Balkinization: Bickelian or Bully?

Comments:

Prof. Balkin said [from the post]:

Bickel's point was that discretion is often the better part of valor for an institution that, unlike the Executive or Congress, has neither the power of the sword nor the purse; hence the Court should sometimes not act at all, or act only through indirection....

And thus not reveal that their guns were unloaded. The aim of a bluff is not to be called. From a tactical standpoint, you loose your credibility and prove the bluff (and your powerlessness) if you provoke confrontation and then back down.

If the Bush Administration had acted like a Bickelian court, it would have gathered its legal and political advisors together and asked, "if we engage in domestic surveillance of American citizens in violation of FISA, or if we throw an American citizen in a military prison and deny him basic Bill of Rights protections, will we likely face undesirable consequences that would hamper the Executive's ability to prosecute the War on Terror in the future?" If the answer to that question is yes, then a Bickelian executive would not have violated FISA in the first place and it would have indicted Padilla in the criminal justice system to begin with rather than denying him Bill of Rights protections and abusing him through illegal interrogation methods.

Indeed. Perhaps while saying they reserve the right to do so in the future (or issuing signing statements). They did the latter, but their BPD got the best of them.

Cheers,

# posted by

Anonymous : 8:36 AM

What's sauce for the judicial goose is sauce for the executive gander.

To argue that the President should act like a "Bickelian court" is to misunderstand the fundamentally different roles of the two branches. The duty of the court is limited to adjudicating the cases and controversies brought before them by others and not to go further than necessary. In stark contrast, the President's duty is to affirmatively seek out and address the country's problems with the only limits being his or her constitutional powers.

I agree with Professor Balkin's point that Mr. Bush has hardly acted passively in matters of war policy. However, I disagree that acting passively when your nation is under attack is a praiseworthy trait in a President. History is littered with the bodies of Americans who died because a President acted passively in the face of a looming enemy threat or even while under ongoing attack by the enemy, the ongoing terrorist attacks on US citizens around the world throughout the 90s and up to 9/11 being just the latest case.

The fact that a President may take actions which exceed his authority during wartime to protect the nation does not recommend acting passively and doing nothing.

Since the United States went to war after 9/11 and started to defend itself, we have largely destroyed the al Qaeda network, denied the enemy nearly any sanctuary and stopped dozens to planned attacks on US interests around the world. As a result, the enemy has not been able to launch a single attack on US citizens outside of the Iraq and Afghan war zones.

In contrast with that success, Mr. Bush's acts which are alleged to exceed his authority are historically negligible. Of the acts of Mr. Bush which Professor Balkin allege exceed presidential authority, only the detention of US citizen Padilla as an enemy combatant can be fairly said to fall into that category. While important to Mr. Padilla, this temporary detention of a single probable al Qaeda agent is small beans compared to Lincoln's suspension of habeas corpus or FDR's detention of tens of thousands of US citizens for the duration of WWII.

Nothing about the reported scope of NSA's surveillance of enemy international telecommunications into and out of this country exceeds the Presidents Article II CiC power to collect intelligence on the enemy nor does any provision of Article I provide Congress with the power to decide which enemy communications may not be surveilled for intelligence gathering.

When viewing the acts of any President, context and historical proportion are necessary tools to perform the task rationally and without partisan bias.

# posted by

Bart DePalma : 11:59 AM

"When viewing the acts of any President, context and historical proportion are necessary tools to perform the task rationally and without partisan bias."

Insert your own snark here.

# posted by

Anne : 12:01 PM

anne:

As you can see from my previous posts ranking presidents who served during my lifetime, I have no problem pointing out the positive and negative acts and omissions of each regardless of their party. So far as Mr. Bush goes, I ranked him blow average overall in that list.

When I post about policy, I am addressing the merits of the policy itself without regard to its partisan origin. I have no problem at all with a potential President Hillary Clinton exercising the same authority and if a GOP congress attempts to unconstitutionally limit Mrs. Clinton's power through FISA I will call them on it.

# posted by

Bart DePalma : 1:04 PM

jao:

We have had this discussion before and I am not going to regurgitate it again in a different venue. To recap for those who missed those thrilling posts, the President has no duty to ask for and the Court no power to provide opinions on the constitutionality of FISA absent a case or controversy brought by someone who has actually been injured in some way by the NSA Program. Apart from possibly one case where Justice accidentally disclosed a document allegedly listing a criminal defendant as a target of the NSA program, the civil cases brought to date fail for lack of standing by the plaintiffs.

