Fed Soc Discussion of NSA Surveillance:
Sorry we've been down for the last day or so -- we're gradually coming back up, but it may be a bit before we're fully functional. In the meantime, check out this interesting exchange on the legality of the NSA surveillance program between two Federalist Society members -- Bob Levy of Cato and David Rivkin of Baker & Hostetler. I think Levy is basically right and Rivkin is basically wrong; more on some of these issues later today, assuming that we come back on line. Thanks to Marty Lederman for the link.
I agree with you.
As for Levy/Rivkin, they should have stopped the fight after Rivkin's pathetic reply to Levy Q1:Let's put aside the sloppy use of language. (Plenty of warrantless searches -- consent searches, most obviously, don't trigger suppression.) And let's ignore the strict-constructionist argument -- long favored in certain conservative circles -- that there's no basis for the Fourth Amendment exclusionary rule.
No, what one truly marvels at is Rivkin's attempt to dismiss the Fourth Amendment as nothing but a rule of criminal procedure. Does he honestly expect anyone to buy his attempted implication that the Fourth Amendment doesn't apply absent an actual criminal prosecution? (Hint: Bivens.)
John Yoo, watch out, you've got a rival.
Here's a tidbit from Marty Lederman:Now, somebody explain to me how FISA doesn't apply in wartime?
"e) 'Foreign intelligence information' means—
(1) information that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against—
(A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power;
(B) sabotage or international terrorism by a foreign power or an agent of a foreign power; or
(C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power; or
(2) information with respect to a foreign power or foreign territory that relates to, and if concerning a United States person is necessary to—
(A) the national defense or the security of the United States; or
(B) the conduct of the foreign affairs of the United States."
So, for example, information relating to an actual 9/11-style attack by agents of Al Qaeda would be foreign intelligence information according to the definition in FISA. And that is exactly what the President claims he was trying to get with this surveillance program.
Has anything significant changed between the date of FISA's most recent amendment and today, in regard to the Great War on Terror?
We can only assume that the server was invaded by the Israeli military for Bernstein's release of their upcoming military plans? That appears to be the only thing missing.
Normally it doesn't matter very much whether a warrant requirement was statutory or Constitutional. But here it may, because it potentially changes the controversy from whether the President can ignore or override a statute based on his Article II powers, or whether he is violating the Bill of Rights, which presumably takes precedence, given the timing of the enactment of Article II and Amdt. IV. The former is somewhat a balancing test (because it is a separation of powers issue), whereas the second is probably less so, as it is a limitation of power issue.
So, then, the question arises, can Congress expand, in this case, the 4th Amdt. through statute so that the President's actions are unconstitutional, but where, absent the statute, they wouldn't be. And that is, I will suggest, debatable. The obvious counter argument is that the route to broadening amendments, and thus the Constitution, is through further amendments.
Revelations 6:12-14 (as amended) I watched as he opened the sixth seal. There was a great earthquake and Armando of the Kos made daily did speaketh the words showing concord with someone from Volokh Conspiracy on a point.
The sun turned black like sackcloth made of goat hair, the whole moon turned blood red, 13and the stars in the sky fell to earth, as late figs drop from a fig tree when shaken by a strong wind. 14The sky receded like a scroll, rolling up, and every mountain and island was removed from its place.
The reason he kinda has to make that concession -- which is the same reason I don't quite understand what point you're making, Bruce -- is the Supreme Court's landmark decisions in Katz and Berger. There's not much room these days to argue plausibly, as I think you're trying to do, that the Fourth Amendment doesn't apply to electronic eavesdropping.
Mind you, there's a pretty decent body of case law holding that electronic eavesdropping on radio communications -- those transmitted in the clear, at any rate -- violates no reasonable expectation of privacy. If that's where you're going, I think it would behoove you to use more precise terms.
Presumably, Rivkin will be given a chance to actually state something, rather than do a cross (i.e., have his own 'deposition') and we'll see the basis for whatever point he may have. I won't assume he has a point of view from this, and, in fact, am tempted to believe he was tossing softballs to Levy in the hopes that he would provide those precise answers.
Also, I think it becomes a bit confusing when Levy ends by stating that, to the extent FISA would encroach on the Article II power, it would be void. Similarly, he states that FISA and the PATRIOT act were made to, in my reading, extend the "limited" power of the executive to allow for evidence obtained under that power to admitted into evidence. To me, the retroactive provision perfectly exemplifies this underlying justification for the enactment of FISA or PATRIOT act.
When asked if the president does have the inherent authority to conduct warrantless surveillance, Levy agrees that he does, BUT, limits it to al-qaeda (presumably as example of foreign agent). To me, regardless of FISA, and pre-FISA, as Youngstown would have us believe, the power is limited, but by Article II itself. That is, to the extent it is for national security.
Second, for all the citations Levy makes, he makes none for what I believe is the most important assertion, that Congress could, in its wont, restrict a power given under Article II. I think we're all in agreement that Congress cannot legislate that the Supreme Court no longer has jurisdiction over constitutional issues. We are also in agreement that Congress cannot a) appoint or fire executive branch members (except the advice/consent issue, in the const.) b) change the extent of the control over the military that the executive has, and c) is actually thus limited to changing the scope and budget of the military itself, not of the power of the executive over that branch. How then, could congress legislate that an act which is an inherent power given under article II be illegal?
Concerning Rivkin, I think his statement that Fourth Amendment concerns are not "alive" absent a criminal proceeding ignores 1983 and its progeny. However, as with all such civil suits, a judge would ask for damages to be shown.
I'm pretty sure that "papers" covers private electronic communications in the same sense that "press" covers broadcast electronic communications.
Jutblogger,
I, for one, was critically evaluating Rivkin's answers to Levy's questions. I take it those count as Rivkin actually stating his own views.
It was also Rivkin, not Levy, who made the Article II argument (Levy asked if it was a view Rivkin supported, but I didn't take Levy himself to be endorsing that view).
Finally, the idea that FISA as amended by the USA-PATRIOT Act is solely about obtaining evidence for criminal prosecutions is contradicted by the plain terms of FISA, including the definition of "foreign intelligence information" I quoted above.
To put this all together, Rivkin concludes his last answer to Levy with:
"However, even if one assumes that Congress has done something to prevent the President from using warrantless electronic surveillance techniques to gather intelligence about Al Qaeda and affiliated entities, such an effort would trench upon the President's core constitutional authority and would, therefore, be null and void."
