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Showdown Over Subpoenas?:
An interesting Newsweek article on Congressional reaction to the NSA domestic surveillance progam has the following fascinating passage:
  The Senate intelligence committee is likely to vote to open an investigation into the NSA's wiretapping program, according to senior congressional aides who declined to be identified discussing sensitive matters. The chairman of the committee, Sen. Pat Roberts of Kansas, will probably follow the White House line and try to keep a lid on the hearings. But three Republicans—Chuck Hagel of Nebraska, Olympia Snowe of Maine and Mike DeWine of Ohio—are expected to join with the Democrats on the committee to vote to demand more information about the secret eavesdropping program from the White House and intelligence agencies.
  The White House is likely to be defiant. Cheney's chief aide and counsel, David Addington, has advised his bosses that even if the intelligence committee votes to subpoena secret documents from the executive branch, the demand will not be upheld by the courts. Cheney's attitude seems to be: bring it on.
  If this story is accurate, Addington's prediction seems misguided to me. The Bush Administration's more aggressive claims of Article II authority are not going anywhere in the courts, and efforts to keep Congress away by invoking executive privilege will be met with equal skepticism. If Congress wants the documents and the Bush Administration refuses to produce them, expect the courts to resolve the disagreement more or less like this.
BruceM (mail) (www):
They'll get it into a court with a republican judge who will say everything is different when we're in the midst of a perpetual war... a war that doesn't end until a democrat is in the White House (if that ever happens again). I have no faith in the judiciary when it comes to Bush's power. People are too scared of terrorists, are unable to get over it, and are going to give up all their rights, liberties, and money, and every branch of government will permit it to happen. We'll have a full-blown police state by the end of the Bush administration (Jeb Bush, our next president).

I can prove that the 'war on terror' will never end. For example, if the war is "over" and we celebrate with a ticker-tape parade in Times Square, will there be no anti-terrorism security at that parade? Of course there will be. Thus, the latest war on a noun is perpetual. QED.
2.12.2006 5:53pm
Just an Observer:
As interesting as the subpoena angle is to me, equally interesting is the general notion that Roberts has lost significant control of the committee to a coalition of Democrats and concerned Republicans.

No wonder the chairman seemed so crabby on Meet the Press today.
2.12.2006 6:13pm
KMAJ (mail):
Prof. Kerr,

I don't think there is much equivalence between the Nixon case and the current NSA situation. One refers to gathering intelligence and its procedures, the other to a private or public property issue. It presents greater chances for flawed analysis when you try to interpet subpoena powers for vastly different issues with vastly different ramifications and implications.

John Scmidt provides an interesting perspective in the Chicago Tribune:

A historical solution to the Bush spying issue

He makes some interesting points, citing quotes from former US Attorney General Edward Levi to the Church Commission:

Levi suggested that court power to authorize foreign-intelligence wiretapping in the U.S. go beyond traditional warrants based on probable cause for surveillance of a particular individual. He said it should include power to approve a "program of surveillance" that is "designed to gather foreign-intelligence information essential to the security of the nation."
---
Levi said a traditional warrant procedure works when surveillance "involves a particular target location or individual at a specific time." Foreign intelligence, however, may in some situations require "virtually continuous surveillance, which by its nature does not have specifically predetermined targets." In these situations, "the efficiency of a warrant requirement would be minimal."

In approving a surveillance plan, "judicial decision would take the form of an ex parte determination that the program of surveillance designed by the government strikes a reasonable balance between the government's need for the information and the protection of individuals' rights."
---
Although Levi supported legislation in the foreign intelligence area, he rejected the position of Bush critics that the president's authority to order warrantless foreign intelligence surveillance can be limited by Congress to a statutory procedure. Levi told the Church Committee that the president has inherent constitutional authority to conduct such surveillance. Asked by Sen. Frank Church "if the constitutional powers in the area of foreign intelligence are exclusive to the executive or whether they are concurrent with the legislative branch," Levi replied:

"They are sufficiently concurrent so that legislation by the Congress would be influential . . . You are asking me whether I think there is presidential power beyond that, and my answer is `Yes.'"


Why Congress ignored Levi when creating FISA seems to be where the actual argument we are now engaged in could have been solved. In my opinion, this is the best solution I have seen offered, as Schmidt concluded:

Giving a court the power to approve a reasonable surveillance plan proposed by the president gives everyone--the president and those in the executive branch who carry out the surveillance, members of Congress who have oversight responsibility, and the American people--greater assurance that constitutional rights are being protected.
2.12.2006 6:13pm
Kovarsky (mail):
KMAJ,

I agree with your generalized point about the problems with the analogy. There are a number of differences: the subpoena in the nixon case was in the context of a criminal proceeding, not a congressional investigation, much of the language in Nixon makes clear that the calculus would be different if it were not a generalized claim of privilege but somehow implicated national security, etc.

I DO think that if an investigation were to occur that the investigators would get the communications into an in camera proceeding, but I'm skeptical that the administration wouldn't win there.

I'm not sure what the distinction you are pointing to really means though.

Also, we all know exactly how you feel on the broader issue of the program's legality. You know how I feel. These NSA discussions very quickly become tired when we veer from the narrow issue that is the subject of the thread into somewhat related issues that we've all discussed a million times before. The last 7/8 of your post has nothing to do with the Nixon issue. I think it would be in everybody's interest if we stopped trying to beat eachother over the head with ancillary subject matter when the subject of the post is quite narrow.
2.12.2006 6:51pm
Kovarsky (mail):
BruceM,

I'm guessing that if the government claims privilege, that a single republican judge will not be able to adjudicate the claim. It will undoubtedly be appealed to a Federal Circuit Court, and the smart money says the Supreme Court will here it too.

And while I'm cynical about some exhibiting mindless partisanship on this issue, none of those are on the Supreme Court. Maybe I'm naive, but I'm pretty confidant in those nine to resolve this particular issue as a patter of doctrine and procedure, not based on political preference.
2.12.2006 6:57pm
Anderson (mail) (www):
Very different situations as noted, but where the Congress suspects that the Executive is violating the law, I'm not sure what excuse there could be for denying the subpoenas.

One would think that enough could be redacted to let the Congress know what *kind* of surveillance is going on?

And even if all 535 members can't be given details, *someone* outside the Executive, like the FISC, needs to know the names of every single U.S. person surveilled, and be able to see the given file if need be.
2.12.2006 7:47pm
AST (mail):
Based on Kollar-Kotelly's behavior, I can understand why the White House would choose to skip the FISA court, especially in cases with a direct tie to Al Qaeda.

I don't trust anybody who doesn't have a term of office, especially today when the courts have taken to ordering busing for schools and performing gay marriages and shoving the rest of the nation into policies it doesn't want.

I can't imagine a president who would count on protecting privacy and 4th Amendment concerns as an excuse for loss of say 10 or 12 airliners and universal fear of flying after that. How hard could it be to plant bombs on train tracks and highway bridges? This country is so insecure it must make terrorists' mouths water. I think that if too many people start dying Congress and the courts are more likely to be swept away by public fear, if the president doesn't feel that he has the power to act immediately.
2.12.2006 8:03pm
Charles Chapman (mail) (www):
To me the far more interesting question is whether Bush would comply with an adverse court ruling, even by the Supreme Court. I'm not confident that he would.

I'm also not confident that all of the Volokh Conspirators believe that Bush would be doing anything wrong if he did ignore such a ruling.

Then again, I may be unfairly confusing the editorial stance of the various Volokh Consirators (and, desite the use of "conspiracy" in the title of the blog, I do realize that they are not all in agreement) with the stance of many at NRO's The Corner (NROTC). I'm sure that many at NROTC would not be the slightest bit distrubed if Bush ignored and adverse Supreme Court decision, argue that Marbury v. Madison was simply wrong, and that the President has independent and equal authority to interpret the Constiution. Basically, at least some there would happily tell the Supreme Court to go to hell. It wouldn't be until the next Democrat was elected President that they would have second thoughts.

Sorry for the mini-rant. But I really am concerned.
2.12.2006 8:13pm
Bobbie:
Kovarsky, ever heard of Bush v. Gore?
2.12.2006 8:45pm
Kovarsky (mail):
Bobbie,

Yes.
2.12.2006 8:50pm
Oh my word:
AST, the Chief Judge of FISA has a 7 year term, like all the other FISA court judges.

Bobbie, Bush v. Gore was most likely decided in an effort to put an end to the constitutional mess that was quickly occurring and award it to the inevitable winner, Bush, who would have won in the House of Representatives.

Bush/Cheney would be foolish to stonewall this, I think. Inevitable loss.
2.12.2006 8:52pm
ficus:
Rather than go through the courts and risk either losing or provoking defiance by the president, why doesn't the Senate use the power of the purse to force cooperation? A bipartisan agreement to hamstring appropriations until the subpoenas are honored would do it, if the Senate didn't blink.

Congress has ample power. It loses face if it becomes litigious, as though it needed to add a court's authority to its own in confronting the president.
2.12.2006 9:07pm
Just an Observer:
Charles Chapman,

I, too, am concerned by the ease with which some blog commenters who self-identify as part of "the base" assert that the President could defy the Supreme Court. It's especially scary when some conflate a pseudo-legal argument (Marbury was wrong so we should just burn all the caselaw books and start over) with the observation that the President controls all the guns and bayonets.

I prefer to believe that this is just wingnutty talk. An actual, open defiance of the Supreme Court would be pretty high on my personal list of unthinkable things. It seems especially doubtful that such a drastic step would be taken over a privilege issue.

But I am just as concerned with the administration's refusal to seek judicial resolution of the NSA/FISA merits. It does not speak well of their valuation of the rule of law in general.
2.12.2006 9:12pm
Kovarsky (mail):
Bobbie,

I usually don't believe in putting more effort into a response than people put into a question.

But it's pretty clear from my post that what I was saying was that I don't think these issues are very muddied - they don't present the opportunities for alleged partisanship that Bush v. Gore did (I happen to think several of the Bush votes ran contra to well established voting patterns on equal protection issues, but I don't want to get into that).
2.12.2006 9:17pm
Kovarsky (mail):
You can take this to the bank:

If the Court rules that the executive has to comply with the subpoena, and the executive says "no we don't," there will be a 9-0 against the administration written within 2 days, authored by Nino Scalia.
2.12.2006 9:27pm
t e (mail):
Since Cheney apparently can't even handle pipsqueak 28 gauge properly, does he really want to get in a battle with anyone?
2.12.2006 9:38pm
Wintermute (www):
Yes, Orin, I think the Court will act to preserve its own power under Marbury too, despite all the noise about national security. It amazes me that the Administration hands out security clearances to favorites, some of whom have had them revoked in the past, yet acts as though the members of the Intelligence Committees are traitorous sieves, an attitude that has finally begun to bother those members to the point of revolt. You may know that I have been trying to remind bloggers that the Katz Court left the national security wiretapping question open:

Whether safeguards other than prior authorization by a magistrate would satisfy the Fourth Amendment in a situation involving the national security is a question not presented by this case.
In a concurrence, Whizzer White would trust the President in that unsupervised, nebulous context; but in another concurrence, Douglas and Brennan explain why that would be a bad idea. (Click on my link above, it's all there.)

