Wednesday, December 21, 2005

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."


Disclaimer: a big fan of Judge Posner

on a variety of issues, especially security-related, consistent with his concept of pragmatism J posner consistently tries to avoid unconstrained idealism ("under no circumstances should we ever X"). in doing so, he tries to weigh the pros and cons of multiple aspects of the issue under consideration including possible threats to civil liberties.

with respect to several such issues, in weighing the cons J posner exhibits a faith in the political class and in the voting public that seems overly optimistic. he apparently has confidence that as a rule "things will work out" because our political system is robust and will survive temporary anomalies that will be duly corrected by democratic processes.

so far, our history mostly justifies that opinion. the question then becomes: are the current administration and republican party leadership much more dangerous and is the public more politically ignorant (see my def below) than previously? if not, then J posner's optimism may be justified. many believe, however, that the evidence overwhelmingly suggests that the answer is "yes". one hopes that J posner is correct, and his brilliance suggests that to be the high odds bet. but woe to us all if he isn't.

politically ignorant: lacking the minimal knowledge on major topics currently subject to political debate that is necessary in order to have reasonably informed positions thereon.

I actually thought the irony of this Posner assertion was worthy of comment: Posner wrote, "That danger is more remote than at any previous period of U.S. history. Because of increased political partisanship, advances in communications technology and more numerous and competitive media, American government has become a sieve. No secrets concerning matters that would interest the public can be kept for long."
This particular activity has been secret for four years; the country's leading newspaper covered it up for over a year, all around us are serious critics calling this the most secretive administration in history, but Posner assures us that we do not need to fear, "the government is a sieve."

Suppose, for the sake of discussion, that the effectiveness of the process or technology being used by the NSA would be drastically diminished if it were made public. In other words, the very act of seeking explicit Congressional authorization would, in and of itself, compromise the program.

I certainly don't know that to be the case, but if it is, would that change the equation somewhat? Assuming the Justice Department was convinced that the program didn't violate the 4th Amendment and that Congress never contemplated such technology when it passed FISA, would the president be more justified in relying on his Article II power rather than seeking to have FISA amended? That's the question I've been struggling with at my blog.

Posner seems to be making a connection between political partisanship and the reduced risk of abuse of government data-mining that seems a bit naive. Honestly, does having bigger political axes to grind really reduce the risk of abuse? Really? I can understand the suggestion the two parties will fight harder to expose each other's secrets, but the problem with that is that the data mining in this case is not datamining being done by a politcal party, but being done by government agencies. That means the party in power has a larger opportunity for abuse that in previous times. As with all technology, we are like 3 year olds with razors. Caution is a good thing, and government datamining is best viewed with a sharp eye. Datamining doesn't make use safe - it makes the goverment more powerfull. Those two are not one in the same, as Posner seems to infer.

Anonymous liberal - I know the Senate can go into secret session and I assume the House can do so as well. Couldn't they have such a session to debate these matters if it were the case that public disucssion of them makes them less effective? On the other hand, if your point is that the if there were a public debate the public wouldn't accept the proposed law, so much the worse for the law.


I totally agree with you that if the concern is that the public (or Congress) wouldn't accept the proposal, then so be it. We're in a democracy after all.

My hypothetical had more to do with the logistics of securing Congressional authorization. Let's suppose that the secret program at issue is constitutional and would be supported by a majority of Americans (I know those are BIG assumptions).

Let's further supposed that the White House was convinced that there was no way to secure congressional approval without divulging revealing too much information and thereby compromising the program. I know the House and Senate can hold secret sessions, but can they pass secret laws? I honestly don't know the answer to that. But even if they can pass secret laws or laws vague enough not to divulge the key process or technology at issue, what are the odds that the information wouldn't be leaked? There are 100 senators and hundreds of members of Congress, many of whom would undoubtedly be opposed to the program. If you had a fully informed debate, even in secret session, what are the odds that the crucial information would stay secret?

I have no idea how closely this hypothetical tracks reality (probably not very much). But I'm curious if under those circumstances, invocation of the president's article II authority might be more understandable.

Prof. Akhil Amar puts forth in his writings an interesting concept that reference to "the people" in the 4A can mean that their representatives (or themselves in civil juries trying alleged abuses) can help to determine -- above and beyond the courts -- the meaning of "reasonable."

So, by all means, let us have a debate -- and if necessary (and determined to meet reasonable expectations of privacy) --- somewhat make things looser. But, we, the people, need a full and honest debate.

Our basic right to be secure in our persons, homes, and personal effects mandates it. As does democratic gov't.

Wait a minute. Posner is no pragmatist, at least not in the philosophical sense he sometimes claims as his own territory.

Look, Posner thinks all public policy issues ought to be left to the market because citizens are basically consumers who don't understand anything other than self-interested consumer choices. That's his line. Why not constitutional issues? If the administration can package domestic spying to sell for domestic consumption, then good enough for Posner?

