Thursday, December 22, 2005
"Inherent Authority" to Violate Federal Law?
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."
I have always seen reliance on YoungstownSheet as dubious in so far as it is taken to be bedrock law that sets out limits on Presidential power in various categories. The case arose from an action by a politically weak President during an unpopular "police action" by a Court packed with pro-union New Dealers.
Suppose the strike that precipatated the seizure had happened a few weeks after Pearl Harbor, or at any time during WWII, when a politically potent FDR-- who, after all, threatened to draft striking coal miners if they didn't go back-- was in the White House. Do you think the result would have been the same?
The real difference is the level of threat to America, and what the American people will ultimately support.
Of course, Congress has one other option in asserting it's authority over these illegal wiretaps, although it's quite extreme. They can refuse to fund the NSA. I'm sure a budget with a severely reduced appropriation for the Agency would get the President's attention, and perhaps cause him to give a bit more weight to the duly enacted laws of this country.
The media and much of the blogosphere, for whatever reason, has been obsessed with the details of the NSA program while ignoring the bigger story of the President's "inherant authority" to violate federal law.
Under the President's reading, any law regulating the activities of the FBI, CIA, NSA, or DoD is inherently unconstitutional insofar as it applies to the War on Terror. This explains the DOD monitoring various political groups under the guise of terrorism. It explains the NSA program. It explains any concurrent FBI programs monitoring Americans without warrants.
Because "terrorism" is such a broad discription, there's no reason to think that the federal government's surveillance is limited to Islamic terrorist groups, even if the NSA program is. Environmental groups, radical student organizations of all stripes, militia groups, and even gay rigts groups can be subject to surveillance.
When you really think about it, virtually any group is capable of violence. Taken to its logical extreme, such violence can easily be construed as "terrorism." Thus, under the President's reading, any political or quasi-political group in the United States may be subject to surveillance so long as the feds find a propensity for violence. Which is easy enough: just monitor their email until you find something. By really, why even bother finding evidence of violence when the President's inherant authority doesn't require groups like NSA, CIA, FBI or Dod to report to Congress or the judical branch?
Marty L does a good job of identifying the crux of the argument made by the President's defenders. But, I did not find his attemped rebuttal of that argument persuasive. A few points:
1) The fact that one President agreed that the FISA statute should be the exclusive means of such searches is beside the point. Presidents are not bound by the Constitutional determinations of prior Presidents. Nor are we.
2) The fact that the President's power is at its lowest ebb as defined by Justice Jackson's concurrence -- does not end the analysis --- it merely begins it. What is the scope of the Commander-in-Chief power, for instance, in instances like the present, where Congress has authorized hostilities against a foe determined to attack targets on American soil? Could Congress, after authorizing hostilities, require the President to obtain a warrant before seizing a hostile ship that sailed into New York Harbor? Searching the ship? Seizing its occupants? If so, then Article II's commitment of the Commander-in-Chief power to the President becomes nugatory. One might just as well say that Congress can prevent the President from vetoing a bill, because a statute that purports to do so puts us into a particular Youngstown category. Why does the Constitution commit certain powers to the President if the Congress can remove them at its pleasure, by passing ordinary legislation?
3) If Congress CAN remove the President's power in this way, why not allow Congress to remove, say, a judge's power to decide a case or controvesy that is otherwise legitimately before him/her? The Supreme Court, at least, has said that such a statute, though otherwise within Congress's power, violates Article III. See, e.g., Plaut v. Spendthrift Farms; Heyburn's case. Are Article III powers more sacrosanct than Article II powers?
4) As for what prior Administrations have claimed, here is what a Clinton DOJ official, John Schmidt, wrote yesterday in the Chicago Tribune:
"Every president since FISA's passage has asserted that he retained inherent power to go beyond the [FISA] act's terms. Under President Clinton, deputy Atty. Gen. Jamie Gorelick testified that 'the Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes.'"
