an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
So What Does John McCain Think of the President's Constitutional Authority to Violate FISA?
Not even the Shadow knows.
There has been a spate of stories in recent days endlessly recounting, parsing and debating a long series of statements by Senator McCain and his campaign about the extremely important question of whether the NSA's domestic surveillance program was unlawful or whether, instead, the President has the constitutional authority to disregard limits on electronic surveillance that Congress imposed in the Foreign Intelligence Surveillance Act (FISA). See, for example, Glenn Greenwald's, Charlie Savage's, and Orin Kerr's accounts.
The whole, sordid timeline is provided in this Jake Tapper blogpost today, in which Jake appends the McCain campaign's latest, even-more-ambiguous flip-flop.
Personally, I don't think the great debate about McCain really thinks about the question is worth the candle. If one examines the entire series of statements, it soon becomes evident either that the Senator and his staff have no earthly idea what they're talking about or (more likely) that they are quite deliberately being as ambiguous, equivocal and contradictory as possible, so that they can embrace whichever view is politically expedient at any given time and with any given audience -- so that they can, for example, tell Charlie Savage that the President has no dictatorial constitutional power to disregard FISA, while at the same time reassuring the Republican base (i.e., the National Review) that, as President, McCain would scoff at statutes that get in his way.
Let's give the McCain folks credit: they have managed to say just about everything and nothing at all -- all at once! The statements really have a kabuki-like feel to them. My favorite is this quote from a McCain spokesman to Charlie Savage: "To the extent that the comments of members of our staff are misinterpreted, they shouldn’t be read into as anything otherwise." That's a classic. Please don't try to parse it -- life is too short.
When we last left our protagonists, they were on a "President can do whatever he wishes" wave of the cycle.
Not so fast!
That aggressive posture precipitated the inevitable blowback in the New York Times and in the Blogosphere, and so, late today, a spokesperson, one so-called "Tucker Bounds" (the same guy who gave us the gobbledygook "To the extent" quote above) e-mailed ABC News to clarify that John McCain would adhere to the Constitution's checks and balances -- unless, of course, he wouldn't:
John McCain continues to believe, as he always has, that every President has the obligation to obey and enforce laws passed by Congress and signed by the President. His position has not changed. This is precisely why he believes that existing FISA laws need to be modernized to provide in statute clear guidance for future actions that may need to be taken, therefore making it less likely that any President would need to rely solely on constitutional authority to protect this country.
So far, so good. The President should have come to Congress to seek an amendment to FISA, rather than breaking the law as he did with the NSA program -- something he may not do under our Constitution.
Not so fast. To make sure that Andrew McCarthy and his crew are mollified, "Tucker Bounds" quickly added the following, second paragraph:
A number of courts, including the Foreign Intelligence Surveillance Court of Review, have recognized the President’s constitutional authority to conduct warrantless surveillance for foreign intelligence purposes, that is, foreign-based communications and phone calls. The courts’ findings supported the Bush Administration’s efforts in the wake of September 11, 2001, and the McCain campaign has made statements referencing these findings.
Yikes. So the President did have the constitutional authority to violate FISA? Which is it?
For what it's worth, what "a number of courts" have said is simply that the President enjoys some level of constitutional authority to conduct warrantless surveillance for foreign intelligence purposes where there is no statute limiting that authority. There is some dispute within the courts of appeals as to precisely what the scope of that constitutional authority is (a question that depends largely on the Fourth Amendment rather than on Article II); but there is no serious question that, putting aside some unresolved Fourth Amendment questions, the NSA program would have been within the President's authority, and would therefore have been legal, if FISA had not been enacted.
But FISA was enacted, and the question at hand therefore is not whether the President has any constitutional surveillance authority vel non, but instead whether he has the constitutional authority to act in derogation of FISA. The first paragraph of the newest Bounds e-mail suggests the answer is "no." But, not surprisingly, the second paragraph takes back what the first appeared to concede -- particularly in its citation to In re Sealed Case, in which Judge Silberman, for the FISA appeals court, gratuitously opined in dicta that if the President has the constitutional power to engage in the surveillance in the first place, there's nothing Congress can do to restrict that power. (Silberman had been a lonely voice in the mid-1970's arguing that FISA was unconstitutional. His dictum in the recent In re Sealed Case is his attempt to re-fight a battle he lost thirty years before.)
So confusing! So internally inconsistent! How are we to understand Senator McCain's actual views?
FISA has never required a warrant to intercept communications between two people overseas, or to intercept communication to a targeted person overseas if the communication is intercepted overseas. When the NYT disclosed the existence of the TSP, it suggested but did not prove that communications were intercepted inside the US, which most people reading the language of FISA would have believed required a warrant.
