The Constitution According To George Bush

JB

As we go into 2006, here is an op-ed written two months after the September 11th, 2001 attacks, explaining what I believed was about to happen to the checks and balances of our democracy.

Here is a post from June 2004, after the torture memos came out, arguing that what was really at stake in the 2004 election was the future of the Constitution and the scope of executive power.

And here Ernie Miller shows us what our new Constitution will look like.

Posted 6:42 PM by JB [link] (4) comments

Our Legal and Political Culture

JB

The other day Marty was musing that it now seemed as if there was no legal proposition, no matter how outlandish, that you couldn't get some prominent lawyer these days to defend, whether it be that (1) waterboarding isn't torture, or (2) that Congress has given the President carte blanche to engage in unregulated domestic spying or (3) that no statute can limit the President's power if he asserts that he is acting as Commander-in-Chief. No legal argument, it seems, is now beyond the pale. And the worry is that given that you can find a lawyer to defend almost anything the Administration has done, the public throws up its hands. Lawyers tell us that the latest outrages coming from the Administration are actually close legal questions, on which well-trained legal minds can differ. So even if the Administration turns out to be wrong, it was only doing what Executive lawyers should do-- pushing the envelope on behalf of their client-- the President-- and the war against terror.

Marty raises an important point about our contemporary political culture, but it is not, I think, primarily a point about lawyers or about legal culture. Lawyers have always, to my knowledge, been willing to come up with clever and ingenious arguments for the interests they represent, even (and especially) when the other side believes those arguments to be spurious or to twist the law in ways contrary to its underlying spirit or purposes. And lawyers have always been willing to assert that, far from twisting the law, it is they, and not their opponents, who are being most true and faithful to the law.

Put another way, we have all known for many years that lawyers are rhetorical whores; their job is to confuse, obfuscate, and make unjust and illegal things seem perfectly just and legal, or, if they cannot quite manage that feat, to muddy up our convictions sufficiently that we conclude that it's a close case. There is nothing new about this; lawyers have been implicated in the worst injustices in human history, arguing heatedly for them all the way. They have used their considerable talents to defend-- or to protect from legal sanction-- human slavery, sweatshops, lynchings, and every possible evil that human beings can inflict on each other, they have repeatedly done so in the name of justice and the rule of law. In this sense, there is nothing unusual or distinctive about our present moment from the perspective of legal culture.

Given that lawyers are whores-- and I apologize in advance for the offense I may have given to prostitutes by comparing them to lawyers-- the question becomes, what restrains lawyers from being the most shameless tools of interest, or power, or both? There are two answers. First, lawyers' craft is always hemmed in by larger social forces and by popular opinions about ethics and morality, opinions which are not always articulated or articulable in precisely legal ways. One important task that lawyers perform is to translate or channel these moral opinions into struggles about the law. But this moral constraint has its own limits: If the moral opinions of a time are deeply corrupt, the law is unlikely to be far better.

Second, lawyers have developed a professional ethos that is devoted to formalities and procedures, and that professional ethos sometimes gets in the way of the most outrageous things that powerful people want to do. But my experience has been that professional ethos often does not constraint lawyers from serving unjust ends very much; at most, it forces them to articulate their defenses of unjust things through legal formalities. And by exercising sufficient cleverness, they are almost always able to do so. Indeed the cleverer they are, the more the professional ethos of lawyers may fail to constrain them.

Of the two constraints, I believe that the first is more important than the second. I don't think it's at all surprising that we can find lawyers today who will defend the legality of torture or the President's plenary power to spy on American citizens-- or, to take Marty's point, who will argue that all things considered it's a close legal case. I don't think it's surprising because there are people in the larger political culture who will happily argue for these practices on the merits. What I am counting on is that, at the end of the day, the American public will recoil from both practices, and that is why, at the end of the day, the legal arguments made by opponents of torture and unauthorized domestic surveillance will prevail. Lest I be misunderstood, I do not mean to say that law and legal doctrine counts for nothing, and that lawyers have no independent role to play other than as political cheerleaders for one side or the other. Rather I mean to say that the law always needs help from other sources in political culture if it is to do its job appropriately. The rule of law, I would insist, is not a purely legal or professional ideal-- it is a political ideal that demands that power be checked, circumscribed and made accountable in fair and publicly knowable ways.

Posted 5:21 PM by JB [link] (19) comments

Prosecutorial Discretion, Continued -- A Special Counsel?

Marty Lederman

In his post below, Jack implicitly raises some interesting questions about what a DOJ or NSA employee should do if she is privy to a classified program that appears to her to be unlawful. I don't really know the answer to this question. I come from a culture (OLC) where leaking even attorney-client information is unheard of, and where leaking classified information is unthinkable. If one has already gone all the way up the chain of command, and the President and the AG have rejected the argument of illegality -- and the secrecy is preventing the courts and the legislature from overseeing the Executive -- what is one to do, if firmly convinced that gross illegality is occurring? Hard question. My inclination is to say that employees just have to grin and bear it, and refrain from revealing classified information (that's what I would do -- but again, I come from a culture of confidentiality); but then again, if the classified information is being kept from the legislature (or revealed only to eight legislators who in turn can't reveal it to anyone else, including staff and legal counsel), and all employees abided by the rules not to disclose classified information, there would never be any way of checking an unlawful Executive. What's the solution here?

On a somewhat different point, Jack makes a passing reference to the notion that the Attorney General should appoint a special prosecutor to investigate the NSA wiretapping program. The ACLU makes a very serious proposal to the same effect.

The notion of a special counsel here seems to me to be misplaced, even if the prospect were not (as it is) politically unthinkable.

In order for the Attorney General to appoint a special counsel, the AG must "determine[] that criminal investigation of a person or matter is warranted." 28 C.F.R. 600.1. The AG can't possibly make such a determination here because the AG, and the President, and OLC, have already determined that the conduct in question was lawful. Indeed, without DOJ's sign-off (of "form and legality," required for all Executive Orders), the President would not have issued the orders authorizing NSA to engage in the wiretapping in the first instance.

Don't get me wrong: I've been complaining as loudly and as consistently as anyone that DOJ and the President were dead wrong on the law, and that the NSA program was unlawful. (Just scroll down.) But obviously, that's not DOJ's view, and therefore there's nothing, from DOJ's perspective, for a special counsel to investigate. (And the Special Counsel him- or herself would have nothing to do, because such Counsel must "comply with the rules, regulations, procedures, practices and policies of the Department of Justice," 28 C.F.R. 600.7(a), which "policies" presumably include the DOJ legal opinions concluding that the NSA wiretapping is lawful. Indeed, even in the days of the independent prosecutor, my understandng is that the prosecutor was not empowered to act on a view of the law that was contrary to the views of the President and the Attorney General. See Morrison v. Olson, 487 U.S. at 671-672.)

Moreover, even if the AG were to be persuaded that DOJ's previous reasoning was wrong, and that the program is unlawful, he could not possibly bring criminal charges against anyone who previously acted in reasonable reliance on DOJ's prior conclusion of legality.

Thus, this is a case for Congress to tell the Executive, in one form or another, that it refuses to allow its statutes to be violated with impunity. Another possibility, of course, is that courts may start excluding evidence that was the fruit of an unlawful wiretap -- but I doubt that such holdings (short of Supreme Court holdings, anyway) would stop the Executive from going forward with the wiretapping program.
Posted 4:04 PM by Marty Lederman [link] (5) comments

Prosecutorial Discretion

JB

Which potential crime do you think is most worth investigating?

(1) The President's decision to engage in warrantless surveillance of American citizens in apparent violation of federal law.

(2) The decision to leak the information to the public that the President had engaged in an apparent violation of federal law.

The Associated Press reports that the Justice Department, in its infinite wisdom, is now investigating (2), not (1).

In one sense that's not surprising: Justice Department officials are pretty deeply invested in defending the legality of the President's actions. So even if (1) is a far more serious potential crime than (2), it may require a special prosecutor or Congress to investigate the Administration.

And that's all the more reason to begin an independent investigation immediately. At this point, the Attorney General has a pretty serious conflict of interest.

Posted 4:01 PM by JB [link] (20) comments

Judge Alito and Executive Power

Sandy Levinson

Samuel Alito may turn out, perhaps fortunately for the rest of us, to be a victim of cruel fate, being the wrong person in the wrong place at the wrong time. Here he is, a noted—and more than competent, in any conventional sense—ultra-conservative who has the misfortune of having to face the Senate on January 7 to defend his nomination to the Supreme Court by President George W. Bush. Alas for him, the chair of the Judiciary Committee, Republican Senator Arlen Spector of Pennsylvania, seems to be more than a bit upset about recent revelations concerning NSA spying, and one can anticipate that the constitutional questions raised by the revelations will move to center stage of the hearings.

The initial response to his nomination revolved almost entirely (though not exclusively) around the implications, should he join the Court, for the maintenance of the legal regime regarding abortion signified by Roe v. Wade. Opponents emphasized the possibility that he would vote to overrule a decision that he clearly believes was illegitimate when issued in 1973; supporters either applauded that possibility or proclaimed his fidelity to the purported “superprecedent” of Roe, given that many following decision affirmed its basic holding. Spector is probably the most avid supporter of Roe among the Republican senators, but it seemed doubtful that that would be enough to wean him from loyalty to his fell Republican George W. Bush. It is not clear that this will be the case in the new post-NSA world.