Schmidt at least apparently believes that his Boss was making a claim that the President can ignore FISA in some instances. Whether he actually did is likely classified. Note that President Clinton's claim of such power is weaker than that of President Bush, because in the present case, there is actually a Congressional authorization of military hostilities. There was none when President Clinton made his claim.
5) Of course, the Commander-in-Chief power has limits. But I have not seen much effort in the Blogosphere to define those limits. Gathering tactical intelligence as part of a continuing military operation against a foe that Congress has identified seems much closer to the core of that power than the seizure of steal mills in the midst of a labor dispute.
There's a good expose of the Carter and Clinton orders, which referenced statutory provisos like:
"there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party"
You've put your finger on all the right and interesting (and often difficult) questions, Alan. (Do I know you, btw?) You're right that being at the "lowest ebb" doesn't mean the President *invariably* is trumped by the statute. But he is at the "lowest ebb," which is a far cry from the sort of unbounded authority that this Administration asserts.
The question of what happens at the lowest ebb -- how to define which sorts of limitations are legitimate and which not -- is woefully underexplored. I'm working on it now!
1. I don't think this is akin to a limitation on the veto. The veto power is, like the pardon power, absolute -- its very nature is that the President is given complete discretion, not subject to statutory limit. There is no "lowest ebb" there. Not so with the Commander-in-Chief powers, which are subject to substantial control by Congress acting pursuant to its numerous war-related powers.
2. When Schmidt writes that "every president since FISA's passage has asserted that he retained inherent power to go beyond the [FISA] act's terms," I *don't* think he's saying (or ought to say) "that the President can ignore FISA in some instances." Or at least, the examples he cites don't make any such claim. In those cases, the Carter and Clinton Administrations asserted the right to engage in surveillance *not covered by FISA*, or surveillance *in compliance with* FISA. But I'm not aware of any case in which either administration asserted the right to violate FISA. (If there are such examples, I'm eager to learn of them.)
To me, the slam-dunk rebuttal to the contention that the President has executive authority to disobey statutes is the fact that the Constitution expressly grants Congress powers to regulate various aspects of war-making, i.e., not only to declare war, but to raise and support an army and navy, and to make rules for captures on land and water.
You can't argue that the Commander-in-Chief power supersedes congressional regulation of war powers without writing those powers completely out of the Constitution. Indeed, the obvious interpretation is the diametric opposite-- that the Commander-in-Chief power is subject to Congressional regulation pursuant to Congress' enumerated powers.
I think another difference between the veto power and pardon power is that they are explicit. While there is an explicit Commander-in-Chief power in Article II, it's contours are much more ill-defined.
Furthermore, all of the talk surrounding the NSA wiretaps have to do with inherent, as opposed to explicit, authority. The veto power is explicit.
As far as the AUMF...while there may seem to be some logical argument that "Hey, this is less than force, and force is authorized" I think there IS a distinct difference between authorizing force against a foreign power and authorizing wiretapping of American citizens.
I don't think a broad authorization of the first can be stretched to cover the second.
The "tenuous" connection between the intercepts and the war on terror is inevitable, given the elusive nature of the enemy. But when you know that there's a dangerous weapon buried in a haystack, and that the weapon might go off at any time, you search the haystack.
FISA may have been designed to avert warrantless surveillance, but it was enacted long before cellular telephone technology became as widespread and advanced as it is today. Perhaps it is better to consider FISA irrelevant to the issue, rather than unconstitutional. Given its irrelevance, the president is thrown back on the inherent powers argument.
