillance program targeting communications with terror suspects. This provision would repeal the requirement under FISA that the government get individualized warrants each time the government wants to listen to Americans' conversations or read their emails.

The Fourth Amendment states: "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The key words here are "particularly describing." The hallmark of the Fourth Amendment is particularized suspicion -- the notion that the government can't just go on a fishing expedition. There must be some clear reason to believe that the target of the search is doing something to warrant the surveillance. A general search warrant is unconstitutional. See Stanford v. Texas, 379 U.S. 476 (1965).

As if that's not enough, the Specter bill also contains the following startling provision: "Nothing in this Act shall be construed to limit the constitutional authority of the President to collect intelligence with respect to foreign powers and agents of foreign powers." This provision endorses the Cheney-Addington vision of Executive Power -- that they have "all the authority they need" under Article II.

There are some positive aspects to the bill. As a conceptual matter, I agree that inviting a Court to review the President's actions is better than no Court review at all.

Also, section 10 of the bill contains some thoughtful revisions to the definition of "electronic surveillance."

But the Supreme Court, in both Hamdan and Hamdi, made clear that the President cannot have a "blank check," even in war-time.

A far better approach is the legislation Rep. John Conyers and I have drafted. The Lawful Intelligence and Surveillance of Terrorists in an Emergency by the NSA ('LISTEN') Act (H.R. 5371) would require the program to comply with FISA and would provide the resources needed to do just that. The bill has 58 co-sponsors and has been endorsed by the American Bar Association, the ACLU, the Center for Democracy Technology (CDT), former Reagan Justice lawyer Bruce Fein, and the Open Society Policy Center.

Next Wednesday, the House Intelligence Committee is holding a public hearing on various legislative proposals on the NSA program. I suspect that as the public absorbs the discussion, Senator Specter's bill will be dismissed as a non-starter.
Posted 2:23 PM by Guest Blogger [link] (9) comments

The NSA, FISA and Hamdan: Response to DOJ from Scholars and Former Officials

Marty Lederman

I'm honored to be part of a diverse group of constitutional scholars and former government officials who have joined together to write a series of letters to congressional officials in which we argue that the recently disclosed NSA domestic eavesdropping program is unlawful. Our first two letters, sent earlier this year, were responsive to two memoranda issued by the Department of Justice. Those four documents, along with an introduction that David Cole and I wrote, are collected in a recent issue of the Indiana Law Journal, see 81 Ind. L.J. 1355 (2006)¸ which the American Constitution Society has helpfully republished online. (See also this post.)

As I noted a few days ago, last Friday DOJ wrote a letter to Senator Schumer in which it asserts that the Court's decision in Hamdan "does not affect our analysis of the Terrorist Surveillance Program."

In a letter we sent to the Hill this morning, we respond to that DOJ letter, and argue that "not only does Hamdan 'affect' the analysis, it significantly weakens the Administration's legal footing. The Court in Hamdan addressed arguments regarding the military commissions that are very similar (in some respects identical) to the DOJ’s arguments regarding NSA spying, and the Court’s reasoning strongly supports the conclusion that the President's NSA surveillance program is illegal."

(NOTE: One of our co-signatories on the earlier letters, Professor Walter Dellinger, did not sign or participate in the drafting of this most recent letter for reasons unrelated to the substance of the letter.)
Posted 12:38 PM by Marty Lederman [link] (1) comments

Orin Kerr on the FISA Bill

JB

Orin Kerr agrees with my previous argument that section 801 (which is part of section 9 in the draft version) is the most problematic part of the new FISA bill, and essentially capitulates to the Article II on steroids theory:

On my first read, at least, it seems like this Section 9 is most important part of the Specter bill. Maybe I'm missing something, but my sense is that it largely tracks the David Addington/John Yoo approach to Article II; that is, it would have Congress back away from the claims to authority that Congress made in 1978 that the Administration has suggested it belileves are unconstitutional because it infringes on the Commander-in-Chief power.

Congress can certainly do this, of course: Congress passed FISA, and it can repeal or water it down as well. And of course different people will have diffferent views on whether this is a good idea. But it does seem like this is a major shift in approach, and one that is probably more important in the long run than whether the NSA domestic surveillance progam is submitted to the FISA court for review.

Posted 12:02 PM by JB [link] (0) comments

New Report Shows Links Between Public Opinion and Free Speech Protections

JB

Today the Information Society at Yale Law School published a white paper with appendices authored by Yale ISP Fellow Marvin Ammori. The study canvassas 50 years of social science research and concludes that although courts are traditionally believed to be a check on majorities, judicial protections for First Amendment rights depend in the long run on public support for freedom of speech and the press. As a result the white paper proposes a series of educational initiatives to help the public better understand how freedom of speech and freedom of the press safeguard democratic self-government. Research for the white paper was sponsored by a grant from the John S. and James L. Knight Foundation, which issued a statement announcing the white paper's findings today:

Over time public support for free speech helps buttress — or undermine — existing legal protections. Public support for free speech tends to be strongest for speech that clearly promotes an informed citizenry and democratic self-governance. However, the public tends to have less tolerance for offensive speech and speech that it regards as extremist, particularly when it fails to see a connection to democracy.

The public is also much less protective of media rights than individual rights. That makes it less likely that the high court will rule for news organizations in First Amendment cases than it would in an environment of high public respect for the news media.

The study points to a wide range of mechanisms by which public opinion affects judicial decisions, ranging from the appointments process — which shifts the median or “swing” Justice on the Supreme Court — to the fact that judges and Justices live in the same culture as everyone else. These effects may often be indirect, but over time they may matter a great deal.

“We are now engaged in a really vital debate over civil liberties after 9/11, and it becomes ever more important for the public to show its support for our basic freedoms,” said [ISP Director Jack M.] Balkin, “It’s a time of challenge but also a time of opportunity. Courts can’t do everything by themselves, nor should we expect them to. If the public rises to the occasion and supports freedom of speech when it is threatened, the judiciary will be far more likely to protect this core freedom.”

What is needed, the study says, are larger efforts to educate the public about the First Amendment. It proposes a model for educating students and the public on First Amendment issues, focusing on how free speech and a free press advance democracy and serve the public interest. The model education program should also educate the public about the difference between using social norms and social disapproval to regulate speech, and using the power of the state in the form of fines and criminal penalties.

The best way to learn about freedom of speech, the study argues, is by doing. Individuals are more likely to support the sort of speech in which they themselves engage or could imagine engaging. Thus the study suggests that schools create programs that allow students to practice journalism and political expression, using new technologies such as blogs and podcasts.

Even marginal improvements in public education may have important long term effects on public support for the First Amendment, the study concludes. Research suggests that the better educated individuals are, the more tolerant they are of even offensive and indecent speech, and the more willing they are to protect routine journalistic practices.

Posted 10:46 AM by JB [link] (0) comments

Breaking and Entering Under the Specter Bill

JB

In addition to Marty's and my posts on why the proposed FISA bill gives the President a blank check to engage in warrantless electronic surveillance, it appears that the Specter bill also gives the President a blank check to engage in warrantless physical searches-- i.e. breaking and entering-- as long as he claims that he is engaged in foreign intelligence surveillance. 18 U.S.C. 1827 currently makes it a crime to "execute a physical search within the United States [for the purpose of obtaining foreign intelligence information] except as authorized by statute." That is, under the current rules, if the President wants to break into someone's house to look for evidence of spying, he has to comply with FISA first. Specter's bill amends this provision to read "except as authorized by statute or the Constitution." In other words, physical searches are not illegal if the President breaks into your house asserting his Article II powers as Commander-in-Chief. None of FISA's oversight procedures apply.

