Friday, February 03, 2006

Senator Roberts Declares FISA Unconstitutional

Marty Lederman

Senator Pat Roberts of Kansas, Chairman of the Senate Intelligence Committee, today issued a 19-page letter to the Senate Judiciary Committee in which he became (as far as I know) the first member of Congress to opine that the NSA's doemstic wiretapping program is lawful. Senator Roberts's argument is, almost in its entirety, that to the extent FISA purports to provide the "exclusive means" for the President to engage in electronic surveillance -- and Senator Roberts agrees that FISA does so (pp. 10-11) -- FISA is unconstitutional. (For a contrary view, sent to the Congress yesterday by 14 constitutional law professors and former government lawyers, see here.)

Notably, Senator Roberts does not really indulge DOJ's untenable argument that Congress gave the President the authority to override FISA -- and that Congress impliedly repealed the "exclusive means" provision of FISA -- when it enacted the force authorization related to Al Qaeda on September 18, 2001. To be sure, in the Conclusion to his letter, Senator Roberts mentions en passant that he "do[es] not discount" the AUMF argument -- but he doesn't try to defend it in the slightest. Indeed, he does not even suggest that when he himself voted for the AUMF, he intended -- or had any inkling -- that FISA was being overriden and in part repealed. His argument, instead, is that the President's constitutional authorities "should be the beginning and end of our legislative inquiry into the 'legality' of this program. It is quite clear to me that Congress could not, through passage of FISA, extinguish the President’s constitutional authority to conduct the terrorist surveillance program at issue." Senator Roberts concludes (p.13) that the Supreme Court would, "even after FISA, determine that Congress cannot define the 'exclusive means' for the conduct" of the President's electronic surveillance within the United States.

[UPDATE: On a closer read of the letter, something -- or rather, the absence of something -- jumped out at me: There's no argument -- none at all -- about why FISA is unconstitutional. Senator Roberts argues that the President had the constitutional authority to engage in such surveillance prior to FISA; that FISA was specifically designed to limit that Executive authority by statute; that therefore the President's authority is at its "lowest ebb" as described in Justice Jackson's Youngstown concurrence; and that the surveillance in question is very important. But he nowhere explains why the President prevails in the constitutional analysis even at the "lowest ebb." Did I miss an argument in there somewhere to support the "I believe the Supreme Court would recognize" assertion? (In a parenthetical, Roberts suggests that the Court "arguably has recognized" that Congress violated the Constitution by enacting FISA. But his only citation for that suggestion consists of the denials of certiorari in Truong and Butenko, neither of which raised the question of FISA's constitutionality because both cases involved surveillance prior to FISA's enactment.)]

It's a rather remarkable and unusual event when the Chair of a congressional intelligence committee asserts that the landmark framework statute over which his committee has jurisdiction is unconstitutional. But that is what we've seen today. (One wonders why Senator Roberts did not, over the past five years, respond to the several enacted and proposed amendments to FISA, including in the PATRIOT Act, by saying they were unnecessary because FISA cannot limit the President's foreign-terrorism-related electronic surveillance.)

One other important thing about the Roberts letter: He reveals what many of us had suspected -- namely, that one reason the Administration is circumventing FISA is because it is engaged in interceptions that the FISA Court could not approve under the law as currently drafted: "FISA’s burden of proof -– probable cause that [the targeted] individual is an agent of a foreign power -– is higher than the 'reasonableness' the Fourth Amendment requires and does not enable surveillance of all the assistants and collaborators of our enemies that the President should target for intelligence collection."

Now, it should be understood what Roberts is saying here: FISA does not regulate at all the surveillance of "all the assistants and collaborators of our enemies" insofar as the interceptions occur overseas -- even if the communications are with persons in the U.S., NSA may freely intercept those calls (or that's my understanding, anyway). And even if the interception is made here in the U.S., FISA allows for a judicial order upon a showing of probable cause that the person in the United States whose phone or computer is targeted is "an assistant or collaborator of our enemies." Therefore, what's at issue here is (i) the targeting of U.S. persons who are not suspected of being Al Qaeda assistants or collaborators, but who are calling persons overseas who are suspected of being such; and/or (ii) the targeting of U.S. persons who the NSA suspects of being "assistants or collaborators," but where there is not probable cause to believe it.