Please forgive me for digressing from the "inherent authority" debate for a moment. After taking a quick look at the Department of Justice letter to which Prof. Lederman linked in his update to this post, I have come to wonder whether the Authorization to Use Military Force ("AUMF") is necessarily a "statute," as that word is used in the Foreign Intelligence Surveillance Act ("FISA") (or even an "Act of Congress," as that phrase is used in 18 U.S.C. 4001(a), the detention statute at issue in the Hamdi litigation). This question isn't meant to be substantive--I'm not asking whether the AUMF can reasonably be construed as a manifestation of Congressional intent to allow the sort of warrantless electronic surveillance at issue. Rather, I'm wondering whether the AUMF even meets the definition of a "statute" for FISA purposes. The AUMF was a Joint Resolution (admittedly the product of bicameral vote and presentment to the President), but it does not contain the enacting clause generally required of binding positive legislation. See 2 U.S.C. 101 (describing enacting clause for Acts of Congress); c.f. 2 U.S.C. 102 (describing resolving clause for Joint Resolutions). I don't think this issue was raised in the Hamdi litigation--at least the Supreme Court opinion doesn't appear to get into it. But the U.S. Code clearly distinguishes between Acts of Congress and Joint Resultions, and I haven't seen this distinction discussed in the AUMF context.
Perhaps there's a good reason--am I being too formalistic here?
The question of what exactly "commander in chief" under Art. II has not been addressed, really, to any degree.
Take a look at Fleming v. Page, 50 U.S. 603 (1850), a case arising out of the Mexican-American war where the issue concerned whether the President, as CIC, could unilaterally impose a tariff on goods coming to the US from Mexico.
Here's what CJ Taney said, and pay careful attention to the last clause of the sentence:
"His duty and his power are purely military. As commander-in-chief, he is authorized to direct the movements of the naval and military forces placed by law at his command, and to employ them in the manner he may deem most effectual to harass and conquer and subdue the enemy. He may invade the hostile country, and subject it to the sovereignty and authority of the United States. But his conquests do not enlarge the boundaries of this Union, nor extend the operation of our institutions and laws beyond the limits before assigned to them by the legislative power."
I think there are two important limitations to the President's "unbounded" power that you gloss over (and I will admit as a lowly hourly-biller I'm guilty of skimming your post, so if you didn't, I apologize). First, there is the Bill of Rights, which acts as a check on the President, Congress, and Courts equally (although my one-time mentor Professor Van Alstyne would quibble -- at least in theory -- with regard to the First Amendment). Thus, much of the "parade of horribles" laid out regarding purely domestic surveillance would presumably be barred, since the President can't constitutionally conduct warrantless, purely domestic surveillance, even with regard to any Article II wartimes power. Second, as one poster has rightly pointed out, the Congress holds the power of the purse.
I have a couple of other quibbles with the post. First, there isn't anything shocking or new about the position taken by the Bush Administration, at least not in the big picture. It is my understanding that every Adminstration since Nixon has argued that the War Powers Act is an unconstitutional encroachment upon the President's Article II powers. While they've still complied with the requirements of the Act, the argument itself has been out there for decades; this isn't something the Bush Administration has simply plucked out of the ether.
Second, you seem to place great emphasis on the fact that the Executive Branch agreed to be bound by this. While I think that's a decent rhetorical device, I don't find it a particularly useful fact. I'm not clear that the Executive can somehow waive its Article II powers, or estop itself from ever reasserting them by signing a bill, and indeed I doubt that it can (cf. INS v. Chadha). Regardless, I don't think this would be any more constitutional had FISA been pased over Carter's veto (though that might be a way to distinguish the War Powers Act).
Finally, I'm not sure about this argument: "The veto power is, like the pardon power, absolute -- its very nature is that the President is given complete discretion, not subject to statutory limit. . . . Not so with the Commander-in-Chief powers, which are subject to substantial control by Congress acting pursuant to its numerous war-related powers."
I'm not sure that's correct. Under your argument, why couldn't Congress, pursuant to its power to regulate interstate commerce, pass a law that prohibits a President from using his pardons power to pardon someone who engages in interstate commerce by selling, possessing, or conspiring to sell cocaine? Either assume congressional findings that President Clinton's 18 pardons on cocaine-related offenses the deterrent that Congress intends,
(http://jurist.law.pitt.edu/pardons6a.htm), or if you want, assume a President pardons 10,000 convicted cocaine dealers and Congress makes similar findings (since the first might be more vulnerable to a Lopez challenge).
