Saturday, August 19, 2006

The Bloggerati response to Judge Taylor's ruling in the NSA Case

Guest Blogger

Laurence Tribe

[This posting was based on an e-mail addressed to Adam Liptak at the New York Times]

Dear Adam,

Good story on this morning's front page about Judge Taylor's unusually casual and surprisingly breezy way of dispatching the Bush administration's legal defense of its NSA warrantless surveillance program,. However, I have a reaction that may not be exactly what the "doctor" ordered -- or what you might have anticipated -- that I wanted to share with you and with some of those you quoted, as well as with a couple of other friends and that you should feel free to use as you wish.

It's altogether too easy to make disparaging remarks about the quality of the Taylor opinion, which seems almost to have been written more to poke a finger in the President's eye than to please the legal commentariat or even, alas, to impress an appellate panel, although I certainly agree with the many who predict that, while her reasoning is bound not to be embraced, her bottom line is very likely to survive appellate review.

Had I been in her place, I never would have reached the difficult First and Fourth Amendment issues that she disposed of so summarily when a powerful, and indeed all but impregnable, statutory path to decision at least appeared to be available under the FISA. I also would have been less ready to find standing on the part of the complainants without much more meticulous analysis than Judge Taylor undertook; I would obviously have grappled with the "special needs" exception if I had reached the Fourth Amendment claim; and I can't imagine not addressing the 2002 decision by the FSIA Court of Review. But as legal academics many of us -- and I don't exclude myself from this observation -- sometimes miss the forest for the trees and act as though making an argument water-tight is more important than steering the legal boat in the right direction, much less reaching the correct shore.

When a presidential program that wouldn't have been exposed at all but for leaks that the administration is trying not just to plug but to prosecute is manifestly lawless in the most fundamental respects; when that program challenges constitutional as well as statutory constraints on executive authority; when it is promulgated by an executive branch in the hands of characters who care little about the rule of law, much less about legal nuance; and when the lawmakers who are posturing as the program's critics have in fact engineered a statutory "fix" that amounts to little more than a whitewash in the offing -- when all these things are true, it's not costless to harp on the details of a basically correct legal denunciation of that program to the point of ridiculing the motives and capacities of the judge delivering the blow. Taking that tack is likely to play into the hands of the administration that was caught red-handed.

My point isn't that judges who play the role Judge Taylor did should never be held to account for the shoddy quality of their legal analysis; of course they should, especially in the context of sober second thoughts offered in law reviews and other scholarly venues. But It's those with constitutional blood on their hands who deserve to be chastized most insistently in the public press, and it seems to me something of an indulgence to spend so much time complaining in the media that the judge who called foul used some ill-chosen rhetoric, and that she stuttered and sputtered a bit more than necessary, when the principal effects might well be to underscore one's own professional credentials and one's cleverness and even-handedness and fair-mindedness at the expense of distracting the general public from the far more important conclusion that the nation's chief executive has been guilty of a shamelessly unlawful power grab.

Even at the level of legal analysis, it's a bit much to treat Judge Taylor as though she idiotically and gratuitously injected the Constitution into her argument when all she needed to do was rely on the FISA. Even the FISA, after all, is subject to constitutional restictions to the degree that a particular presidential maneuver that it purports to forbid is arguably immune under Article II from the particular exercise of Article I power on which the FISA prohibition rests. And although Judge Taylor's opinion doesn't do a good job of explaining just why the administration was wrong in arguing that FISA would be unconstitutional to the degree it has the effect claimed by the critics of the NSA program, it remains the case that no explanation of that conclusion would be possible without undertaking a constitutional rather than entirely statutory dissection of the relevant materials.

Moreover, it seems to me misguided to say that Judge Taylor's reliance on the chilling effects of the government's eavesdropping program represents poor legal argument simply because it isn't deeply rooted in settled precedent or entails what Jack Balkin described as a "rather innovative" line of argument. Before many of us grew accustomed to the Rehnquist Court's unfortunately dismissive reaction to "chilling effect" arguments of the sort that were routine in Justice Brennan's day and that came to seem adventuresome only in an era that could take decisions like Laird v. Tatum more or less for granted, the argument that struck Judge Taylor as compelling would have been regarded as altogether routine.

Finally, it's something of a cheap shot to chide Judge Taylor for her failure to exploit Justice Stevens' more than mild hint, in his Hamdan v. Rumsfeld opinion, that the administration's reading of the AUMF was too sweeping by a country mile. Of course Hamdan offered a major crutch that Judge Taylor failed to grab. But, by all accounts, she is no fool. My immediate assumption -- an assumption that explains why I praised her opinion and not just her result in my remarks to Charlie Savage of the Boston Globe the other day -- was that Judge Taylor was being rather clever in her seemingly deliberate and rather daring decision to reject the administration's far-fetched construction of the AUMF without relying on the Supreme Court's June 2006 pronouncement on the subject.

Although my good friend Cass Sunstein, whom I admire in more ways than I can count, seems to remain of the view that the administration's invocation of the AUMF was at least a plausible way around the prohibitive effect of the FISA prior to the rejection of that reading in Hamdan, I was among those -- including some of those whom you quote as critical of the Taylor opinion -- who had no doubt whatsoever, long before Hamdan was handed down a couple of months ago, that the administration was reading the AUMF for vastly more than it could conceivably have been worth and, in the bargain, was twisting Justice O'Connor's words and the Court's conclusions from Hamdi v. Rumsfeld in treating that earlier decision's analysis of the AUMF as support for the far-reaching use the administration sought to make of it. I took the view, in talking with the Boston Globe, that the principal effect of Judge Taylor's admittedly risky decision to go after the government's reading of the AUMF without relying on Hamdan was to make the point, none too subtly, that the administration had been not just skating on thin legal ice all along but had been skating well below the surface of the water, and that it didn't take any hint from Justice Stevens this June to establish the point.

