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Charles Krauthammer Quotes Orin's Constitutional Analysis

of the eavesdropping matter in today's Washington Post.

Apodaca:
And for good measure, see this Krauthammer column.
12.23.2005 12:36pm
washerdreyer (mail) (www):
I'm not certain, but I think Krauthammer is mis-using his quote from Orin's post. When he used the words "probably constitutional" he was saying that the President's actions probably didn't violate the 4th Amendment. But the column uses the quote to answer the question, "Does the president have the constitutional authority to conduct warrantless searches against suspected foreign agents in the United States?" That looks to me like he's talking about Article II, which wasn't what Orin was talking about at all.
12.23.2005 12:46pm
18 USC 1030 (mail):
Yes, but he got it wrong. Professor Kerr said it was probably UNCONSTITUTIONAL...
12.23.2005 12:47pm
Mr. T.:
It's more accurate to say that Krauthammer selectively quotes Prof. Kerr. He cherry-picks the "probably constitutional" quote without mentioning that the post goes on to imply that the president did violate the law. Am I wrong?
12.23.2005 12:49pm
Jay Louis (mail):
Indeed, it does appear that Charles Krauthammer selectively quoted Professor Kerr insofar as:

1. As far as I can tell, Professor Kerr never explicitly wrote that he believed the NSA surveillance program to be "probably constitutional" in all respects (i.e., even if it's constitutional on 4th Amendment grounds, it could still be unconstitutional on Article II grounds).

2. Krauthammer never discusses Professor Kerr's concerns regarding the fact that the President may have violated statute(s).

Nevertheless, it's great to see Prof. Kerr's invaluable and excellent blog post cited by the influential Krauthammer.
12.23.2005 12:58pm
Ugh (mail):
Charles Krauthammer Quotes Orin's Constitutional Analysis

I'm sorry Orin.
12.23.2005 1:02pm
Aaron Bergman (mail):
Just furthering my belief that Krauthammer is the Noam Chomsky of the right....
12.23.2005 1:19pm
Anderson (mail) (www):
I refuse to read Krauthammer (like Chomsky) on general principle. Somebody tell me whether he makes a psychiatric diagnosis of the would-be impeachers.
12.23.2005 1:22pm
Ugh (mail):
Andersen -

You can read Delong's version of Krauthammer's column over at tpmcafe.
12.23.2005 1:35pm
Anderson (mail) (www):
Thanks, Ugh, I linked to that in another thread. Positively eerie. What other future columns will DeLong provide us?
12.23.2005 1:41pm
Wince and Nod (mail) (www):
I like Charles Krauthammer, and think that the above comparisons of him to Noam Chomsky break the blog rules by personally insulting both Charles Krauthammer and Noam Chomsky.

Yours,
Wince
12.23.2005 1:48pm
Greedy Clerk (mail):
Krauthammer has got to be kdding with his take on impeachment -- "only the most brazen and reckless partisan could pretend it is anything approaching a high crime and misdemeanor" -- excuse me while I go throw up. This is the same guy who vociferously argued that Clinton deserved to be impeached for, uhh, not being fully forthcoming about his sex life in a civil deposition in a bogus (thrown out at SJ by Reagan appointee), politically-motivated lawsuit, where the questions were set up and approved only the most brazen and reckless partisan could pretend it is anything approaching a high crime and misdemeanor by an "independent" counsel coordinating with the lawsuit's attorneys.

Violating the Foreign Intelligance Surveillance Act, and then getting caught and trying to justify it by reference to some of the most absurd interpretations of the constitution and federal law ever set forward by the executive branch -- no big deal.

Lying about an extramarital blow-job -- constitutional crisis and the second impeachment in American history.

Ah, integrity --- remember when that used to exist?!?

FWIW, on the record as it exists, I do not beleive Bush should be impeached. But if we are going to use the Clinton-standard, he should not only be impeached but thrown in Gitmo for crimes against humanity. I, of course, reject that standard.
12.23.2005 1:52pm
Greedy Clerk (mail):
It's more accurate to say that Krauthammer selectively quotes Prof. Kerr. He cherry-picks the "probably constitutional" quote without mentioning that the post goes on to imply that the president did violate the law.

I am shocked, just shocked.

12.23.2005 1:53pm
Andrew Hyman (mail) (www):
Greedy Clerk, thanks so much for your willingness to send Bush to Gitmo instead of Abu Ghraib. You're all heart.
12.23.2005 1:56pm
tim (mail):
Orin's conclusion was that the president probably broke the law (FISA), but did not violate the constitution (4th amendment).

...to be selectively and misleadingly quoted by Charles Krauthammer. Sometimes it feels so good to be used!
12.23.2005 1:56pm
Justin (mail):
Let's assume that Krauthaummer's only problem is that he cannot read. He says at one point that Kerr found "pretty decent arguments" on both sides" and then goes on to say:

This was an error of political judgment. But that does not make it a crime. And only the most brazen and reckless partisan could pretend it is anything approaching a high crime and misdemeanor.