I don't see how one avoids triggering the conditional clause in this proposition--Congress plainly has regulated using electronic surveillance within the meaning of FISA with respect to gathering intelligence about Al Qaeda. So, I think the Administration ultimately cannot avoid relying on the Article II argument--and as I read both the Constitution and Youngstown, that Article II argument has very little to stand on other than some people's sense of how the government ought to be run (regardless of what the law might say).
First, I note that you already saw that Rivkin was answering questions--I apologize for the cross-post.
Anyway, I think the problem is with your propositions (b) and (c). (b) is true to the extent that by "control" you mean "military command," because the Constitution certainly puts the President in command of the armed forces. But military command only implies the ability to issue lawful orders--it does not allow the commander in question to issue whatever orders he would will. Indeed, that is why there is no conflict between the President's role as commander in chief and his duty to faithfully execute the laws--there can be no conflict because his CinC role does not authorize him to issue unlawful orders.
Your (c) is overly restricted because it ignores all the other various powers Congress specifically has under Article 1, Section 8 with respect to the military (which go well beyond just the budget). It also ignores Congress's lawmaking power under the Necessary and Proper Clause, which extends not just to its own powers, but also to all powers of the United States government and its officers, including the President.
The proper question, then, is whether under its enumerated powers and/or the NPC, Congress had the authority to pass a certain law regulating the military. If it did have that authority, then there is no actual Article II issue, because the President simply has no authority as Commander in Chief to issue unlawful orders.
That indeed is simply what Justice Jackson pointed out in Youngstown: the extent of the President's constitutional power to conduct war is defined by his power as Commander in Chief MINUS whatever constitutional powers Congress has exercised to regulate war, not the other way around. So, you can't define an exercise of Congress's authority over war as unconstitutional merely because it restricts the President's ability to do what he would will with the military in some way--rather, it is only unconstitutional if it does not arise under Article I at all.
A simple analysis of the two sides of the debate seems to sway on the perception of the WOT being a law enforcement action or military action, with no reality based attempts to deal with the overlapping construct introduced by the terrorism factor. The overlap should be readily apparent between evidence for a criminal court and intelligence gathering to fight a war. The act of terrorism, or planning such acts, is a criminal act, in and of itself, so any intelligence gathered to prevent an act, the military aspect, requires the intelligence be used in court, the criminal aspect, to prevent such acts. It borders on the insane, if not lack of common sense, to not recognize the necessary realities addressing terrorism entails. To not do so, is to return to a pre-9/11 mindset which will endanger the citizens and this country.
If we are to try to ascertain legality in fighting the WOT from a law enforcement point of view, instead of militarily, we will fail. Law enforcement is a reactionary / after the fact approach, nothing is done until after the act has occurred, it is not prevention. It is this very approach that terrorist leaders count on and use against us.
On a different, but related note, I would like Prof. Kerr's opinion of this Opinion Journal article by Prof. Robert F. Turner, of the Center for National Security Law at the University of Virginia School of Law, it is a different and interesting constitutional analysis. It raises a point that seems to allege that the FISA Court, and FISA itself, are extra-constitutional, if not unconstitutional. I do not believe the FISA Court has ever been brought before the Supreme Court as a violation of the separation of powers.
The more I read, the more I believe this is going to end up before the Supreme Court, not as a violation issue, but as a separation of powers issue. He lays down the historical case from the Founders' perspective as well as citing case precedent (Keith, Truong, 2002 FISA Review Court ruling), most we have all heard before, with the exception of his challenge to FISA's constitutionality on its face, as a direct attempt by Congress to usurp executive branch authority and give it to the judicial branch. (being new to Volokh, I apologize ahead of time if the procedure is to only provide a link to the article.)
==========================
FISA vs. the Constitution
Congress can't usurp the president's power to spy on America's enemies.
BY ROBERT F. TURNER
Wednesday, December 28, 2005
In the continuing saga of the surveillance "scandal," with some congressional Democrats denouncing President Bush as a lawbreaker and even suggesting that impeachment hearings may be in order, it is important to step back and put things in historical context. First of all, the Founding Fathers knew from experience that Congress could not keep secrets. In 1776, Benjamin Franklin and his four colleagues on the Committee of Secret Correspondence unanimously concluded that they could not tell the Continental Congress about covert assistance being provided by France to the American Revolution, because "we find by fatal experience that Congress consists of too many members to keep secrets."
When the Constitution was being ratified, John Jay--America's most experienced diplomat and George Washington's first choice to be secretary of state--wrote in Federalist No. 64 that there would be cases in which "the most useful intelligence" may be obtained if foreign sources could be "relieved from apprehensions of discovery," and noted there were many "who would rely on the secrecy of the president, but who would not confide in that of the Senate." He then praised the new Constitution for so distributing foreign-affairs powers that the president would be able "to manage the business of intelligence in such manner as prudence may suggest."
In 1790, when the first session of the First Congress appropriated money for foreign intercourse, the statute expressly required that the president "account specifically for all such expenditures of the said money as in his judgment may be made public, and also for the amount of such expenditures as he may think it advisable not to specify." They made no demand that President Washington share intelligence secrets with them. And in 1818, when a dispute arose over a reported diplomatic mission to South America, the legendary Henry Clay told his House colleagues that if the mission had been provided for from the president's contingent fund, it would not be "a proper subject for inquiry" by Congress.
For nearly 200 years it was understood by all three branches that intelligence collection--especially in wartime--was an exclusive presidential prerogative vested in the president by Article II, Section 1 of the Constitution. Washington, Madison, Jefferson, Hamilton, John Marshall and many others recognized that the grant of "executive power" to the president included control over intelligence gathering. It was not by chance that there was no provision for congressional oversight of intelligence matters in the National Security Act of 1947.
Space does not permit a discussion here of the congressional lawbreaking that took place in the wake of the Vietnam War. It is enough to observe that the Constitution is the highest law of the land, and when Congress attempts to usurp powers granted to the president, its members betray their oath of office. In certain cases, such as the War Powers Resolution and the Foreign Intelligence Surveillance Act, it might well have crossed that line.
Keep in mind that while the Carter administration asked Congress to enact the FISA statute in 1978, Attorney General Griffin Bell emphasized that the law "does not take away the power of the president under the Constitution." And in 1994, when the Clinton administration invited Congress to expand FISA to cover physical as well as electronic searches, the associate attorney general testified: "Our seeking legislation in no way should suggest that we do not believe we have inherent authority" under the Constitution. "We do," she concluded.
