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The Canon of Constitutional Avoidance:
In the hearings earlier today, Attorney General Gonzales argued that FISA's exceptions should be read broadly under the canon of construction of avoiding constitutional doubt. Consider this exchange between Gonzales and Senator Feinstein:
FEINSTEIN: What in FISA specifically, then, allows you to conduct electronic surveillance within America, on Americans?

GONZALES: I believe that it's Section 109, which talks about persons not engaged in electronic surveillance under cover of law except as authorized by statute. And I may not have it exactly right.

We believe that that is the provision in the statute which allows us to rely upon the authorization to use military force.

Now, you may say, "Well, that — I disagree with that construction." That may be so. There may be other constructions that may be fairly possible. We believe this is a fairly possible reading of FISA. And as the Supreme Court has said under the canon of constitutional avoidance, if you have two possible constructions of a statute and one would result in raising a constitutional issue, if the other interpretation is one that is fairly possible, that is the interpretation that must be applied.

And if you reject our interpretation of FISA, Senator, then you have a situation where you've got an act of Congress intention with the president's constitutional authority as commander in chief. And the Supreme Court has said when that happens you go with another interpretation if it's a fair application. And that's what we've done here.
  One difficulty with Gonzalez's argument, it seems to me, is that the Supreme Court didn't rely on this argument when DOJ tried it before. Specifically, DOJ made a similar argument in its brief filed in Hamdi v. Rumsfeld, but found no takers among the Justices.

  In Hamdi, the Supreme Court confronted a question similar to the one raised by FISA and the NSA program. Yaser Hamdi was being held as an enemy combatant, and claimed that his detention violated 18 U.S.C. 4001(a): "No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." The question was whether the AUMF was an Act of Congress that authorized Hamdi's detention, such that the detention did not violate Section 4001.

  DOJ's brief relied in part on the canon of constitutional avoidance. It argued that Section 4001 should be construed to avoid a clash with Article II Commander in Chief powers:
The canon of constitutional avoidance counsels against interpreting Section 4001(a) in a manner that would interfere with the well-established authority of the Commander in Chief to detain enemy combatants in wartime. See Public Citizen v. United States Dep't of Justice, 491 U.S. 440, 466 (1989).
  Justice O'Connor's plurality opinion and Thomas's dissent created fives votes for the view that the AUMF did in fact satisfy the statute, so the detention was lawful. However, none of the opinions filed in that case relied on the canon of constitutional avoidance to construe 18 U.S.C. 4001. Scalia's dissent mentioned the canon, but rejected its application in the Hamdi case: "I do not think this statute even authorizes detention of a citizen with the clarity necessary to satisfy the interpretive canon that statutes should be construed so as to avoid grave constitutional concerns." The rest of the opinions didn't mention it.

  Given that none of the Justices accepted DOJ's invitation to apply the canon of constitutional avoidance in Hamdi, it's not obvious to me why a court would think the canon applies in somewhat analogous circumstances to interpret FISA.
Defending the Indefensible:
The canon of constitutional avoidance pertains when a statute may be construed in two ways, one of which is unconstitutional. What Gonzales is arguing is that if FISA is held to constrain the surveillance at issue, it is unconstitutional.
2.6.2006 11:08pm
Medis:
As an aside, I thought the CRS did a good job of dealing with this argument.

Anyway, Gonzales's argument bears no substantial resemblance to the actual doctrine. He seems to suggest that the canon is triggered whenever a party raises a consitutional argument. But that, of course, is ridiculous--you can't push the interpretation of a statute in your direction simply by raising a constitutional argument.

Rather, the court would have to be satisfied that the constitutionality of FISA was actually in serious doubt. And Gonzales doesn't really argue that--he just suggests it would be a complicated question. But there is no "canon of avoiding complicated constitutional questions" (although many might wish that there was).

And indeed, some of the Senators did a good job today of bringing out the fact that there are no cases that clearly support Gonzales' position (eg, there are no post-FISA federal court cases with an actual holding on this issue--although I was highly amused that Gonzales actually tried to slip Truong through). Other Senators--including several Republican Senators--did a good job of suggesting ways in which ongoing doubts about this issue could have serious negative consequences.

So, there is actually a much better argument for the Court reaching and deciding this issue, rather than avoiding it, precisely because it is a complicated question which could benefit from a definitive statement. And again, there is no "canon of avoiding constitutional questions that have not yet been answered".
2.6.2006 11:11pm
Medis:
DtI,

But does he actually argue that? I saw lots of instances of him claiming that it would be something like a "difficult question", but no argument to the effect that it would in fact be unconstitutional.
2.6.2006 11:14pm
Bobbie:
Professor, I don't intend any disrespect, but it's not clear to me whether your analysis of the government's position is supposed to be taken seriously. You keep dissecting the Administration's positions as if they're objectively pursuing the truth without any sort of agenda; when the Administration says something silly, like it does here, you feign (?) confusion, as if it isn't clear to everyone that the Administration is trying to throw out any possible justification, regardless of legal merit, to defend its program.

When you say "it's not obvious to [you] why a court would think the canon applies in somewhat analogous circumstances to interpret FISA," the underlying assumption is that the Government is attempting to make serious legal arguments. Why can't you just call the administration on their bullshit? I think the reason that so many are upset about this program isn't that it's illegal; it's that at least some of the Government's justifications for it are so transparently ridiculous, that you can't help but question their intellectual honesty.

I'm just waiting for the Government to claim that the 32nd Amendment justifies their actions; that way, I can see you grapple seriously with the merits of the Government's position and conclude that "it's not clear to [you] that the Government is correct here."

What does the Administration have to argue to convince you that not only are they wrong, but that they're being dishonest?
2.6.2006 11:19pm
Defending the Indefensible:
Medis,

Yes, in so many words:
And if you reject our interpretation of FISA, Senator, then you have a situation where you've got an act of Congress [interfering] with the president's constitutional authority as commander in chief.
So if you reject our interpretation of FISA (which is that it does not constrain the surveillance at issue), that poses a constitutional problem with the C-in-C authority of the president (it does not btw, per Ex parte Milligan), and the canon of constitutional avoidance means we have to accept the administration's interpretation to avoid ruling the FISA unconstitutional.
2.6.2006 11:23pm
madisonian (mail):
Orin-

I usually think your analysis quite sound, but I'm afraid you've lost me with this post. You seem to be saying that the fact that in Hamdi five Justices accepted the government's primary argument -- that the AUMF, on its face, authorizes detention to satisfy section 4001(a) -- amounts to an implict rejection of the government's fall-back argument -- that, even if the AUMF isn't naturally read to authorize detention, it should be construed that way in order to avoid a serious constitutional question. Your inferential leap strikes me as quite implausible. If anything, the Court's failure to discuss the avoidance issue helps DOJ here, for it seems to bolster the Department's conclusion that the AUMF authorizes suveillance, even without resort to extrinsic statutory interpretation tools.
2.6.2006 11:23pm
Ian (www):
Gonzales is suggesting that, if an argument could be conceived of which that a particular construction of a statute is unconstitutional, no matter how frivilous, than the statute cannot be construed that way. The problem with this argument is that it would invalidate any construction of any statute.

I might argue, for example, that interpreting the Fair Labor Standards Act to provide a minimum wage violates my Second Amendment right to bear arms. It's a completely absurd argument, but under Gonzales' logic, b/c I can conceive of it, it must trigger the canon of constitutional avoidance, and thus the FLSA must be interpreted some other way.

The only problem, of course, is that my opponent can simply claim that construing the FLSA to not provide a minimum wage violates their Third Amendment right not to quarter troops in peacetime, and thus, because they have conceived of this argument, they must get a minimum wage.

It's all very reminicent of the proofs of the existence of God I remember reading in Freshman Philosophy 101. All very fun to talk about between bong hits, but hardly appropriate to a constitutional debate.
2.6.2006 11:27pm
Kovarsky (mail):
maybe i'm missing something because i only got to listen to the end of the hearings, but by the end of the hearings it sounded to me like gonzales wasn't saying the statutes were in conflict, but rather that they could be harmonized by means of FISA's statutory incorporation clause.

which, for reasons that have been thoroughly explored and almost laughed off by none other than specter, is an utterly incomprehensible cross application of remedial provisions of the statute.
2.6.2006 11:30pm
OrinKerr:
madisonian,

I thought about that argument. As I read DOJ's Hamdi brief, however, it doesn't seem to me to be making the avoidance claim as part of a "fall back" argument. Do you read the DOJ brief differently?
2.6.2006 11:30pm
Medis:
Bobbie,

I don't want to put words in Orin's mouth, but I for one think there is a lot of wisdom in at least some commentators--particularly recognized experts in the law--continuing to discuss each of the Administration's legal arguments as if they were based on serious attempts at legal analysis. You may well be right that these arguments are actually BS--indeed, in the technical, Harry G. Frankfurt, sense of that term. But I suspect that once a person makes that claim, a significant percentage of people will immediately start ignoring that person on the assumption that they are politically biased. And so a person like Orin may be able to do more good by avoiding such a statement and sticking to "ordinary" legal analysis--even if that takes a temporary suspension of disbelief.
2.6.2006 11:32pm
Medis:
DtI,

I may be mistaken, but I think the phrase in the place of your brackets should actually be "in tension" (the transcript quoted by Orin has it as "intention").

I think that is characteristic of what Gonzales said (at least by my recollection). He is basically just noting that if this is a Category 3 case, there is going to be a conflict between the President's claimed inherent authority and FISA. But we already knew that--that's what Category 3 is all about.

He also seems to asserts (in a Robertsesque fashion, meaning with little in the way of actual support for the proposition other than ipse dixit), that this time the President might win, despite Youngstown. But as far as I can tell, he doesn't actually try to make that argument--that the President SHOULD win, despite Youngstown. Rather, he just suggests things like that this is a "difficult question", and claims that is enough to activate the doctrine.

But if he said something as definitive as "FISA as applied in this case would be unconstitutional", or "the President would win in the Category 3 case, despite Youngstown," I'd be interested in seeing it. Otherwise, as the CRS points out, he seems to be arguing that any potential Category 3 case should be interpreted as a Category 1 case if possible, and that is not how the doctrine works.
2.6.2006 11:43pm
Defending the Indefensible:
Medis,

Thank you for the correction. I think your interpretation is correct. I do think it's a banal argument however, which comes down to the notion that the tension MIGHT result in FISA being declared unconstitutional, therefore to avoid deciding this "difficult" question, the administration's interpretation should be preferred.
2.6.2006 11:49pm
Thomasly (mail):
So, then, what are we to make of the Gang of 14's apparently earnest arguments, based almost entirely on the ignored canons? (For those wondering, I'm referring to that group led famously by Marty Lederman.) Could you be troubled to mention to them that, for the same reasons given here, there doesn't appear to be any good reason, after Hamdi, to rely on those canons in interpreting AUMF and FISA?
2.6.2006 11:50pm
Medis:
DtI,

I think we are on the same page. My point was really just that there is no canon that actually supports such a proposition, and indeed there are good reasons to think the Court would be wise to reach and decide this issue precisely because it is a difficult, important, and (sortof) unanswered question.
2.6.2006 11:53pm
Medis:
Thomasly,

I may be wrong, but I think you are referring to the 4th Amendment avoidance argument raised in those letters. I'm not sure I buy that argument myself--again, I think this would actually be a good opportunity for the Court to resolve a difficult and important consitutional question. But I don't see how this particular issue was raised and decided in Hamdi, given that Hamdi did not implicate the 4th Amendment.
2.6.2006 11:56pm
madisonian (mail):
I think that avoidance arguments are, almost by definition, fall-back arguments. Such an argument is a plea to construe an ambiguous statute in a way consistent with one's desired outcome. But the argument almost always begins by asserting that the statute is in fact not really ambiguous, that the issue goes your way even without a constitutional thumb on the scale. That, I think, was the logical progression of the government's argument in Hamdi, whether or not the SG's brief was actually structured that way. And I certainly think it's the best interpretation of SOC's failure to engage with the avoidance issue in her opinion. Indeed, her silence can even itself be read as a form of constitutional avoidance; the plurality may have been saying (implicitly) that it need not even discuss whether there's a serious constitutional question here (one that would involve a difficult and delicate weighing of the respective powers of Congress and the President) because the statute so clearly authorized what the President had done. To decide the case that way offered the narrowest possible way to resolve the matter at hand, but SOC's minimalism shouldn't be read as suggesting the plurality's rejection of a somewhat more expansive approach that also would have supported the same conclusion.
2.6.2006 11:57pm
Medis:
madisonian,

Except the plurality in Hamdi stated a number of broad principles about the separation of powers in wartime, including with respect to Congress, and even went so far as to cite Youngstown. So, if they wanted to remain "silent" on those issues, they did a darn poor job.

Rather, it seems to me that they didn't address the avoidance issue precisely because they assumed that Youngstown would apply to this case if there was a conflict, which would mean there would be no constitutional problem to avoid (because the statute would be constitutional).
2.7.2006 12:04am
wp:
Maybe its just me, but does anyone find it strange that Gonzales is telling Congress that it must apply the Canon of Avoidance? I'm no expert, but aren't canons of interpretation developed in order to deal with the particular limitations of a court engaged in judicial review?

In other words, the implicit assumption of this argument seems to be that the task of Congress in investigating whether a statute / the Constitution has been violated is to place itself - in every way - in the shoes of the Supreme Court. But the arguments for avoidance by an undemocratic and "apolitical" Court don't really seem to apply as well to Congress. Casting the Court as such an exclusive interpreter of the Constitution seems particularly ironic given this administration's claims of interpretative autonomy regarding the AUMF.
2.7.2006 12:10am
Thomasly (mail):
Medis, no, I'm referring to two other canons as well: Specific and carefully drawn statutes prevail over general statutes when there is a conflict, and repeals by implication are disfavored. Those aren't mentioned in Hamdi, which interpreted AUMF and a specific statute governing detention.

wp, I don't think there's anything particularly surprising there. There are, it seems to me, two different roles played by executive branch lawyers in this case: offering what they believe the correct anaysis is, and offering a prediction of what a court is likely to do if faced with the question. Those needn't be the same thing, though they often are. In this circumstance, given the natural hostility in Congress toward claims of executive power, why not offer the second set of arguments, to the extent they're not inconsistent with the first?
2.7.2006 12:22am
Defending the Indefensible:
Medis,

I think the idea of the canon of constitutional avoidance makes sense in a proper context. The presumption is that Congress does not intend to write unconstitutional statutes, so if it's possible to read a statute as conforming then we should not assume that Congress meant otherwise.

But it is tendentious and question begging to say that the avoidance canon applies in this case.
2.7.2006 12:43am
Bobbie:
Not to beat what should be a dead horse, but if anyone is interested in looking at another recent silly legal argument made by the Administration, click here.

The Administration had been balking at releasing the names of the Guantanamo detainees because -- are you ready for the this? -- it is (allegedly) concerned that it would "invade" the detainees personal privacy. Feel free to fill in your own punch line.

. . .
Medis, when professors continue to fail to call a spade a spade, it undermines not only their credibility, but it adds credence to the administration's position. The general public has neither the time nor the training to follow professor Kerr's analysis. All they see is blah blah, I think the Administration is wrong. As another commentator noted, the blah blahing provides the perfect smoke screen for the Administration because as long as the public thinks the administration is making reasonable legal arguments, then they win. When professors, particularly conservative professors, begin to raise the red flag that the government is making a number of weak legal arguments that make any objective attorney question the Administration's intellectual honesty, perhaps Bush will start to take following the law seriously.
2.7.2006 1:06am
minnie:
Correct me if I am wrong, but didn't Senator Feinstein point out that Hamdi was three years AFTER the government, according to AG, started this warrantless eavesdropping program?