(By the way, Roberts confirms that "assistant or collarborator" is defined very broadly, to include not only members of Al Qaeda or those who assist in Al Qaeda's terrorist operations, but also persons "affiliated with" Al Qaeda and persons who are members of "organizations affiliated with Al Qaeda." Thus, some of the intercepted calls might not involve any party who is in league with Al Qaeda or who is otherwise even suspected of having had anything to do with the attacks of September 11, 2001.)


That should be Sen Pat Roberts of Kansas.

Thanks, David -- corrected. I must have had Ben Nelson on my mind!

Hmmm...isn't there a book titled -
"What's the matter with Kansas" -

Well now we KNOW! It's got Pat Roberts. *snark*

This is stunning - postively stunning the lengths to which this GOP majority will go to allow this Executive Un-checked and Un-Constitutional POWER.

But, can they really claim it WAS not the LAW at the time of these violations - and excuse the behavior of this President for breaking that law and the potential criminal presecution for same?


There is going to be debate on the Senate floor over this. Roberts' is one partisan view, expressed the week prior to the committee hearing on the matter. Congress will look at the extrapolation over this four-year time curve whereby FISA remained in exile, as it were. Maybe the new more nimble FISC will actually be an application on a Cray sitting alongside the Cray at the snooping agency; just as the snooper Cray uses templates and filters for its datamining app, so could the 'FISC app' mask for ways to vet the warrantless processes underway. Constitution by the microsecond and terraflop. Of course, already we had instant rumor that FISC itself was contemplating self-dissolution based on somewhat similar grounds to Roberts' arguments; though to my knowledge only one jurist resigned from FISC so far, there was a scheduled meeting en banc, as it were to provide input on this very issue

OK, so I go and look on this guy's official website to see if he is even a lawyer. Oooops! Appears that he is a creature of being born into political connections and working as a reporter. But not as a lawyer. Accepting his opinion on legality is like, what, letting a butcher do brain surgery?

Looking ahead, who has the hammer on committee assignments? This guy doesn't belong on "Intelligence."

As Josh Marshall put it last year:

Sen. Roberts has turned the Intel Committee into an arm of Karl Rove's political operation. In the truest sense of the word, Sen. Roberts is a hack, a shame to his office.

His behavior in the CIA leak case made it clear that his credibility is precisely zero.

Trying to find some argument that Roberts makes to distinguish the current situation from Youngstown, I think it is this:

"But, unlike the authoritiy to seize steel mills -- by comparison so indirectly and distantly tied to the President's Article II authority and so directly tied to Congress' enumerated authorities in Article I -- the regulation of the President's constitutional authority to collect intelligence information incident to potential or actual attack by foreign powers and their agents is a subject over which Congress cannot assert complete dominion."

Essentially Roberts' view of FISA rejects Youngstown while paying lip service to it. It is similar to the view John Yoo asserted in a recent interview with Adam Liptak of the NYT during the Alito hearings. As such, Roberts' stance represents the most extreme constitutional position advanced by Bush advocates. It is most remarkable because it comes from a key senator entrusted with oversight over executive enforcement of the very law he finds unconstitutional!

Among other things, Roberts' argument fails to take account of two legal principles:

* One of Congress' enumerated authorities in Article I is the power to "to make rules for the government and regulation of the land and naval forces."

* The Supreme Court, in Hamdi, already has interpreted the Youngstown precedent in a matter found to be a "fundamental incident of waging war" -- in that case battlefield detention. And in that context, the court's plurality opinion held, "Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake."

Roberts' characterization of FISA as Congress asserting "complete dominion" in this area is a strawman. Like other statutes, it represents the legislative dominion, which in turn sets rules the President is to abide by, enforce and administer -- the executive dominion. FISA also lawfully establishes the FISC courts and their jurisdictions. So the proper "role for all three branches" obviously is respected.