Yes, only the most brazen and reckless partisan could pretend to believe a "pretty decent argument," even in the fantasyworld in which Orin Kerr came out the other way.
12.23.2005 1:58pm
Andrew Hyman (mail) (www):
BTW, the issue in the Clinton matter was lying in court under oath about an employer-employee very similar to one for which Clinton was sued.
12.23.2005 2:00pm
Andrew Hyman (mail) (www):
BTW, the issue in the Clinton matter was lying in court under oath about an employer-employee activity very similar to one for which Clinton was sued. Not that we need to go there.
12.23.2005 2:00pm
frankcross (mail):
Well, I suppose he's not a lawyer, so this is a little confused. He thinks that the Pres has an Article II power to "go beyond" FISA's terms. This is essentially saying that the FISA restrictions are unconstitutional. So Orin's conclusion about probable statutory illegality is irrelevant to him.

Lots of points could be made here. But one stands out to me. If it is a close question about the existence of the President's authority (per Orin without Krauthammer dispute), doesn't it seem odd that such an ambiguous power would be above legislative restriction?
12.23.2005 2:07pm
Greedy Clerk (mail):
Orin Kerr would officially be my hero if he wrote a letter to the Post politely, yet clearly, calling Krauthammer out on the misrepresentation. Indeed, I would promise to never comment here again if Kerr or Volokh requested it. Come on Orin -- do it.
12.23.2005 2:10pm
Greedy Clerk (mail):
[Juvenile attack on fellow commenter deleted. My apologies if it was supposed to be funny, but to me it just came across as pointlessly nasty. -EV]
12.23.2005 2:13pm
Wintermute (www):
If Dr. K did not vet his characterization of Orin's post with Orin himself, it will be interesting to see how Orin responds. But hey, he may, like many of us, have presents to wrap. Season's Greetings to all who think this Conspiracy matters!
12.23.2005 2:24pm
JosephSlater (mail):
I don't normally post just to say "yeah, what he said!" But in this case, with the exception of the line about the other poster's sex life, let me say for the record: "What Greedy Clerk said!" Because he's exactly right. Oh, and with the other exception that while I would like to see Orin K. write the Post per G.C.'s suggestion, I would be sad if that meant G.C. wouldn't post here anymore.
12.23.2005 2:29pm
George Gregg (mail):
Is there seriously anyone in the country who DOESN'T think Bush broke the (FISA) law? I mean, that's pretty much what Bush and Gonzales have been saying, right? They freely admit they broke that law. They wiretapped US citizens without warrants, they say, which is in clear, uncontrovertible violation of FISA.

We're now just arguing over whether he had authority to break it. But the fact that the law was broken is pretty solidly attested to by the President's own confession, and brazen claim to continue to break it.

As for whether he has a right to break that law, that's another question. But let's please move past this bottleneck in the discourse where some people are debating whether the law was actually broken. Bush himself says he did and his Attorney General agrees.
12.23.2005 2:34pm
Andrew Hyman (mail) (www):
Oh excuse me, before a grand jury. That's so much more proper. And I believe that Ms. Jones's consent was requested. And I find it surprising that you have tim for this blog, given your other engagements.

And since you haven't got the message: Clinton's misconduct was more serious than Bush's conduct.
12.23.2005 2:35pm
Nunzio (mail):
Prof. Kerr concluded that the President's authorization of warrantless surveillance (and other searches) of foreign agents (whether U.S. citizens or not) in the U.S. suspected of plotting terrorist acts probably did not violate the 4th Amendment but probably did violate FISA. This means that the President's actions were not unconstitutional even if they were illegal. Based on the case law Prof. Kerr looks at, the reason these are not unconstitutional is because it is believed that the President has the authority to repel foreign invasion. That authority must come from Article II in order to make warrantless searches reasonable.

In other words, the chief of police of Los Angeles would violate the 4th Amendment (or 14th Amendment) by conduction warrantless searches (absent acting as an authorized agent of the Executive branch) of foreign agents in the U.S. suspected of plotting terrorist acts because the LAPD has no inherent authority to thwart foreign enemies, making the search unreasonable.

So the Article II authority is what supports the reasonableness of the 4th Amendment search, making them inextricably linked here. This is the argument that Krauthammer cites Prof. Kerr as authority for.

The second Article II argument everyone's focused on is the separation of powers argument: whether FISA can reign in the Article II power to repel foreign invasion/terrorism by limiting the inherent authority to conduct warrantless searches of foreign agents in the U.S. plotting terrorist activities.

Prof. Kerr does not opine on this, but Krauthammer does not cite him for this. Krauthammer cites Bill Clinton's administration for the general principle that separation of powers principles means that FISA is unconstitutional (so Congress, not the President is exceeding its authority). Although the President is violating FISA, his violation can't be "illegal" b/c FISA is unconstitutional. It's not a crime to break an invalid law. This is Krauthammer's point.