How would that not be the same as the situation we have here? Congress has acted pursuant to a specific constitutional power, so we're in Youngstown Sheet category III. The President asserts he can break the law, because a "mere statute" can't trump his Constitutional powers. As I understand it, the President is clearly correct.
It seems to me the real issue isn't whether the President has Article II wartime powers that override statutes (but that are constrained by the Bill of Rights). Rather, it is a question of whether these wiretaps fall within those powers, a much closer question than many on the Right are crediting.
PS I think the wiretapping program is a very, very, very serious issue. I don't mean to diminish it. I just think the question is much closer than people on either side are making it out to be.
Marty, with respect, your attempt to distinguish the decision by the FISA Court of Review is unconvincing.
First, your argument is largely predicated on the assertion that the language “was almost certainly written by Judge Laurence Silberman,” and the implicit assertion that the other two members of the panel simply (and perhaps unwittingly) signed off on to Judge Silberman’s attempt to write his personal preferences into law. Not only is that merely conjecture on your part, it is hugely offensive to the other two members of the panel.
For your information, the presiding member of the panel, Judge Ralph B. Guy, Jr., served as the United States Attorney for the Eastern District of Michigan from 1970 to 1976, as a United States District Judge from 1976 until 1985, and has served on the Sixth Circuit since 1985. The other member of the panel, Judge Edward Leavy, served on the state bench in Oregon from 1957 to 1976 (including sitting for a year pro tem on the Oregon Supreme Court), as a United States Magistrate from 1976 to 1984, as a United States District Judge from 1984 to 1987, and has served on the Ninth Circuit since 1987.
In other words, when the decision by the FISA Court of Review was rendered in 2002, Judges Guy and Leavy had sat for a combined total of 52 years on the federal bench, and Judge Leavy had sat for an addition 19 years on the state bench. Yet, by your account, not only is it obvious that they had no involvement in writing the opinion or passage in question, but they apparently were simply automotans who blindly sided with whatever Judge Silberman wrote. I don’t think that's what you actually believe, and perhaps you have simply fallen victim to a classic case of Beltway insularity, in that you only give weight to the views of a judge with whom you are familiar. Regardless, that most unfortunately is the practical import of your argument, and Judges Guy and Leavy certainly are entitled to a little more respect than you are giving them, which is essentially none.
Second, although I think the point is debatable given the positions of the Carter and Clinton Administrations regarding physical searches of foreign intelligence subjects, you may ultimately be right that “Congress and the President rejected Silberman's unorthodox constitutional view when they enacted FISA.” However, the Bush Administration argued the contrary position in its brief to the FISA Court of Review, and that court agreed with the Administration’s analysis, albeit in dictum. However wrong you think the court’s view might be, the court of review with specialized jurisdiction to decide these questions has spoken and, in the absence of an authoritative statement by the Supreme Court, its analysis is worthy of respect.
Indeed, while the passage in question is indisputably dictum, that does not mean that it is not worthy of respect. To the contrary, it is an established principle that dictum by the courts of appeals are worthy of great weight. See Guyon v. Basso, — F. Supp.2d — (E.D. Va. Dec. 8, 2005) (“[E]ven if dictum, statements by the court of appeals are to be given considerable weight.”); Lee v. Coughlin, 643 F.Supp. 546, 549 (W.D.N.Y. 1986) (circuit dictum is “worthy of great weight and respect from the lower courts of this Circuit”). Thus, while you try to simply dismiss the court’s analysis as a “throwaway” passage, it would be entitled to great respect by the lower FISA court in adjudicating this question.