What explains Alito’s nomination? It is clearly not that he has expressed grave doubts about Roe v. Wade. One could reel off at least a dozen of plausible nominees who share that hostility. Nor was he nominated because he is generally protective of the rights of the religious and skeptical of the Establishment Clause doctrines associated with Justice William Brennan. There are many other potential justices who share that view as well. Indeed, if challenging Roe and upholding the claims of Evangelical Christians were Bush’s (or Karl Rove’s) main concerns, there literally could have been no better nominee than 10th Circuit Court of Appeals Judge Michael McConnell, a former professor at the Universities of Chicago and Utah who was warmly supported by many liberal law professors (including myself) when the Senate considered his nomination in 2002 (when he was delayed by Democrats who were then in the majority) and then in 2003, when he was confirmed.

So one has to explain Alito’s nomination against the background fact that by any plausible account McConnell would have been a more distinguished nominee with easier prospects of confirmation. Key to any answer, I suggest, is the belief by insiders in the Bush Administration that he would be better on the one issue they REALLY care about, which is the aggrandizement of Executive power. The events of the past two weeks, following the disclosures about literally unwarranted wiretapping and data-mining by the National Security Agency, bring into sharp focus the intent by the Administration, led by Dick Cheney, to assert almost unlimited executive powers linked to the “Commander-in-Chief” Clause of Article II of the Constitution. Dick Cheney has apparently been obsessed since his own service as Gerald Ford’s Chief of Staff with returning the presidency to the “imperial” status that was, he thought, the victim of Watergate. For him the Bush Administration is about rolling back what are perceived as illegitimate incursions on raw presidential power.

This concern helps to explain John Roberts appointment as Chief Justice. Recall that then-Judge John Roberts gave the Administration a major victory in the D.C. Court of Appeals in the Hamdan case literally the week before he was nominated to the Supreme Court. He will, of course, have to recuse himself when the Court hears the case on appeal, as it voted to do on November 7, but there can be little doubt that there will be other similar cases dealing with the scope of executive power. Roberts is likely to be a dependable ally of the President. There is also the important detail, ignored by almost all of the press, that one of Roberts’s prerogatives as Chief Justice is the ability to appoint, without any checks from his colleagues or the Congress, federal district judges to the Federal Intelligence Surveillance Court and then federal circuit judges to serve on the three-member court of appeals from decisions of the FISC. As University of Pennsylvania Law School Professor Theodore Ruger has importantly demonstrated, Chief Justice Rehnquist was prone to appoint conservative Republicans to serve on that Court, which is the first line of defense against overreaching by the Executive in wiretapping and other forms of surveillance. One can only hope that Roberts will be less partisan in his own appointments to the Court, though, unfortunately, this issue was not broached at his own hearings.

But the Administration needs ever more votes on the Supreme Court. From their perspective, they suffered a defeat in the various cases in 2004 dealing with treatment of detainees at Guantanamo and elsewhere. Only Clarence Thomas accepted an argument similar to those made by the German (and many would add “Nazi”) legal philosopher Carl Schmitt during the 1920’s and ‘30s that the Chief Executive (or “dictator”) has basically unlimited power during a time of emergency. It is true that he reached this conclusion by reading the 2001 Authorization for the Use of Military Force in as capacious a way as humanly possible. One suspects, though, that he would be equally open to the Article II arguments that are also being made by the Administration with reference especially to the President’s power as “Commander-in-Chief” not only of the armed forces but also of America’s vast security apparatus.

Antonin Scalia, the other justice often picked out for special adoration by the Republican right, in fact wrote an eloquent dissent in the Hamdi case, which involved an American citizen incarcerated within the United States. He emphasized the necessity for congressional authorization before access to a write of habeas corpus can in effect be denied. It may in its own way be wishful thinking to view Alito as a clone of Scalia. issue. It may be just as likely that one should instead speak of “Thomalito” instead of “Scalito” with regard to the major issue before the Court, and the nation, both now and in the foreseeable future, which is the ability to stave off ever more aggressive assertions of executive power uncheckable by either Congress or the judiciary.

To be sure, if the Administration has the commitment to Executive branch aggrandizement that I am describing, one might think that an even better nominee would have been Fourth Circuit Judge Michael Luttig. But Luttig is in fact too visible; he has written too many opinions that allow easy identification of his views with those of Justice Thomas. (It is true, of course, that Luttig expressed what can only be described as cold fury at the current manipulations of the Padilla case by the Administration. They had, after all, basically sworn to the Fourth Circuit that he was a menace to the nation who must be kept sequestered from any normal judicial process, and the Circuit Court accepted the argument,. Now the Administration is like Emily Litella, saying “never mind” and wishing to remove Padilla to a civilian court in Miami to be tried on quite ordinary criminal charges. That Luttig may be furious at the Administration does not at all mean, of course, that he does not adhere to his view that the President does possess basically unlimited power when he perceives someone as the kind of threat Padilla had been described as being.) In any event, Alito is far more the “stealth” nominee in this regard than Luttig would ever have been. The Third Circuit simply doesn’t have the array of relevant opinions on national security issues, not least because the Administration explicitly places as many such cases as possible in the conservative-dominated Northern District of Virginia and then the Fourth Circuit Court of Appeals, secure in the knowledge that it will rarely lose. But it is wildly unlikely that the justice-pickers were indifferent to Judge Alito’s likely proclivities in balancing presidential powers, ostensibly to save the nation, against the civil liberties of a discrete, and often highly marginal and individual.

This makes it essential, obviously, that every member of the Senate Judiciary Committee, led by Senator Spector, grills Judge Alito in the hearings. He must be probed on his views of Article II, including the Commander-in-Chief Clause and, for that matter, the Oath of Office, given that University of Minnesota Law Professor Michael Stokes Paulsen reads the Oath to license the President essentially to do whatever he wishes so long as there is a good faith belief that it is “defense” of the Constitution. Quoting Lincoln, Paulsen argues that just as one can amputate a limb in order to save the life of a person, so can a President in effect ignore any given part of the Constitution, including, of course, any of the protections of the Bill of Rights, in order to save the Nation. To put it mildly, this theory of the “amputated Constitution” should give us all pause, and we should find out what kind of constitutional doctor Samuel Alito would be on the Supreme Court..

Had Alito been nominated two years ago, many of these questions might have sounded “academic.” In the aftermath of the disclosure of memos written within the Department of Justice justifying the President’s “inherent” right to torture and then, more recently, of Bush’s own public claims to almost limitless executive authority following the NSA disclosures, there is nothing at all academic about them. They go to the heart of whether we can maintain ourselves as a constitutional republic.

Some observers are throwing around the idea of impeaching George W. Bush. For a variety of reasons, that is unlikely to happen. We are almost certainly be stuck with Bush until 2009. But we are not stuck with having to ratify the would-be-king’s choice of his courtiers. Samuel Alito is undoubtedly very bright, and he is probably as pleasant a person as many of the stories make him out to be. But there is also a very high likelihood that he has been chosen to assist in the overall project of executive aggrandizement, and no senator should vote to confirm his nomination unless he or she is absolutely assured that that is not the case. The stakes are simply too high to allow any deference at all to this president (and vice-president), whose hunger for power, if tolerated, will transform us into a country that none of us should wish to live in.

Posted 2:05 AM by Sandy Levinson [link] (13) comments

NSA Euphemism Watch, Part 2

Marty Lederman

In this week's Weekly Standard, Gary Schmitt of AEI (former executive director of the President's Foreign Intelligence Advisory Board) has an intriguing essay in which he argues that FISA was a very bad idea to begin with:

FISA has been a problem ever since it became law in 1978. Congress passed and President Carter signed the bill regulating electronic surveillance for foreign intelligence collection in the wake of an extended, post-Watergate debate about the so-called "imperial presidency." The debate was given added urgency by reports and official investigations of indiscriminate snooping in this country by elements of the U.S. intelligence community. However, like so much else from that period, the broad arguments about the president's role in the constitutional order were wrong, and the laws designed to correct real problems created a new set of problems.

The principal problem with FISA, in Schmitt's view, is that it "is less about collecting intelligence than confirming intelligence." "Before the government can get a warrant," Schmitt explains, "the Justice Department must put together a case to present before the court stating the 'facts and circumstances relied upon . . . to justify [the attorney general's] belief that the target is an agent of a foreign power' or 'engages . . . in international terrorism.' And the FISA judges can only grant the warrant when 'there is probable cause to believe that the target' is engaged in espionage or terrorism. In short, before the government can collect intelligence on someone by breaking into his house or tapping his phones, it had better already have in hand pretty persuasive evidence that the person is probably up to no good."

