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George Will on NSA Surveillance Program:
George Will has a column today criticizing the Bush Administration's defense of the NSA domestic surveillance program: No Checks, Many Imbalances. An excerpt:
  [T]errorism is not the only new danger of this era. Another is the administration's argument that because the president is commander in chief, he is the "sole organ for the nation in foreign affairs." That non sequitur is refuted by the Constitution's plain language, which empowers Congress to ratify treaties, declare war, fund and regulate military forces, and make laws "necessary and proper" for the execution of all presidential powers . Those powers do not include deciding that a law — FISA, for example — is somehow exempted from the presidential duty to "take care that the laws be faithfully executed."
  The administration, in which mere obduracy sometimes serves as political philosophy, pushes the limits of assertion while disdaining collaboration.
Will ends the column by calling on Congress to amend FISA to make the NSA program legal: "It should do so with language that does not stigmatize what [the Executive Branch] has been doing, but that implicitly refutes the doctrine that the authorization is superfluous."

  Thanks to Crooked Timber for the link.
Medis:
What do you expect from the Michael Moore crowd?
2.16.2006 10:16pm
plunge (mail):
Will is basically a liberal at this point, so who cares? Just because he doesn't hang out with Whoopi Goldberg doesn't mean he doesn't secretly want to.
2.16.2006 10:18pm
Marcus1 (mail) (www):
I'm glad someone is pointing to the plain language of the Constitution.

I'd also note that the "commander in chief" label is overused; the Constitution makes the President commander in chief of the military, not of the country at large. It's an extraordinary difference. I do not believe it was the intent of the framers in any way to create a president that was all of our "commander in chief."

This is particularly important, since the Constitution also explicitly allows the Congress to make regulations regarding the military. Thus, there simply is no unchecked "commander in chief" power. In the words of Rehnquist, addressing another extra-Constitutional phrase, it "is a metaphor based on bad history, a metaphor which has proved useless as a guide to judging. It should be frankly and explicitly abandoned."
2.16.2006 10:24pm
Thomas Roland (mail):
Medis and plunge are marvelous satirists.
2.16.2006 10:26pm
Hank:
"Will is basically a liberal at this point." As a few conservatives, after all these years of Bush's committing crimes, are beginning to criticize him, it is becoming the standard ploy for unrepentant Bush supporters to call these conservatives "liberals." In fact, however, Bush has never been a conservative. Conservatives, no more than liberals, support imprisoning and torturing people without filing charges, creating a huge budget deficit, destroying the environment, stifling science for ideological reasons, leaking names of undercover CIA agents, etc., etc. Bush is a criminal, not a conservative, and it's about time that Americans of all political stripes demand his impeachment and then his prosecution for war crimes.
2.16.2006 10:35pm
Michaelg (mail):
Andrew C. McCarthy's response to Will is here and very much worth reading.
2.16.2006 10:38pm
Medis:
Thomas,

Thank you. I try.

Marcus1,

Your point is particularly clear when one looks at the entire clause:

"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."

I think the conditional application of the clause to the state militias makes it clear that this clause is about the President's position on the table of organization, not a general grant of sweeping powers during war.
2.16.2006 10:46pm
Medis:
Well, at least McCarthy mentioned Hamdi. Unfortunately, he didn't mention this:

"In so holding, we necessarily reject the Government’s assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances. Indeed, the position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens. Youngstown Sheet &Tube, 343 U.S., at 587. Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake."
2.16.2006 10:51pm
Dustin R. Ridgeway (mail):
More evidence of the "Criticism of Bush = Liberalism" hypothesis.
2.16.2006 10:52pm
Just an Observer:
I was heartened to see Will speak out. I would not have written everything exactly that way, but then Will generally can write better than I can. :-)

Along the lines of the oversight and legislative action Will urges, the major news of the day seems to be the failure of the Senate Intelligence Committee to agree to an investigation. Chairman Roberts said the White House was committed to unspecified legislation that somehow would "fix" FISA to cover the NSA program. It was unclear to me if this was based on Sen. DeWine's proposal.

Committee Democrats grumbled about a continued lack of meaningful oversight.

Meanwhile, VC commenter A.S. -- usually a reliable-but-deniable surrogate for the administration line, IMO -- is beginning to talk in terms of congressional "ratification" at this post, et seq.

Since the administration continues to claim that any legislation ultimately is trumped by "inherent" Article II powers, I think any meaningful legislation should embody a mechanism triggering judicial review if the President colors outside the lines of the new statute.
2.16.2006 10:55pm
Medis:
JaO,

Although as I posted in the other thread, today McClellan seemed to suggest that the Administration still viewed the idea of additional legislation with considerable skepticism and wariness.

So, I actually wonder to what extent Roberts actually does have a deal, and to what extent he is just stalling for time on behalf of the Administration.
2.16.2006 10:58pm
Just an Observer:
This just in from the NYT: House Leaders Agree to Inquiry on Surveillance

The story also covers the action or lack thereof on the Senate side, and at the White House.
2.16.2006 11:05pm
gvibes (mail):
Michaelg - I'm not so sure the McCarthy article was worth my time. Of course you can make the NSA program supporter arguments look specious if you declare that those arguments are about "foreign intelligence gathering." However, the "intelligence" is not gathered abroad in the NSA program. I think George Will is closer to correct on this point.
2.16.2006 11:09pm
Medis:
To make my point a little more explicit, this is from the NYT article JaO linked:

"'The administration is now committed to legislation and has agreed to brief more Intelligence Committee members on the nature of the surveillance program,' Mr. Roberts said."

And this is from the White House transcript of McClellan's press briefing today:

"So we have spelled out the legal rationale behind this vital tool. We don't believe that congressional authorization is something that is necessary, because, as the President has spelled out, and others have spelled out, he already has the constitutional and the statutory authority to authorize the terrorist surveillance program.

The President also has said that we will continue working with Congress. We will -- we are open to ideas regarding legislation. The one thing the President said was that he would resist legislation if it would compromise this vital program that helps save lives and prevent attacks from happening.

But we have seen some good ideas presented by Senator DeWine, and we are committed to continuing to work with Congress on legislation that would not undermine the President's ability to protect Americans. And so we'll keep working with members of Congress as we move forward.

Q In short, though, the administration is open to the idea of some legislative adjustments?

MR. McCLELLAN: Well, we previously expressed that we will work with Congress on this, and we previously expressed that we're open to ideas. We've talked about how there's kind of a high bar to overcome. But at this point, we've only heard ideas from Senator DeWine. We think there's some good ideas, but we have not seen actual legislation."

Something tells me this may not have blown over by the time the Senate Intelligence Committee meets again on March 7.

Incidentally, I note that the staunch pro-Administration commentators here have frequently made the claim that public support for the NSA program has been growing. I assume that is a meme which is also being promoted on pro-Administration blogs and bulletin boards. So, I wonder if the Administration's strategy right now is to delay congressional action while the Administration "takes its case to the American people," ala Social Security reform.

OK, that was a loaded analogy. But I couldn't resist.
2.16.2006 11:18pm
Just an Observer:
Medis: Well, at least McCarthy mentioned Hamdi. Unfortunately, he didn't mention this: ...

Like the 42-page DOJ "white paper," McCarthy also mentions the Constitution but neglects to mention Congress' enumerated power "to make rules for the government and regulation of the land and naval forces."

I guess they were both tight on space.
2.16.2006 11:25pm
Just an Observer:
[satire]
They omitted the quote from McClellan: "Chairman Roberts is a useful tool and we use him in the war on terror whenever appropriate."
[/satire]
2.16.2006 11:30pm
Medis:
JaO,

First, it is a good thing you remembered to turn off satire. I'd hate to have a series of other posts turn unexpectedly satirical.

Anyway, the general picture I get is that both Roberts and Hoekstra are in a pretty serious fight to keep any semblance of control over their committees. I gather Roberts got DeWine and the other concerned Republicans to delay further investigation while DeWine worked on some sort of compromise legislation. But I can't imagine DeWine is perfectly thrilled with McClellan's press briefing, despite the shout out.
2.16.2006 11:58pm
Kovarsky (mail):
Re: Roberts.

When he was on meet the press, there were at least three separate times where he said "we need to act in seconds" but was confronted with the proposition that the 72 hour requirement was retroactive. He would then respond with "well 3 days isn't fast enough, we need to act in seconds."

I don't understand what he's doing? Either he doesn't get it, or he's just lying, right? And he's not a dumb man, so it is almost certainly the latter. He understands what retroactive means.

I didn't understand why, each time, Russert appeard to cut Harmon off when she tried to point that out. Each time I assumed it was because Russert was going to explain that himself, but he just let it go.

Also, interestingly, Roberts refused to commit to the proposition that journalist should not go to jail for not revealing his sources. Whether that's right or wrong, I don't want to get into, but in light of his status as a former jurist, seems like a privilege of political expedience over a professional code of ethics that I find unusual.
2.17.2006 12:18am
Noah Klein (mail):
JAO,

Thank you so much for the NYT article. I was becoming very upset that the Senate was not going to look at this issue and then I read the NYT article. This is a very interesting situation. Maybe it's Boehner's influence that is moderating the House and allowing them to actually investigate the executive.

Noah
2.17.2006 12:20am
Perseus (mail):
I have little regard for Will's understanding of the Constitution's separation of powers when he can baldly assert: "Congressional supremacy is a traditional tenet of American conservatism. It had better be, because it also is a basic constitutional fact" (Restoration, p. 9). That would be news to Madison, Jay, and Hamilton.


And the plain language of the Constitution was also apparently lost on Hamilton:

"The Legislative Department is not the organ of intercourse between the UStates and foreign nations. It is charged neither with making or interpreting Treaties...[The Executive Department is] the organ of intercourse between the nation and foreign Nations." (Pacificus I)
2.17.2006 12:21am
Kovarsky (mail):
Perseus,

You take issue with:

(1) congressional supremacy is basic conservative tenet
(2) it is a constitutional fact

Thanks,
lee
2.17.2006 12:33am
Jacob Lister (mail):
If the president claims the inherent power to violate laws passed by Congress (by not enforcing those laws), can Congress then impeach him for it?

And as for the president's claim that each branch has some ability to interpret the Constitution, doesn't that imply that the other two branches could interpret the Constitution such that the president doesn't have the inherent power to wiretap? If so, then Congress could certainly impeach the president, and the inherent powers defense would have no bearing on Congress' actions.

Note: This probably isn't a wise or desirable course of action. But somehow, impeaching the president seems more politically feasible than cutting funding for the military or the NSA, as John Yoo suggests would be Congress' course of action in a dispute.
2.17.2006 12:35am
Medis:
Perseus,

No one is suggesting that Congress should negotiate or adjudicate treaties (although the courts can do the latter: "The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority"). Nor is anyone denying that the President is in charge of diplomatic communications with foreign nations (which is what "intercourse" means in this context).

What people are disputing is the notion that as soon as the words "foreign" and/or "international" apply to a situation in any way, the President can dismiss Congress and the judicial branch from further participation in the matter. And that proposition is indeed clearly wrong in light of the enumerated powers of Congress and Article III's grant of jurisdiction of the courts (in addition to the treaty clause, Article III also gives the courts jurisdiction over controversies "between a state, or the citizens thereof, and foreign states, citizens or subjects").
2.17.2006 12:40am
Noah Klein (mail):
Perseus,

Hamilton's quote does not make Will's belief in Congressional supremacy less reasonable. A person I'm sure you admire held that same belief. When he was in the Revolutionary army, he abided by all of Congress's instructions despite the fact that he consistently was upset over their inability to supply their soldiers. When he was in the government, he disapproved of the executive vetoing any bills unless he felt that they were unconstitutional. This man was George Washington. Congressional supremacy was an idea that was widespread among Founders. So George Will has some good company. Although I don't hold this belief to hold is not illegitimate.

Noah
2.17.2006 12:42am
Medis:
Jacob,

The Court in Nixon (the Judge Nixon case) basically ruled that it is up to Congress to define their impeachment and removal standards. And the Articles of Impeachment for both Presidents Nixon and Johnson included charges that they failed their duty to take care that the laws be faithfully executed. So, such a charge would not be unprecedented in an impeachment context.
2.17.2006 12:46am
Noah Klein (mail):
That should be "to hold it is not illegitimate."
2.17.2006 12:49am
Kovarsky (mail):
Medis and Perseus,

I would also add that Article I Section 8 contains the foreign commerce clause, which constitutes an express grant of constitutional authority to regulate interstate communications.
2.17.2006 12:50am
Perseus (mail):
Kovarsky: I take issue with BOTH of Will's claims (I'd argue that Hamilton is one of the founders of American conservatism). For present purposes, Will's claim about Congressional supremacy being a constitutional fact is the one that I find most objectionable, and it's the one that I believe partly explains Will's hostility to the Administration's position.