I'm not saying that what the president authorized was unquestionably lawful. The Supreme Court in the 1972 "Keith case" held that a warrant was required for national security wiretaps involving purely domestic targets, but expressly distinguished the case from one involving wiretapping "foreign powers" or their agents in this country. In the 1980 Truong case, the Fourth U.S. Circuit Court of Appeals upheld the warrantless surveillance of a foreign power, its agent or collaborators (including U.S. citizens) when the "primary purpose" of the intercepts was for "foreign intelligence" rather than law enforcement purposes. Every court of appeals that has considered the issue has upheld an inherent presidential power to conduct warrantless foreign intelligence searches; and in 2002 the U.S. Foreign Intelligence Surveillance Court of Review, created by the FISA statute, accepted that "the president does have that authority" and noted "FISA could not encroach on the president's constitutional power."
For constitutional purposes, the joint resolution passed with but a single dissenting vote by Congress on Sept. 14, 2001, was the equivalent of a formal declaration of war. The Supreme Court held in 1800 (Bas v. Tingy), and again in 1801 (Talbot v. Seamen), that Congress could formally authorize war by joint resolution without passing a formal declaration of war; and in the post-U.N. Charter era no state has issued a formal declaration of war. Such declarations, in fact, have become as much an anachronism as the power of Congress to issue letters of marque and reprisal (outlawed by treaty in 1856). Formal declarations were historically only required when a state was initiating an aggressive war, which today is unlawful.
Section 1811 of the FISA statute recognizes that during a period of authorized war the president must have some authority to engage in electronic surveillance "without a court order." The question is whether Congress had the power to limit such authorizations to a 15-day period, which I think highly doubtful. It would be akin to Congress telling the president during wartime that he could attack a particular enemy stronghold for a maximum of 15 days.
America is at war with a dangerous enemy. Since 9/11, the president, our intelligence services and our military forces have done a truly extraordinary job--taking the war to our enemies and keeping them from conducting a single attack within this country (so far). But we are still very much at risk, and those who seek partisan political advantage by portraying efforts to monitor communications between suspected foreign terrorists and (often unknown) Americans as being akin to Nixon's "enemies lists" are serving neither their party nor their country. The leakers of this sensitive national security activity and their Capitol Hill supporters seem determined to guarantee al Qaeda a secure communications channel into this country so long as they remember to include one sympathetic permanent resident alien not previously identified by NSA or the FBI as a foreign agent on their distribution list.
Ultimately, as the courts have noted, the test is whether the legitimate government interest involved--in this instance, discovering and preventing new terrorist attacks that may endanger tens of thousands of American lives--outweighs the privacy interests of individuals who are communicating with al Qaeda terrorists. And just as those of us who fly on airplanes have accepted intrusive government searches of our luggage and person without the slightest showing of probable cause, those of us who communicate (knowingly or otherwise) with foreign terrorists will have to accept the fact that Uncle Sam may be listening.
Our Constitution is the supreme law, and it cannot be amended by a simple statute like the FISA law. Every modern president and every court of appeals that has considered this issue has upheld the independent power of the president to collect foreign intelligence without a warrant. The Supreme Court may ultimately clarify the competing claims; but until then, the president is right to continue monitoring the communications of our nation's declared enemies, even when they elect to communicate with people within our country.
FISA vs. the Constitution
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Apparently "Armando" agrees with Kerr and Levy, judging by the first comment in this thread. Or perhaps Armando did not realize that he was saying something in support of the Bush Administartion.
If Bush's conduct violated the Fourth (ignoring FISA), the only way I could see that being so would be that the Executive cannot be the sole arbiter of what is "reasonable."
I think your main point about the inability to issue an unlawful order is, of course, correct. The question I think the courts will soon be answering is whether Congress' act here attempted to restrict a power that is given in the articles, not just issue an order of regulation. I think we will, indeed, be facing the analogy of Congress encacting a statute that says the S. Ct. can't hear constitutional cases. Of course congress has the right to set forth a statute which affects the procedure of a constitutional claim, or whether or not someone has standing to bring a constitutional claim, but, even that law would have to face supreme court scrutiny as to its validity.
thus, if congress attempted to regulate the scenarios in which an executive could exercise powers enumerated under article II, there is an argument, as that opinion journal piece points out, that the act is void as to that attempt (i.e., it's criminal to conduct a warrantless act of surveillance, even if for national security).
Listen up!
Congress has the power to step on the Presidents throat. Just ONE!!! member has to offer a bill. See? It is sooo simple!
But?! Not a single member of congress is willing to lose their cushy job by creating a record of their beliefs, that would condem them to defeat in the next election.
Unfortunately, I think Turner's article continues to make a common mistake: that a law regulating the conduct of war in any way takes power away from the President. That is a mistake precisely because of the reason we have frequently discussed: being a military commander in no way implies the authority to issue unlawful orders.
Indeed, I think Turner would need to grapple with a whole different history: the history of the Articles of War, now the UCMJ. These are laws passed by Congress which restrict the sorts of orders military commanders could issue. Would Turner think the President, unlike all his generals and admirals, could order military personnel to violate the Articles of War/UCMJ?
Incidentally, the comparison between FISA's 15-day limit and a 15-day limit on attacking a particular target is indeed illuminating, but not in the way Turner suggests. That is much like the difference between a criminal law specifying a particular punishment for certain crimes and a bill of attainder specifying a particular punishment for a particular crime. Only the former is truly a legislative act, because only the former creates a law of general applicability, as opposed to imposing a particular result in particular circumstances.
And FISA, of course, is a law of general applicability, not an attempt to actually direct the operations of the NSA in any particular way. And that is why it does not somehow improperly interfere with the President's role as CinC, just as the UCMJ does not.
How does FISA expand the 4th amendment? By dealing with the same topic? Are you saying that Congress can't legislate on topics addressed in the Constitution?
I'm somewhat perplexed by this view floating around that the executive can never be told what to do by the legislative branch. You really seem to believe we have a king. Or at least you think it is an "open question."
The executive executes the laws. He doesn't simply decide what to do willy nilly. Yes, we say he has some independent power as "commander in chief" (of the military). But that doesn't make him king! His primary role is still as the executive branch, which means he executes the laws. That means Congress tells him what to do.
Just because you can come up with an argument for something doesn't mean it's an "open question." I could argue all day about whether I was rightfully given a particular speeding or parking ticket. But you know what? If a judge decides I broke the law, I get the punishment, whether I paint it as an open question or not. It seems pretty darned clear here that Bush broke the law.
My objections are not based on the 4th Amendment.
They are based on Article 1, Section 8 of the Constitution.
I repeat, I agree with Professor Kerr.
