Monday, December 19, 2005

Which Is It, Mr. President?

Marty Lederman

In his press conference this morning, the President focused on two things: (i) defending the legality of his Executive Orders authorizing eavesdropping of conversations involving U.S. persons (including citizens); and (ii) scolding Senators for refusing to reenact the PATRIOT Act.

What virtually no one is pointing out is the incongruity of these two arguments -- that if the President is correct about the legality of his wiretapping protocol, then there is little need to reenact the PATRIOT Act.

The principal problem with the wiretapping program is that the NSA is intercepting communications involving "U.S. persons" -- citizens and lawful permanent resident aliens -- without any judicial warrant or any approval from the FISA court. That is expressly prohibited by FISA (50 USC 1802(a)(1)(B)). (Thanks to Dan Solove for being the first to blog about this clearly.) FISA actually authorizes some forms of surveillance without FISA court approval order for up to one year, but such surveillance is subject to specific statutory limits, the most of important of which is that there must be "no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party." And, just to make clear that this is, in fact a prohbition, FISA further specifically makes it a crime to "engage in electronic surveillance under color of law except as authorized by statute." (Why didn't the NSA simply get approval from the FISA Court -- which would have made these interceptions entirely legal? I think Ken Bass is almost certainly correct that it's because this is the rare case in which the FISA court would have actually denied approval, because NSA appears to have been engaged in a fishing expedition of phone numbers and e-mail addresses that it had discovered in connection with al Qaeda operatives. [UPDATE: William Kristol and Gary Schmitt agree that FISA would not have authorized the warrants here -- but they argue that's why the President had constitutional grounds to ignore the statute.])

In his comments this morning, the Attorney General conceded that the NSA program would violate FISA ("Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides -- requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday, unless there is somehow -- there is -- unless otherwise authorized by statute or by Congress. That's what the law requires.") -- or would do so, anyway, except for two things:

1. The AG claims that the September 18, 2001 Authorization for Use of Military Force, enacted by Congress to authorize "necessary and proper force" against Al Qaeda and others responsible for 9/11, actually superseded, or impliedly repealed, the FISA prohibition on warrantless wiretapping of U.S. persons.

2. The AG claims that the President has the constitutional power, under the Commander-in-Chief Clause, to ignore FISA's prohibition in this context. "There were many lawyers within the administration who advised the president that he had an inherent authority as commander-in-chief under the constitution to engage in this kind of signals intelligence," said Gonzales, speaking on CNN.

Both of the Administration's arguments here are quite radical: (i) That the AUMF impliedly repealed the well-wrought scheme in FISA, with its prohibition on warrantless eavesdropping on U.S. persons (a repeal that only the Executive knew about: neither the public, nor even the Congress that enacted the AUMF, was aware that it had performed such radical surgery on the U.S. Code); and (ii) even if the AUMF did not repeal/amend FISA, there's a Commander-in-Chief override.

I actually think the former argument is more preposterous than the latter, although I'm sure others will disagree. [See post above, in which I conclude that the Administration's contempt for the legislature here is remarkable. I should add, as well, that FISA actually has an express provision to deal with emergencies in times of war, 50 USC 1811, which provides: "Notwithstanding 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." On the Adminisrtation's view, this 15-day limit, too, must have been impliedly repealed when Congress authorized the conflict in Afghanistan.]

In any event, if the Administration is correct about the legality of its wiretaps, then the President's impassioned scolding of the Congress this morning for failing to reenact the PATRIOT Act is entirely misguided: After all, the President already has the authority under Article II of the Constitution to do most of what the PATRIOT Act authorizes -- indeed, to override statutory provisions that would prohibit such Executive acts -- and, as if that weren't enough, Congress has already (in the AUMF) authorized the President not only to do whatever it takes to defeat Al Qaeda, but also to ignore any preexisitng legal restrictions.

Of course, this means that the PATRIOT Act itself was largely superfluous in the first instance . . . . (But that's how radical the Administration's justification of its NSA program appears to be.)

[NOTE: I realize that the PATRIOT Act also includes criminal prohibitions on private conduct that the President could not create out of thin air. But when he scolded Congress this morning for not extending the Act, presumably he was not thinking about the criminal provisions, but instead about the provisions that authorize Executive actions, such as searches and electronic interceptions.]