That's a matter of more than academic interest, for it bears on the bedrock question whether the President and his advisors were merely failing to anticipate an invariably controversial recent ruling of a closely divided Supreme Court or were instead, as I believe, betraying a contemptuous disregard for law and a willingness to grasp at legal straws in order to mask a naked assertion of boundless power.



I'd agree that if pigs had wings they *might* be able to fly, but considering that ostriches do have wings and can't fly, I wouldn't make any big assumptions about it being "necessary and appropriate".

Suppose for example that the President "determinied" that it was "necessary and appropriate" to gang-rape a two-year-old girl and then eat her for dinner.

Q: How would you go about proving that?

A: The same way you'd go about "proving" what you say here.

We have a Consititution and laws for reason, and it isn't because anyone who wrote the Constitution thought the President should break the law any time he thought it was a good idea...

FISA allows you to tap and get the warrant later. Your example is specious.

This comment has been removed by a blog administrator.

The question is, what should a president do when the situation changes fundamentally, and he needs to go beyond present law? Bush might be forgiven if he had implemented the procedures immediately, then went to the Intelligence Committee, which would gladly amend the present law to fit new technologies or necessities. The problem is, this president insists he has no obligation to go to Congress, he doesn't have to justify these powers to anyone, ever, and that the program can be kept completely secret ad infinitum. In fact, the whole disagreement is far less about the eavesdropping, and much more about the executive overreach involved in the warrantless part.

Why is it that posters like Andrew always end up with the "Al Qaeda didn't know we listen..." argument?

The bungling of the PRE-9/11 intelligence might have offered some sense of immunity; however, if "Spying is a "necessary and appropriate" action that has always been considered a fundamental incident of war..." how could a rational person reason that the terrorists would not presume that their communications COULD BE COMPRIMISED?

Nobody thinks it's a bad idea to monitor potential terrorist communication. But given the gross mismanagement of the "war" effort here and abroad, there is precious little political capital to expend on such an obvious violation of Executive Constitutional powers.

Professor Tribe: Very well said, in both substance and style.

barkleyq: Also well said. All sense of proportion seems to have gone out the window with regard to exactly the level of threat embodied by radical Islam. It is simply not anywhere near what this country faced in either the Cold War or World War II.

andrew: The president has been accruing power he has not been given by the Constitution, and it would be prudent to keep in mind that "no emergency can create power." Your statement that "no one that (you) know of is suggesting that we give up the Constitution and the Bill of Rights" is directly contradicted by your attempts to bolster weasel arguments for the Bush Administration.

roberto sumatra-bosch: Here's hoping that you earn the prosecution you so richly deserve for threatening a federal judge. Stupidity should be painful, and if the degree of such pain were determined by the level of stupidity, you would be in line for something truly excruciating. Both your hysteria and your ignorance are pathetic.

Sensen No Sen

andrew: Regarding Roberto Sumatra-Bosch, after a search for other comments posted under that name, I think you're correct. Having seen similar comments by others posted in seriousness elsewhere, I'm not sure I'd characterize my response as gullible, but point taken.

Sensen No Sen

Why this continual need to emphasize how "unusually casual and surprisingly breezy" etc. the opinion was? Even Prof. Tribe has to go this route. So tiring.

Anyway, how could the judge ignore the First Amendment issue when it seems that the plaintiffs brought the case especially because their expression/association rights were being violated? The suit by academics, reporters, and advocates clearly has a 1A component. It clearly went to standing.

The special needs issue could have been dealt with, but some have noted that the gov't really didn't do a great job defending themselves on the merits. Thus, was this even necessary to bring up? Anyway, she covered a lot of ground. And, the SN area actually opens up a can of worms -- it suggests the administration has a leg to stand on.

Finally, is the opinion really "unusually" breezy etc? It is over 40 pages, covers close to ten different subject areas, and clearly is going to be tossed aside when the appellate court covers it. Remember that tome the appellate panel gave on the McCain/Feingold legislation ruling? How useful was that?

Are district court rulings in generally really so superior to this one? Those law professors can find a lot to fault SC rulings too. Finally, I agree on the Hamdi point -- it underlines the administration was wrong based on law handed down years before last June.

Good pt.

This is rather broadly phrased: "do you really think that the AUMF intended to grant no power to listen in on Al Qaeda communications?"

With a FISA warrant, obviously they have this even when the communication involves domestic chatter. Let's not even go into battlefield conditions.

Where is the stopping point? Al Qaeda cells possibly exist in the U.S. apparently. So, via the resolution, on the sayso of the executive, can someone possibly friendly with them in some fashion (even solely to interview them on legit topics) have their phones tapped w/o a warrant?

"anything at all" is a strawman that is rather unproductive. per Hamdan, AUMF did not even justify the military tribunals set up. Does it justify overriding a law protecting domestic citizens from warrantless surveillance ala FISA?

I'd be rather wary to assume that.

Andrew, Tribe, et al.: One good reason the AUMF might not come up is that the Judge wrote that the TSP program has been in effect "for more than five years." (pp. 38, 31) That would predate both the AUMF & 9/11, so the AUMF doesn't make a good defense then. I'm not clear, though, on whether the ruling would be just on the program as it now exists, or as it has been used over its course.

Again, "every military action" is rather broad. What does this mean? Is this relevant to the current case, involving members of the academy etc.? Does this mean any targeting of domestic individuals, even American citizens who are not shown to be 'foreign agents' w/o even a FISA warrant?