A.S., don't keep your wisdom to yourself! Enlighten us!
Corngrower, incidentally, points to how pathetic it is that Bush didn't go to Congress and demand the powers he sought. Who would've run in 2002 as the senator or congressman who wanted to help the terrorists?
I think we err if we try to equate FISA with the UCMJ, in applicability as well as action. The UCMJ is the conduct code that applies to military action and the military community ONLY, and, as CinC, applies to his conduct of military affairs. FISA is not a military construct, but a domestic legal apparatus that deals with civillians. The Constitution clearly absolves the judicial branch of any role in the conduct of foreign affairs, including war. Granted, Justice Kennedy has started crossing that line when he invokes international law in his decisions, but that is another issue altogether. As I have said, we engage in a back and forth in a case that presents a new area, each side can make claims that this case or that case supports their position. In the end, I think Prof. Turner correctly assesses the situation:
"The Supreme Court may ultimately clarify the competing claims; but until then, the president is right to continue monitoring the communications of our nation's declared enemies, even when they elect to communicate with people within our country."
What we engage in here is an intellectual exercise of legal prognostication, to which none of us knows the actual answer or outcome.
That would be true of every legal issue worth discussing, wouldn't it? My clients don't come to me saying, "everyone knows the law on this, but we want to pay you to restate it for us."
Would Prof. Turner also say "The President is right to continue searching the homes of those who communicate with our enemies"? That would get a high poll rating I'm sure, and would equally miss the point: should the President carry on such activities legally, or illegally?
This cheap flag-waving does no credit to the wavers.
however, i think KMAJ is correct to the point of saying: noone here can say Sealed Case is wrong; Bush has the right; Bush is impeachable on this. . . with any authority. The issue simply has not been litigated in this manner, and well educated, reasonable legal minds differ greatly on the issue. Having clerked in federal appeals court, and having argued federal appeals, my instinct tells me it will be decided in favor of Bush and the criminalization provision will be stricken or modified or considered inapplicable (as a matter of the leanings of the courts and their interpretations of government/executive actions).
...then there is no actual Article II issue, because the President simply has no authority as Commander in Chief to issue unlawful orders.
I think the administration claim is that because of Article II, no order the Commander-in-Chief issues can be unlawful because it violates a mere statute. Unlike subordinate commanders, the C-in-C is granted powers by the Constitution which can only be curtailed through the Constitution... which hasn't been done.
Basically, they're claiming he has a license to steal, and they may be right.
The fact is, you don't know who you are going to get when you monitor a phone. Cell phones, in particular, are subject to a type of fraud called cloning, where the cell phone characteristics are copied into another device. Someone can then make illegal calls, charging them to the original number. And what is the most common use for that fraud? Selling international minutes at very cheap rates to immigrants. So if you were an Al Queada operative who wanted some very hard to trace international minutes, would you buy some cloned phone minutes from your local hustler? Would you clone phones yourself?
It really seems to me that there is such a large amount of latitude under FISA that it would be easy to design an NSA monitoring program emphasizing the strengths of the NSA, which are signal intelligence, not criminal investigation and probable cause. The NSA are spooks, not cops, and the FISA appears to be designed to allow spooks to be spooks and cops to be cops, and to allow the courts to distinguish between the two.
Yours,
Wince
You misunderstand the assertion and make a false analogy. Certainly, every legal issue worth disussing has no definitive outcome, if it was decided, what is the point in discussing it other than a further understanding of the legal underpinnings.
Your clients come to you for representation of their legal standing on an issue of contention, criminal or civil. I would assume that you assess the difficulty of a case a client brings to you in your decision to take it or not. I would also assume you advise your client of your assessment of their likelihood of success in getting a favorable decision.
I would contend that it is your use of a pejorative in your closing line that cheapens the debate and reveals your partisan perspective, which you are entitled to.
This does seem to be the logical implication of Bush's claim that his "inherent" Article II powers are pre-eminent. But notably, the official administration position -- as stated in the DOJ's Dec. 22 letter and from the White House podium -- has stopped short of making this assertion explicitly.
Similarly, regarding legislative interpretation of how to read FISA and AUMF together, the administration has remained silent on the question of how to interpret Section 1811 of FISA. That section specifies the 15-day window allowing warrantless surveillance after war is declared. I have seen surrogate advocates for Bush, but no one representing the administration officially, opine about this point.
Thanks for the clarification. Even if one believes that Congress has power under Article I, Section 8 to prevent the NSA from doing what the NSA has apparently done, the big question in my mind is whether or not Congress has really used that power. The Justice Department asserts that Congress has not used that power, because the AUMF is an "other statute" within the meaning of FISA. Personally, I don't find that rationale persuasive. But, I do tend to agree with the Justice Department's conclusion; if Congress wanted to ensure that the NSA would not do what the NSA has done, then Congress could have simply omitted the last five words of the AUMF.
I'm still looking forward to hearing Professor Kerr's opinion about the last five words of the AUMF. Why would Congress have said that nothing in the AUMF would supercede any other requirement, and then add "of the War Powers Resolution"?
What about the UCMJ? The constitution clearly says it is Congress power to regulate war rules.
It may be the Presidents's power to decide the special issues. But there is a distinction.
Otherwise, you are in Carl Schmitt territory.
I think they haven't taken that stance or discussed those issues because they are not in court, and don't want to lock themselves in to any particular argument. when the briefs are filed, i'm sure they'll be humongous, and cite every case in the world that may have a bearing on the issue (like an admiralty lawyer would). but they don't need to, yet.
Well, FISA deals with all persons, including all employees of the federal government, so I think it is wrong to say it is purely civilian. And if Congress simultaneously makes something a crime for both civilians in government and military personnel, then I think the UCMJ parallel continues to apply insofar as that law is applied to the military, or civilians in the DOD.
You also say, "The Constitution clearly absolves the judicial branch of any role in the conduct of foreign affairs, including war." I'm not sure why you think that is the case. Article III courts have jurisdiction to hear cases involving foreign affairs in all sorts of ways. Indeed, Article III, Section 2 specifically mentions cases arising under treaties, cases involving ambassadors, and cases in which foreign subjects or states are a party. More specifically, the Supreme Court hears appeals from the military courts of appeals.
So, the idea that Article III courts (if that is what the FISC is ... I'm actually not sure about that) would have a role to play in a military context is not per se unconstitutional. Of course, it would have to be a judicial role--but the issuing of warrants is a very traditional judicial role.