In other words, the current law does not authorize -- indeed, it prohibits -- the sort of data-mining program that the NSA has been operating over the past four years. Schmitt bemoans this fact, and urges that FISA be scrapped: "We should have a serious debate about abolishing FISA and restoring the president's inherent constitutional authority to conduct warrantless searches for foreign intelligence purposes." In Schmitt's view, it should be Congress itself, not the FISA Court, that provides oversight to ensure that the Executive is not abusing the power to wiretap: "One of the odd effects of FISA has been to take serious and sustained congressional oversight of electronic surveillance off the table. The constitutional body that should be watching the executive's discretionary behavior is, after all, primarily Congress. . . . [The founders] expected presidents to do what was required to secure the country's safety. But they did anticipate that Congress would play the role of Monday--morning quarterback: exposing malfeasance when called for, adding or cutting off funds when necessary, passing laws to regularize the exercise of executive discretion without undermining it, and, in the face of truly egregious behavior, being ready to impeach a president."

It's a very intriguing proposal, akin to that of Judge Posner. I'm not yet convinced on the merits; but others will be, and it certainly is a very important debate for Congress and the public to have. Indeed, as Schmitt notes, Congress had this very debate back in the mid-1970's. FISA was not enacted on a whim; it followed considerable give-and-take, and compromise, between the Executive and Congress "in the wake of an extended, post-Watergate debate." During that debate, Laurence Silberman's testimony before Congress was bascially identical to Schmitt's column -- and it was overwhelmingly rejected by both political branches.

But perhaps the issue ought to be revisited. There would certainly be nothing illegitimate about such a debate, even if (like me) you think that FISA's checks on the Executive have been valuable.

OK, but what does that mean about the conduct of the NSA over the past four years? Schmitt doesn't come right out and say it, but the clear upshot of his column is this: FISA was too restrictive, and harmful, and so the Preisdent authorized violations of the law. Schmitt does not indulge the ridiculous fiction that Congress has already scrapped FISA, or carved out a wartime exception, when it passed the Authorization for Use of Military Force against Al Qaeda.

"[T]he law is what it is," he regretfully acknowledges.

Schmitt (and the Weekly Standard) seems untroubled by the fact that the President has been violating the law that Schmitt himself concedes is presently so restrictive. This is how he puts it: "President Bush's decision to bypass FISA warrants in the electronic surveillance of al Qaeda operatives has highlighted the act's limitations." The President made a "decision to go around FISA in the wake of 9/11 and to order the National Security Agency to conduct warrantless surveillance of emails and calls going back and forth from suspected al Qaeda operatives abroad to the United States, and vice versa."

Just to be clear: Schmitt is accusing the President of authorizing criminal conduct, of failing to abide by his constitutional obligation to "faithfully execute the laws." No doubt the President, like Schmitt, thinks those laws are inadvisable, and damaging to our national security interests. But is that a sufficient excuse?

There's a certain irony here, in that FISA itself is one of those rare statutes that expressly contemplates that the rules for Executive conduct might need to be altered during wartime. The statute provides that "[n]otwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress." 50 U.S.C. 1811.

Why does the statute permit warrantless surveillance for only the first 15 days of a war? After all, the need for intelligence ordinarily will be just as great throughout the war, not only during its first 15 days. The answer is that 15 days was deemed sufficient to give the President the opportunity to ask Congress for a statutory amendment. As the Conference Report explained: "The Conferees intend that this [fifteen-day] period will allow time for consideration of any amendment to this act that may be appropriate during a wartime emergency. The conferees expect that such amendment would be reported with recommendations within 7 days and that each House would vote on the amendment within 7 days thereafter.” H.R. Conf. Rep. No. 95-1720, at 34 (1978).

The Bush Administration could have, but did not, take advantage of the 15-day window for legislative change that Congress specifically inserted in FISA (perhaps because it was informed that an amendment to allow this sort of data-mining would have been a political nonstarter). Instead, it simply decided to violate the law. Isn't that choice to bypass the democratic process a bit disconcerting, even if (like Gary Schmitt) one thinks the law was a lousy idea to begin with?
Posted 10:37 AM by Marty Lederman [link] (16) comments

Pentagon Drags Heels on Implementing Rules Against Human Trafficking by Contractors

JB

This San Jose Mercury News story (originally from the Chicago Tribune) points out that the Pentagon has yet to implement rules against human trafficking by U.S. contractors. The sticking point seems to be that U.S. contractors don't want the responsibility of monitoring their subcontractors for violations.

Three years ago, President Bush declared that he had "zero tolerance" for trafficking in humans by the government's overseas contractors, and two years ago Congress mandated a similar policy.

But notwithstanding the president's statement and the congressional edict, the Defense Department has yet to adopt a policy to bar human trafficking.

A proposal prohibiting defense contractor involvement in human trafficking for forced prostitution and labor was drafted by the Pentagon last summer, but five defense lobbying groups oppose key provisions and a final policy still appears to be months away, according to those involved and Defense Department records.

The lobbying groups opposing the plan say they're in favor of the idea in principle, but said they believe that implementing key portions of it overseas is unrealistic. They represent thousands of firms, including some of the industry's biggest names, such as DynCorp International and Halliburton subsidiary KBR, both of which have been linked to trafficking-related concerns.

Lining up on the opposite side of the defense industry are some human-trafficking experts who say significant aspects of the Pentagon's proposed policy might actually do more harm than good unless they're changed. These experts have told the Pentagon that the policy would merely formalize practices that have allowed contractors working overseas to escape punishment for involvement in trafficking, the records show.

Posted 8:24 AM by JB [link] (8) comments

If You're Going to Read Only One Thing About the NSA Spying Program

Marty Lederman

. . . it probably ought to be this piece by Suzanne Spaulding, former assistant general counsel at the CIA, general counsel for the Senate and House Intelligence committees, and executive director of the National Terrorism Commission (1999-2000).

Excerpt:

The objectives of the surveillance program, as described in news reports, seem laudable. The government should be running to ground the contacts listed in a suspected terrorist's cell phone, for example. What is troubling is that this domestic spying is being done in apparent contravention of FISA, for reasons that still are not clear. . . .

Perhaps the administration did not believe that these wiretaps would meet the FISA standard, which requires the government to have probable cause to believe that the target of the surveillance is an agent of a foreign power, which includes terrorists and spies. . . .

[I]f administration officials believed they faced a scenario in which the FISA standard could not be met, they could have sought to amend the statute, as they have done several times since the law's enactment in 1978. Several such amendments, for example, were contained in the 2001 Patriot Act.

The administration reportedly did not think it could get an amendment without exposing details of the program. But this is not the first time the intelligence community has needed a change in the law to allow it to undertake sensitive intelligence activities that could not be disclosed. In the past, Congress and the administration have worked together to find a way to accomplish what was needed. It was never previously considered an option to simply decide that finding a legislative solution was too hard and that the executive branch could just ignore the law rather than fix it.

Moreover, the administration has yet to make the case for keeping this significant policy change secret for four years. It's hard to imagine that the terrorists do not already assume that we try to listen to their cell phone conversations (after all, it is well known that FISA allows such wiretaps) or that we have technology to help us search through reams of signals. (Check out the Wikipedia definition of Echelon on the Internet.) So what do the terrorists learn from a general public discussion about the legal authority being relied upon to target their conversations? Presumably very little. What does the American public lose by not having the public discussion? We lose the opportunity to hold our elected leaders accountable for what they do on our behalf.

Attorney General Alberto Gonzales claims that the NSA program did not violate the law because FISA only requires a warrant "unless otherwise authorized by statute" and that the congressional resolution authorizing the use of force after the attacks of Sept. 11, 2001, somehow authorized this circumvention of FISA's rules. FISA does provide for criminal penalties if surveillance is conducted under color of law "except as authorized by statute." This is a reference to either FISA or the criminal wiretap statute. A resolution, such as the Use of Force resolution, does not provide statutory authority. Moreover, FISA specifically provides for warrantless surveillance for up to 15 days after a declaration of war. Why would Congress include that provision if a mere Use of Force resolution could render FISA inapplicable?

The law clearly states that the criminal wiretap statute and FISA are "the exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted." If these authorities are exclusive, there is no other legal authority that can authorize warrantless surveillance.

Courts generally will not view such a clear statutory statement as having been overruled by a later congressional action unless there is an equally clear indication that Congress intended to do that.

The administration's ultimate argument is that "the president has the inherent authority under the Constitution, as Commander-in-Chief, to engage in this kind of activity." This is the same argument outlined in the infamous torture memo, which concluded that the president can effectively ignore any statute that appears to infringe on this broad authority. That memo was withdrawn after it became public and was roundly criticized. The legal reasoning behind the arguments, however, has never been repudiated and appears to have resurfaced here.

We cannot know for certain how the Supreme Court would rule on the legitimacy of the spying program. However, the court rejected President Harry Truman's similar claim of broad presidential power in seizing control of the nation's steel mills to avert a strike during the Korean War. The court, in a 6-to-3 ruling , stated that the president's inherent authority is at its weakest in areas where Congress has already legislated. It ruled that to find inherent presidential authority when Congress has explicitly withheld that authority -- as it has in FISA -- "is not merely to disregard in a particular instance the clear will of Congress. It is to disrespect the whole legislative process and the constitutional division of authority between president and Congress."

