Radio Show on NSA Surveillance:
I plan to blog more later today about the legal questions surrounding the NSA's surveillance program, but in the meantime I'm going to be on Air Talk with Larry Mantle in about 15 minutes discussing the issues with Duke law school's Erwin Chemerinsky. You can listen live from a link at the show's site, and listen later on to the archives, as well. (The show will run from 1:30 to 2pm East Coast time.)
Andrew Hyman (mail) (www):
University of Chicago Law Professor Cass Sunstein says: "I think the authorization of use of military force is probably adequate as an authorization for surveillance."
12.20.2005 2:04pm
Bruce Wilder (www):
I listened to most of the radio program, and combined with Prof. Kerr's excellent post, feel I have learned a great deal.

On brief reflection, I am struck by the extent to which it is the President's arrogance, which is the issue: the assertion of a principle, which -- if accepted -- would fatally undermine the rule of law.

On the "substance" of the issue, we simply do not know what the NSA is doing, so it is hard to know whether it violates FISA in some terrible, shocking way, or not. It could well be that what the NSA is doing depends upon a technological innovation, which would require a new legal regime -- technological innovation leading to new legal regimes is commonplace; that the wiretaps are subject to the 4th Amendment requirement for warrants at all is such a legal adaptation -- but, since neither the judiciary nor the Congress has been informed, such legal adaptation is impossible. And, Bush may be right in claiming that exposing the nature of the technological innovation in the light of substantive judicial or legislative review would bring the whole enterprise to a halt, making judicial or legislative review, moot. With so little information on the technical underpinnings, it is difficult to judge.

The entire controversy seems to come down to Bush's credibility, or lack thereof. It is the combination of a record of deceit and deception of the public and Congress, with his Administration's pseudo-legal claim of expansive Article II authority to do anything and everything, that makes the whole matter a significant controversy.

Is there any way to "save" a possibly useful and efficacious program of surveillance, while rejecting Bush's claim of unlimited Article II authority? Is it possible, legally or politically, to leave the NSA alone to do its job, without accepting Bush's claim to be a dictator?
12.20.2005 2:32pm
Sure there is. As only a part-time legislator myself (legislate common sense from time to time), I won't make a proposal on this one. But Bush's credibility expansive view of powers, and willingness to make decisions which remain concealed from public discourse is not appropriately part and parcel of the debate over reasonable interpretations of the law (or what the law should be, for that matter).
12.20.2005 3:11pm
Andrew Hyman (mail) (www):
Byron York had an outstanding article December 19 and another
December 20, reporting critical aspects of the FISA controversy that you probably haven't heard about.
12.20.2005 3:58pm
Nunzio (mail):
I think Bruce has touched on a key political issue: regardless of the legality of this surveillance, can someone trust the executive branch (any executive branch) to perform this type of surveillance.

As I understand FISA, as long as a judge signs off and a few Congressman are kept in the loop, it's okay. But can we trust these judges and Congressman? Our system was set up to have checks and balances between the branches, but in situations as these FISA warrants, there's (generally) no public knowledge one way or the other.

The public does not have a constitutional right to know; our interests are presumably protected by the checks and balances of the system we've set up. Bush has circumvented (perhaps legally, or at least not unconstitutionally) these checks and balances, but I wonder if they really work anyway. In other words, when the public's kept in the dark, do people really trust the system we've set up? We have no way of knowing how well it works.
12.20.2005 4:24pm

Actually, we have already discussed all of those aspects of the issue in various places in the commentary.

As an aside, personally, I think the fact that another President had an expansive view of his own powers is neither surprising nor particularly convincing (it would be more surprising to find a President who has not had such a view--but I digress).

As for why the President might have ordered this, it strikes me as very odd that the rationale would be something like that the existing system was too "cumbersome". As we discussed elsewhere, it makes little sense for the President to order the NSA to stop getting warrants at all if the issue is simply that getting the warrant within 72 hours was proving too burdensome. It also makes little sense for the President to not take his case for a less cumbersome process to Congress.