How then could Hamdi have been the legal justification for the program?

Bobbie: You're right on the money, and I had the same thought, but what else can someone do, as the next blogger pointed out, but try to keep a straight face and act as if we weren't in an insane asylum? When one suddenly wakes up and finds out what has happened to our beautiful democracy, the only really rational response would be to jump out a window. But that solution has its limitations also :) If Orin were to come right out and admit the Emperor has no clothes, this site would degenerate into something like the DU, or Huffington Post, where it's all "Yeah, but what about Clinton?" and "All Repuglicans are fascists."


I was glad that Orin zeroed in on what I think everyone within a week will agree was the central revelation of today's hearings: "this program" is but the tip of what appears to be a really gigantic iceberg.
2.7.2006 1:17am
Charlie (Colorado) (mail):
Guys, I'm (as I've noted before) not a lawyer, merely a logician, but I'm not getting the argument that because the Supreme Court didn't appeal to this "canon of construction" in this decision, it therefore follows that they don't and wouldn't believe it as an argument. Logically, if P→Q, there are still an infinity of conditions P' such that that P'→Q.
2.7.2006 1:40am
Defending the Indefensible:
Minnie &Bobbie,

I'm going to continue to stand up for Prof. Kerr's reserve in this case. I think his willingness to bend over backwards to consider any reasonable justification for this program speaks for his conservative philosophy (in the legal/judicial sense of the word).

I've said before and I think it bears repeating, those of us who participate in the discussions here have a much freer hand to express our opinions than does our host. His opinion is in a very important sense "privileged" in a way that ours is not. While he is weighing the arguments, there is no bias to the discussion, all points of view can be equally expressed. Once he takes a firm stance it will change the dynamic quite considerably, and will carry all the more weight for having been made deliberately and with great consideration.

This is not a sporting event. It is not about who wins or who loses the next election. This is consequential. Too, it is important not to sit on the fence so long as to let matters become a fait accompli, but neither should we try to hurry the process unduly.
2.7.2006 2:13am
Defending the Indefensible:
Charlie,

The Supreme Court avoided the avoidance canon in Hamdi despite the administration urging it, and rather pointedly so. They held that the specific factual circumstances of Hamdi's battlefield capture were controlling and declined to give a broader interpretation to the AUMF.

Comes now the administration by and through the attorney general and says that the Congress ought to give a broad interpretation to the AUMF and apply the avoidance canon on the grounds that the Supreme Court implied this in Hamdi.

Just because the court declined to find "if P→Q" does not require "if P'→!Q", but it's certainly audacious to suppose that the Hamdi ruling implies "if P'→Q".
2.7.2006 2:24am
volokh watcher (mail):
Orin:

I'll look forward to the day you post about the impact the Administration's fundamental working assumption -- that defending the US from terror will be, essentially, a never-to-end endeavor -- will have on (1) co-equal governance by 3 branches, and (2) civil liberties.

As the AG seemed to allude, and you noted in another post, there are other secret programs out there being used purely domestically. Maybe not.

IMO, your various threads, and the posted comments, over the past 2 months have exhaustively covered the legal issues based on the operative info made available publicly. Likewise, the postings of Marty Lederman over at Balkinization [who early and forcefully dismissed the administration's statutory-conflict argument.]

So where do we go from here? That is, what type of working government are we to expect? And should we expect this administration to do anything other than what it chooses to do, without regard to existing law or future enactments, so long as the AUMF is out there? And even after the AUMF is recinded?
2.7.2006 2:31am
colts41 (mail):
As an aside (and I didn't see all of AG's testimony), it seemed that not much attention was paid to the 4th Amendment's implications of "the programme".

I recall a brief exchange between AG and Feinstein, in which the AG invoked so-called the "special needs" exception.

Otherwise, notta.

Perhaps because anyone who mentions the 4th Amendment is concerned about -- aargh!!! -- civil liberties. And being in favor of civil liberties for all means being in favor of civil liberties for -- aargh!!! -- terrorists and other bad people.

And being in favor of civil liberties for terrorists and other bad people is, well, just damned Un-American -- almost like favoring a prohibition on the torture of terrorists.

I suppose the Democrats made a decision, based on the Rovian calculation, that there was no currency in sounding civil liberties. Let the Cato Institute and the other 9 libertarians left in the GOP carry that water.

Instead, the better political position -- just as the Administration is trying to calculate -- would seem to be "oversight", hoped-for code to Americans that the President has run too far amok.
2.7.2006 3:29am
Defending the Indefensible:
I'm not sure if it's relevant to anyone, given partisan considerations, but President Carter had some reactions to the hearings.
2.7.2006 3:31am
Edward J. DeBartolo:
Do you even get avoidance for separation of powers questions? The few avoidance cases I'm familiar with limit government action by avoiding a constitutional question dealing with civil liberties. The avoidance discussed here in a separation of powers context would do the opposite. Moreover, it seems that there really are two sets of avoidance here -- a) the question about whether "except as authorized by statute" permits a statute outside of FISA/Title III (it doesn't according to the CRS memo discussing its legislative history) and b) if so, whether the AUMF is that statute. And it's not clear that this second question involving the AUMF interpretation would get separation of powers avoidance (even if such a thing exists) because the AUMF itself raises no constitutional doubt (except in a 4th amendment context, which cuts against the administration). Only FISA could possibly raise a separation of powers doubt and it's the AUMF that really needs the avoidance doctrine in order to be a relevant statute. Finally, to the extent there is an even arguable AUMF avoidance interpretation, it seems to me that it has to yield to the far mor serious avoidance problem under the 4th amendment.
2.7.2006 3:44am
KMAJ (mail):
Maybe everyone is asking the wrong questions here. Possibly we should be asking the question attorney Paul Mirengoff of Pajamas Media and Powerline asked Sen. Durbin:

... why, if the Democrats disagree with the administration's understanding of what AUMF authorizes, they don't present clarifying legislation telling the administration that its interpretation is incorrect. This would enable the Senate to vote on whether it thinks listening to calls from al Qaeda to the U.S. is a necessary and proper measure to prevent another attack.


And therein lies the whole foundation of this debate. It's all about politics, a dog and pony show to play to the public. That is the simple solution, Congress can easily pass a clarifying resolution. It certainly would take all the fun out of the plethora of legal opinions and interpretations that are being engaged in. I do wonder with all the legal minds posting here, why this has not been suggested.
2.7.2006 5:09am
Defending the Indefensible:
KMAJ,

Whether you are serious or being intentionally ironic again, it's a very silly idea. The administration has made it clear that they don't believe Congress can legislate to restrain their executive authority to engage in wiretaps under the program Gonzales described.
2.7.2006 5:35am
KMAJ (mail):
DtI,

Why is it silly ? Only if those who are playing politics with national security do not want to be on record as being weak on security. What is silly about clarifying what Congress authorized in the AUMF ? Obviously there is a disagreement, we both know they will never offer a clarifying resolution. You know why, and so do I. It would be political suicide. So they are passing off their responsibility to try it in the media and, maybe, in the courts.

Thomas Sowell has an excellent op ed, Point of No Return, about how ridiculous this isssue is when the focus should be on security and who leaked it. This leak makes Plame look like a kindergarten prank. But where is the coverage ? Where is the similar outrage ? Were you posting in outrage about Plame ? What is this really all about ? You get three guesses and the first two don't count.
2.7.2006 5:52am
volokh watcher (mail):
KMAJ --

When you make important life decisions, do you go with your gut instinct as to what might be a good solution?

Or do you do research to make an intelligent assessment of the various options?

If you do the former, well, then I guess I see your point that the Democrats should just make something up on the fly and propose it as "good" legislation.

If you do the latter, then your suggestion is ridiculous.
2.7.2006 6:00am
Michael B (mail):
"I'm not sure if it's relevant to anyone, given partisan considerations, but President Carter ..."

It would be far more interesting to ask, within the additional context and backdrop provided by the 1,000+ FBI files "requisitioned" during the former administration, Senator Clinton ... For example, before the Senate Judiciary Committee, first asking that Clinton be placed under oath ..., oh but wait, that would be derided as an affective ploy, making political hay ... and we wouldn't want to stoop to that ..., given the non-political interests advanced by ... Indeed, the very thought, highly impertinent to the high-minded efforts now, so conspicuously, underway! Harrumph!

And the 1,000+ FBI files, not even purportedly covered by an AUMF, Article II, ... Though it did occur shortly after WTC '93 ...,

Oh well, we don't want to ruffle any dignified plumage ..., mere FBI files ..., context ..., motive ...
2.7.2006 7:45am
Medis:
Thomasly,

First, I apologize for misconstruing your point.

Anyway, those canons aren't discussed in Hamdi because the relevant statutes are different. Specifically, there is no equivalent to the "exclusive means" language in the relevant detention statute. So, there is no implied repeal issue in Hamdi, and no conflict between a more specific and more general statute that would need to be resolved.
2.7.2006 8:32am
Apodaca:
Orin writes:
Justice O'Connor's plurality opinion and Thomas's dissent created fives votes for the view that the AUMF did in fact satisfy the statute, so the detention was lawful.
Orin, I think this is a non sequitur. The fact that you can sum up 5 SCOTUS votes on a given subsidiary issue doesn't render the conduct in question lawful or unlawful. Yes, it may be a pretty good indicator of how those Justices might vote in a future case, but it has no precedential weight on its own. All the sound and fury of Hamdi resulted only in a bare judgment of the Court.
2.7.2006 8:45am
Steve:
And therein lies the whole foundation of this debate. It's all about politics, a dog and pony show to play to the public. That is the simple solution, Congress can easily pass a clarifying resolution. It certainly would take all the fun out of the plethora of legal opinions and interpretations that are being engaged in. I do wonder with all the legal minds posting here, why this has not been suggested.

Sometimes those guys at Powerline don't tell you the entire story. Sens. Leahy and Kennedy already have introduced a resolution, S. Res. 350 (pdf link), to the effect that the AUMF does not authorize domestic warrantless surveillance of U.S. citizens. Presumably it is wending its way through Judiciary Committee consideration.

Be that as it may, the other posters are right that this hardly resolves the issue. It would simply dispose of one of the administration's sillier arguments, or make it less politically viable in any event. The fact that Mr. Mirengoff preens over asking this "probing" question, when he knows full well that a resolution has already been introduced, should tell you something.
2.7.2006 8:56am
Medis:
KMAJ,

I find the history of your talking point very interesting.

Quite a while ago, the poster "corngrower" tried out this idea here (that if a member of Congress did not immediately submit "clarifying" legislation, they weren't serious about the issue, which proves this is all a political stunt). At the time, several of us pointed out the flaws in this idea--namely that: (1) it was premature to offer legislation until Congress investigated the matter; and (2) whether further legislation would be useful would depend on the Administration's stance on such laws in general. Despite these rather obvious points, "corngrower" kept bringing this idea back up, getting the same replies.

A little more recently, the poster "farmer56", who I strongly suspect is actually the same poster as "corngrower", also started bringing up this idea (again getting the same responses). As an aside, what is interesting about some of these posts is that they seem to treat each attempt to reintroduce the idea as somehow "new", with words to the effect of "here is an idea you people haven't considered yet", when in fact we keep considering (and rejecting) this idea every time it is floated here.

Finally, I noticed in the hearings that a couple of the most Administration-friendly Senators were raising this issue.

Now, I haven't been reading the partisan blogs, but I note that you say that they are bringing the idea up. And like corngrower/farmer56, you see fit to transport the idea here, again with an attached "here is something new/why aren't you talking about it".

So, I actually wonder if those blogs have been pushing this meme for quite a while longer, which would explain why corngrower/farmer56 came here to repeatedly push the idea much earlier, with essentially the exact same structure as you are using. I also wonder if that was part of "testing" the idea to see if pro-Administration partisans would accept it. If so, I guess they discovered their partisans would indeed accept this idea, because now we see their Senate watercarriers making the same argument.

And why would they be doing all this? One of the most interesting things about the hearings so far, to me at least, is that Gonzales seems uninterested and pretty much dismissive of the proposals of several "moderate" Republicans who are suggesting that FISA could be amended and clarified to authorize this program. Gonzales has generally argued that any legislative action at all--even legislative action that approved this particular program--would be unnecessary. Further, he has argued that such clarifications could be dangerous insofar as Congress might take it upon itself to limit the President's inherent powers in some way.

So, I see this talking point as an effort to suggest that any legislative action at all must be something only those darn Democrats would do--and they don't have the guts to do it--and that generally there is no real issue here worthy of legislative attention at all. Apparently this is what the Administration wants: complete Congressional inaction.

Of course, it seems clear from the hearings that between the Democrats and these "moderate" Republicans, there is a solid majority in favor of at least some legislative action (whether they could agree on the right action is a different matter). But I take it the Administration strategy is to stir up their base, perhaps with the thought that they can threaten the "moderate" Republicans with a backlash.

So, KMAJ, thank you for bringing the latest evolutions of this talking point to our attention. I think it reveals a lot about the Administration's political strategy and goals.
2.7.2006 8:57am
Textualist Law Student:
I believe there are important differences between the arguments made in Hamdi and the one Gonzales made today, with respect to the canon.

First, in Hamdi, I believe that the Gov't was invoking the canon not just with respect to the clause of 4001 that says "except pursuant to an Act of Congress" -- I believe their central contention was that the entire 4001 provision only applies to civil detentions, not military detentions, and that the canon should be used to support that reading. The Court never rejected that argument, because it simply assumed that 4001 applied to military detentions, and then held that the AUMF satisfied 4001. So the Court never passed on the Gov't's canon argument, and that is not at all surprising -- the Court had no reason to severely circumscribe the scope of 4001 given that it believed that the AUMF satisfied the broader reading of 4001.

Second, and more fundamentally, even if the canon had only been invoked in Hamdi in the limited way Gonzales is now using it (i.e. to resolve ambiguities about the interaction of the two statutes), the Court's failure to mention the canon is not all that revealing. Because it only makes sense for a court to cite the canon when it adopts a non-preferred reading of a statute (or statutes), and since the Hamdi Court believed, and stated, that the AUMF unmistakably authorized detention, there was no need to invoke the canon to bolster their interpretation, and doing so would undercut their claim about the certainty of their interpretive result. On the other hand, if it's less clear whether the AUMF authorizes the challenged wiretapping, then the canon could still have a role to play. In other words, to the extent that the interaction of the AUMF and FISA as applied to the surveillance program is more ambiguous than the interaction between the AUMF and 4001 as applied to domestic citizen detentions (I don't believe there is greater ambiguity, but Bradley et al. tried to make the case in one of the fn's in their amicus brief), then Gonzales is right to invoke the canon even though the Court did not find it necessary to rely on the canon in Hamdi.

