Michael Hayden and Article II

Marty Lederman

According to General Michael Hayden's testimony yesterday, in the days following September 11th, Hayden was of the view that FISA outlawed the sort of surveillance program that the NSA eventually implemented. UPDATE from the transcript:

HAYDEN: I was asked by Director Tenet, "Could you do more?"

I said, "Not within current law."

He says, "Well, what could you do more?"

And I put it together with, as I said, technologically possible, operationally relevant, now the question of lawfulness.

So I described where we had stopped our expansion of activities because of the current legal structure under which we were operating.

Indeed, one year later he even testified to a joint House-Senate Committee that the legislators and their constituents needed to reconsider, in light of modern developments and 9/11, the balance between liberties and security that Congress and the President had struck when they enacted FISA in 1978.

But in October 2001, he approved the NSA surveillance program anyway. Why didn't he abide by FISA? Because he received assurances from the Attorney General, the Office of Legal Counsel, and the White House Counsel that the President had Article II authority to supresede (i.e., violate) that statute and its criminal prohibitions. Apparently, the top three NSA attorneys agreed with this constitutional analysis, which was enough for Hayden -- even though their views were not provided in writing and Hayden had not read the OLC opinions (still not public, by the way) setting out the Article II argument.

Apparently, back in 2001, the Department of Justice had not yet dreamed up the argument that Congress inadvertently approved a circumvention of FISA when it enacted the September 18, 2001 Authorization for Use of Military Force. At the inception of the program, the legal justification was simply that FISA was unconstitutional as applied to this endeavor. Hayden "did not recall any substantive discussion about the Congressional authorization in September 2001 to use all necessary force against Al Qaeda — a resolution that the White House now says helped give it legal authority for the wiretapping operation. 'Our discussion anchored itself on Article II,' he said."

UPDATE: Here's the relevant excerpt from the transcript:

HAYDEN: [W]hen I talked to the NSA lawyers, most of my personal dialogue with them, they were very comfortable with the Article II arguments and the president's inherent authorities.

SEN. LEVIN: Does that mean that they were not comfortable with the argument that...

HAYDEN: I wouldn't say that. But when they came to me and we discussed its lawfulness, our discussion anchored itself on Article II.

LEVIN: And they made no comment about the authority which was argued by some coming from the authorization of military force?

HAYDEN: Not strongly, one way or the another. It was Article II.

(Full disclosure: I worked at OLC at the time but, not surprisingly, I was not "read into" this NSA program; and I have no knowledge, beyond what I've read in the press, about what OLC advised.)

In the office to which he has been nominated -- Director of Central Intelligence -- Hayden will likely confront this Article II argument in other important settings. For example, the McCain Amendment now prohibits the CIA from engaging in cruel, inhuman and degrading treatment of detainees. One might think that this statute -- along with the torture and federal assault statutes -- would foreclose the use of waterboarding, hypothermia and other CIA "enhanced interrogation techniques," such as forcing prisoners to stand, handcuffed and with their feet shackled to an eye bolt in the floor, for more than 40 hours. But reportedly such techniques remain part of the CIA's repertoire, justified in large measure by the Administration's view that the President's "constitutional authority . . . to supervise the unitary executive branch and as Commander in Chief" gives him the power to ignore such statutory constraints, or to construe them in a manner contrary to manifest legislative intent.

UPDATE: In his testimony, Hayden indicated that if the lawyers tell him there's an Article II prerogative, that will be enough for him:

SEN. FEINGOLD: General, if you're confirmed, there will likely come a moment when the president turns to you and asks whether there is more the CIA can do under the constitutional authority that he has asserted under Article II. What would you tell him? Is there more?

HAYDEN: Well, obviously a hypothetical, but let me just imagine the hypothetical in which not unlike the NSA situation, there are additional things that could be done.
Senator, I'd consult my lawyers and my conscience just as I did in 2001. In this particular case, Senator, to be very clear, all right, the White House counsel, the attorney general, the Department of Justice's lawyers and my own lawyers at NSA ruled this to be a lawful use of the president's authority.

I don't know enough about Hayden, nor about the current struggles among DOD, DHS, Negroponte and the CIA for control of intelligence operations, to have any view on whether he should be confirmed. I've heard many people in the know opine that he is a thoughtful, dedicated and effective public servant. And perhaps it's understandable that if the DOJ lawyers, including the Attorney General, tell him the President has the authority to ignore statutes, it would be presumptuously for him not to follow that advice.

But would it be too much to ask the Senate, at a minimum, to extract a promise from Hayden that when the CIA determines not to abide by certain statutes in the name of the Commander-in-Chief Clause, that such a decision be made openly, thereby permitting such a solemn constitutional judgment to be subject to legislative and public scrutiny and debate? (A rhetorical question -- the answer is all-too-obvious.)

Speaking of which, the law already requires that such decisions be disclosed to Congress, so that the other branches of government can, if they wish, implement systems of checks and balances. 28 U.S.C. 530D(a)(1)(A)(i) provides that the Attorney General "shall submit to the Congress a report of any instance in which the Attorney General or any officer of the Department of Justice . . . establishes or implements a formal or informal policy to refrain . . . from enforcing, applying, or administering any provision of any Federal statute . . . whose enforcement, application, or administration is within the responsibility of the Attorney General or such officer on the grounds that such provision is unconstitutional." Subsection (e) of that statute extends this reporting obligation to the head of each executive agency or military department that implements such a policy of "constitutional noncompliance." Such a report must be made within 30 days after the policy is implemented, and must "include a complete and detailed statement of the relevant issues and background (including a complete and detailed statement of the reasons for the policy or determination)." (The statute includes provisions for redaction of classified information in copies of the report distributed outside a congressional committee or agency.)

I think it's fair to assume that the Administration has not submitted such reports to Congress with respect to the numerous statutes that it is not fully implementing on grounds that they impinge on the President's constitutional powers. Will Congress step up to the plate and begin to enforce the section 530D requirement?

UPDATE: Please allow me to add this, on the subject of congressional capitulation. As Dana Milbank gleefully explains, what happened yesterday on any question that mattered, including on all questions related to the legality of what the NSA has been doing, is that Hayden agreed to testify only in closed session:

Is the NSA eavesdropping program that President Bush confirmed the entire program? "I'm not at liberty to talk about that in open session," Hayden said.

Can detainees be held in secret for decades? "Let me give it to you in the closed session."

Is "waterboarding" an acceptable interrogation technique? "Again, let me defer that to closed session."

Two notable things about this:

First, no one in the Administration has provided the slightest justification for such secrecy -- as to why, for instance, the NSA's phone-records practices cannot be discussed in public. Of course if computers are using a particular algorithm to find calling patterns, or something such as that, such details need not be disclosed. But why not explain what the phone companies have done, and what the NSA's legal justification might be?

Second, so the Senators go into closed session, and presumably are briefed on all questions that we've been asking for two years now. And then what? Are the legal rationales valid, or not? When will the public get a chance to know which laws the Administration is circumventing, and to debate what our government has been doing (including the debate about the serious constitutional issues)? So far, not a peep from the Senators. Hey, it would be a step forward if the Democratic Senators even so much as announced that they now understand the practices, are satisfied that they're legal, and agreed that the issues can't be discussed in public. Frustrating, yes -- but at least there would then be a semblance of the constitutional system at work. But instead, silence: It's as if the only problem here was that the Senators's egos were slighted, and that now that they've been briefed, all is well with the world and the NSA and CIA can continue business as usual. Checks? Balances?
Posted 5:10 AM by Marty Lederman [link]