[Preceding cross-posted at The Volokh Conspiracy]

BTW, Marty, I believe you are mistaken that Roberts is the first member of Congress to say the NSA surveillance is legal. Sen. Frist essentially adopted the administration's two-pronged assertion of authority from AUMF/Article II on last Sunday's Meet the Press.


it strikes me that the constitutionality of FISC is not as important to youngstown as it might seem.

one might say (at a level of abstraction that is useful only for the point i am about to make)that youngstown attempts to get to the congressional intent to confer wartime executive authority.

is FISC any less of an expression of congress's intent to impair wartime presidential authority because it might be unconstitutional? in fact, one might argue that congress's willingness to pass a constitutionally questionable statute actually UNDERMINES the attempt to get the president into category 1.


a better way of putting my question is this:

sure, the unconstitutionality of FISC may help the administration once it is WITHIN the desired category (i always mix up 1 and 3), but it doesn't improve the case for GETTING THERE.


I'm just watching ABC's This Week with George S., who reported, to the agreement of Gen. Michael Hayden, that the "Group of 8" intel committee members were unanimous in agreement after a recent briefing with the General that they don't want to go forward with new legislation on this program for fear of revealing too many of its operational details. Further, they support the ongoing existence of the program.

Given that you and I don't know all the details of the program, I ask you whether there is any amount of bipartisan agreement on this program that would shake you from your position as to its legality and propriety? Or are you convinced that you already know enough to know that not just Sen. Roberts but also the 4 Democrat members of the group are all wrong on it?

Our national security apparatus, for good or for ill, inevitably involves a lot of secrecy and, therefore, a lot of trust that separation of powers and bipartisanship stand for something. Indeed, the political question doctrine, standing doctrines, and other "justiciability" gatekeeping requirements presume that the legality of such efforts depends more on that comity and trust than on court action, no?

My point is that it seems to me the first thing to press the administration on is that it ought to consult within Congress more broadly than its group of 8, but then to calm down about whether we really think this is the rebirth of Nixon, J. Edgar Hoover, or that clod from the Clinton Administration with the IRS files.

I guess I'm still willing to see how this political question works itself out. That the Administration's legal position is not entirely satisfying to "scholars" who are entirely satisfied with all manner of bizarre supreme court decisions is less worrisome to me.

What makes this so complicated?

There's a statute that says 'Executive, don't do X' -- or more accurately, don't do X without first doing A,B,C.

The president takes an oath to see that the law is faithfully executed.

The president does X -- and without doing A,B,C.

He announces that he has done X, and intends to continue doing X, without doing A,B,C.

How is this not immediately greeted with an impeachment process?

If the inherent powers the president claims he has are in fact inherent in the office, and necessary for the suruvival of the Republic he is acquitted.

If not -- if its just a naked power grab - not.

It's the institutional equivalent of the 'ticking time bomb' torture scenario.

If you really think the susect knows were the bomb is, and that torturing him gets you the information you need, you torture him, save the city, and then turn yourself in, to face prosecution

If your actions were meretorious, and justified by the situation, then no sane court will convict.

If not -- if you're just a sadist -- not.

The ambiguities and constitutional issues and Article II, section 4 powers, and so forth, would be settled in a month, and settled definitively, if Congress were to just impeach, and if impeached, just try, the President.

Jury nullification -- it's not just for juries any more

Truth really is the first casualty of war. Or, AUMF in this case. Or perhaps the global struggle agaist extremism.


legal fictions propounded by the Bush Administration and its water carriers.

Indeed, what does make this so complicated?

1)The president is authorized to use all military force against the perpretators of 9/11, i.e. the AUMF

2)Surveillance and intelligence gathering is (and has always been) part and parcel of the use of miltary force.

3)Domestic phone numbers are recovered as part of the surveillance and gathering of intelligence that is part of the use of military force.

4)Tapping into those phone numbers then becomes a use of miltary force.

5)The fourth amendment still applies of course, so the surveillance has to be reasonable.

6)The surveilance doesn't violate FISA because:
a) FISA has an exception for other legislation, i.e. the AUMF, or
b)Is simply trumped by the AUMF or
c) is unconstituional to the extent that it restricts the president's Article II powers.

Seems like a strong argument to me, and I'd like to hear numbered response to the above (hey, I'm a lawyer).

Seems that Youngstown can be easily distringuished, and Hamdi and some other cases seem to have a lot of language favorable to Bush's position.

Post a Comment

Older Posts
Newer Posts