What does make sense, however, is that the President wanted to avoid judicial review entirely, on any time frame. That would explain ordering surveillance without any attempt to get a warrant, and that would explain why he would think he could not take his case to Congress.
12.20.2005 4:33pm

For just those reasons, FISA is hardly a beacon of civil liberties. I agree that while a separation of powers may help prevent abuses of power, such devices may be inadequate without public review as well. But I do understand the problem: too much public information could make it too easy for agents of hostile foreign powers.

In any event, FISA is an attempt to balance these concerns, and it actually gives the public no role, and the Congress a very limited role, in reviewing these activities. So, insofar as the President thinks FISA still goes too far, we are really getting to an "extreme" case, in the sense that he apparently wants to avoid any interference from any branch of government which is outside of his direct authority.
12.20.2005 4:40pm
Andrew Hyman (mail) (www):
Medis, I think that the Byron York pieces (mentioned above) do discuss some aspects of this situation that were not already covered in the Volokh Conspiracy comments. York quotes FBI agent Rowley to the effect that FISA prevented her from stopping what happened on 9/11. He quotes the 9/11 Commission's criticism of the FISA process. Et cetera.

Going before FISA may indeed be quicker and easier than going to other courts, but that doesn't mean it's not a bureaucratic pain in the neck. Arguments must be marshalled, forms must be filled out, and if a warrant is sought then the "probable cause" standard must be met, and all of this must occur for each and every surveillance.

You mentioned the 72-hour arrangement. I could be mistaken, but that aspect of FISA seems to be a way of getting a warrant to continue a surveillance that is STILL going on after 72 hours. Think about it. If the only surveillance is listening to a five-minute phone call, then what is achieved by getting a warrant three days later? If the warrant is obtained, it's never used. If the warrant is denied, then what? Nothing.

If Bush had gone to Congress for more explicit authorization, then the risk of a leak would have grown a hundred-fold. Bush may well have reasonably believed that surveillance is always incidental to the use of military force, and therefore the AUMF provided a valid exception to FISA. Cass Sunstein buys that argument, and I don't think it's an unpersuasive argument by any means.

Many lives may have been saved by this program. It only involved international calls where one party was connected with Al Qaeda. Maybe there's a better way of conducting a program like this, but to ascribe it to hubris — rather than to a genuine desire to protect the country from disaster — seems premature.
12.20.2005 5:17pm
Anderson (mail) (www):
Maybe there's a better way of conducting a program like this, but to ascribe it to hubris — rather than to a genuine desire to protect the country from disaster — seems premature.

It's not hubris to have the program in the 1st place; it's hubris to think that the President didn't need to seek approval for it from Congress.
12.20.2005 6:15pm
It makes no sense for a President to go to Congress hat in hand to ask for powers that have already been conferred by the Constitution. And as has already been stated and needs to be repeated the FISA Court of Review stated in 2002:

The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.26 It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power.

And not only is this the view of the FISA Court of Review, and the Bush Administration, But in US vs US District Court, SCOTUS explicitly said Aticle II encompasses Executive Authority for electronic surveilence:

We begin the inquiry by noting that the President of the United States has the fundamental duty, under Art. II, 1, of the Constitution, to "preserve, protect and defend the Constitution of the United States." Implicit in that duty is the power to protect our Government against those who would subvert or overthrow it by unlawful means. In the discharge of this duty, the President - through the Attorney General - may find it necessary to employ electronic surveillance to obtain intelligence information on the plans of those who plot unlawful acts against the Government.

SCOTUS did go on to narrow that authority to require a warrant but only in cases where the subjects of the monitoring had no foreign connection. And that is clearly not the case in this instance.
12.20.2005 6:20pm
Andrew Hyman (mail) (www):
Following up briefly on the 72-hour retroactive warrant concept, here's the 72-hour provision of FISA.