Whether Bush should be impeached and removed is certainly Congress' call (as it was with Clinton) because the federal courts will not get involved here. As with the Clinton impeachment, it would be a dumb idea b/c even if he gets impeached Bush will not be removed from office and I seriously doubt that this will deter him from employing domestic surveillance of foreign terrorists, just as impeachment did not stop Clinton (God love him) from getting blow jobs from a non-spouse.
12.23.2005 2:49pm
Andrew Hyman (mail) (www):
George Gregg, you asked:

"Is there seriously anyone in the country who DOESN'T think Bush broke the (FISA) law? I mean, that's pretty much what Bush and Gonzales have been saying, right?"

No, DOJ wrote that "The President's authorization of targeted electronic surveillance by the NSA is also consistent with the Foreign Intelligence Surveillance Act..." Incidentally, I disagree with that quoted statement. But, it seems to me that a later law (AUMF) modified the FISA.
12.23.2005 2:50pm
Greedy Clerk (mail):
Clinton's misconduct was more serious than Bush's conduct.

Credibility gone. And color me surprised -- I did not think anyone would say that (save for people like Hugh Hewitt and Hindrocket, i.e. blatant, unapologetic partisans who are unconcerned with maintaining intellectual honesty).

before a grand jury

A civil deposition my friend. And a grand jury, where the questions were about a civil deposition. Sort of attenuated there my friend.

12.23.2005 2:52pm
Andrew Hyman (mail) (www):
And a Supreme Court disbarment in consequence.
12.23.2005 2:56pm
Greedy Clerk (mail):
it seems to me that a later law (AUMF) modified the FISA

For those pushing this silly argument, I have a question: is there any law that even tangentially deals with security issues that was not modified by the AUMF in your view? Again, please explain the point of the PATRIOT Act if the AUMF is read in the manner suggested.

Note: while I find the inherent authority argument completely absurd (i.e., the inherent authority to disregard FISA -- not inherent authority in absence of FISA), I think the AUMF argument makes the inherent authority argument look like it was thought up by an eloquent genius of legal reasoning the likes of which we have not seen since Holmes.

In fact, I find the AUMF argument to be on par with the legal reasoning of Lionel T. Hutts' famous citation to the case of "Finders v. Keepers." But hey, if you want to push it, that's your bag not mine.

12.23.2005 2:56pm
Justin (mail):
Nunzio, your interpretation of the Krauthammer piece is absurd. The quote, once again:

Administration critics, political and media, charge that by ordering surveillance on communications of suspected al Qaeda agents in the United States, the president clearly violated the law. Some even suggest that Bush has thereby so trampled the Constitution that impeachment should now be considered. (Barbara Boxer, Jonathan Alter, John Dean and various luminaries of the left have already begun floating the idea.) The braying herds have already concluded, Tenet-like, that the president's actions were slam-dunk illegal. It takes a superior mix of partisanship, animus and ignorance to say that.


Does the president have the constitutional authority to conduct warrantless searches against suspected foreign agents in the United States? George Washington University law professor Orin Kerr (one critic calls him the man who "literally wrote the book on government seizure of electronic evidence") finds "pretty decent arguments" on both sides, but his own conclusion is that Bush's actions were "probably constitutional."

You think that this paragraph does not respond directly to the paragraph above it which uses the same language?
12.23.2005 2:57pm
Greedy Clerk (mail):
By the way, Mr. Hyman, who needs to have judges confirmed when we have a royal President willing to disregard statutes secretly based on his own truly unique and unprecedented interpretations of the Constitution and the amazingly broad AUMF. I mean, why bother with a "Confirm Them" campaign when we have a President -- who in your view can do no wrong -- and is willing to simply disregard legal rulings that are contrary to his own correct interpretations of the Constitution? You got what you want. You should put your energy not into a campaing to see his majesty's judicial appointments confirmed but into a campaign to: (a) repeal the 22nd amendment so his majesty will be reinstalled for numerous more terms; or (b) find a successor to his majesty who is as wise and knowledgeable of the great hallowed leader who can do no wrong ever.
12.23.2005 3:02pm
Andrew Hyman (mail) (www):
Greedy Clerk,

I have numerous other engagments now, and so will be signing off from this conversation, at least for the time being. I agree with you that Holmes was --- by and large --- an eloquent genius of legal reasoning. Amidst your insults, a question: "is there any law that even tangentially deals with security issues that was not modified by the AUMF in your view?" I am not aware of any law other than FISA that was modified by the AUMF, although it's conceivable that the AUMF and some earlier statute could come into conflict in the circumstances of a particular case. Why is it so extraordinary to suppose that a later statute (e.g. AUMF) modified an earlier statute (e.g. FISA)? That question was rhetorical.
12.23.2005 3:04pm
Andrew Hyman (mail) (www):
engagements :-)
12.23.2005 3:09pm
Greedy Clerk (mail):
And I believe that Ms. Jones's consent was requested.

