Saturday, December 08, 2007

Misdirected Outrage

Marty Lederman

The blogging mentality, I suppose -- Jack and I were writing similar posts at the same time.

Senator Sheldon Whitehouse of Rhode Island has been one of the very best, most careful and most thoughtful legislators in recent months on a wide range of legal issues relating to the Gonzales DOJ, the war on terror, NSA surveillance, and the like.

Therefore it's with some regret that I write here to take issue with his latest speech on the Senate floor, expressing his outrage in response to reading classified OLC memos on the NSA surveillance questions. I am confident that there is much in those memos that gave Senator Whitehouse plenty of reason to be shocked and dismayed, and I hope that he will continue to make more of them public. In this case, however, I think Senator Whitehouse has primarily aimed his criticisms at the wrong targets, sorry to say.

Whitehouse is a member of the Senate Intelligence Committee, and thus he was recently (but years too late) given access to the OLC opinions written over the course of the several years of the secret NSA surveillance program in violation of FISA. Those opinions should, of course, be declassified and made public to the extent possible (redacting any information about NSA technological capabilities); and Congress should take some serious steps to prevent the Executive from overclassifying; but be that as it may, it's a small advance that at least some legislators have now seen the OLC documents. Unfortunately, the Senators are not permitted to keep copies, or, apparently, to show them to aides, let alone outsiders, with working knowledge of the legal issues; nor are the Senators permitted to say anything about the documents, even if they think the documents are outrageous and authorize unlawful conduct . . . unless and until the Administration chooses to selectively declassify portions of them.

The Administration has now permitted Whitehouse to talk about three aspects of the OLC Opinions, and that's what he did yesterday. He expressed incredulity about all three. But there's a reason the Administration gave him the green light on those three matters -- because the OLC statements in question are boilerplate, and fairly uncontroversial (with one possible, important exception, noted below). There are undoubtedly very audacious and disturbing aspects of many of those OLC memos -- such as the arguments that the AUMF superseded FISA and that the President has a constitutional right to violate FISA; and almost certainly descriptions of how much broader and more indiscriminate the NSA program was before Jack Goldsmith reined it in a bit in early 2004 -- but the three statements Whitehouse identified, standing alone, are not terribly noteworthy, at least not from a constitutional perspective.

Let's look at each of them briefly, as quoted by Whitehouse (from his notes), switching the order a bit:

1. "The President, exercising his constitutional authority under Article II, can determine whether an action is a lawful exercise of the President’s authority under Article II."

This is simply a correct statement. Indeed, the President has a constitutional obligation to take care that the laws, including the Constitution, are faithfully executed. That obligation includes the responsibility to assess and to protect the President's own prerogatives. This is how we put the point in the Clinton Administration, in a landmark Opinion issued by Walter Dellinger:
Executive branch lawyers . . . have a constitutional obligation, one grounded not in parochial institutional interests but in our fundamental duty to safeguard the liberty of the people, to assert and maintain the legitimate powers and privileges of the President against inadvertent or intentional congressional intrusion. As Attorney General William Mitchell put it long ago:
Since the organization of the Government, Presidents have felt bound to insist upon the maintenance of the Executive functions unimpa[i]red by legislative encroachment, just as the legislative branch has felt bound to resist interferences with its power by the Executive. To acquiesce in legislation having a tendency to encroach upon the executive authority results in establishing dangerous precedents
. . . . Our analyses are guided and, where there is a decision of the Court on point, governed by the Supreme Court's decisions on separation of powers. At the same time, the executive branch has an independent constitutional obligation to interpret and apply the Constitution. That obligation is of particular importance in the area of separation of powers, where the issues often do not give rise to cases or controversies that can be resolved by the courts.
The problems in the Bush Administration are not that the President is interpreting the Constitution himself, or that he asserts the power to resist statutes that in his view unconstitutionally impinge on his constitutional prerogatives, but instead that the substantive views of the Administration on the nature and scope of those executive prerogatives are simply wrong, and that he his adopting and acting upon such views in secret.

Now, Senator Whitehouse goes a step further: he suggests that the OLC statement violates the principle of judicial interpretive supremacy: "Does this administration agree that it is emphatically the province and the duty of the judicial department to say what the President’s authority is under Article II? No, it is the President, according to this OLC, who decides the legal limits of his own Article II power."