Suppose a future President determined that this country's ability to fight the War on Terror was impinged because the pool of young adults eligible for military enlistment is being dangerously depleted by gunshot injuries and deaths inflicted in urban domestic disputes. Would Article II authorize the President under such circumstances to order military personnel to conduct a house to house sweep to confiscate American citizens' firearms?
Assume that the greatest number of terrorists (at least those not named McVeigh) and terrorist sympathisers within this country are of Arabian ancestry. Does the President have the authority as Commander in Chief to order the relocation of American citizens of Arab extraction to internment camps?
Why or why not?
Because FISA is unconstitutional and its most recent amendment did not cure its unconstitutionality.
The problem for that view is that the Constitution actually says nothing of the sort (that the CinC, unlike all other military commanders, is not subject to military law). In general, this was another issue well-discussed by Justice Jackson: people who talk about things like the President's "Commander in Chief powers" are talking pretty loosely, because the Constitution does not actually say the President has any special powers as Commander in Chief. It just says he will be commander in chief of both the army and navy--which on a plain text reading does nothing more than put him into a position of command.
Wince,
Obviously, the NSA can do lots of things not covered by FISA, and has done so frequently in the past. But the sources in the newspapers have claimed that the NSA is now doing things covered by FISA, and the Administration has not contradicted those claims. So, I think it is very unlikely at this point that they actually did limit their activities to surveillance outside the scope of FISA--indeed, one would think that would have been their first claim on this issue if it was true.
All that is true, as far as it goes. But this issue seems unlikely ever to get into court.
Meanwhile, here in the court of public opinion, it is worth remembering which arguments advanced by surrogates in support of the administration have actually been embraced by the administration, which doctrines remain officially vague, and which arguments against it have gone officially unrebutted.
I would not characterize my raising the issue a 'bold assertion', instead, I would describe it as a pertinent question. This issue has not been brought before the Supreme Court. I do raise the questions of:
What is the judicial branches role in the conduct of war, especially in the context of intelligence gathering necessary to fight that war ?
How do the different paradigms presented by the War on Terror change the judicial equation ?
As many have stated, this is a vastly different kind of conflict because of the fact that there is no foreign country or government that is the central enemy. We have no USSR as in the Cold War or a Germany, Italy and Japan as in WWII. This is a borderless conflict which can and does exist within our own borders. As such, the legal constructs that existed in previous wars do not adequately address this new paradigm and require new analysis.
See Article III of the Constitution. A hypothetical is neither a case nor controversy.
the NYtimes reported recently that defense counsel to several alleged al qaeda operatives intended to challenge evidence and myriad other issues based on this report. so i think we have people with standing who can raise the issue.
Much as we might wish otherwise, the Volokh commentators do not constitute an Article III court.
I read the NYT story, which said several defense lawyers were planning to try this tactic. The story added that there were many problems, both legal and factual, that could prevent them from raising the issue successfully.
I am doubtful.
I'm not sure I understand your concern about the involvement of the judicial branch. Are you referring to the fact that the FISC must issue the warrants under FISA? That seems to me to be a very traditional exercise of judicial power (not executive nor legislative). And it obviously arises under federal law (FISA). So I don't see a jurisdictional issue here.
I'm sure that visitors from galaxies with non-terrestrial grammars can impose alternative readings, though.
If Hamdi holds, then the DOJ's argument that the AUFA implicitly repeals FISA is probably a winner. Rivkin's big mistake is that he relies on the steel seizure case and doesn't address Hamdi, which is much more on point here because it concers the WOT and not the Korean War. If under the AUFA, the executive can detain U.S. citizens without a trial even though Congress has not suspended the writ of habeas corpus, then I don't see how this domestic spying doesn't fly as well.
Of course, Hamdi was wrongly decided.
Hamdi was an astonishing holding, and I think
Not necessarily. There has been nothing revealed so far about the NSA program that has not been previously revealed, yet there are very likely, judging from the way informed people carefully phrase things, some unrevealed technological secrets.
One now obsolete such item would have been the United States program during the Cold War in which submarines placed devices on the sea floor that intercepted soviet fleet orders carried by submarine cable. That would have made those interceptions "outside the United States", but the fact that we had the capability was obviously extremely secret. Had FISA been the law then, I doubt anyone would have said that the intercepts occurred outside the US and thus were legal even if they intercepted US person conversations.
I strongly suspect that there is at least one, and possibly several similar secret technological facts, present in the current program.
Mea culpa in my blanket generalization of FISA being 'civillian'. But I still hold that FISA and UCMJ are not analogous. That does not mean there are not overlaps, just as there are civillian and military positions within the DOD, the UCMJ does not apply in the same way to both. The military personnel, upon enlistment, cede some of their Constitutional rights.
I may not have clearly expressed the judicial role in foreign affairs, the judicial role is not in the dictating of policy, but in after the fact reaction and ruling. The judiciary cannot propose treaties, negotiate with foreign governments or declare war, that was the essence of my 'absolve' statement.
You always manage to miss the point. Frankly, I think your inability to grant reasonable inferences of conventionally used words within a blog-community of intelligent and reasonabe interpreters speaks to your credibility within that blog-community.
The point is quite obvious. Criticiquing the position of someone who supports the status quo by posing improbable "perfect storm" hypotheticals makes little sense when discussing the realistic impact of court decisions rendered within a system that eschews entertaining hypotheticals. Someone supporting the status quo has no idea what the court will do next and no idea what cases will come before the court. But one can realistically assess what the present legal landscape is and what existing precedents now mean. The inability to prognosticate or extend the logic of a precedent to cover every single conceptually possible case is tiresome and foolish. Not every single conceptually possible case will arise, and legal logic need not pass the test of Bertrand Russell.
You should confine your arguments to meet the realities of the situation, not confabulate about Martians and improbable scenarios that distort the facts and the issues as reasonably understood.
What were they smoking?
I bet dollars to donuts, despite the huge urgency of 9/11 that Bush did not have a proposal on his desk to approve, or to submit to Congress, with 15 days.
We know, I think, that his executive order did not come till November. There would have to be a "What can we do?" filtered down, a bunch of committee meetings and research, and a "Well we have thse options" filtered back up, a decision, and execution of that decision, presumably by writing program code as wel as other things. In 15 days? Hah.
Except that in Hamdi, nothing had to be "implicitly repealed." That is a very serious problem with the Administration's argument: here there is not just the question of whether the 2001 AUMF implicitly provided statutory authorization in the absence of contrary law, but rather whether it implicitly repealed the "exclusive means" language in 18 USC 2511. And the burden for implict repeal is much higher than anything considered in Hamdi.
