The Volokh Conspiracy

Thanks for all your work on this Orin. Notice that the DOJ does not even intimate that the surveillance program is consistent with FISA (except by virtue of the AUMF argument). I know you think they might have national-security reasons for not doing so, but don't you think the debate should focus on the arguments the administration is making, rather than assuming they might have other arguments they are not making?

Anderson twists the DOJ letter's wording to say "We couldn't ask Congress to legalize what we did...."

Congress, specifically those in Congress delegated responsible to their fellows for intelligence matters, is already aware of the the surveillance methods. It is their (Congressional Intelligence Committee) call whether to suggest changes to any law, not the President's. They have not done so.

Partisanship hate is ugly. Partisanship that could reduce national security is dangerous, and needs to be rooted out like any other deliberate attempt to reduce national security.

subpatre: Anderson twists the DOJ letter's wording to say "We couldn't ask Congress to legalize what we did...."

Here is the un-twisted wording:

In addition, any legislative change, other than the AUMF, that the President might have sought specifically to create such an early warning system would have been public and would have tipped off our enemies concerning our intelligence
limitations and capabilities.

Shall I get you carbons for your written apology, subpatre?

Congress was not aware of this program. Four or so members were told of it &ordered to keep quiet. Thus, the body which enacted FISA was not apprised of what was being done, or given the opportunity to approve or reject the program.

Too much partisanship? Close thy NATIONAL REVIEW; open thy FEDERALIST PAPERS. We have had too *little* partisanship, or else (for ex.) Sen. Rockefeller would've taken his concerns to the full Senate, not handwritten a letter and kept it locked up for CYA purposes.

A vigorous Democratic opposition, and a really "partisan" media, would help keep the Republican-controlled government on its toes. We are just starting to see a bit of that, after 3+ years of being sadly lacking in partisanship.

(Leaving aside the revoltingly partisan nature of this Administration, as too obvious to anyone with eyes.)

Okay, just *one* little example of "revoltingly partisan nature", from yesterday's White House briefing:

Q You suggested that those who are seeking an extension are putting politics above security. That now includes eight Republicans. Are you including them in that accusation?

MR. McCLELLAN: No, it's the Senate Democrats.

Oh. That explains it all.

Alas, dk35, not in so many words, though to those of us used to reading appellate opinions, that certainly came through loud &clear.

Back to "invective," subpatre; you falsely accused me of "twisting" the DOJ letter.

Moving right along, you said: The members were told of the surveillance. They were not "ordered to keep quiet", nor can they be. The suggestion is ridiculous.... and contrived.

Here's Sen. Rockefeller on his letter to Cheney:

The limited members who were told of the program were prohibited by the Administration from sharing any information about it with our colleagues, including other members of the Intelligence Committees.

So, we're not supposed to be "partisan," but a Democratic Senator's report that he was told to keep quiet is "ridiculous ... and contrived."

Apparently I am not trying to make the U.S. a better place by calling b.s. where I see it? I guess we have different concepts of the Good, subpatre ... it's like a paragraph out of Isaiah Berlin or something.

Right on, Unenumerated.

When you think about it, the "Republicans In Name Only" are those who want to sacrifice the Bill of Rights on the altar of National Security. That's how every dictatorship in the book justifies its tyrannies ... "national security." Conservatives, back when they existed, understood this. But power corrupts, etc.

Sorry, Orin, I don't buy it. This administration loves playing the "We wish we could tell you why this is so vital, but we can't so just trust us" card.* Luttig's anger notwithstanding, they'd play it if they had it.

*Especially because it leads to the "if you suggest we're not being 100% truthful about what we're not telling you then you're sending the wrong message to the troops" card.

Facts are stubborn things, and there are two facts that have not been refuted:

1. Every President in the powtwar era has asserted a right of warrantless electronic surveilance for foreign intelligence purposes.

2. No court has ever ruled (that they don't have that authority, despite plenty of opportunity to do so.

In fact the Courts have gone out of their way to make sure that the Presidents inherent authority to counter external threats has stayed intact.

I've heard a lot of blathering here about why AUMF doesn't do what the President claims, why FISA trumps the constitution. There has been an awful lot of construing of statutes, but the one thing I haven't heard from anyone (Orin included) is a single decision from any court that says the President needs a warrant for foreign intelligence gathering, or for that matter contradicts anything in the DOJ memo. On the other hand there have been quite a few citations from both SCOTUS and FISA court of review that say pretty much the same thing as the DOJ memo.