If the Bush OLC opinions actually say that -- that the President will act according to his own constitutional views even when the courts disagree -- then yes, that would be a big deal. Again, from the 1996 Dellinger Opinion:

We believe that the constitutional structure obligates the executive branch to adhere to settled judicial doctrine that limits executive and legislative power. While the Supreme Court's decisions interpreting the Constitution cannot simply be equated with the Constitution, we are mindful of the special role of the courts in the interpretation of the law of the Constitution. "It is emphatically the province and duty of the judicial department to say what the law is." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). . . . Our analyses are guided and, where there is a decision of the Court on point, governed by the Supreme Court's decisions on separation of powers."
But Senator Whitehouse has not (yet) quoted anything from the OLC opinions suggesting that President Bush would allow his own views to trump those of the Court, or that he would, for only the second time in our nation's history, actually disobey a judgment of the courts if he disagreed with its constitutional rationale. (As far as we know, notwithstanding the broad views of executive power in this Administration, they have not asserted any power to disregard judicial orders.) Perhaps such an argument does appear in those OLC opinions (e.g., an argument that the NSA could disobey a FISA court order), and if so, Senator Whitehouse should reveal that, because it would be quite important. But so far, we haven't seen anything to that effect.

2. "The Department of Justice is bound by the President’s legal determinations."

Here's what Whitehouse says about this claim:
Let that sink in a minute. We are a nation of laws, not of men. This nation was founded in rejection of the royalist principles that 'l’etat c’est moi' and 'The King can do no wrong.' Our Attorney General swears an oath to defend the Constitution and the laws of the United States; we are not some banana republic in which the officials all have to kowtow to the 'supreme leader.'
Well, yes. If the President tells the Attorney General to do something that the AG thinks is unconstitutional, there are cases where the AG should refuse to do it, and resign. Similarly, if the President rejects DOJ's strongly held view that something is unlawful, and goes ahead and does it anyway based on his own contrary view of the law, it can be quite appropriate for DOJ officials to threaten to resign. And that's exactly what happened with Ashcroft, Comey, Goldsmith, et al., when the President was prepared to adopt Addington's views rather than theirs, and to break the law contrary to their judgment. (Whether refusal to follow the President's determination, and resignation, are an appropriate response in a particular case must depend largely on the nature of the question and the plausibility of the President's legal views.)

But the OLC quotation Whitehouse cites doesn't say otherwise. Ultimately, the President is the one who makes legal determinations for the Executive branch, and the DOJ must, indeed, abide by his views -- assuming, that is, that there are any attorneys left who have not resigned! DOJ is an agent of the President. (No, I don't mean that DOJ's obligation is to do what's best for the President; only that they are acting on his behalf, and subject to his control.) The Constitution gives the President the authority to obtain the opinions of the Attorney General. In the ordinary course, the President should abide by those opinions -- after all, one hopes he appointed the AG because he or she is someone whose legal judgments the President trusts -- and, in fact, that's what happens in 99 cases out of 100. But he need not accept those AG opinions, and sometimes he takes a view different from DOJ. Indeed, with respect to one of the first great constitutional dilemmas in the new nation, President Washington rejected AG Randolph's opinion about the constitutionality of the first national bank -- and ultimately, in M'Culloch v. Maryland, the Court affirmed Washington's view (which was Hamilton's, too), and rejected Randolph's (which was also Madison's and Jefferson's). Ultimately, the constitutional judgment is the President's to make for the Executive branch.

3. "An executive order cannot limit a President. There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it."

This is actually the most interesting and disturbing of the three quotes, but it's not because of any constitutional problem. OLC is correct here that the President has the power to decline to follow a presidential E.O. (assuming there is no statute requiring that he adhere).

Nevertheless, there does appear to be an outrage here. Apparently -- and this is real news of the Whitehouse statement -- the President decided to secretly ignore Executive Order 12333, which, among other things, has long been the only real source (other than Fourth Amendment) of legal protection of the privacy rights of U.S. persons overseas vis-a-vis surveillance by the federal government. This is a gap in FISA that the 1978 Congress said it would get around to closing -- but it never did. And so the only thing standing between U.S. persons overseas and their own government snooping on them has been E.O. 12333.

If the President publicly rescinded 12333, there would be a huge outcry. It would prompt Congress to act immediately.

