Balkinization: Congressional Ratification of Presidential Wrongdoing: The Analogy to 1863

Congressional Ratification of Presidential Wrongdoing: The Analogy to 1863

Marty Lederman

I want to pick up on one important aspect of Jack's excellent post about the new FISA amendments.

So far, most of the public attention has been on two features of the new law: the telecom immunity and the NSA's broad new electronic surveillance powers themselves. Critics such as Glenn Greenwald are understandably incredulous that a Democratic Congress would approve of these things where the President is a lame duck whose approval ratings are at record lows, and where that same Congress has (arguably) regretted its recent past capitulations on national security matters, such as the Military Commissions Act and the Iraq War authorization.

As I've written in several posts here, I share the concerns about the broad new authorities Congress is giving the NSA. But I understand the case on behalf of the new authorization, and, like Senator Obama, my principal regret in this respect is that the new law does not provide sufficient protections of U.S. persons -- in particular, that it does nothing to beef up the required "minimization" procedures to limit the government's use of the vast reservoir of U.S. persons' international communications to which it will now have access.

I don't think any good case has been made for telecom immunity; but Congress's decision on that score is not surprising, either -- it can be explained in large part by campaign contributions. Moreover, the immunity wouldn't be such a big deal if there were some means of accountability for the government officials who asked the telecoms to violate FISA.

Which brings me to the part of Jack's post that I'd like to focus on, the aspect of the legislation that most concerns me: Has Congress now ratified the President's past wrongdoing? Jack writes:

[T]he fact that Congress is now giving the President the authority to do much of what he was probably doing (illegally) before suggests that Bush's illegal program has to a large degree been ratified by Congress. If you want a historical example, although not a perfect one, it is Lincoln's decision to (illegally) suspend habeas corpus, which was later followed by Congress's ratification of Lincoln's suspension. . . . If this is not a ratification in form, it is surely one in substance.

My take is slightly different:The fact that Congress has now authorized the NSA, going forward, to do much of what the Agency did from 2001 to 2007, does not itself mean that the legislature has ratified the past illegal conduct. It might only mean that the legislature agrees with President Bush that such surveillance is a worthwhile thing, and that FISA should be amended accordingly -- perhaps even that FISA should have been so amended in 2001.

But it surely does not follow that Congress has thereby ratified the Administration's past wrongdoing: That the law should be amended to make something legal ordinarily does not suggest that it was ok to do that same thing -- in secret -- for six years while it was unlawful.

The most regrettable part of the legislation, then -- what might truly be deemed a ratification of the past wrongdoing -- is not that Congress has given the NSA new authorities, but that it did not insist upon some sort of accountability for -- or even transparency of! -- the previous gross misconduct, in exchange for giving the President almost everything he was seeking prospectively.

Jack makes reference to Congress's 1863 "ratification" of Lincoln's suspension of habeas corpus in 1861. The analogy is partially apt for the reason I just discussed -- not because Congress itself suspended habeas prospectively, but because the Civil War Congress did little, if anything, to penalize Lincoln for his unlawful unilateral suspension of the writ -- other than to complain loudly.

But for several reasons, Congress's "ratification" of past wrongdoing today is much more troubling than the legislative "ratification" of Lincoln in 1863.

Most obviously, Lincoln's party controlled the Congress -- indeed, most of the opposition, not to mention those who would principally be affected by the suspension, were AWOL. Lincoln's approval rating wasn't in the low 20's, and he wasn't a lame duck. And Congress largely approved of the way he was handling the war (the principal criticism coming from Radical Republicans who thought Lincoln was not sufficiently aggressive). Thus, it's not at all surprising that Congress did not do much to penalize Lincoln for having usurped a power that belonged to the legislature.

For another thing, when Congress finally got around to suspending habeas, it did not give Lincoln quite everything he wanted -- it limited his suspension power in important respects: This was the actual, largely ignored holding of the Milligan case, which David Barron and I describe at pages 1004-1008 here.