The administration may be counting on fear of another terrorist attack in asserting this unprecedented authority. But if President Bush can simply ignore laws that he thinks are unconstitutional, without getting a court ruling or having genuine consultations with Congress, then why bother to work so hard at getting the Patriot Act provisions right, or the McCain torture amendment, or any other laws related to terrorism? And where does it stop? Justice Sandra Day O'Connor rejected the administration's claim of unchecked power in the 2004 Hamdi case, in which the government argued that the courts could not review the legality of enemy combatant detentions. She wrote, "We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the Nation's citizens. . . . Whatever power the United States Constitution envisions for the Executive in its exchanges with . . . enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake."

Posted 10:29 AM by Marty Lederman [link] (15) comments

The McCain and Graham/Levin/Kyl Amendments -- Here They Are

Marty Lederman

Finally, the final language in the McCain and Graham/Levin/Kyl amendments is publicly available. It forms Title XIV of the Defense Authorization Act. I assume -- but don't yet know for sure -- that the Defense Appropriations bill will contain the exact same language. Most of the Senate-side floor statements construing the language can be found in 151 Congressional Record S14245-S14275 (Dec. 21, 2005) (statements of Senators Leahy, Durbin, Feingold, Levin, Kyl, Graham, Brownback, McCain, Clinton, Kerry and Reid). See also 151 CR S14170 (Dec. 20, 2005) (Sen. Kennedy). The only statements I've seen so far on the House side are those of Reps. Nadler, Sanchez and Udall, 151 CR H12207-H12211 (Dec. 18 2005); but I imagine there will be more.

Here's Title XIV:


TITLE XIV-MATTERS RELATING TO DETAINEES

Sec. 1401. Short title
Sec. 1402. Uniform standards for the interrogation of persons under the detention of the Department of Defense
Sec. 1403. Prohibition on cruel, inhuman, or degrading treatment or punishment of persons under custody or control of the United States Government
Sec. 1404. Protection of United States Government personnel engaged in authorized interrogations
Sec. 1405. Procedures for status review of detainees outside the United States
Sec. 1406. Training of Iraqi security forces regarding treatment of detainees

SEC. 1401. SHORT TITLE.

This title may be cited as the "Detainee Treatment Act of 2005".

SEC. 1402. UNIFORM STANDARDS FOR THE INTERROGATION OF PERSONS UNDER THE DETENTION OF THE DEPARTMENT OF DEFENSE.

(a)
In General.-No person in the custody or under the effective control of the Department of Defense or under detention in a Department of Defense facility shall be subject to any treatment or technique of interrogation not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation.

(b)
Applicability.-Subsection (a) shall not apply with respect to any person in the custody or under the effective control of the Department of Defense pursuant to a criminal law or immigration law of the United States.

(c)
Construction.-Nothing in this section shall be construed to affect the rights under the United States Constitution of any person in the custody or under the physical jurisdiction of the United States.

SEC. 1403. PROHIBITION ON CRUEL, INHUMAN, OR DEGRADING TREATMENT OR PUNISHMENT OF PERSONS UNDER CUSTODY OR CONTROL OF THE UNITED STATES GOVERNMENT.

(a)
In General.-No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment.

(b)
Construction.-Nothing in this section shall be construed to impose any geographical limitation on the applicability of the prohibition against cruel, inhuman, or degrading treatment or punishment under this section.

(c)
Limitation on Supersedure.-The provisions of this section shall not be superseded, except by a provision of law enacted after the date of the enactment of this Act which specifically repeals, modifies, or supersedes the provisions of this section.

(d)
Cruel, Inhuman, or Degrading Treatment or Punishment Defined.-In this section, the term "cruel, inhuman, or degrading treatment or punishment" means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth *H12834 Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984.

SEC. 1404. PROTECTION OF UNITED STATES GOVERNMENT PERSONNEL ENGAGED IN AUTHORIZED INTERROGATIONS.

(a)
Protection of United States Government Personnel.-In any civil action or criminal prosecution against an officer, employee, member of the Armed Forces, or other agent of the United States Government who is a United States person, arising out of the officer, employee, member of the Armed Forces, or other agent's engaging in specific operational practices, that involve detention and interrogation of aliens who the President or his designees have determined are believed to be engaged in or associated with international terrorist activity that poses a serious, continuing threat to the United States, its interests, or its allies, and that were officially authorized and determined to be lawful at the time that they were conducted, it shall be a defense that such officer, employee, member of the Armed Forces, or other agent did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful. Good faith reliance on advice of counsel should be an important factor, among others, to consider in assessing whether a person of ordinary sense and understanding would have known the practices to be unlawful. Nothing in this section shall be construed to limit or extinguish any defense or protection otherwise available to any person or entity from suit, civil or criminal liability, or damages, or to provide immunity from prosecution for any criminal offense by the proper authorities.

(b)
Counsel.-The United States Government may provide or employ counsel, and pay counsel fees, court costs, bail, and other expenses incident to the representation of an officer, employee, member of the Armed Forces, or other agent described in subsection (a), with respect to any civil action or criminal prosecution arising out of practices described in that subsection, under the same conditions, and to the same extent, to which such services and payments are authorized under section 1037 of title 10, United States Code.

SEC. 1405. PROCEDURES FOR STATUS REVIEW OF DETAINEES OUTSIDE THE UNITED STATES.

(a)
Submittal of Procedures for Status Review of Detainees at Guantanamo Bay, Cuba, and in Afghanistan and Iraq.-

(1) IN GENERAL.-Not later than 180 days after the date of the enactment of this Act, the Secretary of Defense shall submit to the Committee on Armed Services and the Committee on the Judiciary of the Senate and the Committee on Armed Services and the Committee on the Judiciary of the House of Representatives a report setting forth-
(A) the procedures of the Combatant Status Review Tribunals and the Administrative Review Boards established by direction of the Secretary of Defense that are in operation at Guantanamo Bay, Cuba, for determining the status of the detainees held at Guantanamo Bay or to provide an annual review to determine the need to continue to detain an alien who is a detainee; and
(B) the procedures in operation in Afghanistan and Iraq for a determination of the status of aliens detained in the custody or under the physical control of the Department of Defense in those countries.

(2) DESIGNATED CIVILIAN OFFICIAL.-The procedures submitted to Congress pursuant to paragraph (1)(A) shall ensure that the official of the Department of Defense who is designated by the President or Secretary of Defense to be the final review authority within the Department of Defense with respect to decisions of any such tribunal or board (referred to as the "Designated Civilian Official") shall be a civilian officer of the Department of Defense holding an office to which appointments are required by law to be made by the President, by and with the advice and consent of the Senate.

(3) CONSIDERATION OF NEW EVIDENCE.-The procedures submitted under paragraph (1)(A) shall provide for periodic review of any new evidence that may become available relating to the enemy combatant status of a detainee.

(b)
Consideration of Statements Derived With Coercion.-

(1) ASSESSMENT.-The procedures submitted to Congress pursuant to subsection (a)(1)(A) shall ensure that a Combatant Status Review Tribunal or Administrative Review Board, or any similar or successor administrative tribunal or board, in making a determination of status or disposition of any detainee under such procedures, shall, to the extent practicable, assess-
(A) whether any statement derived from or relating to such detainee was obtained as a result of coercion; and
(B) the probative value, if any, of any such statement.

(2) APPLICABILITY.-Paragraph (1) applies with respect to any proceeding beginning on or after the date of the enactment of this Act.

(c)
Report on Modification of Procedures.-The Secretary of Defense shall submit to the committees specified in subsection (a)(1) a report on any modification of the procedures submitted under subsection (a). Any such report shall be submitted not later than 60 days before the date on which such modification goes into effect.

(d)
Annual Report.-

(1) REPORT REQUIRED.-The Secretary of Defense shall submit to Congress an annual report on the annual review process for aliens in the custody of the Department of Defense outside the United States. Each such report shall be submitted in unclassified form, with a classified annex, if necessary. The report shall be submitted not later than December 31 each year.

(2) ELEMENTS OF REPORT.-Each such report shall include the following with respect to the year covered by the report:
(A) The number of detainees whose status was reviewed.
(B) The procedures used at each location.

(e)
Judicial Review of Detention of Enemy Combatants.-

(1) IN GENERAL.-Section 2241 of title 28, United States Code, is amended by adding at the end the following:
"(e) Except as provided in section 1405 of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider-
"(1) an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba; or
"(2) any other action against the United States or its agents relating to any aspect of the detention by the Department of Defense of an alien at Guantanamo Bay, Cuba, who-
"(A) is currently in military custody; or
"(B) has been determined by the United States Court of Appeals for the District of Columbia Circuit in accordance with the procedures set forth in section 1405(e) of the Detainee Treatment Act of 2005 to have been properly detained as an enemy combatant.".