Educate me here.

First, the DOJ letter certainly does not strike me as weak, but rather a fairly normal way to read statutes. Certainly, no one on this thread has attempted to differ with the axioms of statutory construction applied in the letter.

Second, the fourth amendment argument is facially skeletal, and I think for a simple reason: administration critics are not arguing that FISA is unconstitutional, nor are they arguing that electronic communications that at involve, in part, communications from or to a foreign country are somehow inherently protected-- absent FISA-- from warrantless searches, at least as far as I have seen. (I take it that readers of this blog are sophisticated enough to know that warrantless searches are unconstitutional only if they are unreasonable.) In other words, the critics have not made a Constitutional argument that is deserving of more of a response. If FISA can be construed together with the AUMF to provide a colorable basis for the administrations position, why debate the 4th Amendment? Just assume that both FISA and the AUMF are constitutional, that they can be construed in harmony, and move on.

Third, the practical point that the letter rests on, authorization to use military force implies a power (expectation?) to gather intelligence, seems rather unremarkable. Again, that seems like something that should be uncontroversial, unless it is because Bush did it.

What is emerging is not a classic wiretap program, but some kind of signals gathering and analysis program that surveys a massive number of circuits and isolates a relative few for further analysis. That point of analysis, as I have been given to understand some of these techniques, is likely the first time a human being ever hears the communication or sees the email, and it might be well after the 72 hour period provided by FISA. Hardly grounds for the fear of grandiose claims of immunity from Congressional or judicial oversight that the critics have used to keep the pot boiling, and claims that the adminstration is in fact not making. Calm down.

How would one draft a statute that provides oversight to an ongoing "fast and agile" surveillance operation that involves automatic filtering of a huge volume of non-suspect communications looking for those of interest?

Anderson, I don't know about blathering but assuredly uneducated. Here is Jimmy Carter in 1979 (post FISA) asserting a right to Warrantless surveillence:

1-101. Pursuant to Section 102(a)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1802(a)), the Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order, but only if the Attorney General makes the certifications required by that Section.

And in the Clinton Administration:

The Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes," Deputy Attorney General Jamie Gorelick testified before the Senate Intelligence Committee on July 14, 1994, "and that the President may, as has been done, delegate this authority to the Attorney General."

And Reagan:

Executive Order 12333, signed by Ronald Reagan in 1981, provides for such warrantless searches directed against "a foreign power or an agent of a foreign power."

Both are cited here.


Not to mentions the Op-ed from Clinton's Associate Attorney General John Schmidt:

President Bush's post- Sept. 11, 2001, authorization to the National Security Agency to carry out electronic surveillance into private phone calls and e-mails is consistent with court decisions and with the positions of the Justice Department under prior presidents.

Whether or not the subject of the warrentless surveillence is a U.S. citizen is irrelevent if they are agents of, or associated with a foreign power. No where in these previous presidential assertions (one of which involved Aldrich Ames) was there any caveat about no US citizens being involved.

And you may not like the "Silberman Dicta" (or Keith, or others) but you have yet to quote a single decision supporting your own position.

One defense of the President I've read argues that FISA is an unconstitutional interference with the President's Art. II powers.

Who would have standing to assert such a theory? Given the President's obligation to faithfully uphold the laws, it's hard to believe that the DOJ could legitimately take that position.

Any help from the cognoscenti? May the DOJ argue that a statute is unconstitutional? Who's to stop it if it does?

Daniellee,

Of course, one also has to include 18 USC 2511 in the "harmonizing" project, and the way that the letter proposes "harmonizing" 18 USC 2511 makes no sense in light of the plain language of that statute and 50 USC 1809. Additionally, even considering just FISA, it is difficult to harmonize the letter's proposed reading of the 2001 AUMF with the emergency and declaration of war provisions in FISA (as opposed to just 1809). Finally, it is difficult to harmonize the letter's proposed reading of the 2001 AUMF with the USA-PATRIOT Act, which amended FISA for the purposes of dealing with the precise problems the Administration is citing.

But there is another easy way to "harmonize" all of the 2001 AUMF, 18 USC 2511, and FISA as amended by the USA-PATRIOT Act. That would be to simply interpret the "necessary and appropriate" clause in the 2001 AUMF as being consistent with the statutory structure laid out in 18 USC 2511 and FISA as amended.

Of course, there is one notable problem with this obvious way of harmonizing all these statutes: apparently it would mean the President was ordering people to do something illegal.