But the biggest distinction between 1863 and 2008 was in the nature of Lincoln's wrongdoing and posture toward Congress, as compared with President Bush's.

Lincoln publicly suspended habeas; he didn't do it secretly.

Lincoln's legal claim, while certainly audacious, was not that he had the constitutional authority to disregard congressional statutes, but instead simply that Article I empowered both the President and Congress to suspend the writ.

Perhaps most importantly, even though Lincoln was asserting a concurrent constitutional power, contrary to the views of most legislators that the power belonged to Congress alone, Lincoln justified his assertion of that power on the ground that Congress was not available to exercise it. (Congress was in recess from the attack on Fort Sumter until July 4, 1861.) And once Congress had returned, Lincoln conceded that the legislature was supreme, and that he would abide by their judgments. As David Barron and I have written:

In his July 4 message to Congress, Lincoln defended his action in
“suspending” the writ with his famous remark suggesting that a President might choose to violate a single law lest “all the laws but one . . . go unexecuted.” But in making this statement, the President was not asserting a general constitutional power as Commander in Chief to pick and choose among statutory mandates regulating the conduct of war. He was instead remarking on the President’s responsibility to take action on an emergency basis when doing so is necessary to preserve the nation. Even here, Lincoln was careful to insist that Congress retained ultimate control, and he readily conceded that his bold initiatives, including those regarding the suspension of habeas, were subject to statutory qualification or override: “Whether there shall be any legislation upon the subject, and, if any, what, is submitted entirely to the better judgment of Congress.” In other words, Lincoln was arguing that so long as a power resided in the Congress, and the Congress was unable to act because it was not in session at a moment of emergency or crisis, the President could, in effect, act so as to preserve the nation. Although such initial executive action would clearly shift the burden of inertia sharply in the Executive’s favor, Lincoln did not challenge Congress’s authority to countermand the President’s emergency actions.

That is a far cry from President Bush's secret disobedience of a federal law for six years, on a theory that the Commander in Chief can disregard statutes that restrict his conduct of war. The biggest problem with today's FISA law, then, is what Congress has not done: It has done nothing even to bring to light the details of the President's wrongdoing -- not even released the OLC memos on which the program was based -- let alone anything to promote public accountability for such past wrongdoing. If the President and his defenders crow that this is a ratification of that past gross misconduct, I can't say I'd blame them.

Posted 1:23 PM by Marty Lederman [link]

Comments:

-- The most regrettable part of the legislation, then -- what might truly be deemed a ratification of the past wrongdoing -- is not that Congress has given the NSA new authorities, but that it did not insist upon some sort of accountability for -- or even transparency of! -- the previous gross misconduct, in exchange for giving the President almost everything he was seeking prospectively. --
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That's one way to look at it. But from the perspective of the public, which may look to the law (statutory and case law) to understand the boundary between individual and government, Congress can now be rightfully cast as a charlatan, a liar. The lines it drew in 1978, since amended, are worthless. Congress itself declared them so. One would have to be naive in the extreme to think that the line drawn in 2008 has any more value than the "fake" line drawn in 1978.
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Accountability needs a gauge to measure against - and Congress has shown that its gauge is worthless.

# posted by

cboldt : 2:39 PM

i'm curious why such a retroactive quashing of the law isn't prohibited by the principle of ex-post-facto laws being prohibited by the constitution ..

can one of you legal eagles expalin where my thinking has gone astray on this .. ??

now .. bear in mind .. IANAL .. but i don't mind doing a bit of reading if someone can highlight which haystack to look under ..

# posted by

Jkat : 2:54 PM

-- i'm curious why such a retroactive quashing of the law isn't prohibited by the principle of ex-post-facto laws being prohibited by the constitution --
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ex post facto is the criminalization or forbidding of something, after the conduct.
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But there is nothing that says a law on the books can't be stricken. Not that many are, just sayin', they aren't meant to stand forever.