On the other hand, I've been wondering why the response isn't simply that the canon is useless here because there are competing constitutional concerns -- i.e. interpreting the statutes to authorize the wiretapping raises 4th Am. concerns. Even if you're right that the Gov't will ultimately prevail on that ground (I haven't looked at the issue closely and don't know much about this area of 4th Am. law), surely the issue is sufficiently substantial that the canon is implicated? In which case it seems to me the canon should be a wash and the statutes should be read without any thumbs on the scale. Or is there some corollary to the canon that says that when constitutional interests appear on both sides of the balance, the one that is more substantial (in the sense that it is more likely to lead to a holding of unconstitutionality) should win?
2.7.2006 9:02am
just wondering:
If Congress were to pass "clarifying language" to limit the scope of the AUMF, what's to prevent the Administration from "interpreting" it consistently with its vision of the Constitution and executive power to read it as not imposing any actual restrictions? If statutory text is ambiguous because it raises constitutional questions, then no law need ever be struck down as unconstitutional. Such a law could instead be rewritten by the President or the courts based on their presumption that Congress intends to make laws that are constitutional, despite unambiguous text to the contrary.
2.7.2006 9:37am
Medis:
Textualist,

Again, though, it seems to me that the plurality was not at all shy about stating that Congress could constitutionally legislate in this area, and cited Youngstown for that proposition. So, I don't see any avoidance of that issue.
2.7.2006 9:38am
Michael B (mail):
The issues raised in the Cunningham brief (24 page pdf) have yet to be directly addressed herein or at any number of other sites of note. This brief would seemingly be of interest to more sincere and disinterested Constitutional/statutory analysts since it does not approach the analysis primarily from an AUMF perspective, but rather from the perspective of a properly re-focused Youngstown, in addition to referencing bi-partisan presidential counsel. It 1) constructively articulates and distinguishes separation of powers and balance of powers issues (e.g., the core, plenary powers relevant to SIGINT and intelligence in general, congress's own enumerated powers vis-a-vis intelligence gathering) and 2) effectively redresses and re-focuses an analysis of Youngstown, etc. which far too often has unduly skewed the highly discursive rhetoric cum analysis away from core, plenary powers of the executive relevant to foreign intel gathering (and onto domestic concerns in a singular fashion, as if they were divorced from foreign intel gathering interests, e.g., Feinstein's focus in the originating question in this thread).
2.7.2006 9:44am
Medis:
Michael B,

Actually, we have discussed that letter in prior comments.
2.7.2006 10:00am
A.S.:
I think Madisonian gets it exactly right.

The proper analysis is: if you think the statute clearly authorizes the action, then there is no need to even discuss the canon. (Similarly, as Scalia says, if the statute clearly forbids the action, there is likewise then there is no need to use the canon.) It is only if you look at the statute and decide it is ambiguous that the canon comes into play.

Here, I think the canon is much more useful than in Hamdi. In that case, the statute in question, 18 U.S.C. 4001, was not very susceptable to ambiguity; the only question was whether the statutory exception was satisfied, not whether there was such an exception at all. Here, though, the interplay between Section 109 of FISA and Section 2511 is very unclear, and one of the major ambiguities is whether there is a statutory exception from Section 2511 at all. And THAT is where the canon becomes useful.
2.7.2006 10:02am
Neal Lang (mail):
Correct me if I am wrong, but didn't Senator Feinstein point out that Hamdi was three years AFTER the government, according to AG, started this warrantless eavesdropping program?

How then could Hamdi have been the legal justification for the program?

Simple! The President's position is that AUMF superceded FISA and the parts of the Code partaining to the holding of US Citizens. While the Supremes haven't heard a case on point regarding FISA, they did on the holding of US Citizens and concurred with the President's position on that issue - that AUMF superceded existing US Code if they conflicted with Congresses instructions in the AUMF:
That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Your and Senator Feinstein's position being what? That the Commander-i-Chief must wait until the Supremes approve before he collects the necessary "combat intelligence" to "use all necessary and appropriate force" - "in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons", as instructed by Congress?
2.7.2006 10:04am
farmer56 (mail):
People;

you got lawyers arguring lawyers about a law enacted by congress.

Fact one: Congress invented the law that is under
review

Fact two: Congress can ammend the existing law.

Fact three: Not any single member of the Congress
willing to do that. Because? They want
the fight. not the fix.

Fact four: What is the outcome if the present
situation stops the spooks from doing
their job? Answer 9-11,, again... hence
the reason not a single member of
congress is willing do do anything but
bitch, rather than act.
2.7.2006 10:10am
Medis:
A.S.,

I agree that the Court could have said that in Hamdi, and avoided the separation of powers issue. But what the Court actually said in Hamdi is that there is no separation of powers issue, and cited Youngstown.

So, I'm still a bit puzzled by your and Madisonian's account--you seem to be describing what the Court could have done rather than what it actually did.

By the way, as an aside--I don't think the interplay between 2511 and 1809 is actually unclear, but I realize that is a necessary first step for the Administration if they even want to try to apply this doctrine.
2.7.2006 10:12am
Medis:
farmer56,

Have you also posted under the name "corngrower"?
2.7.2006 10:13am
Steve:
Congress can ammend the existing law. Not any single member of the Congress willing to do that.

Guess you missed my comment above about the Leahy-Kennedy resolution.
2.7.2006 10:22am
Michael B (mail):
Medis,

I don't recall the set of subjects it raises being addressed herein or elsewhere and believe I've read all threads here relevant to this subject. Could you provide a link to one of the more relevant posts which does so? (Not necessarily Youngstown in general, but more specifically as directed by the Cunningham brief.)
2.7.2006 10:25am
stealthlawprof (mail) (www):
Medis &KMAJ --

Having Congress refine or reinterpret FISA or give its view of the relationship between FISA and AUMF creates some additional problems. First, it gives credence to the argument that the current status of the law is unclear; that is a position many members of Congress would not want to validate. Second, any enactment by Congress is, presumably, changing the status quo, so it may go beyond accepting ambiguity in the current law to the point of acknowledging validity in the administration's current interpretation. Again, that is not an acceptable position to many members of Congress. Finally, a change in the law requires legislation which must be passed by the Congress and signed by the President. The President could veto the legislation and require Congress to muster a 2/3 vote to override. Why should the Congress bear the burden of changing the law and potentially having to override a veto if the law already says what Congress wants?

Whether one agrees with the administration or not, these are cogent reasons why the argument that Congress must act is not accurate.
2.7.2006 10:38am
Michael B (mail):
(If the ref. is to the recent "Precedents on Inherent Authority" thread, I disagree Cunningham was very pointedly addressed, though it was in a more cursory fashion, and at other times almost evasively.)
2.7.2006 10:39am
Medis:
Michael B,

I can somewhat point you in the right direction. I believe that someone posted a link to the Cunningham letter not too long after someone posted a link to the similar Roberts letter. But there have been a lot of threads on the subject, so I can't tell you offhand in which this happened.
2.7.2006 10:40am
Medis:
Michael B,

Oh, and to be clear, I for one specifically commented on the Cunningham letter in that discussion. I don't recall who else might have (I think there was more than one comment, however), but I'm not talking about something indirect--you would be looking for an actual discussion of the letter.
2.7.2006 10:47am
Medis:
stealthlawprof,

I generally agree with the thrust of your post, although there are lots of forms Congessional action could take. For example, a commentator above linked to a "Sense of the Senate" resolution that might sidestep some of your concerns. On the other hand, I agree that it is in some sense already conceding an important point to suggest that there is any need at all for such a resolution.

But in any event, I obviously agree that this is a sufficiently complex situation such that it makes sense for members of Congress to get more information--about what has happened in the past and what the Administration is claiming they might do in the future--before trying to craft a comprehensive legislative response.

Of course, as I see it, this "if there was really a problem they would have done something already" idea isn't really an attempt to make a serious point. Rather, it is a political talking point designed for the consumption of pro-Administration partisans.
2.7.2006 10:57am
Michael B (mail):
Ok, thank you, found it, but the letter only came out three days ago, so I'm not at all sure about "a lot of threads on the subject".
2.7.2006 10:57am
madisonian (mail):
I agree that the Court could have said that in Hamdi, and avoided the separation of powers issue. But what the Court actually said in Hamdi is that there is no separation of powers issue, and cited Youngstown.

So, I'm still a bit puzzled by your and Madisonian's account--you seem to be describing what the Court could have done rather than what it actually did.


Medis:

I think you're confusing two distinct points. In interpreting the relationship between the AUMF and section 4001(a), the plurality opinion in Hamdi had no occassion to address the government's argument that serious constitutional problems would exist if the former statute were not read as satisfying the demands of the latter. It didn't reach that issue because the Justices thought it clear that the AUMF did in fact, by its own terms, authorize detention. In resolving the statutory issue in this way, therefore, the Court did not need to address the possible conflict between Congress's Article I, section 8, powers and the President's powers as Commander in Chief.

It is true, as you point out, that later in the opinion, Justice O'Connor cites Youngstown and offers some general observations about Executive power in times of war. But these remarks came in an entirely separate context: the Court's discussion of what the Due Process Clause requires of the President in deciding to detain a U.S. citizen under the authority confered by Congress. That issue, of course, is not present in the current debate.

Here, the issue is what the AUMF authorizes. And, it seems to me that the Court's failure to engage with the constitutional avoidance argument when it was last called upon to interpret that statute tells us nothing about whether such an argument might be persuasive here. But it does seem quite wrong to read Hamdi's "blank check" statement -- which, in context, was really about preserving a role for the courts -- as resolving (or even suggesting a resolution to) the really hard question of what limitations Congress may impose on the President's ability to engage the enemy in a time of war. And so I think it remains open to DOJ to argue that constitutional avoidance requires reading the AUMF as authorizing surveillance, lest we have to face and resolve a clear conflict between Congress's war powers and those of the President.
2.7.2006 10:58am
Medis:
Michael B,

I'd actually appreciate a link myself, now that you found it.

Incidentally, I just meant that there was a non-trivial number of recent threads on the NSA issue generally, many with a large number of comments, and I have made no attempt to track which comments have appeared in which threads.
2.7.2006 10:59am
Defending the Indefensible:
Michael B.:
It would be far more interesting to ask, within the additional context and backdrop provided by the 1,000+ FBI files "requisitioned" during the former administration, Senator Clinton ...
I'm not sure why you are directing this question at me. If there was sufficient evidence for this, I wonder why the Republican House of Representatives didn't include this as an article of impeachment, and for that matter I believed then (and do now) that proven perjury under oath (Senator Specter notwithstanding) was a sufficient ground for impeachment and conviction.

But it isn't especially relevant to lawbreaking by this administration, unless you think that we ought to have a double standard.
2.7.2006 11:03am
Charlie (Colorado) (mail):
DtI, I wasn't aware that being "audacious" was a rule of inference.
2.7.2006 11:06am
Defending the Indefensible:
Charlie,

It's not. I'm pointing out that Gonzales inference is unjustified by the premises.
2.7.2006 11:08am
Tom Holsinger (mail):
Professor Kerr,

It has been pointed out several times that AG Gonzales' public statements, especially including his testimony to the Senate Judiciary Committee, are not aimed at the judicial branch. More than one court is involved in this matter. The Supreme Court's violation of separation of powers in Rasul v. Bush has brought it into the political arena where it cannot make a case before the court of public opinion, while the President can. And he is doing so.

You also ignore the fact that the composition of the Supreme Court has recently changed.

Judge Posner has pointed out that the Supreme Court pays little attention to its own precdents. Its past rulings on this subject are subject to change, not merely its analysis. If a Supreme Court majority wants to achieve a particular result, it will use whatever justification is handy, and that includes the canon of constitutional avoidance.

Conservatives have learned not to expect consistency from the Court. Law professors should too.

This is about power, not law. The arrogance of a Supreme Court bench which has been there too long has led it to disrespect for the law. This is a two-way street.
2.7.2006 11:09am
Medis:
Madisonian,

To be clear, I agree that the question was not presented in Hamdi, given the plurality's analysis of the case. Rather, I am suggesting that in the context of discussing the separation of powers issue with respect to the courts (which was presented in Hamdi), the plurality went beyond discussing just the courts and also looped in the legislative branch.

I think it is fair to say that this is all dicta insofar as it applies to Congress. But I guess I part company with you when you suggest this sweeping language and citation to Youngstown (a case which itself didn't involve the courts), was not "even suggesting a resolution to" this general separation of powers issue.

Conversely, noticeably absent from the plurality opinion is an explicit statement that they were not reaching this issue. Of course, there is no rule stating that they have to make such an explicit statment, but courts often do this when a party has made an argument that has been mooted by their analysis, but the court wants to make it clear that an open question on that issue remains.

Anyway, I agree that nothing in Hamdi prohibits the Administration from making this argument. But I also think that in light of this dicta in Hamdi, and in light of the absence of any explicit statement that the issue was not reached, it would be fair to say that the plurality in Hamdi appeared unimpressed by this argument.
2.7.2006 11:13am
Michael B (mail):
Medis, here's the link to your comment in the thread which, I assume, you were referring to.

DiF, to be clear, I did not direct it at you, I used your quote (w/o referencing your name) to comment on conspicuous partisan interests and a specific contrast with the FBI files. Nonetheless, it was not directed at you per se (nor was it even a question for that matter).

Still, it does reflect a study in contrasts, without assumming any precise equivalency between the two situations. (However, at least one of the lack of equivalencies, the fact the FBI files were more likely for domestic political utility, point to an even more conspicuously suspect intent than the current situation.)
2.7.2006 11:19am
Just an Observer:
madisonian,

I suggest that your interpretation of Hamdi is excessively creative. You say:

It is true, as you point out, that later in the opinion, Justice O'Connor cites Youngstown and offers some general observations about Executive power in times of war. But these remarks came in an entirely separate context: the Court's discussion of what the Due Process Clause requires of the President in deciding to detain a U.S. citizen under the authority confered by Congress. That issue, of course, is not present in the current debate.


What you call O'Connor's "general observations about Executive power in times of war," in fact, came explicitly in the context of a discrete holding on a separation-of-powers issue:

"In so holding, we necessarily reject the Government's assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances," O'Connor wrote in the introduction to that section.

Her opinion then expressed the clear statement that the issue extended to Congress, as well: "Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake."

Contrary to your assertion, that separation-of-powers issue is very much present in the current debate.
2.7.2006 11:25am
jrose:
madisonian,
And so I think it remains open to DOJ to argue that constitutional avoidance requires reading the AUMF as authorizing surveillance, lest we have to face and resolve a clear conflict between Congress's war powers and those of the President.
At first blush, I agree with your analysis that Hamdi did not forclose this argument. However I have problems with the merits of that argument. If the DOJ is correct, wouldn't it follow that the AUMF authorizes any actions related to conducting the war even though Congress has prohibited such actions in other statutes (including, for example torture)? Is there precedent to support or contradict this implication?
2.7.2006 11:26am
Defending the Indefensible:
Michael B.:

The Cunningham brief rests on a fallacious premise, that the President has "plenary" authority to undertake the wiretap program at issue. This premise is entirely question begging.
2.7.2006 11:27am
Medis:
Michael B,

Actually, if you are talking about the link to President Carter, you were quoting someone else.

Anyway, I think a discussion of the FBI files incident is a bit tangential, but for what it is worth, I always thought that some of the allegations related to that incident were very serious. As I understand it, however, Ken Starr looked into the issue and decided to drop it. Regardless of his reasons, that seemed to bring the issue largely to a close.

So, if you are suggesting an independent counsel look into the NSA issue ... but I suspect not.
2.7.2006 11:33am
Neal Lang (mail):
Sometimes those guys at Powerline don't tell you the entire story. Sens. Leahy and Kennedy already have introduced a resolution, S. Res. 350 (pdf link), to the effect that the AUMF does not authorize domestic warrantless surveillance of U.S. citizens. Presumably it is wending its way through Judiciary Committee consideration.

Presumably Sens. Leahy and Kennedy after the occurance of the next 9/11-like event do to their "terrorist protection act" will stand-up and accept the responsibility for the National Security failure at the requisite 9/11-like commission inquiry that is sure to follow.
2.7.2006 11:39am
Medis:
DtI,

I think in that sense, Cunningham's letter bears a strong resemblance to Roberts's letter, some of Gonzales's testimony, and various arguments made here. The basic idea seems to be that they are trying to distinguish Youngstown on the ground that Youngstown was about domestic affairs only, and if foreign affairs were involved, the actual rule in a Category 3 case would be different.