Andrew,

The problem is that 1809 does not by its plain language incorporate anything. It doesn't even say that "surveillance can be done as authorized by statute". Rather, it merely provides that surveillance authorized by some other statute is not a crime under FISA.

Going from FISA not making something a crime to saying that any procedures FISA does not make criminal are actually FISA procedures is really a legal non sequitur.

Just for everyone's information, this is the clause the letter is claiming turns any procedure authorized by law into a FISA procedure:

"(a) Prohibited activities
A person is guilty of an offense if he intentionally—
(1) engages in electronic surveillance under color of law except as authorized by statute."

I note that 18 USC 2511 distinguishes between procedures in FISA and procedures in Title 18:

"and procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted."

I guess whoever drafted this language somehow overlooked that the procedures in Title 18 were already procedures in FISA because of 1809.

Andrew,

I'm not sure I even understand that claim. A statute can authorize something without providing any procedures someone needs to follow. Alternatively, a statute can authorize nothing on its own but provide procedures someone needs to follow in order to exercise powers authorized by other statutes.

In any event, that claim is irrelevant because 1809 does not "authorize" anything.

Andrew,

No, I am not saying #1. What I am saying is that 1809 does not "authorize" anything. Rather, 1809 defines a crime: conducting electronic surveillance without statutory authorization. But 1809 does not itself authorize electronic surveillance. Indeed, as far as 1809 is concerned, at any given time there could be no statutes authorizing electronic surveillance, or hundreds of such statutes, or anything in between.

and I actually think this point is completely obvious. Indeed, the plain language of 1809 assumes that authorization must occur elsewhere, and that 1809 itself does not provide authorization.

Can someone explain to me how the NSA's surveillance program fits the definition of "electronic surveillance" in Section 1801(f) of FISA? As I read it, even in peacetime, to fall within the FISA, the commuication must be acquired in the United States and/or under circumstances in which a warrant would be required for law enforcement purposes. The Supreme Court has ruled that warrantless searches are constitutional in the context of border crossings, and it doesn't seem implausable to me to treat international telephone calls or e-mails as a type of border crossing. So, intercepting international calls outside of the US doesn't constitute "electronic sureillance," even if a US citizen is on one end of the line. In short, regardless of whether we are at war, the NSA program has always been legal. How am I wrong?

Kaz, the warrantless search of Ames was legal under FISA. Only later was the statute amended to extend to such physical searches.

I suppose there is an Article II argument that FISA is unconstitutional, though it seems weak under Youngstown. But even the Administration is not making that currently. And do you have any evidence that is textual or drawn from original intent to support the Article II argument?

To begin with the Sealed case never once held that the President has the inherent authority to conduct warrantless surveillance. It merely, to use its phrase, "assumed" this to be the case and did so by relying on a Fourth Circuit opinion that addressed the topic pre-FISA. Dicta, which is what assuming something to be the case is, is neither a holding nor binding on any court, even the FISA Court of Review. Thus, to extrapolate from an assumption to a binding holding from a court is completly mistaken.

What is interesting, and which no one discusses, is what the Fourth Circuit itself said about warrantless surveillance for foriegn info. (By the way the Supreme Court in Keith held that the President does not have the inherent authority to conduct warrantless surveillance for purposes of domesitic info. — given that the NYT has reported that some of the intercepts by the NSA were purely domestic in nature this raises the spectre that there may have been a violation of the Supreme Court's holding in Keith in how this program was conducted; I take no sides on that question because it would require determining when something that begins as a search for foreign info turns into one for domestic info).

Back to the Fourth Circuit opinion. First that opinion did hold that the President does not have the inherent power to conduct warrantless surveillance once the purpose for that surveillance is to build a criminal case against the individual but does so with respect to simply collecting foriegn info.. This raises the question of whether the info collected under the President's program was used in criminal proceedings. If so, then he exceeded his constutional powers per the Fourth Circuit. (The Sealed Case, rightfully I believe, found this distinction between the purpose for the collection to be untenable thus in effect rejecting the Fourth Circuit's constitutional analysis concerning what limits, if any, do exist againt the executive branch's warrantless surveillance of Americans for the purpose of collecting foreign info.).