# posted by

cboldt : 2:59 PM

i'm curious why such a retroactive quashing of the law isn't prohibited by the principle of ex-post-facto laws being prohibited by the constitution ..

can one of you legal eagles expalin where my thinking has gone astray on this .. ??

cboldt gave part of the answer. When Congress tries to criminalize conduct after the fact, that violates the ex post facto clause (note that the clause only applies in criminal cases).

The opposite is not true, however. Speaking generally, when Congress repeals a criminal statute, or reduces the penalty, such change can affect even pending cases. Under the common law (pre-dating the Constitution), when a criminal law was repealed, the courts would not recognize prosecutions even when the acts took place before repeal. The way Congress deals with this issue (assuming it wants to) is to include a savings clause which continues the previous law in effect for all acts prior to repeal.*

The issue is, obviously, less clear-cut in a case like this where Congress modified the statute rather than repealed it. As I understand it, though, the ACLU and EFF intend to argue that Congress either could not or did not succeed in immunizing past liablity. My guess is that they'll lose.

*For a recent example of these issues, see the Genarlow Wilson case.

# posted by

Mark Field : 3:45 PM

I think it would be useful to identify the wrongdoing at issue here.

According to all of the Gang of Eight who tacitly approved the TSP and the super majority of Congress who voted to gut FISA and ratify the TSP, it was FISA that was wrong and the TSP which was right.

Is it really wrongdoing to do the right thing even if it means violating a bad law? To answer that question in the affirmative is to promote process over justice.

Rather, one can make a stronger case that the only wrongdoing at issue is enacting a bad law and then compounding that error by enforcing the bad law.

# posted by

Bart DePalma : 3:54 PM

At least once per year - ideally on July 4 as a diversion from the ongoing project of the corporate establishment media to turn it into the US equivalent of Guy Fawkes Day [Tim McVeigh Day has a certain something], I hazard a guess as to the true identity of The Blogger Who Styles Him/Herself As "Bart DePalma".

Having sifted thru the nominees I am pleased [not to mention honored] to announce that this year's winning entry is ...

Douglas Feith, PhD, TSFGITW, currently squatting on the grounds of Georgetown U.

The rules of the contest require "Bart DePalma" to out him- her- itself upon his- her- its true identity being asserted as such in any comment or comments which he- she- it may choose to post on this website*

*Subject to enforcement through US Congress subpoena process.

# posted by

Diderot's Dog : 4:15 PM

Right now, FISA 2008 is cast as "good law" because it tracks Article II power to obtain foreign intelligence information, without resort to a warrant, by keeping a watchful eye on international communications.
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But one day, the statute will be cast as unconstitutionally restrictive of Article II power, because "foreign intelligence information" can be transmitted entirely within the US.
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Hence my belief that the 2008 statute is as worthless as the 1978 one was, in describing the limits of government-directed warrantless snooping. There was no limit before 1978, the statutory limit from 1978 to the present was a toothless charade, as is the new statutory limit.

# posted by

cboldt : 4:26 PM

okay .. thanks to y'all .. i wasn't aware the ex-post facto prohibition only applied to criminal law .. that pretty well sums up my confusion on the issue ..

# posted by

Jkat : 4:31 PM

This comment has been removed by the author.

# posted by

Bart DePalma : 4:40 PM

This comment has been removed by the author.

# posted by

Bart DePalma : 4:40 PM

cboldt:

Even after consideration of Marty's valiant effort to justify FISA as an attempt to regulate commerce, the fact remains that FISA in all of its incarnations does not have a basis in Article I to the extent that it attempts to direct intelligence gathering against foreign groups no matter where it takes place.

The President agreed to this charade to obtain Congress' ratification of the TSP before he left office.

When technology advances again, FISA will have to be either ignored or reformed (further gutted) again.