I do not think the Court would now judge itself untrustworthy to receive evidence itself or through its designees on this very point.
2.12.2006 10:27pm
Tom Holsinger (mail):
Consider a possibility that the Bush administration has a hole card here - evidence that a Senator on the Intelligence Committee has leaked material classified information to the press which was then published. Which might be evidence sufficient to support an indictment.

Breach of security by the Intelligence Committee merits denying them further classified information until they fix the problem - by kicking the wrong-doer off the Committee.

It is wise to worst-case a dispute before starting it.
2.12.2006 11:15pm
KMAJ (mail):
Kovarsky,

I posted the Schmidt article, not as a rehash, but because it presented a different solution than has been discussed. And because the Levi information is also new, to me anyway. Allowing a program approval rather than a case by case one, it seems to answer all problems involved. It solves the expediency problems of the executive, it mainstains the oversight roles of the legislative and judicial. It also revealed that Congress was aware of the separation of powers issue when they enacted FISA, so they knew this issue would someday arise. To me, FISA was Madison's warning about the legislative branch trying to absorb all power coming to fruition, they were aware of the constitutional conflict, yet they still did it, without even trying a test case.
2.12.2006 11:19pm
abb3w:
Kovarsky: I'll go one better on your prediction. If the Court rules the executive has to comply with a Congressional subpoena, and Bush says "no, we don't", there will be an bill of Impeachment passed by the house within one month and (barring immediate executive compliance) a conviction by the Senate within three... at which point, Cheney gets a visit from Justice Roberts bearing a bible. And if he doesn't comply with the subpoena, I predict the bill and conviction will require no more than half of that required for Bush.

The jealousies between political parties over power are nothing compared to that between the branches.
2.12.2006 11:53pm
Tom Holsinger (mail):
By the way, consider the source here. Newsweek's "Koran in a Guantamano toilet" story means its credibility ranks with that of CBS. Find confirmation outside the MSM before you take this story too seriously.
2.12.2006 11:57pm
Kovarsky (mail):
but abb3w!

impeachment would interfere with the executive's inherent authority to protect our country!
2.13.2006 12:02am
Noah Klein (mail):
KMAJ,

The problem with the Levi's provision is that this would be a complete change to what the courts are authorized to do by the Constitution. Courts are only allowed to look at individual cases and controversies. This would be a request to make an advisory opinion, which is outside the sphere of the courts' authority.

Noah
2.13.2006 12:03am
JunkYardLawDog (mail):
Kovarsky,

Putting an unelected judge in the position of being the final word on an Executive branch Article II war making/foreign intelligence program, seems to be a gross violation of separation of powers. The framers put this power solely in the hands of the President/Executive. I'm not sure there is a solution to this problem.

The whole NSA thing, if you take out the democrats using it for political purposes, which they most certainly are doing, boils down not to a concern about FISA statutes at all. Its all about a power struggle between the branches of government. Congress has been encroaching on the President's powers for decades and longer and the Supreme Court has been doing it to both the executive and the legislative branches since Marbury. There is much of the writing in the U.S. v Nixon decision that I find offensive to the constitution, because it is written from the standpoint that the courts are supreme to the President, but sometimes will grant deference to the President if they are in a good mood at the time. The whole tenor of these statements in the U.S. v Nixon opinion has a solid ring of an imperial judiciary that views itself supreme to the other branches of government. It may have played well to the public in the Nixon years but there is a significant portion of the populace that would turn on the courts and the congress if they appeared to be trying to assert unconstitutionally to them power over the President to protect this country.

Says the "Dog"
2.13.2006 1:08am
KMAJ (mail):
Noah,

Levi told the Church Commission Congress could not usurp inherent executive branch authority by statute, that said statute could only 'influence' executive authority, yet they went ahead and did exactly what he told them they could not do when they enacted FISA. So any outrage by Congress should be taken with a grain of salt, they knew they were crossing constitutional lines when they enacted it.

The courts, while not able to perform an advisory function, can hear test cases about constitutionality, which might be a viable avenue.
2.13.2006 1:17am
Kovarsky (mail):
JunkYardLawDog,

You do realize your "not sure it's a good idea" reasoning would require a repudiation of Marbury versus Madison, right?
2.13.2006 1:39am
Noah Klein (mail):
KMAJ,

I don't think I or anyone else said anything about Congressional outrage. I think you are trying to read things into people's arguments.

Also, Levi's opinion not withstanding, I know Congress did not think they were crossing any "constitutional lines." In that article, I did not see any reasons given Levi that such an act would cross "constitutional lines." Even though, you consistently say that Congress's action was unconstitutional, you give no evidence for that belief. Furthermore, you have consistently advocated for solutions to this crisis that are without basis in our system of government, so merely because you say it does not make it so.

Finally, you are right that the courts can hear cases in which the constitutionality of a law or governmental action is in question, but that case has to be brought by a person with standing about a case or controversy. The courts can not rule on an issue by a whim. Thus Levi's idea would not work in the system of government we currently have.

Noah
2.13.2006 1:42am
Defending the Indefensible:
Assuming the President defied the Supreme Court, and assuming Articles of Impeachment were drafted for that defiance and passed by the House of Representatives, the President then convicted by the Senate, Kovarsky suggests (perhaps sarcastically) that "impeachment would interfere with the executive's inherent authority to protect our country!"

Let's further assume that the Vice President declines to take the oath of office, and backs the President.

In this absolutely insane scenario, I think a coup of some kind would then be likely. Would the Joint Chiefs consider themselves bound to follow the orders of the impeached and convicted commander? If the (ex-)President dismissed them for "insubordination" he could appoint no replacements without the consent of the Senate, which he could not obtain. It would be untenable. The (ex-)President would necessarily be deposed, the coup would end within hours, and the Speaker of the House would then be sworn as President if necessary.

I don't think this scenario is remotely likely, but I just thought I'd cover the hypothetical case and ultimate consequence for those who might fantasize about the possibility of executive defiance.
2.13.2006 1:45am
minnie:
Today's Sunday post on Glenngreenwald.blogspot.com is one of the few most important things written since the story about warantless surveillance was first published by the times. I suggest everyone reads it.
2.13.2006 1:49am
Kovarsky (mail):
DtI,

Yes, it was very sarcastic.

I don't think the scenario is likely either. The administration and GOP would be crushed if they got an opinion from scalia/roberts/alito/thomas that said "stand down."
2.13.2006 2:23am
KMAJ (mail):
DtI,

Andrew Jackson defied the Supreme Court in Worcester v. Georgia and is alleged to have said "John Marshall has made his decision; now let him enforce it!" Jackson did not get impeached. Not that I think Bush would defy a SCOUTUS ruling, but just that impeachment does not necessarily follow defying a Supreme Court ruling.
2.13.2006 2:23am
Kovarsky (mail):
KMAJ,

That's an amazing selection of facts. That incident is almost universally cited as the low point of our government's norms of checks and balances that involve the Court. Indeed, almost every supreme court justice I've ever seen speak on the institutional role of the courts mentions how wonderful and remarkable it is that we've moved from a point like that to where you can have a decision like bush v. gore with absolutely zero (tangible) resistance to the court's ruling.

You don't really think the president wouldn't get impeached if he defied the court now, do you?
2.13.2006 2:30am
Defending the Indefensible:
KMAJ,

http://en.wikipedia.org/wiki/Worcester_v._Georgia

In reaction to this decision, President Andrew Jackson has often been quoted as defying the Supreme Court with the words: "John Marshall has made his decision; now let him enforce it!". Jackson never actually said this; in fact, because of a legal loophole, he had no grounds for becoming involved unless the Georgia courts formally defied the Supreme Court. That did not happen, since Georgia simply ignored the ruling. What Jackson actually said was that "the decision of the supreme court has fell still born, and they find that they cannot coerce Georgia to yield to its mandate." Jackson's opponents criticized him for failing to act against Georgia, but even if he had wanted to intervene—and he did not—it is questionable whether he had any legal authority to do so (Prucha, p. 212).
2.13.2006 2:46am
KMAJ (mail):
Noah,

I did not say you, or anyone else, said anything about congressional outrage, I introduced it, and it is a fact, mostly from democrats.

You make a interesting comment, that Congress didn't think it was unconstitutional, even though they were told by Levi, but you do not extend that thought process to the executive branch. Yet you defend the legislative branch, why is that ? Do you really think Congress was unaware that they were going to have a conflict over this legislative power grab at some point ?
2.13.2006 3:03am
KMAJ (mail):
DtI,

I said alleged to have said, the main point being he didn't enforce the Supreme Court ruling. On a states rights basis, you are right, he probably did not have an easy vehicle for enforcement, but had he wanted to, he could have. He chose not to.
2.13.2006 3:08am
KMAJ (mail):
Kovarsky,

In direct answer to your question, I do think he would get impeached if he defied a SCOTUS ruling. That said, under the Constitution, he is not required to get one on this issue. I don't know that the legislative branch has a vehicle to force him to, and as a political issue, no congressman is going to want to be seen as weak on defense, they are aware of the public perception and support for this issue, and most are all starting to tiptoe around it now, so they do not have the political numbers push the issue.
2.13.2006 3:17am
Defending the Indefensible:
KMAJ,

No, that's not the main point you were making. You said, and I quote, "Andrew Jackson defied the Supreme Court." He did not. He was not party to the Court's decision and it did not bind him to do anything about it. Congress might have instructed him to execute judgment, perhaps on the precedent of the Whiskey Rebellion. But as matters stood, he was just a non-party making an observation.
2.13.2006 3:24am
Kovarsky (mail):
KMAJ,

Of course Congress doesn't have to impeach him. That being said, and goodness knows I've lost money underestimating the degree to which this administration can milk its bromides before, but I doubt even Karl Rove could strain the meaning of "if someone's talking to Al Qaeda, we want to know why" to encompass the executive's flagrant disregard of a supreme court ruling.

I think that turns off enough voters at least so that House Members won't feel any particular need to side with the administration in order to gain advantage in the next election.
2.13.2006 3:24am
Noah Klein (mail):
KMAJ,

"You make a interesting comment, that Congress didn't think it was unconstitutional, even though they were told by Levi, but you do not extend that thought process to the executive branch. Yet you defend the legislative branch, why is that ? Do you really think Congress was unaware that they were going to have a conflict over this legislative power grab at some point ?"