Here's the kicker, in the course of making this finding the Fourth Circuit questioned even its own holding in light of the recent passage of FISA. It noted that FISA's ability to impose a warrant-requirement of sorts on the collection of foreign info. vitated its own belief that no such warrant could be imposed because of the complexity of the matters and the judiciary's inexperience in dealing with them. Here is the money quote:

"The elaborate structure of the statute demonstrates that the political branches need great flexibility to reach the compromises and formulate the standards which will govern foreign intelligence surveillance. Thus, the Act teaches that it would be unwise for the judiciary . . . to attempt to enunciate an equally elaborate structure for core foreign intelligence surveillance under the guise of a constitutional decision."

This strongly suggests to me that the Fourth Circuit felt that the extent of Presidential powers in the collection of foreign information was co-terminous with the limits placed in FISA. That is, if you violate FISA you also exceed the scope of your powers.

Philamark, I assume that some international calls were intercepted inside the U.S. and therefore that qualifies as "electronic surveillance."

Andrew:

Why would you presume the NSA would deliberately violate the FISA by intercepting calls inside the US, when they could just as easily do it outside the country, and stay legal? By the way, Powerline blog has an excellent analysis of the legality of the NSA program that you would find interesting.

I have read the DOJ's letter and I have to agree with Medis that is legally bogus. As I read the letter, the Congressional resolution authorizing force passed in the days after 9/11 authorizes warrantless surveillance of US citizens even though the resolution itself simply allowed the President to use all necessary "force." Far be for me to quibble with such esteemed lawyers, but surveillance is not force just look up the word's meaning in the dictionary. But the letter then goes on to opine that FISA -- in setting forth the elements of a crime -- somehow also makes an exception to its requirements "except as authorized by statute" the statute in our case being the Congressional resolution. As any lawyer knows the use of the phrase "except as authorized by statute" is commonly used in criminal statute to incorporate the particular statute's provisions into defining the elements of the crime. That is to say when FISA "except as authorized by statute" what it was saying is that it is a crime to engage in surveillance not allowed by the procedures contained in FISA. That's it.

For starters, they've tied their authority directly to the wording of the AUMF.

No, they tied it to past FISC decisions, the Prize Cases, the precedents referenced in the preamble of the AUMF, Hamdi's interpretation of AUMF, and the realities of how the War on Terror is waged. It is erroneous to state that DOJ has sketched a mere textual argument.

Andrew,

I'm not sure you answered this question in the other thread--you were heading off as I recall--but I wanted to get your thoughts (or you can redirect me if you did answer this already).

Hypothetically, suppose a court was trying to interpret the "necessary and appropriate" clause in the 2001 AUMF with respect to surveillance (for the sake of argument, I'm assuming surveillance is force). Where do you think the court should look for a definition of what surveillance is necessary and appropriate within the meaning of the 2001 AUMF?

The obvious reading is that when 2511 refers to procedures in FISA, it means procedures actually in FISA. And when 1809 says it is a crime to conduct surveillance except as authorized by statute, it is defining a crime, not incorporating other statutes into FISA.

Just to avoid bickering down the line, this is a matter of statutory construction. Now, were this a case of statutory construction, and these statutory provisions were being read in isolation, then perhaps what you say would make great sense. But that is not how legal reasonaing works. I can point to many a statutory provision that was obviously intended to be read one way but was misinterpreted by the courts and now means something else. Often that happens in light of a decision interpreting a different statute that for some reason is adjudged, perhaps improperly, to be similar. Securities regulation is rife with these kinds of problems. It happens not only under statutory authority, but also with doctrine under the Contracts Clause and doctrine under the Eleventh Amendment. So simply reading the text of the statutes and construing them in a plausible way consistent with their plain meaning won't get you very far.

That said, the DOJ letter does a good job of dealing with the countervailing arguments that, taken together, outweigh your plain reading of the statutes.

subpatre,

I'm not sure I understand. What AQ would know is that we could conduct surveillance without a warrant for 72 hours, and then continue to conduct surveillance if we got a warrant within 72 hours.

How would using a method of communication for less than 72 hours avoid such surveillance?

subpatre:

Although the rest may be ignorant, Al Qaeda knew it takes a minimum of [some amount of time] to get a warrant

The AG can start a wiretap as soon as it is desired. They then have 72 hours to get a warrant from FISC, so there is no [some amount of time] delay.