# posted by

Bart DePalma : 4:41 PM

-- Even after consideration of Marty's valiant effort to justify FISA as an attempt to regulate commerce, the fact remains that FISA in all of its incarnations does not have a basis in Article I --
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Indeed. One could ask the same about 18 USC 2511, the criminalization of interception of wire and radio transmissions - even those that are not interstate in nature. A fun case in point, US v Anaya, 548 F.2d 871 (9th Cir. 1985).
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The government sought FISA to create a safe harbor and to impart the imprimatur of judicial oversight to cases that involve a mix of foreign intelligence and criminal prosecution. Dump the "exclusive means" BS, as well as the criminal and civil penalties, and the public would be on notice that FISA in no way describes or imposes a limit on warrantless surveillance. That's the fact of the situation. The government will snoop for foreign intelligence purposes to the full extent that technology permits. It's only "difficulty" will be in exporting that information into a criminal prosecution. The government prefers FISA to stay in place, it has never attacked it as unconstitutional in light of Article II. All of the attacks have been by defendants in criminal cases, who claimed FISA was unconstitutional as against the 4th amendment - and all those cases resolved in the statute's favor.

# posted by

cboldt : 5:05 PM

-- When technology advances again, FISA will have to be either ignored or reformed --
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"Advance of technology" is a cheap canard.
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April 12, 2000 statement by NSA Director Lt. Gen. Hayden to the House Permanent Select Committee on Intelligence
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"The result today at NSA is an intelligence gathering system that operates within detailed, constitutionally-based, substantive, and procedural limits under the watchful eyes of Congress, numerous institutions within the Executive Branch, and - - through the FISA -- the judiciary. The privacy framework is technology neutral and does not require amendment to accommodate new communications technologies."
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What's changed is stated privacy policy, as embodied in statute (actual privacy policy has always been "we'll snoop as much as we can"). The stated policy had been to require independent grounds for foreign intelligence suspicion before acquiring international (US-foreign) communications. Now the policy is to not require independent grounds for foreign intelligence suspicion before acquiring international communications, unless the target is in the US. That change in stated policy results in casting a much wider surveillance net.
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My general point though, is that the stated privacy policy is intentionally misleading. It's meant to keep the public from getting uppity, by imparting a false sense of privacy as against the government.

# posted by

cboldt : 5:16 PM

"Is it really wrongdoing to do the right thing even if it means violating a bad law?"

That, of course, is the main thesis of the advocates of civil disobedience such as H.D. Thoreau and Mahatma Gandhi. But then again, they understood that the difference between a civil disobediance practitioner and a common thug or bankrobber is that the former, when deliberately breaking the law, fully intend to pay the punishment for doing so, because unless they do so, they are in no position to challenge the "bad law" with their righteousness.

Cheers,

# posted by

Arne Langsetmo : 5:28 PM

"Bart" DeDicta

I think it would be useful to identify the wrongdoing at issue here.

Sure. 50 USC §§ 1809-1810. No charge.

According to all of the Gang of Eight who tacitly approved the TSP and the super majority of Congress who voted to gut FISA and ratify the TSP, it was FISA that was wrong and the TSP which was right.

It would be nice if you would -- for at least one time after repeated requests, "Bart" -- address the question as to what legal significance the supposed acquiescence of the Gang of Eight has as to the validity of a law duly passed by majorities of both houses of Congress and signed by the president (and under what theory law and jurisprudence).

Past that, your additional assertion that these people even were of the opinion that the TSP was right and FISA was wrong has no support in the evidence available, even were it of any legal significance whatsoever.

It would be appreciated if you'd just refrain from repeating this canard ad nauseam until you address the above objections.

Cheers,

# posted by

Arne Langsetmo : 5:39 PM

cboldt:

US v Anaya, 548 F.2d 871 (9th Cir. 1985) is the kind of breathtakingly logic defying decision we have come to expect from the Ninth Circuit.

In that case, the government admitted that the wiretapping at issue had absolutely no effect on interstate commerce. Under any honest reading of Article I, a court could not conclude that Congress was exercising its power to regulate interstate commerce by proscribing an activity which undisputedly did not affect interstate commerce in any way. Of course, that did not stop the Ninth Circuit.

The Anaya court essentially held that Congress was in fact exercising its power to regulate interstate commerce because, well, Congress was confident that it could do so.