Yes, pulling down one's pants is a form of requesting consent. The religious right -- of which that commenter is a member -- has very odd conceptions of sex lives.

12.23.2005 3:10pm
Anderson (mail) (www):
Greedy Clerk: I would promise to never comment here again if Kerr or Volokh requested it.

Jeez, GC, what are you trying to do, make ME the most obnoxious commenter here? I need the cover, pal!

Sigh. Gotta get off the PC and wrap some stuff. Merry Christmas to all, and may you enjoy a surveillance-free holiday (Santa's surveillance excluded---maybe that's in Article Eleven too!)
12.23.2005 3:10pm
Anderson (mail) (www):
Okay, just one more:

GC: Yes, pulling down one's pants is a form of requesting consent.

This reminds me of the wonderful note in Prosser's casebook on torts (9th ed. p. 57):
Thus, it is generally held that mere solicitation of a woman to illicit intercourse is not only not an assault but does not give rise to any other cause of action. Reed v. Maley, 115 Ky. 816, 74 S.W. 1079 (1903). "The view being, apparently, that there is no harm in asking." Magruder, Mental and Emotional Disturbance in the Law of Torts, 49 Harv. L. Rev. 1033, 1035 (1936).
12.23.2005 3:16pm
Marcus1:
This wasn't "selective quoting"; it was brazen misrepresentation. Anybody who reads that piece is going to think that Kerr justified the program. Krauthammer's column, and his use of Kerr, were both entirely fraudulent.

I've never liked George Will, but at least he's made clear recently that he has some integrity. Krauthammer clearly doesn't.
12.23.2005 3:20pm
Juan Notwithstanding the Volokh:
There is a problem of usage here. "Constitutional" in the sense it is correctly being used means "not prohibited by the constitution." It is wrong to imply that "constitutional" implies that the conduct is OK. It is misleading to use the word that way because many things we think are awful are not prohibited by the constitution. Murder, rape, and child molestation by private individuals are "constitutional" in that way, but they are certainly illegal and wrong.
12.23.2005 3:24pm
Nunzio (mail):
Justin,

I do think that paragraph responds directly to the one above as do the remaining paragraphs.

Two arguments:

(1) President violated the 4th Amendment. Answer, per Prof. Kerr, probably not based on case law that the constitutional authority from Article II to repel foreign invasions by conducting warrantless searches of foreign agents in U.S. is probably not restricted by the Fourth Amendment. (If the President doesn't have authority from Article II, then the search is automatically unreasonable and violates the 4th Amendment, as well as violates Article II). But the President does have the "constitutional authority" to repel foreign invasions unlike the LAPD who does not have this authority.

(2) President broke the FISA law. Answer, per Clinton administartion, FISA cannot restrict the President's inherent authority to repel foreign invasions by making illegal what is not unconstitutional (anymore than they can make legal what is unconstitutional). So the President didn't "violate the law" anymore than Mr. Johnson does by burning the American flag.

The "trampling on the Constitution" seems to suggest two things: (1) President violated the 4th Amendment rights; and (2) President ignored a Congressional law.

But if Prof. Kerr's tentative conclusion is correct, then (1) is out. And if the Clinton (and W. Bush view) is correct, then (2) is irrelevant. It's absurd to say that someone "violates the law" (even the President) when the law is unconstitional.

Certainly Krauthammer's column could be more explicit about this (as could the critics, who seem to say that Bush violated the law, even if the law is unconstitutiona), but there are space limitations.
12.23.2005 3:31pm
Defending the Indefensible:
If the President violated the law during the course of his administration (which can reasonably be thought true), and probable cause exists to believe that he violated the Constitution (which is at least arguable) then the matter should properly be before the House of Representatives acting in their capacity to weigh the matter and determine whether articles of impeachment (equivalent to a true bill of indictment) ought to be brought.

I do not believe that a credible argument exists that the House ought not at least to be considering impeachment.
12.23.2005 3:33pm
Defending the Indefensible:
It is important that we remember that an impeachment is not a conviction. Whether or not the President should be removed from office is not a matter for the House to determine.
12.23.2005 3:34pm
Nunzio (mail):
Juan Nothwithstanding the Volokh,

Constitutional with respect to the President and Congress (and the Courts) also means authorized by the Constitution. Here, the President is authorized to repel foreign invasions; Congress is authorized to pass laws necessary and proper to regulate commerce among the states and the Supreme Court is authorized to hear cases between two states.
12.23.2005 3:54pm
frankcross (mail):
Nunzio,

Where and when did Clinton say that FISA infringed upon the Article II inherent power of the Presidency? And where and when did Bush say it? My understanding is that the President's justification of the surveillance relied entirely on the AUMF and not at all on this inherent power.