Firstly, who the hell is Levi to tell Congress what is and is not constitutional? I mean, you have to be joking. A lot tell a lot of things to Congress; that does not mean that Congress has to accept that idea. Levi was not the only witness on this legislation that took around three years to pass and many other "experts" told Congress that this was constitutional.

Second, I really do believe that Congress thought that they would not have "a conflict over this legislative power grab." One reason is that throughout the entire process the executive was part of the construction of the language for the law. Thus, they probably thought that later executives would accept Congress's role here. They may have thought that, but it is unlikely because of the close work that was done with the executive. Another reason is, as I said above, most constitutional experts then and now said that this was a proper function of Congress. And finally, I believe that they probably did not accept Levi's assertion that FISA would be unconstitutional, since he advocated a system that would grant the courts powers that the Constitution does not give them.

You opinions on this go back and forth, don't they? I mean yesterday you disliked the Supreme Court so much that you were advocating a national referrendum, which is antagonistic to our system of government. Now, you are arguing for Levi's program, which grants the courts more power than the constitution. Which is it? Are we ruled by 5 unelected judges or do they need to make advisory judgements?

Noah
2.13.2006 3:28am
Noah Klein (mail):
That should be "a lot of people tell"
2.13.2006 3:32am
Noah Klein (mail):
That should be "They may have thought that this was a legislative power grab"
2.13.2006 3:35am
Noah Klein (mail):
I must be tired:

That should be "Your opinions"
2.13.2006 3:36am
Dilan Esper (mail) (www):
JunkYard:

We are talking about whether the President has the power to defy Congress, not simply a court (though Marbury and Nixon pretty well take care of the President's authority to defy the courts).

And vis-a-vis Congress, your statement that the war powers are exclusive to the President is simply false. Indeed, with the number of times I have heard this argument, I am starting to believe that people don't even read the Constitution anymore. Article I Section 8 makes perfectly clear that Congress has a substantial chunk of the war power. And Congress has had the recognized power of oversight over the executive for over 200 years. Put those two things together, and the idea that Congress has no right to investigate the President over a conduct of a war is a frivolous argument.
2.13.2006 4:57am
Kovarsky (mail):
Dilan,

Actually, we are talking about the President defying the Court. The hypothetical this thread has explored involves whether or not the president would defy a Supreme Court order requiring the executive to comply with a subpoena.

Lee
2.13.2006 5:10am
Defending the Indefensible:
Noah,

You mistake KMAJ for a serious participant. He has admittedly taken ironic positions, presumably because he enjoys the attention and the reaction it gets. I do think it's occasionally worth engaging him because in spite of his insincerity he raises points that others might hold.
2.13.2006 5:17am
KMAJ (mail):
Noah,

Study your history, FISA was a power grab of the very type Madison warned about. They took advantage of when the executive branch was weak, after Vietnam and Watergate, and a weak president, Carter, and rolled over the executive branch. If FISA is unchallenged, you have the executive branch as the weakest branch. Bush has a responsibility to fight for the executive branch authority. That Carter signed FISA is a tribute to what a weak president he was, and even he stated it couldn't encroach on executive branch authority.

If you want to have such blind faith in the legislative branch or judicial branch, that is your right. I prefer the intended balance, where the judicial branch is supposed to be the weakest because it it the only unelected branch. The legislative branch had the tendency to absorb power, which is why they enumerated them, as a means of checking them. The executive powers are unenumerated, being granted all the executive power except that specifically designated elsewhere.

If you are a textualist, would you care to cite the specific text in the Constitution that specifically gives the legislative branch power over foreign intelligence gathering, an executive function ? If you believe in the text, there is no where in Article I that specifically enumerates foreign intelligence as a legislative branch function or area of authority. In fact, you only find the word 'foreign' twice in Article I, relating to commerce and coin, and the word 'intelligence' is not used. You can't simply add the words because you THINK they should go there. 'Herein granted' is a pretty specific reference that the legislative branch ONLY has the powers enumerated, not subject to expansion or insertion.

The Article II powers are quite different, they are unenumerated, 'The executive power shall be vested.. / ..shall be commander in chief.. / ..he shall have power to grant.. / etc. There is a quite a difference between 'herein granted' and 'shall be and shall have', it is not 'may be and may have', 'herein granted' says this is it, there is no more, which would be in line with Madison's concerns about the legislative branch.

You can cite no writings by the Founders that even hint at legislative branch authority over foreign intelligence, but you can find plenty giving the executive branch authority over all things foreign.

I offered up the Levi position because it sounded like a reasonable compromise, you make it apparent that you seek no compromise, the executive must acquiesce to the legislative, in your mind. Personally, I don't think the executive branch has to do anything as far as the NSA program is concerned. They have informed the intelligence committees and the head FISC judge. They feel secure that they are on sound constitutional ground and are not in a weak position where they need the judicial branch's stamp of approval.
2.13.2006 6:06am
Defending the Indefensible:
KMAJ,

Are you channelling John Yoo this morning?
2.13.2006 7:00am
colts41 (mail):
JunkYardDog says:


Putting an unelected judge in the position of being the final word on an Executive branch Article II war making/foreign intelligence program, seems to be a gross violation of separation of powers. The framers put this power solely in the hands of the President/Executive. I'm not sure there is a solution to this problem.


Sorry JYD.

That's as groundless an argument as saying an "unelected" judge has no right to interfere with the Executive Branch's exercise of its prosecutorial authority over criminal defendants -- an authority that Scalia in the Morrison case called quintessentially executive.

Pejorative allusions to "unelected" judges does nothing to strengthen arguments like the one JYD offers.

Judges don't make calls about "national security" policy.

Judges make calls about the LEGALITY of such policies.

The (un)true right has taken to bashing the federal judiciary -- Schiavo is an example -- to further consolidate power in the 2nd most incompetent administration in my lifetime.

Sorry, JYD.

As neither the terms "national security" nor "criminal prosecution" are anywhere listed in Art. II, I see no principled distinction between judges ruling on executive acts as to either category. [This is precisely the sort of textualist arguments Scalia likes to use when discussing abortion.]

Indeed, the logic of your own "unitary executive"/inherent-plenary athority claim completely cuts against you.

Obviously, if "the people" reposited all executive authority in the executive branch, then the people likewise reposited all *judicial* authority in the judiciary.

That means the president has *no authority* to self-judge his own actions as constitutionally compliant. How could he, if all such "adjudicatory" authority belongs to federal judges.

You either believe in a republican form of govt (that's a small "r"), as guaranteed to the states by Art IV, Sec. 4, or you believe in a monarchy -- which is a nice way of saying a fascist, in the non-pejorative sense, state.

C'mon, if Mark Warner were president right now, you'd be screaming bloody murder about the ineptness attending 9/11, post-9/11, Iraq, Iran, No. Korea, jobs at home, the national debt, post-Katrina response. Let's be honest.
2.13.2006 9:58am
Medis:
A few quick points:

Insofar as we care about what the Executive Branch thought of FISA when it was passed (a somewhat dubious proposition), we should recall who ultimately speaks for the Executive Branch. Here is the President's FISA signing statement:

"The bill requires, for the first time, a prior judicial warrant for all electronic surveillance for foreign intelligence or counterintelligence purposes in the United States in which communications of U.S. persons might be intercepted. It clarifies the Executive’s authority to gather foreign intelligence by electronic surveillance in the United States. It will remove any doubt about the legality of those surveillances which are conducted to protect our country against espionage and international terrorism. It will assure FBI field agents and others involved in intelligence collection that their acts are authorized by statute and, if a U.S. person’s communications are concerned, by a court order. And it will protect the privacy of the American people."

On whether Article I includes "foreign" military matters within the scope of congressional power:

First, it explicitly does. Consider: "To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations; To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water." These specific passages explicitly include "foreign" military matters within their scope.

Second, with respect to the roles of Congress and the President with respect to the armed forces, the relevant passages are:

Article I: "To make rules for the government and regulation of the land and naval forces."

Article II: "The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States."

Neither of these passages refers specifically to "foreign affairs", but of course they don't have to--the scope of the power in each case is defined by the object of that power (the armed forces of the United States), not the location of that object (where the armed forces happen to be at any given time).

So, there is no textual support for the proposition that when the military acts in a "foreign" context, the President has exclusive power over the conduct of the military. Just the opposite: the Constitution not only generally provides that Congress may pass laws for the government and regulation of the armed forces, but it also enumerates further, more specific, powers that Congress can use when the armed forces are operating in a foreign or international context.
2.13.2006 10:56am
BruceM (mail) (www):
You all really think the SCOTUS (or any other federal court) would not dodge this debate by invoking the "political question" doctrine so as to utterly abstain on jurisdictional grounds?
2.13.2006 11:18am
Just an Observer:
BruceM,

In what way is this a "political question?" Just because Karl Rove makes political hay from the controversy does not render its legal issues out of bounds. Every controversy is in some sense political.

If you are talking about the narrow issue of ruling on executive privilege over subpoenas, the court has ruled in such matters before and may again if they arise.

If you are talking about the merits of the question of interpreting FISA, that is a matter of resolving statutory and possibly constitutional interpretation. That is what the Supreme Court does. It has ruled in separation-of-powers cases before, such as Youngstown and Hamdi.

But first, the court must have a case before it.
2.13.2006 11:35am
Just an Observer:
KMAJ:

I'm interested that you now suggest that. The last time we discussed this (in the thread containing this post and this one), you rejected the idea of a test case and insisted the legal questions should be resolved by some sort of "national referendum."

Sen Specter suggested to Gonzales a week ago that the administration voluntarily initiate a test case, but was rebuffed.

So do you now favor a test case, so the legal merits can be determnined in the courts after all?
2.13.2006 12:01pm
Medis:
As an aside, "political questions" is an unfortunate misnomer.

Anyway, I think there are two possible applications of the "political questions" doctrine to this case. First, under Goldwater, I think members of Congress could not sue over whether the President was violating FISA. Instead, that claim would have to be brought by a third party with Article III standing. Second, under Nixon v. United States (the Judge Nixon case), the Court would not get involved in whether violations of FISA were impeachable offenses.
2.13.2006 12:02pm
BruceM (mail) (www):
I agree w/ Medis, and add that the court would probably rule 6-3 that a president's authority to refuse to comply with a subpoena when national security is at stake "in a post 9/11 world" is a political question.
2.13.2006 12:07pm
Bart (mail):
It was my impression that the WH was objecting to requests by some in Congress for internal documents concerning the legal advice the President was getting concerning his authority to conduct warrantless intelligence gathering under this NSA program.

Congress would have no access to this type of legal advice under the executive and attorney/client privileges.