So when you hear that sound of broken glass in the night, don't be alarmed. It's not a burglar. It's not a thief. It's just some agents from the government, and they're here to help.

Posted 12:46 AM by JB [link] (5) comments

Specter Gives Up the Game-- The Sham NSA Bill

JB

Senator Specter has reached agreement with the White House on a bill that would amend FISA and allow judicial review of the Administration's domestic surveillance activities on a program by program basis. The text of the bill is here and a summary is here

Although the judicial review provision is worrisome, it is by no means the most troubling thing about this bill. Specter's proposed legislation, if passed in its present form, would give President Bush everything he wants. And then some. At first glance, Specter's bill looks like a moderate and wise compromise that expands the President's authority to engage in electronic surveillance under a variety of Congressional and judicial oversight procedures. But read more closely, it actually turns out to be a virtual blank check to the Executive, because under section 801 of the bill the President can route around every single one of them. Thus, all of the elegant machinery of the bill's oversight provisions is, I regret to report, a complete and total sham. Once the President obtains the powers listed in section 801, the rest of the bill is pretty much irrelevant. He will be free of Congressional oversight forever.

But first, the details: The bill authorizes the FISA court to permit "electronic surveillance programs"-- the key point being that these involve domestic surveillance of U.S. citizens-- for periods up to 90 days, periods which are indefinitely renewable. Authorization is on a program by program basis, rather than on the basis of the particular individuals who are being watched. All legal challenges to the surveillance program-- including challenges to the use of evidence in other prosecutions or litigation-- can be moved to the secret FISA court if the Attorney General states that national security demands it. The FISA court, in turn, has the power to dismiss a challenge to the legality of the program "for any reason." This provision seems puzzling: literally it says that the court can dismiss legal challenges to programs for any reason, whether good or bad, and even if the objections to the programs are well founded. In fact, the provision makes sense only if its purpose is to allow the FISA court to immunize Presidential surveillance from legal attack.

To obtain permission for an electronic surveillance program the Attorney General must declare in an affidavit that the program cannot be performed under existing FISA procedures and that the communications intercepted are communications of or with "(A) a foreign power that is engaged in international terrorism activities or in preparation therefore; (B) an agent of a foreign power that is engaged in international terrorism activities or in preparation therefore; or (C) a person reasonably believed to have communication with or be associated with a foreign power that is engaged in international terrorism activities or in preparation therefore or an agent of a foreign power that is engaged in international terrorism activities or in preparation therefore."

Note that under this test a U.S. citizen can be wiretapped even if he is not involved in terrorism as long as at some point he has been in communication with someone involved in terrorism, even if he or she does not know that the person was involved in these activities. Thus the Specter bill clearly allows electronic eavesdropping of citizens whom the Administration does not suspect of terrorism. And under the bill's terms, this surveillance is not limited only to conversations with persons whom the Administration does suspect of terrorism. As the bill is currently written, once a person has been "in communication with" a suspected agent of terrorism-- even for the most innocent reasons-- he or she is marked as a lawful target of surveillance. In order to prevent the obvious possibilities for abuse, the statute also requires that the Attorney General offer and implement what are called "minimization procedures." (These procedures are outlined in FISA at 18 U.S.C. section 1801(h)).

But that's not all. The new Bill amends section 102 of FISA to allow the President to engage in electronic surveillance without seeking a court order for up to a year as long the Attorney General is willing to state that all he is doing is intercepting communications by foreign powers or their agents. This changes the old FISA provision section 1811 that allowed warrantless surveillance for up to 15 days after a declaration of war. No declaration of war is necessary now, and the program can continue for a year instead of 15 days.

What is interesting-- and puzzling-- about these two provisions is that even though they are quite broad, they do not seem to be adequate to justify the existing NSA program, at least as it has been reported in the press. That program appears to have involved intercepting a wide swath of electronic communications, some with no overt connections to terrorism, which were then whittled down through analysis and data mining to produce a series of leads for future surveillance. What is mystifying about this bill, in short, is that even if it were passed, the NSA would immediately have to go beyond the authority it grants.

And that curious fact leads us directly to section 801, which, it turns out, is actually the most important part of the bill; the rest is mere camouflage. Section 801 offers nothing less than Congressional imprimatur for the President to go outside of FISA whenever he likes. For section 801 states that "Nothing in this Act shall be construed to limit the constitutional authority of the President to collect intelligence with respect to foreign powers and agents of foreign powers." This restores the very language that was repealed when FISA was created to constrain and channel the President's powers. And if you look closely at the bill's proposed additions to section 109 of FISA, you will see that FISA would now prohibit electronic surveillance except as authorized by statute "or under the Constitution." Similarly, 18 U.S.C. 2511(2)(e) used to say that FISA was the exclusive means by which electronic surveillance was legally authorized. The Specter bill changes that to read that electronic surveillance is authorized "under the constitutional authority of the executive or the Foreign Intelligence Surveillance Act of 1978." Get the idea? The President can always do an end run around any procedures that FISA offers as long as he claims inherent authority under Article II. If Specter's bill passes, all of FISA's limitations and procedural safeguards won't be worth the paper they are written on. Specter will have written the Administration's Article II on steroids theory into law!

In short, if this bill is passed in its present form, it would seem to give the Executive everything it could possibly dream of-- a lax method of oversight and the possibility of ignoring that oversight whenever the President chooses. The NSA can (1) engage in ongoing electronic surveillance within FISA with indefinite 90 day renewals, (2) engage in electronic surveillance without even seeking a court order for a year, and finally (3) under section 801, engage in electronic surveillance outside of FISA under the President's constitutional authority to collect foreign intelligence surveillance.

Barely two weeks after Hamdan, which appeared to be the most important separation of powers decision in our generation, the Executive is about to get back everything it lost in that decision, and more. In Hamdan, the Supreme Court gave the ball to Congress, hoping for a bit of oversight, and Senator Specter has just punted.

Posted 12:07 AM by JB [link] (13) comments

The Specter Monstrosity

Marty Lederman

After the Hamdan decision, the Administration's legal defense of the NSA non-FISA-compliant domestic surveillance program is much weaker than ever -- and that's saying something.

And Senator Specter has been a vocal critic of the Administration on this issue, reaching his apex of pique when the Vice President snubbed him by trying to influence the Judiciary Committee without telling Specter -- even though at a Republican caucus Specter had "walked directly in front of [Cheney] on at least two occasions enroute from the buffet to my table."

So what does Specter do in the wake of the momentous Hamdan decision, which put all the cards in Congress's hands? He introduces a bill, with Administration blessing, that gives the Administration everything it ever wanted, and much, much more. Indeed, come to think of it, the Specter bill is basically the sort of legislation one would expect if the Supreme Court had just held that Congress is powerless to enact legislation constraining the President's "inherent" war powers -- something that not a single Justice in Hamdan so much as suggested.

[NOTE to Washington Post: When the President takes a legislator to the cleaners, the proper headline is NOT "Bush Compromises On Spying Program." That's as if a newspaper were to use the headline "U.S. Shifts Policy on Geneva Conventions" to describe the case where the Administration (i) has, at best, merely announced its intent to abide by a Supreme Court holding (imagine that!); (ii) in fact has decided on business as usual; and (iii) has even plotted legislation to allow breaches of Geneva. Oh, wait. Never mind.]

The bill is difficult to follow, almost unreadable. I must confess that I've only given it a ten-minute once-over, which is probably more than it deserves. [Orin Kerr promises to take "a while to work through it." Keep your eyes on Orin's space for trustworthy, sober analysis.]