Even assuming that the President has inherent C-in-C power to repel a foreign invasion, it does not follow that the President has unregulated power to take whatever action he deems necessary to prevent such a hypothesized invasion. Otherwise, there could be no challenge to assassinating you or anyone, based on a Presidential assertion that this was necessary to repel some future speculative invasion in which he believed you might be complicitous.
12.23.2005 3:59pm
Nunzio (mail):
Frankcross:

You're right about Bush admin not taking this position, but Clinton administration apparently did (according to news reports, including the Krauthammer piece). It seems Bush admin is going for the AUSA argument for PR reasons and maybe to avoid a constitutional issue.

I agree that the President doesn't have "unregulated power to take whatever action he deems necessary to prevent such a hypothesized invastion" if that action is unconstitutional, as your assasination example is (at least I hope it is, for me, at least). Prof. Kerr's tentative conclusion is that the President's action probably did not violate the 4th Amendment based on his assessment of case law and best guess.

I think maybe I've been unclear that the constitutional authority (the place the President has to point to justify his actions) means constitutional under Article II. In other words, the President (or executive branch) has absolutely no power to get a warrant based on probable cause that I'm cheating on my state income taxes because he has no Article II powers to enforce state law, even if he has probable cause to believe I'm cheating on my taxes.

Now just because the President maybe has the Article II powers doesn't mean he has to exercise it, which is a different argument. I think Krauthammer's point is that Congress can't make it illegal for him to exercise it, even if he should cooperate with them to avoid a showdown by changing the law to make it explicit instead of potentially relying on Art II and actually relying on AUSA.
12.23.2005 4:12pm
ross (mail):
Someone needs to read the constitution to me in a way I can understand.

Article I Section 8 says:

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

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

To provide and maintain a navy;

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

Now, as I understand it the NSA is part of the "land and naval forces." FISA rules were written by Congress as "regulation" of NSA.

If Congress passed a law that said the army could not use nuclear weapons, could fire only rubber bullets, or anything else regarding the conduct of our military, would that be something the President could ignore because of his C-i-C power?
12.23.2005 4:48pm
Wince and Nod (mail) (www):
George Gregg,

I believe that the neither President nor the NSA broke the FISA law, and I've been reading about it for days. If you've read the statute, including the definitions, you'd find there are loopholes you could drive a truck through. It would pathethically easy to design a program to do exactly what the President says is being done - monitoring - not surveillance, under the terms of the statute.

At the same time, revealing the details of the program in order to exonerate himself under FISA is itself against the law, and unwise to boot.

So please, consider Cass Sunstein, and give it up. You will not win. The details needed to prove your point aren't available, and shouldn't be.

Yours,
Wince
12.23.2005 5:24pm
Marcus1:
Nunzio,

>President violated the 4th Amendment. Answer, per Prof. Kerr, probably not based on case law that the constitutional authority from Article II to repel foreign invasions by conducting warrantless searches of foreign agents in U.S. is probably not restricted by the Fourth Amendment. <

Huh? Where did Kerr say that? You mean the border search exception? Kerr specifically said that the administration's claim of Article II power was unprecedented and unsupported by case law.

>Answer, per Clinton administartion, FISA cannot restrict the President's inherent authority to repel foreign invasions by making illegal what is not unconstitutional (anymore than they can make legal what is unconstitutional).<

Where did the Clinton administration say this? That's an incredibly broad and vague statement. You're saying the Clinton administration claimed Congress has no authority whatsoever to instruct the president in matters of national security?

Your "space limitations" claim seems pretty silly. Do you really think he was misleading on accident? You think he would have liked to have been more straight forward, but couldn't find the space?

This was an obvious attempt to factually mislead his readers, by mischaracterizing the argument against Bush (the primary charges have been that he violated a law, not that he violated the constitution [except to the extent he has a constitutional duty to uphold the law]), blatantly mischaracterizing Kerr's position, and blending together several different issues while glossing over obvious distinctions.
12.23.2005 5:33pm
Marcus1:
(Distinctions obvious to him and to us, but withheld from the average reader)
12.23.2005 5:35pm
Paul Virkler (mail):
Ross said
"If Congress passed a law that said the army could not use nuclear weapons, could fire only rubber bullets, or anything else regarding the conduct of our military, would that be something the President could ignore because of his C-i-C power?"
Remember Daschle was voted out of office because he fail to support the war effort. Any Congress that pass the above war would be voted out as quickly. On Septenber 14, 2001 do you really think that Congress would give less than traditional war power to C-in-C?
12.23.2005 6:27pm
Just an Observer:
Professor Kerr is also quoted in today's NYT: Little Help From Justices on Spy Program The Times story explains his views more accurately, I think.
12.23.2005 6:52pm
subpatre (mail):
Ross wrote: "If Congress passed a law that said the army could not use nuclear weapons, could fire only rubber bullets, or anything else regarding the conduct of our military, would that be something the President could ignore because of his C-i-C power?"

