Misdirected Outrage

Marty Lederman

The blogging mentality, I suppose -- Jack and I were writing similar posts at the same time.

Senator Sheldon Whitehouse of Rhode Island has been one of the very best, most careful and most thoughtful legislators in recent months on a wide range of legal issues relating to the Gonzales DOJ, the war on terror, NSA surveillance, and the like.

Therefore it's with some regret that I write here to take issue with his latest speech on the Senate floor, expressing his outrage in response to reading classified OLC memos on the NSA surveillance questions. I am confident that there is much in those memos that gave Senator Whitehouse plenty of reason to be shocked and dismayed, and I hope that he will continue to make more of them public. In this case, however, I think Senator Whitehouse has primarily aimed his criticisms at the wrong targets, sorry to say.

Whitehouse is a member of the Senate Intelligence Committee, and thus he was recently (but years too late) given access to the OLC opinions written over the course of the several years of the secret NSA surveillance program in violation of FISA. Those opinions should, of course, be declassified and made public to the extent possible (redacting any information about NSA technological capabilities); and Congress should take some serious steps to prevent the Executive from overclassifying; but be that as it may, it's a small advance that at least some legislators have now seen the OLC documents. Unfortunately, the Senators are not permitted to keep copies, or, apparently, to show them to aides, let alone outsiders, with working knowledge of the legal issues; nor are the Senators permitted to say anything about the documents, even if they think the documents are outrageous and authorize unlawful conduct . . . unless and until the Administration chooses to selectively declassify portions of them.

The Administration has now permitted Whitehouse to talk about three aspects of the OLC Opinions, and that's what he did yesterday. He expressed incredulity about all three. But there's a reason the Administration gave him the green light on those three matters -- because the OLC statements in question are boilerplate, and fairly uncontroversial (with one possible, important exception, noted below). There are undoubtedly very audacious and disturbing aspects of many of those OLC memos -- such as the arguments that the AUMF superseded FISA and that the President has a constitutional right to violate FISA; and almost certainly descriptions of how much broader and more indiscriminate the NSA program was before Jack Goldsmith reined it in a bit in early 2004 -- but the three statements Whitehouse identified, standing alone, are not terribly noteworthy, at least not from a constitutional perspective.

Let's look at each of them briefly, as quoted by Whitehouse (from his notes), switching the order a bit:

1. "The President, exercising his constitutional authority under Article II, can determine whether an action is a lawful exercise of the President’s authority under Article II."

This is simply a correct statement. Indeed, the President has a constitutional obligation to take care that the laws, including the Constitution, are faithfully executed. That obligation includes the responsibility to assess and to protect the President's own prerogatives. This is how we put the point in the Clinton Administration, in a landmark Opinion issued by Walter Dellinger:

Executive branch lawyers . . . have a constitutional obligation, one grounded not in parochial institutional interests but in our fundamental duty to safeguard the liberty of the people, to assert and maintain the legitimate powers and privileges of the President against inadvertent or intentional congressional intrusion. As Attorney General William Mitchell put it long ago:

Since the organization of the Government, Presidents have felt bound to insist upon the maintenance of the Executive functions unimpa[i]red by legislative encroachment, just as the legislative branch has felt bound to resist interferences with its power by the Executive. To acquiesce in legislation having a tendency to encroach upon the executive authority results in establishing dangerous precedents

. . . . Our analyses are guided and, where there is a decision of the Court on point, governed by the Supreme Court's decisions on separation of powers. At the same time, the executive branch has an independent constitutional obligation to interpret and apply the Constitution. That obligation is of particular importance in the area of separation of powers, where the issues often do not give rise to cases or controversies that can be resolved by the courts.

The problems in the Bush Administration are not that the President is interpreting the Constitution himself, or that he asserts the power to resist statutes that in his view unconstitutionally impinge on his constitutional prerogatives, but instead that the substantive views of the Administration on the nature and scope of those executive prerogatives are simply wrong, and that he his adopting and acting upon such views in secret.

Now, Senator Whitehouse goes a step further: he suggests that the OLC statement violates the principle of judicial interpretive supremacy: "Does this administration agree that it is emphatically the province and the duty of the judicial department to say what the President’s authority is under Article II? No, it is the President, according to this OLC, who decides the legal limits of his own Article II power."

If the Bush OLC opinions actually say that -- that the President will act according to his own constitutional views even when the courts disagree -- then yes, that would be a big deal. Again, from the 1996 Dellinger Opinion:

We believe that the constitutional structure obligates the executive branch to adhere to settled judicial doctrine that limits executive and legislative power. While the Supreme Court's decisions interpreting the Constitution cannot simply be equated with the Constitution, we are mindful of the special role of the courts in the interpretation of the law of the Constitution. "It is emphatically the province and duty of the judicial department to say what the law is." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). . . . Our analyses are guided and, where there is a decision of the Court on point, governed by the Supreme Court's decisions on separation of powers."