(2) REVIEW OF DECISIONS OF COMBATANT STATUS REVIEW TRIBUNALS OF PROPRIETY OF DETENTION.-
(A) IN GENERAL.-Subject to subparagraphs (B), (C), and (D), the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of any final decision of a Combatant Status Review Tribunal that an alien is properly detained as an enemy combatant.
(B) LIMITATION ON CLAIMS.-The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit under this paragraph shall be limited to claims brought by or on behalf of an alien-
(i) who is, at the time a request for review by such court is filed, detained by the Department of Defense at Guantanamo Bay, Cuba; and
(ii) for whom a Combatant Status Review Tribunal has been conducted, pursuant to applicable procedures specified by the Secretary of Defense.
(C) SCOPE OF REVIEW.-The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit on any claims with respect to an alien under this paragraph shall be limited to the consideration of-
(i) whether the status determination of the Combatant Status Review Tribunal with regard to such alien was consistent with the standards and procedures specified by the Secretary of Defense for Combatant Status Review Tribunals (including the requirement that the conclusion of the Tribunal be supported by a preponderance of the evidence and allowing a rebuttable presumption in favor the Government's evidence); and
(ii) to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to make the determination is consistent with the Constitution and laws of the United States.
(D) TERMINATION ON RELEASE FROM CUSTODY.-The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit with respect to the claims of an alien under this paragraph shall cease upon the release of such alien from the custody of the Department of Defense.

(3) REVIEW OF FINAL DECISIONS OF MILITARY COMMISSIONS.-
(A) IN GENERAL.-Subject to subparagraphs (B), (C), and (D), the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of any final decision rendered pursuant to Military Commission Order No. 1, dated August 31, 2005 (or any successor military order).
(B) GRANT OF REVIEW.-Review under this paragraph-
(i) with respect to a capital case or a case in which the alien was sentenced to a term of imprisonment of 10 years or more, shall be as of right; or
(ii) with respect to any other case, shall be at the discretion of the United States Court of Appeals for the District of Columbia Circuit.
(C) LIMITATION ON APPEALS.-The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit under this paragraph shall be limited to an appeal brought by or on behalf of an alien-
(i) who was, at the time of the proceedings pursuant to the military order referred to in subparagraph (A), detained by the Department of Defense at Guantanamo Bay, Cuba; and
(ii) for whom a final decision has been rendered pursuant to such military order.
(D) SCOPE OF REVIEW.-The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit on an appeal of a final decision with respect to an alien under this paragraph shall be limited to the consideration of-
(i) whether the final decision was consistent with the standards and procedures specified in the military order referred to in subparagraph (A); and
(ii) to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to reach the final decision is consistent with the Constitution and laws of the United States.

(4) RESPONDENT.-The Secretary of Defense shall be the named respondent in any appeal to the United States Court of Appeals for the District of Columbia Circuit under this subsection.

(f)
Construction.-Nothing in this section shall be construed to confer any constitutional right on an alien detained as an enemy combatant outside the United States.*H12835

(g)
United States Defined.-For purposes of this section, the term "United States", when used in a geographic sense, is as defined in section 101(a)(38) of the Immigration and Nationality Act and, in particular, does not include the United States Naval Station, Guantanamo Bay, Cuba.

(h)
Effective Date.-
(1) IN GENERAL.-This section shall take effect on the date of the enactment of this Act.
(2) REVIEW OF COMBATANT STATUS TRIBUNAL AND MILITARY COMMISSION DECISIONS.-Paragraphs (2) and (3) of subsection (e) shall apply with respect to any claim whose review is governed by one of such paragraphs and that is pending on or after the date of the enactment of this Act.

SEC. 1406. TRAINING OF IRAQI SECURITY FORCES REGARDING TREATMENT OF DETAINEES.

(a)
Required Policies.-

(1) IN GENERAL.-The Secretary of Defense shall prescribe policies designed to ensure that all military and civilian Department of Defense personnel or contractor personnel of the Department of Defense responsible for the training of any unit of the Iraqi Security Forces provide training to such units regarding the international obligations and laws applicable to the humane treatment of detainees, including protections afforded under the Geneva Conventions and the Convention Against Torture.

(2) ACKNOWLEDGMENT OF TRAINING.-The Secretary shall ensure that, for all personnel of the Iraqi Security Forces who are provided training referred to in paragraph (1), there is documented acknowledgment that such training has been provided.

(3) DEADLINE FOR POLICIES TO BE PRESCRIBED.-The policies required by paragraph (1) shall be prescribed not later than 180 days after the date of the enactment of this Act.

(b)
Army Field Manual.-
(1) TRANSLATION.-The Secretary of Defense shall provide for the unclassified portions of the United States Army Field Manual on Intelligence Interrogation to be translated into Arabic and any other language the Secretary determines appropriate for use by members of the Iraqi security forces.
(2) DISTRIBUTION.-The Secretary of Defense shall provide for such manual, as translated, to be distributed to all appropriate officials of the Iraqi Government, including, but not limited to, the Iraqi Minister of Defense, the Iraqi Minister of Interior, senior Iraqi military personnel, and appropriate members of the Iraqi Security Forces with a recommendation that the principles that underlay the manual be adopted by the Iraqis as the basis for their policies on interrogation of detainees.

(c)
Transmittal to Congressional Committees.-Not less than 30 days after the date on which policies are first prescribed under subsection (a), the Secretary of Defense shall submit to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives copies of such regulations, policies, or orders, together with a report on steps taken to the date of the report to implement this section.

(d)
Annual Report.-Not less than one year after the date of the enactment of this Act, and annually thereafter, the Secretary of Defense shall submit to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives a report on the implementation of this section.
Posted 2:54 PM by Marty Lederman [link] (3) comments

Data Storage and the Fourth Amendment

JB

This Boston Globe story contains a few quotes from a long discussion I had with Charlie Savage, a Globe reporter, about the 4th Amendment implications of Echelon style surveillance. One theory holds that if the government has a computer sift through messages and phone calls, there is no Fourth Amendment problem. (For the moment I put aside the rather important differences between phone calls and e-mails under current law. That's a big if, and I don't want the reader to overlook it). The basic idea is that having a computer sift through messages raises no constitutional problems because no human being is listening in or reading anything. Rather, all the surveillance is peformed by a computer program.

I think this argument is technologically naive. The question is not whether a computer program does the initial collection of data but what happens to the data after it is collected. As storage costs decrease to zero, it makes sense to keep a copy of everything you collect so that you can index and search through it later. If you think that the amount of traffic that goes through a system like Carnivore (or like Echelon) is simply too great to collect, you are using yesterday's assumptions. Given Moore's Law with respect to decreasing cost of computing power and its rough equivalent with respect to the decreasing costs of storage space, you should assume that if the government can invest in large server farms to store data (as Google already does) it will do so. Remember that Google already keeps a cached copy of almost everything it searches for on the Internet. And Google mail keeps a copy of all of your e-mail on its servers. Storage of enormous amounts of data is part of its business model. Why do we assume this capacity is beyond the United States government?

Once data in digital form (whether voice or text or video) is stored, it must be searched and analyzed to be of any use. Put another way, data mining requires both data collection and data storage that allows the data to be mined. At some point in the process, human beings will receive information from the system. Once they receive that information, they will want to know the context in which the data that the computer has spit out to them appeared. That is, they will want access to the data base. If the data has been stored, they will have access to it. Thus the key issue is not whether the data collection was done by a human being or by a computer program. The key issue is whether the results of the data collection are stored somewhere on a computer (or, more likely, a server farm) to which government agents have access.

Unless there is a policy requiring automatic destruction of the data after a specified time, the data will remain on the computer because as storage costs decrease it is cheaper to keep data than to spend the time figuring out what to get rid of. (Once again, think about Google Mail, which assumes that you will keep all your e-mail messages, no matter how trival, on its servers because it takes too long to sift through and delete the messages you don't need any more.). When storage costs approach zero, data collection increasingly means permanent data storage unless there is a specific policy to counteract it. (To put some perspective on this, the Defense Department appears to have adopted a 90 day retention policy for a different database of suspicious incidents collected about American citizens, but it also seems not to have followed its own data destruction policy.)

In our current imagination the paradigm case of an electronic Fourth Amendment violation is real time eavesdropping on a telephone conversation. But we all know that it should make no difference if the wiretap is recorded automatically and listened to later. In like fashion, it should make no difference if the government collects information for data mining purposes, stores it on a server farm somewhere, and then returns to search the collected information at its leisure. If the information is stored, then we have a potential Fourth Amendment problem, even if the data is not accessed immediately by any human being.

Indeed, if lack of sentience allows an end run around the Fourth Amendment, then why not have robots do all the government's searching? They can collect information, store it, and allow government agents to search what the bots have found at their leisure. Moreover, since wires go into every person's home, and wireless broadcasting emanates outside every person's home, even the home should lack any special Fourth Amendment status if bots are doing all the government's dirty work.

Again, the key issue is not who collects the data initially (human or robot) but whether the data is stored. None of the accounts I have read in the press tell me how long the data collected by computers is stored or who has access to the data base. That is the question that everyone should be asking.

Posted 8:48 AM by JB [link] (14) comments

All Hail King Bush, God's Captain and Leader of His People

Brian Tamanaha

The below post, with the same title, was initially put up on July 31st of this year. Matters seemed bad enough five months ago to write such a post. As it turns out, that was just an early moment in a stream of revelations to come of conduct by the Bush Administration that blatantly flouts the law. Marty's detailed posts below on the impropriety--that is, illegality--of the conduct involved in the latest disclosures are right on. The basic proposition requires no detail, however: the Bush Administration believes it is above the law, and this is flat wrong.