As best I can tell -- and I'd greatly appreciate corrections if, as is likely, I've missed or misunderstood something -- this is the "Specter National Security Surveillance Act" in a nutshell:

1. At least with respect to terrorism-based electronic surveillance, all of the limits Congress imposed on electronic surveillance in FISA are in effect repealed. The statute does not require the Executive branch to meet any statutory standard for terrorism-based surveillance, and eliminates the FISA provision that prescribes FISA and Title 18 as being the "exclusive means" of electronic surveillance, i.e., the provision that principally limits what the President can do. [UPDATE: Eric Umansky writes: "One other thing flagged by the [Washington Post] in the 28th paragraph [of its story]: 'Specter agreed to repeal a section of the original FISA law that made it the exclusive statute governing such intelligence programs.' . . . . [T]hat might have been worth mentioning, oh, say, 27 paragraphs higher."]

2. The FISA court would have jurisdiction to "authorize" a broad "electronic surveillance program," whatever that is. (A "program" apparently is a whole bunch of actual instances of surveillance, conveniently grouped together in a manner of the Atorney General's choosing, for faster "approval.") But nothing requires the AG to obtain any court approval before engaging in the electronic surveillance.

3. If for some reason the AG does, voluntarily, go to the FISA court for approval -- again, not that there would be any obstacle to surveillance if he did not obtain such approval -- the standard imposed by FISA for approval would be completely gutted.

Under FISA, a particular case of surveillance may be approved only upon a showing of probable cause to believe (i) that the target of the electronic surveillance is a foreign power or an agent of a foreign power, and (ii) that each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power. 50 U.S.C. 1805(a)(3).

There's nothing even remotely like that in the Specter bill. Under the Specter bill, the FISA court could approve an entire program of electronic surveilance -- presumably tens of thousands of cases -- merely upon a showing that the "program" is constitutional (as if the Fourth Amendment question can be evaluated on a "program"-wide basis by a court sitting ex parte) and that the program as a whole is "reasonably designed" to ensure that the intercepted communications are of or with (i) a foreign power engaged in or preparing for "terrorism activities"; (ii) an agent of such a foreign power; or (iii) "a person reasonably believed to have communication with or be associated with" such a foreign power or agent thereof."

In other words, the FISA court would have to "approve" the "program" -- all of it -- if the AG could show, e.g., that the program writ large is "reasonably designed" to ensure that one end of the the intercepted communications consists of persons who are "reasonably believed" to communicate with agents of a foreign terrorist power. (In other words, persons can be surveilled if they are three degrees of separation from the guys actually planning the terrorist activities -- or even further removed, as long as the "program" as a whole is "reasonably designed" to pick up folks you can connect to Al Qaeda in three notes.)

And the court would never have to make any part of its review -- including the outcome -- public.

4. But wait -- there's more! The Specter bill would delete the "exclusive means" provision of FISA and would replace it with the guarantee that "nothing in this Act [i.e. FISA] shall be construed to limit the constitutional authority of the President to collect intelligence with respect to foreign powers and agents of foreign powers."

In other words, to the extent any FISA limitations are left in place after this bill, never mind them -- because the President would be authorized to do whatever he could do under the Constitution if FISA did not exist!

5. Just in case any individuals were actually to challenge the legality of particular surveillance, the Specter bill would permit the AG to transfer all such cases to the FISA court if the AG swears under oath that our national security would be harmed by keeping the case in ordinary courts. In the FISA court proceedings, the court would not be able to require disclosure of any "national security information" to anyone. And get this: The FISA court and FISA Court of Review "may dismiss a challenge to the legality of an elctronic surveillance program for any reason." (Because it's Thursday? Or the judge doesn't like the looks of you? Can you imagine the conversation in the Vice President's Office on this one? "OK guys. We've eliminated FISA. Resurrected unlimited Executive power even after Hamdan. Made Specter's beloved 'FISA Court review' voluntary and pursuant to a standard that amounts to nothing. Shifted all litigation challenging our conduct to the FISA court, where all the evidence is off limits to the plaintiffs. Anyone else got anything they've been wanting? Come on, use your imagination . . . ." "Hey, I've got an idea!: Let's give the FISA courts the power to dismiss challenges to the Executive branch for any reason." "Yeah, that's the ticket!")

It is a mistake to characterize this "accord" as involving "a reversal of Bush's position that he would not submit his program to court review." The program already has been "submitted" by plaintiffs for review to several federal courts -- and the Bush Administration has little choice but to defend those lawsuits. If Senator Specter really wanted to improve the odds that a federal court will actually reach the merits of one of those cases, he'd line up his support behind the Schumer bill. What Specter's bill does, in contrast, is to drastically diminish, if not eliminate altogether, any court review of the program. It does not require Bush to "submit" anything anywhere, and it would basically be the death-knell for the challenges to the program that are currently ongoing.

I'm sure there's more (such as in the new and improved and diminished definition of "electronic surveillance" that triggers FISA in the first place). But that ought to give you a flavor. As far as I can tell, this bill would appear to give the President far more authority to wiretap U.S. persons than he has ever perviously had. Best I can tell, this is the gist of what the Washington Post calls the "compromise": On the one hand, Congress enacts a statute making it legal for the President to do everything that's been illegal for the past three decades. But on the other hand, Congress also empowers the FISA court, upon a request of the Attorney General, to confirm that what the President is doing is now, in this post-FISA world, legal. [Just noticed when I posted: Jack was ahead of me. He has even more details.]

I hope that a bill such as this, which would thoroughly unravel three decades of carefully crafted statutory regulation of electronic surveillance, is a non-starter in Congress. If so, please allow me this opportunity to make another plea: Everyone behind the Schumer bill, please! Let's get the question of NSA legality before the Supreme Court right now, and after that we can worry about how to amend FISA in a responsible manner sensitive to changing needs, such as perhaps along the lines of the models suggested by David Kris or in Jane Harman's bill.

With this giveaway bill, and the DOJ letter defending the NSA program in the teeth of Hamdan, and the Administration's proposal to have Congress codify the President's military commissions, and the Administration's proposal to authorize Cold Cell and Long Time Standing and other conduct that will result in a breach of the Geneva Conventions, and Jim Haynes getting one step closer to a lifetime judgeship, and with a compliant Congress not really understanding what gift they've been given in Hamdan (predicted headline in the near future: "Flush with Success in Court, Congress Capitulates.") . . .

Well, we've rarely if ever seen a week with more, and more audacious, moves in the direction of Executive prerogative. Which naturally brings to mind this question:

Can you imagine what the Administration would have done this week if they had won Hamdan? (shudder to think)
Posted 11:32 PM by Marty Lederman [link] (19) comments

CCR Report: Prisoner Mistreatment at Guantanamo

JB

The Center for Constitutional Rights has released a sobering report based on interviews and statements by Guantanamo Bay detainees. The information, originally obtained from secret notes of interviews with habeas counsel, was later cleared by a Defense Department review and corroborated by public and unclassified sources. The report offers chilling accounts of prisoner mistreatment and states that detainees at Guantanamo have been

• held in solitary confinement for periods exceeding a year;
  
• deprived of sleep for days and weeks and, in at least one case, months;
  
• exposed to prolonged temperature extremes;
  
• beaten;
  
• threatened with transfer to a foreign country, for torture;
  
• tortured in foreign countries or at U.S. military bases abroad before transfer to Guantanamo;
  
• sexually harassed and raped or threatened with rape;
  
• deprived of medical treatment for serious conditions, or allowed treatment only on the condition that they "?cooperate"? with interrogators; and
  
• routinely "?short-shackled"? (wrists and ankles bound together and to the floor) for hours and even days during interrogations.
  