I would further note that the FISA court has essentially conceded that it has no power under FISA to limit the NSA program and has appeared to gut the statutory requirements of FISA by issuing anticipatory program wide warrants ratifying the existing NSA program so that Justice will merely brief it on the progress of the program.

Game, set match.

# posted by

Bart DePalma : 1:17 PM

BD:As a result, the enemy has not been able to launch a single attack on US citizens outside of the Iraq and Afghan war zones.

Do you include Jordan, Pakistan, and Saudi Arabia in the "Iraq and Afghan war zones"?? At least 28 US citizens have been killed outside of Iraq and Afghanistan by al-Qaeda attacks since 9/11 (compare to the 35 US citizens that were killed by Al-Qaeda prior to 9/11). It strikes me that the rate of attacks is relatively constant, with only 9/11 standing out as an outlier.

Forgive me, but one can make a very sound statistical argument on the basis of frequency of attacks and casualties inflicted that "as a result" of "going to war," there has been little or no net effect on Al-Qaeda's ability to wage war on the US.

# posted by

Anonymous : 1:36 PM

Bart,

I would further note that the FISA court has essentially conceded that it has no power under FISA to limit the NSA program and has appeared to gut the statutory requirements of FISA by issuing anticipatory program wide warrants ratifying the existing NSA program so that Justice will merely brief it on the progress of the program.

Let me get this straight. The court has no power under FISA to limit the NSA program and has instead agreed to gut the statutory requirements of individual warrants. You appear to be saying both that under the FISA statute the court cannot limit this program (say, by requiring individual warrants) and that by agreeing to let this program go through without requiring such warrants the court is "gutting" statutory requirements.

So under FISA the court is required to "gut" the statute's own requirements? And many advocates of the TSP keep insisting that eavesdropping without warrants is permitted by a statute requiring warrants to eavesdrop. Explain these contradictions to me.

# posted by

Essayist-Laywer : 1:50 PM

jt:

Thanks for the unattributed cut and paste from infoplease without any analysis.

Now, for the rest of the story...

2002 - June 14, Karachi, Pakistan: bomb exploded outside American consulate in Karachi, Pakistan, killing 12. Linked to al-Qaeda.

This was a car bomb parked next to a Pakistani Army security post by the embassy which targeted and killed the Pakistanis. Their is no evidence who performed the bombing, just speculation.

2003 May 12, Riyadh, Saudi Arabia: suicide bombers killed 34, including 8 Americans, at housing compounds for Westerners. Al-Qaeda suspected.

2004 May 29–31, Riyadh, Saudi Arabia: terrorists attack the offices of a Saudi oil company in Khobar, Saudi Arabia, take foreign oil workers hostage in a nearby residential compound, leaving 22 people dead including one American.

These were al Qaeda attacks on the Saudi oil industry and their workers as part of their ongoing war with the Saudi Royal Family. US citizens were not the targets, they simply worked for the Saudis.

2005 - Nov. 9, Amman, Jordan: Suicide bombers hit 3 American hotels, Radisson, Grand Hyatt, and Days Inn, in Amman, Jordan, killing 57. Al-Qaeda claimed responsibility.

These were attacks on Jordanian citizens by al Qaeda in Iraq because Zarqawi was attempting to punish Jordan's government for assisting the US.

June 11–19, Riyadh, Saudi Arabia: terrorists kidnap and execute Paul Johnson Jr.

Dec. 6, Jeddah, Saudi Arabia: terrorists storm the U.S. consulate (and are killed)

These are genuine attacks by al Qaeda in Saudi on US interests or citizens. I stand corrected. We have had two attempted and one successful al Qaeda attacks in Saudi on US interests outside of Iraq and Afghanistan where 3 Americans have died in the 6 years since 9/11.

Compare that to the death toll in the six years prior to and including 9/11.

These are the exceptions which prove my point.

# posted by

Bart DePalma : 2:23 PM

Bart Depalma:In contrast with that success, Mr. Bush's acts which are alleged to exceed his authority are historically negligible.

Doesn't that, by definition, remain to be seen? Or are you the decider of history?

# posted by

John : 2:34 PM

Enlightened Layperson said...

So under FISA the court is required to "gut" the statute's own requirements? And many advocates of the TSP keep insisting that eavesdropping without warrants is permitted by a statute requiring warrants to eavesdrop. Explain these contradictions to me.

You are confusing me.

