Friday, May 19, 2006

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?



1. Yes, I believe that the President has the constitutional authority to violate statutes when he deems them unconstitutional. However:

i. It remains a violation of a statute. (For what it's worth, this is different from what the Court does: The Court doesn't violate a statute; when it declares a statute unconstitutional, it *enjoins the Executive (or a state) from enforcing the statute* (i.e., threatens contempt sanctions for such enforcement). But yes, in both cases, another branch disagrees with Congress. And there's nothing *necessarily* wrong with that.

ii. The decision not to violate, or to refuse to enforce, a statute is a solemn one, and should be invoked only rarely, and carefully. The question of when the Executive ought to do so -- rather than, say, the more common practice of enforcing the statute but then not defending it in court -- is a very difficult and sensitive one. For some of the best treatments, see the Dellinger OLC letter to Mikva circa 1994, and the colloquy a few years back in Law & Contemporary Problems between my former colleagues Dawn Johnsen and David Barron.

iii. If and when the President violates a statute on constitutional grounds, he should do so openly and candidly, and provide the rationale, so that the public and the other branches can assess, critique and respond to such a serious constitutional stalemate. (Knowing that he'll have to defend his nonenforcement in public will also ensure that the President doesn't take such a momentous step until he's certain it's correct, and defensible.) Needless to say, that hasn't been the practice in this Administration.

iv. My complaint about this Administration's examples is not the *fact* of statutory violation, but (i) that the proper proccedures have not been followed (see my initial posts from January 2005); (ii) it's been done in secret; and (iii) most importantly, that the Administration is *wrong on the merits* of the constitutional question. In other words, my critique has been based on substance and process, not on remedy (i.e., nonenforcement).

2. Yes, of course Congress could, by statute, require the Court to provide notification of all instances in which it relies on foreign law in its opinions -- although, since the opinions are already public, such a requirement would be fairly pointless, and thus an unnecessary slight to a coordinate branch.

Jefferson refused to enforce the Alien and Sedition Acts because he felt they violated the First Amendment, even though every court that had examined them found no violation.

Quick footnote to this: Jefferson did not "refuse to enforce" the Sedition Act. It expired on its own terms before he took office.

The Alien and Sedition Acts provided that they would cease to be effective on the date of the inauguration of the next President, March 3, 1801, but added that "expiration of the Act shall not prevent or defeat a prosecution and punishment of any offense against the law, during the time it shall be in force." 1 Stat. 596, 597 (1798). Jefferson therefore issued directions to cease prosecutions, including the pending sedition prosecution of William Duane, which had been initiated at the request of the Senate.

He also pardoned those who had been previously convicted: "I discharged every person under punishment or prosecution under the Sedition law, because I considered, and now consider, that law to be a nullity as absolute and as palpable as if Congress had ordered us to fall down and worship a golden image; and that it was as much my duty to arrest its execution in every stage, as it would have been to have rescued from the fiery furnace those who should have been cast into it for refusing to worship the image." Letter to Abigail Adams (July 22, 1804), in
11 The Writings of Thomas Jefferson 43-44 (Albert Ellery Bergh ed., 1907).

Not much attention has been paid so far to discrepancies between Hayden's previous testimony or remarks and what is now known. Is my recollection wrong about this? If not, I leave the implications to the reader.

The Milbank story on closed sessions underlined something Tom Oliphant (which his co-commentator David Brooks agreed with, also noting the lack of true oversight) said as part of his commentary of the hearings on PBS yesterday: leaks turn out to be the only (and therefore essential) way for the public to truly know what is going on. It's telling how some, including Chairmen Roberts (who refuses to release "Phase 2" of the report on use of pre-war intel after promising to do so), rail against such leaks (some clearly semi-official in nature, and not just re the Plame business).

Ackerman's editorial against confirmation is rather striking (it in part addresses this concern) btw since even many liberal leaning sorts (e.g., Joe Conanson in Salon) support the confirmation.

The May 18, 2006 public session testimony transcript from the Washington Post is in two sections, and is caveated as incomplete and in progress. This is the day after your article, so perhaps you have found this material already, as well. Some of the Feinstein material is split part in section I, part in section II.

As to the last comment, interestingly, some wished to have some sort of federal panel of review to submit legislation (even state laws) in respect to its constitutionality.

But, there are ways to deal with the alleged unconstitutional law. First off, I think by signing it into law the President in some fashion might in effect waive claims of unconstitutionality. Deciding, even when the writers of the law clearly didn't intend as such, hidden exceptions seems to be cheating.

Anyway, the President can submit the law to a court. The surveillance program and torture measures, for instance, could easily have be dealt in this fashion. FISA and current litigation involving enemy combatants.

Likewise, various affected people can have standing to challenge. The President can encourage this, such as the proposed law (by Prof. Lederman) that anyone potentially harmed by the survelliance program will have standing to challenge it. Test cases to settle the status of unclear laws have been around since the 1790s.

Of course, if the President refuses to carry out laws deemed constitutional or to submit them to some third party for clarification, Congress actually has the power to impeach or pressure him in some other fashion.

Imperfection, surely, but the system has avenues if people actually wanted to use them. This President does not. This Congress does not.

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