Thursday, December 22, 2005

"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.]


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.

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"

at newshounds.

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!

Two quibbles:

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."

Judge Silberman, hmmmm, why does that name sound familiar? Check out to see the People for the American Way's take on this guy.

Then take a peak at

"and tell 'em Big Mitch sent ya!"

You don't feel like your best self when you fall apart, but you have to fall apart to become your best self.
Agen Judi Online Terpercaya

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