Rather than the Nixon case, a more analogous case would be the fruitless attempt to obtain information about the Cheney energy task force.
2.13.2006 12:32pm
Just an Observer:
Bart,

I don't think we know what sort of information the Intelligence Committee might seek. It may be information about the NSA program itself, not legal memos.

The DOJ legal opinions you refer to may be a different matter. I note that some Democrats on the Judiciary Committee have asserted those opinions should be released, but Specter said he thought those were privileged.
2.13.2006 12:39pm
Anderson (mail) (www):
I agree w/ Medis, and add that the court would probably rule 6-3 that a president's authority to refuse to comply with a subpoena when national security is at stake "in a post 9/11 world" is a political question.

Great. And since we're going to be living in a "post 9/11 world" for a very long time, that would make "national security" carte blanche for the President to do any sneaky little thing his heart desires.

Where on earth did y'all get this notion of the Constitution as creating a system where the Congress and Supreme Court have to tiptoe around the President?
2.13.2006 12:40pm
Kovarsky (mail):
Bruce,

There is an outside, remote chance that a justice might abstain from the underlying question on "political questions" grounds although I think, as others have pointed out, that term is almost universally cited as the biggest misnomer in the constitutional jurisprudence.

There is no chance that a justice would adjudicate the subpoena power is a political question - ruling on a subpoena is a quintissentially judicial task.
2.13.2006 12:41pm
Medis:
BruceM,

Maybe, but I'm not sure about that. Nixon dealt with criminal proceedings, but in the recent Cheney/Energy Task Force case, the Court seemed to think a court could adjudicate Executive Privilege issues in a civil case as well. And in Senate Select Committee v. Nixon, the DC Circuit adjudicated an Executive Privilege claim asserted against a Committee subpoena which the Committee sought to enforce in district court, apparently agreeing with the District Court that such an issue was justiciable.
2.13.2006 12:43pm
JunkYardLawDog (mail):
Kovarsky said:

You do realize your "not sure it's a good idea" reasoning would require a repudiation of Marbury versus Madison, right?

I don't quite agree. In the Levi proposed solution the judiciary wouldn't be ruling on an actual case or controversy or whether evidence gathered by an executive branch foreign surveillance operation could be used in court against a particular defendant in a particular case. Instead in the Levi proposal the judiciary, in effect, would be making executive policy decisions on HOW, WHEN, WHERE, and WHOM to surveil in an executive branch foreign intelligence matter. That has the judiciary acting NOT as a judge, but instead as the super executive (i.e. an executive with more say than the President himeself/herself) who determines the working parameters of the entire program and operation unrelated to any actual case and controversy. This to me is a clear cut violation of separation of powers. When I said I'm not certain there is a solution to this, what I meant was I'm not sure there is a way to provide oversight of the parameters of the kind of general non-target specific continuous surveillance program of the type described by Levi and absolutely needed in today's world. I understand the desire of those who would like some kind of independent oversight, but putting a judge in charge of designing and establishing the operational parameters of such a non-case or controversy program seems to me to be a clear violation of separation of powers. I don't think Marbury is implicated in this, and certainly this is completely distinguishable from the specific case facts in U.S. v. Nixon. Part of the rational of the Nixon holding reserved its holding from foreign intelligence and war powers of the President. Part of its ruling was also based upon the special prosecutor having been delegated authority by the Attorney General to bring suit against the President. A delegation of power not likely to ever be repeated today.

I think the above addresses most of what the other two commenters to my previous post as well.

Says the "Dog"
2.13.2006 12:47pm
KMAJ (mail):
JaO,

I proffered a test case on the Levi proposal, adjudicating the constitutionality of the program, not individual cases, looking for a point of compromise. FISA, as a case by case instrument, is burdensome and inefficient. I think a battle over separation of powers ill serves the country while fighting the WoT, especially in the political climate that exists in this country. It already cannot handle the number of cases brought before it, as stated in the 9/11 Commission staff Monograph, how do you expect it to handle even more ? I also stated I believe the executive branch does not need to compromise, as the executive powers he is claiming, within the narrow area of the NSA surveillance, come no where near that scope of executive authority pre-FISA presidents used.
2.13.2006 12:55pm
Medis:
On the "political questions" issue:

As I have looked back over the cases, it seems to me there should be no problem with respect to justiciability. I don't see an alternative for a congressional Committee when it comes to enforcing a subpoena besides going to court--even using their "contempt of Congress" authority requires Congress to submit a recommendation to a federal prosecutor, who may decide to submit the issue to a grad jury.

So, if Congress cannot enforce its subpoenas except through the courts, then this is not a situation in which the "political questions" doctrine should apply.
2.13.2006 1:10pm
ficus:
I can't imagine that the president would defy the Supreme Court, because he is so gun-shy that he doesn't even use his veto. He likes comity; not that that stops him from making bold moves, but it does stop him from outright defiance, I think -- a move that the public would take ill.

But I do think that the dodges and weaves that an executive can do with a secret program in the NSA are such that pinning him down is like nailing jello to the wall. All this process will produce, at best, a prohibition of actions that the president will say aren't happening any more. So what's the point? If people don't like the NSA's program, they can defund them, abolish the NSA, or elect another president. Not much else. And, yes, our form of government is at some risk because the remedies are so few.
2.13.2006 1:15pm
Bruce Hayden (mail) (www):
We shall see what happens here, but my guess is that ultimately the President will supply much of the information to the Judiciary committees, when he can be assured of their security and confidentiality. Both sides need to be seen as getting what they want here, the President needs to be seen as ultimately being reasonable, and Congress needs to be seen as honoring his issues about disclosing classified information.
2.13.2006 1:16pm
Medis:
KMAJ,

You say: "I think a battle over separation of powers ill serves the country while fighting the WoT."

You also say: "I also stated I believe the executive branch does not need to compromise."

So, even if the Administration does not NEED to compromise (which I guess you mean in the legal sense), shouldn't they do so anyway? In other words, aren't they ill-serving the country by refusing to compromise with Congress precisely when a unified government would be best for the country?

And this is not an idle question--at least a couple of the Republican Senators expressing concerns in the Gonzales Hearing raised precisely this issue. But Gonzales (and, later, Cheney) seemed uninterested in working out any sort of compromise with Congress.

So, isn't the Administration being reckless with our national security by pushing this issue to a showdown, rather than working out a compromise?
2.13.2006 1:17pm
Neal Lang (mail):
Actually, we are talking about the President defying the Court. The hypothetical this thread has explored involves whether or not the president would defy a Supreme Court order requiring the executive to comply with a subpoena.

The closest historical precedent is the Civil War cases:
Taney v. Lincoln: The Civil War Cases

The Civil War era brought President Abraham Lincoln and Chief Justice Roger Taney into conflict with each other. It was an almost-inevitable clash because both were strong-willed persons thrust into the uniqueness of a Civil War situation where crucial decisions had to be made, sometimes without the luxury of a time period in which to think them through and to get opinions from others.

The initial conflict began in April 1861, when Lincoln told his military commanders that they might suspend the writ of habeas corpus in the area between Philadelphia and Washington, as in that area he feared much sabotage. One of the persons apparently engaging in such activities was John Merryman, the president of the Maryland Agricultural Society and an officer in that state's militia. He was suspected of destroying bridges on the Northern Central Railway and, in May, was arrested by the military and confined to Fort McHenry under General Cadwalader on a treason charge. Merryman applied to the Circuit Court in Baltimore, which was run by Chief Justice Taney, for a writ of habeas corpus. On May 27 Taney issued the writ, but Cadwalader sent an aide to say that he would not produce Merryman because his superior, Commanding General of the Army Winfield Scott, had suspended habeas corpus the month before on Lincoln's order. Taney ordered Cadwalader to show cause the next day as to why he should not be held in contempt, but when the general still would not produce Merryman Taney rendered his momentous opinion in the case of Ex parte Merryman.

The Court ruled in favor of Merryman, stating that only Congress could suspend habeas corpus. After delivering this opinion verbally, Taney proceeded to put it in writing on June 1 for President Lincoln.

Meanwhile, the marshal who went to the fort to get Merryman was not allowed in. However, on July 4th Secretary of War Cameron interviewed Merryman and on July 12th he ordered him delivered to the marshal. During this time Merryman was indicted for treason but he was released on bond and never brought to trial. Altogether he spent some forty-nine days in jail. President Lincoln responded with a message to Congress in which he said that he had inherent power to suspend habeas corpus, and in August and September 1862, he did just that for all rebels, all those engaging in disloyal practices, and all those who interfered with enlistments and conscription. Lincoln's action was fully supported by Attorney General Edward Bates, who in a formal opinion in July 1861 had stated that the President and the judiciary were equal branches of government and as such might interpret the Constitution differently. Lincoln, of course, believed that he was defending the Constitution with his actions. Congress supported Lincoln in March 1863, by allowing him to suspend habeas corpus everywhere in the country. In September 1863, the cabinet approved an order by the War Department which told all military officers that they might cite presidential authority whenever they refused a habeas corpus writ. Taney, for his part, simply refused to let any treason trials take place in his Circuit Court without his presence, and he was too ill for over a year to hear any cases.

Taney opposed something else the government was doing during this period. In order to help finance the war, the government resorted to an income tax of 3% on personal income. However, since the Constitution states that a federal judge's salary may not be diminished while he holds office Taney wrote a letter to Secretary of the Treasury Chase (soon to succeed Taney as Chief Justice) saying that it was illegal to deduct the income from federal judges' salaries. The letter was written on February 16, 1863, and on March 10th Taney had it entered into the Supreme Court's records. In 1872 Secretary of the Treasury Boutwell ordered all the tax refunded, agreeing completely with the then-departed Taney's opinion.

Also on March 10th, 1863, the entire Supreme Court had its first chance to adjudicate one of Lincoln's Civil War actions. At issue was the April 19, 1861, blockade of southern ports ordered by Lincoln and agreed to by Congress on July 13, 1861. He had ordered the blockade to halt the ships from carrying goods to the Confederate States, and any ships seized by Union ships were considered prizes. Since a number had been seized the cases are called simply the Prize Cases and the main question before the Court was whether the President had the right to order the blockade. Justice Robert Grier, speaking also for Justices Wayne, Swayne, Miller, and Davis, said that Lincoln's action was proper. He said that although a President does not have the power to initiate war, once one has begun through an insurrection the President was to act as he saw best for the country without waiting for Congress. He has this power as Commander-in-Chief. In fact, the reasoning went on, the proclamation of the blockade showed that a state of war existed which demanded such action.