This report suggests why, in the wake of Hamdan, the Bush Administration is doing everything it can to limit its liability and the liability of U.S. personnel under Common Article 3. There is little doubt that if the report is accurate, the type of conduct described in it violates Common Article 3 and, by extension, the War Crimes Act. Hence in the wake of Hamdan, which held that Common Article 3 applies to the Guantanamo detainees, the Bush Administration is seeking Congressional approval for new rules that would abandon elements of Common Article 3 and, in effect, modify the War Crimes Act. In other words, the Administration believes that the appropriate remedy for violations of basic standards of decency and humanity is not to punish the wrongdoers but to make the conduct legal after the fact.

Although the Bush Administration tries to insist, in the words of Tony Snow, that "humane treatment has always been the standard" at Guantanamo Bay and elsewhere, the Administration would not be trying so hard to wiggle out of the legal requirements of Hamdan-- or asking Congress to pass new laws overruling the effect of Common Article 3-- if that were really the case. Apparently the Administration's definition of "humane" is so far below the minimum standards that civilized nations have set that it must excuse itself even from those minimum standards. What does this fact say about our claim to be a civilized nation? Does the Administration even care?

The widespread nature of the activities described in the CCR report belies the claim that prisoner mistreatment at Guantanamo Bay was the product of a few isolated individuals. Indeed, what the CCR tells us is not new: it meshes with reports of mistreatment at Guantanamo that have been leaking out for some time. Rather, the important question, and the question that the Administration has sought to avoid, is who is responsible for condoning these practices.

Posted 12:35 PM by JB [link] (8) comments

Not-so-Common Article 3

Marty Lederman

Well, as I suggested, the Administration's noises about how, in the wake of Hamdan, it was finally going to comply with Common Article 3 of the Geneva Conventions, are not quite what they were cracked up to be in the eager, early press releases.

Today we discover that "[a] day after saying that terror suspects had a right to protections under the Geneva Conventions, the Bush administration said Wednesday that it wanted Congress to pass legislation that would limit the rights granted to detainees. The earlier statement had been widely interpreted as a retreat, but testimony to Congress by administration lawyers on Wednesday made clear that the picture was more complicated."

Ah, yes. "The picture is more complicated." Here's the "complication": The Administration is asking Congress for statutory authorization for the United States to violate Common Article 3. That's what Lindsey Graham means when he says "that Common Article Three must be 'reined in.'"

Graham's statements are very revealing -- indeed, he reveals current (theoretically classified) CIA methods that are said to be compliant with current law other than Common Article 3!:

"He said it would make death penalty crimes of current interrogation techniques, including keeping detainees awake and forcing them to sit in extremely hot or cold cells — methods he referred to as 'things that are not torture but are aggressive.'"

(NOTE: Senator Graham is slightly mistaken about one thing here: Under the War Crimes Act, violations of Common Article 3 are subject to the death penalty only if the violation causes the victim's death. Occasionally the CIA's use of hypothermia does result in death -- see, for example, this incident -- but not invariably.)

What are these techniques, exactly? Well, here is how one report describes the CIA techniques of "Long Time Standing" and "Cold Cell":

Long Time Standing: This technique is described as among the most effective. Prisoners are forced to stand, handcuffed and with their feet shackled to an eye bolt in the floor for more than 40 hours. Exhaustion and sleep deprivation are effective in yielding confessions.

The Cold Cell: The prisoner is left to stand naked in a cell kept near 50 degrees. Throughout the time in the cell the prisoner is doused with cold water.

So, apparently, the idea is to enact a statute that would allow such techniques, at least in certain circumstances. But how could Congress do that?

Graham indicated to the New York Times -- as did Administration officials -- that Congress could "limit" Common Article 3 "in a way that resembled the language of the [McCain Amendment]." Of course, as Graham concedes, this really wouldn't so much be "limiting" Common Article Three as gutting it, because, according to Graham himself, the restrictions of Common Article 3 go "well beyond the McCain standard." (The Washington Post reports that the White House and Senator McCain are crafting a bill that would track the McCain Amendment and that "makes some changes to Common Article 3," such as dropping the phrase "outrages upon personal dignity.")

How can that be? After all, the McCain Amendment categorically prohibits all "cruel, inhuman and degrading treatment." Well, as I've tried to explain, Congress has defined those terms under McCain to include only what the Due Process Clause would prohibit if the interrogation were taking place in the United States. That is to say, conduct that "shocks the conscience" -- a standard that the courts have never applied in the context of interrogations intended to elicit inforformation about future terrorist activity. As I feared, the Administration apparently has (if Graham's remarks are accurate) construed the McCain "shocks the conscience" test not to prohibit techniques such as sleep deprivation and "cold cell," i.e. hypothermia. (Whether that's the best understanding of the Due Process standard is open to serious question -- certainly it would not be under Justice Kennedy's concurrence in Chavez v. Martinez, which might have the support of five Justices on today's Court (although Justices Souter and Breyer have not yet tipped their hand). But Justice Thomas's opinion in that same case indicates that it takes a whole lot more to shock his conscience (and Justice Scalia's) than it does to shock Justice Kennedy's.)

But Common Article 3 is not limited to "conscience-shocking" conduct, but instead prohibits all violence against detainees and "outrages upon personal dignity." CA3 therefore almost certainly does prohibit techniques such as cold cell, or prolonged sleep deprivation.

The Graham/McCain/Administration initiative now being hatched thus would authorize the use of techniques that would violate the Geneva Conventions. Congress has the power to do this: Where a statute authorizes something that a treaty prohibits, the statute governs for purposes of domestic law if it was enacted subsequent to the Senate's ratification of the treaty.

But make no mistake: that would place the U.S. in violation of its treaty obligations. Which is no small thing. The Solicitor General argued to the Supreme Court this past Term that treaty obligations "are too fundamental to be easily cast aside." But apparently that principle, which the Govenrment invoked as a justification for not construing a religious-liberty statute in a way that would result in a trivial violation of the Convention on Psychotropic Substances, does not apply to less important treaties, such as the Geneva Conventions.

One more thing: The Administration is pushing for this treaty violation because Common Article 3 allegedly is "too vague": "Congress needs to do something to bring clarity and certainty to Common Article Three," Steven G. Bradbury, an acting assistant attorney general, told the House Armed Services Committee on Wednesday.

But that's not right. There's nothing unusually uncertain about prohibitions on "violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture," and "outrages upon personal dignity, in particular humiliating and degrading treatment." Of course there are ambiguities at the margins. But that doesn't mean that the basic rules of conduct are not clear. After all, these were precisely the standards that were promulgated within the military to govern United States Armed Forces policy, against all enemies (including, e.g., irregular combatants such as the Viet Cong), from 1949 until February 2002. Indeed, Army Field Manual 34-52 provides:

Humane treatment of insurgent captives should extend far beyond compliance with Article 3, if for no other reason than to render them more suceptible to interrogation. The insurgent is trained to expect brutal treatment upon capture. If, contrary to what he has been led to believe, this mistreatment is not forthcoming, he is apt to become psychologically softened for interrogation. Furthermore, brutality by either capturing troops or friendly interrogators will reduce defections and serve as grist for the insurgent's propaganda mill.

Common Article 3 wasn't too "vague" for the 53 years that preceded February 2002. And it's not now. The problem, from the Administration's view, is not that its standards are too vague, but that they're too restrictive.