To my mind, this 72-hour provision is inapplicable if the executive branch completes the surveillance within the 72 hours, doesn't use information from the surveillance in any proceeding before any court or other authority, and doesn't use the information except with the approval of the Attorney General to prevent harm. If the executive branch does all those things, it's pointless to get the warrant. Of course, even if this FISA procedure were applicable under such circumstances, there's still a very strong case that the AUMF gave the President additional surveillance authority incidental to the use of force. And that doesn't even begin to consider the President's "inherent" constitutional powers.
12.20.2005 6:38pm
B. B.:
"SCOTUS did go on to narrow that authority to require a warrant but only in cases where the subjects of the monitoring had no foreign connection. And that is clearly not the case in this instance."

Uh, do we really know that yet? Somehow I don't feel comfortable just trusting the President on that.

In fact, I submit that the possibility that it IS the case that monitoring of people with no foreign connections was occuring via this policy is the reason there's such an uproar over this. Sure, ignoring the law is bad, but the general population isn't going to get overly worked up about skirting FISA. However, domestic spying without a warrant will sure as hell get people worked up.

One friend of mine (card carrying Republican, though more of a libertarian) believes that should it turn out there is actually warrantless domestic spying going on as a result of this policy, Bush will be impeached. I can't really disagree with him, though I sincerely doubt that even if there is warrantless domestic spying occurring, we will never see any evidence of it come out, unless there's a Deep Throat II out there.
12.20.2005 7:09pm

The actual 12/19 York article was already linked, and the Gorelick quote was already posted. I wasn't trying to be snarky--but if you are interested you can look back at the comments on those subjects.

They still have to get a warrant even if the surveillance is over. And that isn't pointless because they are only allowed to do this if the facts would support getting a warrant. And if they start using this procedure when they couldn't get a warrant, their retroactive applications will be denied, and the number of those denials will be reported to Congress. But if they aren't required to get the warrant, then they can ignore the substantive requirement and no one will ever know.

Incidentally, I don't know if the 2001 AUMF argument is strong, but in light of Hamdi it is probably their best bet. But I think 18 USC 2511 may make this a different situation than Hamdi, as I expressed elsewhere, since it provides that FISA is the "exclusive means" for such surveillance.
12.20.2005 7:53pm
There has been no allegation that any of the monitoring in question was strictly domestic, why don't you wait until the allegation is made before you accuse Bush of lying about it. Even if the NSA was monitoring calls between 2 suspected Al Qeada operatives in the US then that is not "strictly domestic" because Al Qeada is a foreign terrorist organization. Remember Congress Declared War on Al Qaeda in 2001.
12.20.2005 8:50pm
Bruce Wilder (www):
"It only involved international calls where one party was connected with Al Qaeda."

That's a fact not in evidence. We really do not know what it involved. We know it started with Al Qaeda phone number lists, but where it went from there (and where it is now) is anybody's guess.
12.20.2005 8:55pm
Andrew Hyman (mail) (www):

You also assert that a post-surveillance warrant wouldn't be pointless, because warrant rejections would be reported to Congress instead of having a "no one will ever know" scenario. I disagree with that rationale, because Bush did in fact make congressional leaders aware of the program.

Regarding 18 USC 2511, you argue that 18 USC 2511(2)(f) makes FISA the "exclusive means" by which electronic surveillance within the definitions of FISA can be conducted. However, these laws predated the AUMF. Notice that the AUMF specifically says that it does not supercede anything in the War Powers Act, but it contains no such disclaimer regarding FISA or 18 USC 2511(2)(f).

P.S. I don't mean to quibble about what was mentioned in the previous thread, but . . . . "Hugh59" mentioned Byron York's December 19 column without providing any link to York's piece, as far as I can tell. Also, Hugh59 didn't mention York's later column of December 20, didn't mention the 9/11 Commission, and I'm unaware that anyone took notice of what Hugh59 said (i.e. no one else mentioned York's columns in the previous thread).
12.20.2005 9:11pm

As an aside, some members of Congress are claiming they weren't given key details about the program in their briefings. Also, do you really think the President is reporting on the number of occasions when he couldn't get a FISA warrant but did the surveillance anyway?

But none of that really matters: the President's own self-directed reporting plan is no more a substitute for the reports required by FISA than the President's own judgment is a substitute for a FISA warrant. The whole idea of FISA is to require judicial review and a specific kind of report to Congress, and the President cannot substitute executive review for that judicial review and his own reports for the required reports and claim he is following FISA.