The four dissenters (Nelson, Catron, Clifford, and Taney) joined together in an opinion written by Nelson in which they insisted that the basic war power belonged to Congress, and only after it had declared a war could something such as a blockade be done. Therefore, the President was wrong in his action, and even congressional ratification of the seizures did not save him because it was an ex post facto law and thus unconstitutional. According to them, all ships seized between the presidential proclamation and the act of Congress were seized illegally. Of course, this was the minority opinion, but it took courage to say this in the face of the Civil War events occurring at the time. Perhaps that courage also permeated to other courts, because on June 3, 1863, a circuit court ordered a federal Provost-Marshal to return seized merchandise or its value and to pay damage and costs, and on June 19, 1863, a court ruled illegal the government confiscation of a box of dry goods on a ship. Some extreme Republicans reacted to all this by attempting to legislate the Supreme Court out of existence or to substitute judges they liked for those they did not, but Lincoln's reaction was merely to add the tenth Justice to the Supreme Court as Congress had increased the number of seats on the Court to that figure.

In February 1864, the Court would not review the sentence of a military commission which had ordered Clement Vallandigham, a civilian and in fact a former Democratic congressman from Ohio, to close confinement during the war. He had made a speech on May 1, 1863, critical of Lincoln for what he said was needlessly prolonging the war. Under an order issued the previous month by General Burnside, who had Ohio as his command, persons who made speeches such as that were subject to military arrest and procedure. A Circuit Court refused to issue the writ of habeas corpus and the Supreme Court, in Ex parte Vallandigham, in a decision written by Justice Wayne, felt that it could not hear cases from military commissions since those commissions were not courts. Thus, the Supreme Court was consistent in its refusal to upset actions of the President taken while the war was in progress. Such was not to be the case, however, once the war was over and Lincoln had left the scene. From: Presidents versus the Court

Is a "subpoena" anyhting like a "writ of habeas corpus"?
2.13.2006 1:20pm
Neal Lang (mail):
So, even if the Administration does not NEED to compromise (which I guess you mean in the legal sense), shouldn't they do so anyway? In other words, aren't they ill-serving the country by refusing to compromise with Congress precisely when a unified government would be best for the country?

And your reason Congress should not be the Branch to compromise is?
2.13.2006 1:22pm
Medis:
For those who may not be clear on the definition of "compromise", a "compromise" in this case would involve both branches working out a deal, with neither necessarily getting everything it might want.

In this case, the general contours of such a compromise would probably be something like Congress providing some sort of retroactive justification for this program and dropping all further investigation of the matter. In return, the President would pledge in the future to go to Congress first whenever he thought an existing law was too restrictive. Probably left unresolved would be the issue of whether the President could defy Congress if the President recommended a change to Congress and Congress refused.

Obviously, some people would like to see the President called to task for violating the law (as they see it). Others would like to see the President's right to declare a law like FISA unconstitutional (as they see it) vindicated. But if the goal is simply to make sure that the President has the tools he needs to detect and prevent terrorism, and if these interbranch wars weaken us, then this sort of compromise would seem to be best.
2.13.2006 1:36pm
KMAJ (mail):
Bruce Hayden,

I think you are right, to a degree. I think Bush will accede to the judiciary committee, in part, probably only to the judiciary committee heads and one or two others, given that this is an intelligence driven issue and the judiciary committee has no claims to knowledge of intelligence activity specifics. Both congressional intelligence committees have been briefed as has the full FISC.

Medis,

I agree Bush should look for compromise, as it best serves the country, but that does not mean acquiessence that would create a weaker position for the executive branch. Compromise is a two way street, I have yet to see any effort at compromise from the legislative branch that would not weaken the executive branch position. The briefings of the full intel committees was a step towards compromise. I think the ball is now in the legislative branch's court to see if they are truly interested in compromise. My opinion, on the NSA issue, the compromise is going to hinge on the intel committees and not the judiciary committees. I think the judiciary committees will play a secondary role and will abide by the advice given to them by the intel committees, i.e. the intel committees will say we have seen all the information and we recommend the judicial committees take this action. Could a dispute arise between committees over authority ? That might be an interesting side issue.

Party is irrelevant as to who is raising questions, one would expect loyalty to their branch to sometimes trump party loyalty when the issue is a separation of powers one. I do notice that party affects the tone used by the questioners.
2.13.2006 1:46pm
Just an Observer:
KMAJ: I proffered a test case on the Levi proposal, adjudicating the constitutionality of the program, not individual cases, looking for a point of compromise. FISA, as a case by case instrument, is burdensome and inefficient.

A "test case on the Levi proposal" would precisely be an advisory opinion. There is no way such a "case" could not even exist in the courts, because Levi's proposal is not yet law. Congress could consider Levi's proposal for a more generalized system of judicial oversight in the same context that he made it -- the legislative process. I'm not sure it would pass muster, but Congress could reconsider it.

The test case that could be brought, under existing law, would be the one Professors Kerr and Hewitt outlined. In such a case, the government would be free to argue Levi's constitutional theory that some residual executive power remains even in the face of statutory regulation.

That argument, if the DOJ chose to make it, presumably would just be part of the government's case. They could advance all the arguments from the whole 42-page "white paper." This difference is that the legal arguments would actually be made in court, not just the Court of Public Opinion.

So do you now favor such a test case, or not?
2.13.2006 1:55pm
Just an Observer:
Oops. Make my prior post read "...There is no way such a 'case' could even exist in the courts." I had an extra "not" in there.
2.13.2006 1:57pm
Grand CRU (mail):
My understanding of congressional subpoenas (from the Abrams report!) is that Congress can only issue subpoenas for subject matter over which it can legislate. If Congress cannot legislate in this area, then it cannot issue valid subpoenas. Maybe Addington's prediction is based on his presumption that FISA is unconstitutional? I know a lot of people use "this area" to mean "military matters," but won't the legal question during the adjudication deal only with this specific electronic surveillance program?

Wasn't Nixon about a criminal investigation launched by a special prosecutor, not about Congressional subpoenas, so is there a difference? (Maybe in common-law?) Or am I mistaken? Sorry if everything I have said is wrong.
2.13.2006 1:59pm
Kovarsky (mail):
Neal,

I'm not clear what your point is about the habeas analogy. That case involved a discretionary restraint on the exercise of the Court's habeas corpus jurisdiction. There's nothing in there about the president being able to constitutionally defy the ruling of an article III court.

Please explain.
2.13.2006 2:08pm
Just an Observer:
On the subject of test cases and maximizing our efforts to combat terrorism, we should remember that until the legal impasse is resolved, there may be dangerous terrorists in this country for which FISA courts can't issue warrants for further pursuit.

As Hugh Hewitt said:
To be blunt: There may be domestic agents of al Qaeda in the U.S. who are evading comprehensive surveillance because Judge Kollar-Kotelly refuses to accept applications for FISA warrants based on intelligence garnered from warrantless NSA surveillance.


Before the judge could approve such applications, the DOJ would have to make them. That would create the test case.
2.13.2006 2:11pm
Medis:
KMAJ,

You say: "I agree Bush should look for compromise, as it best serves the country, but that does not mean acquiessence that would create a weaker position for the executive branch."

I'm not sure what you mean by that. For example, do you think the compromise I outlined above would "weaken" the Executive Branch? Note that I specifically suggested the issue of whether the President could defy Congress if Congress refused his recommendations would not be decided.

Unfortunately, it seems to me that the Cheney/Addington view is that agreeing to any further participation by Congress would "weaken" the Executive Branch (or, alternatively, would blow an opportunity to strengthen the Executive Branch). But that is a view which would preclude any compromise whatsoever.

So, I wonder if you think that vindicating the Cheney/Addington view of Executive Power is more important than avoiding a prolonged and potentially disasterous separation of powers battle. Or, to use what I gather are their words, is completely reversing what they view as post-Watergate congressional overreaching more important than providing a united front in the current WoT?
2.13.2006 2:14pm
Dilan Esper (mail) (www):
Medis:

I don't think the enforcement of a congressional subpoena is anything like Goldwater v. Carter. Congressional subpoenas have been assumed to be enforceable against the executive branch for more than 200 years. In contrast, there is no similar tradition for a Congressman suing to invalidate an executive order that allegedly violates an act of Congress.
2.13.2006 3:09pm
KMAJ (mail):
Medis,

The compromise should involve some ceding to executive power, not all, to pre-FISA levels, perhaps with a delineation between war and peacetime. I think the pre-FISA abuses would and should be applicable to the determination. I do not purport to have the legal expertise to provide the vehicle under which such an agreement could or should be negotiated, or if such a vehicle even exists, only that such a solution is desireable to avoid the separation of powers battle. Maybe the only solution might be a temporary set aside, but with the indeterminate nature of the WoT, that would probably not be realistic.

I am not under the illusion, with the current political climate, that a totally united front can be achieved. I think that the vitriol in the political climate has bled over into the separation of powers debate, as can be evidenced by some posts opinions of Bush influencing what executive powers they think he should have. I think my opinion is obviously tinged with a Madisonian distrust of the legislative branch.
2.13.2006 3:15pm
Just an Observer:
KMAJ,

There may be no need for compromise from Bush's point of view. If Bush's his theory is correct, all he has to do is have his lawyers initiate a test case to vindicate that theory. If he is vindicated, the NSA program can proceed and the controversy is ended.

Why do you not support such a test case?
2.13.2006 3:28pm
KMAJ (mail):
JaO,

I do not have the legal expertise to evaluate Prof. Kerr's and Hewitt's suggested resolution. Who would determine how would their test case be worded, on what grounds and who would have standing to bring their test case ? To what degree can there be any guarantee that the test case wouldn't be presented in a prejudicial fashion (I would hate to see politics inserted into such a test case) ? Would it be possible to negotiate the context and scope prior to such a test case ? Is there an instrument to prevent overreach in such a test case ruling ? Is a test case the only solution available ? Or could the legislative and executive branches negotiate their own solution and enact a statute ?

I accept your expertise that a test case on the Levi proposal would create an advisory role, and thus not be constitutional.
2.13.2006 3:29pm
Neal Lang (mail):
First, it explicitly does. Consider: "To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations; To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water." These specific passages explicitly include "foreign" military matters within their scope.

To define and punish piracies and felonies committed on the high seas is an exclusive power.

The regulation of foreign commerce appertains to congress alone, and the punishment of offences committed on the high seas is an unavoidable incident to this power: as soon as the Constitution was adopted, the power of the states in this respect was at an end. But the principle of this exclusive jurisdiction might perhaps be further extended. After the territorial boundaries of a nation are left, the sea becomes the common property of all nations, and the rights and privileges relative thereto being regulated by the law of nations and treaties, properly belong to the national jurisdiction, and would be inconveniently retained by the states which, in this respect, form only parts of the nation.

It does not seem to have been necessary to define the crime of piracy. There is no act on which the universal sense of nations has been so fully and distinctly expressed, as there is no act which is so universally punished. The pirate is the enemy of all nations, and all nations are the enemy of the pirate.