§ 1805. Issuance of order
(f) Emergency orders

Notwithstanding any other provision of this subchapter, when the Attorney General reasonably determines that—
(1) an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained; and
(2) the factual basis for issuance of an order under this subchapter to approve such surveillance exists;
he may authorize the emergency employment of electronic surveillance if a judge having jurisdiction under section 1803 of this title is informed by the Attorney General or his designee at the time of such authorization that the decision has been made to employ emergency electronic surveillance and if an application in accordance with this subchapter is made to that judge as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance.

Medis, you inquire where a court should look for a definition of what unwarranted surveillance is "necessary and appropriate" within the meaning of the 2001 AUMF. Well, the first place is the Fourth Amendment. If the reasonableness standard of that Amendment is violated, then unwarranted surveillance is not "necessary and appropriate."

Other than that, I'd think a court would try to respect the President's own determination about what unwarranted surveillance is required in order to achieve the goal of using "all necessary and appropriate force." However, if a court determines that the President very clearly could have achieved that goal by following all of the FISA procedures, then a court would be obliged to say that the President has violated the statutory scheme set up by FISA as modified by the AUMF. Then the only remaining issue would be whether that scheme is constitutional (i.e. whether it infringes on the President's inherent powers). I think it would be held constitutional.

And there is simply nothing like 18 USC 2511 in Hamdi. So, Hamdi is easily distinguishable on that ground alone.

No, that argument is entirely non-responsive. DOJ's argument, as I said above, is that Hamdi determined the scope of AUMF to be large enough to encompass both 4001 and 2511. You, again, are trying to trim Hamdi down and narrow it to only statutes substantially similar to 4001. Why should the court do that?

And, Kyle dealt with the "surveillance-does-not-equal-force" argument above.

Jack John,

On "force"--I'm actually not sure what a court might say on this subject. Detaining people captured on a battlefield is certainly an easier case than conducting surveillance far from the battlefield. But, you may be right that force is still broad enough to encompass surveillance.

So, since the statutes are different, the outcome could be different.

1. Not if AUMF is broad enough to encompass both statutes. I'm asking you why AUMF isn't broad enough to encompass both statutes, even though they have some textual differences. Rulings, on the day they are handed down, have application greater than simply to the facts of the case before the court. They also reach all similar cases pending or on direct review and affect any new cases brought before the court. You are arguing, years after Hamdi was handed down, that the ruling should now be narrowed to its facts. You are in fact arguing that Hamdi's scope should retroactively be narrowed, which would require overruling it, or as I put it, trimming it.

2. That 4001 dealt with detention makes DOJ's interpretation of Hamdi's breadth more plausible than yours. The civil liberty at issue in the case of detention has more constitutional grounding and historical pedigree than the civil liberty at issue in the case of electronic surveillance. We know for a fact that the word 'liberty' was intended to apply to physical restraint; by contrast, protection from data-mining requires a higher level of generality. If Hamdi encompasses 4001, which deals with detention, it necessarily encompasses 2511, which deals with electronic surveillance, because the civil liberty interest is of less weight. This tracks with Andrew's argument.) Mere textual differences are insufficient, so pointing them out is non-responsive.

if it had the permutations Kyle believes it does then it would be odd that just moments before the resolution was scheduled for a vote the administration would seek to make edits

That is from an op-ed by ex-con Tom Daschle. So we're supposed to believe ex-con Tom Daschle? Why is he the paragon of credibility? And does ex-con Tom Daschle's opinion beat the Hamdi ruling?

Jack John, here's an excerpt from Hamdi:

[W]e conclude that the .... AUMF satisfied §4001(a)'s requirement that a detention be "pursuant to an Act of Congress..."

But suppose 4001(a) had said that a detention must be "pursuant to certain acts of Congress that do not include the AUMF." In that case, the holding of Hamdi would have made no sense. And that is the kind of case Medis argued is present with the NSA controversy.

Jack John,

Another definitional point: I would only say I have "limited a case to its facts" if I claimed it only applies to the facts of that case, and NO other facts. But if I merely distinguish a later case, I am not claiming that NO other cases might be controlled by the first case.

So, the precise issue is why I think one can distinguish 2511(2)(f) from 4001(a).

Your point, I believe, is that the subject matter of the statutes (surveillance versus detention) is not a valid ground for distinguishing them. As I expressed before, I'm actually not sure how that would play out--I could see it going either way.

However, I did not distinguish the statutes on the basis of subject matter. Rather, I distinguished them on the basis of the language--in particular, 2511(2)(f) provides for Title 18 and FISA being the exclusive means for surveillance, whereas 4001(a) allows authorization by any Act of Congress.