Medis &Noah: As I've said before, I'm skeptical about the Administration's inherent executive authority argument (in my view, the Administration's case would be better if it invoked executive prerogative to violate the law because of military necessity and use the AUMF to buttress the claim that their violations of the law are truly necessary). But my Hamilton quote was directed at the very specific reference by Will about which branch of government is the organ for the nation in foreign affairs, not the Administration's broader claims. (And Noah, Washington did veto a spending bill for the armed forces by Congress not because he thought it was unconstitutional but because of the policy reason that it would reduce the size of the armed forces too much.)
2.17.2006 1:10am
KMAJ (mail):
While Will is an eloquent writer, and entitled to his opinion, he is out of his realm in this piece. It has to be one of the weakest arguments I have seen put forth, with no citations, only his claims of what he thinks things mean. There really is not much substance to his piece.

Those who call Will a liberal are barking up the wrong tree. He is defintely a conservative, but certainly not mainstream. He has an air of elitism and snobbery about him. If one finds it necessary to pigeonhole him, having read his articles for many years, he is a l'aissez faire conservative with libertarian leanings.

That said, I did not find Will's article very informative nor very persuasive. I did find this article by moderate democrat editor of Roll Call at least informative.

Bush, Congress Should Legalize NSA Surveillance

By Mort Kondracke
February 17, 2006

After weeks of furious controversy, Congress seems to be moving toward a sensible consensus on President Bush's secret National Security Agency surveillance program: Make it legal. Now, Bush should take "Yes" for an answer.

So far, the administration seems stuck on using the president's "inherent" constitutional authority to tap suspected terrorists, but Bush would be on stronger ground if he agreed with Congress on a plan to establish its legality.

Some Democrats still want to investigate Bush for what they see as his breaking the law with the program. But most now seem to accept that it's a valuable anti-terrorism tool that ought to be continued.

That, more or less, was the view expressed by Democratic Sens. Edward Kennedy (Mass.), Dick Durbin (Ill.), Herb Kohl (Wis.) and Joseph Biden (Del.) when Attorney General Alberto Gonzales testified last week before the Senate Judiciary Committee.

And, it certainly is the view expressed by Rep. Jane Harman (Calif.), ranking member on the House Intelligence Committee in various interviews, including one with me, and by former Senate Minority Leader Tom Daschle (D-S.D.) on "Meet the Press" last Sunday.

That stance is a reversal for Daschle. On Dec. 23, he wrote in an op-ed in The Washington Post that Bush never asked for no-warrant wiretap authority in the aftermath of the Sept. 11, 2001, terrorist attacks, and that "I did not and never would have supported giving authority to the president for such wiretaps."

Yet, on "Meet the Press," Daschle said "we all support going after the terrorists. We support the program." And when asked whether it should be stopped, he replied, "No, absolutely not. I think it's a very valuable program" that should be placed "under the rule of law."

To her credit, Harman has supported the program from the beginning - no surprise, given her stalwart stands on national security, even in the face of criticism from left-wing Democrats.

Since The New York Times' disclosure of the program - "a leak I deplore," she told host Tim Russert - "I still support the program, but it needs to be on a sounder legal footing."

How to make the program legal is complicated by the fact that it's not clear how it actually works - and everyone who values it has no desire, understandably, to reveal operational details to terrorists. It's also understandable why the administration did not seek authority for it before the Times leak. It did not want al Qaeda to know that those sorts of communications were being tapped.

(full article at link)
2.17.2006 1:13am
KMAJ (mail):
Correct me if I am wrong, but it seems the critics are rallying around a congressional (legislative branch) supremacy theory, please tell me that is not your position. I know you want a weak executive branch. I do have to wonder why the critics always avoid the Madison and Mason (Federalist and anti-Federalist) argument with their shared concerns about the legislative branch. The authority claimed in the NSA program, as far as anyone knows, is not as braod as critics portray it. The house intelligence committee democrats came out supporting it after their briefing. Not one critic can claim that executive power is even close to what it was pre-FISA, even if you include the NSA program.
2.17.2006 1:27am
Noah Klein (mail):
Perseus,

When you're right, you're right. I would point out that this was not until his last year. I would further point out that Washington signed the bank bill even though he disagreed with based on the principle that it was constitutional.

Noah
2.17.2006 1:30am
Kovarsky (mail):
KMAJ,

I don't think anybody is arguing for a weak executive, and I think you know that.

I think people often ignore the arguments of Madison and Mason because they are invoked out of context, and not positioned in an exchange about how to limit the king's analogue in the new government. People love to cite the federalist papers, but I'm not sure how they are any more dispositive on the meaning of the constitution than is a given senator's remarks during a hearing are to the meaning of a statute. They don't tell you what the framers agreed upon, so to use them as indicia of contrary meaning when the text and structure of the constitution points in a different direction seems strange.
2.17.2006 1:34am
Noah Klein (mail):
KMAJ,

First, I am not suggesting a congressional supremacy argument and I do not see anyone else on this thread arguing arguing it either, except of course Will. I am arguing for Congressional equality. When the political branches pass a law, that law cannot be overturned by one branch, except for as prescribed by the Constitution.

Noah
2.17.2006 1:39am
Omar Bradley (mail):
As one well informed man said of the "sole organ" position:

Thus it appears that by whatever standard we try this doctrine, it must be condemned as no less vicious in theory than it would be dangerous in practice. It is countenanced neither by the writers on law; nor by the nature of the powers themselves; nor by any general arrangements, or particular expressions, or plausible analogies, to be found in the constitution.

How would an originalist choose between Madison and Hamilton?
2.17.2006 1:47am
Perseus (mail):
I agree with Kovarsky that Madison's view (and those who share it) is an eminently respectable one even if I may disagree with it.

But I do think that Will's argument for Congressional supremacy does result in a weak executive.
2.17.2006 1:49am
KMAJ (mail):
Kovarsky,

The Madison and Mason arguments are from the Constitutional Convention discussing Article I and Separation of Powers, not the Federalist Papers, so they are extremely relevant to Constitutional interpretation. The argument was all about the best way to prevent legislative branch encroachment on the other branches, not vice versa.

Noah,

No, you aren't arguing for Congressional equality, you are arguing for maintaining the post FISA status quo, which includes the executive branch at its weakest in the history of this country, thus a congressional supremacy argument. I challenge you to provide any evidence that the executive branch, even with the NSA program, is exerting any where near the authority of pre-FISA executive branches, all the way back to George Washington.
2.17.2006 1:53am
Kovarsky (mail):
KMAJ,

My analysis perhaps applies with more force to remarks made at the constitutional convention than it does to exchanges in the federalist papers.
2.17.2006 1:57am
Grand CRU (mail):
Wow. Will's article is so obvious off-base. He states a number of things that are just plain wrong. You do not have to think Bush is right to think Will's assertions are crazy. They flatly contradict Supreme Court precedent.

I mean, he says that Congress has the power to ratify treaties, for God's sake. Congress has no such power. That is such a misreading of the text. It says Senate and the President, and that's what the Court has held.
2.17.2006 1:59am
KMAJ (mail):
Kovarsky,

That is where I will respectfully disagree with you. I think their warnings should be heeded and carry much more weight than you wish to give.
2.17.2006 2:02am
Kazinski:
The outcome I'd like to see is Congress passing legislation and then have the President veto it because encroaches on his powers. But that is highly unlikely. Next best is he signs it, and then challanges it in court.

One thing for sure if Roberts and Hoekstra don't get this ball rolling, then Reid and Pelosi will do everything in their power to get this authorization passed. The very last thing the Democrats want is to have this issue unresolved before the 2006 elections. Karl Rove is salivating about being able to use the NSA surveilence as an issue in November, and be able to calim that it is in peril.

But one question for all those that said that the NSA program violates the bill of rights, since when does Congress have the authority to set aside the Constitution?
2.17.2006 2:03am
Kovarsky (mail):
Kazinski,

The result I would like to see is for Congress to repeal all statutory guidance in the field of foreign surveillance, thereby both maximising the presidents flexibility and creating more possibilities for justiciable cases that may serve as a mechanism for adjudicating the constitutionality of the administration's activity.
2.17.2006 2:10am
Noah Klein (mail):
KMAJ,

How is this the weakest presidency in history? I would say you were joking, but you made this comment many times. Previous presidents did not have a huge federal bureaucracy or even a standing army. Most previous presidents did not have anywhere close to the power that this one has.

Furthermore, like I said the other day, the president cannot overturn a law by an executive order, just like the Congress cannot reorganize a law by a resolution. Their is process to make and to alter laws. This process includes both branches and cannot be changed by a single branch except for how the constitution lays it out.

Noah
2.17.2006 2:11am
minnie:
Noah and buddies,

Medis may not "get it" when his leg is being pulled, but please don't think that anyone else takes you seriously. They don't.
2.17.2006 2:32am
Kovarsky (mail):
Minnie,

I don't understand.
2.17.2006 2:40am
Noah Klein (mail):
Minnie,

Are you saying that I don't add anything to this discussion or are you saying that those who argue against me have tin ears? If it is the first I would point out that I have engaged in many substantive and intellectual arguments on this blog. If it is the second, I will continue to make my points and see what the opposition says and whether it will make me think or change my positions.

Noah
2.17.2006 2:42am
KMAJ (mail):
Noah,

You are trying to make an illogical comparison due to different population and technology available. Certainly government has gotten much bigger in the entitlement area, but that is since FDR. We are talking about his executive powers during a time of war. I did notice you did not support your premise with any actual historical references to the legislative branch claiming a 'right' to infinge on executive branch powers. Did any pre-FISA president have such an imposition to gather foreign intelligence during war time ? I do not think so.

Your argument is flawed when you state as fact he overturned law. That is your opinion, which you have a right to, but that does not make it a fact. He is walking on solid ground having gotten advice from the DoJ and OLC. If Congress and the executive cannot come to an agreement, that is my preferred choice, personally, I would like to see FISA challenged on Constitutional grounds, not the NSA program. I think SCOTUS would rule parts of it unconstitutional.
2.17.2006 2:44am
Noah Klein (mail):
KMAJ,

In the area of foreign intelligence, I would point out that the foreign intelligence agencies were created by Congress with limits on their power and their ability to affect American citizens. Yet, aside from foreign intelligence, the Congress has in several instances prior to FISA limited the president's power over the military. The most obvious example are the Articles of War and the UCMJ. Another example is Posse Comitatus, which said that the President cannot use the military for police purposes. These are only two in a number of examples. The president is the initiator and the prime force in foreign affairs, but not the only force.

On the issue of overturning the law, FISA says that it is the "exclusive means" to conduct foreign intelligence on American soil. The president has circumvented FISA. They have a legal argument (one they were advised by members of the judiciary was not very strong) to support their circumvention, but this is a still an attempt to overturn the law. In fact, their "white paper" says that if their AUMF argument is not legitimate, then FISA is unconstitutional. It is a fact that they have overturned the language of FISA that states that it is the "exclusive means" to conduct foreign intelligence on U.S. soil. This is not my opinion, but the truth. If FISA did not contain this language, then they would not have overturned the law, but since it does they have. And thus, I say that they cannot do so by executive order.

Noah
2.17.2006 2:55am
Bruce Hayden (mail) (www):
I think the point on the weakened Presidency concerns primarily Nixon and the immediate aftermath. Nixon severly weakened the Presidency with his illegal acts, almost impeachment, and ultimate resignation. Ford was weak because he had never been elected and had pardoned Nixon, and Carter was just Carter. It wasn't until Reagan that the Presidency started rebounding. IMHO, Ford and Carter were significantly weaker than the presidents before and after them. (IMHO, while Nixon seriously weakened the Presidency, for most of his term, he really wasn't all that weak, and LBJ arguably stronger, given his support in Congress). FISA was one of several pieces of legislation that Congress pushed through that arguably intruded into Executive power during this weakened state of the Presidency.

Despite all the assertions to that President Bush is weak or weakend, I think that the Presidency is even stronger now than during the Clinton era, and proably akin to during the Reagan era. This debate would have been unthinkable under Ford or Carter, as they would have never made the assertions made by the Administration here, and if they had, would have backed down fairly quickly once Congress protested. But here, we have a president essentially challenging Congress, and possibly getting away with it. Bush is pushing the envelope on Executive power, and Congress isn't pushing back as hard as many expected.