It'd depend on whether the law interferes with the President's ability to "preserve, protect and defend" (Art II Sect 1)
12.23.2005 9:13pm
Eugene Volokh (www):
Greedy Clerk: Please avoid casting personal aspersions on other commenters' sex lives.
12.23.2005 9:41pm
Evelyn Blaine:

If Congress passed a law that said the army could not use nuclear weapons ... would that be something the President could ignore because of his C-i-C power?

It'd depend on whether the law interferes with the President's ability to "preserve, protect and defend" (Art II Sect 1)


Yes, we've reached the logical limit of the commander-in-chief-clause-that-ate-Manhatten school of interpretation: one man has the intrinsic right to start a nuclear holocaust on his own authority, and nothing the people's elected representatives can do can deprive him of that authority. That position was seriously argued by some Reaganites back in the '80s in a roundtable discussion reprinted in Peter Raven-Hansen, ed., First Use of Nuclear Weapons under the Constitution: Who Decides? (New York, 1987). I have no doubt that John Yoo and Alberto Gonzalez would claim the same.

I have not the slightest compunction about saying that I consider advocating the Curtiss-Wright-Nixon-Yoo theory of Article II power to be eo ipso incompatible with meriting an office of profit or trust among a free people, and I should hope (although, sadly, I do not expect) that my Congressmen and Senators would refuse on principle to confirm any nominee who will not disown these ideas, and seek to impeach every officer who has given advice on the basis of such absurd claims.
12.23.2005 9:53pm
Medis:
Wince,

Of course, the Administration is not claiming they complied with FISA. And if the Boston Globe article is accurate, then they are almost certainly violating FISA.

subpatre,

I'm glad your vision of the ideal government was not written into the Constitution, and also lost in the Youngstown case--it has made our country much stronger than your envisioned country could ever have been.
12.23.2005 9:59pm
WA-mom (mail):
Krauthammer faults the Administration for not asking to have the FISA law changed. Maybe I've been watching too much TV, but I think they figured they would catch more bad guys if the bad guys thought such surveilance was against the law.
12.23.2005 10:08pm
Medis:
This seems like a good occasion to actually quote a bit at length from Jackson's concurrence in Youngstown. This is his conclusion:

"The essence of our free Government is 'leave to live by no man's leave, underneath the law' -- to be governed by those impersonal forces which we call law. Our Government is fashioned to fulfill this concept so far as humanly possible. The Executive, except for recommendation and veto, has no legislative power. The executive action we have here originates in the individual will of the President, and represents an exercise of authority without law. No one, perhaps not even the President, knows the limits of the power he may seek to exert in this instance, and the parties affected cannot learn the limit of their rights. We do not know today what powers over labor or property would be claimed to flow from Government possession if we should legalize it, what rights to compensation would be claimed or recognized, or on what contingency it would end. With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.

Such institutions may be destined to pass away. But it is the duty of the Court to be last, not first, to give them up."

And Jackson notes:

"We follow the judicial tradition instituted on a memorable Sunday in 1612 when King James took offense at the independence of his judges and, in rage, declared: 'Then I am to be under the law -- which it is treason to affirm.' Chief Justice Coke replied to his King: 'Thus, wrote Bracton, "The King ought not to be under any man, but he is under God and the Law."'"
12.23.2005 10:15pm
ficus:
Medis,

Of course the president is not above the law, but he is entitled to his own interpretation of the law is as it applies to the exercise of his duties: co-equal branches and all that. Perhaps he takes the view that Congress itself -- which is no more above the law than he is -- has exceeded its constitutional powers in passing FISA, and yet he is in a weak position to contest the point openly. It does not follow from that that he is bound by FISA; he, at least, should not think so.

Congress, of course, exercising its own judgment, may hold that he is so bound, and impeach him and remove him. But it is under no obligation to do that. And if the president's actions, taken as a whole, are reasonable, it probably won't. The respective powers of the two branches in regard to defense are not completely distinct in the constitution, and the overlap or friction is usually thought to be healthy.

The president's first obligation, in any case, is not to distinguish the powers exactly right, but to defend the country, and if doing that gets him impeached, it is still his duty.
12.23.2005 11:21pm
Medis:
ficus,

Well, if the issue is how to interpret the law, then that is ultimately the province of a third co-equal branch.

But I agree with you that if the President himself is resolute about violating the law, then the proper remedy would be impeachment and removal. And so that is indeed a matter for Congress ultimately, not the courts, and whether Congress would have the political will in this case is beyond my powers to predict.