On the 2001 AUMF: I agree that it could have repealed 18 USC 2511(2)(f). But the question is whether it actually did. Ultimately, that is a question of statutory interpretation. Generally, to actually repeal a specific statute, you need to include specific language to that effect. That is not necessarily true if it is simply impossible to interpret both the earlier and the later statutes consistently. But in this case, one obviously could interpret the 2001 AUMF as not repealing 18 USC 2511(2)(f).

So, I think this is going to be a real problem for the Administration if any of this gets to a court.

PS I actually followed a link to the 12/19 column, and commented on it afterward. But again, this isn't some sort of gotcha game--I just wanted to direct you to other comments if you were interested.
12.20.2005 9:40pm
Andrew Hyman (mail) (www):
Medis, I'm not a litigator, but I suspect that if this whole thing goes to court then there would be plenty of canons of construction on both sides. On Bush's side, he'd point to the last sentence of the AUMF where it preserves the War Powers Act but not FISA. Also, if the statutory issues could be resolved in Bush's favor, then a court could avoid a constitutional case, which is desireable not only as a rule of construction, but also in terms of avoiding a serious constitutional clash between the executive and legislative branches.

I kind of hope there is some way this thing will go to court, so the Dems can be forced to lose graciously, instead of the Dems raising more hell in the halls of Congress.
12.20.2005 10:07pm
You don't seem to get it. Once Congress passed AUMF then FISA in terms of Al Qaeda or the Taliban is inoperative. Or for that matter any other statute that tries to limit the Presidents power to make war. It would be like saying that when Congress declared war against the Japanese that they could put a clause in the declaration of war saying the Roosevelt had to go to Congress for permission to deploy troops overseas. It doesn't work that way. Once Congress declares war then the President's Constitutional war powers kick in, and Congress has no power to modify them. Other than refusing to appropriate money that is. It isn't even clear that the AUMF is necessary because the Supreme Court seems to have gone out of its way to make it clear that the President has very wide latitude in dealing with foreign threats. But the AUMF makes it a slam dunk, so to speak.
12.20.2005 10:26pm
Paul Virkler (mail):
Senator Rockerfeller letter to Cheney is interesting in that he states he does not understand how the intelligence is being collected. Does Rockerfeller just not have a clue or do we have a new type of intelligence gathering for which FISA is not suitable?
12.20.2005 10:46pm
Andrew Hyman (mail) (www):
Regarding Rockefeller:

Sen. Pat Roberts, chairman of the Senate Intelligence Committee, refuted Rockefeller's claims that there was nothing he could do about the wiretapping program if he was uncomfortable with it. "A United States senator has significant tools with which to wield power and influence over the executive branch," the Kansas Republican said in a statement Tuesday. "Feigning helplessness is not one of those tools....If Senator Rockefeller truly had the concerns he claimed to have had in his two-and-a-half-year-old letter, he could have pursued a number of options to have those concerns addressed," he continued. Roberts also said that Rockefeller had repeatedly expressed "vocal" support for the program, most recently just two weeks ago.
12.20.2005 10:54pm

Well, I suspect that interpretation of the AUMF would be a tough sell in court, as will Andrew's proposed argument that since the AUMF mentioned the War Powers Act, every other federal statute is implicitly repealed as the President sees fit. The problem with such arguments is that they have no limiting principle.

Similarly, the Constitution gives the Congress a number of its own powers to regulate the military. So, your argument that those Congressional powers disappear during war seems like a longshot--again, there appears to be no limiting principle to your proposal that inconvenient parts of the Constitution disappear once war is declared. And again, that would seem to be the problem with Andrew's argument that FISA and 18 USC 2511 create a constitutional problem that can only be avoided by holding they no longer apply after the AUMF.
12.20.2005 11:04pm

I'm not sure what Roberts is talking about. As I understand it, these were classified briefings. So what exactly could these Senators do other than express their concerns to the Administration?