John L.,
But that's the thing--they would not necessarily have to explain WHY the surveillance was outside the scope of FISA. But they could at least make that claim even if they provided no supporting details whatsoever.
But they have not even made the claim.
Ah, but have you checked Article XI?
You said: Obviously, the NSA can do lots of things not covered by FISA, and has done so frequently in the past. But the sources in the newspapers have claimed that the NSA is now doing things covered by FISA, and the Administration has not contradicted those claims. So, I think it is very unlikely at this point that they actually did limit their activities to surveillance outside the scope of FISA—indeed, one would think that would have been their first claim on this issue if it was true.
Actually the Administration has contradicted those claims, adamantly and repeatedly. They have not made the argument I am making in public but that does not mean they are avoiding it in private, when discussing matters with those who have proper security clearances on, for example, the Intelligence commitees or the FISC. To do so might reveal classified information, whereas the broader claims they are making in public do not.
Yours,
Wince
"But that's the thing--they would not necessarily have to explain WHY the surveillance was outside the scope of FISA. But they could at least make that claim even if they provided no supporting details whatsoever. "
Put it back in my cold war example.
"But Comrade Admiral, the Americans say the interceptions are legal, and they could only be legal if outside the US."
"Impossible. All of the signals are carried on our submarine cable.!"
"Unless, Comrade Admiral..."
To the extent that Hamdi is relevant, so is the corresponding principle it articulated:
So those who look to Hamdi to find sustenance for a claim of unilateral Article II powers may be disappointed.
I was, of course, making a joke. But in any event, I think the nature of law is such that proposed rules of law can and should be tested with hypotheticals. And that is because laws are supposed to have universal applicability (for a number of important reasons, both practical and moral). Moreover, even if you think that using hypotheticals in legal reasoning is an unwise practice, it is part of the American legal tradition--it occurs in classrooms, briefs, courts, legislative hearings, and on and on. So I doubt you will have much luck turning back that tide.
Are you referring to the fact that the FISC must issue the warrants under FISA? That seems to me to be a very traditional exercise of judicial power (not executive nor legislative). And it obviously arises under federal law (FISA). So I don't see a jurisdictional issue here.
My concern is that it is not traditional when it comes to the prosecution of a war, and that FISA and FISC may have become bureaucratic judicial anachronisms created within paradigms that are not relevant, and present a hindrance in the ability to wage a successful campaign in the current conflict. We are trying to use a system created due to abuse of domestic surveillance by LBJ and Nixon, and apply it to the current conflict. The technological advancements since FISA was enacted are not adequately addressed in the FISA structure.
I do not pretend to have the right answers or balance in weighing liberty versus life/security. The insertion of the destruction and death that can be caused by modern weaponry has to have altered the equation. That is something the Founders could not have even conceived of. To what degree that changes the debate is yet to be answered by society as a whole.
But your hypothetical depends on there being only one way in which surveillance outside the scope of FISA could be conducted. And that is clearly not true in this case, as Wince points out. (And probably isn't true even in the submarine cable case--the signal had to start above water somewhere.)
Those sound like just the sorts of issues you need competent lawmakers to address--and for good or ill, Congress is the best we've got. And I might note that they took on this task (updating FISA in light of both new technology and new threats) in the USA-PATRIOT Act.
I see what you're saying, but I guess was thinking of the exceptions in FISA and the Non-Detention-Act that say to the effect that these statutes must be followed unless authorized by another Congressional statute. I shouldn't have used the term implicit repeal.
The NDA in Hamdi and FISA both allow for explicit exceptions if authorized by other acts of Congress. Given that the Hamdi decision says AUFA is explicit exception to NDA (even though Hamdi only relied on the broad "necessary and appropriate force" authorization in the AUFA to find this) it seems probable that AUFA could be an explicit exception to FISA as well.
Anyway, Hamdi seems like the main case here, and not Youngstown Steel.
Those sound like just the sorts of issues you need competent lawmakers to address--and for good or ill, Congress is the best we've got. And I might note that they took on this task (updating FISA in light of both new technology and new threats) in the USA-PATRIOT Act.
Injecting a little humor, isn't the phrase 'competent lawmakers' oxymoronic ?
I am skeptical of too much power in any branch of government. I do think the creation of FISA was an usurpation of executive branch authority, for good or ill.
I agree they took on the task of updating FISA, I think the fact that this debate is occurring is indicative that they did not do it well.
That's a good point about Hamdi also citing Youngstown Steel. Maybe the Court, if faced with this NSA domestic spying on foreign agents case, could cook up some sort of contorted process by which people the gov't has spied on get some sort of quasi-administrative hearing as they did in Hamdi.
John L., the very short turnaround is all the more proof that Congress did indeed wish to put a short leash on the Executive's power to bypass the FISA court.
If Bush's lawyers were too incompetent to get a blanket FISA waiver (for 3 months, say) while the WTC was still smoldering---and when it would've passed nearly unanimously---well, that, does not surprise me.
IANAL, but doesn't the word "intentionally" in "intentionally targeting that United States person" cover a vast multitude of sins? And doesn't the entire phrase seem to indicate a concern about the sort of domestic spying that Hoover, Kennedy, Johnson, Nixon and, if the details of the grand jury are as damnning as claimed, Clinton engaged in, with a targeted enemies list? Not quite the same as being interested in a phone number or a email address used by an unknown person or persons, is it?
Doesn't this perspective shake up your thinking just a little?
Yours,
Wince
How vague. For legislators in crafting general and prospective law, sure. For adjudication? No. Adjudication is retroactive and specific. See article III.
This is, again, an obvious distortion. What I said was, "Criticiquing the position of someone who supports the status quo by posing improbable 'perfect storm' hypotheticals makes little sense when discussing the realistic impact of court decisions rendered within a system that eschews entertaining hypotheticals." Sure, it's fine in talking about the law conceptually. We aren't talking about classroom concepts here, nor are we talking about drafting a law. We're retroactively applying legal principles in talking about a specific act and specific powers of the President and what actual caselaw says on it. In that context, "criticizing one's inability to prognosticate or extend the logic of a precedent to cover every single conceptually possible case is tiresome and foolish," because it means talking about irrelevant things. That is why I said, "Not every single conceptually possible case will arise, and legal logic need not pass the test of Bertrand Russell. You should confine your arguments to meet the realities of the situation, not confabulate about Martians and improbable scenarios that distort the facts and the issues as reasonably understood." I never claimed that hypotheticals are outside of "the American legal tradition" or should not be used by law professors in classrooms or should not be considered by lesgislators in crafting that law, I advised you to "realistically assess what the present legal landscape is and what existing precedents now mean." Instead, you would, apparently, prefer to chatter about the planet Mars or distort arguments that those supporting the status quo have made by assigning unreasonable burdens to them that they cannot, and should not, meet. It is a matter of common sense that "Someone supporting the status quo has no idea what the court will do next and no idea what cases will come before the court." That you reject common sense, I think, demonstrates that "your inability to grant reasonable inferences of conventionally used words within a blog-community of intelligent and reasonable interpreters speaks to your credibility...."
