jackbalkin at yahoo.com
bruce.ackerman at yale.edu
ian.ayres at yale.edu
corey_brettschneider at brown.edu
mary.l.dudziak at emory.edu
joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
mgraber at law.umaryland.edu
sgriffin at tulane.edu
jonathan.hafetz at shu.edu
jkessler at law.columbia.edu
akoppelman at law.northwestern.edu
msl46 at law.georgetown.edu
slevinson at law.utexas.edu
david.luban at gmail.com
gmaglioc at iupui.edu
mazzonej at illinois.edu
lmcclain at bu.edu
mikhail at law.georgetown.edu
pasquale.frank at gmail.com
npersily at gmail.com
Michael Stokes Paulsen
michaelstokespaulsen at gmail.com
dpearlst at yu.edu
rick.pildes at nyu.edu
dpozen at law.columbia.edu
raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
alice.ristroph at shu.edu
siegel at law.duke.edu
david.super at law.georgetown.edu
btamanaha at wulaw.wustl.edu
nelson.tebbe at brooklaw.edu
mtushnet at law.harvard.edu
winkler at ucla.edu
Compendium of posts on Hobby Lobby and related cases
The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC
The Anti-Torture Memos (arranged by topic)
So What Does John McCain Think of the President's Constitutional Authority to Violate FISA?
Friday, June 06, 2008
So What Does John McCain Think of the President's Constitutional Authority to Violate FISA?
Not even the Shadow knows.
FISA has never required a warrant to intercept communications between two people overseas, or to intercept communication to a targeted person overseas if the communication is intercepted overseas. When the NYT disclosed the existence of the TSP, it suggested but did not prove that communications were intercepted inside the US, which most people reading the language of FISA would have believed required a warrant.
However, the Protect America Act changed that. It retroactively "clarified" the question of what is and isn't electronic surveillance covered by FISA. "Sec. 105A. Nothing in the definition of electronic surveillance under section 101(f) shall be construed to encompass surveillance directed at a person reasonably believed to be located outside of the United States."
With this change, even if the NYT was originally correct that communications were intercepted inside the US, this could no longer be regarded as covered by FISA or requiring a warrant as long as the target of the intercept was overseas.
The administration has never admitted that the TSP violated FISA as it was originally written. Certainly, there is no reason to believe that it violated FISA under the clarifed/changed definition.
Obviously it is better for a president to do what McCain suggests and follow the law as it exists than to, as may have been the case here, change the law to retroactively legalize something you have already done.
McCain is an Ex Officio member of the Senate Select Committee on Intelligence, so he may actually be one of the people who knows what really happened. However, under the rules he would not be allowed to disclose the facts. Since we do not know these details, it is not surprising that statements released on the matter are not clear. It would be illegal for him to be clear, and as he says in the statement quoted, he will not do something illegal.
Marty wrote: "How are we to understand Senator McCain's actual views?"
Well that presupposes that he has views! That's not at all obvious given his repeated to-ing and fro-ing on all manner of issues including repudiating his own previous bills!
Rather wouldn't it be more in line with what we know of the man that his favorite color is plaid and his favorite flower is "Meadow Mix"?
I think at this point in his storied career, he is a gentle, amiable, compassionate, scattered, repository of a well-intentioned ambition to lead.
Views and policies have very little to do with Senator McCain, and he with them.
McCain is in the same position many Democratic candidates for President have been in (John Kerry in particular comes to mind), trying to avoid either offending the base or alienating swing voters. Like Democrats (Kerry) before him, this involves twisting himself into knots that would send the highest-level yoga adept to a chiropractor.
If I understand the mish mash put out by the McCain campaign, McCain simultaneously believes that the TSP was legal and that a President cannot violate a congressional statute.
There is a blind hog finding an acorn quality to this position.
McCain is legally correct if I am correct in divining his positions. Article II does not grant the President power to ignore a valid Article I statute. However, to the extent that FISA seeks to direct foreign intelligence gathering, it is not a valid Article I statute because Article I grants no such power. Therefore, the President by implementing the TSP would not be violating a valid Article I statute.