For what it's worth, a bit of history, again:

The 1628 session of the English House of Commons was occupied with debates over the king's claimed martial power to imprison people outside of ordinary legal processes as the king deemed necessary in defense of the state. The king's Secretary gave the following justification:

There is no man but desires to live under the law, and we all hold the common law our inheritance that does preserve us. We are in the government of a state. The martial law touches kings highly. It is their very original. They are God's captains and leaders of his people. The name of kings is sacred, and the foundation of the commonwealth depends on them. All civil government may pass well and have a happy success. And for arms and conducting of armies, it can admit of no formal law.

Four centuries later, the Bush Administration has offered much the same argument: we are a nation under laws, but in his global war on terror Bush exercises authority above the law.

Sir Edward Coke's short answer to this argument, as sound then as it is now, was that England is a nation of laws. Either we abide by the rule of law, or we don't.
Posted 12:04 PM by Brian Tamanaha [link] (9) comments

"Inherent Authority" to Violate Federal Law?

Marty Lederman

A thoughtful interlocutor ("T. More") gently inquired, in a comment to a previous post, whether my posts on the NSA matter wouldn't be more effective, more persuasive, if I stopped bolding and emphasizing the adjectives "criminal" and "felonious" -- a tactic that, he rightly chided, might make my posts appear too intemperate, especially in light of the fact that previous Presidents have "presumed the [article II] power to eavesdrop on our enemies, and that even Carter and Clinton authorized warrantless wiretaps."

His comment alerted me to the fact that I have not been clear about the reason for my emphasis on the lawbreaking nature of the conduct here. I've bolded adjectives such as "criminal" not because I'm trying to get folks to think that the President should be locked up, or impeached, nor to precipitate a criminal investigation (and certainly not, T. More, to suggest that those who disagree with me are criminal or mendatious!). Instead, I've been emphasizing those words in order to signal the radical nature of the constitutional power that this Administration is asserting: the presidential power (under article II) to act in violation of federal criminal statutes (the Torture Act, the UCMJ, the War Crimes Act, FISA, etc.) if such statutes impinge in any way on the President's judgment about how best to execute the war on terrorism. That assertion of a sweeping constitutional power to ignore any duly enacted laws that impinge on what the President could otherwise do in war is, I think, virtually unprecedented in U.S. history.

Over the past 48 hours, we've heard defenders of the President increasingly focus on the argument that the President has "inherent" authority to engage in warrantless sureveillance of the enemy. It's important here to heed Justice Jackson's warning in the Youngstown steel seizure case that "[l]oose and irresponsible use of adjectives colors all non-legal and much legal discussion of presidential powers," and that terms such as "'[i]nherent' powers, 'implied' powers, 'incidental' powers, 'plenary' powers, 'war' powers and 'emergency' powers" are often bandied about in such discussions "without fixed or ascertainable meanings."

Just to be clear, then: The Administration is claiming not simply that the President has some "inherent" authority to surveille the enemy in times of war -- a proposition that is undoubtedly correct -- but instead the much broader, more audacious claim that the President has an unregulable authority, such that he may ignore FISA's constraints. That is to say, their claim is that FISA itself is unconstitutional.

A lot of folks are making a category error here -- a Youngstown category error, that is -- with respect to the nature of "inherent" presidental powers. Over at Powerline, for instance, John Hinderaker argues that "Congress can neither add to, nor detract from, the constitutional powers of the executive branch." This is simply flat-out wrong -- a fundamnetal misunderstanding of foreign affairs and war powers under the Constitution. These are the most important -- and truest -- words in all of Justice Jackson's concurrence:

The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.

It is true, as T. More writes, that previous Presidents have "presumed the [article II] power to eavesdrop on our enemies, and that even Carter and Clinton authorized warrantless wiretaps" (although my understanding is that the Clinton example folks are citing was not a wiretap but a physical search). I doubt that any President has asserted the right to engage in a dragnet as intrusive on U.S. person conversations as this appears to be -- or as tenuously tied to the enemy as this apparently is -- but, be that as it may, I don't disagree about the history.

Indeed, I do not deny that the President has the power as Commander-in-Chief to engage in at least some forms of warrantless surveillance against the enemy in the absence of statutory prohibition. That would be a Youngstown "Category II" case, and the conduct would probably be constitutional to the extent it did not violate the Fourth Amendment.

Thus, if we were still back in the mid-1970s, before the FISA prohibition in question had been enacted, I would not be complaining too much here about the President's constitutional authority to authorize the surveillance (except perhaps on Fourth Amendment grounds). Indeed, from 1968 to 1978, a statute was on the books that specified that the then-existing federal wiretapping law was not intended to in any way limit the constitutional power of the President: "Nothing contained in this chapter or in section 605 of the Communications Act of 1934 shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities."

During that period, some (if not all) of the warrantless surveillance here may have been within the President's constitutional power. (I may slightly disagree with the superlative post of my esteemed co-blogger Stephen Griffin on this point: Although the President may not have "inherent" authority to engage in all of the surveillance that FISA regulates (if it intrudes too much into the domestic setting, for instance), he certainly has some constitutional authority to spy on the enemy, even where the enemy is speaking to U.S. persons -- as long as there are not statutes regulating such surveillance!).

But the critical point for present purposes is that, as Prof. Griffin emphasizes, the Nation had exactly this debate in the mid-70s -- after gross abuses in connection with such warrantless surveillance -- and the legislature and Executive agreed to enact FISA, a statute regulating such warrantless surveillance. Moreover, FISA specifically repealed that prior provision of law preserving virtually unbounded Executive discretion.

That puts us in Youngstown Category III, where the President's constitutional authority to act -- even if he had it in the first place -- is at its "lowest ebb." (The Youngstown "categories" and quotations are from Jackson's concurrence, which "brings together as much combination of analysis and common sense as there is in this area." Dames & Moore, 453 U.S. at 661. For much, much more on Youngstown and the Administration's assertion of Executive authority, I'd urge you to please read Jack's extremely helpful post here.)

As far as I'm aware, Presidents Carter and Clinton did not authorize any surveillance that would violate any duly enacted law.

This Administration, by contrast, sees statutes as mere parchment barriers. Their argument -- just to be clear -- is that FISA, and the Torture Act, and the Uniform Code of Military Justice, and the federal assault statute, and the War Crimes Act, and the 60-day-limit provision of the War Powers Resolution -- and even the 9/18 AUMF itself (to the extent it is read, as it ought to be, as in some respects limiting the scope of force -- and treaties governing the treatment of detainees, and (probably) the Posse Comitatus Act, and who knows how many other laws, are unconstitutional to the extent they limit the President's discretion in this war. In OLC's words -- written just one week after the AUMF was enacted -- neither the WPR nor the AUMF, nor, presumably, any other statute, "can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response." "These decisions," OLC wrote, "under our Constitution, are for the President alone to make."

Think about that.

Such a sweeping claim of presidential power to ignore all statutes regulating his behavior in warime is radical and profoundly troubling -- and, as far as I know, virtually unprecedented. (I welcome other examples of such an extreme assertion.)

And that is what this crisis -- from the torture memo to the FISA violations, and much else in between -- is about. That is to say: It's not about warrantless surveillance (or not only about such surveillance, anyway); it's about this Administration's assertions that Congress has no role to play in the war on terror; that "mere" statutes cannot limit the President's discretion; that FISA and the Torture Act, and the War Crimes Act, etc., are unconstitutional; and that the President can (and does) violate such statutes if they stand in his way.

P.S. The Administration's defenders are citing a 2002 dictum by the FISA Court of Review: "We take for granted that the President does have that authority [to conduct warrantless searches to obtain foreign intelligence information] and, assuming that is so, FISA could not encroach on the President’s constitutional power." In re Sealed Case, 310 F.3d 717, 742 (FIS Ct. Rev. 2002) (emphasis added). That throwaway line -- not germane to the holding in that case -- was almost certainly written by Judge Laurence Silberman, who (I am told) testified in his personal capacity to the same effect in the mid-1970's, when FISA was being considered. The dictum is, in my view, dead wrong, not because the President doesn't have the authority to conduct warrantless searches to obtain foreign intelligence information -- in the absence of statutory restriciton, he probably does -- but because even if he does, FISA can and does "encroach" on (i.e., modestly regulate) that authority. More to the point, however, Congress and the President rejected Silberman's unorthodox constitutional view when they enacted FISA, and the FISA system has worked for almost three decades on the assumption -- shared, as far as I am aware, by all three branches, without any dissent until Silberman's stray dictum -- that its modest constraints are not unconstitutional usurpations of presidential authority. If Silberman and the Bush Administration are correct, then there's no need for FISA at all -- nor for the FISA Court. The President may simply proceed with surveillance on his own iniitiative, if he thinks it will help in the war on terrorism. As one FISA judge said to the Washington Post, "members could suggest disbanding the court in light of the president's suggestion that he has the power to bypass the court."