Which is why impeachment is a pipe dream right now. The Democrats would need almost 220 seats in the House and 67 Senators to pull it off, and they don't come close, and it is unlikely that they will be much closer after the next election. Probably more likely 250 seats in the House and 70 Senate seats to compensate for the President's Bully Pulpit, where he could take the program to the people. In the end, I doubt that there is a lot of sentiment in this country for the civil rights of al Qaeda operatives calling home (which is how the Administration is framing the debate).
2.17.2006 2:58am
KMAJ (mail):
Noah,

The executive has the authority to read the law and get advice, and say this is how we are going to apply it. You are arguing about a conflict over application. You say it does, they say it doesn't. The AUMF has put this country on a war footing. Intelligence gathering is a fundamental incident of war. This is the only war in the last century where this country is part of the theater. In WWII, after Pearl Harbor, there were no more threats on US soil where the US was the stated target. FISA, and it cannot be denied, is an inefficient vehicle for critical foreign intelligence gathering. I suggest you read the 9/11 Commission staff Monograph evaluation of FISA, especially if you want to hang your hat on the 72 hour clause. To paraphrase, it states FISA is slow and burdensome, with some warrants taking months. With that being the case, the executive branch has the authority determine it could cost lives, which would be contradictory to his plenary authority as CiC to protect and defend the people. In a time of war, that type of inefficiency could be fatal. It is why most members of Congress, since the full Intelligence Committees have been briefed, support the program and a re-write is gaining momentum.
2.17.2006 3:10am
Evelyn Blaine:

First, I am not suggesting a congressional supremacy argument and I do not see anyone else on this thread arguing arguing it either, except of course Will.

For what it's worth, I'm quite prepared to argue explicitly for congressional supremacy. The following seem to me to be fundamental principles of (small-r) republican political theory: (1) that the primary goals of non-domination and non-arbitrariness are best served by obliging the State to follow determinate, publicly known general rules and (2) that a committee of many individuals, representing different interests, is better able, over the long run, to formulate those rules fairly than is a single individual. At its base, I think this should be less an issue of legal interpretation than of fundamental political-theoretical principles. I think that the balance between privacy in communications and anti-terrorism is a crucial question for contemporary socities, and one which is persisting and general and rather than an occasion for case-by-case discretion; as such, I hold that, in a just society, whatever kind of balance is ultimately struck, this decision must be deliberated upon publicly and reached by a representative body and not by a single individual, or by a single individual and his personally chosen subordinates, acting in secret.

I only wish more people were willing to say, explicitly, that taming executive power and subjugating it to the determinate form of general norms matters, that excessive executive power is inherently unjust, regardless of whether it's used for good or for ill, and that we're willing to pull out all the stops in fighting against it.

As for the more specific constitutional argument about the program, I repeat a post I made earlier:
I have to admit that, try as I might to place the arguments for FISA's unconstitutionality in the most sympathetic light, I still can't get past the utter strangeness of the constitutional vision that follows directly from the claim that Congress is powerless to regulate the "fundamental incidents" of war.

If one accepts that, then one is essentially reduced to reading the government and regulation clause to mean "make all the rules you want, just as long as they're not about anything important--such as where, when, and under what circumstances and procdures this enormous military and intelligence apparatus you've paid for might actually be used". Is Congress free to write hundred-page-long sets of regulations about uniforms, but powerless to say "don't use the NSA to spy on Americans without a warrant"?

Moreover, on this theory, one is also forced to believe that Congress could -- by virtue of its explicit Constitutional powers -- choose whether or not to have an army, or navy, or intelligence services at all; could specify in minute detail the nature and performance of the arms that such forces are allowed to procure; could replace the national military budget with grants-in-aid to the state militias, repeal the Militia Act, and leave national defence in the hands of the states; could confirm only those military officers amenable to its views; could pass a declaration of war, or repeal one, over the president's veto; could, as Charles Black was fond of saying, "reduce the president's staff to one secretary for answering social correspondence and, ... by two-thirds majorities, ... put the White House up at auction"; could, in short, do any number of remarkable things by virtue of their raw legislative power, but couldn't make reasonable rules limiting where, when, and how military powers are used even when those powers come in conflict with the privacy and liberty interests of the country's citizens.

Can we seriously believe that the Framers intended a system as counterintuitive as that--a Congress given dozens of ways to exert immense power over the other two branches, but powerless to use its "government and regulation" authority to govern and regulate anything but trivialities?
2.17.2006 3:11am
Evelyn Blaine:
KMAJ wrote:

... plenary authority as CiC to protect and defend the people ...

And this would be in the Constitution where? If this were really what the Framers intended, which I think is absurd, then that would be either (a) an argument for a new Constitution or (b) an argument against originalism, since in no just state can authority over "protecting and defending" be confined to a single individual.
2.17.2006 3:16am
Noah Klein (mail):
KMAJ,

"The executive has the authority to read the law and get advice, and say this is how we are going to apply it."

This is true. The executive can read the law and apply it as he interprets it. Yet he can't read into the law. The president has done this in several instances and the other branches have already pushed back on this reading. Yet the fact remains, that the law says that FISA is the "exclusive means" and the law addresses what should happen when the U.S. is engaged in a war. The AUMF did not change that and if it did then the when Congress passed the Patriot Act that became the law. Nothing in the Patriot Act overturned FISA's "exclusive means" clause. I see you won't agree to this basic fact. Unfortunately, in today's age, facts are not obvious to everyone and people pick their own and ignore others.

Noah
2.17.2006 3:22am
Bruce Hayden (mail) (www):
Not surprising to all those who follow this, I found the McCarthy piece a lot more persuasive than the Will piece. But, in the end, why should we be surprised. Will is a talking head. Intelligent. Articulate. But obviously out of his depth here, which is no surprise. Most people are.

I don't think that those here are, for the most part, experts on the subject, but many of us, by now, know more than 99+% of the populace on this subject, just by reading this blog and other similar sources, and, hopefully doing some research to hopefully add something to the debate. While many, if not most, of us have read FISA, the AUMF, Hamdi, Youngstown Steel, etc. by now, and maybe even understand much of their interaction, I doubt that Mr. Will has had a chance to read them, or if he has, to read them in the depth required to really understand their interaction.

That isn't his job. He is a pundit, which means that he is a generalist. He presumably depends on "experts" in this and other areas, but that puts him at the mercy of the politics and weaknesses of those experts. It is clear that Will didn't read the Steel case, because, as McCarthy points out, that the Executive's power was at its lowest in Category III is in Jackson's concurrance. That wasn't the holding of the case. Yes, maybe it has been picked up by some courts and some Justices since, but it still wasn't the holding of the case.

I don't blame Will. He probably heard that Jackson said in the Steel case something, or that cite from the case, and didn't read it himself to see the distinction (though he has a PhD, it is in politics - he isn't a lawyer). I have seen the same shortcut made here - but with the assumption that everyone here knew the difference and was just taking a shortcut. I will suggest that his major mistake was propounding about the law, when he is not personally equipped to do so. The rest of the piece revolves around politics and the like, where he probably is an expert (I don't have a PhD in politics from Princeton, and he does).
2.17.2006 3:29am
KMAJ (mail):
Evelyn,

I support your right to your beliefs and commend you for the detail in explaining your poisiton. But it is the legislative branch the Framers feared more than the other two branches. To quote Madison:

Experience in all the States had evinced a powerful tendency in the Legislature to absorb all power into its vortex. This was the real source of danger to the American Constitutions; &suggested the necessity of giving every defensive authority to the other departments that was consistent with republican principles.
2.17.2006 3:32am
Kovarsky (mail):
KMAJ,

As a matter of formal logic, it simply does not follow from evidence of the framers' skepticism of the legislature that they intended a particular equilibrium between article I and article II power, only that they did not contemplate I would always trump II.
2.17.2006 3:39am
Bruce Hayden (mail) (www):
Medis, on the other hand, in Hamdi, you didn't mention this:
Hamdi contends that the AUMF does not authorize indefinite or perpetual detention. Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized. Further, we understand Congress’ grant of authority for the use of “necessary and appropriate force” to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles. If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel. But that is not the situation we face as of this date. Active combat operations against Taliban fighters apparently are ongoing in Afghanistan. ... The United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who “engaged in an armed conflict against the United States.” If the record establishes that United States troops are still involved in active combat in Afghanistan, those detentions are part of the exercise of “necessary and appropriate force,” and therefore are authorized by the AUMF.
Here is how I read the various parts of the decision:

- Majority: Detention is fine under AUMF, but not 5th Amdt. where Due Process requires a system for citizen detainees to refute their classification as enemy combatants.
- Scalia Dissent: AUMF doesn't suspend Habeas Corpus.
- Thomas Dissent: AUMF authorizes detentions, detention doesn't violate Constitution, and Executive has a lot of untapped power here.
- Souter &Ginsburg: AUMF doesn't provide for detention during hostilities. 18 U.S.C. § 4001(a) (Non-Detention Act) applies, and the Administration is probably violating the Geneva Conventions (in dicta).
2.17.2006 3:59am
KMAJ (mail):
Kovarsky,

Even with the lower wall, FISA does not do an adequate job differentiating between intelligence and law enforcement because terrorism blurs that difference in the fact that terrorism is a crime, but it is also the enemy in the war. Intelligence is extremely critical in fighting that war. Making it harder to get intelligence is simply illogical and could be disastrous. Some might say Bush should have vetoed it then, if it wasn't good enough. But that is simply illogical, too, because he would have had to veto the full Patriot Act and not just the FISA part of it, and that would have been foolish.

Hopefully, whatever they negotiate can address this in an effective way and end the politics on this issue. It's too important to be playing 'Gotcha' with.
2.17.2006 5:57am
Medis:
Perseus,

I think one has to be precise with language in this context.

The term Hamilton used is "organ of intercourse between the nation and foreign Nations." Again, in this context "intercourse" means diplomatic communications between the United States and other nations.

In Curtiss-Wright, the Court used the term "organ of the federal government in the field of international relations." Again, that is a reference to diplomatic relations between the United States and other nations, and no one is contesting the proposition that the President is in charge of such diplomatic matters.

Will is examining the term, "organ for the nation in foreign affairs." If you took "foreign affairs" to mean the sort of diplomatic relations to which Hamilton and Curtiss-Wright are referring, then Will would indeed be on very shaky ground. But Will is rightly noting that in this context, people are treating "foreign affairs" as if it includes all things that somehow touch on foreign matters, and Will is absolutely right that the plain text of the Constitution refutes such a broad claim.

On "congressional supremacy":

I personally do not believe that "congressional supremacy" is a constitutional fact, as indeed I was recently arguing elsewhere here. My impression, however, is that such a claim has in fact long been a central tenet of certain brands of "conservative" constitutional theory--indeed, Justice Scalia, for example, appeals to this notion in support of his theories in A Matter of Interpretation.

But as I thought when I first read that book, and as I think now, the Constitution was in fact designed by people who were concerned as much with checking the power of the legislature as they were with authorizing the power of the legislature. So, I disagree with Scalia that we should push our interpretation of the Constitution toward the most "democratic" (ie, pro-legislature) result.

On the other hand, I also don't think we can follow the critical legal studiesesque approach of people like KMAJ and simply rewrite the Constitution as we see fit in order to further the end result of a "stronger" Executive and a "weaker" Congress. Because of their concerns with legislative power, the Framers wrote certain specific limits and checks on the legislative power into the Constitution. So, those are the tools we can use to deal with legislative excesses.

But we are not free to simply make up new tools and imply them into the Constitution because of the fact that the Framers had a general wariness about the legislature. In that sense, I disagree with both Scalia and the likes of KMAJ. We shouldn't be pushing our interpretation of the Constitution either toward enhancing congressional power or toward enhancing executive power by wrapping our policy preferences in the shrouds of the Framers.

What the Framers actually intended to do, and what they actually did, is lay out a complicated system of institutional checks and balances. And we should be giving effect to that actual structure as written into the Constitution, not remaking that structure in the name of furthering their broader purposes as we imagine them.

Bruce,

I'm not sure why you think that quote is relevant to the conflict between Will and McCarthy. In any event, we have discussed many times how that portion of the holding in Hamdi should apply in light of the applicable statutes in this case.

Incidentally, this is just a small aside, but it is actually a plurality, not majority, in Hamdi.
2.17.2006 8:11am
Michael Edward McNeil (mail) (www):
On the subject of the “supremacy of Congress,” KMAJ quoted Madison above on this issue, however it's also worthwhile reading what that profound observer of early American democracy, Alexis de Tocqueville, had to say on the subject.  Tocqueville's brilliant Democracy in America (1838) isn't a legal precedent that courts can refer to, of course, but even Supreme Court justices have noted that his great work belongs among that slender set of documents, such as the Declaration of Independence, the Federalist Papers, and the Constitution itself, which constitute America's “Crown Jewels.”  (I saw an interview once with Potter Stewart, where he said precisely this.)  Here's what Tocqueville wrote:

The American lawgivers had a difficult task to fulfill; they wanted to create an executive power dependent on the majority that yet should be sufficiently strong to act freely on its own within its proper sphere.  […]  The lawgivers of the Union appreciated that the executive power could not worthily and profitably carry out its task unless it was given more stability and strength than were granted in the individual states.  The President was appointed for four years and could be reelected.  With his future to consider, he should have the courage to work in the public interest and the means to do so.