Moreover, if the President had a defense to the effect that FISA was unconstitutional, then of course he would be entitled to present that defense during his trial in the Senate.
12.23.2005 11:36pm
ficus:
Medis,

An interesting question arises in relation to the judgment of FISA's constitutionality, prior to a trial before the senate. If Congress says yes and the president says no, who decides? You refer to the other branch, but in practice, how? We don't have in this country the tradition of referring questions like that to the judiciary for a binding opinion; all we have is "cases and controversies."

It is a little hard to see how a case addressing this point would come before the judiciary: who is going to sue? Who is going to prosecute someone? I suppose theoretically members of Congress could sue the president, but what chance would they have of getting a hearing on the merits? Would the judiciary feel itself bound to, or able to, referee an issue like this one? This is uncharted territory, isn't it?
12.24.2005 12:00am
Medis:
ficus,

I agree that the President could not become a party or a defendant for any of this in an Article III court, at least not while he was still in office. Of course, that does not rule out the possibility of someone else being subject to such a legal action, in which case the courts might have an opportunity to speak on this issue.

But assuming that does not happen, then it would ultimately be up to the House (for impeachment purposes) and the Senate (for trial purposes) to decide if the President had a valid constitutional defense.

Still, the Chief Justice does "preside" over a trial of the President in the Senate. I'm not sure about the history on this, but I would think the Senate could ask the Chief Justice for something equivalent to "jury instructions" without violating the Article III jurisdictional principle that rules out advisory opinions. To put the same point more technically, I would think that in such a case the Chief Justice is acting as an Article I, Section 3 judge, not an Article III judge.

But even then it would not be the co-equal branch I mentioned before interpreting the law, so in that sense your point is well taken.
12.24.2005 12:17am
Neal Lang (mail):
Violating the Foreign Intelligance Surveillance Act, and then getting caught and trying to justify it by reference to some of the most absurd interpretations of the constitution and federal law ever set forward by the executive branch -- no big deal.

Lying about an extramarital blow-job -- constitutional crisis and the second impeachment in American history.

Actually, the second impeachment is about the President of the US violating an Oath and commiting perjury. Rightfully, lying under oath is actually a "High crime", as America's entire justice system is based on the veracity of "sworn testimony".

As for the potential of impeaching President Bush for fulfilling his Article II Constitutional duty, this would make an interesting comparison to President Clinton's impeachment for violating an oath, as President Bush would arguably be being impeached for the upholding of his Presidential Oath, to wit:
Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: -- "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

This reminds me of the first impeachment of an American President, Andrew Johnson, who was impeached for fulfilling his Article II. duties, to wit:
Article II. Section 2.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

President Johnson, a Republican, was impeached by the Republican controlled Congress for violating a recently enacted law that restricted his Article II authority to choose his Cabinet. This is similar to how the FISA is restricting President Bush from fulfilling his Article II responsibility as Commander-in-Chief to successfully prosecute the War of Terror. In the case of the unconstitutional law on which President Johnson was impeached, the Tenure-of-Office Act, it had been enacted over the President's veto, on the grounds that it was unconstitutional. Interestingly, in 1926, the Supremes in Myers v. United States indeed found all such laws unconstitutional as they violated the the President's Artile II powers. Perhaps the Supremes may find the same of those provisions of the FISA that limit the President's authority to "preserve, protect and defend the Constitution of the United States" and keep his oath. In any evident, unlike impeaching a President for a true "high crime" such a jerjury, it is difficult to impeach a President for upholding his Oath of office and doing his duty as he sees it.
12.24.2005 3:13pm
Neal Lang (mail):
one man has the intrinsic right to start a nuclear holocaust on his own authority, and nothing the people's elected representatives can do can deprive him of that authority.

Actually, the President has used his Presidential power as Commander-in-Chief to use nuclear weapons before - twice. BTW, the President is the only "representative of the people", elected by vote of "all the People". You assume that the first use of nuclear weapons would automatically equate to a "nuclear holocaust". In fact, there many scenarios in which the use of nuclear weapons might actually prevent a "nuclear holocaust", such as taking out North Korean and Iranian nuclear weapons programs. The Framers of our Constitution knew that sometimes extreme measures must be taken in order to preserve the "public safety", which explains the powers of the President in time of war.
"The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. This power ought to be co-extensive with all the possible combinations of such circumstances; and ought to be under the direction of the same councils which are appointed to preside over the common defense." - Alexander Hamilton

Of course, the Congress could insure that nuclear weapons will never be used by the President. This would be in unilateral disarmament and not appropriating the funds necessary for the system that are capable of delivering nuclear weapons. Of course, such a policy in a World that has nuclear armed Chinese, North Koreans, Pakistanis, and soon Iranians, does not give any comfort.
12.24.2005 3:37pm
subpatre (mail):
Evelyn Blaine wrote: Yes, we've reached the logical limit of the commander-in-chief-clause-that-ate-Manhatten school of interpretation: one man has the intrinsic right to start a nuclear holocaust on his own authority, and nothing the people's elected representatives can do can deprive him of that authority. ....