[UPDATE: Well, just goes to show you never know: It appears the Administration is running (at least for now) only with the argument that the AUMF authorized exceptions to the FISA regime, and not that FISA is unconstitutional under Article II: See the DOJ Letter here.]
Posted 11:15 AM by Marty Lederman [link] (12) comments

Why FISA is Important

Anonymous

It's important to remember why FISA was adopted in the first place. The NSA does communications surveillance and the legal basis for this during the entire history of the agency has never been that clear (see the books by James Bamford, the original one was The Puzzle Palace). When it needed a rationale, the agency tended to rely on a vague claim of presidential authority under Article II, whether there was an authorized war going on or not. This was not questioned too much as long as the agency was monitoring foreign governments or agents thereof solely.

But the agency was also in the business of monitoring all communications flowing out and in of the U.S. and many of those of course involved "U.S. persons." Under two very secret programs known as Shamrock and Minaret, the agency maintained long lists of U.S. citizens, organizations and activities and ran search routines to find references to them in the vast quantities of info flowing out and in. The info generated was given to other federal agencies such as CIA, FBI and the president himself. Eventually these activities surfaced during the 1970s in the context of prosecution of violent dissidents like the Weathermen and congressional investigations of the intelligence agencies, especially the CIA. Once they surfaced, the dominant reaction was that such surveillance was illegal unless justified by a warrant. Negotiations between the executive and Congress produced FISA and its very unusual "court," an agency without any adversarial procedures.

You might put the wisdom of the 1970s this way: there is no such thing as plenary presidential power over any domestic matter. The president has to get authority from Congress to do a domestic X, or the president doesn't have the authority. The only way presidents could get away with this prior to the 1970s was that everything they were doing was secret and this was ultimately a product of the Cold War. This makes the idea of AUMF overriding FISA especially objectionable unless it was done in terms, which of course didn't happen.

John Schmidt, who worked in the Clinton DOJ, wrote an editorial for the Chicago Tribune that has been getting some attention because he purports to provide a rationale for what Bush has done. But don't get confused because Schmidt bypasses all the relevant issues. It might be right that the president has more authority when the surveillance is purely "foreign" but the whole problem in the first place, one clearly realized and thoroughly discussed in the 1970s prior to FISA, was that U.S. citizens were being monitored as they interacted with people abroad. That is, domestic and foreign were intermingled from the beginning. The value judgment FISA made was that when there was intermingling, the balance should be struck in favor of at least some limited judicial review. If not, the President and NSA would have carte blanche to monitor any U.S. citizen for any reason as they made or received foreign communications of any kind.

It may be true, as Schmidt says, that the position he articulates on foreign surveillance has been consistently affirmed by prior presidents. The wisdom of the 1970s was that Congress is relevant and you have to get their statutory permission before you can feel confident that what you are doing is constitutional. And I doubt whether the position he articulates has ever received a full review by the Supreme Court, as opposed to lower federal courts.
Posted 9:09 AM by Anonymous [link] (8) comments

Why They Didn't Simply Go to the FISA Court -- Because That Court Will Not Approve Illegal Surveillance

Marty Lederman

Many people have been asking why the Bush Administration didn't simply seek authorization from the FISA Court for its interceptions. After all, that court is exceedingly deferential to the Executive, granting well over 99% of all applications. I've suggested previouslythat the answer was likely that such applications could not be written in good faith, because there was no possible way for dragnets of this kind to satisfy the FISA standards, the most important of which are that there must be an identifiable Al-Qaeda-related target and that there be "no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party."

In a very important story today, the Washington Post confirms this. It has nothing to do with the slowness, or cumbersomenss, of the FISA Court -- it's simply that the surveillance in question would not meet FISA standards. That is to say, the FISA court would not grant approval because these searches are unlawful.

Bush administration officials believe it is not possible, in a large-scale eavesdropping effort, to provide the kind of evidence the court requires to approve a warrant. Sources knowledgeable about the program said there is no way to secure a FISA warrant when the goal is to listen in on a vast array of communications in the hopes of finding something that sounds suspicious. Attorney General Alberto R. Gonzales said the White House had tried but failed to find a way.

One government official, who spoke on the condition of anonymity, said the administration complained bitterly that the FISA process demanded too much: to name a target and give a reason to spy on it.

"For FISA, they had to put down a written justification for the wiretap," said the official. "They couldn't dream one up."

The NSA program, and the technology on which it is based, makes it impossible to meet that criterion because the program is designed to intercept selected conversations in real time from among an enormous number relayed at any moment through satellites.

Posted 7:55 AM by Marty Lederman [link] (19) comments

Judge Posner and "Ad Hoc Initiatives" (i.e., Presidentially Sanctioned Felonies)

Marty Lederman

Judge Posner has an Op-Ed in the Washington Post this morning that is understandably receiving a lot of attention. His argument is that the latest scandal reveals a serious gap in the legal intelligence-gathering laws. Posner believes it is critical that the Government be given the legal authority to "data-mine" information from the computers and phone calls of U.S. citizens and LPRs. What this means, in his words, is the "collection, mainly through electronic means, of vast amounts of personal data," to be processed and sifted by computer, culling out the data that that "contain clues to possible threats to national security." "Innocent people, such as unwitting neighbors of terrorists, may, without knowing it, have valuable counterterrorist information."

Posner laments that the Foreign Intelligence Surveillance Act, as currently written, "is too restrictive" because that law "makes it difficult to conduct surveillance of U.S. citizens and lawful permanent residents unless they are suspected of being involved in terrorist or other hostile activities." His Op-Ed is, in essence, a proposal to amend FISA to permit data-mining of our phone calls and emails: "A much wider, finer-meshed net must be cast than when investigating a specific crime. Many of the relevant bits may be in the e-mails, phone conversations or banking records of U.S. citizens, some innocent, some not so innocent. The government is entitled to those data, but just for the limited purpose of protecting national security."

This is an important public policy debate to be having. I don't know enough to have a view on whether and to what extent Posner's proposal is wise -- other than to say that he appears to be a bit cavalier about the Fourth Amendment implications of what he's proposing.

It's obvious the Administration thinks such data-mining is critical to the war on terrorism. That's why the President has authorized the NSA to enage in a form of just such data-mining: What NSA is doing here (see my latest post) is looking for needles in haystacks -- sifting through lists of phone numbers and email addresses it has found, hoping that one or two of the individual pieces in the "chain" will reveal valuable information about Al Qaeda. (See also this intriguing hypothesis.) The applications for approval of such dragnets would never satisfy even FISA's fairly broad standards -- and so going to the FISA Court was a nonstarter. Hence, the President's extra-legal plan.

But whether and to what extent Posner is right that data mining of U.S. persons should be legal is precisely the policy debate that ought to have had occurred in Congress in 2001 when the Administration felt the need to start down that road. Instead, this Administration -- knowing that even a super-compliant Congress after 9/11 would be wary of going as far as Posner proposes -- simply decided to break the law and do it anyway, citing a Commander-in-Chief override.

What's remarkable about Posner's Op-Ed is that his whole point is that the FISA law on this presently is (in his view) woefully inadequate to the task. He never even mentions the serious implication of this point, namely, that if he is right that FISA currently prohibits this -- and he is right -- then the Administration's data mining for the past four years has been a violation of criminal law. (No specious suggestions from Posner, who knows better, that this was authorized by the AUMF: He's forthright that the law needs to be amended.)

Posner may be right that current law is too restrictive. Congress should have that debate. But isn't it troubling that an esteemed federal judge seems so indifferent to the fact that, in the meantime -- before the Nation and the Congress have had the opportunity to debate Posner's proposal -- the Nation's Chief Executive is systematically authorizing criminal felonies?

This is the way Posner characterizes what's been happening: "The Defense Department is rushing to fill [the] gaps." I suppose that's one way of putting it. (I can imagine lawyers for criminal defendants with appeals to Posner's court: "Your honor, as you've written, this criminal restriction is very unwise and needs amending. My client was merely rushing to fill the statutory gap.")

Here's the most chilling line in Posner's column, taking euphemism to a new level: "It is no surprise that gaps in domestic intelligence are being filled by ad hoc initiatives." That's Posner's kinder, gentler way of saying "It is no surprise that current federal laws, which unwisely criminalize this conduct, are being circumvented by the President's authorization to commit felonies."
Posted 8:27 AM by Marty Lederman [link] (21) comments

Another Reason Why the AUMF Argument is Wrong, and Why This Surveillance Program is Lawless

Marty Lederman

I've previously argued that it's an insult to members of Congress to suggest that when they authorized military force in Afghanistan and against Al Qaeda, they also (inadvertently) intended to give the President the power to circumvent the carefully established FISA rules that require FISA court approval for interception of communications that are likely to involve U.S. persons.

The problems with the "AUMF-authorized-it" argument, however, are more fundamental than that. The Government's main line of argument is that these interceptions are analogous to the capture of Hamdi, a U.S. citizen, on the battlefield in Afghanistan, and that if the AUMF authorized the latter, it must have authorized the former, too -- because (i) both Executive actions are against persons covered by the AUMF -- "those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons"; and (ii) the AUMF authorized the President to exercise (in Justice O'Connor's words for the Hamdi plurality) "fundamental incident[s] of waging war," and both of these Executive actions are such "fundamental incidents" of waging war.