However, the Protect America Act changed that. It retroactively "clarified" the question of what is and isn't electronic surveillance covered by FISA. "Sec. 105A. Nothing in the definition of electronic surveillance under section 101(f) shall be construed to encompass surveillance directed at a person reasonably believed to be located outside of the United States."
With this change, even if the NYT was originally correct that communications were intercepted inside the US, this could no longer be regarded as covered by FISA or requiring a warrant as long as the target of the intercept was overseas.
The administration has never admitted that the TSP violated FISA as it was originally written. Certainly, there is no reason to believe that it violated FISA under the clarifed/changed definition.
Obviously it is better for a president to do what McCain suggests and follow the law as it exists than to, as may have been the case here, change the law to retroactively legalize something you have already done.
McCain is an Ex Officio member of the Senate Select Committee on Intelligence, so he may actually be one of the people who knows what really happened. However, under the rules he would not be allowed to disclose the facts. Since we do not know these details, it is not surprising that statements released on the matter are not clear. It would be illegal for him to be clear, and as he says in the statement quoted, he will not do something illegal.
McCain is in the same position many Democratic candidates for President have been in (John Kerry in particular comes to mind), trying to avoid either offending the base or alienating swing voters. Like Democrats (Kerry) before him, this involves twisting himself into knots that would send the highest-level yoga adept to a chiropractor.
If I understand the mish mash put out by the McCain campaign, McCain simultaneously believes that the TSP was legal and that a President cannot violate a congressional statute.
There is a blind hog finding an acorn quality to this position.
McCain is legally correct if I am correct in divining his positions. Article II does not grant the President power to ignore a valid Article I statute. However, to the extent that FISA seeks to direct foreign intelligence gathering, it is not a valid Article I statute because Article I grants no such power. Therefore, the President by implementing the TSP would not be violating a valid Article I statute.
However, I doubt that the constitutional scholars (sic) over at the McCain campaign thought that deeply about the subject. More likely, Mr. McCain is showing the symptoms of transitioning from the parochial interests of the Senate to thinking about the powers he will need to exercise as President.
If anything, I think you've been too easy on McCain. Consider the passage which reads "making it less likely that any President would need to rely solely on constitutional authority to protect this country". That's in the paragraph you labeled "so far, so good", but I read it as a dog-whistle to the right, a claim that the President has uncheckable Art. II authority. All McCain seems to say is that he'd like Congress to write a law confirming that Art. II claim.
This, of course, completely contradicts the statement to The Boston Globe last December.
The first comment reads like a statement by a true believer.
"even if the NYT was originally correct" "no reason to believe" The idea that the fact McCain can't say certain things,* it is "not surprising" that he is all over the place on much more than that material in particular. etc.
The final point is particular relevant. The surely open to debate comments supplied by HG on certain narrow issues simply does not address the broader point of this piece. It is a good part spin.
It isn't quite as fun spin for some as Bart's usual style, perhaps, but spin it is all the same. In fact, including the actually amusing acorn metaphor, fairly reasonable Bart popped up once again today. The cynic might say his disdain for McCain factors in, but hey, any port in a storm.
* The Speech and Debate Clause means in fact he can say a lot more, as might a true patriotic 'maverick' given what is at stake ... like he is going to be prosecuted anyway ... just like some who selectively leaked classified info when it helped the Republicans? But, we covered this ground months ago, haven't we?
In fact, including the actually amusing acorn metaphor, fairly reasonable Bart popped up once again today.
Not really. "Bart" just used to opportunity to repeat his previous assertions more ad nauseam, and then said that of course McCain's "constitutional scholars" are agreeing with "Bart".
BTW, I guess we now have fair license to add the "(sic)" tag to "Bart" whenever the mood suits us.
After all, when talking to Constitutional law professors, "Bart"'s a "constitutional scholar" of the first order When talking to British barristers like Mourad, "Bart" knows him some British law. When talking to practising civil rights attorneys like Dilan and Candace Gorham, "Bart" knows his civil and human rights law. And when discussing 1L CivPro, "Bart" knows more than this here one-time 1L.... Truly amasing. A legal polyglot We ought to be thankful to have his all-encompassing expertise here.
True enough Arne, more or less, but the kernel of "Bart" is surrounded by more sanity than usual.
With apologies about making this about Bart (hey I wanted to make it about Howard!), let me go on a bit since he is such a fav of the comments. He loves that btw. Negative attention is still attention.
We basically have two sentences of Bart, a truism leading up to it that he spins (usual m.o.), and then a bunch of McCain criticism. I'll take that, honestly.
As to McCain struggling to get a sense of what running for "President" means, more or less, that's probably right. Not that I agree with what Bart or McCain thinks that should mean.
As to McCain's constitutional people, if Bart "then said that of course McCain's 'constitutional scholars' are agreeing with 'Bart'" he showed a bit of self-knowledge in your view. He doesn't think too much about them ... putting the word in quotes and suggesting they are muddled.