[UPDATE: The link above is to the 1987 version of Field Manual 34-52. The language in question appeared in Chapter 9, on Low Intensity Conflicts. But a revised Manual 34-52 was promulgated in 1992, and, as far as I can tell, several of the chapters in 34-52 were split off into separate Field Manuals. There's a new 1990 Field Manual devoted to the topic of Low Intensity Conflicts, FM 100-20; I haven't read it, and thus I don't know whether it includes any language about Common Article 3. The new Field Manual 34-52, circa 1992, omits the chapter on Low-Intensity Conflicts altogether. Sorry for any confusion.]
Posted 6:15 AM by Marty Lederman [link] (7) comments

Bush Administration to Justice Stevens: Drop Dead

JB

The DOJ has announced that it regards the Hamdan case as irrelevant to the legality of the NSA controversy. As Marty and I have pointed out here and here, this is not a plausible reading of Hamdan.

In effect, the Bush Administration has told the Supreme Court: we'll keep on doing what we want until you directly order us not to. The Bush Administration is clearly counting on the fact that it will take many years for a final determination of the legality of the NSA program; in the meanwhile, the Administration will ask for a stay of any lower court holding that rules against them. Assuming that most courts would grant such a request on national security grounds, the Administration figures that it can keep the NSA program running for many years. In the meantime, Justice Stevens, the Court's oldest member, and the author of Hamdan, may leave the Court due to retirement or death, to be replaced by a nominee more pliable to the Administration's wishes.

Given the Administration's intransigence, it falls to the public and to Congress to pressure it (or shame it) into acknowledging that it must change its policy on the NSA controversy just as it has been forced to on the question of prisoner detention and mistreatement (or at least *seems* to have changed, if Marty's previous post is correct). If the Administration wants to continue conducting electronic surveillance on American citizens, it must go to Congress and ask for amendments to FISA that bring its actions under the law. In the meantime, an Executive that acts beyond the law is a lawless Executive.

What the press and the public must understand is that this Administration does not play by the rules. It does not take a hint. Instead it will continue to obfuscate and prevaricate, as it has so often in the past on issues ranging from detention to prisoner mistreatment. This Administration will not conform its actions to the Rule of Law unless it finds doing so politically infeasible. As a result, the Congress, the courts, the press and the public will have to object-- repeatedly and strenuously-- if they want the Executive to abide by its constitutional obligation to take care that the laws be faithfully executed.

Posted 1:27 PM by JB [link] (9) comments

Well, Now It's Clear: Hamdan's Just a Bump in the Road

Marty Lederman

As I noted the other day, virtually all observers agreed that the Court's decision in Hamdan appeared to tear the legs out from under the dual justifications that the Department of Justice has offered in support of the legality of the recently revealed NSA domestic electronic surveillance program. Since then, Cass Sunstein, once perhaps the most surprising defender of the Department's views, came awfully close on this blog to shutting the door on the legal defense, and even Andy McCarthy, perhaps the program's most vociferous supporter, lamented today that "Hamdan sounds the death knell for the NSA’s Terrorist Surveillance Program."

Not so fast, Andy: You're underestimating the creativity of the Office of Legal Counsel! David Barron has the goods over at LawCulture -- he links to this letter from DOJ standing firm on all of its legal defenses, and more. Astoundingly, DOJ asserts that the Court’s decision in Hamdan "does not affect our analysis of the Terrorist Surveillance Program"!

Whatever else one may think of the DOJ’s arguments in support of the NSA program, the notion that Hamdan "does not affect" the relevant legal analysis is so implausible as to suggest either bad faith or an audacious design by the Administration to provoke a confrontation with the Court (a confrontation that the Administration must suspect it would almost certainly lose if the case were considered by the current array of SCOTUS Justices).

I'll have more to say on this in the days to come. In the meantime, here's David:

DOJ contends:

-- That the AUMF overrides FISA (even though, per Hamdan, it does not override the UCMJ);

-- That, in any event, Congress has no Article I power to enact FISA, at least with respect to the President's wartime surveillance practices (even though Congress did have the power to prescribe limits on military commissions);

and,

-- That even if Congress did have an Article I power to enact FISA, the President's Article II power as Commander-in-Chief and as the "Executive" entitles him to disregard FISA in wartime (a position DOJ contends is still valid because Hamdan does not even require the Administration to comply with the UCMJ if it conflicts with his Commander-in-Chief powers or his constitutional duty to protect the nation).

There has been a lot of talk about Hamdan being the modern-day Youngstown. Youngstown, however, had the advantage of a President with a modicum of modesty.

Posted 5:25 PM by Marty Lederman [link] (7) comments

Airtight Logic

Marty Lederman

Administration Press Secretary Tony Snow today was quoted as saying that the new DoD compliance with Common Article 3 is "not really a reversal of policy," and insisted that all U.S. detainees have been treated humanely -- which is apparently all that Common Article 3 requires. As I explained below, now that the Administration has lost its four-plus-years' fight to deny the applicability of Common article 3, it's new tactic appears to be to insist that its approved detainee interrogation pracitces have -- what do you know? -- complied with Common Article 3!

As best I can tell just now -- it's a moving target, of course -- this might be the Administration's "logic":

1. “Humane treatment” is the “overarching feature” of Common Article 3 (so says the England Memo), in the sense that the Article identifies that as the goal of its specific prohibitions.

2. In February 2002, the President directed the Armed Forces [but not the CIA] to treat all detainees “humanely.”

3. We follow our President’s orders.

4. Thus, we have treated all detainees “humanely.”

5. We have forced a detainee to wear a bra and have a thong placed on his head during interrogation; tied him to a leash, led him around the room and forced him to perform a series of dog tricks; forced him to dance with a male interrogator; stripped him naked; placed Korans on a television "as a control measure"; and poured water on the detainee during interrogation 17 times.

6. Because we comply with the President’s directive to treat all detainees humanely, the techniques in paragraph 5 are humane.

7. Moreover, when in November 2002 General Counsel Haynes concluded that certain techniques “may be legally available,” he necessarily meant that such techniques “may be humane” (because he wouldn’t authorize violation of a presidential directive).

8. The techniques that GC Haynes concluded “may be legally available” include forced nudity, forced grooming, "[u]sing detainees['] individual phobias (such as fear of dogs) to induce stress," 20-hour interrogations, stress positions, the use of mild physical contact such as grabbing, poking and light pushing, waterboarding (the use of a wet towel and dripping water to induce the misperception of suffocation), and "scenarios designed to convince the detainee that death or severely painful consequences are imminent for him and/or his family."

9. Ergo, all those techniques are “humane.”

10. The April 2003 DOD Working Group Report exhaustively canvassed the law of interrogations, including the President’s directive that detainees be treated “humanely.” That Report concluded that the following techniques were among those that are legally available: Hooding; “threaten to transfer to a third country that subject is likely to fear would likely subject him to torture or death”; 20-hour interrogations; “forced grooming”; sleep deprivation – not to exceed four days in succession; face or stomach slap; removal of clothing; and “Increasing Anxiety by Use of Aversions,” such as dogs.

11. The techniques approved by the Working Group therefore must be “humane.”

12. Ergo, all of the techniques employed on Al-Qahtani, identified by GC Haynes, and approved in the Working Group Report, are consistent with the “overriding feature” of Common Article 3, namely, ensuring humane treatment.