At bottom, while you have every right to argue that the FISA Court of Review’s analysis was wrong, your attempt to dismiss it out-of-hand is far too cavalier. At a bare minimum, it’s hard to debate that the Administration could not have given great weight to the FISA Court of Review’s dictum in adopting the position it did.
Update to your update: I don’t see where you get the idea that the “Administration is running (as least for now) only with the argument that the AUMF authorized exceptions to the FISA regime, and not that the FISA is unconstitutional under Article II. Even a cursory review of the letter reveals that the AAG cites to the FISA Court of Review’s decision for the proposition that the President’s Article II authority “includes the authority to order warrantless foreign intelligence surveillance within the United States,” and only then adds that this Article II authority is supplemented by the AUMF.
The circumstances do not matter. What the American people will accept doesn't matter. This is a question of constitutional authority. Bush (really Cheney) is asserting that the president is above the law and can disregard any statute he thinks (to use the term loosely) impinges on his power. This is a direct assault on the rule of law. If this is allowed to stand, then we no longer live in a democratic republic---it is a fascist autocracy, and Bush has been crowned King Dubya. To paraphrase Thomas Paine (Common Sense, 1776) is Bush King or is the Law King?
I guess we need to look at the bigger picture here. Bush was installed into power on the basis of a SCOTUS ruling that sought not only to ignore precedent but to prevent future rulings from utilizing Bush vs Gore as precedent.
Bush does not recognize any "controlling legal authority" other than those who will bolster his arguments. Every other court ruling, treaty, law, or other statute is invalid. This is the most reckless and breathtaking abuse of power probably in our history. if Congress does not impeach, and if SCOTUS supports him, then our Constitution is dead. and Bush has torn it to pieces.
This is indeed a Constitutional crisis and I wish our MSM would start referring to it as such.
This is about no less grave a matter than, is Bush a dictator, and does Congress have any relevance at all? Is Congress simply a rubber stamp, whose will can be circumvented so long as the President says the magic word, "war"?
I wonder about a couple of things relevant to this issue (NB: IANAL, and I might not have followed these issues quite as closely as I should have). First, Congress gave the president authority to declare war on Iraq, not on anyone he chose, correct? Second, the president already declared victory over Iraq when Sadam's government fell. Certainly, the Iraq on which war was declared no longer exists (except territorially, perhaps). It seems that Congress could declare that there is no longer a state of war, and that, therefore, the President's (open-ended) claims of wartime exigencies are completely baseless.
Judge Silberman, hmmmm, why does that name sound familiar? Check out http://www.pfaw.org/pfaw/general/default.aspx?oid=13902 to see the People for the American Way's take on this guy.
Then take a peak at schapira.blogspot.com
"and tell 'em Big Mitch sent ya!"
About this Art. II commander-in-chief power.... If you take a look at the Articles of Confederation, you will find them full of detailed references about how an army is to be mustered. The army at that time consisted of local and state militias (see Amend. 2), a standing army was an evil to be avoided (see Amend. 3), and the c-in-c power was similar to that exercised today by nationalizing the national guard. Lincoln's attempts to use the c-in-c power beyond this were rebuffed, albeit after the war danger had passed. The national security apparatus, which arose in the Wilson era, went virtually unchecked until the Vietnam-Watergate era; the last previous effort to overthrow civilian control was during Iran-Contra, and now the same cast of characters is doing so again, with more success.
"First, Congress gave the president authority to declare war on Iraq, not on anyone he chose, correct? "
I don't think so. Congress authorized the use of military force in Iraq. This is not a declaration of war, for all that very warlike activities have occured. I think they actually need to say the magic words "we declare war".
I believe that for President Bush to claim that his Constitutional Title II powers as commander-in-chief during wartime permit the NSA intercepts, a formal declaration of was is required.
The Constitution says what it says, and the administration knows that they don't really have the power they've claimed.
That's why they wanted this kept secret.
You don't feel like your best self when you fall apart, but you have to fall apart to become your best self.
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