Again, I'm not sure why this distinction is unclear. But maybe a hypo would help. Suppose 18 USC XXX provided that "the procedures in 50 USC YYY are the exclusive means by which the government may detain battlefield prisoners." In that case, the Court might have held in Hamdi that the President had to follow the procedures in 50 USC YYY, even though it held that he was authorized to detain battlefield prisoners by the 2001 AUMF.

Of course, there is no 18 USC XXX and 50 USC YYY. But there is an 18 USC 2511 and FISA. Which might make all the difference in this case, as opposed to Hamdi.

an assumption is not a holding as it was not necessary to the case. to cull together assumptions strikes me as a bizzare method of legal reasoning. perhaps a better phrase would be to cull together dicta from prior cases, but again as I explained above the Sealed Case did not even provide dicta but merely assumed. Moreover, you also forget that in the same passage where that court assumed this to be the case it also effectively undercut the very reasoning of a case that it relied upon for making that assumption.

to cull together assumptions strikes me as a bizzare method of legal reasoning.

So is construing an explicit statute contrary to its plain meaning. It happens all the time. It happened just this term. See Lockhart v. United States, or our Contracts Clause jurisprudence, or our Eleventh Amendment jurisprudence, etc.

the precise issue is why I think one can distinguish

No, I have been quite clear. Dsitinguishing gets you nowhere. I accept that the statutes are textually different. The argument is that Hamdi encompassed them both, anyway, at the time Hamdi was decided. Trying to narrow that holding is an implicit overruling.

This has less to do with how to read AUMF than with how to read FISA.

Only if you presume that Hamdi did not encompass 2511 as well as 4001. Why would a court presume that when DOJ is arguing to the contrary? That would not be impartial adjudication.

We are not talking about how the Supreme Court interpreted or misinterpreted the Contracts Clause we are talking about how to construe FISA. It does seem bizarre that as a method of construing a statute we should take into consideration that courts regularly misinterpret statute and then proceed to use this "method" to interpret (or perhaps misinterpret) another one whose meaning is clear on its face.

Jack John,

Of course that part is relevant. Given the language of 18 USC 2511, the 2001 AUMF would have to implicitly repeal 18 USC 2511. So the rules for implied repeal are highly relevant.

Jack John, I'm on your side regarding the bottom line, and I'm also on the side of DOJ's bottom line. I just think that you and they get there via an incorrect path.

Anyway, I did take a look at Lockhart. The statutory provision Scalia was talking about said: "No other provision of law, enacted ... after April 20, 1983, may be construed to limit, supersede, or otherwise modify the provisions of this section except to the extent that it does so by express reference to this section." In other words, Congress was attempting to thwart the will of future congresses, and Scalia was simply pointing out that such a provision is invalid. Scalia was correct; such a provision is no more valid than a provision saying that a statute may never be amended. But I don't see anything comparable happening with Hamdi or FISA.

Kyle,
Okay, you're right, if one takes the reasoning at that level of generality. It sounds fine to me.

Andrew,
Kyle is right at that level of generality, you're right at yours (though I would argue that is too narrow a reading). My point in citing to it was that Scalia made a realist point about the futility of Congressional means to limit legislation as if it operates within a legal vaccuum at the end of his concurrence (which is not law, anyhow): "I think it does no favor to the Members of Congress, and to those who assist in drafting their legislation, to keep secret the fact that such express-reference provisions are ineffective." In other words, we'll just disregard those textual differences.

My apologies, I see your point now, Jack John, regarding Lockhart, thanks to Kyle's comment. Maybe we're on the same page after all. The AUMF superceded FISA despite 2511. Yes, that's what I've been saying.

And there is nothing in the 2001 AUMF that indicates it was intended to susbtitute for 2511 and FISA, nor to my knowledge anything in the legislative history.

But there is Hamdi.

Incidentally, although I don't actually think this is an express-reference case, I might note that we are just talking about a concurrence in Lockhart (O'Connor wrote for the other 8 Justices).

Yes, and Congress passed AUMF, which was interpreted in Hamdi to include incidents of war.

First, the letter pads its arguments with quotations from concurrences. These statements are not statements of law; they're just the opinions of the individual justices who join in the concurrence, serving at most as tipoffs of how those justices would frame the opinion of the Court if they had five votes for those statements in that case.