Anyway, since 9/11, Congress passed various laws, including the Patriot Act. Sen. DeWine, a conservative Republican, suggested legislation that would have amended FISA to weaken the guidelines. The administration said that wouldn't be necessary.

They want to have their cake and eat it too. Should we operate the fork for them?

Pretty lame, it seems to me.

Tribe all but concedes the opinion is poorly reasoned and incomplete, but it doesn't matter because he likes the result.

I would think that if he likes the result and thinks it's important, all the more reason to want a competent judicial effort.

That's what comes of sniffing too many penumbras.

Andrew opens with some speculations, which if stipulated might support a certain conclusion. But here are some things that are not speculative: what conclusions should we draw from them?

1.) When the framers wrote "war" into our Constitution they meant "armed struggle between nations," rather than "campaign to end an injurious condition."

2.) Terror is not a nation, but rather an injurious condition.

3.) The phrase "War on Terror" fails to fit the meaning of war written into the Constitution.

The clear conclusion is that AUMF is unconstitutional on its face; the Constitution in no way allows for the granting of vast war powers to the exectutive merely to campaign against an injurious condition. By the logic used on September 18, 2001, to pass AUMF, we could have as easily given the same powers to Lyndon Johnson to fight the "war" on poverty (which kills many more than terror.) It was a deriliction of duty that Congress passed AUMF in the first place, and it is a travesty that it has taken so long for the judiciary to begin the process of undoing this mistake. Judge Taylor should be lauded for courage rather than nitpicked for form. The minions of PNAC will see that all such nitpicking is done in a higher court; meanwhile true patriots should be standing and cheering and rallying to defend Taylor's bravery against the coming onslaught.

Thank you, Professor Tribe, for helping keep eyes on the ball, on those with "constiutional blood on their hands."

Ever since bits of this program have become public (Thank you NYT), I have been struck by the inconsistency of the opposition. They seem to hold two conflicting opinions at once.
1) Al Queda already knew they were being listened to when they called the US, therefore the NYT did nothing wrong in revealing specific details of this classified government program.
2) This program is a horrible affront to our civil liberties and needs to be shut down right now, so people in the US have the ability to communicate with foreign terrorists without the danger of being overheard by the US government, UNLESS the government can provide probable cause and fill out the right legal forms.
Roughly stated, this means when a foreign Al Queda operative on a disposable cell phone calls another disposable cell phone in the US, only non-US governments can legally be listening. Wow, this makes me feel so safe. Not.

pubilus at "Legal Fiction" has a diffent take on why the ruling was inappropriate.

His argument is that proper proceedure was ntot followed. The case was in its "pleadings" stage, and had not gone to "discovery" so the facts are not there to support ANY ruling as yet.

I think I have to agree with his conclusion.

Wow, this makes me feel so safe. Not.

A trip to see the wizard might help you.

I long for the good old days of "give me liberty or give me death". The current slogan of the right -- "take my liberties, just please, please, please don't let those nasty terrorists get me" -- lacks the same panache.

Andrew, your suggestion about the AUMF is inconsistent with a number of public statements about the domestic spying program:

1. On December 19, 2005, Attorney General Gonzales gave a press conference after the surveillance was revealed by the New York Times. He was asked, “If FISA didn’t work, why didn’t you seek a new statute that allowed something like this legally?” He responded that they had discussed that with certain members of Congress and were advised, “that was not something we could likely get.”

2. At the same press conference (December 19, 2005), Attorney General Gonzales stated that the authorization for the use of force against Al Qaeda on September 12, 2001, satisfied the FISA requirements. It obviously makes no sense to claim that Congress actually did authorize the surveillance while also saying that Congress would not amend the law to authorize it.

3. On January 23, 2006, General Michael Hayden, the director of the NSA from March 1999 until the Spring of 2005, gave a speech in which he said that President Bush approved the warrantless surveillance because the NSA needed a “softer” standard (“softer” than the probable cause required by FISA) such as “reasonable basis to believe”.

However, on July 31, 2002, James A. Baker, the Justice Department’s Counsel for Intelligence Policy, testified before Congress on a bill that would have amended FISA to change the standard for certain warrants under FISA from “probable cause” to “reasonable suspicion”. This change would have permitted some, but not all, of the illegal surveillance. He told Congress that the Bush Administration was not prepared to support the change because it “might not pass constitutional muster”. Mr. Baker warned that if the change were not constitutional, it might cause problems with later prosecutions.

Thus, Hayden's statement contradicts what the Administration itself told Congress.

4. The AUMF authorizes "all necessary and appropriate force against those nations, organizations, or persons [the president] determines planned, authorized, committed, or aided" the attacks of September 11, 2001. Senator Daschle wrote in the Washington Post (December 23, 2005) that the Bush Administration twice suggested alternative language for the AUMF:

A. On September 12, 2001, to add a clause expanding the scope to allow the use of force to "deter and preempt any future acts of terrorism or aggression against the United States."

B. Just before the Senate vote, to add the words "in the United States and" after "appropriate force" in the text.

Congress rejected both of these proposed changes.

The rejection of this language demonstrates beyond any doubt that Congress did not intend the AUMF to authorize surveillance of US citizens.

I can only conclude that the Administration is being disingenuous or even dishonest in asserting the AUMF as a justification.

Andrew, you said, "Any fool should know that his communications with Al Qaeda "COULD BE subject to surveillance." But up until disclosure of this program, the misfits didn't understand the likelihood."