I never said that the FISA statute required the FISC to ignore the requirements of the statute.

Let me attempt to clarify my point.

The FISA statutory language appears to require Justice to present evidence providing probable cause against individual surveillance targets before warrants can issue to perform that surveillance.

Ignoring these requirements, it appears that the FISC has agreed to issue prospective program wide warrants which reportedly ratify the current NSA program without any limits.

The point I was attempting to make was that the FISC is demonstrating that it acknowledges that FISA cannot limit the President's Article II authority to conduct the NSA program by ignoring the restrictions of FISA and instead ratifying the program as it exists now.

# posted by

Bart DePalma : 2:37 PM

jao said:

Presidents have a duty to seek, even to facilitate, test cases in court if they believe a congressional act to be unconsitutional. This is made clear in the 1994 OLC opinion, PRESIDENTIAL AUTHORITY TO DECLINE TO EXECUTE UNCONSTITUTIONAL STATUTES, which remains on the books at DOJ.

That was the recommendation of Clinton's counsel. If you review the case law cited in this OLC opinion, you will find that the Courts make no such requirement of the President.

So far the adminstration has lost the only District Court case to be decided, and was facing oral arguments on appeal. A second District Court ruling in a parallel case was looming. If either case survives ultimate challenges to standing, and the Supreme Court reaches the merits of the core violation of FISA, the President's goose is cooked.

:::chuckle:::

The ratification of the NSA program by the FISC will most likely save Judge Taylor's political and unsupported opinion from being summarily reversed by the 6th Circuit. Apart from the Taylor opinion, the government has won nearly every round of these civil suits. These suits should fail for lack of standing and and evidence.

Notably, DOJ lawyers still are afraid to argue forthrightly in court what Bart parrots in public -- that FISA actually is unconstitutional.

Hardly. The government is moving to dismiss these cases at the outset for lack of standing and lack of evidence. At this preliminary stage, the government has no requirement to file an answer to even plead affirmative defenses, nevertheless argue such defenses in summary judgment.

Judge Taylor's entry of summary judgment without ruling first on the standing issue and without undisputed facts are the weakest parts of her opinion and came under nearly universal criticism by lawyers and law professors across the spectrum.

# posted by

Bart DePalma : 2:56 PM

Bart,

The point I was attempting to make was that the FISC is demonstrating that it acknowledges that FISA cannot limit the President's Article II authority to conduct the NSA program by ignoring the restrictions of FISA and instead ratifying the program as it exists now.

IOW, FISC has made a secret an unappealable decision that FISA is unconstitutional, allowing the President to break it without either ackowledging that he is breaking it or having FISA overturned in any public venue. You think this is clever. I see it as a grave threat to the rule of law.

# posted by

Essayist-Laywer : 2:59 PM

Enlightened Layperson said...

IOW, FISC has made a secret an unappealable decision that FISA is unconstitutional, allowing the President to break it without either ackowledging that he is breaking it or having FISA overturned in any public venue. You think this is clever. I see it as a grave threat to the rule of law.

The apparent concession by the FISC that FISA could limit the President's Article II power is not what you should be worried about. The NSA was ignoring FISA in any case. The FISC concession does not change whether the program operates.

The part of this apparent concession which should disturb civil libertarians and disturbs me as a defense attorney is that the FISC is granting prospective program wide "warrants" to the NSA surveillance without requiring probable cause.

I have no problem with the NSA performing warrantless intelligence gathering against the enemy. The courts have long ago held that the 4th Amendment does not require a warrant for intelligence gathering against a foreign group or their agents in the US.

However, if Justice attempts to admit evidence gathered under such a "warrant" against a defendant in a criminal trial, they are making a direct assault on the 4th Amendment IMHO.

# posted by

Bart DePalma : 3:12 PM

Typo alert:

The apparent concession by the FISC that FISA could limit the President's Article II power is not what you should be worried about.

Should read:

The apparent concession by the FISC that FISA could not limit the President's Article II power is not what you should be worried about.

# posted by

Bart DePalma : 3:14 PM

jao:

Despite your outright misrepresentations of my posts, I will try to keep this civil.

You should not make the mistake of accepting Bart's unsupported characterization of what the FISC court has done...For more informed speculation about what the contours of the new court orders might be, see the posts by Prof. Orin Kerr here and here. He first explored the hypothesis about program-wide approval, then rejected it.

I will be generous and assume that you have not read my previous posts on the subject rather than assuming that you are deliberately mischaracterizing them.

