Saturday, July 08, 2006

The NSA and Hamdan

Guest Blogger

Cass Sunstein

Marty Lederman, who has not been entirely thrilled with my tentative thoughts on the NSA surveillance, has asked for my views on the relevance of the Hamdan decision to that controversy. I'm grateful to him for asking and to Jack Balkin for providing me with an opportunity to answer. I'll get to the real question shortly, but let me begin with some background.

1. I hope that we can agree, perhaps especially in this area, on the law-politics distinction. The Clinton impeachment was clearly unconstitutional, but very few conservative law professors (or lawyers) were willing to say so, at least in public. Their own political views, and their dislike of President Clinton, led them to silence themselves or instead to support an indefensible view of the law. (Let's not even mention Bush v. Gore.) In this light, law professors who did not vote for President Bush might understand themselves to have a special obligation to try to put their own political views entirely to one side -- and to accuse the President of violating the law, or acting without a good-faith legal argument, only when they are certain that they would say exactly the same thing if their favorite Democrat were president.

2. Before Hamdan, it made sense to analyze the NSA question in the following way.

(a) Suppose that FISA did not exist. If not, the AUMF probably carries with it the authority to monitor conversations involving Al Qaeda, on the theory that such surveillance is a legitimate incident of the use of force. (Hamdi supports this argument, because the plurality found the AUMF to authorize detention, even though it is hardly explicit on that topic.) This argument might not be entirely convincing by itself, but it is strengthened by the fact that several lower courts have said that the President has the inherent power to engage in foreign surveillance. Putting these decisions together with the AUMF, the issue is pretty straightforward if FISA is put to one side. (There's also a Fourth Amendment issue but the President is probably on solid ground here.)

(b) FISA does make the issue much harder for the President. There's a plausible argument that FISA (i) overcomes the AUMF, because it's more specific and (ii) is constitutional, because it doesn't intrude on any authority that the President has under Article II. The contrary argument, which also seems to me plausible, is (i) that the AUMF is in a way more specific than FISA (because it deals with Al Qaeda), (ii) that the AUMF is the later enactment and hence trumps FISA in the event of conflict, and (iii) that the two statutes should be construed together in a way that fits, if fairly possible, with what might be part of the President's power as Commander-in-Chief. (Recall that lower courts have said that foreign surveillance is included within the power of the Chief Executive.) On this view, FISA does not ban the President from engaging in surveillance if he is monitoring conservations that involve Al Qaeda.

The specific intentions of the legislators who voted for the AUMF don't much matter (see Hamdi, refusing to ask about those specific intentions; see also Bradley and Goldsmith in the Harvard Law Review, carefully parsing the meaning of the AUMF without asking about specific intentions). But a powerful objection to this argument in favor of the legality of the NSA surveillance is made by Geoffrey Stone, who points out that FISA has a particular provision governing war. Maybe that provision means that the AUMF has to be fit with FISA -- and that so long as FISA, construed as applicable to foreign surveillance involving Al Qaeda, is constitutional (as I believe it probably is), then the program is unlawful after all. That's a reasonable argument, and in the end it might well be right. But the President has some possible responses here too.

What seems to me clear, on the basis of all this, is that even if the President's argument is unconvincing, it can be offered in good faith. It's far better than some of the ludicrous passages in the 2002 memorandum by OLC on coercive interrogation, and than other over-the-top OLC arguments, in the same general period, about the President's broad power to protect national security. It's probably better than President Truman's argument in the Steel Seizure Case. It's hardly a clear winner, but it's also not an entirely clear loser in the Supreme Court (would anyone be shocked, or faint, if it attracted two, three, or more votes?).

3. After Hamdan, the defense of the NSA foreign surveillance program is much more difficult. Justice Thomas took a route very similar to that sketched by the most plausible arguments for the NSA program -- and his view was squarely rejected by a majority. The Court refused to construe the AUMF as overriding the Uniform Code of Military Justice -- and it would be easy to say that the AUMF has the same relationship to FISA as to the UCMJ (that is, it leaves it 100% intact). The Court gave little attention to the claim that the President has full authority to create military tribunals in the face of congressional restrictions on that power -- and it would be easy to say the same thing for foreign surveillance. (The President does have historical support for his surveillance claim, but he also had such support for creating military tribunals. Maybe the historical support is stronger for surveillance -- but that is not clear.)