The President was made the one and only representative of the executive power of the Union.  Care was taken not to subordinate his will to that of a council, a dangerous expedient which both clogs government action and lessens the ruler's responsibility.  […]  Some legislatures can act directly on the executive power, and we have seen that the Americans were careful to prevent that.  But their action may be indirect.  The power of the two houses […] with the making of laws at their command, there is always a danger that they will gradually encroach on that share of power which the Constitution intended the President to preserve.

This dependence of the executive power is one of the inherent vices of republican constitutions.  The Americans could not eliminate that tendency which leads legislative assemblies to take over the government, but they did make it less irresistible.


Given the fact that virtually all preceding American Presidents have asserted the right during wartime to intercept enemy communications, as integral to their task of fighting a war, and considering that during World Wars I and II first Wilson's and then the Franklin Roosevelt administration intercepted all wire communications between the U.S. and overseas (i.e., what opponents in this debate like to call “domestic communications”) — not just some small percentage as with the present program — my view of the situation is that, just as Tocqueville feared and foretold, what's precisely happening here is an attempt by the legislative assembly, the Congress (each member of whom represents only a tiny district, as opposed to the President, the only constitutional officer elected by the country as a whole) to unconstitutionally take over the government.  It should be opposed.

It's also worth refuting, I think, Noah Klein's assertion above that the Congress has every right to try (unconstitutionally in my view) to rein in the modern Presidency because, as he says, “Previous presidents did not have a huge federal bureaucracy or even a standing army.  Most previous presidents did not have anywhere close to the power that this one has.”

It's not clear to me how the size of the federal bureaucracy gives the President huge powers, but beyond that, the argument that there was no standing army in the past is certainly false.  The United States has had a standing army basically forever, and though small, except during wartime, it was there.  Moreover, wartime is exactly what we're talking about!  The country is legally, constitutionally, really at war.  Let's look at some earlier wars.  During the Civil War, for example, there were 2.8 million in the military on the Union side (out of a population less than one-tenth the present size); during World War II, nearly 16.4 million were under arms (within a population less than half the current size).  It's ludicrous to suggest that FDR didn't wield enormous power — arguably far more than the present administration.

In our constitutional system, the Presidency is a co-equal branch to the legislature.  Any attempt by the legislative bodies to reduce the Presidency to the status of a mere servant of the Congress is clearly unconstitutional.
2.17.2006 8:11am
Medis:
Michael M.,

I think there is an interesting non sequitur in your reasoning. De Tocqueville in that passage concludes, "This dependence of the executive power is one of the inherent vices of republican constitutions. The Americans could not eliminate that tendency . . . ." But then you seem to assume in the remainder of your discussion, contra to de Tocqueville, that we DID eliminate this "inherent vice" from our Constitution.

This is one of the things I find very interesting about this sort of argument. "Conservative" commentators have long criticized "liberal" constitutional theorists for implicitly starting with the assumption that the Constitution must contain an answer for every problem (while noting that by happy coincidence, those answers tend to align with the policy preferences of the theorist in question). But commentators like de Tocqueville, and the Framers themselves, had acknowledged that it is expecting too much of a constitution for it to be a perfect document with a specific answer for every problem.

But now pro-Administration commentators seem to be adopting this implicit assumption. They make arguments for how things ought to be, and then tag on the claim that surely any other result is "unconstitutional". And this is the exact sort of assumption--that if a result would be bad, it must be unconstitutional--that "conservative" commentators had previously resisted.

And that, I think, is a large part of why "conservatives" like Will are not going along for the ride. They remember where they have heard such arguments before--and they can imagine where they might hear such arguments again in the future.
2.17.2006 8:34am
Defending the Indefensible:
Michael M and Medis,

It used to be that conservatives stood for limited government. To the extent that the constitution and laws made in pursuance thereof disable the executive from acting usurpatiously, the traditional conservative would not say that this implies a "power grab" by the legislature. To the contrary, and in plain terms, it is simply a denial of unlimited executive power.

The neoconservative stance has inverted this concept and now claims to limit congressional authority by literally grabbing power for the executive without limitation.
2.17.2006 9:11am
Bruce Hayden (mail) (www):
The reason that I threw in the Hamdi quote was in rebuttal to what I thought was a suggestion that Hamdi rejected the AUMF. I don't read it as such, as evidenced by the quote. If you add the plurality to Thomas, you do get a majority, and, besides, the previous quote was from the plurality. (though I will admit that I did make a mistake in identifying the plurality as the majority opinion - sorry - it was right in front of me when I did it too). And I don't think it as egregious as Will's attribution of a one vote concurrence to the majority in Youngstown.
2.17.2006 9:14am
Just an Observer:
Bruce Hayden,

I don't think anyone suggested that Hamdi rejected the AUMF. In fact, the plurality in Hamdi said that the AUMF authorized military detention of such a citizen prisoner taken on a foreign battlefield, and we all know that. Adding in Thomas, that made a 5-4 majority for the holding that the prisoner could be detained in military custody.

The suggestion was that McCarthy ignored the other holding in Hamdi, which was explicitly a separation-of-powers holding. You err in characterizing this as merely a "due process" issue. The government had claimed that the judiciary had no authority in the matter, and only Thomas agreed with that claim.

O'Connor's plurality opinion explicitly referred to the issue this way : "In so holding, we necessarily reject the Government’s assertion that separation of powers principles ..." That was the section, and the on-point holding, that McCarthy conveniently omitted.
2.17.2006 9:46am
go vols (mail):
BTW--despite his status as an author of the Federalist Papers, Hamilton should in no way be quoted as a median indicator of how the Founders felt about the executive branch. During the Constitutional Convention, Hamilton spent a few hours laying out his proposal for the executive, which, in essence, was an elected monarchy. The rest of the Framers listened in embarassed silence, and then flatly ignored his proposal.

I had always thought that legislative supremacy was a "constitutional fact." That such a principle has greatly changed under the modern preisdency does not, in my mind, change the likely intent of our Framers. One (of several) reasons for a bicameral legislature was that the legislature is naturally preeminent, and thus in need of further checks and balances. For God's sake, there was not even a consensus on the creation of federal military forces, and the President was almost selected from within the legislature. Can anyone seriously suggest that the Founders would have approved of the power of the current Presidency (in domestic or foreign affairs), or have thought that an attempt by Congress to make the President comply with its own law an "attempt to reduce the President to a "mere servant"?

I would be grateful if anyone could point to any serious orginalist or historical scholarship that posits the contrary.
2.17.2006 9:57am
Medis:
Bruce,

I don't see any reference in Will's piece to Jackson's concurrence. He is just citing the holding--as, in fact, the Court itself does in Hamdi, in the quote that McCarthy conveniently overlooks. Moreover, given that the Court itself adopted Jackson's framework in Dames &Moore, I don't see why citing Jackson's concurrence would be "egregious" in any event.

Of course, we have gone through all this before. So maybe we can lay out a template for future reference:

Pro-Administration Commentator 1 (P1): FISA is unconstitutional to the extent it applies to international communications because the President has plenary power over foreign affairs.

Critical Commentator 1 (C1): But the text of the Constitution explicitly gives power to all three branches of government with respect to various foreign affairs.

P2: But in Curtiss-Wright, the Supreme Court said the President was the "sole organ of the federal government in the field of international relations."

C2: But in Youngstown, the Court clarified that the President does not have exclusive power over all matters involving foreign nations, but rather just over certain specific roles, like negotiating treaties. And that is true even during war.

P3: Well, Youngstown was really just about domestic matters.

C3: Even if that was true in Youngstown itself, the Court in Dames &Moore explicitly extended the Youngstown framework to foreign matters. And in Hamdi, the Court explicitly extended the Youngstown framework to the current War on Terror.

__________________

So, Bruce, whenever you feel inclined to reiterate P1, P2, or P3, feel free to mentally assume the response will be C1, C2, or C3 respectively, and keep moving forward through the template until you reach the end.

Of course, if you have a P4 to offer, I'd be interested to hear it.
2.17.2006 9:59am
Medis:
JaO,

And as always, it is worth noting that even Justice Thomas in Hamdi distinguished the courts from Congress, and implied that he would also apply the rule in Youngstown if it had been Congress instead of the courts. So, the likely vote count against McCarthy and Co was actually 9-0, not just 8-1.
2.17.2006 10:04am
SG:
Doesn't the executive (through the TSA, part of the Department of Homeland Security) have the power to perform a warrantless phyiscal search w/o probable cause of any person boarding an airplane, even on a purely domestic flight? Is the executive bahving illegally here? unconstitutionally? What differentiates this executive power from the ability to intercept and surveil international communications?
2.17.2006 10:37am
Medis:
SG,

On the first part of your question, to my knowledge there is no statute prohibiting such searches.

On the second part of your question: the 4th Amendment as applied to warrantless air travel searches has a complicated history. My impression is that very early on, such searches were justified in part on a Terry-style "minimal intrusion" rationale. But quickly they migrated over into an administrative/implied-consent rationale, the basic idea being that by choosing such a heavily-regulated means of travel, one has consented to such warrantless searches. As with many applications of the 4th Amendment, there is a bit of circularity here: the fact that people know they are subject to these searches if they travel by airplane implies their consent, and that consent in turn gives rise to the justification for conducting such searches in the first place.

But in any event, there are at least two key components of these cases that distinguish them from the NSA program at issue. One is that in order for there to be consent, there has to be notice--people have to know that they will be subject to such searches before they choose to engage in the activity. The NSA program, of course, was a complete secret, and therefore people had no notice and could not provide implied consent.

A second key component of the air travel cases is the claim (realistic or not) that people have a choice about whether or not they use this mode of travel, and they can choose another means if they want to avoid the intrusion associated with the searches. Of course, we don't know the details of the NSA program, but as far as we know there are no means of communication that are outside of the scope of the program, and hence there apparently is no ability to opt out of the regime. Indeed, this point works in conjunction with the first--even if there are means of communication outside of the program, the mere fact that we do not know what they are suggests that we are not giving our implied consent to surveillance by choosing a particular means of communication which is covered by the program.

But as a final aside--as I have noted before, I think the Terry "minimal intrusion" framework may well be applicable in some way to this issue. The Terry rule still seems to be that any such searches would have to be reasonable and subject to some sort of judicial review, but that judicial review could be retroactive. So, something like that analytic approach, which was present in the early air travel cases but has since been more or less dropped, could be applicable to this case.
2.17.2006 11:08am
Tyrone Slothrop (mail) (www):
Andrew C. McCarthy's response to Will is here and very much worth reading.

Many other people arguing on behalf of the Administration have relied on the President's powers under Article II, Section 2, as the Commander in Chief of the Army and Navy. Thus, Will responds to arguments to arguments about the CIC power by referring to powers granted to Congress in Article I, Section 8, concerning the military. McCarthy relies more generally on the executive's authority with regard to foreign relations.

This shift on McCarthy's part only works if you can characterize what the NSA has been doing as inherently foreign -- i.e., the interception of communications that are entirely foreign or cross-border. Many of the Administration's defenders suggest that this is the case, and analogize the NSA program to, e.g., battlefield electronic surveillance. Many of the Administration's critics use the terms "domestic spying" or "domestic electronic surveillance," and suggest that the Administration has opened a home front in the global war on terror. Can anyone point to reporting that will resolve this question? Is the problem that we are talking about cross-border telephone calls which are both domestic and international, depending on your perspective?
2.17.2006 11:34am
Just an Observer:
Kazinski: The outcome I'd like to see is Congress passing legislation and then have the President veto it because encroaches on his powers. But that is highly unlikely. Next best is he signs it, and then challanges it in court.

While we disagree on what the outcome of such a court case would be, I agree wholeheartedly that the separation-of-powers issue sorely needs judicial review.

The shortest route to such review -- as I think you might agree after reading your comments in the recent threads about the FISC chief judges -- would be for the goverment to initiate a test case in the FISA courts under existing law. That is something DOJ has avoided for four years.

As for a legislative compromise, it is hard for me to see how it would resolve the festering crisis unless it included some mechanism to force the constitutional issues into court.

Absent something to get the constitutional merits resolved there, the conundrum remains: If Bush's claim that "inherent" powers in this area trump any legislation is literally correct, how can Congress legislate meaningful provisions at all?

The collateral question is: How can the President "agree" to such a compromise while reserving the right to break it?

The only way I can see legislation conforming to Bush's asserteed principle would be effectively to repeal FISA -- or carve out an anti-Al Qaeda exception -- and restore the explicit deference to such executive power that Congress repealed when it enacted FISA.

I doubt that would fly politically, and many would oppose it on civil-liberties grounds. In general, I fail to see how such an carve-out from FISA and Title III would be justifiably distinguishable from the case of state-based actors, such as North Korean or Iranian agents, or even from domestic terrorists such as Timothy McVeigh.

In the case of surveilling domestic terrorists, the court has ruled in the Keith case; Title III warrants are required. In the case of FISA, if it is unconstitutional we should repeal it or strike it down.

Kazinski: But one question for all those that said that the NSA program violates the bill of rights, since when does Congress have the authority to set aside the Constitution?