That statement is patently false, yet conservatives still preach it as a lame excuse. The president himself told the whole world that we would be monitoring their conversations. I don't have a link handy, but it was posted on the White House web site from one of Bush's speeches. He made that statement specifically well before this illegal program surfaced (some time in late 2001 or 2002, I believe). If anyone remembers this link, please post it. When someone later pointed that out when the White House tried to claim the same thing, they had the even more lame reply that "the terrorists would have forgotten about that." Or something to that effect. The point is, Bush himself put the world on notice that the US would be monitoring Al Qaeda communications. So to now claim that this program was kept confidential to keep Al Qaeda from knowing that the US was listening to their conversations is more than a little hard to swallow unless you assume that Al Qaeda is as incompetent as the Bush administration.

Found the links in a Glenn Greenwald post from December 2005. Glenn provides specific instances that Bush himself boasted of his efforts and Glenn has links back to the White House speeches. Please stop passing on this meme that talking about this is helping the terrorists unless you really don't care about the truth.

You say that it "obviously makes no sense to claim that Congress actually did authorize the surveillance while also saying that Congress would not amend the law to authorize it." On the contrary, laws are often passed that contain tit-for-tat provisions that could never be passed individually.

This makes no sense to me in the context of my quotes from Gonzales. Gonzales asserted two inconsistent facts: (1) that Congress DID (implicitly) amend FISA to authorize the domestic spying program when it passed the AUMF; (2) that Congress REFUSED to amend FISA to permit the domestic spying program. These statements can't both be true; the issue of political bargains is a red herring.

Believe it or not, there are sometimes exceptions to the warrant requirement, primarily because a probable cause standard is not always "reasonable." It sounds from your quote of Mr. Baker that the Justice Department was saying that a probable cause standard is necessary IF a warrant is required. That sounds correct to me.

I'm aware of the exceptions to the warrant requirements. Section 1801(f)(1) already is limited to "cases in which a warrant is required".

That leaves Hayden with nowhere to go. If it's necessary to violate the 4A in order to spy, then it can't be done. Period. If it's not necessary, reference to warrants is a red herring in light of the Administration's rejection of the proposed amendments to FISA and the existing language of Section 1801.

You find significance in the fact that the AUMF was modified in certain ways before being enacted.

No, I found significance in the fact that the AUMF was NOT modified.

The surveillance program at issue is directed at Al Qaeda, as I understand it

That is not my understanding. You are the only person I've ever seen suggest that the domestic spying program is so limited. If that were the Administration's position, it has never said so publicly.

In any case, except in the (hopefully) rare case in which the Al Qaeda member is also a "US person" who is targeted intentionally, then FISA would not prevent intercepting Al Qaeda calls. Even in such limited cases, warrants could still be issued when necessary, since the FISA court is unlikely -- to put it mildly -- to refuse a warrant in such a case.

More ammo for you Mark:

From Glenn Greenwald:

"Secondly, it was revealed yesterday that when the AUMF was being drafted, the Administration wanted Congress to grant it the authority to use its war powers inside the U.S., and Congress refused to give that authority. For the Administration to now claim that it had the authority from Congress which Congress actually expressly refused to give it is about as dishonest as it gets. As Justice Frankfurter said in his Concurring Opinion in Youngstown:

It is one thing to draw an intention of Congress from general language and to say that Congress would have explicitly written what is inferred, where Congress has not addressed itself to a specific situation. It is quite impossible, however, when Congress did specifically address itself to a problem, as Congress did to that of seizure, to find secreted in the interstices of legislation the very grant of power which Congress consciously withheld. To find authority so explicitly withheld is not merely to disregard in a particular instance the clear will of Congress. It is to disrespect the whole legislative process and the constitutional division of authority between President and Congress.

Finally, not a single Senator has said that they discussed at the time that the AUMF was enacted that they were giving the President an exemption from FISA, and scores of Senators have said that this is the opposite of what they understood they were doing when they enacted AUMF. On its face, that law allows the President to use military force against Afghanistan and Al Qaeda, and does not "amend" FISA to allow the President to eavesdrop on American citizens without bothering to comply with it."

Thanks dilireus. As usual, Glenn says it much more forcefully and elegantly than I can.

the administration has repeatedly said that the program in question does not involve general surveillance unrelated to Al Qaeda. I would think that if anything is crystal clear in this matter, it is that the program targets Al Qaeda.

In his radio address of December 17, 2005, President Bush said that, "...I authorized the National Security Agency ... to intercept the international communications of people with known links to Al Qaeda and related terrorist organizations."

In the press conference on December 19, Gonzales said warrantless surveillance was employed "where there was a reasonable basis to conclude [!] that one party is a member of Al Qaeda, affiliated with Al Qaeda, or a member of an organization affiliated with Al Qaeda."

The DOJ's whitepaper of January 2006 acknowledges that "the NSA intercept[ed] international communications into and out of the United States of persons linked to Al Qaeda or related terrorist organizations."

My emphasis in all cases.

While the Administration has subsequently used weasel words in an effort to suggest that ONLY Al Qaeda has been targeted, its original statements make it clear that this is not true. Exactly how far beyond Al Qaeda itself the program extends, we don't know. What we do know is that it is NOT limited to Al Qaeda.

It looks like all those AG actions noted by Andrew could have been handled under FISA. That is, there is nothing in FISA that would have prevented any of those actions.

The administration could and can perform this surveilance legally and constitutionally (under FISA and conforming to the 4th Amendment), but it chose not to.

And the "necessary and appropriate" clause should be read as "those actions required" (necessary), that are constitutional/legal (appropriate).