As we have discussed, although that claim (that Youngstown only applies to domestic affairs) has not yet been directly tested in court, Dames &Moore seems to imply that Youngstown WOULD apply to foreign affairs. Moreover, the plurality's relevant statement in Hamdi, with a citation to Youngstown, is obviously very unfavorable (because Hamdi, of course, is as core-military/foreign-affairs as it gets).

Interestingly, as far as I can tell, Cunningham cited neither Dames &Moore nor Hamdi in his letter (although I invite correction if I am wrong). Hmmm.
2.7.2006 11:51am
Michael B (mail):
Medis,

One of us is confused, the "Carter" ref. was addressed to DiF and I'm aware it was tangential - but hardly unrelated as a study in contrasts which provides some notable illumination vis-a-vis the partisanship involved. As you allow: "some of the allegations related to that incident were very serious". That Starr was apparently the one who dropped the issue is not obviously relevant to the point made since a variety of motives might have informed that decision.

Btw, regarding an independent counsel, I'm not at all sure I'd mind (excepting for the likely national security issues involved), perhaps even to the contrary. I say that because I continue to support the current program, at least to the extent it's purposes have been revealed. (But, as an aside, even a pure partisan could, at least conceivably and from a machiavellian interest, almost eagerly relish certain aspects of such a battle, though that would depend upon the adept qualities of the partisan tacticians involved, certainly.)
2.7.2006 11:55am
Medis:
Michael B,

Great, let's get started on agitating for a special counsel. I wonder if Fitzgerald has a full schedule . . .
2.7.2006 12:00pm
Michael B (mail):
I don't agitate, I'm a non-partisan interested only in the rule of law, separation of powers, balance of powers concerns and the integrity of the Constitutional and subordinate statutory concerns.
2.7.2006 12:05pm
Medis:
Michael B,

So why can't you agitate (meaning "to stir up public opinion") in a non-partisan fashion for measures that would further those causes?
2.7.2006 12:10pm
Michael B (mail):
Well, that, yes, is what I'd only too happily engage in; as long as my non-partisan bona fides would not be impugned.
2.7.2006 12:17pm
Neal Lang (mail):
And so I think it remains open to DOJ to argue that constitutional avoidance requires reading the AUMF as authorizing surveillance, lest we have to face and resolve a clear conflict between Congress's war powers and those of the President.

What are the "War Powers" of the Commander-in-Chief? Primary Function of Military Command activity: (G1 - personnel, G2 - intelligence, G3 - operations, G4 - logistics, G5 - civil affairs):
Understanding the Responsibilities and Authorities of the COmmander-in-Chief:

A commander must see and know the enemy better than the enemy can see and know his forces. This means the tactical intelligence system from battalion to corps must coordinate intelligence effort within the division. Intelligence provided to the commander must be clear, brief, relevant, and timely. Wartime, especially battlefield, support to the commander must be anticipatory and precise.

The Commander Must Know the Battlefield. He must surprise the enemy and catch it at a disadvantage as often as possible. He must avoid the enemy's strengths and exploit its weaknesses. To do so, he must know the area of operations (AO), the condition of the battlefield, and the nature, capabilities, and activities of his enemy. He must know when and where to concentrate his combat power. The intelligence system should maximize and synchronize the support offered to the commander while minimizing the demands it makes on him.

PART A - RESPONSIBILITIES OF THE DIVISION G2
Intelligence is the Responsibility of All Commanders. Every unit must be prepared to conduct intelligence operations with every means at its disposal, with or without specific orders. Operations across the full range of warfare depend on timely relevant, accurate intelligence. In today's force projection army, the division must be prepared to employ its organic intelligence assets and assume control of those assets from higher and adjacent units. The purpose of intelligence operations is to obtain reliable information about the enemy, weather, and terrain as quickly and as completely as possible. The results are an essential basis for estimating enemy capabilities, courses of action and intentions, and for planning friendly operations. Intelligence seeks to discover the type, strength, location, organization, and behavior of enemy forces, their direction and speed of movement, and their intentions. It includes information about the weather and terrain within the operational area and their effects on friendly and enemy operations.

PART B - INTELLIGENCE AND ELECTRONIC WARFARE
Synchronizing intelligence and electronic warfare support ensures that the United States (US) wins battles and campaigns, promotes peace, and deters war. The mission of EW is to deny the enemy unrestricted use of the electromagnetic (EM) spectrum while permitting unrestricted friendly use of the same. The key players on the division staff who fuse IEW into the whole tactical concept are the G2 and the G3. Like the rest of the staff, their mission is to serve the commander and assist subordinate commanders. The G2 and G3 must think like commanders. Both need a solid foundation in tactics and each should be able to do the other's job. They must coordinate. Common perspectives enable them to communicate with precision. The G2 and G3, as the senior intelligence and operations officers of the command, help develop and train subordinate unit intelligence and operations staffs. The G2 must ensure that the G3 is fully aware of the capabilities and limitations of the divisional IBOS.

Unquestionably, combat intelligence is the key to the President's ability to carry his Constiutional "War Powers" as Commander-in-Chief.
2.7.2006 12:25pm
Neal Lang (mail):
Great, let's get started on agitating for a special counsel. I wonder if Fitzgerald has a full schedule . . .

I knew David Barrett is, who was assigned to investigate the case of President Clinton's housing secretary, Henry Cisneros, work for 10 years and compile a vast report, only to have the report redacted - sanitized - (by Congressional Democrats to protect the guilty), if you will -- before it is released to the American public.
2.7.2006 12:32pm
Apodaca:
Neal Lang intones:
Presumably Sens. Leahy and Kennedy after the occurance [sic] of the next 9/11-like event do [sic] to their "terrorist protection act" will stand-up and accept the responsibility for the National Security failure at the requisite 9/11-like commission inquiry that is sure to follow.
Excellent: the same logical fallacy indulged in by the AG yesterday when he said that the NSA's surveillance of Americans must be working because we haven't been attacked since 9/11.
2.7.2006 12:35pm
Just an Observer:
The notion that Youngstown was only about "domestic" matters seems far-fetched. The case occurred in the context of the Korean war, and the government argued "that in meeting this grave emergency the President was acting within the aggregate of his constitutional powers as the Nation's Chief Executive and the Commander in Chief of the Armed Forces of the United States," according to Justice Black's summary in the court's opinion.

The effects of the government action (seizure of property) occurred domestically then, just as effects of NSA surveillance (surveillance of U.S. citizens) occur domestically today -- wordplay from the White House podium notwithstanding.

The more interesting claim made by Cunningham and Gonzales is that intelligence collection is more a "core" function of warmaking than property seizure was in Youngstown.

This argument, it seems to me, relates directly to the concept of "an incident to war." Which concept was central to the 5-4 holding in Hamdi that the prisoner could be detained as an enemy combatant, and is likewise central to the parallel claim the government makes today about domestic surveillance.

We don't yet know how far the court would extend that view of foreign-battlefield detention to domestic locations. Perhaps the Padilla case will answer that question, if the court decides it.

We do know from Hamdi, however, that even in a matter the court's plurality called "fundamental and accepted an incident to war," the court ruled 8-1 against the government's claim that the executive branch had exclusive dominion in the matter.
2.7.2006 12:37pm
Neal Lang (mail):
Judge Posner has pointed out that the Supreme Court pays little attention to its own precdents. Its past rulings on this subject are subject to change, not merely its analysis. If a Supreme Court majority wants to achieve a particular result, it will use whatever justification is handy, and that includes the canon of constitutional avoidance.

Olmstead (1928) Wiretaps do not require 4th Amendment Probably Cause Warrants because they are not protected from unreasonable searches and seizures.

Katz (1967) - Wiretaps do require 4th Amendment Probably Cause Warrants because they are not protected from unreasonable searches and seizures.

Hmmm! That precedence lasted long than Roe before and activist Supremes overturned it! Go figure!
2.7.2006 12:40pm
Neal Lang (mail):
Excellent: the same logical fallacy indulged in by the AG yesterday when he said that the NSA's surveillance of Americans must be working because we haven't been attacked since 9/11.

And your proof that it isn't working working is what?
2.7.2006 12:44pm
Neal Lang (mail):
The Cunningham brief rests on a fallacious premise, that the President has "plenary" authority to undertake the wiretap program at issue. This premise is entirely question begging.

No, the premise is whether or not the Commander-in-Chief has the plenary "authority" to collect "combat intelligence" by "electronic surveillance". A correlorary is whether an inhibition to collect "combat intelligence" impacts the Commander-in-Chief from exercising his Congressionally manadated duties to: "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

Obviously, the President believe it does!
2.7.2006 12:52pm
Rami (mail):
What hasn't someone in Congress proposed legislation that clarifies the President's authority? Congress could pass legislation specifically excluding wiretaps from the AUMF or otherwise clarifying the issue. It would certainly put the President in a awkward position to veto.
2.7.2006 12:57pm
Tom Holsinger (mail):
Rami,

You ignore the overwhelming tendency of Congressmen to avoid having to actually take a final vote on controversial issues. Grandstanding is one thing, but having to take heat for an irrevocable up or down vote is quite another. Look at what happened when the House Republicans put Congressman Murtha's proposal for immediate unilateral withdrawal from Iraq to a vote.
2.7.2006 1:12pm
Medis:
JaO,

As an aside, I am always amused by people who argue that the whole steel supply thing wasn't really central to war, but wiretapping is. I feel like citing Guns, Germs, and Steel. Alternatively, I could point out G4 on Neal's list (Logistics). And so on.

Anyway, I obviously agree that Hamdi's holding on the separation of powers question was very damaging to this view. Generally, the "best" response that I have seen is that technically, that holding was only about the courts, and so the plurality's statement about the legislative branch were dicta.

But in practice, it is nearly impossible to believe that the Court would hold in favor of the courts on a separation of powers issue, but not Congress. Indeed, even Justice Thomas, the lone dissenting vote on this issue, implied that his vote depended on distinguishing the courts from Congress.

So, obviously this point about the statement in Hamdi being dicta with respect to Congress is pretty cold comfort. But as others have suggested, the rules of the game Gonzales et al are playing may have nothing to do with predicting the outcome in a court of law, or indeed with objective legal analysis in any sense. In fact, it may not even be a matter of persuading a majority of Senators, or a majority of the American people.

Instead, the sufficiency of any "legal" argument may be measured simply by whether it would provide cover for--or allow intimidation of--a majority in the House Judiciary Committee.
2.7.2006 1:12pm
jrose:
On second blush, I'm even more convinced that Orin is wrong. The Court's silence in Hamdi on the cannon of constituional avoidance does not preclude that argument in the NSA surveillane case. From Hamdi:
... we conclude that the AUMF is explicit (my emphasis) congressional authorization for the detention of individuals in the narrow category we describe ... it is of no moment that the AUMF does not use specific language of detention. Because detention to prevent a combatant's return to the battlefield is a fundamental incident of waging war, in permitting the use of "necessary and appropriate force," Congress has clearly and unmistakably (my emphasis) authorized detention in the narrow circumstances considered here.
Orin argues that the constitutional avoidance cannon was not posited by the DOJ as a "fall back" argument, and he may be correct on that point. However, because The Court found the AUMF to be unambiguous, it left as a fall back the possibility the cannon of constitutional avoidance applies if the AUMF had been ambiguous.
2.7.2006 1:12pm
Neal Lang (mail):
And being in favor of civil liberties for terrorists and other bad people is, well, just damned Un-American -- almost like favoring a prohibition on the torture of terrorists.

From what reading of the Constitution do you, the ACLU, or the Democrats get the "off the wall" idea that a terrorist has a "civil right" to plot the murder of Americans protected by some unspecified "right of expectation of privacy". Kindly cite any of the Founding Father who ever promoted such a stupid idea. The telephone was around for nearly 90 years before the Supremes discovered this freedom from electronic surveillance right hidden in the same "penumbra" where they found the "right of the woman to murder her unborn innocent child."
2.7.2006 1:12pm
Medis:
Rami,

First, apparently Senators Leahy and Kennedy have put together a Sense of the Senate resolution to do exactly that.

Second, a number of Republican Senators on the Judiciary Committee seem to be proposing that as well. Interestingly, Gonzales is not being very receptive to the idea.

But in any event, the general problem with your talking point is that Congress has just begun investigating the issue, so obviously it is too early to know what they will eventually propose doing (or not doing) about this issue.
2.7.2006 1:18pm
Tom Holsinger (mail):
Neal Lang,

Don't forget to include Dred Scott, Plessy v. Ferguson and other 19th century decisions.

I'm talking about the Supreme Court bench of the past 15-20 years. Judge Posner correctly noted that they deal their own contrary precedents by ignoring those rather than expressly overruling them.

I.e., they decide what result they want and then devise a supporting analysis which ignores contrary precedents. They're result-driven. Consistency is for lesser beings.

The price for them hacking down the law to get at the Devil is that the judicial branch will have no protection when the executive branch finally turns on them.

The Supreme Court's defiance of its past rulings encourages others to do the same.

When it comes to straight power, the judicial branch loses.
2.7.2006 1:19pm
Neal Lang (mail):
Because detention to prevent a combatant's return to the battlefield is a fundamental incident of waging war, in permitting the use of "necessary and appropriate force," Congress has clearly and unmistakably (my emphasis) authorized detention in the narrow circumstances considered here.

And the purpose of "combat intelligence is?
2.7.2006 1:19pm
just wondering:
Neal said:

No, the premise is whether or not the Commander-in-Chief has the plenary "authority" to collect "combat intelligence" by "electronic surveillance".

But this begs the question of whether what we are dealing with is in fact "combat intelligence." Which in turn raises the issue of the extent of the "battlefield." Justice O'Connor made pretty clear that her opinion in Hamdi was based on a standard conception of a battlefield. The Court may at some point buy into the Administration's view that the battlefield is global and is not dependent on actual hostilities, but hasn't done so yet.
2.7.2006 1:22pm
Anderson (mail) (www):
On second blush, I'm even more convinced that Orin is wrong. The Court's silence in Hamdi on the cannon of constituional avoidance does not preclude that argument in the NSA surveillane case.

He didn't say it was "precluded"; he opined that the Court wasn't likely to buy it.
2.7.2006 1:23pm
Just an Observer:
Rami: What hasn't someone in Congress proposed legislation that clarifies the President's authority? Congress could pass legislation specifically excluding wiretaps from the AUMF or otherwise clarifying the issue....

I don't think congressional Democrats have any stomach for directly opposing the "Terrorist Surveillance Program."

Moderate Republican senators are proposing a legislative compromise that effectively would codify what the administration says is being done de facto, but the administration condescendingly brushes it off.
2.7.2006 1:24pm
Michael B (mail):
Cunningham doesn't argue Youngstown was "only" about domestic concerns; rather he argues far more specifically and far more to point, with a limited and directed focus. Regarding Cunningham's brief, it would be interesting to see a more detailed discussion opened up by Prof. Kerr or one of the other VConspirators, initially commenting at some length and with some specificity. The contrary positions noted by two or three (e.g., JaO, Medis) never have been, in turn, themselves thoroughly addressed and while I've given the Cunningham brief only one reading, am not at all persuaded it's been effectively redressed. Too, am more impressed with Cunningham's position than with Robert's (while acknowledging some overlap, Cunningham is more limited in what he focuses upon and seeks to reform). At any rate, it's been addressed in part only and is deserving of a more thorough-going and detailed review. Far from question begging, Cunningham is much more substantial and probative in its approach.