I am not sure that the NSA program directly violates the Bill of Rights, but the point is arguable. In any event, the Fourth Amendment limits both Congress and the President. Congress would have to take care in legislating to honor the parallel requirements in the Fourth: that searches not be "unreasonable," and that "warrants" require "probable cause."

It does seem to me that if a given search is unreasonable because there was no probable cause to issue a warrant, it does not become reasonable just because no warrant is involved. Others may disagree, and argue that there is no linkage between the two Fourth Amendment tenets. It does not seem to be a simple question.

Beyond the warrant requirements of FISA, there are disclosure provisions designed to protect against secret violation of civil liberties. Under the 72-hour emergency procedure we have heard so much about, there is this provision: If the government conducts such surveillance, and the FISC court disapproves it retroactively because there was no probable cause, the court then has a duty to inform the surveilled parties unless the government can show cause not to. The information gleaned from such surveillance cannot be used for any purpose.

I suspect that a major reason the government has gone around the FISA procedures is that following them would have required notification of hundreds or thousands of citizens, perhaps including some soccer moms in Dearborn, who are not Al Qaeda agents at all.

So under a "legalized" NSA program to surveill U.S. citizens here, another issue is how to provide similar protection to innocent victims caught in the dragnet. Current law at least provides them notification.
2.17.2006 11:52am
plunge (mail):
Acts of Congress are interesting suggestions for the President to consider, and he's certainly willing to listen to such suggestions. You have to admit that this President is very willing to listen to Congress' opinions.
2.17.2006 2:34pm
Perseus (mail):
Medis: That the Administration has sought Congressional authorization for the use of military force, for "fast-track" trade negotiation authority, etc. suggests to me that the Administration also understands the plain meaning of the text, so Will seems to me to be attacking a straw man.

I can understand why you might think that Scalia is arguing for a kind of Congressional supremacy, but that pales in comparison to Will's version.
2.17.2006 3:28pm
KMAJ (mail):
Three points, though only partially related. First, why would anyone give George Will more credence than Andrew McCarthy in putting forth legal argument ? Having read both articles, the one more deserving of commentary and analysis is clearly McCarthy's. Will's is a perfunctory exercise in expressing an opinion. Any scholar, on comparing the two, on a point - counter point basis, Will loses hands down.

Second, the one source that is rarely seen in this debate, but is widely acknowledged as the most influential source for the separation of powers doctrine, is Charles Montesqieu. The premise he put forth in "The Spirit of the Laws" is the foundation for the tripartite system of government and its checks and balances. While Madison and Hamilton had different views on the executive and other aspects of the separation of powers, the one view they both agreed upon, and most of the Founding Fathers (sorry, I don't buy in to the revisionist PC 'Framers' designation), was a desire to prevent legislative supremacy. It is through Montesqieu's view of checks and balances that they sought to achieve that.

Third, we never seem to insert into the debate, that the legislative branch still holds the ultimate check, the trump card that overrides everything else. It is not the right to make law, which are subject to interpretation, but their control of the purse. Though they can repeal the AUMF, which would still leave the executive options, they have the final authority to refuse to fund any program, effectively ending and trumping any executive branch claims. So, any logical point to be gained by defenders of legislative intrusion into executive branch powers is standing on slightly flawed ground. The legislative branch is not powerless, in fact, in the power of the purse they hold the final word within their grasp. Should they choose to exercise that power, the people will then render their verdict in the next election.
2.17.2006 3:42pm
Perseus (mail):
The reason that I use Framers is that not all Founding Fathers were Framers of the Constitution in the sense of participating in the writing and ratification of the Constitution (e.g., Jefferson). PC for Founding Fathers is: "founders" (lower case and dropping fathers).
2.17.2006 4:08pm
Defending the Indefensible:
Thank you Stephen KMAJ.
Third, we never seem to insert into the debate, that the legislative branch still holds the ultimate check, the trump card that overrides everything else. It is not the right to make law, which are subject to interpretation, but their control of the purse.

Yes, Congress' lawmaking power is to be regarded as advisory upon the President, according to how he chooses to interpret legislation in light of his unique theories of Constitutional construction. But their power over the purse, the Congressional control over the Department of the Treasury... Oh. Wait. Well, the Advice and Consent of the Senate in the appointment of the Secretary of the Treasury at least... Well, that's some power. Unless the Secretary gets appointed during a Congressional snacktime recess or something, I guess.
2.17.2006 4:14pm
KMAJ (mail):
Perseus,

I understand your reasoning, though Jefferson may not be a good example, even though his presence was not physically there at the Constituional Convention, his Declaration of Independence played a role in the framing. Contrarily, that attempted delineation is not historically grounded, as the distinction is a rather recent creation due to political pressure, primarily by feminists, to remove gender identification, hence my reference to revisionist PC. The terms were interchangeable and considered synonymous. I will continue to use Founding Fathers as a protestation of the subtle thought control propigated by the PC revisionist school.
2.17.2006 4:35pm
KMAJ (mail):
DtI,

I am not sure what your point is. The secretary of the treasury has no power over the legislative branch's power of the purse. His influence is in planning the budget for the president, which the president presents to Congress as a proposal. The Congress has the final say in how much will be spent, and on what programs it may or may not be spent. It is within the legislative branches power to refuse to fund anything, if it so chooses, in the extreme, but it has the power of refusal to fund specific programs.
2.17.2006 4:50pm
srp (mail):
Tyrone Slothop hits the nail on the head. In the endless Monday thread on the forgotten footnote, most of the directly NSA-relevant dispute between Medis and myself came down to a difference in interpreting the fact situation.

My unanswered question: How can anyone think that the disputed program is monitoring purely domestic conversations when a) the Administration has been reported to have asked for and received hundreds of FISA warrants to do such domestic surveillance, b) none of the opponents who have been briefed (e.g. Rockefeller) has specifically asserted that such is being done, and c) none of the examples offered by the Administration is purely domestic?

These three lines of evidence lead to the conclusion that in fact we have a program of tracing communciations from known or suspected enemies abroad to domestic phone numbers, and back again. This could possibly violate FISA, on my reading, only if the technical means for doing it is on US soil or if sometimes an outward set of overseas calls from a single domestic target previously identified by an incoming call are tracked. This would be in the nature of tracing relayed battlefield communications.

Even under a view of Congressional supremacy, the executive is still explicitly the sole Constitutional agent for making tactical military decisions on the battlefield--which in this case spans Afghanistan, Pakistan, Iraq, Yemen, the Phillipines, etc. Among these decisions is the allocation of signal intelligence resources to different targets within the sphere of the campaign. Otherwise, the C-in-C provision is a meaningless figleaf read right out of the text.

Either FISA doesn't really prohibit the disputed program--my best guess--or FISA is unconstitutional, even under a theory of Congressional supremacy. The Congress cannot intervene directly, nor can it create courts to intervene directly, in ongoing battlefield tactics. It can refuse to fund various aspects of the NSA, or prohibit signals intelligence outright, but it cannot enter the tactical decision-making loop without transgressing Article II.
2.17.2006 5:00pm
srg (mail):



srp,
Would you please explain more clearly what you meant by the following:

"These three lines of evidence lead to the conclusion that in fact we have a program of tracing communciations from known or suspected enemies abroad to domestic phone numbers, and back again. This could possibly violate FISA, on my reading, only if the technical means for doing it is on US soil or if sometimes an outward set of overseas calls from a single domestic target previously identified by an incoming call are tracked. This would be in the nature of tracing relayed battlefield communications."
2.17.2006 5:29pm
Defending the Indefensible:
KMAJ,

Unless the executive chooses to interpret the Constitution in a novel way so as to ignore Congressional budgetary authorization, of course. Because the Department of the Treasury has the actual purse itself, through the issuance of T-bills and collection of internal revenues. Then Congress becomes fully advisory to the discretion of the executive.
2.17.2006 5:29pm
Noah Klein (mail):
Srp:

I do not know anyone who has said that this program is monitoring purely domestic communications. I am saying that it is targeting U.S. persons. I say this because the administration admits that this monitoring is under the definition of FISA. This would violate FISA and thus there's an issue. Mr. Bamford, Tom's favorite author, has noted that it is legal under FISA to surveil an overseas target who calls into the United States. This surveillance was conducted both prior to and after 9/11 and the AUMF. The issue at hand is that U.S. persons are being targeted and/or the monitoring is conducted in the United States. This being the case the program violates FISA and the reasoning put forward by the administration (that the AUMF fulfills a clause of FISA which refers to another statute) is weak and does not pass the smell test.

Noah
2.17.2006 5:35pm
Perseus (mail):
KMAJ: Sorry, but I don't agree on the interchangeability of Founding Father and Framer, or that the latter term was the result of PC revisionism. Consider this quote from Clinton Rossiter, who was hardly a PC revisionist, in his book on Hamilton: "this climate of nostalgia and piety has smiled most benignly on the choice band of heroes we venerate as the Founding Fathers, many of whom are twice venerated as the Framers." (Jefferson might plausibly be included as a Framer).
2.17.2006 5:40pm
Evelyn Blaine:
KMAJ wrote (quoting Madison):
Experience in all the States had evinced a powerful tendency in the Legislature to absorb all power into its vortex. This was the real source of danger to the American Constitutions; &suggested the necessity of giving every defensive authority to the other departments that was consistent with republican principles.
Properly understood, I believe that Madison's statement is entirely consistent with my position. After the Revolution, state legislatures more or less adopted a model of legislative omnipotence based on that of the British constitution. That the Framers wanted Congress to have less power than these bodies, which, like their ancestor, could "do every thing that is not naturally impossible" (1 Bl. Comm. 156), in no way entails that they intended the executive to have a region of unchallengeable discretion over issues of war and peace. The crucial caveat is Madison's restriction "every defensive authority ... consistent with republican principles". The conditional veto, the right to appoint officials and make treaties subject to Senate consent, the right to consult with heads of departments, the right to be subordinate to no military officer in the chain of command (which is all the commander-in-chief clause means) -- the are all ways of enhancing the power of the presidency "consistent with republican principles". In contrast, permitting a single individual the final decision about the limitations to be placed on the use of the military forces of the state is simply not consistent with republican principles -- which is why I believe that we should follow John Marshall and stick to the simple, logical, theoretically coherent reading of the relation between Article I and Article II: "The whole powers of war being, by the constitution of the United States, vested in congress, the acts of that body can alone be resorted to as our guides in this inquiry." (Talbot v. Seeman, 1 Cranch 1, 28 (1801).
2.17.2006 5:51pm
Perseus (mail):
Noah's point about the likely nature of the Administration's surveillance program, which is not wholly foreign but really a combination of domestic and foreign, is one of the reasons why I don't think that the Administration's inherent executive authority/sole organ in foreign affairs argument is sufficient to ignore FISA.
2.17.2006 5:56pm
Noah Klein (mail):
Perseus,

Do buy the administration's argument that the AUMF is the statute referred to in FISA?

Noah
2.17.2006 6:01pm
The Ace (mail):
Marcus1,
are you arguing gathering intelligence on the enemy is not a function of war?
If yes: you are a fool
If no: your point about "Commander in Chief" is irrelevant.
2.17.2006 8:04pm
srp (mail):
srg: What I mean is that there are two ways the disputed program might fall under FISA: a) foreign target A calls domestic person B. The NSA intercepts this call in either a "pen-register" (metadata) or actual listening-in (content) mode. If the interception physically occurs at a switch on US soil, it might be interpreted as domestic surveillance. b) foreign target A calls domestic person B. The NSA logs this call and, after it is completed, follows the outgoing calls of B for some period of time. Especially important here is when B calls another person C overseas (maybe in the same country as A), because that could mean that the enemy is using B as a US-based relay for military communications. Nevertheless, it could be argued that domestic person B was being "targeted" by the NSA.

I'm sure lots of other stuff is going on, too, but these are two possibilities that seem to me consistent with the public facts. In either case, it is constitutionally impermissible for Congress or a court to regulate, in the midst of an engagement, tactical decisions about which signals to track, even under a Congressional supremacy view of the Constitution. Otherwise, being the top military commander is meaningless.
2.17.2006 8:55pm
Just an Observer:
Intelligence Chairman Roberts, who two weeks ago said FISA is essentially unconstitutional, reverses course. From tomorrow's NYT: Senate Chairman Splits With Bush on Spy Program
2.17.2006 11:56pm
Evelyn Blaine:
The Ace wrote:
are you arguing gathering intelligence on the enemy is not a function of war

Of course it is. And Congress has the power to regulate the functions of war, as part of its power to choose, if it so desires, to authorize limited as opposed to general hostilities. (Of course, whether it did so in this case is arguable.)
2.18.2006 12:56am
Medis:
JaO,

The comments from Roberts and Olympia Snowe on Friday were extremely interesting. It sounds like Snowe, contra to DeWine, thinks there should be some sort of ongoing judicial review, and Roberts is suggesting that is the dominant view in Congress.