I was among the first to post on this topic here and the first to link to the excellent Kerr analyses over at the Volkh Conspiracy so that the other readers here could follow the debate over what was being reported. I agreed with most of what Professor Kerr posted and gave my own analysis for where we differed.

If you disagree with my analysis, be man or woman enough to rebut it with your own analysis in a post directed to me rather than addressing your complaints about me to a third party.

There is no indication that the court has "issued prospective program wide warrants which reportedly ratify the current NSA program without any limits." That contradicts what we know.

The Washingon Post reported:

Four other people who have been briefed on the program, who spoke on the condition of anonymity because the program is classified, described it as a hybrid effort that includes both individual warrants and the authority for eavesdropping on more broadly defined groups of people.

The New York Times also reported, "A Congressional official who has been briefed on the new procedures called it a hybrid of individual warrants and broader approval."

That does not describe a single, program-wide warrant.

How do you figure?

Justice stated without later contradiction that the TSP is unchanged was being entirely covered under these new FISC warrants. Additionally, these warrants cover "broadly defined groups of people." Thus, the warrants must be anticipatory (because you cannot have prior probable cause for a broad class of people) and they must by definition be program wide if they cover the entire unchanged TSP. The fact that Justice is also obtaining individualized warrants does not preclude the conclusion that the FISC has also issued anticipatory program wide warrants.

Perhaps you are getting wrapped around the possibility that the FISC has issued two or more warrants that may each cover different "broadly defined groups of people" which combined cover the entire program. This is possible and largely irrelevant. My point is not that the FISC used one document, but rather that it issued a warrant or warrants which cover the entire unchanged program.

To my mind, that is ratifying the TSP rather than enforcing FISA to limit the program.

Also, no one except Bart -- who obviously is just making stuff up -- claims that the court made any finding based on Article II of the Constitution.

I provided an explanation of why the FISC is apparently ignoring the plain meaning of the FISA statutory language to ratify the TSP.

Once again, you are free to come up with an alternative explanation for why the FISC does not appear to be enforcing FISA against the TSP rather than using the coward's path of accusing me of "making stuff up."

# posted by

Bart DePalma : 4:50 PM

JT:

Let me give you a clue: Use of the term "suspected" when not accompanied by actual evidence means that the party is speculating without proof. Proof is al Qaeda claiming credit for the attack, which they are hardly shy about doing.

Next, the fact that a terrorist killed someone does not mean that they were targeting that person, especially when using area weapons like explosives on public streets. For example, the fact that one of your bombings on a Pakistani street killed a Japanese national does not mean that the bomber was targeting Japan or the Japanese.

You may have not realized this, but al Qaeda is at war with Jordan, Saudi Arabia and Pakistan and have been attacking these governments, businesses, nationals and everyone else who happens to be around for years now.

Further, I did not deny the enemy was engaging our soldiers in the Middle East. Indeed, that was my entire point. We deployed our military to the Middle East specifically for the purpose of engaging the enemy on his turf so he would no longer be free to target and murder our civilians all across the world.

Finally, you are really scraping the bottom of the barrel by claiming that a bombing targeting Saudis was actually an attack on the US because US nationals used to live at that location in the past.

# posted by

Bart DePalma : 6:48 PM

Bart,

At 11:59 am you said,

Since the United States went to war after 9/11 and started to defend itself, we have largely destroyed the al Qaeda network, denied the enemy nearly any sanctuary and stopped dozens to planned attacks on US interests around the world. As a result, the enemy has not been able to launch a single attack on US citizens outside of the Iraq and Afghan war zones.

JT Davis then pointed out that Al Qaed is alive and well in a number of countries, particularly Pakistan, Jordan, and Saudi Arabia, and has killed US citizens in those countries. At 6:48 pm you replied:

You may have not realized this, but al Qaeda is at war with Jordan, Saudi Arabia and Pakistan and have been attacking these governments, businesses, nationals and everyone else who happens to be around for years now.

Further, I did not deny the enemy was engaging our soldiers in the Middle East. Indeed, that was my entire point. We deployed our military to the Middle East specifically for the purpose of engaging the enemy on his turf so he would no longer be free to target and murder our civilians all across the world.