Perhaps most important, the Hamdan Court seemed to demand clear congressional support for the presidential action at issue, and the President does not have clear congressional support for foreign surveillance. (In case it's of any interest, I defend a general requirement of clear congressional authorization, at least when constitutionally sensitive rights are at issue, in a paper in the 2004 Supreme Court Review.)

The upshot is that after Hamdan, the NSA surveillance program, while still not entirely indefensible, seems to be on very shaky ground, and it would not be easy to argue on its behalf in light of the analysis in Hamdan. On the other hand, the Court was divided 5-3 (and on the lower court, Chief Justice Roberts voted with the 3). It remains to be seen whether and to what extent the analysis in Hamdan will stand the test of time -- especially if the composition of the Court changes.


Good post. After being tipped off to Egan as the source of Bush's signing statement litany of authority, I read the whole thing and found just a paragraph later a statement that squarely contradicted the notion advanced by the President's selective quotation. I'm personally very happy the latter idea was followed. See my piece Classified Information.

It's a shame James Madison disagrees with you and agrees with Cass. He laid it out in the debate with Hamilton. Here's old JMAD:

The power to declare war is subject to similar reasoning. A declaration that there shall be war, is not an execution of laws. It does not suppose pre existing laws to be executed. It is not in any respect, an act merely executive. It is, on the contrary, one of the most deliberative acts that can be performed, and when performed, has the effect of REPEALING ALL THE LAWS operating in a state of peace, so far as they are inconsistent with a state of war and of enacting as a rule for the executive, a NEW CODE adapted to the relation between the society and its foreign enemy. In like manner a conclusion of peace annuls all the laws PECULIAR to a state of war, and revives the general laws incident to a state of peace.

It's pretty clear, the AUMF/Declaration of War, repealed all of the laws which operated in a state of peace and set in place a "New Code" to adapt to the conflict with the foreign enemy.

The NSA program is a perfectly legal part of the "New Code" which was enacted by the AUMF/Declaration of War.

All of this would be much clearer if Congress had explicitly declared war on Al Qaeda, but with the War Powers Act and recent history, it's afe to say that Congress will never again declare war on anyone and that AUMFs are the functional equivalent of declarations of war for Constitutional purposes.

It's all so simple, Madison laid it all out 200 yrs ago. Now, are you going to call "The Father of the Constitution" a radical right wing fascist like you do Bush ?

AUMF was an authorization of force; it was not a full-fledged war, so like the "quasi-war" on France in the late 1790s, all the laws of peace (if that is possible) did not change.

Madison disputed Hamilton's broad views on executive power in the 1790s per a series of newspaper wars. Madison apparently won the test of time.

Spet 11th, July 7th, Amdrid, Bali and others are all part of a Quasi war? Pass the doochie, man.

The AUMF is the same thing as a declaration of war. Art I never states HOW a war declaration is to be made, it just says Congress shall declare it. With the AUMF, they declaared it. The President said it was a war, the people understood it was a war. The media's referred to it as a war. To try and pass this off as a Quasi War is insulting to the thousands of soldiers and civilians that have been killed or injured in it.

The contrary argument, which also seems to me plausible, is (i) that the AUMF is in a way more specific than FISA (because it deals with Al Qaeda), (ii) that the AUMF is the later enactment and hence trumps FISA in the event of conflict, and (iii) that the two statutes should be construed together in a way that fits, if fairly possible, with what might be part of the President's power as Commander-in-Chief. (Recall that lower courts have said that foreign surveillance is included within the power of the Chief Executive.)

Prof. Sunstein, respectfully, I think you vastly overstate the "plausibility" of this argument.

First, it makes no sense to say that the AUMF is "in a way more specific than FISA." Yes, FISA makes no mention of al Qaeda. But it does specifically mention war. In other words, FISA specifically contemplates Congressionally authorized conflict. Suppose Congress were to declare war on France. Would it make sense to say that such a war authorization is more specific than FISA because FISA makes no mention of France? Of course not.