13. To be sure, many of these techniques would appear, on first glance, to involve violence, cruelty, humiliating or degrading treatment, or other outrages upon personal dignity. (Indeed, the Schmidt Report found that the al-Qahtani interrogation did involve degrading and humiliating treatment.) And, on its face, CA3 would appear to prohibit such techniques, because it nominally prohibits “violence to life and person, in particular . . . cruel treatment and torture,” and “outrages upon personal dignity, in particular humiliating and degrading treatment,” “at any time and in any place whatsoever.”

14. [This, along with 17, below, is my favorite.] However, the specific prohibitions in CA3 are prescribed in order “to this end”: namely, that detainees shall be “treated humanely.” Thus, those prohibitions must be construed consistent with what is “humane.”

15. Paragraphs 2-12 demonstrate that the DoD uses only “humane” approved techniques.

16. Thus, those techniques satisfy the objective -- the “overriding feature” -- of CA3.

17. Ergo, those techniques must be construed not to constitute “violence to life and person, in particular . . . cruel treatment and torture,” nor “outrages upon personal dignity, in particular humiliating and degrading treatment.”

18. Which means that all DoD approved techniques have been consistent with CA3.

Ta-da!
Posted 5:15 PM by Marty Lederman [link] (5) comments

Out with the "New Paradigm," in with the Old?

JB

I wanted to add a few comments to Marty's post concerning the Financial Times story about Deputy Defense Secretary Gordon England's memo. As the Financial Times explains, that memo, offered in the wake of the Supreme Court's decision in Hamdan, "reverses the policy outlined by President George W. Bush in 2002 when he decided members of al-Qaeda and the Taliban did not qualify for Geneva protections because the war on terrorism had ushered in a `new paradigm . . . [that] requires new thinking in the law of war'."

Saying that the U.S. is committed to the Geneva Conventions in a memo is one thing, implementing that commitment is another. Perhaps equally important, this apparent about-face suggests that the United States will face considerable political embarrassment-- not to mention legal difficulties-- for what it has already done in the name of the Bush Administration's "new paradigm." As Marty points out, it is not clear whether the Defense Department is ready to admit that some of its interrogation and detention policies are affected by Hamdan because it continues to assume that they are consistent with Common Article 3. However, the memo does appear to concede that the military commissions are inconsistent with Common Article 3.

One important short term result, however, will be to take some of the steam out of Congressional attempts to reinstitute the military tribunals in the exact form that the President wanted them. The Pentagon's new policy will also undermine claims from some right-wing circles that detainees deserved no rights at all, and that the Hamdan decision created, in Representative Boehner's words, "special privileges for terrorists." If the Pentagon states that Common Article 3 applies to all detainees, even those alleged to be members of al Qaeda, it becomes somewhat harder to denounce those who agree with the Pentagon's position as soft on terrorism.

Posted 3:37 PM by JB [link] (2) comments

Newsflash: Pentagon Agrees to Abide by Supreme Court Ruling -- Or Does It? -- and a Short Riff on the Haynes Nomination

Marty Lederman

Breaking news: Pentagon General Counsel Jim Haynes has ordered senior defense officials and military officers to apply Common Article 3 of the Geneva Conventions to all detainees held in US military custody. The DOD memo can be found here.

Contrary to the Financial Times story linked above, it's not a "major policy shift" -- it is simply a directive to DoD officials to comply with a holding of the U.S. Supreme Court. (For all of its startling assertions of Executive power, the Bush Administration has rarely if ever suggested that it would not abide by final determinations of the Supreme Court. But see the President's oddly phrased signing statement that he will construe the McCain Amendment "consistent with the constitutional limitations on the judicial power.")

The DOD memo assumes that the Supreme Court decision is binding on the application of Common Article 3. It begins: "The Supreme Court has determined that Common Article 3 to the Geneva Conventions of 1949 applies as a matter of law to the conflict with Al Qaeda." This is a correct, uncontrovertible statement of law. (The Financial Times article argues that the so-called "policy shift" renderd "moot" an alleged unresolved legal question: "In the wake of the Supreme Court decision, legal experts had disagreed about whether the ruling meant that Geneva protections should be given to only those detainees brought before the military commissions, or to all detainees held at Guantanamo Bay and other US military detention facilities around the world." Actually, that's not right: No serious "experts" would disagree that the Court's ruling compels some Geneva protections -- namely, the minimum, baseline protections of Common Article 3 -- for all detainees in our conflict with Al Qaeda. Nor does the DOD memo suggest otherwise.)

The devil, of course, will be in the details:

1. What about the CIA?

2. The memo does not state that the Administration agrees with the Supreme Court's interpretation of Article 3, and does not foreclose the possibility that the Administration will promote legislation that would undermine the Court's ruling. Will the Administration, for instance, propose any legislation amending the War Crimes Act, or authorizing conduct that Common Article 3 would forbid? Etc.

3. And a possible point of significant dispute and/or misdirection: The letter states, correctly, that "humane treatment" is the "overarching requirement" of Common Article 3. It juxtaposes this truism with a reminder that the President had already directed all U.S. Armed Forces to treat detainees "humanely." But what the Administration means by "humane," and what Common Article 3 means by "humane," are entirely different animals.

As discussed here, even under the President's directive of "humane treatment," DoD General Counsel Jim Haynes advised the SecDef that the following techniques "may be legally available":

-- forced nudity

-- forced grooming

-- "[u]sing detainees['] individual phobias (such as fear of dogs) to induce stress"

-- 20-hour interrogations

-- stress positions

-- the use of mild physical contact such as grabbing, poking and light pushing

-- waterboarding (the use of a wet towel and dripping water to induce the misperception of suffocation), and

-- "scenarios designed to convince the detainee that death or severely painful consequences are imminent for him and/or his family."

Moreover, as I discussed here, the DoD Schmidt report concluded that concededly degrading and humiliating techniques did not violate the humaneness requirement! -- including forcing a detainee to wear a bra and have a thong placed on his head during interrogation; tying a detainee to a leash, leading him around the room and forcing him to perform a series of dog tricks; forcing him to dance with a male interrogator; stripping him maked; placing Korans on a television "as a control measure"; and pouring water on the detainee during interrogation—17 times.

If this is what the Administration thinks Common Article 3 allows, it is dreadfully wrong, and we're being sold a bill of goods. Common Article 3 provides, in no uncertain terms, that "[t]o th[e] end" of ensuring humane treatment, certain specified acts "are and shall remain prohibited at any time and in any place whatsoever"—including "cruel treatment and torture," and "outrages upon personal dignity, in particular humiliating and degrading treatment."

In other words, many techniques that were not prohibited by the President's "humane treatment" directive (as a result of a very unnatural intepretation of the word "humane") are prohibited by Common Article 3, including all humiliating and degrading treatment, and other "outrages upon personal dignity." This is something that the Administration should be required to address directly, if its new directive is to be worth anything.

* * * *

As the Financial Times reports, DoD General Counsel Haynes, he who ordered the new DoD directive, has a hearing before the Senate Judiciary Committee this very afternoon on his nomination for a lifetime appointment to the U.S. Court of Appeals for the Fourth Circuit. Coincidence? Fortuitous timing? You be the judge.

In the category of "memoranda we'd like to see," how about this one?:

RE-ACTION MEMO

July 7, 2006

FOR: SECRETARY OF DEFENSE

FROM: William J. Haynes, II, General Counsel

SUBJECT: Counter-Resistance Techniques (Redux)


Dear Mr. Secretary:

You may recall that back in November 2002 I advised you that the following interrogation techniques all "may be legally available," notwithstanding the prohibitions in the Uniform Code of Military Justice against assaults, threats, cruelty and maltreatment:

-- forced nudity

-- forced grooming

-- "[u]sing detainees['] individual phobias (such as fear of dogs) to induce stress"

-- 20-hour interrogations

-- stress positions

-- the use of mild physical contact such as grabbing, poking and light pushing

-- waterboarding (the use of a wet towel and dripping water to induce the misperception of suffocation), and

-- "scenarios designed to convince the detainee that death or severely painful consequences are imminent for him and/or his family."