So, it is no surprise that the White House was giving shout outs to DeWine, whose proposal requires only congressional review. But it looks like Congress is not willing to go so far with a compromise, and that may set up a real clash with the Administration, and explain why they are still being so wary when talking about legislation.

In the meantime, my own sense is that some sort of judicial review may well be a requirement of the 4th Amendment, even if it is only retroactive. So, insofar as Specter succeeds in getting this into the courts, what appears to be the dominant view in Congress may also get constitutional backing.

This is all very interesting. I'm getting to the point where I am wondering if the dominant view might be veto-proof, and what would happen next if the Administration refused to capitulate when it comes to judicial review.
2.18.2006 8:15am
Just an Observer:
Medis,

It is understandable that the White House would view the DeWine proposal as its favorite vehicle, which then could be spun as "ratification." That, coupled with a signing statement reasserting a Supreme Article II power, probably would seem like a "win" to Bush.

Apparently there are many proposals all over the board.
I continue to believe there must be some means to force judicial review. I wish I knew what was in Specter's draft.

AFAIK, his proposal still deals with testing legality of the NSA program under existing law. Conceivably there could be a hybrid that put teeth into an amended law.

What if the act authorized augmented surveillance under FISC review somehow, and also imposed a duty on the AG to report to the federal courts (and Congress) any surveillance meeting the "exclusive means" definitions of Title III and FISA but not following their specified procedures?

The legislation then could impose a duty on those courts to notify the surveilled parties unless the government could show cause not to (similar to existing duty defined for 72-hour emergency surveillance that is later disapproved under FISA). Perhaps the legislation could also explicitly authorize the courts to enjoin such unauthorized surveillance? That part I am not sure of.

This is just my own uninformed speculation, but is seems that once Congress starts tweaking the FISA courts' jurisdiction, it could enable judicial review there in ways that do not depend on third parties to sue.
2.18.2006 12:33pm
Medis:
JaO,

As an aside, if the Administration now views even just the DeWine approach favorably, that is a major retreat from the original Cheney/Gonzales position. I suspect the Administration must be somewhat surprised by how many Republicans are taking an independent approach (despite the White House's "But we could beat the Democrats with this issue!" message).

Anyway, I'm also not sure yet what legislation including judicial review could or should look like yet, in part because I don't really think we know yet what this program looks like. But if you believe Gonzales, it seems like you might be able to just relax the standards for initiating emergency surveillance (and perhaps specifically allow others beside the AG to initiate emergency surveillance). You might also want to change the procedures for when orders are denied in light of the relaxed initial standard.

How any of that would fit with Specter's project I couldn't say. And I also suspect this is not what the Administration wants precisely because it would authorize "this program" (the confirmed one), but nothing more.
2.18.2006 12:58pm
Perseus (mail):
Noah: Short answer: Not quite.
2.18.2006 1:44pm
Defending the Indefensible:
As time goes on I've become more concerned for the consequences of bypassing judicial warrants, irrespective of the legal arguments regarding the administration's "inherent" authority to do so.

I understand that the considerations of preventing an imminent attack are different from those of prosecuting someone after the commission of a crime. However, if evidence is acquired extrajudicially it may not be admissible later.

If the target of the surveillance is a foreign national it may be possible that deportation proceedings could still be brought. But what if the surveillance were to implicate the involvement of an American citizen? What recourse would the administration have to prosecute that person for conspiring to commit terrorism unless some other agency independently acquired evidence which was not tainted by the earlier surveillance? Should the administration just declare the person an "enemy combatant" and deprive him of a trial?

Even evidence of ordinary criminal activity which was uncovered could be suppressed, though. If the surveillance uncovered that the person was molesting children, for instance, what then? Executive detention in this case couldn't remotely be justified on military grounds, but if the person were not stopped children would continue to be harmed.
2.18.2006 2:38pm
Noah Klein (mail):
JAO,

I am not entirely sure that the system you laid out fits into the proper mode of the courts. You seem to call for a judicial ruling on being notified by the executive, but I am not sure if this would meet the standard of cases and constroversies. Also I don't think it's likely that a method, such as informing surveiled targets, would be conducive to protecting national security. Finally, if there is no other party who would plead the case the appeals court if the case is appealed.

Perseus,

Without the AUMF argument and the inherent executive authority argument, how do you think the administration can justify this program? I would think that they could use Lincoln's argument of military necessity, yet that would not justify continuing this program for four years without requesting congressional approval.

Noah
2.18.2006 2:57pm
KMAJ (mail):
A couple points that create a change in the construct of legal analysis.

One, the US is part of the theater of war, unlike any other modern (20th century on) war, the targets for enemy actions and attacks are within our borders, thus risk assessment and the threat matrix carry a large measure of weight and relevance.

Two, we all talk about legislative brnach power to regulate, within that power, is it not the legislative branch's responsibility to provide the necessary tools to protect and defend, as well as win the war ? Is the legislative branch negligent if they hinder or obstruct the ability to do so ? The DeWine proposal is the first attempt that I have seen of combining the power to regulate with the responsibility to provide the tools necessary for the executive branch to effectively carry out its oath.

Three, doesn't the executive branch, as a co-equal branch, have the authority to make decisions, upon advice from the DoJ and OLC, that it deems necessary to carry out its oath to protect and defend from foreign enemies ?

Four, if the above holds true, what means is there to hold the legislative branch accountable for negligence ? The legislative branch has numerous options to control the executive branch if it feels they are egregiously overstepping, especially with the control of the purse and impeachment. So what is the check and remedy for legislative branch negligence ? In a time of war, the election process does not seem an efficient or effective means for expedience in this arena.

Five, some may proffer the judicial branch can provide the check and remedy, but that is expecting the judicial branch to render in an area where their expertise is negligible, that of conducting and winning a war. That expertise lies squarely within the executive branch sphere, with the Joint Chiefs of Staff and the Pentagon, and not within the judicial or legislative branches. War is not a game, it is deadly serious, and should not be directed from a courtroom or run by politicians with no expertise. That does not mean the other branches have no role, but it would be wholly unwise for them to not heed the advice of those with the knowledge and expertise in the conduct of war and show some deference.
2.18.2006 3:03pm
Just an Observer:
Noah : I am not entirely sure that the system you laid out fits into the proper mode of the courts. You seem to call for a judicial ruling on being notified by the executive, but I am not sure if this would meet the standard of cases and constroversies.

Please understand that I am not sure either, which is why I posed this speculation as a question -- especially the part about an act empowering the court to enjoin or issue a writ. I do appreciate your reply.

Noah: Also I don't think it's likely that a method, such as informing surveilled targets, would be conducive to protecting national security.

That is the purpose of allowing the government to show cause why such notification not issue from the court. Remember, this situation would arise only if the government surveilled someone unlawfully to begin with. Prosecutuors bear a similar risk if they charge a dangerous terrorist under criminal law, but he goes free because the government botched the case by committing unlawful searches.

And I think that, as everyone scrambles to authorize a New and Improved Terrorist Surveillance Program, Congress retains an interest in protecting the rights of innocent parties.

I actually modelled this part of the idea on a provision in the existing FISA statute, which establishes a duty for the court to notify surveilled parties when 72-hour "emergency" surveillance turns out not to have been justifed. See 50 USC 1806(j)

Noah: Finally, if there is no other party who would plead the case the appeals court if the case is appealed?

On this piece I have less concern, because there is precedent for appointing third parties such as the ACLU/EFF/EPIC to argue a case on appeal in the FISCR and presumably SCOTUS. That is exactly what happened in 2002 with In re Sealed Case.

Again, this is all just my own spitballing. My more general point is that, since Congress defines the courts' jurisdiction and has passed legislation such as the All Writs Act in the past, that the legislature may have latitude to define such procedures.

I imagine that staff attorneys working for Specter, or even the old bird himself, might have some creative ideas that would pass constitutional muster.
2.18.2006 4:13pm
Defending the Indefensible:
KMAJ,

One, the United States is not a theater of war. The AUMF was not a declaration of war, the courts are open and martial law has not been declared.

Two, it is for the Congress in its discretion to make laws necessary and proper. It is not for the executive to second-guess or ignore the Congress.

Three, the President's oath is to protect and defend the Constitution. To protect and defend "against foreign enemies" in derogation of the Constitution is to violate the oath of office.

Four, if you think elections are inexpedient, you are correct. Our Constitutional frame of government is not as expedient as dictatorship. Nonetheless, it is what the President has taken an oath to defend, as pointed out in my response to your third "point."

Five, you just want dictatorship, or else this is your ironic pretense. Just admit it, and move on.
2.18.2006 4:16pm
Medis:
KMAJ,

(1) In WWII, the US was attacked several times, most notably at Pearl Harbor, but less successfully on many other occasions. See "Attacks on North America during World War II" at Wikipedia. The US was also a battlefield in the Revolutionary War, War of 1812, and Civil War.

(2) Congress has the responsibility to make complicated policy decisions, which in this case would include trying to arrive at the best tradeoff between national security, the privacy interests of U.S. persons, and the threat of abuses of surveillance power, all within the limits of the 4th Amendment.

(3) Actually, the President's oath is to protect the Constitution of the United States, and he has the duty to faithfully execute the laws. So, the President cannot disobey an otherwise constitutional law simply because he thinks it is "negligent".

(4) Obviously, the President can use the veto for legislation he deems "negligent". But if 2/3ds of both Houses of Congress are willing to override the President's veto, then the Executive Branch has no more remedies left. In general, we are a republic, and if our elected representatives in government fail us, then there really isn't a remedy. But as the saying goes, democracy is the worst form of government known to man, except for all the others.

(5) Nonetheless, if you do not like living under our republican system of government, and would prefer an alternative, there are other choices in the world. Incidentally, not that it matters for constitutional purposes, but the current crop of civilians in charge of the Executive have not exactly shown that they deserve any deference to their "knowledge and expertise" when it comes to matters of war.
2.18.2006 4:17pm
Just an Observer:
One further sign that the DeWine proposal is now the White House favorite is that KMAJ comes close to endorsing it.
2.18.2006 4:17pm
Defending the Indefensible:
Medis,

Your response and mine to KMAJ seemed pretty similar, though I think you phrased yourself more eloquently. There's a little distinction in our response to his first "point" though, inasmuch as you seem to be granting his premise that the United States is a theater of war. I've referenced it several times before, but I think it bears repetition, Ex parte Milligan is precisely on point to this issue.
2.18.2006 4:32pm
Medis:
DtI,

Personally, I don't think the constitutional questions depend on whether the U.S. is part of a "theater of war" in some broad sense, so I don't bother contesting that description. Of course, there may be narrower senses of that phrase with some legal effect, but they don't apply.
2.18.2006 4:44pm
KMAJ (mail):
Medis,

Did you thororoughly read your source ? Other than Pearl Harbor, there were only two attacks that hit the mainland, one causing $500 damage in Santa Barbara the other no damage in Oregon. To further minimize your argument, it was unrestricted foreign intelligence, including domestically acquired, gathering that prevented any other attacks. I also clearly stated modern (20th century on), so why you chose to invoke older wars is a mystery and irrelevant.

Most critics look at their legal analysis as if it occurs in a vacuum, it is the only way for their argument to stand. It seems the critics choose to ignore history or refuse to learn from it. They refuse to include or avoid addressing risk assessment and the threat matrix in their analysis.

You make the presumption that Congress is the only instrument/branch empowered to make responsible decisions. I do not think anyone disavows the balance to be struck is a very delicate and highly debated one, that is a good thing. It is that debate that creates a force to discourage going to far, you end up with an area that goes too far for some and not far enough for others.

You make a flawed assumption with the claim of constitutional law, has FISA ever been constitutionally challenged in a similar situation ? The answer is clearly, no. It is not the legislative branch's purview to have the power of determination of constitutionality, in fact, they have none. As a co-equal branch, without the judicial branch having supported FISA's constitutionality, the executive does have authority to take actions it believes are constitutional, whether you agree with them or not. The presumption of constitutionality is not inviolate. You don't like the system of government ? Well, fight to change it. Elect people who believe as you do and amend the Constitution.

I have noticed your frequent bete noire of saying to those who use 'protect and defend', your addition of the text 'the Constitution of the United States', but you conveniently omit what follows:

'I do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic, ...

I think that quite clearly lays a different foundation than your argument suggests. But it sure sounded good when you omitted those last 6 words.

The Founding Fathers quoted extensively on the legislative branch's inability to act in an expedient manner, hence the remedies for their negligence are inexpedient. They also clearly expounded upon the need for a vigorous executive to carry out the operations necessary to win a war. Clearly critics are misguided or are deluded about the operation of war and objectives. If you enter a war, you better have the spine to do what is necessary to win it, losing a war is not an option. If they were going to lose their spine, they would have been well-advised to not issue the AUMF.