Which is presumably why he didn't do so in public. Whitehouse suggests that the President secretly transgressed 12333. If so -- if in fact the President chose to ignore 12333 without notifying the public or Congress, it's quite outrageous -- constitutional bad faith, really, to announce to the world that you are acting one way (in large part to deter the legislature from acting), while in fact doing exactly the opposite. It might even mean that the Administration allowed executive branch officials to mislead Congress by assuring them in testimony that 12333 remained a serious limitation on government surveillance. (Now that's something worth investigating.)

So Senator Whitehouse is basically correct when he characterizes the President as saying "I don’t have to follow my own rules, and I don’t have to tell you when I’m breaking them."

This might not be unconstitutional -- it might not even be illegal -- but it is a serious breach of faith, and a severe threat to the operation of checks and balances, if, indeed, the President has been secrecy authorizing violations of E.O. 12333.

Therefore Senator Whitehouse is absolutely right, not about the constitutional issue, but about one other, very important matter:
Unless Congress acts, here is what legally prevents this President from wiretapping Americans traveling abroad at will: Nothing. Nothing. We simply cannot put the authority to wiretap Americans, whenever they step outside America’s boundaries, under the exclusive control and supervision of the executive branch. We do not allow it when Americans are here at home; we should not allow it when they travel abroad. The principles of congressional legislation and oversight, and of judicial approval and review, are simple and longstanding. Americans deserve this protection wherever on God’s green earth they may travel.



You (and Jack) have thoroughly deflated at least me. *g*

Here, where I thought Senator Whitehouse had provided the nation, the penultimate "gotcha" on this Administration, you inform us that "nope, this is merely constitional business as usual".

But I would venture one small point in our defense (at least Senator Whitehouse and I). Namely that what the he and I saw as threatening may be more as a result of this Administration's real assault on not only our civil liberties, but the rule of law.

You have a broken link for the Dellinger quote.

"The Administration has now permitted Whitehouse to talk about three aspects of the OLC Opinions"

I'm curious about this, since it was raised when Sen. Durbin spoke about certain things he said he couldn't fully discuss for comparable reasons. What about the Speech and Debate Clause?

Cf. Gravel's reading of parts of the Pentagon Papers into the Congressional Record. Congress might choose for some reasons to keep things secret, but could the EXECUTIVE tell them to do so?

Good grief!

Exactly what is the problem with any of these self evident propositions?

While the Courts have the final say, the elected branches also have the necessary authority to interpret the laws to do their jobs. I do not see Whitehouse complaining that Congress does not have the power to interpret its Article I powers.

As the sole executive, the President makes the final legal interpretations for the executive branch. DOJ works for the President and can either follow the President's orders or resign as Marty suggested.

Finally, the executive orders of prior Presidents have only the effect which the current President decides to give them. There is no executive stare decisis.

Marty does suggest an interesting question of whether the elected branches should defer to an obviously unconstitutional Court decision. Judges are just as human and often just as political as the elected branches. If the courts act unlawfully and create an constitutional crisis, should the Executive ignore the ruling and the Congress impeach the outlaw judges as should impeach an outlaw President? If not, why not?

If the President publicly rescinded 12333, there would be a huge outcry. It would prompt Congress to act immediately. Which is presumably why he didn't do so in public. Whitehouse suggests that the President secretly transgressed 12333. If so -- if in fact the President chose to ignore 12333 without notifying the public or Congress, it's quite outrageous -- constitutional bad faith, really, to announce to the world that you are acting one way (in large part to deter the legislature from acting), while in fact doing exactly the opposite.

I do not see how this is a problem. Whitehouse is on the Intelligence Committee. All he has to do is ask what the NSA is up to if the President has not already had the committee briefed on the NSA's programs and minimization procedures.

The fact that Whitehouse implies rather than states that the President is violating EO 12333 means that Whitehouse is the one acting in partisan bad faith. Either he knows that this implication is not true or he has not bothered to ask.

Having lived in Paris as an American for 17 years and knowing the significant number of intelligence assets in the overseas American community (persons use to call Sunday at my church a gathering of the CIA types), I am pretty confident that Americans abroad have been spied on by the Americans notwithstanding any Executive Order.

The direct way is in the contacts with people under cover who talk with you about what you are doing and are clearly gathering intelligence about the country in which you are working. This happened to me at a lunch with an American Ambassador once in an African country. Clearly he was pumping me for information.