However, I doubt that the constitutional scholars (sic) over at the McCain campaign thought that deeply about the subject. More likely, Mr. McCain is showing the symptoms of transitioning from the parochial interests of the Senate to thinking about the powers he will need to exercise as President.
If anything, I think you've been too easy on McCain. Consider the passage which reads "making it less likely that any President would need to rely solely on constitutional authority to protect this country". That's in the paragraph you labeled "so far, so good", but I read it as a dog-whistle to the right, a claim that the President has uncheckable Art. II authority. All McCain seems to say is that he'd like Congress to write a law confirming that Art. II claim.
This, of course, completely contradicts the statement to The Boston Globe last December.
The first comment reads like a statement by a true believer.
"even if the NYT was originally correct" "no reason to believe" The idea that the fact McCain can't say certain things,* it is "not surprising" that he is all over the place on much more than that material in particular. etc.
The final point is particular relevant. The surely open to debate comments supplied by HG on certain narrow issues simply does not address the broader point of this piece. It is a good part spin.
It isn't quite as fun spin for some as Bart's usual style, perhaps, but spin it is all the same. In fact, including the actually amusing acorn metaphor, fairly reasonable Bart popped up once again today. The cynic might say his disdain for McCain factors in, but hey, any port in a storm.
* The Speech and Debate Clause means in fact he can say a lot more, as might a true patriotic 'maverick' given what is at stake ... like he is going to be prosecuted anyway ... just like some who selectively leaked classified info when it helped the Republicans? But, we covered this ground months ago, haven't we?
In fact, including the actually amusing acorn metaphor, fairly reasonable Bart popped up once again today.
Not really. "Bart" just used to opportunity to repeat his previous assertions more ad nauseam, and then said that of course McCain's "constitutional scholars" are agreeing with "Bart".
BTW, I guess we now have fair license to add the "(sic)" tag to "Bart" whenever the mood suits us.
After all, when talking to Constitutional law professors, "Bart"'s a "constitutional scholar" of the first order When talking to British barristers like Mourad, "Bart" knows him some British law. When talking to practising civil rights attorneys like Dilan and Candace Gorham, "Bart" knows his civil and human rights law. And when discussing 1L CivPro, "Bart" knows more than this here one-time 1L.... Truly amasing. A legal polyglot We ought to be thankful to have his all-encompassing expertise here.
True enough Arne, more or less, but the kernel of "Bart" is surrounded by more sanity than usual.
With apologies about making this about Bart (hey I wanted to make it about Howard!), let me go on a bit since he is such a fav of the comments. He loves that btw. Negative attention is still attention.
We basically have two sentences of Bart, a truism leading up to it that he spins (usual m.o.), and then a bunch of McCain criticism. I'll take that, honestly.
As to McCain struggling to get a sense of what running for "President" means, more or less, that's probably right. Not that I agree with what Bart or McCain thinks that should mean.
As to McCain's constitutional people, if Bart "then said that of course McCain's 'constitutional scholars' are agreeing with 'Bart'" he showed a bit of self-knowledge in your view. He doesn't think too much about them ... putting the word in quotes and suggesting they are muddled.
Anyway, cheers as well.
John McCain's geriatric soft shoe to:
"ME AND MY SHADOW"
demonstrates his over 90% approval of he latter's administration's failed policies.
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Books by Balkinization Bloggers
Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023)
Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022)
Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022)
Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022)
Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021).
Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021).
Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020)
Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020)
Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020)
Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020).
Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020)
Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020)
Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020)
Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019)
Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018)
Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018)
Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018)
Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017)
Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017)
Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016)
Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015)
Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015)
Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015)
Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014)
Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution
Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014)
Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013)
John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013)
Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013)
Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013)
Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013)
James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013)
Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues
Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013)
Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012)
Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012)
Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012)
Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012)
Jack M. Balkin, Living Originalism (Harvard University Press, 2011)
Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011)
Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011)
Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011)
Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011)
Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010)
Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010)
Balkinization Symposium on The Decline and Fall of the American Republic
Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010)
Mark Tushnet, Why the Constitution Matters (Yale University Press 2010)
Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010)
Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009)
Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009)
Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009)
Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009)
Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009)
Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008)
David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007)
Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007)
Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007)
Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006)
Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006)
Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006)
Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006)
Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006)
Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005)
Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004)
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