Oops. Scratch that. Sorry for any confusion.

Sincerely,

Jim

In all seriousness, I should add the following: Haynes did not recommend that all these techniques be implemented. Indeed, his advice cut back on some of the techniques recommended by other DOD lawyers, and he advised the SecDef that "for policy reasons," a "blanket approval" of waterboarding and threats of death was "not warranted at th[at] time."

This point is stressed in a letter sent to the Senate Judiciary Committee today by Larry Thompson, Jim Comey, Jack Goldsmith and Pat Philbin, most or all of whom have been reported to be at great odds with the Vice President's Office and other hard-liners in the Administration on issues of Executive power. I worked with Pat at OLC, and I know Jack well. I have absolutely no reason to doubt that everything they write in this letter is true (including the fact that Haynes had little choice but to accept John Yoo's view of the law in 2003, especially if Yoo was being backed by the VP's Office and the White House -- the letter accurately describes OLC's role in the Administration, except that it does not note that OLC's legal opinions can be overruled by the AG and the President).

Even if all the letter says is true about Hyanes's character and his conduct -- and again, I assume it is -- I believe there is still reason to be concerned about his role in the torture scandal, for at least two reasons:

First, in that November 2002 memo to the SecDef, Haynes did conclude that all those techniques "may be legally available," which strikes me as shockingly wrong legal advice, in light of (at the very least) the clear prohibitions in the UCMJ (discussed in the Beaver memo that was attached to Haynes's memo) and the President's "humane treatment" directive.

Second, there is the question of Haynes's alleged role in finalizing the April 2003 DoD Working Group Report, and seeing to it that General Geoffrey Miller was briefed on that Report before heading off to Iraq -- see my posts here and here and, especially, Jane Mayer's article. Thompson, et al., stress that Haynes helped the SecDef narrow the "approved" techniques to 24, in his April 16, 2003 memo. But if Mayer's account is accurate, that 4/16/03 memo was a whitewash, and it was the Working Group Report (and the 3/03 John Yoo memo that inspired it) that became the basis for DoD policy in Iraq and elsewhere, until Jack Goldsmith himself disclaimed the analysis in those memos in December 2003.

Obviously, neither I nor the Senate knows all the details of these incidents -- and perhaps the published reports are inaccurate. But the incidents certainly raise questions that might be of interest to the Committee. (And, as I've said many times before, there's no question that the 3/03 Yoo memo should be publicly disclosed; there's no justification for keeping this key part of the historical record secret, especially when the recipient of the memo -- the person who acted on it -- has been nominated to the federal bench.)
Posted 6:17 AM by Marty Lederman [link] (15) comments

Clinton impeachment revisited yet again

Sandy Levinson

I note that Cass Sunstein begins his reply to Marty Lederman by writing that "[t]he Clinton impeachment was clearly unconstitutional, but very few conservative law professors (or lawyers) were willing to say so, at least in public." I find it interesting that Sunstein is willing to use the word "clearly" in this context, since, with respect, I don't find it so clear. It certainly seems to be plausible to believe that Clinton committed perjury. I suppose the argument is that this doesn't count as a "high crime and misdemeanor." That may be so, but if and only if one adopts an originalist methodology vis-a-vis the meaning of the Impeachment Clause, a methodology notably rejected by most of Clinton's supporters (and, I think, by and large by Sunstein). And, as I have argued elsewhere (and will be arguing in my forthcoming book), it is almost zany, given the responsibilities of the modern President, to argue that we are stuck for some years with a discredited president simply because he did not commit acts that would have counted in 1787 as a "high crime and misdemeanor."

I think that Sunstein may be impugning a lot of our conservative colleagues in the legal academy by seeming to suggest that they "knew" that Clinton was being railroaded but were too smitten by partisan politics to say so. This, of course, is precisely what people like Charles Cooper used to say about William J. Brennan and his supporters, that they willfully subordinated what hthey knew to be the "true" Constitution to their liberal agenda. I think that part of the reality of modern constitutional interpretation--or constitutional politics--is that sincere lawyers can have radically divergent views of what the Constitution allows or prohibits. Indeed, I take it that this is one of the reasons that Professor Tribe terminated his treatises, that the chasm among constitutional perspectives is just too great, at present, to bridge. (Mark Tushnet, incidentally, has a very interesting meditation on Tribe's decision in the just-published issue of Constitutional Commentary (though it has a 2005 date on the cover.)

I concede in advance that there were many good aspects to the Clinton presidency, and I would certainly have voted for him in 2000 had he been eligible for a third term. That being said, I also continue to believe that liberals are paying a very high price for rallying around Clinton the way we/they did and basically limiting impeachment to something so clearly egregious (and provable) as Richard Nixon's conduct in Watergate.

Sunstein also suggests that all of us must accept some reasonably strong version of the law/politics distinction. As Jack Balkin and I have argued, this may make sense if we are talking about "low politics," i.e., tailoring one's position precisely to fite the political interests of one's political preferences in the next election. But it makes very little sense if we are talking about "high politics," i.e., basic visionis of how best to structure the political order, especially with regard to an issue like the conflicts between natinal security, civil liberties, and basic issues of separation of powers.

In any event, I very much appreciate the debate between Marty and Cass.
Posted 12:13 AM by Sandy Levinson [link] (62) comments

Cass Sunstein Replies

Guest Blogger

Cass Sunstein

Many thanks to Marty for continuing the discussion. By way of concluding my remarks at this stage, just three brief thoughts:

1. It is interesting to ask what the division on the Court would have been in Hamdan if the President had been named Clinton rather than Bush. Of course it's not clear that the division would have changed, but it might have been. (For supportive evidence, showing a strong effect of the President's party identification on judicial review of executive action, see this paper by Thomas Miles and me, appearing soon in the University of Chicago Law Review, entitled Do Judges Make Regulatory Policy? An Empirical Investigation of Chevron.)

2. On high-profile legal issues of this kind, there is a risk of group polarization, in which like-minded people (liberal or conservative) stir one another into a state of excessive confidence. Consider the (odd?) fact that before Hamdan, (almost all?) legally informed observers who didn't vote for President Bush tended to believe that the NSA program was unlawful -- whereas legally informed observers who did vote for President Bush tended to be far more sympathetic to the President's legal claims. Of course there are exceptions.

Note in this regard that in Hamdan itself, the majority and the dissent were divided on at least seven major questions, all of them pretty technical. Offhand I can't think of a time, in the Court's entire history, in which the Justices split, in a single case, on so many questions; Hamdan might in this regard be the all-time champion.

3. The real question, of course, is the effect of Hamdan. It will be interesting to see if executive branch lawyers can produce a plausible argument, post-Hamdan, in favor of the NSA program. In light of Justice Stevens' reasoning, the defense of the program is greatly weakened. Justice Thomas' dissenting opinion could easily be adapted in favor of the program, but of course skeptics could contend that military commissions are easier to defend -- and after all, Justice Thomas was dissenting.
Posted 10:33 PM by Guest Blogger [link] (3) comments

Open Letter in Response to Cass Sunstein on the NSA and FISA

Marty Lederman

Dear Cass:

Thank you so much for that gracious and thoughtful response to my provocation. I greatly appreciate it, and that fact that you've agreed to continue this dialogue here on the blog.