And incidentally, I note again that they are claiming they were not fully briefed, and Roberts does not really contradict that claim.
12.20.2005 11:07pm
Andrew Hyman (mail) (www):
Medis, the limiting principles for electronic surveillance are several. Professor Kerr pointed out, for example, that the Fourth Amendment hurdle for monitoring domestic communication is much higher than for monitoring cross-border communication. Furthermore, the AUMF contained the same kind of limiting language that one finds in the Constitution's Necessary and Proper Clause: "the President is authorized to use all necessary and appropriate force." The words necessary and appropriate are flexible words, but they are not meaningless. Imlicit in this provision of the AUMF is a grant of authority to perform necessary and appropriate surveillance to "determine" who "planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001." This gives the President some discretion to determine what kinds of surveillance are necessary and appropriate, and arguably gives courts authority to say when the President has blatantly exceeded the limits of propriety and necessity.

The last sentence of the AUMF is: "Nothing in this resolution supercedes any requirement of the War Powers Resolution." Can you think of a reason why FISA was not mentioned here? After all, FISA has language that specifically addresses warrantless searches during wartime (imposing a 15-day limit). The only reason I can think of why FISA was omitted from the AUMF is because necessary and appropriate surveillance was intended to be allowed notwithstanding any contrary provisions of FISA or any other law.

Regarding what Rockefeller could have done, there are a million things. For example, he could have persuaded the other Democratic Senators and Congressman who had been briefed to co-sign a letter of concern to the President, requesting further information about the surveillance program. Rockefeller also could have introduced legislation clarifying that the AUMF was not meant to supercede the FISA.
12.20.2005 11:41pm
Kaz (mail):
What part of the explicit language in AUMF would be a tough sell in court? This part?

President. In General.--That the President is
authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11,
2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

The fact these Al Qaeda associates were in the US and communicating with elements external to the US doesn't seem any barrier to me. Certainly there is no explicit language to the contrary in AUMF. And since the perpetrators of 9/11 were in fact infiltrators I think it is very clear that Congress was giving the President "[authority] to use all necessary and appropriate force against" these infiltrators, including of course gathering intelligence. Not that he needed it, of course.
12.20.2005 11:44pm

One has to distinguish two different limiting principle problems, associated with the 2001 AUMF and Article II respectively.

The 2001 AUMF limiting principle problem is that on your reading, the last sentence implies that every other federal statute besides the War Powers Resolution was implicitly repealed by the 2001 AUMF, at least as the President sees fit. And maybe you aren't bothered by that proposition, but the problem is going to be convincing a court that the Congress actually thought it was repealing the entire US Code besides the War Powers Resolution when it passed the 2001 AUMF.

Incidentally, one obvious reason not to mention FISA, or any other statute besides the War Powers Act, would be that the 2001 AUMF did not actually repeal FISA or any other statute. In other words, you don't ordinarily have to list every statute you are not repealing every time you pass a new statute.

The Article II limiting principle problem is that if the President's "war powers" allow him to override the Article I provisions allowing Congress to regulate the armed forces, et al, then why not any other constitutional provision, like the 4th Amendment?

Finally, on Rockefeller: are you sure he could even talk to those other people in Congress? That is usually not how classified briefings work. And that just sounds like they would get together to do what they did separately (privately express their concerns to the President). So why does sending one co-signed letter rather than four individual letters make a difference?

As for legislation--you mean without even saying why he thinks this legislation was necessary? Come on, Andrew. "I'm not allowed to tell you why, but I suddenly think we need a law clarifying that the 2001 AUMF was not meant to supercede FISA" is not going to fly in the Senate. And it would probably end up blowing the President's program anyway.