In your quotation about electronic surveillance, above, you missed the disjunctive or. That makes a big difference.
There is really no need to invent a new procedure. FISA already defined a process and a dedicated court specifically to approve (or disapprove) such foreign intelligence surveillance. The problem was the the executive branch chose to ignore it.
First, I'm not aware that I misspelled the word "supercede."
Second, the point I was making was about "surplusage." The last five words of the AUMF are surplusage, if you believe that the AUMF did not supercede any other requirements such as the requirements of FISA.
I don't think that it takes a visitor from a galaxy with non-terrestrial grammar to invoke the very well-known doctrine that words in a statute should not be construed as surplusage. Another very well-known doctrine is to construe a statute such as FISA so as to avoid having to reach a constitutional question; construing the last five words of the AUMF as non-surplusage allows one to avoid the constitutional question of whether the President has inherent constitutional power to do what he has done with the NSA. In contrast, construing the last five words of the AUMF as surplusage does not avoid any serious constitutional question, because the idea that Bush violated the 4th Amendment is not really a serious argument in view of Supreme Court precedent (even Armando admits as much).
So the president does have inherent powers, which stem from the Commander-in-Chief Clause of Article II, and the courts have so ruled. The dispute, then, is over the extent of that unilateral executive authority....
The three federal judges that heard the ex parte FISA Court of Review appeal must be amazed to see lawyers suggest in the media that their decision is somehow some kind of authority for whatever it is the Bush administration is doing. The extent of the President's power to order warrantless searches wasn't the issue at all as anyone who bothers to read the decision would know (or the transcript of the ex parte hearing that is available on the web), and in fact the Court of Review found that the federal court decisions mentioned had been in error on the issue that actually was before the FISA Court of Review.
All obiter at best on the issue of presidential inherent authority to conduct warrantless searches.
Amazingly sloppy "legal analysis" that wouldn't (or at least shouldn't) get you much credit on a second year law exam. The speculation is interesting even though nobody can come to a conclusion because nobody knows exactly what Bush is doing, the extent and nature of the 45 day reviews, etc. Speculation doesn't excuse such poor basic legal analysis from law school graduates.
You will have to be more specific. Which or, in context please, is the disjunctive or to which you refer?
Yours,
Wince
(Yes, "supersede." Congress misspelled it.)
I was looking at your 2:51pm post. But, I've re-read it and I withdraw my comment. I think I misunderstood what you were getting at.
Cite? The NY Times lead article or the followup don't say that. The articles may suggest it, but the only difference printed is the elimination of the LE/intelligence "wall" that the Court of Review addressed.
Medis writes..."... and the Administration has not contradicted those claims."
Non-denial is not evidence, not even tending to a position. No wonder some people think Karl Rove is an evil genius, they just don't learn. Unless someone, even a NYT anonymous source, claims FISA was violated, then the evidence is that FISA was not violated.
Far be it from me to quibble with someone who believes he can spell better than the U.S. Congress (and the Random House Unabridged Dictionary, 2d Ed., c. 1987, p. 1907), but your argument is faulty.
Please tell me of a requirement that the AUMF superceded. If you contend that the AUMF superceded no other provisions of law, then you have conceded (not conseded) that the last five words of the AUMF are surplusage.
My bad. I forgot that Fred Korematsu was Martian.
Foreign governments can and do monitor private electronic communications which originate or terminate in their countries. The U.S. Constitution does not apply to them in the least. Their own laws do, and their own laws permit such surveillance. Freely. Especially when one of the communicants is a foreign national. I know this is true for Britain, France and Germany, and believe it is true for Canada - the RCMP can cetainly listen to phone calls to and from the U.S.
AFAIK, ours is the only country in the world which limits government surveillance of its citizens' domestic electronic communications. Some one correct me if I'm wrong. I am positive that the U.S. is the only country which limits government surveillance of the electronic commmunications of non-citizen residents within its borders.
If the foreign governments where foreign electronic communications originate or terminate can inspect the contents of those communications under their own laws, the communicants have no reasonable expectation of privacy and the U.S. govt. can do so as well regardless of which end is in the foreign country and regardless of whether American citizens or lawful foreign residents of the U.S. are involved.
Many Americans have unreasonable expectations of the foreign applicability of the Constitution. Tough. If it ain't reasonable, the U.S. govt. doesn't need a warrant.
50 U.S.C. 1801(f) defines electronic surveillance as only including those communications:
If there is no reasonable expectation of privacy in an electronic communication, it is not "electronic surveillance" as defined in FISA for the government to intercept and read the communication, i.e., FISA does not apply at all to what the government does with the communication, with the sole exception of when the interception takes place in the U.S. - 50 18 U.S.C.(f)(2), which the govt. gets around by doing the interceptions in NSA installations outside the U.S.
And the courts have consistently held that unreasonable searches which violate the 4th Amendment to the Constitution are only those in which the communicants have a reasonable expectation of privacy.
There is no reasonable expectation of privacy in foreign communications because the foreign governments can listen to those. Which means so can ours.
50 U.S.C. 1801(f) is the hurdle no one attacking NSA surveillance of foreign communications can get past.
So they pretend it doesn't exist.
Here is a public source URL for 50 U.S.C. 1801.
Here is the full text of 50 U.S.C. 1801(f) (my emphasis):
Are you saying that if a foreign country can't monitor my foreign phone call, then I have a REP, but if not, then not.
Most of us can't name 25 state capitals, you expect us to brush up (and keep up to date) on the electronic surveillance powers of 200 plus countries?
Red herring. (1) FISA wasn't enacted at the time. (2) FISA provides for retroactive authorization. (3) Simply "transmitting code into Maui" doesn't imply that a U.S. citizen is receiving, especially when (as during WW2) Hawaii wasn't even a state.
Wince, "intentional" is open to some interpretation. If I fire at random into a crowd at McDonald's, am I "intentionally" shooting at people? Yep. The fact that I don't aim at any particular person is irrelevant.