Felony is a term derived from the common law of England, and when committed on the high seas, amounts to piracy. The power to define either may have been introduced to authorize congress to qualify and reduce the acts which should amount to either. It is coupled with the power to punish, and this power extends not merely to citizens of the United States, but to all others except the citizens or subjects of a foreign state sailing under its flag and committing acts which amount to piracy; but general piracy committed by persons on board of a vessel, acting in defiance of all law, and acknowledging obedience to no government, are punishable in our courts, and in the courts of all nations. 19

By the high seas we are to understand not only the ocean out of sight of land, but waters on the sea coast beyond the boundaries of low water mark, although in a roadstead or bay, within the jurisdiction or limits of one of the states or of a foreign government. 20

A power to define and to punish offences against the law of nations is contained in the same paragraph, but it is doubtful whether the power to punish ought to be considered as an exclusive one. The law of nations forms a part of the common law of every civilized country; violations of it may be committed as well on land as at sea, and while the jurisdiction of the separate states is admitted to be withdrawn from them in regard to acts committed on the sea, it does not seem to follow that it is superseded as to those on shore.

Such acts may be of various kinds, and although the most prominent subjects under this head are those which relate to the persons and privileges of ambassadors, yet in many other particulars, infringements of the law of nations may be proper subjects of state jurisdiction. But even if an outrage were committed on a diplomatic character, and he preferred the redress to be obtained from a state court to that afforded by the courts of the United States, it is not perceived that this clause would prohibit him from so doing; yet whether the power is exclusive or not, on which some further remarks will be made, the power to define and to punish this class of offences is with great propriety given to congress. The United States being alone responsible to foreign nations for all that affects their mutual intercourse, and tends to promote the general relations of good order and just demeanour, it rests with them alone to declare what shall constitute such crimes, and to prescribe suitable punishments.

When such laws are made, they become binding rules of decision as well on the state courts as on the courts of the United States; but if cases arise for which no such statutory provision has been made, both these descriptions of courts are thrown upon those general principles, which being enforced by other nations, those nations have a right to require us to apply and enforce in their favour, or for the benefit of their citizens and subjects.

The power of declaring war, with all its train of consequences, direct and indirect, forms the next branch of powers exclusively confided to congress:

The right of using force, or of making war, belongs to nations, so far as it is necessary for their defence and the support of their rights. But the evils of war are certain, and the event doubtful, and therefore both wisdom and humanity require, that every possible precaution should be used before a nation is plunged into it. In monarchies, the king generally possesses this power, and it is as often exercised for his own aggrandizement as for the good of the nation. Republics, though they cannot be wholly exonerated from the imputation of ambition, jealousies, causeless irritations, and other personal passions, enter into war more deliberately and reluctantly.

It is not easy to perceive where this power could, with us, be more prudently placed. But it must be remembered, that we may be involved in a war without a formal declaration of it. In the year 1800, we were engaged in a qualified, but public, war with France; 21 qualified, because it was only waged on the high seas — public, because the whole nation was involved in it. It was founded on the hostile measures authorized by congress against France, by reason of her unjust aggressions on our commerce — yet there was no declaration of war. In such a war we may also be involved by the conduct of the executive, without the participation of the legislature. The intercourse with foreign nations, the direction of the military and naval power, being confided to the president, his errors or misconduct may draw hostilities upon us. No other restraint appears to exist, than that of withholding the supplies to carry it on, which indeed congress can in no case grant beyond the term of two years. But in England, the king is, in this respect, equally dependent on the parliament, and its history shows that this dependence is not always adequate to prevent unpopular wars.

The several states are, by another clause, prohibited from engaging in war, unless actually invaded, or in such imminent danger as will not admit of delay.

But although congress alone can subject us to the dubious results of formal war, a smaller portion of the government can restore us to peace. Hostilities may be terminated by a truce, which the president alone (it is conceived) may make. The duration of a truce is indefinite. It suspends all hostilities while it continues in force; but it does not revive treaties which were broken by the commencement of the war, or restore rights of any sort, which were suspended by it. It may be general or partial — it may extend to all places and to all the mutual forces of the belligerents, or it may be confined to particular places or particular armaments. When it ceases, it is unnecessary to repeat the declaration of war. But before its conventual termination, unless some fresh cause of complaint should have arisen, it would be inconsistent with good faith to renew hostilities.

Treaties, by which peace is completely restored, may, as already shown, be made by the president and senate alone, without the concurrence, and against the will of the house of representatives.

It has been made a subject of doubt, whether the power to make war and peace, should not be the same, and why a smaller part of the government should be entrusted with the latter, than the former. Sufficient reasons may certainly be assigned for the distinction. Peace is seldom effected without preparatory discussions, often of length and difficulty, the conduct of which, of course, belongs only to the president and senate. War is always an evil; peace is the cure of that evil. War should always be avoided as long as possible, and although it may happen to be brought on us as before observed, without the previous assent of congress, yet a regular and formal war should never be entered into, without the united approbation of the whole legislature. But although a peace is seldom obnoxious and unacceptable to the public, yet its necessity or propriety may not always be apparent, and a public disclosure of the urgent motives that really exist in favour of it, may be prejudicial. The people have, in such case, a stronger motive for relying on the wisdom and justice of the president and senate, than in the case of ordinary treaties. They are less likely than a larger body to be influenced by partial views or occasional inflammation, and the very circumstance of the smallness of their numbers increases their responsibility to public opinion.

Notes:
19. 5 Wheaton, 151, 417.
20. 1 Gallison, 124. 5 Wheaton, 204, 206.
21. 4 Dallas, 37. From: A VIEW OF THE CONSTITUTION OF THE United States of America. BY WILLIAM RAWLE, LL.D.

Second, with respect to the roles of Congress and the President with respect to the armed forces, the relevant passages are:

Article I: "To make rules for the government and regulation of the land and naval forces."

CHAPTER XIII. OF THE MEANS PROVIDED FOR THE PERFORMANCE OF THE EXECUTIVE DUTIES.

AMONG the means provided to enable the president to perform his public duties, the command of the military force will first be considered.

The principal clauses in the Constitution which affect the subject are the following: —

The Congress shall have power to raise and support armies, to provide and maintain a navy, to make rules for the government and regulation of the army, the navy, and also of the militia, when the latter are in the service of the United States.

The president shall be commander in chief of the army and navy, and of the militia of the several states when called into the actual service of the United States.

These are the modes of action expressly provided for the executive magistrate, whenever his functions assume a military cast. In relation to those of a nature merely civil, the Constitution is silent, because particular description would not be equally practicable, and hence as before observed, congress is empowered to pass such laws as may be requisite and proper for carrying into execution the powers vested in the officers of government.

Subordinate offices are therefore created by congress when necessary, whose functions are either expressly defined, or implied from the nature of the office, or left wholly or in part to the direction of the president.

But the military power is at present to be considered, and this, it appears, consists of two classes; first, those who are regularly retained on stipulated compensations to serve in the army or navy, and secondly, the militia who are called forth as occasion may require, but when in service are subject to the same regulations as regular troops.

On the nature and character of the first, little needs at present to be said. The caution that no appropriation of money for the support of an army for a longer term than two years has been mentioned. The manner of employment may be directed by congress, or confided to the president. Congress, which may direct when and where forts shall be built, may also prescribe that they shall be garrisoned either with specific numbers, or with such a number as the president may think proper. So in times of peace, troops may be stationed by congress in particular parts of the United States, having a view either to their health and easy subsistence, or to the security of distant and frontier stations; but during the emergencies of a war, when the defence of the country is cast on the president, and dangers not foreseen may require measures of defence not provided for, the president would certainly be justified in preferring the execution of his constitutional duties, to the literal obedience of a law, the original object of which was of less vital importance than that created by subsequent exigencies, and there can be no doubt, that this necessary power would extend to the erecting of new fortresses, and to the abandoning of those erected by order of congress, as well as to the concentration, division or other local employment of the troops, which in his judgment or that of the officers under his command, became expedient from circumstances. This would not be a violation of the rules laid down in the preceding pages, since the obligation of the law is lost in the succession of causes that prevent its operation, and the Constitution itself may be considered as thus superseding it.

The power of the president over the militia depends on the same principle; the necessary supply of the means to enable him to perform his executive duties.

In a people permitted and accustomed to bear arms, we have the rudiments of a militia, which properly consists of armed citizens, divided into military bands, and instructed at least in part in the use of arms for the purposes of war. Their civil occupations are not relinquished, except while they are actually in the field, and the inconvenience of withdrawing them from their accustomed labours, abridges the time required for military instruction. Militia therefore never amount to perfect soldiers, unless the public exigencies shall have kept them so long together as to absorb the civil, in the military character.

The human mind is of a nature so flexible, that it may by perseverance, be disciplined to results, which at first view would be deemed almost impossible. The fear of death is certainly one of the earliest, and most natural passions; yet in a well regulated army, it gives way to the fear of disgrace; and the soldier becomes more apprehensive of the displeasure of his commanders, than of the fire of the enemy. Another sort of mechanism also contributes to actuate a disciplined army; it is the voluntary and entire surrender of its own judgment to that of the commander. Obedience would be slow and uncertain, if the soldier was to allow himself to reflect on the propriety of the orders given: he is habituated to deem them right, merely because they are orders, and from the common soldier to the highest subordinate officer, no other rule is known than that of implicit obedience. The confidence thus reposed is not of a personal nature; it does not depend merely on the character of the individual in command. If the commander should fall during an engagement, it is immediately transferred to his successor, who on his part, at once assumes the suspended faculty of deciding what is proper to be done, in lieu of the implicit obedience without inquiry, under which till that moment he had acted. This at first view appears inconsistent with individual freedom and independence, and hence it is that militia are systematically less tractable than regular troops. Devoted patriotism and personal courage, although they frequently produce feats of exalted men, are insufficient for the combinations of an army. The conquests of the Macedonian Alexander may easily be accounted for on this ground; he had received from his father Philip the first regular army of which we have an account in history, and with these he fearlessly advanced into distant countries, and successively defeated immense multitudes of the Persian and Indian militia, among whom there were doubtless much individual bravery, and strong desires of defending their country. 1

But notwithstanding their inferiority to soldiers schooled and practised in the field, gallant actions have been performed by our militia collectively. The capture of an entire army under General Burgoyne in 1777, and the celebrated defence of New Orleans in 1814, were chiefly effected by militia.

But however inferior in military estimate to armies regularly trained, the militia constitutes one of the great bulwarks of the nation, and nothing which tends to improve and support it should be neglected.

The power given to congress over it is from its nature exclusive, to the extent that it is carried in the Constitution.