Obviously, I'm pleased that our disagreements are diminishing on the question of the legality of the NSA program. I'll have more to say shortly about Hamdan and the NSA matter (see also Jack's post, which strikes me as entirely correct); but in the meantime, here are some quick, off-the-cuff reactions to the points on which we appear to continue to have some possible differences:

1. I'm surprised that you are so dismissive of Congress's actual intent. Of course it isn't conclusive on questions of statutory construction. But just as surely, an interpretation that virtually no legislator intended, that comes as a shock even to the strongest congressional supporters of the NSA program, and that could not possibly have secured anywhere close to a majority had it actually been on the table in Congress, ought at least to be strongly disfavored, no? Purposivism, even in its mildest form, ain't dead yet, is it? (Witness Hamdan.)

2. You begin your analysis with an "if FISA did not exist" counterfactual. I agree that if FISA did not exist, the AUMF would likely authorize at least certain applications of the NSA program. We critics have long conceded that point. But, as you acknowledge, the counterfactual begs the only question that matters, namely, whether the President must comply with a pre-existing statute (FISA) directly on point. It's as if one started the discussion of Hamdan with the hypothetical question of whether the commissions would be lawful if Congress had never enacted the UCMJ and if the Senate had never ratified the Geneva Conventions. In fact, Justice Stevens (appropriately) begins his analysis (page 28) by stating that the Court "need not answer" that question, because there is a statutory framework in place that renders that question immaterial.

Similarly, if there were not a slew of statutes and treaties regulating interrogation techniques, perhaps the AUMF could be read to authorize the President to engage in techniques approaching torture. But what would that prove, in light of the fact that such statutes and treaties do exist?

There is a very elaborate statutory regime in place both for interrogations and for electronic surveillance -- and the statutory question is whether a single, general, nonspecific sentence in an AUMF displaces that entire corpus of preexisting law. (I do not, of course, mean to suggest that you ignore this point -- obviously, you don't. I'm simply not sure why you think that before Hamdan it "made sense" to begin the statutory analysis by imagining that FISA did not exist. It's like the old "Try not to picture an elephant sitting in the middle of the room with pink pajamas" challenge. Hamlet without the prince. Etc.)

3. Part of the NSA program probably wouldn't be ok, even in the absence of FISA, because of the Fourth Amendment. Here's what I've written elsewhere (with David Cole) on this point:

It appears that the NSA program collects surveillance that would not be approved under FISA if the administration were to seek authorization by a FISA Court under the statute. According to the Administration, under the program the NSA must only find "reasonable grounds to believe" that at least one party to the communication is a member or agent of al Qaeda or an "affiliated terrorist organization"—a standard that could permit wiretaps of the phones of U.S. persons in the United States who are not themselves al Qaeda agents. Thus, it appears that NSA does not require in every case that there be probable cause to believe that the target of the electronic surveillance is a foreign power or an agent of a foreign power. Under FISA as currently written, the FISA Court could not approve such surveillance, and the leading judicial precedent indicates that without judicial approval such surveillance of U.S. persons would likely violate the Fourth Amendment. See Zweibon v. Mitchell, 516 F.2d 594, 614 (D.C. Cir. 1975) (en banc) (plurality opinion) ("[W]e hold today... that a warrant must be obtained before a wiretap is installed on a domestic organization that is neither the agent of nor acting in collaboration with a foreign power, even if the surveillance is installed under presidential directive in the name of foreign intelligence gathering for protection of the national security."); id. at 689 (Wilkey, J., concurring in pertinent part) (agreeing with plurality that if an exemption from the Fourth Amendment's warrant requirement exists, "it exists only for a narrow category of wiretaps on foreign agents or collaborators with a foreign power").

4. The 15-day war provision in FISA, 50 U.S.C. 1811, is dispositive, even if one doesn't buy all the other pro-FISA arguments. That's why it's a centerpiece of the letters I've written to Congress with Geoff Stone and others. I genuinely don't see what the plausible response to it might be, other than returning to the claim that the AUMF implicitly supersedes even that provision.

You don't mention the "exclusive means" provision of FISA, 18 U.S.C. 2511(2)(f); but that provision, too, would have to have been impliedly repealed by the AUMF -- an argument that Hamdan pretty much eliminates (see the top of page 30 of the slip opinion).

5. Most importantly, I was very much aware of your Harvard and Supreme Court Review articles; and that's why I found your AUMF/NSA argument so surprising.

I don't agree with your strong reading of Chevron as applied to war. It's certainly undermined by Hamdan, in which the Court gave virtually no deference to the President's interpretations of ambiguous provisions -- even of treaty provisions!

Be that as it may, however, I was understandably sympathetic to the notion you expressed in those articles that where individual liberties are seriously implicated, the President can't act without clear congressional warrant. Alas, I'm afraid I can't quite agree with you that Hamdan speaks to this question -- particularly since the case only involved the rights of aliens detained at GTMO, whose constitutional protections are still uncertain (but cf. footnote 15 of Rasul). Because the case is about violations of statutory restrictions (Jackson's Category III), and because no claim of constitutional protections was in the mix, the Court had no occasion to suggest, or even speak to, any such clear-authorization requirement.

But if this is your view -- and in the New Republic piece you seem to embrace it strongly, even as applied to the rights of a detained alien in Hamdan -- then why doesn't that simply settle the FISA/NSA question? We might disagree on some matters, but I would have thought we would surely concur on at least this much:

(1) The the NSA program seriously implicates individual rights -- indeed, constitutional rights of citizens.

and

(2) However strongly one might read the AUMF, Congress has not clearly authorized the President to ignore the "exclusive means" for electronic surveillance that FISA prescribes.

On your own view of the "clear authority" doctrine -- and let's hope you're right that the Court will one day embrace it! -- why was the NSA program legal, even before Hamdan?

6. I agree that, as weak as DOJ's AUMF defense of the NSA program may be, "it's far better than some of the ludicrous passages in the 2002 memorandum by OLC on coercive interrogation." But talk about damning with faint praise! I don't even doubt that, as you suggest, DOJ crafted the AUMF argument in good faith. But you had previously stated that DOJ "probably has the better argument," and that if "FISA is interpreted as preventing the president from doing what he did here, then the president does have an argument that the FISA so interpreted is unconstitutional." As I understand it, these aren't your current views, especially in the wake of Hamdan. If so, I'm heartened to hear of it. And if not . . . well, then let's continue the debate!

7. One other thing, which is a bit ancillary to the specific NSA question: In your previous remarks, you stated that "the Department of Justice is the president's lawyer, and they have a duty, the lawyers there, to protect the president's Constitutional prerogatives." I concede that, at least on issues realting to national security and foreign affairs, it is not hard to find historical instances, in Democratic and Republican Administrations alike, where it appears this is how OLC understood its role.

But I think it's mistaken. OLC's task is to assist the President in fulfilling his constitutional obligation to faithfully execute the law. Of course, one might adopt the view, often attributed to Madison, that the law itself -- the Constitution -- contemplates that each of the political branches will (should?) interpret the law so as to best protect its own prerogatives. I don't entirely agree, for reasons I've begun to express elsewhere; but I concede that it is a rich, complex and unresolved question. For now, I simply don't want everyone to simply assume the truth of the oft-heard canard that OLC's proper role in construing the law is to press as hard as possible in the direction of presidential prerogatives.

Thanks again for engaging me on these issues. I look forward to further discussion.

Best,

Marty
Posted 6:19 AM by Marty Lederman [link] (13) comments