Second, discussion of the Commander-in-Chief power entirely glosses over the difference between exclusive powers and default powers. So what if pre-FISA courts found that the president had the authority, absent legislation, to conduct surveillance. That's neither here nor there. When Congress passes laws in an area that the president had previously acted on his own authority, that doesn't automatically create some sort of conflict of powers. Unless the president has the exclusive authority to set the rules regarding the surveillance of people within the U.S. (which strikes me a self-evidently baseless proposition), then there is no conflict. The statute governs, and there is no need to interpret in an entirely counterintuitive way so as to avoid some imaginary tension.

There's a plausible argument that FISA (i) overcomes the AUMF, because it's more specific and (ii) is constitutional, because it doesn't intrude on any authority that the President has under Article II.

The second plank of this argument fails.

The Courts have unanimously held to date that the President pursuant to multiple provisions of Article II has the general constitutional authority to conduct warrantless surveillance for the primary purpose of intelligence gathering against foreign powers and their agents in the United States. The NSA Program as reported falls under this power.

If FISA applies to the NSA Program and requires warrants to conduct surveillance, then this is a clear limitation or elimination of the President's Article II power.

The Hamdan decision (like the prior Youngstown decision cited by Kennedy) involved a balancing test where Congress had a specific Article I power which conflicted with the President's general Article II power over the military and foreign policy. In such cases, the Congress prevails when it legislates in the area of conflict.

In Hamdan, the Steven's opinion listed multiple express provisions of Article I which allowed Congress to legislate in the area of the treatment of Captures. The Congress used those powers to enact the UCMJ and its articles applying to military commissions. These express Article I provisions trump the President's general power to create military commissions and establish their procedures.

However, there is no Article I provision which expressly empowers Congress to direct or conduct intelligence gathering and therefore no provision which would authorize Congress to enact FISA to limit or eliminate the President's Article II power to conduct warrantless intelligence gathering.

In short, we do not even have to arrive at an analysis of whether the AUMF amends FISA because FISA may not constitutionally limit the President's Article II authority over intelligence gathering.

jao said...

bart: In short, we do not even have to arrive at an analysis of whether the AUMF amends FISA because FISA may not constitutionally limit the President's Article II authority over intelligence gathering.

That part of your analysis is exactly backwards. A judge would consider the statutory question first, and take up the constitutional question only if it still obtained after the statutory issue was determined. (That is the method Thomas correctly applied in Hamdan, and the method Alito said he would apply to an examination of FISA.)

That depends on what the judge is attempting to achieve.

The base issue is always whether the statute is constitutional. Therefore, this is the logical place to start in a legal analysis.

However, if the Court is seeking to preserve the statute if at all possible by avoiding the constitutional question (doctrine of constitutional avoidance), then it may visit the AUMF question first. This is Justice's position because it uses FISA continuously and does not want an overzealous Court shutting down the entire system.

Also, conservatives like Alito and Thomas always seek to narrow their decisions as much as possible and prefer to let the democratic branches sort out balance of powers issues. Therefore, if the AUMF provides an easy out for this question, a conservative judge can avoid entering the balance of powers constitutional thicket.

I am not a judge and can take any approach I please. I never thought much of the AUMF waiver argument and believe that the Article II argument is dispositive.

jao: In the context of the Youngstown framework, one must analyze the statutes first to determine which of Justice Jackson's three categories applies.

Since we apparently are in Youngstown Category 3 -- you concede that the AUMF argument fails and the NSA program violates FISA on its face -- the program is legal if and only if FISA is unconstitutional because Congress lacked authority to enact it.

I disagree. You cannot even start the Jackson balancing test until you have a situation where Congress is acting pursuant to its Article I powers.

Youngstown is predicted on Congress acting constitutionally pursuant to its power to regulate government land seizures.

In the Hamden case, the first point made by the portion of the Steven's opinion joined by Kennedy was to quote the multiple provisions of Article I which expressly grant Congress the power to establish rules for the treatment of Captures.