During the late war, a construction of this part of the Constitution was given in a highly respectable state, which excited no small uneasiness at the time, and ought not to be passed over in silence. The act of congress declaring war took place on the 18th of June, 1812, and the president was expressly authorized by the act to use the whole land and naval forces to carry it into effect. Orders were soon afterwards issued by him for calling out certain portions of the militia from each state. The opinions of the judges of the supreme judicial court of Massachusetts were required by the governor, and three of them in the absence of the others, declared their sentiments that the commander in chief of the militia of a state had a right to decide whether or not the exigencies to warrant the call existed. Of course, that whatever were the declarations of congress, or the course pursued by the president, if the governor of a state thought differently; if he thought there was no war, no insurrection, no invasion, he was not obliged to obey such requisitions. The governor expressed the same opinion in a message to the legislature; and a line of conduct was adopted, greatly tending to impair the energies of the country, and encourage the hopes of the enemy.

The apprehension professed was, that if congress by determining that those special cases existed, could at any time call forth the whole of the militia and subject them to the command of the president, it might produce a "military consolidation of the states," without any constitutional remedy. And that under the act of February 28th, 1795, the militia of the several states would be in fact at his command at any time when he thought proper, whether the exigency existed or not. 2

But whatever weight might have been found in such objections against adopting the Constitution, they ceased when it was adopted. It was then the choice of the people to repose this confidence in congress to enable them to provide for the common defence and general welfare. If it had been thought necessary to impose any check or control; if in opposition to the whole spirit of the instrument, it had been deemed expedient to disunite the system, by requiring the concurrence of the states, it could undoubtedly have been so expressed, and in this respect at least we should not have advanced a step beyond the imbecility of the old government. Nothing would be more likely to enfeeble the Union than to have subjected the right of exercising these powers to the governors, or even the legislatures of the different states, some of which might hold one opinion, and some insist upon another; and it is by no means clear that the people did not apprehend a greater danger of abuse of confidence from the governor and legislature of a state, than from the government of the United States.

The act of February 28th, 1795, certainly vests in the president alone the power to call out and employ the militia, without waiting for, or pointing out any particular mode by which the evidence of the necessity for it shall be furnished. The former act had required that before the militia was called out to suppress an insurrection, a certificate should be given to the president by an associate judge of the supreme court, or the judge of the district court, that the laws of the United States were opposed by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, &c. But besides the incongruity of thus requiring members of the judicial authority to decide in this manner upon facts, it was shifting a responsibility from the proper officer, the president, and throwing it upon those who were less amenable, if amenable at all, in such a case. The second act, therefore, very properly leaves it with the president to determine on the exigency which shall authorize the measure. Power so serious and important, it was believed would not be lightly or prematurely exercised by him. He who is charged with executing the laws of the Union, is naturally the best apprized of resistance to them, and for his own justification he will take care to be prepared with adequate proof of the fact.

In respect to foreign invasion, its public notoriety, when it actually takes place, renders no form of evidence necessary, and his power on such an occasion to call forth the militia, not merely of the state invaded, but from other parts, to assist in repelling an enemy, who, by the terms and spirit of our Constitution, is the enemy of the whole, is surely too salutary to be denied. Of the danger of an invasion before it happens, no one can be a better judge than he, who, being charged with all our foreign relations, must be the best informed of the proceedings of foreign powers. But in the case of war actually declared by law, it is difficult to conceive even a plausible doubt. The law itself constitutes the fact, and unless it should be seriously contended that congress was bound, before it declared war, to obtain the consent of the several states, there can be no pretence for saying that the commanders in chief of the militia in the several states were not required or authorized by the Constitution to obey his military orders.

It fortunately happened that no military operations of a serious character occurred in that part of the country during the war. If an invasion in much force had taken place, the probability is, that with a paternal disregard of these unconstitutional opinions, the president would have employed the force of the Union to repel it, and the temporary exhibition of local jealousy, would have been lost in the sense of the necessity of a common exertion, and the gratitude for the aid which produced a successful defence.

As it is the only instance in which a construction hostile to the full exercise of the president's authority has been distinctly avowed, and as it presents the opportunity of shortly elucidating this part of the Constitution, the author has felt it a duty to take some notice of it, though without the smallest intention to revive heats, now happily extinguished.

The governors of the several states are commanders in chief of their militia, except when they shall be called into the actual service of the United States. In fixing the moment when this power over them ceases, and that of the president commences, the language used in some of the state constitutions, and in the Constitution of the United States, is the same. The calling into actual service, and not the actual commencement of the service, is the period alluded to, and it would in some degree impair the energetic power, which in times of public danger is to be exercised by the president, if he possessed no right to enforce obedience to the call. It may therefore be doubted, whether an act of Congress postponing the commencement of the president's authority till the militia shall have obeyed the call, is perfectly consistent with the Constitution. The legislature can no more abridge, than it can enlarge the executive powers, under the Constitution. This question was discussed, but not directly decided in the case of Houston v. Moore. 3

The president during the war had called upon the state of Pennsylvania, (as well as on other states,) for a portion of the militia. A person who was draughted for that purpose, disobeyed the summons and was fined by a court martial held under the authority of an act of assembly of Pennsylvania.

The main question was, whether the court martial ought to have been convened under the authority of the United States, or of the state. The acts of congress of 28th February, 1776, and of the 10th April, 1814, were much considered. It was held that congress not having legislated on the subject of holding courts martial in such cases, an act of the state legislature to that effect was constitutional. The 10th section of the latter provides for the expense of marching the militia to the place of rendezvous. Immediately on arriving there, they are undoubtedly in actual service, and if in their way to it they are under any military command whatever, it must be that of the president.

Circumstances may render it necessary for the president to appoint another place of rendezvous, before that previously appointed has been reached, and military operations may, from a change of the enemy's position, become necessary even on the march; surely in any such case, the military power of the president alone ought to be exercised over them. Considerations of economy in respect to their pay ought in such cases to be disregarded.

A case which in 1818 was decided in the supreme court of Pennsylvania, supports most of these principles, and is not at variance with any of them. That highly respectable court adopted the following construction of the Constitution and the powers of congress under it.

The president has a right to issue his orders for calling out the militia, not through the medium of the governor only, but directly to any officer he thinks proper.
If he makes a requisition on the governor in the first instance, and the latter declines to comply with it, the president may issue his command to any officer of the militia.
The governor is not justified in disobeying the requisition, because he differs in opinion as to the necessity of calling forth the militia.
The governor without the authority of congress, or of the state legislature, has no right to direct courts martial affecting those who disobey the call of the president.
A person enrolled, draughted, and regularly notified when and where to attend for muster and inspection, is liable to a penalty on the judgment of a court martial constituted under the authority of the United States — although such person, before he appears at the place of rendezvous, may not be justly considered as in actual service. The calling forth must precede the actual service. It would render the Constitution a dead letter, to suppose that he who is enrolled and draughted, but refuses to appear, shall be exempted from punishment because he has refused.
It is no infringement of the rights of citizens to proceed to the trial of delinquent militia-men by courts martial. 4

The regular troops of the United States are under the immediate command of the president from the time of their enlistment; they may be marched to, or stationed at any part of the United States, at his discretion, unless prevented by some special legislative act: And although the genius of a republic and the peculiar character of our country would indicate that their employment should be only in its defence, yet since a defensive war is sometimes best carried on by invading the territory of the aggressor, the president may cause them to be marched out of the United States to effect this purpose, and there can be no doubt, that in such a case, he would possess the same power over the militia.

It may perhaps be made a question, whether for the suppression of insurrection, and in cases of a similar nature, the president can employ the regular troops in aid of the civil authority. The acts of congress are silent on the subject, and no power given by them would be valid unless it could be supported by the principles of the Constitution. It must be admitted to be a question of great delicacy and importance. No power is so likely to be abused as the command of a regular army — no measure would be, more dangerous to civil liberty than an habitual recurrence to military force in other cases than actual war; yet on the other hand, in times of dangerous commotion, when law is prostrated and the civil power is felt to be inadequate, the public good would appear to justify the most prompt and efficient remedy.

Soldiers do not cease to be citizens by being incorporated into a regular army, and it is the duty of every citizen in cases of this sort, to render his best services to his country. It can be no objection to the fulfilment of this duty, that it is rendered more efficacious by previous discipline, and by being performed in a regular and not a desultory manner. It is, however, always to be kept in mind, that the military should be subordinate to the civil power. The orders for the employment of this force on such occasions must emanate from the president in his civil capacity, or from civil officers of the United States, possessing the authority of conservators of the peace, if any such there be.

That the exercise of this power should be attended with great caution, no one will deny; real necessity alone will justify its being exercised at all. There can be no doubt that, if it occasioned the loss of human life, the whole measure would be liable to severe judicial scrutiny.

Notes:
1. How well this is explained by Adam Smith in his Wealth of Nations, vol. 3. p. 56.
2. See 8 Mass. Reports, 551. Niles' Reg. vol. 3, 116.
3. 8 Wheaton, p. 1, and 3 Serg. &Rawle, 169.
4. 3 Sergeant &Rawle, 590. Duffield v. Smith.
2.13.2006 3:34pm
KMAJ (mail):
JaO,

I do not necessarily oppose such a test case. I question its necessity as something that is constitutionally demanded. It may be the best solution to the current impasse, but I am not totally convinced of that. Such a test case may elevate the judicial branch authority, creating another conflict in trying to resolve another. It is understandable the legal profession would have a certain empathy for and allegiance to the judicial branch that would lend itself to deferrence to a judicial solution. With that thought in mind, wouldn't a better solution be a negotiated one between the legislative and executive branches that results in a statute ?
2.13.2006 3:41pm
Neal Lang (mail):
I'm not clear what your point is about the habeas analogy. That case involved a discretionary restraint on the exercise of the Court's habeas corpus jurisdiction. There's nothing in there about the president being able to constitutionally defy the ruling of an article III court.

On the contrary, the Merryman case is specifically on point. What happens when the Executive refuses to execute a Writ (or subpoena). Answer: NOTHING! The Courts could no more compel the President to turn over "secret" documents to Congress, than they could compel President Lincoln to produce Mr. Merryman.
2.13.2006 3:41pm
Medis:
Dilan,

I apologize for any confusion. I agree that Goldwater is not relevant to the subpoena issue in particular. I brought it up only for the proposition that a member of Congress could not sue over alleged violations of FISA. I was suggesting that would be a possible application of the "political questions" doctrine within the scope of the NSA issue broadly defined, but you are right that observation does not fall within the more limited scope of the subpoena issues.

KMAJ,

I didn't really understand your reply--in particular, I'm not sure how to apply what you said in concrete terms. So, perhaps it would be useful for you to either comment on the compromise I outlined (what I believe certain Republican Senators were effectively proposing to Gonzales), or, alternatively, you could suggest an alternative compromise.
2.13.2006 3:49pm
Just an Observer:
KMAJ: Who would determine how would their test case be worded, on what grounds and who would have standing to bring their test case ?