[UPDATE: Must-read posts from Juliette Kayyem, Orin Kerr, and Dan Solove. And on the utter inadequacy of the supposed "consultation" with congressional leadership, see this remarkable letter from Senator Rockefeller to the Vice President from 2003.]

[ADDITIONAL NOTE: There are two additional arguments floating around about why the NSA surveillance is unlawful: That it violates the Fourth Amendment; and that Al Qaeda is not the sort of foreign entity whose communications can be intercepted without court approval under FISA. I don't know much about the Fourth Amendment question -- read Orin Kerr over at the Volokh Conspiracy for more details -- but my understanding is that there are at least reasonable arguments that this program does not violate the Fourth Amendment, and, more to the point, I think the Administration's argument in this respect is that NSA is not violating the Fourth Amendment -- and not that the President has the constitutional authority to ignore the Bill of Rights. As for the other FISA argument, it seems to me to be a close, hard question that turns on whether Al Qaeda is "a faction of a foreign nation or nations, not substantially composed of United States persons," under 50 USC 1801(a)(2). Orin has more to say on that, as well.

The important point, however, is that, as the AG conceded this morning, the NSA's conduct -- if it is not authorized by the AUMF or Article II of the Constitution -- would be criminal under FISA because it intercepts the contents of communications to which United States persons are a party.]


The NSA is intercepting communication overseas involving members of an enemy military force with which the US is at War. What exactly is the constitutional basis for a court warrant to be required before any military action, combat or intelligence. Exactly where does Article III grant any court the right to approve or disapprove of military action, let alone establish a requirement for pre-approval.

The only action that Courts supervise is the legal process. Thus any information gathered without a warrant cannot be used in any legal proceedings. The courts should use their right to exclude any evidence that is gathered though unapproved means.

Meanwhile, the President is free to gather military intelligence in order to more effectively direct military action in time of war. I don't remember any Court that issued a Warrant to the British when they cracked the Enigma code and listened in on the Germans. I don't remember any Court that issued a warrant to the US codebreakers that cracked the Japanese naval codes and led to the victory at Midway.

This is not an example of a President overstepping the bounds of his authority. This is an example of another group so ideologically focused on an argument that they fail to realize when they have long passed the point of reductio ad absurdum.

Howard: I'm afraid this misses the point. The question is not "the *constitutional* basis for a *court warrant* to be required before any military action, combat or intelligence."

*Congress enacted a statute* prohibiting the collection of communications without approval of *a FISA court* where there is a "substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party."

The President has authorized the NSA to *violate this statute.* And in justification, he asserts only that (i) the AUMF gave him this authority by implicitly repealing or superseding the FISA restriction (which is preposterous), and (ii) that he has constitutional authority to ignore this statute (which is frightening).


You seem to be certain that these warrant-less wiretap approvals have been conducted only on communication overseas and only involving people who are not US citizens.

Without going into the specifics of who got tapped, Gonzales himself has admitted that the wiretaps violated FISA. He's just arguing that the President has authority to violate FISA because of special war powers accorded him by Congress.

Long story short: They admit violating FISA law. They're just arguing they have permission to do so.

Howard: And where does this unchecked presidential power end? If a no-warrant search gets no judicial review because no judicial process is involved, then what's to prevent the president from ordering a non-judicial assination in the name of "national security"? Sure it's illegal, but if the president is above the law, what's to stop him? He's already admitted that he has committed a felony and announced his intention to commit more; he's already held an American citizen in prison for three years without being charged with a crime. Where does it end? Do we still have a Constitution or not?

Congress used its war power to authorize the President to use military force. An essential part of war is the collection of military intelligence. Nobody familiar with the history of the last 60 years can doubt that intelligence is possibly the most important factor in waging war.

The question then is whether FISA applies to military intelligence gathered in international communications during a time of War, or whether the AUMF implicitly authorized the gathering of such intelligence as an inescapable part of any plausible use of appropriate military force against an enemy, especially when Congress directed the President to use that force to avoid future acts of terrorism.

If you disagree with this, then you have to explain how a law that is 100% focused on courts, warrants, and the Attorney General applies to War. Alternately, how is it that a law that says absolutely nothing about the Department of Defense, the Joint Chiefs of Staff, or any other part of the Military can govern what are basically very low level military intelligence operations.