The veto power of the executive has been pretty much neutered by the way Congress bundles bills together, he rarely has the opportunity to veto one bill without having to veto a significant number of others. Though Bush has, much to my chagrin, failed to wield it at all. So that argument is certainly flawed. Also, it is not Congress that will take the heat if they fail us, it is the President, who is the only elected authority responsible to ALL and answerable to ALL. You only have to look to the Katrina aftermath. But that apparently is not your concern. You would rather further personal goals and beliefs at the expense of doing what needs to be done.

Your last retort, about living under some other form of government is weak and abhorrent. Last I heard, freedom of speech was a principle of this country. It seems you do not like having different opinions, so you would seek to send those who think diffently elsewhere. I disparage those on the right who use that same argument, of 'our' country, then proceed to tell someone to leave, it is antithetical to what this country represents. It is as if you think 'our' only includes people who march lockstep with the way you think. Shame on you.

DtI,

Your response to #5 shows your penchant to need to demean through grandiose pejorative screeds, which I find to be a very typical tactic reminiscent of dictatorial regimes that committed some of the worst atrocities in history. Such hate mongering rhetoric is best left to the playground. The courts have clearly stated a declaration of war is NOT necessary to be in a state of war. The congressional declaration is purely an international instrument. Your arguments to the other three were simplistic, pedantic and unpersuasive.
2.18.2006 6:01pm
Defending the Indefensible:
KMAJ:
Your response to #5 shows your penchant to need to demean through grandiose pejorative screeds, which I find to be a very typical tactic reminiscent of dictatorial regimes that committed some of the worst atrocities in history.... Your arguments to the other three were simplistic, pedantic and unpersuasive.
You really are quite a master of ironic self-parody.
2.18.2006 6:59pm
Just an Observer:
I just listened to a recording of DeWine on Fox News last night.

After describing the positive talks he has had with the White House about his proposal, DeWine laid out what he doesn't want:

You know, there's been some controversy about whether or not this program is legal or is not legal. I think we need to get beyond that. And the vast majority of the American people think these calls need to be listened to. But we don't want to have any kind of debate about whether it's constitutional or is not constitutional. So I think we need to put that beyond us. [my emphasis and transcription]


That draws the line pretty clearly. We're not supposed to talk about the Constitution again until the signing statement, I guess.
2.18.2006 7:05pm
Medis:
KMAJ,

I think the earlier wars--particularly the Revolutionary War--are relevant precisely because they show how silly it is to claim that this is somehow the first time the United States has had to face the possibility of hostile action in its own territory. Indeed, the notion that the Founding Fathers would have given us a Constitution with a military system that was ill-suited to such wars is frankly ridiculous, given their own experience with war.

On some minor points:

1) I agree that the President can refuse to execute a law which he believes is unconstitutional--provided that he believes that the Supreme Court would agree. And if the Administration believed that the courts would agree, why are they ducking judicial review? Or is it possible that they are also adopting your critical legal studies, law is just politics by other means, view? And maybe they are worried that all those "strict constructionists" they have put in the judiciary will not be willing to go along for that post-modern ride.

2) I also agree that there can be domestic enemies of the Constitution. Indeed, some might even get themselves elected or appointed to high office.

3) The Framers were indeed well aware of the powers Kings enjoyed in war, and the standard rationales for Kings having such powers. They decided not to give those powers to the President anyway.

4) Other Presidents have vetoed broad bills because of objectionable provisions. And the Constitution does not give the President the option of just ignoring the parts of laws he doesn't like on a piecemeal basis.

5) Do you think bringing up Katrina helps your argument that we should trust this Administration with complete discretion in how it deals with crisis situations? That's an interesting notion.

6) No one is telling you to leave. I'm pointing out that if you don't like living in a republic--and that is really what your complaints amount to--then you could voluntarily choose to live elsewhere.

In general, KMAJ, I realize that things have not been going well for the Administration in Congress on this issue, and to you that means it is time to start looking for a different system of government, one where the legislature cannot defy the Head of State so resolutely. But you can hardly expect the rest of us to also chuck out the Constitution on the ground that sometimes--gasp!--Congress and the President might disagree, and sometimes--double gasp!--the President might not get what he wants.
2.18.2006 7:22pm
Medis:
JaO,

It is hard to see Senators like Specter or Graham going for that deferral of the legal issues. But I'd be interested to see if Senators like Snowe will go for that as long as judicial review is included in any amended FISA.

Although personally, DeWine's apparent take makes no sense to me, because what is the point of making laws if you don't know they will be followed?
2.18.2006 7:27pm
Defending the Indefensible:
Medis,

I'm not partial to the "love it or leave it" sentiment. Keep in mind as well that when we talk about the Constitution binding the President, it is largely because his office is created by and dependent upon that instrument, and he is on oath to protect and defend it. Unless KMAJ is an officer of the government he is presumably not under similar oath. There is no obligation of the people to agree with any particular polity.

That doesn't mean KMAJ's arguments are valid or that they aren't plainly disposed toward dictatorship. So long as he has no authority to compel this result, his opinion, even if seriously expressed, is of no moment except as you might care to respond to them. When the President or members of his administration make similar arguments, however, it is important that they be checked and stopped from proceeding further on this course before the dictatorial tendency becomes irreversible.
2.18.2006 8:24pm
Just an Observer:
Medis,

For me it is important to distinguish between two meanings of "judicial review" in the context of such legislation:

1) A judicial role in approving cases of surveillance, even if retroctively.

2) Judicial review of executive acts that are beyond what the statutes require and authorize.

I think, but am not sure, that Snowe may be talking about the first meaning. I'm quite sure Specter is talking about the second.
2.18.2006 8:32pm
KMAJ (mail):
Medis,

Like I said, you could try to get people elected who think as you do. I would never suggest you have to take heed of options to live elsewhere that live under legislative branch tyranny, you can merely seek to get it imposed here through the electoral process. I would not label your position as a pacifist or leftist or any other, but my opinion is that you do not have a firm grasp of the concept of war or the importance intelligence plays in it. By extension, it would be reasonable to assume that you are willing to let the country lose a war to uphold your personal beliefs. Were the NSA program wholesale domestic spying on every citizen, rather than the narrow spectrum of terrorism related communications, I would be arguing against it. I do not believe in attempting to preempt abuse during a time of war, especially if it is going to obstruct the successful operation of the war. And I certainly do not accept the revealing of classified information of an ongoing program to the media. Whoever leaked it should be prosecuted to the full extent of the law, and the media orgainizations and reporters should be held accountible for whatever crimes they committed in publishing it. Freedom of the press does not put the media above the law.

It is a fraudulent argument to claim I seek a different form of government because I view the separation of powers differently than you interpret it. I see legislative branch overreach where you don't, you see executive branch overreach where I don't. The strawman argument of advocacy of authoritarianism is merely putting forth a word to carry emotional appeal, but in the weight of debate has no empirical value. You engage in absolutism, that there is only one valid way to interpret the Constitution and apply it to a republican system of government, and apparently you believe you know the only correct way. Hence, you allow no room for disagreement or allow validity to others opinions. It is just that attitude that is authoritarian. And that is not a political label, as both right and left exhibit that very same tendency.

You return to your mischaracterization of my point by claiming critical studies theory. That relies more on politics to shape the law, I said society, not politics shape the law. The pendulum theory is adverse to critical studies because critical studies sees motion moving only in one direction or down one political path, if you will. It is your penchant towards absolutisty thought that leads down the critical studies path, you allow no room for societal attitudes to change and reverse path, you see the law as an omnidirectional monolith that can only travel the path you deem fit.
2.18.2006 9:40pm
KMAJ (mail):
Ooops, unidirectional, not omni.

And your referral to old wars is specious because of the type of war and technological advances, the threat matrix is much greater, in fact, so much greater, i.e. a cannonball versus a dirty nuke, it makes citing old wars almost irrelevant because they pale in comparison.
2.18.2006 10:00pm
Medis:
DtI,

Of course, my point was not that KMAJ should "love it or leave it." Rather, I think KMAJ needs to think more critically about the sorts of government whi have fit his descriptions, and whether or not that is really the sort of government he wants for the United States.

KMAJ,

Our dispute is much simpler than you suggest. I see law where you do not. And while I claim no particular monopoly on interpreting the Constitution, I do think we have to start with the premise that the Constitution is law, and should be treated as such. And I think your views are fundamentally incompatible with the very idea of law.
2.18.2006 10:13pm
Medis:
JaO,

I agree, but I'm not sure we know whether Senators like Snowe are willing to drop the second issue if they can get a concession on the first.
2.18.2006 10:18pm
KMAJ (mail):
Medis,

I respectfully disagree, because the legislative branch passes a law does not necessarily mean it is constitutional, and the Constitution does not require or demand disputes must go under judicial review. That would set the judicial branch up as the superior branch. Judicial review should be the last option if the branches cannot negotiate a compromise. This issue, though politically charged, is simply going through the process envisioned.
2.18.2006 10:23pm
Defending the Indefensible:
KMAJ,

Question. If this issue goes to the courts and is ultimately decided against the administration, do you think the President should abide by that determination? If he defies the court, should he be impeached? (I'm not asking whether he would be, but whether you think it would be proper.)
2.18.2006 10:34pm
Medis:
KMAJ,

I agree that not all disputes can or should be resolved by the judicial branch. However, I think one of your underlying mistakes is thinking that insofar as the Constitution mandates a particular form of the separation of powers (not just whatever form one might think best at any given moment), it does so on behalf of protecting those who hold any particular power. Hence, you talk about this as a dispute between branches which should be resolved by those branches, but that is a mistake precisely because both of those branches are subservient to the Constitution. And the separation of powers as written into the Constitution is there to protect the liberty of the people, not the prerogatives of those who hold any particular power.

On this issue, I urge you to take a long look at Justice Kennedy's concurrence in Clinton v. City of New York. But here are a few insightful passages:

"I write to respond to my colleague Justice Breyer, who observes that the statute does not threaten the liberties of individual citizens, a point on which I disagree. The argument is related to his earlier suggestion that our role is lessened here because the two political branches are adjusting their own powers between themselves. To say the political branches have a somewhat free hand to reallocate their own authority would seem to require acceptance of two premises: first, that the public good demands it, and second, that liberty is not at risk. The former premise is inadmissible. The Constitution’s structure requires a stability which transcends the convenience of the moment. See Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S. 252, 276—277 (1991); Bowsher v. Synar, 478 U.S. 714, 736 (1986); INS v. Chadha, 462 U.S. 919, 944—945, 958—959 (1983); Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 73—74 (1982). The latter premise, too, is flawed. Liberty is always at stake when one or more of the branches seek to transgress the separation of powers.

Separation of powers was designed to implement a fundamental insight: concentration of power in the hands of a single branch is a threat to liberty. The Federalist states the axiom in these explicit terms: 'The accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny.' The Federalist No. 47, p. 301 (C. Rossiter ed., 1961)."

And:

"Separation of powers helps to ensure the ability of each branch to be vigorous in asserting its proper authority. In this respect the device operates on a horizontal axis to secure a proper balance of legislative, executive, and judicial authority. Separation of powers operates on a vertical axis as well, between each branch and the citizens in whose interest powers must be exercised. The citizen has a vital interest in the regularity of the exercise of governmental power. . . . By increasing the power of the President beyond what the Framers envisioned, the statute compromises the political liberty of our citizens, liberty which the separation of powers seeks to secure."
2.18.2006 10:45pm
Noah Klein (mail):
KMAJ,

"That does not mean the other branches have no role, but it would be wholly unwise for them to not heed the advice of those with the knowledge and expertise in the conduct of war and show some deference."

First, deference and abidication of responbility are two different things. A person can show deference and if you watch C-SPAN you would see that military officers are shown great deference by the Congressional committees that question them and make laws concerning them. Yet just because you show someone deference, does not mean that you swallow their opinion whole. Civilians are supposed to run the military not the other way around (I do not think you are advocating military dictatorship, yet I think that the principles you assert concerning the importance of judicial review and the executive's ability to interpret the law can lead to this outcome).

Second, I have heard you say several times that you feel that Congress (if not the judiciary) has a role to play in a time of war. Since you have said that the UCMJ is an appropriate law that Congress can make, I would like to ask if you think the anti-torture provisions of that law is within Congress's power to make? Can Congress make a law regulating foreign intelligence? If so, what law? What do you think of the limits that are contained in the National Security Act of 1947? Finally, aside from defunding all signals intelligence or impeaching Bush, is there a way that Congress can make a law preventing the executive from trampeling U.S. persons' rights?

Noah
2.18.2006 11:02pm
srp (mail):
Congress can't constitutionally form a committee to give orders to the military or direct intelligence operations. It can't appoint its own representatives to do that either. And it can't appoint judges to do it. Decision rights over tactical choices are allocated by the Constitution exclusively to the executive branch.