But let's look at the communications at issue here a bit more closely, based on what the Attorney General said at his press briefing yesterday.

One of the parties to an intercepted communication is not (or need not be) in any way affiliated with, or part of, Al Qaeda, nor in any way connected to the attacks of 9/11. It could be you, or me, or our grandparents.

What about the other party to the communication? Here's what the Attorney General said:

"Another very important point to remember is that we have to have a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda."

"To the extent that there is a moderate and heavy communication involving an American citizen, it would be a communication where the other end of the call is outside the United States and where we believe that either the American citizen or the person outside the United States is somehow affiliated with al Qaeda."

"It is tied to communications where we believe one of the parties is affiliated with al Qaeda or part of an organization or group that is supportive of al Qaeda."

I don't think it's hard to understand from these carefully phrased formulations that many of the communications in question -- say, a phone call from me to someone who is not part of Al Qaeda, or working with Al Qaeda, but who is "part of" an organization "supportive of" Al Qaeda -- are between two people, neither of whom is covered under the terms of the AUMF. (Thanks to David Barron for bringing these broad formulations to my attention.)

And it's also not too hard to understand why this is just a wee bit distinguishable from the detention of a person fighting against U.S. troops on the Afghan battlefield.

(This is consistent with what we know from the New York Times's original story: "The C.I.A. seized the terrorists' computers, cellphones and personal phone directories, said the officials familiar with the program. The N.S.A. surveillance was intended to exploit those numbers and addresses as quickly as possible, they said. In addition to eavesdropping on those numbers and reading e-mail messages to and from the Qaeda figures, the N.S.A. began monitoring others linked to them, creating an expanding chain.")

This means at least three things:

1. Because it's not necessary that even one of the parties to the communication have been part of Al Qaeda, it explains why a FISA court would not have granted authority for these intercepts in the first place -- which is why the Administration could not work within the existing (very deferential, pro-government) authorities. (As General Hayden, Deputy Director of National Intelligence, put it in the press briefing, the criteria for a search here is a "subtly softer trigger" than for FISA approval. That wins the Euphemism-of-the-Week Award.)

2. Obviously, the NSA protocol is simply not covered by the terms of the AUMF itself, because it reaches conduct by NSA against communications of persons who are not "those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons."

3. It's also presumably not a "fundamental incident of war" for the Executive to wiretap a communication between two persons, neither of whom is suspected of being part of (or an agent of) the enemy (let alone the military arm of the enemy). This is not only another reason that the AUMF (and Hamdi) does not authorize these interceptions; it also means that not even the boldest assertion of Commander-in-Chief authority would support this program.
Posted 2:00 PM by Marty Lederman [link] (4) comments

Governing through terrorism

JB

The President has insisted that his domestic surveillance program was limited only to identified terrorist operatives working in the United States. That assertion would be far more believable if we hadn't learned today that the FBI had greatly expanded its notion of terrorism to investigate groups like Greenpeace and a Catholic Worker's group which the FBI accused of having a "semi-communistic ideology."

The FBI's surveillance program and the NSA's wiretapping program are separate. But the overreach by the first shows the dangers of overreach by the second. We only know about who the FBI thought was "terrorist" because of a successful Freedom of Information Act (FOIA) request. We don't know whom the NSA has similarly thought dangerous enough to wiretap in clear violation of federal law. I'd be pretty surprised if FOIA as it is currently written allowed the same degree of public revelation about whom the NSA was spying on, and certainly the NSA has no incentives to reveal the extent of its illegal activity. Precisely because the NSA's targets are far less likely ever to become public, it is far more insulated from accountability and therefore it is more likely, not less likely, to overreach than the FBI.

The basic problem is that when government officials are given exceptions from ordinary civil liberties protections to stop "terrorism" the definition of terrorism will inevitably expand. The reasons for this are a complicated mixture of good intentions (wanting to get all the terrorists) and bad incentives (labeling something terrorist frees you from ordinary restraints). The result is that officials increasingly "govern through terrorism" that is, they increasingly use the threat of terrorism as a justification for doing whatever it is they want to do.

The terrorist threat against our country is quite real and dangerous, but the "terrorist threat" as described by government officials expands beyond its boundaries because this serves the interest of government bureaucracies and allows them to avoid oversight and accountability. And perversely, by limiting accountability and oversight, the government does the job of fighting terrorism less efficiently; the government's focus on Greenpeace and Catholic workers organizations detracts its time and resources from genuine terrorist threats.

We have seen the Bush Administration repeatedly driven to this strategy in order to increase its secrecy and unaccountability. The latest version is Attorney General Gonzales' assertion that the September 18, 2001 AUMF-- which gave Congressional approval to fight terrorism militarily-- gives the President carte blanche to override the Foreign Intelligence Surveillance Act of 1978. On its face, the claim is preposterous. The logic of the claim, however, is far more important. If the AUMF impliedly alters federal laws that limit the President's power to fight terrorism, then there is no law that the President may not disregard in the name of fighting terrorism.

The second, and even more chilling argument is that the President has inherent authority to fight terrorism even absent the AUMF. Under this theory, the President can create exceptions to law whenever he determines that it is necessary to fight terrorism. If so, then not only is there no law the President may disregard, but all attempts by Congress to rein him in are presumptively unconstitutional because they interfere with his prerogative to determine the nature of the terrorist threat and the most effective means to fight it.

Thus, the strategy of "governing through terrorism"-- using the threat of terrorism as a justification for maximizing presidential power and minimizing presidential accountability inevitably produces bad incentives for executive officials. Ever-expanding power without accountability invites self-righteousness and overreaching.

The framers of the American Constitution understood this well: they saw how the British King's unchecked power over foreign affairs had led to tyranny and corruption; they saw how placing the ultimate powers of war and peace in a single individual without accountability led to imperial hubris and the destruction of liberty. Hence in their new Constitution they took many of the warmaking powers of the British King away from the executive and gave them to Congress, and they created three branches of government in order to check ambition and corruption by each.

It is time to learn those lessons once again.

Posted 8:30 AM by JB [link] (12) comments

Definition of "Audacity"

Marty Lederman

Noun: Bold or insolent heedlessness of restraints, as of those imposed by prudence, propriety, or convention.

As I explain below, the Administration's principal justification for its stark violation of FISA is the claim that Congress authorized the surveillance in question -- the circumvention of FISA's finely wrought scheme -- when, on September 18, 2004, it enacted the AUMF authorizing the President to take "necessary and appropriate force" against those reponsible for the 9/11 attacks. I suggested that this didn't pass the laugh test -- that it is simply inconceviable that any member of Congress, let alone a majority, intended by voting for the AUMF to allow circumvention of the FISA-court approval mechanism as to the wiretapping of communications involving U.S. persons. (If the AUMF had authorized such interceptions, why did the Administration seek and receive amendments to FISA in the PATRIOT Act? Why, in 2003, did the Justice Department draft further amendments to FISA -- including to section 1802 in particular -- without mentioned the surgery that had been performed by the AUMF, and why in that draft is the "U.S. person" limitation accurately described as if it had not been amended?)

But the Attorney General's press conference today makes it clear that that's their story, and they're sticking to it. The odd thing, of course, is that the Administration specifically went to Congress with a package of statutory authorities -- many related to wiretaps and surveillance -- that it thought were necessary to fight the battle against Al Qaeda. It was called the PATRIOT Act. Therefore, it's understandable that two reporters at today's conference asked the AG why they didn't simply ask Congress for a simple amendment to FISA, if this eavesdropping authority was as critical as the Administration now claims.

First, Gonzales is asked why, if this authority is so important, they didn't just "address that issue and fix it," i.e., through statutory amendment, rather than taking the "backdoor approach" [of pretending that it had already been authorized]. Here's his response:

"This is not a backdoor approach. We believe Congress has authorized this kind of surveillance. We have had discussions with Congress in the past -- certain members of Congress -- as to whether or not FISA could be amended to allow us to adequately deal with this kind of threat, and we were advised that that would be difficult, if not impossible."

Did you catch that? It's a two-part answer: (1) Congress has authorized the circumvention of FISA (in the AUMF); and (ii) We didn't ask Congress for an amendment to FISA because we were informed they would have denied it.

And then there's this exchange, in which the answers are inverted (1. We couldn't have gotten congressional authorization; 2. In any event, we got congressional authorization):

Q If FISA didn't work, why didn't you seek a new statute that allowed something like this legally?

ATTORNEY GENERAL GONZALES: That question was asked earlier. We've had discussions with members of Congress, certain members of Congress, about whether or not we could get an amendment to FISA, and we were advised that that was not likely to be -- that was not something we could likely get, certainly not without jeopardizing the existence of the program, and therefore, killing the program. And that -- and so a decision was made that because we felt that the authorities were there, that we should continue moving forward with this program.

The interesting question now, of course, is whether Congress will permit itself to be treated with such contempt.
Posted 2:59 PM by Marty Lederman [link] (16) comments