A known insurgent cell phone in Iraq makes a call to a US number. The call is intercepted, and US forces overhear a guy telling his cousin in the US that they have a big car bomb set up to explode when the next convoy passes by. According to your absolutist view of the FISA, that intercept just violated US law, and not only should the US ignore what they just heard and let American soldiers die, but the person who intercepted the call is now guilty of a crime. The only defense permitted under the statue is "that the defendant was a law enforcement or investigative officer engaged in the course of his official duties and the electronic surveillance was authorized by and conducted pursuant to a search warrant or court order of a court of competent jurisdiction." This single exception does not apply to anyone in the military engaged in any military operation in circumstances in which no US crime is involved.

If the law covers what you say it covers then the law makes no sense. Section 1806 Use of Information includes a lot of language about evidence, trial, hearings, motions, courts, and law enforcement officers, but it doesn't for example provide any explicit authorization to release this information to someone in the military for the purpose of saving lives. If, on the other hand, the law covers the use of surveillance for law enforcement purposes, but not for military operations, then now the law does make sense but the President isn't violating it.

Howard Gilbert said: not only should the US ignore what they just heard and let American soldiers die, but the person who intercepted the call is now guilty of a crime.

This is a strange way of saying "can get a warrant under FISA Section 1805(f) up to 72 hours after the emergency surveillance, which would make everything fine assuming the warrant is granted, which it almost always is since the standard for deciding whether or not to grant it is so easy to meet."

Great, now lets give every Signals Intelligence officer and enlisted man in the US Army the emergency number for the Attorney General so that he can get the paperwork rolling and get someone right to the Court and get a warrant with 72 hours of every intercept of possibly actionable intelligence.

If you think this is a rational way to run an army or a country, then I think George Bush will be more than happy to put it to the voters next year. There will be some hearings, and Democrats will say vague things about excessive Presidential power and civil liberties, but nothing will actually come of it. Nobody will openly support imposing an insane legal bureaucracy on the military, whose only effect would be to constrain our soldiers in Iraq from defending themselves.

Howard said:"Nobody will openly support imposing an insane legal bureaucracy on the military"

Hmm. I've always been under the impression that the NSA was separate from the DOD. Is that not the case?

But FISA doesn't mention the NSA. FISA applies to all electronic survellance done under the authority of the President and Attorney General. If FISA applies to military intelligence gathered by the NSA and passed on to the Pentagon in support of the war, then unless there is an implict exemption for military purposes (which is what the President argues) there certainly is no explict exemption of the DOD anywhere in the law. There is no mention of the DOD in the law. So if FISA applies to this activity by NSA, it necessarily also applies to Signals Intelligence intercepts by US Forces. Alternately, if you exempt US Forces on the battlefield from the law, there is no way to prevent the same exemption from extending up to NSA support for those battlefield forces.

..."our soldiers in Iraq from defending themselves"?

You create a unit of the military. You give them the very latest in electronic interception technology. You give them a mission to intercept terrorist communication in a war where the most effective tool preventing a car bomb or improvised roadside explosive device may be intercepted communications.

Now you say that there is no military exemption from a law that makes it a criminal offense for anyone to intercept any communications unless they have a warrant or know absolutely that the conversation cannot possibly involve anyone in the US.

Sure sounds like preventing US forces from defending themselves. At least it is close enough to use as a sound bite against any politician stupid enough to make an issue of the matter.

howard gilbert:
I am one of those "non-lawyer" people, mostly agreeing with your sentiments here, as I think most US citizens would ... at least those who view the actions of radical Islam terrorists as acts of war against the US (and other countries).

I'm not even trying to decipher the legal clauses and subclauses and references to other legislation. Others will, and I await their conclusions (if they can reach them).

I simply want to know (and how do we find this out?) whether the executive branch sidestepped the warrant-securing process in order to conduct some kind of a fishing expedition; that is, essentially using a WOT "cover" to get data it would not otherwise be authorized to collect on its perceived "enemies", for example, such as anti-war types and others they consider to be extreme and less than "patriotic".