There are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations. - James Madison, speech to the Virginia Ratifying Convention, June 16, 1788

Is the relinquishment of the trial by jury and the liberty of the press necessary for your liberty? Will the abandonment of your most sacred rights tend to the security of your liberty? Liberty, the greatest of all earthly blessings — give us that precious jewel, and you may take every things else! Guard with jealous attention the public liberty. Suspect every one who approaches that jewel. - Patrick Henry, speech in the Virginia Convention, June 5, 1788

If we suffer tamely a lawless attack upon our liberty, we encourage it, and involve others in our doom. - Samuel Adams

Andrew, you're now making an entirely different argument.

I don't necessarily disagree with your points. They are points which the Administration could and should have properly raised before Congress. Instead, it simply violated existing law and Constitutional procedure. That's utterly unacceptable.

Most of the scenery has been thoroughly masticated in these comments. I just have a few points I feel compelled to add.

1) Secret surveillance programs on Americans by the executive branch without the benefit of oversight by the judicial branch in the form of warrants, even post facto, are always and invariably abused for political ends. It is the nature of unaccountable power to be abused.

2) What is almost certainly the most intrusive aspect of the NSA program, the data mining operation that is certainly going on, is not touched by this ruling. This operation continues unabated, unaccountable and undisclosed. The informational theory logic which compels the existence of such a program is inescapable, though I will not reproduce it here. At most, this decision stuck a finger in the dyke that is our eroding Constitution, as the floodwaters overtop the edifice.

3) At base the Administration's argument rests only and solely upon the premise that he has powers that the Constitution does not grant, and which no legislation can authorize, being unconstitutional. The President must not be allowed to lay claim to a right to violate Americans' Constitutional rights based on the phrase "Commander in Chief". That becomes the exception that swallows the rule of law. All else is simply sophistry, pettifoggery, and red herring stew.

Mark, no one in this thread has bothered to answer this simple question: why did Congress write into the 2001 AUMF that the War Powers Resolution was not being supereceded in any way?

Because under existing law there's no reason for Congress to have done so. Courts almost always reject the argument that Congress implicitly overruled a prior statute. In J.E.M. Ag. Supply Inc. v. Pioneer Hybrid Int'l Inc., 534 U.S. 124, 137 (2001), the Supreme Court rejected such claims absent "overwhelming evidence" of Congressional intent to do so. It went on to say that the only justification for implicit repeal is when the two statutes are "irreconcilable".

The AUMF and FISA certainly are not "irreconcilable". There is no evidence that Congress intended to repeal FISA in this case, but there is a good deal of evidence it did not intend to do so. In addition to the quotes I provided earlier from Senator Daschle, consider that,

1. FISA has always provided for its own suspension in case of war (a more formal statement than the AUMF). That suspension, however, is limited to 15 days. This provision is pretty strong evidence that Congress did not intend the AUMF to supercede FISA.

2. The Patriot Act actually did amend FISA in certain respects. In one of the drafts, the Administration proposed an extension of the 15 day period in cases where Congress authorized the use of military force. If the Administration thought that Congress had already superceded FISA in the AUMF, it would hardly have drafted such language.

3. FISA is not the only statute involved. There is also the domestic wiretap law, which expressly states that it and FISA are the "exclusive means" for conducting electronic surveillance. 18 U.S.C. Section 2511. The AUMF would have to supercede this statute as well, despite the lack of any evidence of Congressional intent to do so.

4. Finally, consider that the AUMF might be argued to implicitly repeal many statutes. The Supreme Court rejected just such an argument in Hamdan. The argument that the AUMF implicitly repealed "many" statutes puts more weight on that resolution than it will bear.

Andrew, are you saying the 4th amendment is superfluous?

Congress cannot write a law that violates the Constitution.

{ANDREW: Al Qaeda, and people affiliated with Al Qaeda, and related groups that work with Al Qaeda, are a significant threat to liberty. It is not reasonable to demand probable cause before tapping their phone calls into the United States, in order to stop them from realizing that threat. A reasonable suspicion should be enough.}

B.S. You are flat wrong unless you think this is superfluous:

Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

"Not reasonable to demand probable cause?" Not only is it infinitely "reasonable," it is constitutionally required - period. What Andrew is claiming runs 180 degrees counter to the 4th Amendment. All FISA requires is that these warrants (some made after the fact - a stretch of the 4th as it is) be reviewed by a judge as per the 4th Amendment. That's basically it. This allows plenty of flexibility for law enforcement to get its job done.

I've see and spoken with others like this before and they inevitably have either: never read the Constitution and thus have no understanding of it; or they have no respect for it. They harbor greater fear for their own hide that for protecting the Constitution.

And "significant threat?" More significant than the British burning the Capital? More significant than the armies of Hitler, Mussolini, and Tojo? More significant than the Soviet Union with thousands of nuclear missiles pointed at the US? Complete and utter crap! Home of the brave? These chicken-spits bring nothing but shame and dishonor to our country. If Patrick Henry were to come back to life today he'd throw up in their faces Exorcist-style.


Such anti-Constitutionalists are who our forefathers warned us about.

The liberties of our country, the freedom of our civil Constitution, are worth defending at all hazards; and it is our duty to defend them against all attacks. We have received them as a fair inheritance from our worthy ancestors: they purchased them for us with toil and danger and expense of treasure and blood, and transmitted them to us with care and diligence. It will bring an everlasting mark of infamy on the present generation, enlightened as it is, if we should suffer them to be wrested from us by violence without a struggle, or to be cheated out of them by the artifices of false and designing men. - Samuel Adams

"Dilireus, the Glenn Greenwald blog post to which you refer cites multiple instances in which President Bush publicly discussed the provisions of the Patriot Act. If that makes Bush guilty of helping terrorists, then Congress is also guilty, because Congress put those details about law enforcement techniques into the Patriot Act. In contrast to those remarks Bush made about the Patriot Act, Greenwald does not cite any instance in which Bush publicly discussed the details of a program that was secret and classified at the time Bush described those details. Thus, you’re comparing apples to oranges. Discussing the provisions of a publicly available statute does not in any way compare to discussing the provisions of a top secret program.