I really think Roberts is blowing smoke. If you get an incomplete and classified briefing from the Administration, your options are severely limited.
12.21.2005 12:02am

Except the 2001 AUMF is not the only law in the United States Code. Or at least one would have thought so.
12.21.2005 12:04am
Kaz (mail):
I can see we aren't going to settle this between the two of us, in fact I don't think it will ever be settled. It would be hard to come up with a scenario where someone has standing to sue, I don't think the Justice department is going to appoint a special prosecutor, and I doubt the House is going to draft articles of impeachement. That leaves the elections of 2006 where I don't think the issue is a winner outside the fever swamps of the deep dark red congressional districts. The last line of defense for our Constituion (as you see it) may well be Ronnie Earle, and I don't think he is up to it.
12.21.2005 12:24am
Make that "blue congressional districts". Somehow I have a deep seated association between Democrats and Reds that I can't shake.
12.21.2005 12:27am

It is early days yet on the issue, so I won't hazard any predictions on what might happen.
12.21.2005 12:30am
Andrew Hyman (mail) (www):
Medis, I did NOT imply that "every other federal statute besides the War Powers Resolution was implicitly repealed by the 2001 AUMF, as the President sees fit." I said that arguably the courts would be able to ensure that other statutes are protected against unnecessary and inappropriate AUMF action by the President. Moreoever, there is a difference between "as the President sees fit" (as you said) and "as the President deems necessary and appropriate" (as the AUMF says). Additionally, the only statutes that might fall by the wayside would be statutes related to the use of force against those responsible for 9/11. Furthermore, Congress would remain free to amend the AUMF if Congress believes that the executive and judiciary have failed to ensure that other statutes are protected against unnecessary and inappropriate action by the President.

I remember when the AUMF was passed, and I remember thinking how odd it was that there was no sunset clause (i.e. no time limit) on the powers granted to the President. I would have preferred that, but Congress decided otherwise. So, amending the AUMF would now be very difficult, if the President were to use a veto. But it didn't have to be that way, if the AUMF had been drafted differently.

Anyway, you say that "you don't ordinarily have to list every statute you are not repealing every time you pass a new statute." But Medis, if you start the list then you have to finish the list. Congress started the list when it mentioned the sanctity of the War Powers Act in the AUMF.

Incidentally, I have not argued that the President's "war powers" allow him to override Article I provisions allowing Congress to regulate the armed forces. I think it would be best for all concerned if we not quarrel about the President's inherent powers, if this whole controversy can instead be resolved via statutory interpretation and interpretation of other constitutional provisions. Let's not fight about the President's inherent powers if we don't have to, because it's just a recipe for strife.
12.21.2005 12:41am
Andrew Hyman (mail) (www):
More about Rockefeller from WaPo:

In response to a question about the letter, Sen. John McCain (R-Ariz.) suggested that Rockefeller should have done more if he was seriously concerned. "If I thought someone was breaking the law, I don't care if it was classified or unclassified, I would stand up and say 'the law's being broken here.'"

At least he could have said so in secret executive session.
12.21.2005 12:56am

I apologize for overstating your views--I shouldn't have done so.

But I do think you argument that once the Congress referenced the War Powers Act, they had to list every other statute they weren't repealing, is false. That claim seems to be based on the assumption that they intended to give such a list, but my precise point is that the reference to the War Powers Act was not the first item in such a list. In other words, your claim that "Congress started the list when it mentioned the sanctity of the War Powers Act in the AUMF" assumes what I think you are not entitled to assume (that this reference was the first item in such a list).

And again, I think that would be an odd assumption. Congress frequently makes mention of one specific provision a new provision is not intended to supersede, without then listing the rest of the US Code as well.
12.21.2005 12:59am

Did you read Rockefeller's letter? He claims in it that he needs more information and the ability to consult with lawyers so that he could actually assess the legality of the program.

So, McCain's suggestion is more than a little misleading. Rockefeller did not claim to know that the Administration was breaking the law--rather, one of his objections was precisely that he could not know the answer to that question given the limits of his briefing and its classified nature.
12.21.2005 1:06am
Andrew Hyman (mail) (www):
Well, I guess this story won't be going away real fast.
12.21.2005 1:13am
Certainly not with FISC judges resigning in protest.
12.21.2005 1:16am
Nor with the gradual emergence of further details, such as the fact that the collection also included (allegedly accidentally, but still contrary to POTUS's original claims) calls entirely within the United States.
12.21.2005 7:01am

I have to say I am not particularly concerned about true accidents, which could occur under any legal regime. But I would like to know what happened when such an "accident" occurred.
12.21.2005 9:49am