So at 11:59 we had destroyed the Al Qaeda network and denied them "nearly any sanctuary," yet by 6:48 pm Al Qaeda is alive and well and operating in Jordan, Saudi Arabia and Pakistan, but not specifically targeting US citizens. You did not explain how the presence of US troops in Iraq prevented Al Qaeda cells in Jordan, Saudi Arabia or Pakistan from specifically targeting US citizens in those countries. Furthermore, at 11:59 Al Qaeda was unable to hit us anywhere except Iraq and Afghanistan, whereas at 6:48 Al Qaeda could hit us in other countries, but not outside the Middle East.

Your goal posts are mighty shifty.

# posted by

Essayist-Laywer : 7:40 PM

"Bart" DePalma:

I would further note that the FISA court has essentially conceded that it has no power under FISA to limit the NSA program ...

Ummm, where? Where did they say that?

... and has appeared to gut [sic] the statutory requirements of FISA by issuing anticipatory program wide warrants ratifying the existing NSA program so that Justice will merely brief it on the progress of the program.

Once again (for the hard of listening): Are "program wide warrants" anything like "general warrants", perchance?

And just a note: I think you misspelled "violate" (or perhaps "ignore") there. If the FISC court is acting unlawfully, they should also be held to account.

Cheers,

# posted by

Anonymous : 9:14 PM

"Bart" DePalma says:

The ratification of the NSA program by the FISC will most likely save Judge Taylor's political and unsupported opinion from being summarily reversed by the 6th Circuit.

It obviously was not "summarily reversed". "Bart" is simply wrong here.

Cheers,

# posted by

Anonymous : 9:23 PM

We see exactly who "Bart" cnsiders to be the best and most persuasive "authority":

Let me give you a clue: Use of the term "suspected" when not accompanied by actual evidence means that the party is speculating without proof. Proof is al Qaeda claiming credit for the attack, which they are hardly shy about doing.

Wow. If al Qaeda says it (or more to the point, if "Bart" alleges that al Qaeda said it), of course, it is proved; it must be true....

Maybe this explains also "Bart" unquiestioning reliance on the lie... -- umm, sorry, "statements" -- of the maladministration.

Cheers,

# posted by

Anonymous : 9:36 PM

* * * * *

At least 186 antiwar protests in the United States have been monitored by the Pentagon's domestic surveillance program, according to documents obtained by the American Civil Liberties Union (ACLU), which also found that the Defense Department collected more than 2,800 reports involving Americans in a single anti-terrorism database.

The internal Defense Department documents show it is monitoring the activities of a wide swath of peace groups, including Veterans for Peace, Iraq Veterans Against the War, Military Families Speak Out, Code Pink, the American Friends Service Committee, the War Resisters League, and the umbrella group United for Peace and Justice, which is spearheading what organizers hope will be a massive march on Washington this Saturday.

One TALON report states "Veterans for Peace erected an antiwar display the week of 18 April 2005 at a local university," reads a report on a New Orleans protest from the Pentagon's Threat and Local Observation Notice (TALON) database."

FBI Joint Terrorism Task Forces in Atlanta and New York were briefed on planned protests.

* * * * *

This will mobilize the anti-war movement.

# posted by

rothmatisseko : 4:09 AM

Bart's push to make a point about how no US entities outside of Afghanistan or Iraq have suffered any terrorist attacks, while not accurate, still raised a thought for me.

Logically, all US deaths inflicted by al-Qaeda in Iraq count as successful terrorist attacks against the US, since al-Qaeda had no existence in Iraq prior to the US invasion/occupation. Our actions there created an opportunity for al-Qaeda, which they've had success in exploiting. These are losses that occurred outside the AUMF bounds, and represent US losses not as a result of pursuing al-Qaeda or terrorists linked to 9/11, but something else, making those loses entirely unnecessary with respect to fighting terrorists. The fact that terrorists have moved in is our fault and our responsibility. We made ourselves vulnerable to terrorists in Iraq, and they succeeded in attacking us.

Also logically, deaths by al-Qaeda and al-Qaeda allies in Afghanistan aren't counted, as Afghanistan was a legitimate target via AUMF and was an actual counter strike, unlike Iraq. We had to go to Afghanistan because al-Qaeda was there, unlike Iraq.

But, given that al-Qaeda has limited resources and now appears to be expending most (but not all, obviously) of those resources in Iraq, it seems that the Iraq invasion/occupation has had the effect of drawing those resources away from US soil.

I know, I'm treating al-Qaeda as though they were a centralized entity which they're not, but for purposes of examination and thought, its compelling that we've created a terrorist playground in Iraq where there was none before and which appears, at least for now, to be largely occupying their focus.

# posted by

John : 10:42 AM