Absolute bare minimum, he effectively opens up highly critical and difficult to assess juridical concerns; cannot see how he is merely, or essentially, dismissed.
2.7.2006 1:24pm
Medis:
Tom H.,

Of course, in this case, it may end up being the Supreme Court plus Congress on the side opposite the President.
2.7.2006 1:25pm
Anderson (mail) (www):
[Why] hasn't someone in Congress proposed legislation that clarifies the President's authority? Congress could pass legislation specifically excluding wiretaps from the AUMF or otherwise clarifying the issue. It would certainly put the President in a awkward position to veto.

Rami, the point is that the President would sign the legislation and then ignore it, like he's ignoring the existing legislation.

The rule of law is what's on the line here. Unfortunately, most people don't really care about the rule of law, which may suggest that democracy is a self-destructing form of gov't.

I work in a law firm in a Deep Red State, and my boss says he could care less if the NSA listens to his conversations, let alone those of potential terrorists. The legal principle doesn't matter to him, and he's a lawyer (a good one, too).
2.7.2006 1:26pm
jrose:
Anderson,

Let me re-state:

On second blush, I'm even more convinced that Orin is wrong. The Court's silence in Hamdi on the cannon of constituional avoidance does not support Orin's claim that the Court isn't likely to buy the argument.
2.7.2006 1:36pm
Neal Lang (mail):
I'm talking about the Supreme Court bench of the past 15-20 years. Judge Posner correctly noted that they deal their own contrary precedents by ignoring those rather than expressly overruling them.

In overruling Olmstead, the sole dissenter, Justice Blackmun called the majority's unprecedented bluff:
I do not deny that common sense requires and that this Court often has said that the Bill of Rights' safeguards should be given a liberal construction. This [389 U.S. 347, 367] principle, however, does not justify construing the search and seizure amendment as applying to eavesdropping or the "seizure" of conversations. The Fourth Amendment was aimed directly at the abhorred practice of breaking in, ransacking and searching homes and other buildings and seizing people's personal belongings without warrants issued by magistrates. The Amendment deserves, and this Court has given it, a liberal construction in order to protect against warrantless searches of buildings and seizures of tangible personal effects. But until today this Court has refused to say that eavesdropping comes within the ambit of Fourth Amendment restrictions. See, e. g., Olmstead v. United States, 277 U.S. 438 (1928), and Goldman v. United States, 316 U.S. 129 (1942).

So far I have attempted to state why I think the words of the Fourth Amendment prevent its application to eavesdropping. It is important now to show that this has been the traditional view of the Amendment's scope since its adoption and that the Court's decision in this case, along with its amorphous holding in Berger last Term, marks the first real departure from that view.

The first case to reach this Court which actually involved a clear-cut test of the Fourth Amendment's applicability to eavesdropping through a wiretap was, of course, Olmstead, supra. In holding that the interception of private telephone conversations by means of wiretapping was not a violation of the Fourth Amendment, this Court, speaking through Mr. Chief Justice Taft, examined the language of the Amendment and found, just as I do now, that the words could not be stretched to encompass overheard conversations:

"The Amendment itself shows that the search is to be of material things - the person, the house, his papers or his effects. The description of the warrant necessary to make the proceeding lawful, is [389 U.S. 347, 368] that it must specify the place to be searched and the person or things to be seized. . . .
. . . . .
"Justice Bradley in the Boyd case [Boyd v. United States, 116 U.S. 616 ], and Justice Clark[e] in the Gouled case [Gouled v. United States, 255 U.S. 298 ], said that the Fifth Amendment and the Fourth Amendment were to be liberally construed to effect the purpose of the framers of the Constitution in the interest of liberty. But that can not justify enlargement of the language employed beyond the possible practical meaning of houses, persons, papers, and effects, or so to apply the words search and seizure as to forbid hearing or sight." 277 U.S., at 464 -465.


Goldman v. United States, 316 U.S. 129 , is an even clearer example of this Court's traditional refusal to consider eavesdropping as being covered by the Fourth Amendment. There federal agents used a detectaphone, which was placed on the wall of an adjoining room, to listen to the conversation of a defendant carried on in his private office and intended to be confined within the four walls of the room. This Court, referring to Olmstead, found no Fourth Amendment violation.
It should be noted that the Court in Olmstead based its decision squarely on the fact that wiretapping or eavesdropping does not violate the Fourth Amendment. As shown, supra, in the cited quotation from the case, the Court went to great pains to examine the actual language of the Amendment and found that the words used simply could not be stretched to cover eavesdropping. That there was no trespass was not the determinative factor, and indeed the Court in citing Hester v. United States, 265 U.S. 57 , indicated that even where there was a trespass the Fourth Amendment does not automatically apply to evidence obtained by "hearing or [389 U.S. 347, 369] sight." The Olmstead majority characterized Hester as holding "that the testimony of two officers of the law who trespassed on the defendant's land, concealed themselves one hundred yards away from his house and saw him come out and hand a bottle of whiskey to another, was not inadmissible. While there was a trespass, there was no search of person, house, papers or effects." 277 U.S., at 465 . Thus the clear holding of the Olmstead and Goldman cases, undiluted by any question of trespass, is that eavesdropping, in both its original and modern forms, is not violative of the Fourth Amendment.

The real question is this - how does the United States proport to be a "government of laws", when its "bed rock" law is ephemerally based on the whims of "run-away Justices".
2.7.2006 1:38pm
Medis:
Michael B.,

As an aside, the poster A.S. responded to my post on Cunningham's letter in the other thread.

Anyway, with all due respect, I don't think you are properly characterizing Cunningham's argument. In section A.2., he argues that the "Commentators" (see his definition) are applying the rule in Justice Jackson's concurrence outside of its "reach". He claims in part:

"Even a cursory analysis of Youngstown shows that, although the Executive/Congressional conflict at issue in that case unfolded against the backdrop of the Korean War, the issues at stake were far more 'domestic' in nature than those involved in the NSA Program."

He concludes that section with this argument:

"As discussed in detail in Section III, the Youngstown situation stands in stark contrast to the President's foreign intelligence/foreign affairs power at issue in the context of the NSA Program. The Commentators' failure to recognize this fundamental difference between Youngstown and the NSA Program weakens, to the point of collapse, the force of their constitutional analysis. Whatever the precise constitutional contours of Congressional and Executive power where the regulation of our domestic economy intersects with the supply of our armed forces, even during active hostilities, the vastly greater constitutional power of the President in the field of foreign affairs, national security and, particularly, the conduct of foreign intelligence operations, as discussed below, is clear. Moreover, it is decisive, even assuming, arguendo, that the words of FISA place the President at the 'lowest ebb' of those powers in this current separation-of-powers conflict with Congress."

So, I stand by by claim that he is trying to distinguish Youngstown, and avoid the rule in Category 3 cases under Youngstown, by claiming that the rule in Youngstown applies only to domestic issues.

And as I noted, it is more than a little odd that he does not discuss Dames &Moore and Hamdi with respect to this issue. Or perhaps it is not odd at all.
2.7.2006 1:43pm
Just an Observer:
Medis,

For the record, I do agree with your caveat that O'Connor's lecture in Hamdi about "a role for all three branches" was technically dicta as far as Congress goes.

I also think such dicta was deliberately crafted to send a message about the court's sentiments, especially given O'Connor's famous preference for minimalism and the narrow way she framed the rest of her opinion. Although she was writing for only herself and three other justices, she was aware that only Thomas embraced the government's claim to exclusive domain over the detainee.

Of course, two seats have changed hands since that opinion (which was joined by Rehnquist, Kennedy and Breyer). But I still think the two new justices are more like Renhquist or Scalia than they are like Thomas.

I think Paul Clement can count to nine, too, which obviously is why the government has tried to avoid a SCOTUS ruling on the Padilla case.
2.7.2006 1:48pm
Neal Lang (mail):
But this begs the question of whether what we are dealing with is in fact "combat intelligence." Which in turn raises the issue of the extent of the "battlefield." Justice O'Connor made pretty clear that her opinion in Hamdi was based on a standard conception of a battlefield. The Court may at some point buy into the Administration's view that the battlefield is global and is not dependent on actual hostilities, but hasn't done so yet.

Exactly where was the "battlefield" on the morning of 9/11/2001?

Now read the AUMF issued as a DIRECT RESULT of the 9/11/2001 terrorist attacks:
That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Can there be any doubt that the Congress envisioned the United States as being part of the "battlefield" in the "War of Terror"?

As for "electronic surveillance" directed at "enemy agents" being part of "combat intelligence":
Operations across the full range of warfare depend on timely relevant, accurate intelligence. In today's force projection army, the division must be prepared to employ its organic intelligence assets and assume control of those assets from higher and adjacent units. The purpose of intelligence operations is to obtain reliable information about the enemy, weather, and terrain as quickly and as completely as possible. The results are an essential basis for estimating enemy capabilities, courses of action and intentions, and for planning friendly operations. Intelligence seeks to discover the type, strength, location, organization, and behavior of enemy forces, their direction and speed of movement, and their intentions.

PART B - INTELLIGENCE AND ELECTRONIC WARFARE
Synchronizing intelligence and electronic warfare support ensures that the United States (US) wins battles and campaigns, promotes peace, and deters war.

There is no doubt "Combat Intelligence" is integral to a successful campaign:
Hence the saying: If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat.

If you know neither the enemy nor yourself, you will succumb in every battle.

[Chang Yu said: "Knowing the enemy enables you to take the offensive, knowing yourself enables you to stand on the defensive." He adds: "Attack is the secret of defense; defense is the planning of an attack." It would be hard to find a better epitome of the root-principle of war.]

If not "combat intelligence" than what else would call intercepting the C&C messages of "enemy agents" in the this country communciating with their controlling HQ in the Hindu Kush?
2.7.2006 2:09pm
Medis:
JaO,

As an aside, if I recall correctly, then-nominee Roberts also explicitly stated that he thinks the Jackson framework should apply to these cases.

In any event, I agree with you about what the plurality likely was up to in that statement. I also strongly suspect that Justice Kennedy had a similar agenda in mind--communicating an important point about the Court's views on certain arguments--when he wrote for the Court in Gonzales v. Oregon:

"The idea that Congress gave the Attorney General such broad and unusual authority through an implicit delegation in the CSA's registration provision is not sustainable. Congress, we have held, does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions--it does not, one might say, hide elephants in mouseholes." (quotation omitted).

So, if we are actually vote counting, even assuming a best-case scenario for the Administration (they get both Alito and Roberts, Thomas despite his dictum about Congress, and Scalia for reasons to be named later), I think they won't get to five.

Which does indeed explain why Gonzales seems uninterested in soliciting the aid of courts for resolution of these legal issues.
2.7.2006 2:13pm
Neal Lang (mail):
2.7.2006 2:14pm
Jack John (mail):

there is no "canon of avoiding constitutional questions that have not yet been answered"



Then please explain what the Court did in Newdow.
2.7.2006 2:17pm
Medis:
By the way, on the "battlefield" issue:

I thought it was very interesting that Specter raised the issue of the failed attempt to insert "in the United States" to the 2001 AUMF during the Gonzales hearing. Here is the exchange:

"SPECTER: Well, I think you're dealing with very different circumstances when you talking about a soldier on the field, as opposed to a United States person whose conversations are being electronically surveilled.

But let me move on here. It may well be that you and I won't agree on this point.

The resolution of September 14 did not add the words 'in the United States' after the words, quote 'appropriate force.' That was rejected to give the president the broad authority, not just overseas, but in the United States.

Isn't that a clear indication of congressional intent not to give the president the authority for interceptions in the United States?

GONZALES: Sir, I don't know where that record is to reflect that that actually happened.

I think the CRS, Congressional Research Service, said that in the legislative history -- and I may be wrong; it's late -- but I believe that they said there's no record to indicate that that ever occurred, quite frankly."

For all I know, Gonzales is right about the record. But presumably Specter is in a position to know what happened regardless of whether it appeared in the record.

I'm not sure how, if at all, this would impact a court case, but it certainly is interesting.
2.7.2006 2:18pm
Jack John (mail):

If anything, the Court's failure to discuss the avoidance issue helps DOJ here, for it seems to bolster the Department's conclusion that the AUMF authorizes suveillance, even without resort to extrinsic statutory interpretation tools.



Ding! Ding! Ding!
2.7.2006 2:19pm
Neal Lang (mail):
Which does indeed explain why Gonzales seems uninterested in soliciting the aid of courts for resolution of these legal issues.

Why take a chance when:
The real question is this - how does the United States proport to be a "government of laws", when its "bed rock" law is ephemerally based on the whims of "run-away Justices".
2.7.2006 2:19pm
Jack John (mail):

Except the plurality in Hamdi stated a number of broad principles about the separation of powers in wartime, including with respect to Congress, and even went so far as to cite Youngstown.



Except all they said is that all branches have some role, and, um, it was a plurality citing a concurrence. Weak, weak, weak.
2.7.2006 2:22pm
Jack John (mail):
Oh, and you all are forgetting that this is a public hearing THAT THE ADMINISTRATION WILL CITE TO IF IT ENDS UP IN COURT!!!
2.7.2006 2:28pm
Neal Lang (mail):
I thought it was very interesting that Specter raised the issue of the failed attempt to insert "in the United States" to the 2001 AUMF during the Gonzales hearing. Here is the exchange:

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

I see no foreign "battlefield" limitation in this text. Do you? If so, exactly where?

BTW, without benefit of "electronic surveillance" of "enemy agents" in the United States, exactly how is the Commander-in-Chief going to determine those "nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001" or "to prevent any future acts of international terrorism against the United States by such nations, organizations or persons", in order to fulfill Congress' mandate to him? Of course, he could always "Nuke 'em all, and let Allah sort 'em out!"
2.7.2006 2:31pm
Michael B (mail):
Medis,

Well, I will read Dames&Moore and re-read Hamdi vis-a-vis Cunningham. But I agree with the latter that the current situation is different in terms of its foreign vs. domestic import. Am not saying you dismiss Cunningham in some type of simple or tout court fashion. But am more persuaded by his more complete appreciation of the sui generis quality of the present situation. It is that (pivotal) aspect of Cunningham's analysis which, imo, you address in a far too summary fashion.

The sui generis qualities, compared to the Korean conflict, are minimally four-fold: 1) the unique quality of the assymetrical warfare involved, 2) the far greater liklihood of a domestic terrorist incident, 3) the very nature of intelligence gathering as compared to the production of steel and 4) evolving technologies (communications and weaponry and delivery mechanisms).
2.7.2006 2:32pm
Just an Observer:
Medis,

IIRC, the account of the rejected attempt to insert "in the United States" into the AUMF came from a public statement or op-ed recently by Tom Daschle, formerly minority leader.

While that account is undisputed, it is somewhat unofficial as far as "the record" goes. But most standards here in the Court of Public Opinion, as applied to all sides, seem rather loosey-goosey.

It seems only fair that if Gonzales would only agree to take the whole matter to a real court, the DOJ lawyers may object.
2.7.2006 2:37pm
jrose:
If anything, the Court's failure to discuss the avoidance issue helps DOJ here, for it seems to bolster the Department's conclusion that the AUMF authorizes suveillance, even without resort to extrinsic statutory interpretation tools.
Why does the Court's silence on the canon of constituional avoidance bolster the DOJ's conclusion that the AUMF authorizes warrantless surveillance?
2.7.2006 2:40pm
Jack John (mail):
Let me propose that we have a different balance in two situations:
1. a separation of powers argument by the Government versus an individual rights argument made by a person
2. a separation of powers argument by one branch of Government versus a separation of powers argument by another branch of Government

I don't think comments made or legal principles enshrined in context 1 travel well to context 2. And that is what results in much of the nonsense said in these posts. Libertarians tend to always want to make argument 1, because they care about people. But here we are talking about institutions, unless... is anyone aware of anyone who has standing to sue the Executive on these precise matters?
2.7.2006 2:41pm
Steve:
Tom Daschle:

Just before the Senate acted on this compromise resolution, the White House sought one last change. Literally minutes before the Senate cast its vote, the administration sought to add the words "in the United States and" after "appropriate force" in the agreed-upon text. This last-minute change would have given the president broad authority to exercise expansive powers not just overseas -- where we all understood he wanted authority to act -- but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused.