Apples to oranges, Andrew? Malarkey. Nobody has discussed or provided details about this secret program. Nobody outside the Bush administration, the NSA, and a select group of congressmen knows anything about this program. Exposing that it is secret is not a detail. You're trying to change your argument on the fly. Exposing that this particular program exists in no way tells Al Qaeda anything our Saviour hasn't already said repeatedly in public.

This program was secret for exactly the same reason the secret torture program was secret: because it is illegal. The fact that Al Qaeda is a threat to our liberty is irrelevant. We have faced threats to our liberty infinitely greater than a rag-tag group of misfits living in caves in Afghanistan without shredding the constitution. Of course there are programs that should be kept secret. But in America, those programs must conform to the letter of the law. We are not some banana republic.

You really don't seem understand the goal of terrorism, so let me lay it out for you. Despite all of their bravado, terrorists are not out to destroy us. They aren't capable of destroying this country. The goal of terrorism is to terrorize people to the point that they destroy themselves. There is absolutely no way that any loosely organized external group can possibly overthrow any country. Name a single instance in the history of the modern world that this has happened. Coups are carried out by citizens of the country they overthrow and the only reason they happen in that there are internal relationships between those seeking to overthrow the government and the military.

All Al Qaeda has done is knock down a couple of buildings. This is totally insignificant to the country as a whole beyond the scare factor. This took them years to plan and it was the best they could do. We did orders of magnitude more damage in single bombing raids during WW2. Do you seriously believe that tens or hundreds of thousands of Muslim extremists can organize via the Internet and cell phones enough to invade and overthrow the US government when all of the might of the Japanese, German, and Soviet armies could not?

I believe you've mentioned that this program is only used to spy on Al Qaeda. Let's examine that for a moment, shall we? Assuming that the NSA has figured out how to only tap the phones of Al Qaeda sympathizers in this country, why in the hell are we just listening to them and not arresting them? You know damn good and well that if that were happening, Bush would be bragging it up daily. He can't help himself. How many terror arrests have we seen in this country? Jose Padilla? The Brooklyn Bridge blow torchers? Puh-lease.

Try to use some basic logic, for Christ sake. You and all of the other bedwetting Bush supporters out there are so scared that you aren't capable of rational thought. Bush and Al Qaeda have a symbiotic relationships: neither could survive without the other. Bush's approval rating was in the toilet on September 10, 2001. On September 12, 2001 it was at 90%. What exactly did he do in those two days except fail to prevent the most devastating attack against this country in modern history despite being specifically warned about it?

Andrew, I'm not sure if you're still here, but for the sake of completeness I'll respond to your last question to me.

So, are you saying that the clause in the 2001 AUMF regarding the War Powers Resolution is superfluous?

It probably wasn't essential from a strictly legal standpoint. The relevant clause of the War Powers Resolution reads as follows:

"The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces."

The AUMF probably was not inconsistent with the WPR. However, this happens to be a subject on which Congress is very sensitive about its Constitutional powers, and rightly so in light of past experience. It's more a case of gilding the lily and reinforcing Congressional claims to authority than about statutory construction.

The rule of statutory construction I quoted is a good one. Congress can't be expected to anticipate all the potential claims of implicit overruling. Lawyers are too inventive when it comes to seeing "inconsistencies". As we've seen just with the AUMF, arguments have been made that it overruled not just FISA, but also Title III of the Omnibus Crime Control Act and certain passages in the UCMJ. I'm sure many others could be suggested as well -- the annotated codes on my shelf take up 45 lineal feet. The courts are right to limit such claims and establish a general rule against them. The specific mention of the WPR occurred only because Congress is especially sensitive about such an important Constitutional issue.

I disagree with you that the War Powers Clause in the AUMF has no legal significance. I could quote to you a hundred cases that stand for the principle that statutes should not be read in a way that renders any part legally superfluous.

When I said that the clause was not, strictly speaking, necessary, I didn't mean that it was therefore "superfluous". Those aren't quite equivalent. The clause still has meaning because it reinforces the authority claimed in the WPR.

In any case, it would be wrong to draw the inference that because Congress took care to state that one particular statute was NOT superceded, other statutes by implication WERE. That doesn't follow at all.

I'm sure you would agree that Congress has power to alter that standard whenever it pleases.

Absolutely. Note the irony here, however: Congress can change the rule regarding implicit repeal only if it does so explicitly.

Regarding the doctine of implied repeal, and the rule that the latest statute should govern, and the rule that the more specific statute should govern, you might be interested in the dissent by Justice Stevens in RADZANOWER v. TOUCHE ROSS & CO., 426 U.S. 148 (1976).

I hadn't seen that particular quote before. Thanks for bringing it to my attention. The rules of statutory construction are often contradictory -- at common law criminal statutes were to be strictly construed, remedial statutes liberally construed; what if a statute fell into both categories?

Putting aside these theoretical concerns, the AUMF argument doesn't seem to have persuaded many commentators or courts. It certainly doesn't persuade me.

As the Court said repeatedly in Hamdan, Congress should have been "just as concerned" about FISA as the War Powers Resolution.

I don't understand how reference to Hamdan strengthens your point. The Court there rejected the Administration claim that the AUMF gave it authority to set up non-statutory tribunals. That favors my side, not yours.

The First and Fourth Amendment arguments are very weak here.

I wouldn't characterize them as "very weak", but I agree that the statutory argument is stronger.