I would say that if NSA was surveilling in a manner that it couldn't reasonably think it wasn't surveilling some U.S. citizens, then it was intentionally doing so.
I agree that if 50 USC 1809 were the only relevant law, the setup would be very similar to Hamdi (although I'm not sure the result would be the same--O'Connor's opinion in Hamdi in particular was explicitly limited to the factual circumstances in question). But the problem for the Administration is that 50 USC 1809 is not the end of the relevant law--there is also the "exclusive means" language in 18 USC 2511. And there really isn't anything like that in Hamdi.
KMAJ,
More precisely, the fact that this debate is occuring is evidence of the fact that the President thought the Congress did not do a good enough job in the USA-PATRIOT Act, but he was also unwilling to bring his case to Congress. And ultimately, I think this is in fact a legislative issue, and therefore an issue for Congress, not the President, to decide.
Mark B.,
Of course the President could order surveillance in that case. He would just need to get a retroactive warrant within 72 hours. And if he really knew the person was communicating with an enemy submarine, that wouldn't be much of a problem (I'm confident that would count as probable cause under FISA).
Jack John,
You excerpted (without any indication of doing so) "briefs" and "courts" from my quote. Hypotheticals are also part of legal reasoning in litigation.
But in any event, we aren't just litigating in these comments. We are having free-ranging discussions about what the legal rules ought to be, and those arguments are not bound by the jurisdictional limitations of Article III courts.
Andrew and Apodaca,
I won't belabor this point again, but I don't think Andrew is right about this "surplusage" issue. There is a difference between the 2001 AUMF being neutral about non-War Powers Requirements and the 2001 AUMF positively providing that non-War Powers Requirements are not superceded. So, the limitation in the relevant clause is not surplusage because it makes the 2001 AUMF neutral with respect to other requirements.
Andrew seems to think this limitation would be "surplusage" if IN FACT the 2001 AUMF superceded no other requirements, even if the relevant provision itself was DE JURE neutral about other requirements. But there is no reason why the drafters would have to turn the FACT that the 2001 AUMF superceded no requirements into a PROVISION that the 2001 AUMF superceded no requirements. Indeed, even if they specifically intended the 2001 AUMF to supercede no requirements (something they need not have formed an intention about one way or another) it would make perfect sense for them to make the relevant provision neutral with respect to other requirements, and simply write the rest of the 2001 AUMF in a way that ensured it did nothing they did not intend.
So, I really think Andrew has no argument here. In short, there is no surplusage whether or not the 2001 AUMF supercedes any other requirements, because in any case the limitation would have served its purpose (making sure the provision in question was neutral).
Amy talks to her neighbor Betty on the phone. (Both of them are in the US, and the call never leaves their metro area, let alone the country.) Betty has the legal right to disclose what Amy says to anybody on the planet. Better yet, they live in a state where any single party to a private conversation may secretly record it in almost all circumstances. (This is the rule in roughly 3/4 of the U.S. states, and comports with federal law. See 18 USC 2511(2)(d).) Betty can play this tape for her other neighbors, or post a digitized version on her blog. Ergo, Amy has no reasonable expectation of privacy in her phone calls. QED
If not -- and the conclusion here is plainly incorrect as a legal matter -- then why not?
My Issue is with Congress. Why has a single member not introduced a bill, to stop the President from doing what they deem is such an evil act?
Answer; Because it would force the member of congress to intoduce a bill that could not be parsed like a radio or TV interview. And because, It would force his/her peers to register a vote to the the bill. The battle is far better than solving the made-up problem.
Fact:::: Congress can hand wring all it cares to. But in the end they refuse to offer a bill. Hiding under the robes of the court (like all here) is much easier.
True, but the "intentionally targeting that United States person" does not include randomly firing, err, in this case, listening, into a crowd. Because you have to target a particular U.S. person. It's that pesky word "that".
I'm not sure about the reasonable expectation of privacy argument. I have a reasonable expectation of privacy, not because any government (or individual with the right scanner) can listen to my calls, but because there are so many calls and so few listeners. What are the odds that someone is listening to my particular phone call? Pretty darn slim.
Yours,
Wince
But if non-War Powers requirements weren't superceded, why not say so in the AUMF? Why leave it ambiguous? More importantly, if it was intended to be ambiguous, how can you accuse the President of violating any unambiguous restriction on his authority?
Without the limitation (the last five words), the clause would be:
"Nothing in this resolution supercedes any requirement."
That wouldn't be neutral about any other requirements: it would positively provide that any other requirement was also saved.
In other words, suppose there is some Requirement X out there (not in the War Powers Resolution). With the limitation, Section 2(b)(2) is neutral about Requirement X. Without the limitation, Section 2(b)(2) would positively save Requirement X.
But the fact that 2(b)(2) is neutral about Requirement X does not actually mean that the 2001 AUMF supercedes Requirement X. Indeed, my entire point is that 2(b)(2) doesn't tell you anything about what the 2001 AUMF does to Requirement X (where Requirement X is any requirement not in the War Powers Resolution). Rather, you need to actually look to the rest of the 2001 AUMF to figure out whether it supercedes Requirement X or not.
Then your portion of these discussions are entirely irrelevant to the subject matter they purport to be relevant to. "I'm discussing how a statute should be interpreted by a particular court, but who cares what the rules of that court are or how that court interprets statutes, let's talk about hypothetical situations that ignore all of those constraints, such as whether Martian hermaphrodites would appreciate the subtle contours of my hairdo." Thanks for defending pointlessness, Medis.
I agree that briefs and courts do entertain hypotheticals, but those hypotheticals accept the constraints of adjudication. Look at your quote above: in the context of this discussion, you do not.
Sorry, we cross-posted. Anyway, I don't think "ambiguity" is the right word. I don't think there is anything ambiguous about 2(b)(2): it unambiguously saves the requirements of the War Powers Resolution, and it is unambiguously neutral about any other requirement.
So, on my view, if there is indeed an ambiguity about how the 2001 AUMF and FISA interact, it would not be in 2(b)(2), because 2(b)(2) has nothing to say about FISA. Rather, any such ambiguity would have to be in 2(a)--the actual authorization of force--because only 2(a) would potentially have any application to FISA.
But I actually don't think there is really any such ambiguity, in light of 18 USC 2511. In other words, because the 2001 AUMF would have to repeal 18 USC 2511, and because there is no clear congressional intent to do so (just the opposite, in light of the USA-PATRIOT Act), this is an unambiguous situation.
This i