Arlen Specter:

The resolution of September 14 did not add the words 'in the United States' after the words, quote 'appropriate force.' That was rejected to give the president the broad authority, not just overseas, but in the United States.

Isn't that a clear indication of congressional intent not to give the president the authority for interceptions in the United States?


It seems difficult to contend that this event never happened, unless Senators of both parties are simply making it up. It also seems difficult to contend that the White House would press for additional language, minutes before a vote, if that language represented nothing but surplusage.
2.7.2006 3:19pm
Neal Lang (mail):
Libertarians tend to always want to make argument 1, because they care about people. But here we are talking about institutions, unless... is anyone aware of anyone who has standing to sue the Executive on these precise matters?

The people murdered by terrors are people, too. Don't they count? What about their "human right to life"? Or does the "privacy of the terrorist trump the life of their victims"?
2.7.2006 3:20pm
Medis:
Michael B,

As cynics like to say, a clever lawyer can distinguish any two cases.

To me, the more relevant issue is what the Court has been willing to distinguish. Again, I think that is why the holding and dicta in Hamdi are particularly relevant, insofar as that was a post-9/11 case. And I don't think one can emphasize enough that they cited Youngstown for the relevant proposition.
2.7.2006 3:25pm
farmer56 (mail):
A lot of people here are ducked taped to a tree, nose first, and debating what kind of tree it is. Instead of just using their hands to remove the duct tape and step back from the tree.

Yes I repeat my self.

Congress makes the law.

If the Executive Branch is overstepping the law that congress wrote.....Ammend the law.....

WHY? hide behind the robes of the court?

Yes. it is a system of checks and balences. Executive dont like the law? Veto it. Congress thinks the executive branch is wrong? Ammend the law to clarify. I see no legal claim that warrent any court an opportunity to rule. Thus, the courts dont get to play (no plantiff, no deffendent).

Congress is negligent in squealing instead of acting.

All the legal mumbo jumbo is a smoke screen to let our elect, an escape hatch, to avoid resposibility for the next attack, when the thugs have a mement to figure out the courts are handcuffing our self defense abilities.
2.7.2006 3:36pm
Medis:
farmer56,

Why won't you answer my question? Have you also posted under the name "corngrower"?
2.7.2006 3:41pm
Neal Lang (mail):
In a December 23, 2005 op-ed article, former Senate Majority Leader, Thomas Daschle (D-SD) stated that "Literally minutes before the Senate cast its vote [on S.J.Res. 23] the administration sought to add the words "'in the United States and'" after "'appropriate force'" in the agreedupon text [of the bill]." Senator Daschle wrote that this change would have given the President "broad authority to exercise expansive powers not just overseas — where we all understood he wanted authority to act — but right here in the United States, potentially against American citizens." Senator Daschle stated that he refused to accede to this request. Tom Daschle. "Power We Didn't Grant," Washington Post, December 23, 2005, p. A21. This account is not reflected in the official record of the legislative debate on S.J. Res. 23. From: Authorization For Use Of Military Force in Response to the 9/11 Attacks (P.L. 107-40): Legislative History - Order Code RS22357 - January 4, 2006

Note the date of the OpEd piece is published after the NY Times story ran and the Democrat hit teams went into action. Also please note that: "This account is not reflected in the official record of the legislative debate on S.J. Res. 23." Also please note that this document was "revised" on January 4th, 2006. Also please note the actual text of 2001 AUMF:
Whereas such acts render it both necessary and appropriate that the United States exercise its
rights to self-defense and to protect United States citizens both at home and abroad
;

As further proof, we have the White House proposed Resolution for comparison:
Text of Original Draft of Proposed White House Joint Resolution 10 - (September 12, 2001)

Joint Resolution To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.

Whereas on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens; and

Whereas such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad; and

Whereas in light of the threat to the national security and foreign policy of the United States
posed by these grave acts of violence; and

Whereas such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States,

Now, therefore be it Resolved by the Senate and the House of Representatives of the United States of America in Congress assembled That the President is authorized to use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, harbored, committed, or aided in the planning or commission of the attacks against the United States that occurred on September 11, 2001, and to deter and pre-empt any future acts of terrorism or aggression against the United States.

The only change was the addition of a 5th "Whereas" clause, to wit:
Whereas the President has authority under the Constitution to take action to deter and prevent
acts of international terrorism against the United States; Now, therefore, be it

Which appears only to strengthen the Presidents' Constitutional hand!
2.7.2006 4:06pm
just wondering:
Neal asked:

Exactly where was the "battlefield" on the morning of 9/11/2001?

I think that during an actual attack, such as that which occurred on 9-11, the President can clearly call upon his commander-in-chief powers to thwart such attack. But I think the argument that the United States is part of an actual battlefield even now is less persuasive. (Unless Milligan has been overturned, that is.) Anyway, one can argue that what is "necessary and appropriate" in the United States may differ from what might be "necessary and appropriate" for military operations in Afghanistan.
2.7.2006 4:18pm
Michael B (mail):
"To me, the more relevant issue is what the Court has been willing to distinguish." Medis

Well, firstly, what is being distinguished are critical, not subsidiary or peripheral factors. That's why I enumerated four of those factors, to delineate and focus upon their critical and salient qualities.

I would put it like this: what is relevant is both what the court has been willing to distinguish as well as the contemporary, more critical, sui generis, existential factors. A great deal of the more substantial differences (in contrast to mere partisan or factional interests) between the two sides pertains to those two, equally viable, strains in the debate.

To risk putting it in pedantic terms, these two interests shouldn't be used to cancel one another out but rather should be brought into dialectical tension with one another, to help support and refine one another within that creative tension. As such and at best, they would be viewed less as objects battling to the death and more as creatively defined and mutually accepting objects. On the one hand, this is not Watergate; on the other hand, thoughtful and concerned civil libertarians are not Fifth Columnists.

At any rate, thanks for the discussion, am exiting for the day.
2.7.2006 4:19pm
just wondering:
Neal, the AUMF was modified to say

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

The italicized portion was added as a limitation to the authority given. The whereas clause doesn't confer any authority at all.
2.7.2006 4:26pm
Neal Lang (mail):
It seems difficult to contend that this event never happened, unless Senators of both parties are simply making it up. It also seems difficult to contend that the White House would press for additional language, minutes before a vote, if that language represented nothing but surplusage.

Why is this not reflected in the "contemporary" Congressional Record? Why did it take over 4 years for CRS to produce this record - September 2001 until January 2006? Why is it that Daschle's recollection of this event only was recorded after the NY Times story on the NSA Terrorist Surveillance Program.
Just before the Senate acted on this compromise resolution, the White House sought one last change. Literally minutes before the Senate cast its vote, the administration sought to add the words "in the United States and" after "appropriate force" in the agreed-upon text. This last-minute change would have given the president broad authority to exercise expansive powers not just overseas — where we all understood he wanted authority to act — but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused.

Who, what, where, when, and how?
On the evening of Sept. 12, 2001, the White House proposed that Congress authorize the use of military force to "deter and pre-empt any future acts of terrorism or aggression against the United States." Believing the scope of this language was too broad and ill defined, Congress chose instead, on Sept. 14, to authorize "all necessary and appropriate force against those nations, organizations or persons [the president] determines planned, authorized, committed or aided" the attacks of Sept. 11. With this language, Congress denied the president the more expansive authority he sought and insisted that his authority be used specifically against Osama bin Laden and al Qaeda.

Really? Then how does Daschle explain the "actual text", to wit:
Now, therefore be it Resolved by the Senate and the House of Representatives of the United States of America in Congress assembled That the President is authorized to use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, harbored, committed, or aided in the planning or commission of the attacks against the United States that occurred on September 11, 2001, and to deter and pre-empt any future acts of terrorism or aggression against the United States.

Tom needs to re-read the end results of his actual work product!
2.7.2006 4:31pm
Tom Holsinger (mail):
Just Wondering,

Please tell us your bottom line here. If 3000 dead on 9/11 wasn't enough to make America a battleground for the duration of this war, how many more will it take? 30,000? 300,000? Three million? Or must all of us be killed before you admit that America is a battleground?

Or do you require that we let Al Qaeda kill a few thousand Americans at home every five years before you admit that America is a battlefield in this war?
2.7.2006 4:32pm
Tom Holsinger (mail):
I also point out that this call is not one which any court is qualified to make. It is for the political branches, and most especially for the President.
2.7.2006 4:37pm
Neal Lang (mail):
I think that during an actual attack, such as that which occurred on 9-11, the President can clearly call upon his commander-in-chief powers to thwart such attack. But I think the argument that the United States is part of an actual battlefield even now is less persuasive. (Unless Milligan has been overturned, that is.) Anyway, one can argue that what is "necessary and appropriate" in the United States may differ from what might be "necessary and appropriate" for military operations in Afghanistan.

So your contention is that the terrorist will not attack the US again! Interesting! From where do you get your "intel". In your World, was Gettysburg truly a battlefield, or something else. There is absolutely no difference between the battlefield in Iraq, Afghanistan and the United States. A battlefield is a "sphere of contention". The only way for the US to no longer be a "battlefield" is if the terrorist concede same and vacate our country. Until that happens - it remains a "sphere of contention" in the War on Terror". Any other take is totally illogical.
2.7.2006 4:40pm
Medis:
On the "battlefield" issue:

It seems obvious to me that the US either is or is not a "battlefield" depending on whether you adopt a broad or narrow definition of that term--and I see no reason to think one definition is right and another wrong. For the purposes of understanding Hamdi, however, the relevant question is what definitions the court was using. Here is the relevant passage:

"Under the definition of enemy combatant that we accept today as falling within the scope of Congress' authorization, Hamdi would need to be 'part of or supporting forces hostile to the United States or coalition partners' and 'engaged in an armed conflict against the United States' to justify his detention in the United States for the duration of the relevant conflict. Brief for Respondents 3. The habeas petition states only that '[w]hen seized by the United States Government, Mr. Hamdi resided in Afghanistan.' App. 104. An assertion that one resided in a country in which combat operations are taking place is not a concession that one was 'captured in a zone of active combat operations in a foreign theater of war,' 316 F.3d, at 459 (emphasis added), and certainly is not a concession that one was 'part of or supporting forces hostile to the United States or coalition partners' and 'engaged in an armed conflict against the United States.' Accordingly, we reject any argument that Hamdi has made concessions that eliminate any right to further process."

I don't think that decides the issue of how to apply Hamdi to the NSA program, but I think it clarifies what the Court had in mind for that particular case.
2.7.2006 4:46pm
Neal Lang (mail):
The italicized portion was added as a limitation to the authority given. The whereas clause doesn't confer any authority at all.

So it is your contention that if the President discovers a terrorist plot not involving al Qaeda, then he is not empowered "to use all necessary and appropriate force" in order to "to deter and pre-empt any future acts of terrorism or aggression against the United States" from this new terror source? Amazing! Please note that Congress leaves the decisionas to WHO up to the Commander-in-Chief. Presumeably, the Congress had some idea that the President might just use "electronic surveillance" and "intelligence gathering" to make that determination. Or is that to large a stretch?
2.7.2006 4:47pm
Medis:
Michael B,

I enjoy a good round of existential discussion as much as the next guy, but I'm not sure such a discussion is really going to advance the legal analysis. Again, on such a philosophical level, it is easy to draw distinctions (it is what philosophers do, in fact). The legal question, however, is whether those distinctions are actually determinative of the relevant legal rule. And again, it seems to me that in Dames &Moore and Hamdi, the Court has not wavered on the proposition that Youngstown will provide the rule.
2.7.2006 4:50pm
colts41 (mail):
farmer56 (and corngrower, wherever you are):

Your "amend the statute" argument invites a pointless exercise, whether the statute in question is FISA or AUMF.

Let's assume Congress takes a suspenders-and-belt approach (1) by amending FISA to cover what the administration has grudgingly admitted it's doing, (2) by amending the AUMF to make clear it never impacted FISA at all, and (3) for good measure by passing an entirely new law saying that all searches, including eavesdropping, on any person lawfully in the United States must be pursuant to a warrant, irrespective of the source of the communication or purpose of the search.

The administration's position, repeatedly made, is a big "so what . . . we don't need no stinkin' statute".

Why? 'Cause the president as CIC has the inherent, unlimitable power to defend the US homeland however he deems necessary and appropriate. No war-powers resolution required. No "use of force" resolution required.

No Congressional authorization to use force is necessary because "The Prize cases" arising during the Civil War make clear that the President has a constitutional duty to defend the homeland. The administration contends this authority is not only inherent, but plenary and untouchable.

Given that the administration has expressly made that claim, your "amend the statute" argument is hardly a constructive, let alone meaningful suggestion.

Yours is a partisan political argument . . . intended, perhaps as Medis has said, solely to paint the opposition as weak-kneed constitutionalists who feel obliged to have Congress interfere with the President's pristine military judgment, in contrast to those strong GOP statists who are willing to let the President do whatever he wants . . . as long as it's not against God-fearing Americans.
2.7.2006 4:51pm
farmer56 (mail):
Medis;

Yes I am Corngrower. But???? That somehow alters how ,you, respound to the facts I presented? Courious?

Yes, Thank you. I will repeat myself.

To all 535 members of Congress. WRITE A CLARIFICATION! Or??? Just shut up. Only congress can write the law that is in debate. Every single member of congress can offer up an ammendment to the law that congress originially offered, and, passed, and, the president signed. So,,typing slow now, Congress needs Zero time to hold committee hearings. SHIT! they dont want to ammend the law!? They just want to get face time on TV. (Shhhh, writing a law= ZERO MEDIA TIME! Holding a hearing? Lots)

Correct me if you wish. But I have seen the Memorial service of Coreeta Scott King,,,,,,,,,,,turn into a political rally. Gee. some people dont even have the honor to bury their own dead?
2.7.2006 4:57pm
farmer56 (mail):
Medis;

Yes I am Corngrower. But???? That somehow alters how ,you, respound to the facts I presented? Courious?

Yes, Thank you. I will repeat myself.

To all 535 members of Congress. WRITE A CLARIFICATION! Or??? Just shut up. Only congress can write the law that is in debate. Every single member of congress can offer up an ammendment to the law that congress originially offered, and, passed, and, the president signed. So,,typing slow now, Congress needs Zero time to hold committee hearings. SHIT! they dont want to ammend the law!? They just want to get face time on TV. (Shhhh, writing a law= ZERO MEDIA TIME! Holding a hearing? Lots)

Correct me if you wish. But I have seen the Memorial service of Coreeta Scott King,,,,,,,,,,,turn into a political rally. Gee. some people dont even have the honor to bury their own dead?
2.7.2006 4:57pm
Medis:
farmer56/corngrower,

I was just trying to track the evolution of this meme. So, I wanted to know if you were the same poster who had tried to promote this idea quite a while ago.
2.7.2006 5:01pm
Just an Observer:
Re the domestic "battlefield" issue:

Could someone refresh my memory as to why Moussaoui, once believed to be the "20th hijacker," is being tried in a civilian criminal court instead of being treated as Padilla once was, as an "enemy combatant?"

I honestly have forgotten the factors that distinguish these cases.
2.7.2006 5:21pm
just wondering:
Tom:

Please tell us your bottom line here. If 3000 dead on 9/11 wasn't enough...