That means the primary remaining constitutional issue is whether Congress could intrude on presidential power by denying him the ability to surveille the enemy during wartime.

I don't consider this a serious issue. If the Administration is so confident of prevailing on this issue, I'm puzzled why it so frantically avoids any judicial ruling on it.

That aside, the case clearly falls into Youngstown category 3. That means there is no unrestricted Presidential power and thus no need to invoke any doctrine of "avoidance".

I meant to add two points.

First, the Court isn't going to avoid a constitutional issue by making a bad statutory construction argument. It will avoid a constitutional issue only to make a good argument on other grounds. Since, as I've pointed out above, the AUMF argument has no merit, the Court won't avoid the Article II issue on that basis.

Second, in support of my comment about Youngstown, I meant to refer above to footnote 23 of Hamdan, which reads:

"Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may notdisregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 637 (1952) (Jackson, J., concurring). The Government does not argue otherwise."

So the conversation is clear, I posted 80 before I saw 79.

The Youngstown category of this NSA case depends upon whether you interpret the FISA and AUMF as banning the surveillance program.

FISA indisputably does ban it. The Administration has admitted that.

Congress can't forbid the President from intercepting battlefield communications during a declared war.

I'm not at all sure this is correct. Congress has broad power to regulate the armed forces under Art. I, Sec. 8:

"To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces..."

And see Federalist 69, where Hamilton compares the President's CinC power to that of a general.

In any case, we're agreed that Congress has NOT placed any such restriction on the military. Certainly FISA does no such thing. Just as certainly, however, Congress had clear Constitutional authority to enact FISA, so the Youngstown framework applies.

The case of military necessity is stronger regarding the surveillance program.

I don't really know how to compare necessities like this, but if you forced me to make the comparison I wouldn't agree.

In any case, if the military necessity really is that important, nothing has stopped the Administration from seeking amendments to FISA to account for that. I see no reason whatsoever why a Congress controlled by his own party would refuse to make such an amendment upon any reasonable showing of necessity. That is how to avoid a constitutional issue.

Your arguments about the merits of the domestic spying program don't reach the real issue. The crisis we face has not been caused by any dispute over the merits, but by the Administration's arrogant refusal to abide by existing law and Constitutional procedures.

"Let's consider FISA and the AUMF as they are currently written. Suppose a CIA agent in Waziristan hears an unconfirmed rumor that Ayman Zawahiri will be telephoning Louis Farakhan at 10PM the same day, so an international tap is placed on Farakhan from 10PM until 11PM. No judge would ever say there was "probable cause," even though there was "reasonable suspicion" (these two standards are very different from each other). "

That is incorrect. The probable cause standard, as per existing Sup Ct precedent and discussion, differs primarily from the reasonable standard only in that it is rendered by a neutral magistrate. It is not based on some wildly different analysis.

The FISA probable cause standard, operating in a national security setting and not a criminal investigation setting, is probable cause that the person will be in contact with a statutorily defined group of persons or entities (which include terrorists and Zawahiri). Again, as per the limited FISA case law, all the analogous Sup Ct case law, and the unanimous testimony of the retired FISA judges, there just isn't a great difference in "reasonable" and "probable cause" other than the check and balance of who is making the determination.

Now when you say "a rumor" I think you would have to be a bit more specific on how the rumor originated. For example, if the clerk at the Istanbul Dog and SUds said she read in the Ethiopian Enquirer that Madame Faye read the stars and forecast that the call would happen --- well, whatever.

But here's the worst thing that happens in your scenario. Under the 72 hour provision they listen in anyway. If they are wrong, they make the report of the outcome and maybe get slapped a bit (that was a stupid approach) but they are statutorily exempt from recourse as long as they make that report and belated request.

If they were not wrong, they can present what they have found (it wasn't in violation - it was within the limits of FISA) and they get their warrant.

If they were wrong, get a little slapped, go back and on a continuing and abusive basis use the Ethiopian Enquirer's articles on Madame Faye's examination of the stars to initiate warrantless taps under the 72 hour provision, always to no avail, eventually the judicial smack may get a little more foreceful


"Do you really think that such a tap is not "necessary and appropriate" within the meaning of the 2001 AUMF?"

I think it has nothing whatsoever to do with the AUMF, which did not address revisions to national security wiretap laws that are quite broad as it is; and I think that Judge Taylor's citation to Keith and Milligan are pretty much on point in that regard. Even an actual declared war on our own soil and in a state that was operating under martial law, was not a grounds, per the Sup Ct, for suspension of the 4th, 5th and 6th amendments.

It doesn't take any stretch at all to shoot down the AUMF claim as completely baseless, pre and post Hamdi (which dealt only with Habeas btw, the only right that Mulligan did agree could be temporarily suspended) and pre and post Hamdan.

Where is the merit? I think if you can find merit in the AUMF claim, they need to turn you loose looking for Hoffa.

As far as I know, the government has not conceded that FISA bans the surveillance program

Gonzales did in the December 19, 2005 press conference:

"Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides -- requires a court order before engaging in this kind of surveillance ...."

However, the Youngstown category of this NSA case depends upon whether we interpret the FISA IN COMBINATION with the AUMF as banning the surveillance program. Whether FISA alone bans it is not dispositive.

I agree that that's the issue you've raised. I disagree on the merits, as set forth at length above.

You say that you "see no reason whatsoever why a Congress controlled by his own party would refuse to make such an amendment upon any reasonable showing of necessity." Perhaps you've never heard of the following word: "filibuster."