T. More,

Clinton and Carter authorized warrantless wiretaps under the provisions of FISA. Namely, only with the AG's certification that FISA was being followed (i.e., no US citizens were being targeted). Bush and Gonzales have already pretty much gone on the record to suggest that Bush's warrantless wiretaps targeted US citizens.

If this is actually true, then it is a clear violation of FISA, which makes this a criminal act.

One can debate whether the President has Article II or statutory (AUMF) power to do so, but the question really isn't about whether Bush broke the FISA law. It seems that he did.

There will be two questions in this debate that I think will shake out of all of this. One is "Did the President actually authorize warrantless wiretaps on US citizens?" This is a finding of fact that will probably take place either in Federal court or an impeachment proceeding.

The second question is "Is FISA an unconstitutional law that improperly infringes on the Executive's Article II powers?" This is something that will have to be settled in the Supreme Court.

T. More: Thank you. It's gratifying to have such careful and sympathetic readers, especially those like yourself who do not share many of my jurisprudential and political presuppositions. You're probably correct that my style here has been too heated and alarmist, and that it might undermine my ability to persuade those who are not already sympathetic. Guilty as charged. (Part of the problem is that I'm frustratingly cooped up with a broken ankle, *and* too swamped with work to spend the time I usually would to craft a more temperate post.)

Having said that . . . I'm really alarmed! And hoping to convince others that this is truly alarming.

I've bolded "criminal" not because I'm trying to get folks to think that Bush should be locked up, or to precipitate a criminal investigation -- and certainly not to suggest that those who disagree with me are criminal or mendatious -- but in order to emphasize the radical nature of what this Administration is asserting: the presidential power (under article II) to act in violation of federal criminal statutes (Torture Act, UCMJ, War Crimes Act, FISA, etc.) if such statutes impinge in any way on the President's judgment about how best to win the war on terrorism. That assertion is, I think, virtually unprecedented in U.S. history (although I'd be very grateful to have readers cite previous examples).

I hope my posts have not been too "conclusory." Yes, I have given short-shrift to the AUMF argument here, preferring only to point out some of its more preposterous assumptions and implications. (In other fora (academic listservs), I've expounded at length on Hamdi and 4001, etc., but that's too detailed and dry to warrant a post here, gives the argument too much credit, and isn't really worth the candle, because the AUMF argument has, quite predictably, fallen flat on its face in Congress. It just didn't pass the laugh test to tell legislators that they had, in fact, authorized what would be FISA violations when they voted for war in Afghanistan, especially not when FISA itself already contemplates what to do in wartime; when the Congress considered and enacted actual Al-Qaeda-motivated amendments to FISA in the PATRIOT Act; and when the Administration itself admits that it inquired about a FISA amendment in this respect and was rebuffed. That's why we're quickly seeing defenders of the President abandon this argument in favor of the "inherent authority" argument.)

For what it's worth, I thought Sunstein's Harvard piece on the AUMF was egregiously wrong -- and that his post on it in this context was even more far-fetched. (And I'm typically a great admirer.) But, let me make it clear -- I don't think either Sunstein *or* John Yoo ought to be locked up. (Honest. As much as I have profound differences with John on the merits (and on the methodology) and think that his work did real damage to OLC, I think that he was caling it as he really saw it, and giving his clients exactly the sort of legal "advice" that they were seeking, and advice that was in his eyes within the spectrum of the reasonable.)

OK, so now we come to your most important assertion: that the origin of this excessive executive behavior was not with this particular administration. I take *very* seriously the historical behavior of wartime presidents, and the historical arguments of OLC. I have been and will be very critical of over-aggressive Article II arguments even in the Clinton Administration, in the Office in which I worked. But I think this case is quite different, and that a lot of folks are making a category error here in assuming an analogy -- a Youngstown category error, that is.

It is, of course, true, as you say, that previous Presidents have "presumed the [article II] power to eavesdrop on our enemies, and that even Carter and Clinton authorized warrantless wiretaps" (although I think the Clinton example folks are citing is 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 with you about the history, but it elides the reason that this episode is far different and much more alarming.

I do *not* deny that the President has the power as Commander-in-Chief to engage in warrantless surveillance against the enemy *in the absence of statutory prohibition*. (Youngstown Category II, if you will.) Thus, if the FISA prohibition in question had simply never been enacted -- if we were back in the mid-1970's -- I would not be complaining here (except perhaps on Fourth Amendment grounds).

But the critical point is that the Nation had exactly this debate in the mid-70s, and the legislature and Executive *agreed* to pass a statute *regulating* such warrantless surveillance. We're in Youngstown Category III, that is. And as far as I'm aware, Carter and Clinton did not authorize any surveillance that would *violate any duly enacted law.* This Administration, by contrast, sees statutes as mere paper barriers. Their argument -- just to be clear -- is that FISA, and the Torture Act, and the UCMJ, and the federal assault statute, and the War Crimes Act, and the War Powers Resolution -- and even the AUMF, to the extent it is read as 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 John Yoo's words -- 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." *That* is what this debate is about. It's radical and profoundly troubling. And, as far as I know, unprecedented.

Thanks again for reading.

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