I don't have a "bottom line," I am merely suggesting that the issue shouldn't be assumed away. I also think courts are fully capable of determining when and where a war exists. See, e.g., the Prize Cases and Milligan. I don't know what criteria a court might use to determine the existence of a battlefield in this case, but I think more than the President's say-so is likely required. Military action consistent with the concept of a battlefield might be helpful, and this might well be supplied by reference to the President's taking of prisoners in the United States and other actions on the part of the military, for example. On the other hand, AFAIK no targets of the NSA surveillance program have been killed or captured as enemy combatants. If the Court decides Padilla, then maybe we'll know for sure.
2.7.2006 5:28pm
just wondering:
Neal asked:

So it is your contention that if the President discovers a terrorist plot not involving al Qaeda, then he is not empowered "to use all necessary and appropriate force" in order to "to deter and pre-empt any future acts of terrorism or aggression against the United States" from this new terror source?

Whatever power he might have under the Constitution in such circumstances would apply. The AUMF would not add any authority beyond that. I would suggest that if the President were to discover a terrorist plot involving a domestic threat, he would be limited to using law enforcement mechanisms, including if necessary a use of deadly force to prevent imminent harm.
2.7.2006 5:33pm
farmer56 (mail):
Medis;

Promote the Idea that the branch of government that is squealing? Could fix the problem? And? Gee, I got this silly notion, that, if you write the law. you can fix it?!

But I guess you believe that a judge that believes that they have the ability to change the words of the constitutions from 'for public use' to for public good'. Rules you and me.

No. I want the ability to toss from office those persons that are idiots.
2.7.2006 5:38pm
Medis:
corngrower/farmer56,

We've discussed what is wrong with your idea many times. In a nutshell, neither we nor Congress are in a position to know yet what the best remedy might be.

But I've never seen you actually deal with that point. Rather, you just disappear for a while, then reappear and make the same initial arguments as if we haven't had this conversation many times before.

Hmmm.
2.7.2006 5:46pm
Tom Holsinger (mail):
colts41,

You've gone over the line where rhetorical excess eviscerates an underlying argument.

Congress' power to declare war does not in any way limit a President's power to make war. Such limitation power lies in other ways, notably budgetary. "Those without arms can still die on them". No DOW is required when we are attacked, and President Clinton's use of force over Kosovo killed what little remained of the War Powers Act - Kosovo absolutely proved the point John Yoo makes in the DOW chapter of his The Powers of War and Peace.

The only practical effect of Congresses' constitutional DOW power at present is in adding statutory war powers to a President beyond his inherent constitutional authority. And there are a bunch of such statutes - ones which take effect automatically upon a formal DOW.

NSA surveillance of "foreign communications" - those with one or both ends in a foreign country - are expressly exempted from FISA's definition of "electronic surveillance". This was discussed in an earlier thread. My father was the administrative assistant to a Congressmen on the House Intelligence Committee at the time FISA was enacted, and I discussed it with both of them. Congress intended to exempt foreign communications from FISA. This was also in FISA's legislative record and the Congressional Record.

FISA was enacted to restrain and oversee surveillance of "domestic communications" - those with both ends in the U.S. There many exceptions in FISA to the warrant requirement for such such surveillance, but IMO those do not extend to all the NSA surveillance of domestic communications since 9/11.

IMO the Bush administration's justification for domestic surveillance contrary to FISA is a President's inherent constitutional authority for surveillance of enemy communications. This is certainly valid as far as it goes, but I don't trust the feds at all here given pre-FISA, particularly Nixonian, abuses. (Dad's biggest disappointment was that he didn't make Nixon's Enemies List but his best friend did, and Ray never let Pop forget it).

No Congressional enactment can detract from a President's Constitutional powers, and no President can give those up - such would be void as contrary to public policy.

Lawyers (not to mention law professors) should beware of a tendency to think that all disputes can be resolved at law. This applies in particular to Constitutional separation of powers issues, where Might most definitely makes Right, and the American people determine both on election day. Dressing a fundamentally political dispute in a lawsuit doesn't make the latter fit.

There are limits on disputes which can be resolved by legal process. This is why we have politics. Real life is messy like that.
2.7.2006 5:53pm
Medis:
Tom,

But do you really think a legal determination would be completely irrelevant to the political process? I think that is an overstatement--particularly when the people are closely divided on an issue, whether or not some action is legal according to the courts may tip the balance considerably.
2.7.2006 5:59pm
Tom Holsinger (mail):
Just Wondering,

If 9/11 didn't make America a battlefield for legal purposes in this war, nothing did. That call was made by the enemy and nothing a court says can gainsay it. Those who argue to the contrary (you are one) can expect such contentions to affect the weight given their opinions and, for courts, the validity of, and respect given, their rulings and their competence.

The reaction to judicial over-reaching and violation of separation of powers has finally begun, and it won't end with issues of war and peace.
2.7.2006 6:08pm
Steve:
Only on the Internet could the same person who made this comment:

Please tell us your bottom line here. If 3000 dead on 9/11 wasn't enough to make America a battleground for the duration of this war, how many more will it take? 30,000? 300,000? Three million? Or must all of us be killed before you admit that America is a battleground?

Or do you require that we let Al Qaeda kill a few thousand Americans at home every five years before you admit that America is a battlefield in this war?


go on to make this comment a few minutes later:

You've gone over the line where rhetorical excess eviscerates an underlying argument.
2.7.2006 6:09pm
Tom Holsinger (mail):
Medis,

You assume that people are closely divided.

Ask again when the jury nullification discussion begins.

I repeat, this one won't be limited to issues of war and peace. Your side will come to pine for the days of compassionate conservatism and the wise, genteel and cirucmspect George W. Bush.
2.7.2006 6:15pm
Jack John (mail):
Neal Lang: The people murdered by terrors are people, too. Don't they count?

Yes, which is why I have repeatedly defended the administration here despite the incessant and puerile ad hominems. But the specific point I was making contrasted caring about people when individual rights are directly at stake to caring about people when two institutions are bickering and individual rights are indirectly affected. The latter is inappropriate. A purely institutional fight should be made on the basis of institutional arguments, not personal ones, even yours. In general, I think most people in here do not respect the office of the President or the Executive as a branch of government, simply because they didn't vote for Bush. That's sad. The Executive branch deserves more dignity than most people here give it, regardless of whether terrorists are beating at the door.
2.7.2006 6:17pm
Medis:
Tom,

It isn't a blind assumption. The polls I have seen suggest that people are in fact closely divided on these issues. Most importantly, it seems their response depends on how the question is framed--see today's WSJ online column by Carl Bialik. That is a large part of why I think a legal decision could sway opinion.

Incidentally, what do you think is "my side"? If you are assuming I am a Democrat, that is an erroneous assumption. Although I will admit I pine for the days of the President you describe--although I'm not quite sure they ever happened.
2.7.2006 6:36pm
Jack John (mail):

MEDIS: But do you really think a legal determination would be completely irrelevant to the political process?



Given that no one has standing to sue, why do you believe, Medis, that a legal determination -- other than the determination that the President has made in accordance with his constitutional obligation -- is forthcoming?

The arguments we are trading back and forth here are arguments in favor of Congressional decision-making against arguments in favor of Executive decision-making; and Congress does not have standing to sue the President for his enforcement of a law; even if it did, it would constitute a "generalized greivance" that is not justiciable in any federal court, including the Supreme Court, under Article III of the Constitution. Why is it that you fail to recognize the legal distinction between:

1. a separation of powers argument by the Government versus an individual rights argument made by a person

and

2. a separation of powers argument by one branch of Government versus a separation of powers argument by another branch of Government

Specifically because Congress is not a person, legal principles enshrined in context 1 seem not to travel well to context 2. What is your argument to the contrary?
2.7.2006 6:38pm
Neal Lang (mail):
But the specific point I was making contrasted caring about people when individual rights are directly at stake to caring about people when two institutions are bickering and individual rights are indirectly affected.

The main reason "governments are instituted among men is to secure these rights". The most of which is the "right to life". The governmental "food fight" has an outcome that may directly and terribly affect "individual rights". To belittle this consequence is rather stupid. The Congress appropriately charged the President as Commander-in-Chief to secure the Nation. Now, 4 years later, they claim that they didn't intend to allow he the wherewithal to do the job. This both shortsighted and dangers. If and when there is another National Security failure and the requisite commission is formed to attribute blame - will Sens. Specter, Kennedy, Durbin, Schumer, et al step-up and accept their share of the responsibility? In a pig's eye!
2.7.2006 6:51pm
Neal Lang (mail):
Whatever power he might have under the Constitution in such circumstances would apply. The AUMF would not add any authority beyond that. I would suggest that if the President were to discover a terrorist plot involving a domestic threat, he would be limited to using law enforcement mechanisms, including if necessary a use of deadly force to prevent imminent harm.

On just what basis do you make that claim? Did Abraham Lincoln use the US Marshalls to arrest Jefferson Davis? Clinton fought the terrorists as a "law enforcement problem", with the result that 3,000 of our citizens lost their lives on 9/11/2001. Is it your contention that we did not learn anyhtin for that experience? If so, kindly give me your take on USNORTHCOM and Homeland Security.
2.7.2006 7:01pm
Jack John (mail):

Neal Lang: The main reason "governments are instituted among men is to secure these rights". The most of which is the "right to life". The governmental "food fight" has an outcome that may directly and terribly affect "individual rights".



The fact that you use the modal auxiliary "may" to modify "directly" reveals that what we both really know, that the impact on the "right to life" is indirect. My point is not that national security is a low priority or that terrorist attacks are a day at the beach. My point is that internecine institutional squabbles should be made on the basis of institutional reasons -- e.g., it is perfectly fair to criticize those who denigrate the dignity of the office of the President or the Executive as a branch of government. That the outcome of who wins that debate will affect life and death matters is something upon which we both agree. We also seem to agree that a "governmental food fight" is not "a legal case in which an injured person claims that an agent of the government has infringed on one of his fundamental individual rights."


Neal Lang: To belittle this consequence is rather stupid.


I am not stupid, but you are incivil. No one has belittled the consequence. But there is a difference between a reason and the pretense that possible consequences are reasons and putting them forth as arguments. They are not. This however is an argument:


The Congress appropriately charged the President as Commander-in-Chief to secure the Nation. Now, 4 years later, they claim that they didn't intend to allow he the wherewithal to do the job. This both shortsighted and dangers. If and when there is another National Security failure and the requisite commission is formed to attribute blame - will Sens. Specter, Kennedy, Durbin, Schumer, et al step-up and accept their share of the responsibility?


Now that you have made an argument, rather than an emotional charge, I see no reason for us to continue arguing, as I have no particular gripe with your argument.
2.7.2006 7:06pm
Tom Holsinger (mail):
Medis,

The only poll that counts is the one on election day. The public votes for candidates, not issues. As a practical matter the public at large is titanically unaware of legal issues - what matters to them are results.

The judicial branch put itself on a collision course with the executive branch on issues of war and peace, and the public will choose the executive every time when their safety against enemy attack at home is involved. The judicial branch (it is not just the Supreme Court) got here by continual over-reaching until meeeting opposition, and it just met opposition.

It is generally wise not to threaten the vital interests of others unless you are willing to risk your own. The judicial branch has unintentionally done just that - it violated separation of powers in encroaching on the core constitutional powers of the executive branch.

The Democrats and judiciary have no idea what is coming to them.

Your arguments here and elsewhere on this board have indicated a general political/philosophical affiliation akin to a relatively moderate present-day Democrat - similar to those esposed by the editors and writers of The New Republic. Mine are those of an old Scoop Jackson Democrat, which these days puts me pretty close to a centrist GOP position. I didn't switch parties until the late 1980's based on Jeanne Kirkpatrick's example. Richard Perle is the last significant Scoop Jackson Democrat who is still a Democrat, as far as I know.
2.7.2006 7:08pm
Steve:
Clinton fought the terrorists as a "law enforcement problem", with the result that 3,000 of our citizens lost their lives on 9/11/2001.

I don't see why this has to be either a childish Bush-bashing thread or a childish Clinton-bashing thread. There are a zillion blogs on the Internet for both those purposes.

Clinton fired cruise missiles at an al-Qaeda training camp in an attempt to kill bin Laden; that is not generally regarded as a "law enforcement method."

Even if you believe an al-Qaeda member who is caught within the US can be treated exactly the same as a Nazi soldier in uniform - to wit, shot on sight - we still have to answer some very basic questions, like: How sure must the authorities be that this person is an al-Qaeda member? Should anyone else be involved in the decision? Should there be any review of the decision, by anyone?

You may feel that those evil creatures known as "lawyers" shouldn't be allowed to get anywhere near these decisions lest they destroy us all, but it's a tad simplistic to pretend that these choices don't have to be made at all. I think a large majority of Americans want al-Qaeda to be treated as more of a danger than petty thieves, but I also think a large majority of Americans are not willing to see the same rules applied to our city streets that applied at Omaha Beach.
2.7.2006 7:24pm
Neal Lang (mail):
The polls I have seen suggest that people are in fact closely divided on these issues. Most importantly, it seems their response depends on how the question is framed--see today's WSJ online column by Carl Bialik.

And who "frames the question"? And how do they come down on the controversy?
Sixty-four percent (64%) of Americans believe the National Security Agency (NSA) should be allowed to intercept telephone conversations between terrorism suspects in other countries and people living in the United States. A Rasmussen Reports survey found that just 23% disagree. […]

The Question: "Should the National Security Agency be allowed to intercept telephone conversations between terrorism suspects in other countries and people living in the United States?"

At least 23% are Moonbats that wouldn't support President Bush on any issue.
2.7.2006 7:27pm
Michael B (mail):
"I enjoy a good round of existential discussion as much as the next guy, but I'm not sure such a discussion is really going to advance the legal analysis." Medis

Well, while I fully understand and fully appreciate your point (reliance upon Hamdi and Dames&Moore, concern w/rule of law), I wasn't advancing an abstract/philosophical point, was advancing a legal/real-world set of issues. Too, being stubborn and informed, I likely won't concede the debate unless/until this hits the higher courts and is decided.

Among the other points already forwarded, and this is critical, I simply do not see the rule of law as having been abrogated in any categorical or cavalier or arbitrary sense (e.g., in a manner reminiscent of Watergate, which FISA was, in part, intended to remedy). Reasons include 1) Members of Congress and one FISC judge has been kept informed, 2) the President has signed off on it every 30/45 days so is taking direct and on-going responsibility, 3) it is targeted at foreign surveillance for purposes related to the present conflict, 4) Presidential counsel such as Walter Dellinger's to Pres. Clinton in '94, cited by Cunningham: "[W]here the President believes that an enactment unconstitutionally limits his powers, he has the authority to ... decline to abide by it, unless he is convinced that the [Supreme] Court would disagree with his assessment." (Cunningham's emphasis)
2.7.2006 7:30pm
Michael B (mail):
Btw, in Hamdi, Thomas's dissent also cites Youngstown and however undecidedly, that does add at least a little ambiguity as well.
2.7.2006 7:35pm
Neal Lang (mail):
The fact that you use the modal auxiliary "may" to modify "directly" reveals that what we both really know, that the impact on the "right to life" is indirect.

Only to those who do not die in the next WTC is the impact indirect.
But there is a difference between a reason and the pretense that possible consequences are reasons and putting them forth as arguments.

Perhaps I should have put it that making the "right of privacy for terrorists to contact their controls in the Hindu Kush to plan their nefarious deeds" the "moral equivalent" of the potential loss of life should the terrorist succeed in the plot is stupid.
2.7.2006 7:38pm
Neal Lang (mail):
I don't see why this has to be either a childish Bush-bashing thread or a childish Clinton-bashing thread. There are a zillion blogs on the Internet for both those purposes.