This is really a stretch. If you are seriously suggesting that the President has no Constitutional obligation to obey a law because he thinks it possible -- possible! -- that Senators might filibuster an amendment which the President has described as a matter of military necessity, then I'll simply say I think that's absurd. Nor do I think it at all likely that anyone, much less 41 Senators, would filibuster in such circumstances.

I'm curious how far you would go, Mark. Suppose that FISA said the President may not engage in any retreats during a declared war. Would you say that Congress has such authority to intrude on executive power?

I don't think much is gained by speculation on issues like this. It's like Rick said when asked if he could imagine the Germans in London: "When you get there, ask me."

Regarding the AUMF, suppose that it not only explicitly protected the WPR from being superceded, but also explicitly protected the UCMJ too. How many statutes would the AUMF have to explicitly protect before you'd conclude that there's some significance in the fact that it didn't explicitly protect FISA?

The simple answer of the courts is this: when the intent of Congress appears clear.

I'll let you and Mary discuss the intercept issue.

Mark, you've taken Gonzales out of context, (as usual)

No I didn't, and I don't know what you mean by "as usual". The specific comment I made was that the domestic spying program violated FISA per se. Gonzales admitted that it does. He went on to say that FISA+AUMF permits the spying, but that's the same ground we previously covered.

I think we've previously covered the rest of your last post.

any competent lawmaker knows that it's ridiculous to pass a law merely to say that the courts and the president had better darned well obey some previous law that they should be obeying anyway.

Congress put the same clause into the resolution authorizing troops in Lebanon, the AUMF for the first Iraq War, and the AUMF for the second Iraq War. To my knowledge, nobody has ever suggested that any of these clauses overruled FISA.

I think we've reached the stage of disagreement. I'm just going to summarize my points regarding the AUMF.

On September 10, 2001, the government had authority to conduct electronic surveillance of Al Qaeda overseas without any restriction whatsoever. It could conduct that surveillance in the US subject to FISA. The argument now being made is that the AUMF implicitly overruled FISA to permit the domestic spying program. I reject this argument for several reasons.

The AUMF authorizes force against those who committed, aided, etc. the attacks of September 11. The Administration attributes those attacks to Al Qaeda, and we all accept that attribution. However, the domestic spying program goes beyond Al Qaeda itself to include "affiliates" and those "linked" to Al Qaeda or "related" terrorist organizations. Unless those "affiliates", etc. were somehow involved in 9/11, as opposed to, say, affiliating with Al Qaeda after the fact, the AUMF on its own terms could not authorize any action against them. Because the government refuses to seek warrants, we have no way to determine if this essential predicate has been met.

The Supreme Court has held that statutes will not be treated as implicitly overruled unless the later statute is "irreconcilable" and evidence of the intent of Congress to overrule is "overwhelming". The AUMF does not meet this test. Among other problems, FISA itself already includes a provision for what to do in time of war. That's powerful evidence that Congress already provided for this circumstance and didn't need the AUMF to do so.

Andrew's argument is that we should infer such intent in Congress because of the clause in the AUMF stating that the War Powers Resolution has not been "superseded" by the AUMF. He gives two separate reasons for making such an inference.

One is based on the rule of statutory construction that courts must give effect to all parts of a statute; they may not treat portions as superfluous.

There is no reason to believe that the clause is superfluous. Congress has included the same clause in EVERY authorization it has given for the use of military force since FISA was passed in 1978. No one has ever before suggested that any of these prior authorizations overruled FISA.

This behavior by Congress is consistent with its actual reason for including the WPR clause: to make absolutely certain that it preserves its claim to the power asserted in the WPR (a power which all Presidents have contested since the WPR was enacted). Because the clause has this purpose, it can't be considered superfluous.

Andrew also seems to be using some form of the rule of construction known as "inclusio unius".* I infer this from his repeated question why the WPR was mentioned but not FISA (or, for that matter, any other statute).

The basic conditions for this rule don't exist -- Congress was not making any list. The clause has a different purpose, as I showed above. More importantly, the argument proves far too much. By Andrew's logic, Congress excluded EVERY other statute; the President could claim the right to violate the Endangered Species Act or federal contracting rules if he said that was necessary. The Supreme Court in Hamdan already rejected the claim that the AUMF overruled other statutes.

Finally, Andrew's arguments ignore the evidence that both Congress and the Administration acted inconsistent with his interpretation of the AUMF. That evidence includes the rejection of proposed amendments to the AUMF to include domestic actions. It also includes the amendments to FISA contained in the Patriot Act and Gonzales's admission that the Administration didn't ask for changes to FISA to permit the surveillance because they were told "that was not something we could get".

For the non-lawyers, that is part of a Latin phrase "inclusio unius est exclusio alterius": the inclusion of one is the exclusion of others. Courts apply this rule usually in cases where Congress makes a list. If a statute says that it covers A, B, and C, but says nothing about D and E, even though they would ordinarily be included in the group, then courts will assume that Congress deliberately omitted D and E.

There should have been an asterisk before the last paragraph in my last post to indicate a footnote.

It's easy to judge people who are legal judges. They have to make choices and sometimes it's not the best decision. It's there call though. Can you imagine how stressful it most be when your a judge and you have self doubt about sentencing someone. How does a judge truly know if the sentence he gave fits the crime? What if the judge feel strongly that the person is innocent but the proof says otherwise. We need to have more compassion for judges.

-Zane of ontario honey

It's easy to judge people who are legal judges. They have to make choices and sometimes it's not the best decision. It's there call though. Can you imagine how stressful it most be when your a judge and you have self doubt about sentencing someone. How does a judge truly know if the sentence he gave fits the crime? What if the judge feel strongly that the person is innocent but the proof says otherwise. We need to have more compassion for judges.

-Zane of ontario honey

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