The indirect way would be the spying by the national intelligence service of the country you are in who would be absolutely pleased to pass along information about you to the American authorities as part of the information sharing among intelligence colleagues. I am not aware of any US law that bars the US from receiving that information. I asked this question at a conference at Duke in 2005 and was "assured" that there are "protocols" on these things. I suspect those are "protocols" that can be amended at a moment's notice within any language that is in the cited Executive Order or otherwise.

It is a tradition of thinking of Americans abroad as second class citizens that goes back to the 30's. The underlying vision is that any American living abroad can not be a true American - otherwise they would have stayed in the United States. This affected nationality laws etc so that it was harder to pass on US nationality to children in 1980 than it was in 1830.



There is nothing remotely nefarious about simply asking other Americans what is going on in a country. This is the most basic type of information gathering. Police and the press do this all the time to find out what is happening in their neighborhoods.

Nor does asking a fellow American what is going on in a foreign country somehow imply that he or she is a second class citizen. It is perfectly natural to speak with someone familiar before asking a citizen of a foreign country.

About rescinding the E.O., US v. Nixon stated that the President needs to follow his own rules even though he has the discretion to waive them. The decision was based entirely on the idea of public scrutiny. The President had appointed a special prosecutor, and the court said that if the President didn't want the special prosecutor to subpoena his tapes, the President would need to openly fire the prosecutor or change the prosecutor's role because the President had previously authorized the special prosecutor to have these powers. Thus, if the President doesn't want to follow his E.O., he needs to openly change the E.O., but until such time as the president makes that change, the E.O. has the force of law. I believe several people have criticized US v. Nixon on this basis, but I am not aware of this holding being overturned.

Marty your comments seem to be one of the below:
a. a catch 22 syndrome
b. an oxymoron
c. a Constitutional conundrum

I think c. because throughout the Constitution the stress upon The Rule of Law as a strict check upon "personal or monarchical powers" and that every man is equal under The Law.

Explain to me in plain English how a fascist VP and his stooge can use the Constitution to defend their unconstitutional and probably illegal actions against both The Rule of Law and the US Constitution.

Marty --

The OLC statement is subject to (at least) two interpretations. It says:

"1. "The President, exercising his constitutional authority under Article II, can determine whether an action is a lawful exercise of the President’s authority under Article II."

1. The benign, no-contest interpretation is something like: Well a lot of actions are possible. That being the case, there will be times when the lawfullness of a contemplated action isn't immediately clear, and since the Pres is head of the exec branch, there's no one but him or his minions in the branch to make that determination. Other branches may disagree, in which case they'll have to settle the issue by fighting, as provided in the constitution.

OR (the Leninist interpretation I think Whitehouse was talking about)

2. Under article II, the president can determine what his own powers are. If another branch disagrees, well tough noogie. We're under Article II! He has the power to add to his powers. If his determinations nullify any part of the Constitution, no problem. It's constitutional!

The notion of using the Constitution to cancel itself like this seems absurd. On the other hand, what would you expect from a Leninist like Bush?

Marty, I agree with Richard -- it depends on what is meant by "determine" -- (1) "come to an interim judgment about" or (2) "come to a binding, final, unreviewable judgment about." Determine can mean something like that in math and statistics, at least -- roughly, "leave no alternative to" -- and perhaps in law as well, esp. when slippery lawyers at OLC are involved.

Given the last six years, I assumed Whitehouse meant he'd read the OLC documents to indicate the latter variety of "determine." (Whitehouse's 3rd point, the one you see some potential merit to, points in a similar direction: "determining" stuff by just not telling anyone what they're up to.)

That might seem a stretch by the standards of the OLC you worked for; it doesn't seem as much of a stretch for the current OLC.

You guys just don't get it. Confronted with the choice between:
a. Sheldon Whitehouse is upset over nothing
b. the Bush administration believes it is above the law

You chose a.

After seven years, you still can't admit to yourself that our country is run by would-be tyrants.

Seven years? "Would be tyrants?"

Let's see . . . beginning early next year and running through mid-summer, the Republican's will pick their standard bearer (and the Democrats too, but that's beside the point).

Later, in November, there will be an election and between January 19 and 20, 2009, President Bush will move out of the White House and VP Cheney will move out of the VP's residence.

Kind of a quiet end of a tyranny, as tyrannies go, I would say. Do you doubt this scenario?

So, you've made it for seven years. If you can hold out for just another 13 months and 9 days your "would be tyrants" will be gone and you will have another pair to worry about. That's how our system works. Great, isn't it?

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