It'd be interesting (though not here!) to see the explanation of how "starting a nuclear holocaust on their own authority" is the intrinsic right of a legislature. Since its inception, the nuclear trigger has been the prerogative of the people's elected executive, with continued Congressional assent.

I have not the slightest compunction about saying that I consider ..... refuse on principle to confirm any nominee who will not disown these ideas, and seek to impeach every officer who has given advice on the basis of such absurd claims.

Take a breath; the run-on sentence could surely use one. It appears you have issues with the United States form of government and the "separation of powers" concept, where each branch has a role.

"Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States." " --US Constitution, Art II Sect 1

Art II Sect 3 states the President "… shall take Care that the Laws be faithfully executed". Both an instruction and an admonition, it's not the blind, mindless submission Blaine advocates.

As long as the President's actions are reasonably in defense of the nation --the Executive's primary, most fundamental task-- the Courts have backed them; and judging by Orin's cites, will continue. They understand the government isn't a suicide pact, nor a blank license for unlimited executive Power; legislative options must be exhausted first and 'reasonable' has limits, just as it does in Amendment IV.

When justified the President may seize production resources; when it reaches too far, as in the too-often-cited Youngstown Sheet &Tube case, the Courts can restrict action. Those quoting Youngstown should be required to differentiate it from others in the history of wartime seizures.
Truman came from the corrupt Pendergast Machine, was a first-time VP elevated by the President's death, and the last President with no degree. He was the "one man who exercised the intrinsic right to use nuclear bombs on his own authority", sold Congress on the Marshall (European Recovery) Plan and it's Eastern equivalent, ended national price controls, unilaterally stopped Taiwan - China war by ordering the 7th fleet between them, implemented wage controls, defied the military, restricted the Korean war to the peninsula, fired Gen. MacArthur, and racially integrated the Services by Executive Order.
In short, Truman's Presidency was far more assertive executive than now. Central to current events is the Office, though believing the correctness and need for the steel companies' seizure, complied instantaneously with the Youngstown decision.

In Blaine's world, the Executive power is no different than a hireling, capable of only what the Legislature allows. The constitutional term "Commander in Chief" becomes an honorific for 'head manager' or "messenger-boy", relapsing to the disastrous legislative-commander model.

Taken to it's extreme, Blaine's executive power is only to "faithfully execute" laws, even if misspelled. IRS forms might be ridden in lame man's terms to fund wars where the Navy tosses death charges at some marines, and traders will be shot.

[Those believing the Executive must recommend changes to Congress rather than,use convoluted reasoning to avoid legal shortcoming, apparently forget the routine convoluted circumvention of the Constitution that Congress uses to keep the armed Services.]

One has only to look at the morning of September 11th 2001 as an illustration of the sheer lunacy in advocating the Legislative-Commander or weak Executive model; unless national paralysis is the true intent.

The "balance of powers" in our government has worked, is working, there's no evidence it won't continue, or that weakening the Executive will improve it.
12.24.2005 3:40pm
Neal Lang (mail):
As for violations of the FISA, why is President Bush's intercepts in international phone calls to/from terror related parties in the US a "high crime", while President Clinton warrantless search of Aldrich Ames' (an American citizen) house for incriminating evidence of espionage not?
12.24.2005 4:00pm
msmith (mail):
Found it interesting that Mr. Krauthammer writes:

.....George Washington University law professor Orin Kerr (one critic calls him the man who "literally wrote the book on government seizure of electronic evidence") finds "pretty decent arguments" on both sides....

Yet professor Kerr is forthright and writes:

...It's entirely possible that I goofed the analysis somewhere along the way; FISA, the AUMF, and Article II aren't my area of expertise, so we should consider this post a work in progress...

What critic hails professor Kerr as the man who "literally wrote the book on government siezure of electronic evidence"? Whatever that means. Mr. Krauthammer leaves us in the dark on that point in his rush to give Prof. Kerr's tentative thoughts more weight. We are left to wonder how an expert who wrote the book says FISA isn't his area of expertise and how Mr. Krauthammer missed that bit of Prof. Kerr's tentative analysis.

To be absolutely clear I make no criticism of Prof. Kerr's analysis. It is as good as any other given the fact that nobody on the outside including Mr. Krauthammer and myself really knows the scope of the surveillance at issue, what safeguards are involved in the review Mr. Bush says takes place every 45 days etc. etc.

I just thought Mr. Krauthammer's reference to the mysterious unnamed critic who claims, according to Krauthammer, that Prof. Kerr "wrote the book" says alot about the honesty and journalistic integrity of many of Mr. Bush's defenders. It's that very economy with the truth of many things that make some of us more suspicious than we would otherwise be on the surveillance and the claims of Bush and his supporters.

If Prof. Kerr has written "the book" on this kind of thing it would be odd for Prof. Kerr to freely admit that FISA is not his area of expertise.
12.26.2005 9:37pm