Look, terrorist attacks do not endanger national security, in the sense that they will cause the overthrow of our government and the installation of Islamic rule. Thus, the letter's recitation that security is the most important thing is misleading. Liberty is more precious than security, else why do men walk into a hail of bullets that may cause their death, to secure liberty? The American Revolution certainly endangered the security of the colonies, yet they sorely endangered it to achieve more liberty.

The fact that there will be another terrorist attack sometime, somewhere, that also will not bring this great country down, does not justify a perpetual state of emergency which in turn is alleged to justify any measures the executive wants.

Eventually, in cycles like these, the scared American public relaxes and wants its liberty back. It may be necessary to beef up the statutes or even pass an amendment to deal with terrorism and our own government's tendency to overreact to same; but such will be impossible with the current President and Congressional lineups. That doesn't mean stringent objections should not be made. One that can be registered without a veto-proof majority is refusing to make some or all of the Big Brother Act permanent until we can get a government that is not run by a fear and smear campaign.

terrorist attacks do not endanger national security

This argument is self-refuting and destroys its author's credibility.

The Commader-in-Chief clause. so how would this clause operate in real terms to limit the abuse i have described. If by commander-in-chief you mean only in times of war, there are a number of problems with this limitation. The most notable being who decides when a war is over? I would assume it is the commander-in-chief, the one who has all this unfettered power you are willing to give to him. Do you honestly believe a dictator will give up his powers. I do not have much faith that there are many, if any, Cinncinatus out there.

Medis, why do you think that the AUMF only sought to protect the War Powers Resolution from being superceded, without seeking to protect FISA (including FISA's 15-day wartime limit on unwarranted surveillance)?

But the president's plan goes well beyond FISA's 15 day limit. So if Congress sought to protect this limit through passage of AUMF, this does not held the administration's cause as the program in question clearly exceeded this limit.

There are many here that would have you believe that FISA could trump the Presidents power under Article II to conduct warrantless searches, but that is quite a stretch. That would be like saying that Congress could pass a law requiring Senate approval to fire a Cabinet officer. Or modify the conditions of the President's veto. The Courts have always been very skeptical of legislative attempts to enhance the Constitution, such as the line item veto, term limits, the religious freedom restoration act.

But most ridiculous argument I've heard is that Congress one week after 19 embedded moles launched a foreign conceived and directed attack against the US from within the US, had no intention of conferring intelligence gathering authority on the President when they declared war:

[R]ender it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad

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.

Some in Congress may well regret this re-affirmation of the Presidents Article II powers, but they haven't used their reference to the War Powers act to revoke them either.

MMK, I asked Medis why the language of the AUMF failed "to protect FISA" and I did not (as you suggest) ask Medis why the language of the AUMF failed "to protect the 15-day wartime limit of FISA."

The last sentence of the AUMF is: "Nothing in this resolution supercedes any requirement of the War Powers Resolution." The last five words are not suplusage, and they considerably narrow the meaning of the sentence. Congress obviously wanted to avoid the implication that the AUMF would supercede nothing.

There are many here that would have you believe that FISA could trump the Presidents power under Article II to conduct warrantless searches, but that is quite a stretch. That would be like saying that Congress could pass a law requiring Senate approval to fire a Cabinet officer. Or modify the conditions of the President's veto.

The obvious distinction, of course, is that the veto is an explicitly named power, whereas the "power to conduct warrantless searches," if such a thing exists, is at best the implied correlate of a more general shared warmaking power. As for removing cabinet officers, a plausible original-meaning argument could be made that the Constitution doesn't determine anything about it one way or the other. I don't think this argument is right (i.e. I think Myers was rightly decided), but it's not silly or incoherent.

Medis, Congress obviously believed that the AUMF was necessary and appropriate, or they wouldn't have passed it. The purpose of the words "necessary and appropriate" in the AUMF was to delegate discretion to the President (and also possibly to the courts).

Moreover, I never suggested that FISA as amended provides "a rule that did not apply in the situation as described in the 2001 AUMF." I believe that FISA as amended does provide a rule that generally applies in the situation as described in the 2001 AUMF, except in particular, exceptional real-world instances where such application would prevent the President from using "all necessary and appropriate force" to defeat Al Qaeda.

And finally, the last sentence of the AUMF is: "Nothing in this resolution supercedes any requirement of the War Powers Resolution." If Congress believed that the AUMF superceded no requirement at all (as you apparently believe), then there was no reason to qualify the sentence by adding the last five words.

Well, I guess we'll just agree to disagree. Thanks again for the conversation.