Clinton fired cruise missiles at an al-Qaeda training camp in an attempt to kill bin Laden; that is not generally regarded as a "law enforcement method."

Nor was it very effective, either. As I recall, one of the missile attack was timed to get his confessions about his illicit love affair off the front page.
Even if you believe an al-Qaeda member who is caught within the US can be treated exactly the same as a Nazi soldier in uniform - to wit, shot on sight - we still have to answer some very basic questions, like: How sure must the authorities be that this person is an al-Qaeda member? Should anyone else be involved in the decision? Should there be any review of the decision, by anyone?

I suggest the proper person to pose these questions is to Janet Reno. I believe she ran the Waco Massacre just like a military campaign, right down to the armor and gun ships. As I recall, no one in the "Chain of Command" was taken to task for that one, despite General Reno's assertion that "the buck stops here"!
2.7.2006 7:46pm
Jack John (mail):

Only to those who do not die in the next WTC is the impact indirect.



Thanks for kicking mud on the memory of my parents with your fallacious rhetoric. How many relatives did you lose in 9/11?
2.7.2006 7:55pm
Jack John (mail):

the "right of privacy for terrorists to contact their controls in the Hindu Kush to plan their nefarious deeds" the "moral


None of my arguments in any way concern protecting the privacy rights of terrorists.
2.7.2006 7:56pm
Medis:
Tom,

I think you are wrong about the American people, but I guess we shall see if your dire predictions prove correct.

Michael B,

What you are describing is the President making up his own rules and procedures. You may think those rules and procedures are adequate, but that it isn't the rule of law as we know it.

Incidentally, I also think Thomas's dissent in Hamdi is well worth looking at. Thomas distinguishes the legislative and judicial branch in his analysis ("Congress, to be sure, has a substantial and essential role in both foreign affairs and national security. But it is crucial to recognize that judicial interference in these domains destroys the purpose of vesting primary responsibility in a unitary Executive."). And as you note, he repeatedly cites Youngstown. Perhaps most important is this passage:

"To be sure, the Court has at times held, in specific circumstances, that the military acted beyond its warmaking authority. But these cases are distinguishable in important ways. . . . And in Youngstown, Justice Jackson emphasized that 'Congress ha[d] not left seizure of private property an open field but ha[d] covered it by three statutory policies inconsistent with th[e] seizure.' 343 U.S., at 639 (concurring opinion). See also Milligan, supra, at 134 (Chase, C. J., concurring in judgment) (noting that the Government failed to comply with statute directly on point)."

So, that is why I think the proper vote count after Hamdi is probably 9-0 against the exclusive powers argument with respect to excluding Congress, not 8-1.
2.7.2006 11:49pm
Jack John (mail):

So, that is why I think the proper vote count after Hamdi is probably 9-0 against the exclusive powers argument with respect to excluding Congress, not 8-1.


The question isn't whether the Executive cannot exclude Congress in all circumstances, but whether there are any circumstances in which the Executive has exclusive powers that are nonjusticiable before a federal court, or where both Congress and the Executive claim they are right and the issue is nonjusticiable. There are some. This context is one of them.
2.8.2006 1:04am
farmer56 (mail):
Medis

We've discussed what is wrong with your idea many times. In a nutshell, neither we nor Congress are in a position to know yet what the best remedy might be.

No you are just flat out wrong I know the best remedy is. I dont have the ability to do it. Congress knows the best remedy is to keep their mouth shut. Because 100 or so of congress see them self in the oval office. None whant to step on their own throat.

Yes I get the premis that if the executive branch is ignoring this law....although lots of lawyers dissagree about a violation of statute....thus the pissing match.

This is not about law. This is political masturbation. Something to kill time, make yourself feel good, and in the end nothing to show for it.

It is ,not, about the law.

So? Why continue to debate the statute when it has no bearing on the debate?

Also, AND this is the big one. Those that think the law is being violated, and prevail in frount of some self important judge. The result is the end of servalence. Is that what is being sought?

I am confused. How do I get a warrent to monitor telephone calls until I know who to monitor? How do I get evidence of a suspect plotting a bombing? Congress has already shit in our collective nest by making the program public. There is no need for it now. All the people plotting to kill the next 10,000 US citizens, learning from those grand protectors of of my 'rights' (Congress), have switched to disposible cell phones. Whew! I feel safer.
2.8.2006 9:35am
Medis:
farmer56,

Nothing in your rant is relevant to my point. You may believe that you already know what to do. But your argument is that those who disagree with you should already have done something if they are serious. But since they disagree with you, they obviously don't necessarily share your view that they already know what they should do.

Accordingly, I think it is obvious that you actually have no real interest in understanding what people who disagree with you might be thinking. So, why not just cut out the middle step--pretending to try to understand their thinking--and go straight to ranting against them?
2.8.2006 10:42am
farmer56 (mail):
I would say 'cute' if it were. You have ran out of any cogent thought. have a good day.
2.8.2006 1:53pm
farmer56 (mail):
Sorry

I will repeat. Not a single member of congress is will to seek a solution. Why? Not a single member of congress wants the outcome of the solution. So??? if the persons you elected to office dont want a solution???Elect some one that has a spine to start on a solution to fit your views.

Yes I repeat. Not a single politician is willing to do their job. write a bill. You seem to be in a huge minority of the elected.

Facts can be a bitch.
2.8.2006 1:58pm
Medis:
farmer56/corngrower,

You can repeat your statements over and over, and it will never change the fact that they are based on the faulty premise that if a member of Congress has not submitted legislation yet, he or she will never do so.
2.8.2006 2:08pm
farmer56 (mail):
A member of Congress? Huh? A memmber of congress? Can you define that? Do you mean like the people that wrote the law could change the law? Is that what you mean?

Brilliant!
2.8.2006 2:26pm
Medis:
farmer56/corngrower,

Congress has two houses, the Senate and the House of Representatives. By "members of Congress" I mean members of either house.

And yes, they could propose a change in the law. Or they could propose keeping the law the same and doing nothing. Or they could propose keeping the law the same and impeaching and removing the President. And so on.

The difference between us, I guess, is that you think you already know what will happen in the future. Unfortunately, my crystal ball is in the shop, and I gather you are using yours.
2.8.2006 3:27pm
farmer56 (mail):
OK still confused. Read the rest of the above posts. then read my posts. Then read your last post. All of a sudden you fail to mention the courts get involved. I am saying exactly what you just said! Wow! this is a long way around the tree to get to the same spot. keep the law and do nothing. change the law. impeach the president. I have no clue what will happen in congress. My Guess? Nadda. there is not an once of wiggle room left if you take two of the three opptions. You left out the forth opption. Squealing like a stuck pig on TV, radio, print, and anything else where they can get some facetime.

You and I agree 100%. do something or shutup.

After the dog and pony show that is these hearings are supposed to address, what do you suppose will happen?

I unzipped, and taken out my crystal balls, and, hum? nothing. Imagine that.
2.8.2006 4:59pm
Medis:
farmer56/corngrower,

Ah, I see we have gotten to the part in your little drama where you pretend that I have been saying that the courts should take over the issue. As I recall, the way this works is that I point out that I never said this was an issue the courts will be able to resolve. Then you ask me some sort of question like, "If you don't think the courts should resolve this issue, then why do you think they should have decided the abortion issue in Roe v. Wade?" I'll then point out that has nothing to do with what I was talking about, and you'll insist it has everything to do with what I was talking about, since I believe the courts should be deciding this issue.

We'll go back and forth like this a few times--you insisting that I want the courts to decide the issue, me insisting that I don't--and then you will come back to how if those cowards in Congress meant anything they said, they would already have passed a law. I'll point out that may yet happen, and you'll go off on a nonresponsive rant about Congress not doing anything. I'll again point out that Congress might do something in the future, you'll rant, and we'll go back and forth like that for a few times.

Finally, when I point out what Congress might do in the future, you'll say, "See, that's what I've been saying all along, so why did you say you want the courts to decide?" And then we'll be back to the top of this post and we can start the whole ride again.

Did I leave anything in your script out? I don't think so. So, let's not go through all that again, but say that we did.
2.8.2006 5:14pm
Jack John (mail):
Corngrower, it is quite obvious that Medis does want the court to decide the issue.

1. That is why he claimed that all 9 Justices in Hamdi stated that the Court must have a role in deciding whether Congress is excluded from regulating the Executive.
2. That is why he argued that clearly nonjusticiable cases are justiciable anyway, if "enough people" sue over time (wage guerilla war on the court system).
3. That is why he keeps mis-citing Clinton v. New York, a Supreme Court case that stands for the principle that Article I has defined limits, beyond which Congress cannot encroach on the Executive.
4. In other words, Corngrower, Medis ia a liar. I have a feeling that Medis is a MoveOn.org plant, as he spits out all their talking points.
2.8.2006 6:04pm
Colin:
In another thread I posted this:

Jack John, I wonder if you are aware of how severely your unprofessional tone detracts from your arguments? In this thread alone you've called another poster illiterate and accused him of plagiarism merely because he disagrees with you. I, for one, have become sorely tempted to simply skim past your posts; aside from being often non-responsive, lately they've been insulting, dismissive and crass. If you are interested in persuading your readers, rather than simply announcing your opinions, you might consider the off-putting effect of your tone.


Here, you've called another poster a Nazi. What do you intend such noxious rhetoric to accomplish?
2.8.2006 6:26pm
Colin:
I apologize. Jack John called Medis a Nazi here, not in this thread. In this thread, he called Medis a liar--from what I can tell, because he disagrees with Medis' analysis. This is very unprofessional behavior.
2.8.2006 6:29pm
Michael B (mail):
"What you are describing is the President making up his own rules and procedures. You may think those rules and procedures are adequate, but that ... isn't the rule of law as we know it." Medis

Medis, I have a huge respect for your rule of law concerns and additionally have respect for your articulations even though you tend to overly generalize, this being a case in point. One of the reasons I appreciate Cunningham's legal analysis and Posner's policy analysis is because they are - they certainly make a concerted attempt to be - well focused, even narrowly and precisely focused, they avoid rhetorical excesses and unwarranted generalizations. In particular, my own statements have focused upon surveillance activity which is reasonably and commensurately attuned to the intelligence gathering needs as understood within the parameters of the present conflict. (And yes, there are and can be more general ramifications based upon my specific concerns. Nonetheless, my concerns are in fact tailored to the present existential realities and the corresponding executive, legislative and judicial interests, i.e., balance of powers and separation of powers concerns.)

It is possible - though it is difficult - to overstate the sui generis quality of the present conflict. It is difficult, in very large part, because many of the qualities which inhere to this conflict are absolutely critical, as I've already emphasized in this thread. Likewise, Cunningham, articulating his basic assumptions, states: "Following the single deadliest attack against civilians on US soil by a foreign enemy (al Qaeda) in our history, facilitated, at least in part, by electronic communications bettween al Qaeda operatives physically located within the United States and those overseas, the President authorized the NSA to intercept international communications of individuals where there is a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, without first obtaining an order under FISA ..." However conceived, with the distance of 4 1/2 years (8 1/2 years separated WTC '93 and 9/11), those are not secondary or peripheral issues, they are primary. Hence, though we need to weigh them in a proportionate manner and guard against their being leveraged for (mere) political gain, they still need proper weighting and emphasis, not dismissed or relegated to peripheral areas for purposes of (mere contrarian) political gain.

Regarding your further mention of Thomas's Hamdi dissent, I'd first note, even if this may seem to be a too obvious point, that Justice Thomas too emphasizes the need to heed the sui generis aspects of Hamdi and, notably, within a context which stresses a separation of powers concern; in your own excerpt, Thomas pointedly emphasizes "specific circumstances". Too, you are again, apparently, assumming a virtual equivocation between Youngstown and the present NSA situation, which point, in part drawing upon Cunningham, I've already resisted. Youngstown is more aptly thought of as being roughly analogous, with significant caveats, rather than being equivocal in the critical areas you're emphasizing.

Thomas also emphasizes a separation of powers discussion (rather than balance of powers) when he states, in the passage immediately after the primary passage you excerpt, "I acknowledge that the question whether Hamdi's executive detention is lawful is a question properly resolved by the Judicial Branch, though the question comes to the Court with the strongest presumptions in favor of the Government. The plurality agrees that Hamdi's detention is lawful if he is an enemy combatant. But the question whether Hamdi is actually an enemy combatant is "of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry." Chicago &Southern Air Lines, 333 U. S., at 111." (my emphases)

To state the obvious (excepting for those who resort to facile formulations and sundry rhetorical excesses), the debate is highly problematic and multi-faceted. Herein, you are emphasizing a balance of powers dimension and I'm emphasizing a separation of powers dimension. Both are viable factors within the overall or general structure of the debate. But within our present discussion and this specific aspect of the debate, you, imo, are relying upon generalizations or equivocations while I am emphasizing sui generis qualities of the current conflict and likewise am emphasizing the need for responsible executive action along with the broad Constitutional and case law (e.g., Cunningham) supports for that action.

As you've already suggested, in an exchange with Tom Holsinger (whose views I largely identify with), the dividing line between the political and legal debate may not be so brightly or definitively drawn. Well, perhaps so. Nonetheless, legislating, and the political discourse which supports that process, and the need for executive action, are not the same thing. Hence separation of powers issues and categories as contrasted with balance of powers issues and categories. Your concerns, as concerns, are certainly warranted and cannot be dismissed. But barring subsequent revelations, as applied to the known specifics of this NSA surveillance, they do not apparently carry the day. Absolute bare minimum, they by no means obviously do so.
2.8.2006 6:33pm
Medis:
Michael B,

As an aside, I think we might have a different sense of what would count as "rhetorical excesses and unwarranted generalizations", and what would count as "narrowly and precisely focused" analysis. But I won't offer any such evaluations, because I don't think they add anything of substance to our discussions here.

And that is precisely because those are very subjective matters. In other words, I think in these evaluations you are favoring arguments to which you are predisposed, and disfavoring other arguments. Which is entirely your right, but you can't seriously expect that your statements about your subjective evaluations will have any persuasive force. Nor would I have such an expectation, which is why I will not similarly indulge myself.

Anyway, as I noted before, Justice Thomas in Hamdi distinguishes between the judiciary and Congress. So, when you quote his concerns about the judicial branch, you are right that he is echoing--in a structural sense--the sort of arguments Cunningham et al are making. But the problem is that Thomas specifically states he would not apply the same structure to Congress, but rather cites with approval the rule in Youngstown as applied generally to the role of Congress in military matters.

And, of course, he is doing all this in a post-9/11 case. So, I think a practical person would be quite worried about Justice Thomas if the separation of powers issue involved Congress rather than the judiciary. But, of course, on a philosophical level one need not worry about real world Justices.
2.8.2006 9:49pm
Michael B (mail):
Well, I don't wish to quibble over the subjective quality either, that's why I referenced the specifics of the Cunningham legal analysis and Posner's policy analysis; it wasn't a simple, general statement. Too, was pointing to my concerns, which have been far narrower than your quoted statement would suggest.

Re, Youngstown/Hamdi/Thomas and separation of powers issues, it wasn't a philosophical point being made when I referenced Cunningham and pointedly emphasized the differences between the NSA program, Youngstown and Hamdi. Your gloss is used as an excuse to dismiss, whole cloth, precisely what was being most pointedly emphasized, distinguishing legal and factual particulars. Too, I wasn't presuming about any specific outcome, to the contrary.
2.9.2006 4:17pm