If that is not happening, GWB will be excoriated only by those whose modus operandi is to "hang him out to dry" no matter what. If it is happening, he is toast.

I have a lot of other objections to your position (I don't see why every signals intelligence officer would possibly be at risk of intercepting communications with persons who are lawfully in the United State, for instance), but for now I just want to clarify: I understand (perhaps wrongly) that your position is that FISA is unconstitutional as applied to almost any Federal agency if the President orders them to disobey it. Why didn't the Justice department generate a test case to challenge FISA?

Oddly enough, Marty nowhere mentions Hamdi. Nor does he bother to distinguish Hamdi.

Issue in Hamdi: "[Hamdi] posits that his detention is forbidden by 18 U.S.C. § 4001(a). Section 4001(a) states that '[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.'"

This kerfuffle: FISA says "A person is guilty of an offense if he intentionally—
(1) engages in electronic surveillance under color of law except as authorized by statute; or
(2) discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by statute."

Is AUMF a statute? Hamdi says yes. Does AUMF have to be read to supersede or impliedly repeal FISA? No. It need only be construed as a "statute." Marty's "analysis" doesn't bother with that very basic point.

Thomas, I haven't read Hamdi, so it could easily be the case that you just aren't quoting the right part or are making a very obvious point that I'm missing. Having said that, you quote Hamdi as saying that the AUMF is an Act of Congress. Not all acts of Congress are statutes. You then say, without any further argument, that it is a statute which satisfies the requirements of FISA. I don't see where you're getting that.

When Congress authorizes the President to go to War it necessarily authorizes all the normal military actions that are necessary to a successful outcome.
"To remain in ignorance of the enemy's condition ... is the height of inhumanity.
One who acts thus is no leader of men, no present help to his sovereign, no master of victory.
Thus, what enables the wise sovereign and the good general to strike and conquer, and achieve things beyond the reach of ordinary men, is foreknowledge.
Now this foreknowledge cannot be elicited from spirits; it cannot be obtained inductively from experience, nor by any deductive calculation.
Knowledge of the enemy's dispositions can only be obtained from other men." (Sun Tzu, The Art of War, around 500 BC)

if the President is correct about the legality of his wiretapping protocol, then there is little need to reenact the PATRIOT Act

This argument is a clear apples amd oranges case. The issue concerning the "wiretapping" is one of the legalities of collecting information while the issue of the PATRIOT act expiration is one of sharing the information. If the NSA is permitted to share information collected overseas with the FBI or not is a completely separate matter then if the information was legally collected or not.

Is AUMF a statute? Hamdi says yes. Does AUMF have to be read to supersede or impliedly repeal FISA? No. It need only be construed as a "statute."

What's the point here? AUMF has to "authorize" it. Repeatedly, it has been argued that it does not.

As to Howard, this open-ended definition of executive war power of yours has no end, especially of this sort. The separation of powers problems alone this raises is touched upon here.

To cite one matter. I might meet a member or sympathizer of Al Qaeda in my home. You speak of finding out about the enemy. Thus, the President can quite arguably plant a bug in my home w/o a warrant to understand the enemy.

I'm also not quite sure how, let us say, protecting steel mills is not necessary for a successful outcome, given their role in war materiel. Or, wage and price supports, again something justified as a war measure. Or, detaining citizens w/o hearings.

Congress needs to be a bit more clear here, I think.

Just to clarify, I am not saying that the President has open ended authority or that Congress cannot pass laws that constrain how we wage war. If Congress wanted to, they could pass a version of FISA that simply prohibited this type of wiretapping even by the military in time of war. Nor is there any problem with the FISA requirement that law enforcement go to a court to get a warrant before wiretapping. There is a separation of powers problem, however, if Congress requires military combat units to go to court to get a warrant to engage in something that would be, absent any law against it, a normal part of combat operations. Having judicial oversight of a combat intelligence function would be an attempt by Congress to transfer some of the Commander in Chief function of the President to another branch. So wiretapping can be prohibited or permitted to the normal chain of command, but it cannot be conditioned on a judicial warrant.

The problem with some of the arguments here is that FISA explicitly deals with procedures during war so it's clear that Congress has spoken as to what must happen during wartime. As they have made the law deal explicitly with war time, an authorization of force or war would not implicitly repeal that provision.

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