Under this logic, Mr. Bush should be able to do anything he pleases pursuant to Article II so long as he is confident he can do so. Mr. Bush is nothing if not confident, so the courts might was well rubber stamp his views as well.

They say that legislation is like making sausages and should not be too closely examined. Judicial legislation follows that dictum as well.

# posted by

Bart DePalma : 5:41 PM

-- US v Anaya, 548 F.2d 871 (9th Cir. 1985) is the kind of breathtakingly logic defying decision we have come to expect from the Ninth Circuit. --
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I know this is a substantial diversion from FISA, but do you think 18 USC 2511 is unconstitutional as applied in the case, and the District Court was right?
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Meaning that the Federal government, which charged Anaya with a violation, should have lost the case, and intrastate bugging would not be a federal offense.
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And likewise, 18 USC 2511 would be an unconstitutional bar to government actors performing intrastate bugging - and would also not bar the public from intrastate snooping on government officials.

# posted by

cboldt : 5:56 PM

This comment has been removed by the author.

# posted by

Jkat : 6:02 PM

Given the wild arguments fronted by the administration (especially that AUMF augments FISA to permit TSP), I think the only reasonable assumption is that whatever legal rational is offered will come short of covering the activity.
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Without knowing the extent of surveillance, and the government says that TSP is just one program of many, it is not possible to conclude that the surveillance activity is within Article II powers. All we have is the naked assertion, "it" (whatever "it" is) is constitutional.
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The administration is proven to be untrustworthy and opaque. Not that it lacks enthusiastic cheerleaders, I write 'em off as dumb-asses, if they aren't paid shills.

# posted by

cboldt : 6:02 PM

well .. bart let's not cobble up count otto von bismark's quote quite so horribly .. what he said was: "To retain respect for sausages and laws, one must not watch them in the making."

# posted by

Jkat : 6:04 PM

-- [Review by Gang of 8 is an indication] it was FISA that was wrong and the TSP which was right. --

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I think the administration's stated rationale reinforces my thesis, which is that the administration and Congress both aim to mislead the public in a way that causes the public to misapprehend government restraint in snooping.

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The administration did NOT want the public to know that FISA-1978 covered a narrower base of surveillance, than what was actually taking place. It reasoned that if the public knew, so would the terrorists, and they would therefore seek to avoid interception.

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Limiting disclosure of what amounts to a "policy" decision to the Gang of 8 (and even that disclosure is "iffy" and/or "incomplete" in a few ways, but no matter) shows that the administration does not trust the public to know policy.

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Not to say this is proof that the actual snooping activity is outside of Article II and the 4th amendment, but there is no question that the conduct is a government being deliberately secretive as to the extent it observes the actions of its subjects.

# posted by

cboldt : 6:15 PM

Diderot's Dog's annual contest might be renamed for subsequent years:

"THE SECOND MOST #@$&^%$# STUPIDEST MAN ON THE FACE OF THE EARTH"

since the winner of the first annual prize, Doug Feith, retired "stupidest," Frank-ly speaking.

# posted by

Shag from Brookline : 7:51 AM

cboldt said...

BD: -- US v Anaya, 548 F.2d 871 (9th Cir. 1985) is the kind of breathtakingly logic defying decision we have come to expect from the Ninth Circuit. --
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I know this is a substantial diversion from FISA, but do you think 18 USC 2511 is unconstitutional as applied in the case, and the District Court was right?
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Meaning that the Federal government, which charged Anaya with a violation, should have lost the case, and intrastate bugging would not be a federal offense.

How could it honestly be otherwise?

The judiciary's expansion by fiat of the CC and the federal power which relies upon it is a favorite constitutional sore point of mine, but I am not applying my own standards to this case.

Even the most far reaching civil rights decisions of the Warren Court at least offered the fig leaf of a claim that the act in question affected interstate commerce, no matter how outlandish and absurd the contention. The Ninth Circuit did not even bother with fig leafs and proudly displayed the stones of its arrogance for all to see.

# posted by

Bart DePalma : 10:06 AM