The DOJ already has standing to make warrant applications in the FISC courts. Only the government has standing there. The DOJ lawyers would write the application based on the facts of a case where the warrant's justification depends on information derived from prior warrrantless surveillance.

If the FISC ruling were appealed, the FISCR court could invite third parties to argue against the government on questions of law. That is what happened in In Re Sealed Case in 2002.

KMAJ: To what degree can there be any guarantee that the test case wouldn't be presented in a prejudicial fashion (I would hate to see politics inserted into such a test case) ?

No politics are involved. This is a court, the same court where thousands of DOJ warrant applications have been adjudicated.

KMAJ: Would it be possible to negotiate the context and scope prior to such a test case ?

The only parties involved at the initiation of the case would be the DOJ and the FISC judge. It would be up to the government to select a case that presented the question on which it seeks vindication: that the warrantless NSA surveillance was lawful. How the government argued that question would be up to the DOJ lawyers. I am presuming they would make the same arguments they described in their published "white paper."

KMAJ: Is there an instrument to prevent overreach in such a test case ruling ?

Yes, an appeal of the ruling to higher courts. That's the way the judicial system works.

KAMJ: Is a test case the only solution available ? Or could the legislative and executive branches negotiate their own solution and enact a statute ?

A legislative compromise might obviate the need for such a test case as an immediate, practical matter by providing new statutory authority for the NSA program.

But that would not vindicate Bush's theory that the executive has inherent authority to run such a program even without legislative authority. You seem to agree that such authority exists, and that Bush's constitutional justification is correct.

Do you not wish to see that principle upheld by the Supreme Court?
2.13.2006 3:49pm
Kovarsky (mail):
Neal,

A point and a meta-point.

I think that you are a little mixed up in your habeas law. The constitution states that "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." Merry-whatever filed his petition, and a court said the officer had to produce the prisoner. Meanwhile, before the contempt could be adjudicated, Licoln properly exercised his authority under the suspension clause, and suspended the writ during wartime. The Supreme Court affirmed his right to suspend the writ. There's just nothing in that case analagous to the President's ignoring a subpoena endorsed by the Supreme Court. Are you familiar with habeas jurisprudence, or did you get that from a blog somewhere? It just doesn't say anything you are saying it says.

Second, my meta point. Please invest some effort in condensing your posts instead of just cutting and pasting enormous arguments and passages from other places. Not only is the lazy character of that habit irritating, but it also obscures your point for those of us that are earnestly trying to respond.
2.13.2006 4:29pm
Just an Observer:
Kovarsky: ... Licoln properly exercised his authority under the suspension clause, and suspended the writ during wartime. ...

Actually no. The Suspension Clause is in Article I. It belongs to Congress, not the President. Lincoln's refusal to honor the writ did provoke a crisis until Congress acted to suspend habeus corpus.
2.13.2006 4:42pm
Medis:
Kovarsky,

Although in this case, Neal's very long post contained a great deal of material supporting my point. So I, at least, am willing to give him a pass this time.
2.13.2006 5:05pm
Kovarsky (mail):
JaO,

Sorry if I was unclear - I know Congress owns the Suspension Clause authority - I should have said that the President properly exercised his authority pursuant to congress's suspension of the writ. They approved it.
2.13.2006 5:24pm
Just an Observer:
KMAJ,

I answered all your questions here, but you never responded.

So we are left where we were in our prior exhanges:

The President -- and you -- make what masquerade as legal arguments, which you purport to believe. Yet neither of you will move to let the courts rule up-or-down on those arguments. So I must conclude that neither you nor Bush really thinks the arguments are valid.
2.13.2006 7:44pm
Neal Lang (mail):
The constitution states that "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

Isn't that an Article I clause? Isn't Article I related to the "powers, authorities, and limitation of Congress?" Of course, being a "War Power", like "gathering combat intelligence" it can be properly exercised by the President.

In any event, the important point (the one you seem to ignore) is that the "Article III" Supreme Court refused to challenge President Lincoln's "War Powers" authority, even when he directly challenged a "Writ" from the Chief Justice of the Supreme Court. Chief Justice Taney even held the commandant of the Federal Fort where Merryman was being imprisoned in contempt, and the President ignore it.

As such, I doubt if a court ordered subpoena under similar circumstances would carry any more wait.

Perhaps you should consider Lincoln's "Emancipation Proclamation". Again, you seem to underestimate the Constitutional "War Powers" of the President acting as Commander-in-Chief, to wit:
Now, therefore, I, Abraham Lincoln, President of the United States, by virtue of the power in me vested as Commander-In-Chief of the Army and Navy of the United States in time of actual armed rebellion against the authority and government of the United States, and as a fit and necessary war measure for supressing said rebellion, do, on this 1st day of January, A.D. 1863, and in accordance with my purpose so to do, publicly proclaimed for the full period of one hundred days from the first day above mentioned, order and designate as the States and parts of States wherein the people thereof, respectively, are this day in rebellion against the United States the following, to wit:

Obviously, Lincoln believed his Presidential "War Powers" trumps the 5th and 6th Amendments, without specific Congressional resolution and merely on the strength of his signature as President. Apparently, neither the Courts nor Congress doubted this authority, as neither objected to Lincoln's Proclamation.
2.14.2006 11:48am
Neal Lang (mail):
The President -- and you -- make what masquerade as legal arguments, which you purport to believe. Yet neither of you will move to let the courts rule up-or-down on those arguments. So I must conclude that neither you nor Bush really thinks the arguments are valid.

What makes the Courts the final arbiter of Presidential "War Powers"? Based on the historic record, Lincoln during the Civil War and FDR's detention of Nisei-Americans during WWII, it would appear that the Court acquiesces to the President "authority" during the time of war.
2.14.2006 11:54am
Just an Observer:
Neal Lang: Isn't that an Article I clause? Isn't Article I related to the "powers, authorities, and limitation of Congress?" Of course, being a "War Power", like "gathering combat intelligence" it can be properly exercised by the President.

Antonin Scalia (uncontested dicta from his dissent in Hamdi):
Our Federal Constitution contains a provision explicitly permitting suspension, but limiting the situations in which it may be invoked: "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." Art. I, §9, cl. 2. Although this provision does not state that suspension must be effected by, or authorized by, a legislative act, it has been so understood, consistent with English practice and the Clause's placement in Article I. See Ex parte Bollman, 4 Cranch 75, 101 (1807); Ex parte Merryman, 17 F. Cas. 144, 151-152 (CD Md. 1861) (Taney, C. J., rejecting Lincoln's unauthorized suspension); 3 Story §1336, at 208-209. (my emphasis)


Neal Lang: What makes the Courts the final arbiter of Presidential "War Powers"?

Article III, Marbury, Youngstown, Hamdi, etc.

Neal Lang: Based on the historic record, Lincoln during the Civil War and FDR's detention of Nisei-Americans during WWII, it would appear that the Court acquiesces to the President "authority" during the time of war.

In the first case, assuming you are referring again to the habeus issue, the court did not not agree with the President. In the second case, the court did agree. In both cases, the court had the authority to rule, and did.
2.14.2006 12:48pm
Neal Lang (mail):
In the first case, assuming you are referring again to the habeus issue, the court did not not agree with the President. In the second case, the court did agree. In both cases, the court had the authority to rule, and did.

Whether or not the court (Chief Justice Taney) agreed with the President in the Merryman case, the fact is the President's position, and not the court's, was the one that carried the day. The only thing the Court agreed to in the Nisei-Americans detention case was that the President's "war powers" are almost unlimited during the time of war. Unlike with Merryman, there was no evidence that the Nisei-Americans were any sort of a National Security threat. Yet the Supremes approved the violation of their 5th and 6th Amendment rights merely on the "say-so" of the Commander-in-Chief.
Article III, Marbury, Youngstown, Hamdi, etc.

Please point to the Article III Section and Clause that states that the Court is the arbiter of Presidential "War Powers"! Other than a specific reference, all you rely on is the Judiciary's word that they have the authority. Of course the Framers didn't see it that way.
The arguments, or rather suggestions, upon which this charge is founded, are to this effect: "The authority of the proposed Supreme Court of the United States, which is to be a separate and independent body, will be superior to that of the legislature. The power of construing the laws according to the spirit of the Constitution, will enable that court to mould them into whatever shape it may think proper; especially as its decisions will not be in any manner subject to the revision or correction of the legislative body. This is as unprecedented as it is dangerous. In Britain, the judical power, in the last resort, resides in the House of Lords, which is a branch of the legislature; and this part of the British government has been imitated in the State constitutions in general. The Parliament of Great Britain, and the legislatures of the several States, can at any time rectify, by law, the exceptionable decisions of their respective courts. But the errors and usurpations of the Supreme Court of the United States will be uncontrollable and remediless." This, upon examination, will be found to be made up altogether of false reasoning upon misconceived fact.

In the first place, there is not a syllable in the plan under consideration which directly empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State. I admit, however, that the Constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the Constitution. But this doctrine is not deducible from any circumstance peculiar to the plan of the convention, but from the general theory of a limited Constitution; and as far as it is true, is equally applicable to most, if not to all the State governments. There can be no objection, therefore, on this account, to the federal judicature which will not lie against the local judicatures in general, and which will not serve to condemn every constitution that attempts to set bounds to legislative discretion. Publius - Federalist 81
2.14.2006 3:33pm
Just an Observer:
Neal Lang: Whether or not the court (Chief Justice Taney) agreed with the President in the Merryman case, the fact is the President's position, and not the court's, was the one that carried the day.

In the long run, the principle of judicial supremacy was restored. I will begin to take seriously your conflation of history and law when I hear Scott McLellan announce from the White House podium that Bush will defy the Supreme Court if necessary. Obviously he will not.

And yes, I am aware from your previous posts that you believe Marbury v Madison was wrongly decided so judicial authority to decide the matter is illegitimate. Again, I will begin to take that opinion seriously when the solicitor general makes the argument before the Supreme Court. Obviously he will not.
2.14.2006 4:37pm
Neal Lang (mail):
In the long run, the principle of judicial supremacy was restored. I will begin to take seriously your conflation of history and law when I hear Scott McLellan announce from the White House podium that Bush will defy the Supreme Court if necessary. Obviously he will not.

Perhaps such a show down is overdue!
And yes, I am aware from your previous posts that you believe Marbury v Madison was wrongly decided so judicial authority to decide the matter is illegitimate. Again, I will begin to take that opinion seriously when the solicitor general makes the argument before the Supreme Court. Obviously he will not.

Actually, it is you who disagrees with the Framers of the Constitution, and not I. That is unless you believe that Alexander Hamilton hadn't a clue as to intent of the document that was agreed to at the Constitutional Convention; voted on by the Congress; and sent to the States for ratification.
2.15.2006 10:21am