Parsing the Vice President's Careful Words

Marty Lederman

The Vice President's office sent Pat Leahy this letter today, asking for an extension of time to respond to the Senate Judiciary's subpoena for documents relating to the NSA's warrantless surveillance between 2001 and 2007.

I think it's fair to predict that, no matter how many extensions it receives, the Administration will not provide the Senate with the requested documents. Senator Leahy is threatening contempt citations.

But putting those questions aside for a moment, today's letter is revealing in at least three other ways.

First, it lists the dates on which the President issued authorizations for the NSA program -- 43 of 'em, from October 4, 2001 through December 8, 2006. Most interesting is the authorization of March 11, 2004. That was, as you'll recall, the authorization that the President issued the day after the infamous scene at the Ashcroft hospital bed, even after DOJ had concluded that it would be illegal -- the authorization that precipitated the threatened resignation of 30 or so high-level DOJ officials. The VP's letter notes that the 03/11/04 authorization was "amended" by presidential memoranda of March 19th and April 2d. Presumably, those amendments were made in order to apply the limitations required by the alternative legal justification offered by Jack Goldsmith and OLC after the fateful hospital visit. We've previously surmised that under the post-3/11 program, the surveillance was limited to communications with at least one party overseas, and with at least some attenuated connection to Al Qaeda -- requirements that may well not have been in place for the first two-and-a-half years of the surveillance.

Second, the letter lists the dates of no fewer than ten DOJ memoranda, beginning on October 4, 2001 (when the program started). The first six memoranda, presumably penned by John Yoo, were issued before Jack Goldsmith took office at OLC. What I presume was Goldsmith's first memo was on March 15, 2004, four days after the President ignored OLC's legal objection, and four days before the program was "amended" (presumably to track Goldsmith's new legal theory). The final memo, dated February 4, 2005, was issued after Goldsmith left office.

Finally, the letter lists numerous reasons why the VP's office might not release the requested documents. The second of those reasons is this:

The Office of the Vice President reserves the limitations on congressional inquiries set forth in Barenblatt v. United States, 360 U.S. 109 (1959), which makes clear that the power to inquire extends no further than the power to legislate.

Now, I happen to think that this so-called "limitation" on congressional inquiries is not nearly so clear: Many of the earliest legislative investigations were not for the purpose of designing statutory amendments, but were instead "only" to investigate wrongdoing or malfeasance in the Executive branch; and the better view is probably that Congress has at least some such broad investigative power, unrelated to its lawmaking functions. (The Court has even indicated that Congress has an important interest in Executive branch transparency simply in order to facilitate "the American people's ability to reconstruct and come to terms with their history." Nixon v. Administrator, 433 U.S. at 452-453.)

But even if it were the case that Congress can only investigate in areas where it can legislate, . . . so what? Such an objection would only be meaningful in the context of this subpoena if there were some question about Congress's power to legislate with respect to the relevant Executive branch conduct.

So think about what the VP's letter is suggesting -- that perhaps Congress can't legislate on the topic of the government's domestic electronic surveillance!

This is, I think, a fairly audacious assertion to be making at this late date. After all, just a few days ago the President himself insisted that Congress legislate forthwith on this very subject, and then showered praise on Congress for enacting the "Protect America Act," without suggesting any constitutional disability.

What the letter is getting at here, of course, is the Vice President's longstanding view that FISA is unconstitutional, and that Congress simply can't regulate the Commander in Chief's collection of intelligence. In other words, Who Needs the Protect America Act?: Nothing would or could stop us from warrantless surveillance, anyway.

Indeed, the Administration makes no bones about the fact that it continues to assert a constitutional prerogative to ignore statutes restricting the Commander in Chief's authority -- including FISA and the Protect America Act. In yesterday's New York Times, Eric Lichtblau and James Risen wrote about how the Administration, flush with success it getting Congress to capitulate entirely, refuses to concede being bound even by the minimal restraints of the amended FISA statute:

At a tense meeting last week with lawyers from a range of private groups active in the wiretapping issue, senior Justice Department officials refused to commit the administration to adhering to the limits laid out in the new legislation and left open the possibility that the president could once again use what they have said in other instances is his constitutional authority to act outside the regulations set by Congress.

At the meeting, Bruce Fein, a Justice Department lawyer in the Reagan administration, along with other critics of the legislation, pressed Justice Department officials repeatedly for an assurance that the administration considered itself bound by the restrictions imposed by Congress. The Justice Department, led by Ken Wainstein, the assistant attorney general for national security, refused to do so, according to three participants in the meeting.

What a surprise.
Posted 11:40 PM by Marty Lederman [link]