Friday, July 07, 2006

Hamdan and the NSA Domestic Surveillance Program: What Next?

Marty Lederman

As most of you probably know, I was from the outset not especially persuaded by the Justice Department's statutory defense of the NSA domestic surveillance program. Be that as it may, however, it seems to me that Jack, David Barron, and "Anonymous Liberal" are all correct that the Hamdan decision fairly decisively undermines whatever slight plausibility that argument might previously have enjoyed. (Orin Kerr intimates likewise.)

As David points out, if (as the Court held) the AUMF does not trump the limitations on military commissions that are only vaguely and implicitly lurking in 10 U.S.C. 821 and 836(b), surely that force authorization cannot supersede FISA's express provision that FISA and title 18 prescribe the "exclusive means" of engaging in electronic surveillance, and FISA's specific wartime surveillance provision, which authorized surveillance outside the FISA framework through December 3, 2001, but no later.

If we're all correct about this -- and I haven't seen any argument to the contrary -- then it raises two interesting questions:

1. What will OLC do when -- presumably within 45 days -- the NSA program must be reapproved? A.L. suggests that responsible lawyers, even those who are charged to push the legal envelope, should call a halt to the program. David recommends that Congress should tee up the question to DOJ. Stay tuned.

2. Will Cass Sunstein finally give up the ghost on his idiosyncratic view that the AUMF can be construed to authorize the NSA program?

I ask this not only because, as far as I know, no legislator has agreed with Sunstein and DOJ that the AUMF provided such authority. (One should be suspicious of any argument about congressional intent that doesn't reflect, well, any legislator's intent. Handy new canon of statutory construction: Interpretations that would come as a shock to all 518 legislators who voted for a bill are disfavored.) Nor even because Hamdan has so severely undermined the theory.

No, the main reason I'm curious about Professor Sunstein's current views is that he has just published an article in which he reads Hamdan to confirm the principle that "[i]f the president is acting in a way that threatens civil liberties, he will be probably lose unless Congress has explicitly authorized him to do that."

The Hamdan decision doesn't actually say that, and is not really about that question: The Court's holding does not depend on the absence of clear statutory authorization -- it turns instead on the fact that the President's commissions violated statutory limitations. But more to the point, even if Sunstein's characterization were apt, and clear stautory authorization is necessary in order for the Executive to infringe on personal freedoms, how can Sunstein adhere to his previous view that the vague and general authorization of the AUMF silently authorized the President to act in a way that would otherwise not only infringe on personal freedoms, but also transgress clear pre-existing statutory limitations?


there has never been a government statement (or any other evidence from the NYT or any other source) that the program was ever actually in violation of FISA.

But here's what Alberto Gonzales said just days after the story broke:

The President confirmed the existence of a highly classified program on Saturday. . . . The President has authorized a program to engage in electronic surveillance of a particular kind, and this would be the intercepts of contents of communications where one of the -- one party to the communication is outside the United States. . . . 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.

That sounds pretty definitive to me. Plus, if the administration wasn't actively violating FISA, while all the fuss? Why wouldn't they just say that what they are doing is not covered by FISA, but they can't go into specifics? They're clearly engaged in surveillance that violates FISA.

Howard: Do you have *any* reason to think that the NSA programs consist entirely of intercerptions that are effected outside the U.S.?

Ann Beeson is arguing one of these cases Monday July 10 in Detroit, the international consultants case where the judge evidently is looking favorably on the chilled speech complaint, though the government is seeking to force the entire proceeding in camera closing the doors to the public. See her post today on MyDD.

Sunstein seems to have turned a corner, though remaining protective of academia. He had an interesting statistical post last week examining the zero tolerance paradigm the vice president has proposed as the litmus for success of antiterror policy.

I, too, read Stevens' simple statement as pinning Congress to its inability to pass a revised AUMF to cover fourth amendment concerns.

I expect most of the datamining cases, though, to bog down in the courts; for example, the ATT case currently proceeding in San Francisco.

It seemed to me the supreme court was willing to see if the executive and legislative can return to the bargaining table on many of these issues.

The former WHC who has a column on Findlaw wrote an interesting commentary last Wednesday regarding mistrust between Supreme Court and congress, though some of the material there elicits a smile.

In other words, Howard, the answer to my question was "no."


Any reaction to the NYTimes report that in response to a question at a Chicago press gagle, the president said about Hamdan:

"I am willing to abide by the ruling of the Supreme Court," the president said.

Doesn't sound as though he believes he's "bound" to follow SCOTUS.

Every heart sings a song, incomplete, until another heart whispers back. Those who wish to sing always find a song. At the touch of a lover, everyone becomes a poet.
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