However, in the case of FISA, Congress has no Article I power to direct or conduct intelligence gathering. Therefore, we do not even get to the Jackson balancing test because there is no Article I power to balance with the President's recognized Article II powers over warrantless intelligence gathering.

jao: But you clearly are wrong in asserting that Congress lacked that authority. You misstate what FISA does as a congressional attempt to "direct or conduct intelligence gathering." Rather, Congress acted generally to regulate surveillance of citizens' communications under the Intersate and Foreign Commerece clause, by the goverment or anyone else. Like the rest of the U.S. criminal code, this is authorized by the Necessary and Proper Clause, and to the extent such regulation impinges on military operations, it also is authorized under the Rules and Regulation clause.

1) Commerce Clause: Congress never claimed FISA was enacted pursuant to the Commerce Clause. This is not surprising because it is difficult to see how secret surveillance which in no way affects the communications at issue somehow affects commerce. The Commerce Clause has been stretched beyond all recognition since the New Deal Court, but I do not see how it stretches that far.

2) Regulation of the Army and Navy: This provision is limited to regulation of the individual good order and discipline of the uniformed services and has never been interpreted to allow Congress to assume the power of regulating the direction of intelligence gathering.

3) Necessary and Proper Clause: The Necessary and Proper Clause does not create a substantive power allowing Congress to enact any legislation it feels necessary and proper. Rather, this is an enabling provision which allows Congress to enact legislation to perform the various powers described in the Constitution. For example, Congress arguably used the Necessary and Proper Clause to create the NSA so that the President could exercise his intelligence gathering powers. However, Article I does not provide Congress the power to direct and conduct intelligence gathering. Therefore, the Necessary and Proper Clause cannot enable the exercise of such a power by Congress.

I challenge anyone to offer an Article I provision which refers to intelligence gathering or a court case which interprets an Article I provision to allow Congress to regulate intelligence gathering.

Stevens' twisting of the "practicable" language in the UCMJ is even more egregious.

To arrogantly assume such power when even Marshall and Story unanimously agreed tha thte President is the one who exercies discretion and that his decision is final is beyond the pale.

Even the Chevron line of cases gives virtually unfettered discretion to the agency or officer in charge when discretion is granted.

For Stevens and the liberals to decide that they know what's practicable and whether or not the circumstances merit commission instead of courts martial is astounding, even for them.

The sooner Stevens hits the golf course in Islamorada for good and the abomination that is Hamdan can be overruled, the better.

Professor, how can the Pres be on "solid ground" on the 4th Amendment issue? Scalia said this term in U.S. v. Grubbs:

"Anticipatory warrants are, therefore, no different in principle from ordinary warrants. They require the magistrate to determine (1) that it is now probable that (2) contraband, evidence of a crime, or a fugitive will be on the described premises (3) when the warrant is executed. It should be noted, however, that where the anticipatory warrant places a condition (other than the mere passage of time) upon its execution, the first of these determinations goes not merely to what will probably be found if the condition is met. (If that were the extent of the probability determination, an anticipatory warrant could be issued for every house in the country, authorizing search and seizure if contraband should be delivered? though for any single location there is no likelihood that contraband will be delivered.)"

This latter observation is directly relevant to The Program.

"Rather, the probability determination for a conditioned anticipatory warrant looks also to the likelihood that the condition will occur, and thus that a proper object of seizure will be on the described premises. It must be true not only that if the triggering condition occurs ?there is a fair probability that contraband or evidence of a crime will be found in a particular place, . . . but also that there is probable cause to believe the triggering condition will occur."

So a warrant-issuing court (even a secret one, presumably) must believe that a party on the phone is actually a terrorist or that some other crime will occur (e.g., a RICO violation of planning a conspiracy, etc.), not just that there are terrorists who use phones. Or am I totally off-base?


to answer your questions:

a)the executive, by declaring war Congress gives him that power

b) New Laws passed by Congress. The AUMF replaced FISA

c) Yes, the 4th amendment no longer applies. Neither does the 1st, 3rd, 4th. 5th or any other amendments. If Congress can suspend Habeas Corpus, they can effectively eliminate any possiblity of enforcement of any of the amendments. See Martial Law. See the draft. Both violate the Bill of Rights and other amendments.

d) the executive is prevented from being a dictator by impeachment, an armed populace, a civilian controlled military, and the overall US system that would hopefully prevent such a thing. Chances are the President would be killed or arrested if he went too far.

glad to be of help.

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