But Senator Whitehouse has not (yet) quoted anything from the OLC opinions suggesting that President Bush would allow his own views to trump those of the Court, or that he would, for only the second time in our nation's history, actually disobey a judgment of the courts if he disagreed with its constitutional rationale. (As far as we know, notwithstanding the broad views of executive power in this Administration, they have not asserted any power to disregard judicial orders.) Perhaps such an argument does appear in those OLC opinions (e.g., an argument that the NSA could disobey a FISA court order), and if so, Senator Whitehouse should reveal that, because it would be quite important. But so far, we haven't seen anything to that effect.

2. "The Department of Justice is bound by the President’s legal determinations."

Here's what Whitehouse says about this claim:

Let that sink in a minute. We are a nation of laws, not of men. This nation was founded in rejection of the royalist principles that 'l’etat c’est moi' and 'The King can do no wrong.' Our Attorney General swears an oath to defend the Constitution and the laws of the United States; we are not some banana republic in which the officials all have to kowtow to the 'supreme leader.'

Well, yes. If the President tells the Attorney General to do something that the AG thinks is unconstitutional, there are cases where the AG should refuse to do it, and resign. Similarly, if the President rejects DOJ's strongly held view that something is unlawful, and goes ahead and does it anyway based on his own contrary view of the law, it can be quite appropriate for DOJ officials to threaten to resign. And that's exactly what happened with Ashcroft, Comey, Goldsmith, et al., when the President was prepared to adopt Addington's views rather than theirs, and to break the law contrary to their judgment. (Whether refusal to follow the President's determination, and resignation, are an appropriate response in a particular case must depend largely on the nature of the question and the plausibility of the President's legal views.)

But the OLC quotation Whitehouse cites doesn't say otherwise. Ultimately, the President is the one who makes legal determinations for the Executive branch, and the DOJ must, indeed, abide by his views -- assuming, that is, that there are any attorneys left who have not resigned! DOJ is an agent of the President. (No, I don't mean that DOJ's obligation is to do what's best for the President; only that they are acting on his behalf, and subject to his control.) The Constitution gives the President the authority to obtain the opinions of the Attorney General. In the ordinary course, the President should abide by those opinions -- after all, one hopes he appointed the AG because he or she is someone whose legal judgments the President trusts -- and, in fact, that's what happens in 99 cases out of 100. But he need not accept those AG opinions, and sometimes he takes a view different from DOJ. Indeed, with respect to one of the first great constitutional dilemmas in the new nation, President Washington rejected AG Randolph's opinion about the constitutionality of the first national bank -- and ultimately, in M'Culloch v. Maryland, the Court affirmed Washington's view (which was Hamilton's, too), and rejected Randolph's (which was also Madison's and Jefferson's). Ultimately, the constitutional judgment is the President's to make for the Executive branch.


3. "An executive order cannot limit a President. There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it."


This is actually the most interesting and disturbing of the three quotes, but it's not because of any constitutional problem. OLC is correct here that the President has the power to decline to follow a presidential E.O. (assuming there is no statute requiring that he adhere).

Nevertheless, there does appear to be an outrage here. Apparently -- and this is real news of the Whitehouse statement -- the President decided to secretly ignore Executive Order 12333, which, among other things, has long been the only real source (other than Fourth Amendment) of legal protection of the privacy rights of U.S. persons overseas vis-a-vis surveillance by the federal government. This is a gap in FISA that the 1978 Congress said it would get around to closing -- but it never did. And so the only thing standing between U.S. persons overseas and their own government snooping on them has been E.O. 12333.

If the President publicly rescinded 12333, there would be a huge outcry. It would prompt Congress to act immediately.

Which is presumably why he didn't do so in public. Whitehouse suggests that the President secretly transgressed 12333. If so -- if in fact the President chose to ignore 12333 without notifying the public or Congress, it's quite outrageous -- constitutional bad faith, really, to announce to the world that you are acting one way (in large part to deter the legislature from acting), while in fact doing exactly the opposite. It might even mean that the Administration allowed executive branch officials to mislead Congress by assuring them in testimony that 12333 remained a serious limitation on government surveillance. (Now that's something worth investigating.)

So Senator Whitehouse is basically correct when he characterizes the President as saying "I don’t have to follow my own rules, and I don’t have to tell you when I’m breaking them."

This might not be unconstitutional -- it might not even be illegal -- but it is a serious breach of faith, and a severe threat to the operation of checks and balances, if, indeed, the President has been secrecy authorizing violations of E.O. 12333.

Therefore Senator Whitehouse is absolutely right, not about the constitutional issue, but about one other, very important matter:

Unless Congress acts, here is what legally prevents this President from wiretapping Americans traveling abroad at will: Nothing. Nothing. We simply cannot put the authority to wiretap Americans, whenever they step outside America’s boundaries, under the exclusive control and supervision of the executive branch. We do not allow it when Americans are here at home; we should not allow it when they travel abroad. The principles of congressional legislation and oversight, and of judicial approval and review, are simple and longstanding. Americans deserve this protection wherever on God’s green earth they may travel.

Posted 5:03 PM by Marty Lederman [link]