The Congress can set down rules (e.g. no bombing of civilians or no physical stress on detainees) IN ADVANCE of tactical action, and it can set up tribunals to adjudicate tactical actions AFTER THE FACT according to its rules (hence the UCMJ). Congress can also engage in elaborate oversight to see if its rules and tribunals are achieving its desired aims. And of course it has the power of the purse. But it cannot insert itself or its agents or judges into operational decision-making. Those are expressly reserved, for excellent reasons, to the executive under Article II and the Commander-in-Chief role.
2.19.2006 1:52am
KMAJ (mail):
DtI,

If this goes to SCOTUS, he should abide by their ruling. If he should decide to try to defy the ruling, he should have to suffer the consequences for doing so, those consequences would be determined by Congress. If they decide on impeachemnt, then that would be the proper consequence.

Question for you, if the court decides in the executives favor, should Congress abide by it or would they justified to try to make another law to find a different way to intrude ?

Medis,

I understamd your point, it is a matter of differing interpretations where that line is crossed in separation. As I have said I support the limited scope, terrorist or terrorism related communications, of the NSA program, if it is proven to be different than we are led to believe, I reserve the right to change my opinion. But judging by the reaction to the briefings given to intelligence committees, no one wants to stop the program, so I am inclined to believe it is as advertised. The judiciary committees will never have the information the intelligence committees have, so their reactions I give less credence to, and would advise them to get advice from the intelligence committee to prevent making fools of themselves.

Yes, all three branches are subservient to the Constitution, and that is why no branch should claim superiority when competing branches make competing claims on constitutionality. Negotiate a compromise between the two branches in conflict first. If a compromise cannot be reached, then, and only then, should the other branch be asked to step in. It is to be avoided, if possible, creating a situation where you have two branches siding against one. That would not be good for the country.

Justice Kennedy is probably my least favorite justice, his penchant for relying on international law is, in my opinion, unconstitutional. If he is willing to do that, I question his ability to reason. I agree with his federalist quote, tyranny can come from all three branches. His quote about what the Framers envisioned does not provide any definitive line in the sand, but it does present the inverse proposition:

The citizen has a vital interest in the regularity of the exercise of governmental power. . . . By decreasing the power of the President below what the Framers envisioned, the statute compromises the political liberty of our citizens, liberty which the separation of powers seeks to secure."


It only stands to reason, if increasing the power of the President beyond what the Framers envisioned compromises the political liberty of our citizens, decreasing it has the same result. So who is setting themselves up as the ultimate determiner of what the Framers envisioned ? Is there not room for different opinions ? That is what debate is all about.

Noah,

That deference should go to those currently in the military who know the current situation, not to retired military people who do not have the full information on the current situation. While retired armchair military people like to hear themselves speak, the good ones will always couch their words with a disclaimer of something along the lines of 'from what we know'. Basically, they are telling the viewer that 'We do not have all the information.'

With the NSA program, I think the head of the program, along with the attorney general, should be the one briefing the intelligence committees and the chief FISC judge. I would like to see bi-weekly meetings with the heads of the intelligence committees and majority and minority leaders as well as the head judge. This would be in addition to the quarterly meetings with the full committees, as required by law, and all FISA judges should be updated in a certain period, so they have an idea when NSA material may being presented to them. I think the fact that they have made a mistake in the FISA process only twice in 4 years, is actually a commendation for how they have been running this program. It would be great if they made no mistakes, but this is government we are talking about.
2.19.2006 1:59am
KMAJ (mail):
Noah,

Regarding your second paragraph and sequence of questions:

On anti-torture: I hate the law because it keeps the same ambiguous language, what is torture and what is not ? What is cruel and inhuman and what is not ? Personally, I am against all physical torture, which to me is administering physical pain or humiliation. Coercive interrogation that uses psychological tactics, I find much more reasonable, sleep deprivation, etc. In the case of known higher ups, waterboarding does not bother me.

Foreign intelligence: Especially during time of war, I think their role is limited to oversight, the intelligence committees need to be kept informed so they are never surprised. That is completely necessary for the legislative branch to raise objections in a timely manner if they believe a program raises concerns. The legislative branch cannot sit on their hands and wait four years to speak up and say I wrote a CYA letter to myself two years ago.

The 1947 Security Act: I would have to refresh myself on the act before making any comment.

Congress creating a law that limits the executive: It would be wise for Congress to consult with the executive branch before attempting any such law. I find laws that are made to preempt abuse that has not occurred to be exercises of waste. If we start going down that road, creating laws to prevent every possible chance of abuse, our legal system would become overburdened in what is already a society that has become too litigious.
2.19.2006 2:23am
Defending the Indefensible:
KMAJ:
Question for you, if the court decides in the executives favor, should Congress abide by it or would they justified to try to make another law to find a different way to intrude ?
Congress has no power to defy the court in this matter, unlike the executive. However to the extent that the court established a bright line principle for interpretation of the constitution, it would be pointless for the Congress to try to pass new legislation ignoring this, as it could not and would not be upheld by the courts and the executive could instantly have such legislation ruled unconstitutional on the strength of precedent. On the other hand, if the Court were to rule narrowly and on statutory grounds for the executive, there is absolutely no reason precluding the Congress making new statutory language which would clarify their intent, and this would not be defiance of the court.

But I don't think there's much chance of the President's interpretation being upheld if it is subjected to judicial challenge and the statutory framework is not changed in the meantime.
2.19.2006 2:33am
Mary Katherine Day-Petrano (mail):
"So, I wonder if the Administration's strategy right now is to delay congressional action while the Administration "takes its case to the American people," ala Social Security reform.

OK, that was a loaded analogy. But I couldn't resist."

Medis, at the risk of being autistic, the problem is (for autistics), they don't have the capability to read between lines and *get* the loaded analogy -- one has to be very literal and not leave steps out. So, since your opinions are always so interesting, could you provide a more definite statement of what you were saying?

Thanks.
2.19.2006 2:58am
Mary Katherine Day-Petrano (mail):
Medis, "What people are disputing is the notion that as soon as the words "foreign" and/or "international" apply to a situation in any way, the President can dismiss Congress and the judicial branch from further participation in the matter. And that proposition is indeed clearly wrong in light of the enumerated powers of Congress and Article III's grant of jurisdiction of the courts (in addition to the treaty clause, Article III also gives the courts jurisdiction over controversies "between a state, or the citizens thereof, and foreign states, citizens or subjects")."

Actually, in the case of treaties or international law, the judiciary can decline to participate in some circumstances based on the political question doctrine. Just wanted to add that possiblity.
2.19.2006 3:11am
Mary Katherine Day-Petrano (mail):
"First, I am not suggesting a congressional supremacy argument and I do not see anyone else on this thread arguing arguing it either, except of course Will. I am arguing for Congressional equality. When the political branches pass a law, that law cannot be overturned by one branch, except for as prescribed by the Constitution."

I agree with the first part. I would argue for judicial supremacy. And as for the final part of the above statement, see Marbury v.Madison.
2.19.2006 3:20am
Mary Katherine Day-Petrano (mail):
"But one question for all those that said that the NSA program violates the bill of rights, since when does Congress have the authority to set aside the Constitution?"

What, exactly, is your question?
2.19.2006 3:24am
Mary Katherine Day-Petrano (mail):
"Another example is Posse Comitatus, which said that the President cannot use the military for police purposes."

It seems the USA PATRIOT Act reauthorization with the Secretary of Homeland Security commanding a Secret Service federal police force under the AUMF might significcantly amend or repeal in whole or part the Posse Comitatus Act. That's just my thoughts.
2.19.2006 3:33am
Mary Katherine Day-Petrano (mail):
"In the end, I doubt that there is a lot of sentiment in this country for the civil rights of al Qaeda operatives calling home (which is how the Administration is framing the debate)."

That, Bruce, is why the Administration cannot be allowed to frame the debate. The civil rights being violated are of Americans who have nothing to do with al Qaeda.
2.19.2006 3:35am
Mary Katherine Day-Petrano (mail):
KMAJ-- "I suggest you read the 9/11 Commission staff Monograph evaluation of FISA, especially if you want to hang your hat on the 72 hour clause." Would you be so kind as to post th link to this? Thanks.
2.19.2006 4:00am
Noah Klein (mail):
Srp,

Thank you for delinating a position that has escaped many of the pro-administration commentators on this blog for months. The limit placed the executive (probable cause standard for surveiling U.S. persons) cannot be real unless the executive is required to demonstrate to a neutral party that they have overcome this standard. Therefore, is this standard unreasonable? If not, what means could be used to prevent the executive from abuses of the 1970's? How do you justify your determination that Congress cannot create a court to determine this standard that Congress established when Article III specifically grants Congress the authority to create such courts, including in areas relating to foreign affaris?Finally, does the fact that the people protected under FISA are U.S. persons on U.S. soil where the U.S. military is not currently conducting any operations against al-Qaeda change the nature of Congress's ability to create a court to apply their standard?

KMAJ,

First, who said anything about retired military? I refered the deference shown to the military officers, including line officers, who speak before congressional committees; I did not say anything about retired military. Second, I am glad you are calling for congressional oversight (bi-weekly with Gang of 8 and quarterly with full committees). I think that such oversight would help to ensure the program accords with the sentiments of Congress; I just wish that the president shared your desire for proper congressional oversight. Finally, you did not address my main point, which was that there is difference between deference and abdicating one's responsibility. If by deference you meant that the executive should get pretty much everything he wants in the area of foreign affairs (a position that you advocated since you entered this debate), then you are not referring to deference, but for Congress to lay down and accept the executive's position.

I would like to thank you for answering my other questions straightforwardly. On the issue of torture, I would love to point out a few things, but that would get us off topic, so I will just say that how you be against physical torture, but for nearly drowning a person?

On the issue of foreign intelligence, what would be the point of oversight if Congress cannot do anything (besides the extreme of defunding an important national security tool or impeaching the president) to prevent the president from abusing his authority? How is Congress to conduct oversight if the executive fails to inform the intelligence committees of his actions? Finally, I would like to point out that the Congress and the President did come to an accord on the issue of FISA. They had long negotiations and worked a system that they felt would allow the executive great flexibility, while ensuring oversight. Why can one branch break that agreement later on? If one branch can do such a thing (because it was in a weaker position or because it was sold on something that it later realized was a bad idea), can the other branch do the same? If so, I think there are a lot of members of Congress that would love to tinker around with a couple of things the Bush administration sold them on if they knew that the president couldn't veto it.

Noah
2.19.2006 9:23am
Medis:
srp,

As an aside, I still don't see any support for your before-the-fact/after-the-fact distinction in the Constitution. It seems to me that under Article III, once a case is within the jurisdiction of the courts, then they have the full judicial power of the United States at their disposal, explicitly including equitable powers, which would in turn include the power to issue things like injunctions.

But anyway, on your view is there a per se problem with the emergency order framework? The basic idea is that the government can start surveilling, and then seek a FISA order. If it ends up they can't get a FISA order, the surveillance has to stop and certain remedies might apply. Holding aside the exact ministerial details (which the Administration sometimes seems to claim are the root of the problem), do you think this basic approach is unconstitutional?

Again, I note this isn't an idle question. I take it Snowe is suggesting this basic framework of judicial review should be retained, and Roberts is suggesting this is the dominant view in Congress. And unless I misunderstand you, I'm not sure your analysis rules this approach out.

KMAJ,

As an aside, I don't think you can rationally dismiss Justice Kennedy's reasoning on all matters simply because you don't like his reasoning on some matters. And the bottomline is that he has a vote on the Court, and perhaps an important one if these issues ever come before the Court (although I personally think the likely vote count is not close). In any event, I wasn't asking you to accept his argument based on his personal authority. I merely urge you to consider his argument on its own merits.

Anyway, I don't think you dealt with the main point of the argument I quoted. Again, you need to start with the insight that the Constitution's separation of powers is not there for the sake of the political actors, but rather for the sake of the people. And therefore we cannot simply leave these issues entirely up to decision through compromise between Congress and the Executive, precisely because the liberty of the people is also at stake.

Interestingly, I think this point actually helps part of your argument. Suppose in 1978, Congress and the President worked out an unconstitutional concentration of power in Congress (I don't personally think that is the case, but I know that you do). I believe that Justice Kennedy would agree that the mere fact the two branches did this together in 1978 does not somehow render their compromise constitutional.

So, now I personally believe that the Executive is seeking to unconstitutionally concentrate power, and you do not, but surely you can see how Justice Kennedy's point works both ways. This claim--effectively that two branches are conspiring to violate the constitutional separation of powers--cannot be left to just those two branches to work out, precisely because the separation of powers is not there for the benefit of those branches, but rather for the benefit of the people.

So, it seems to me that whether or not you and I agree about what separation of powers the Framers wanted, we can both agree that this issue cannot simply be left to Congress and the President to work out as they see fit. And that is because the people have a right to insist on the government following the Constitution, and that right is not exclusive to just those in government.

MKDP,

My point was not particularly profound. As I read the political developments, the Administration does not like the current balance of views in the relevant congressional committees, and likely in Congress as a whole. To oversimplify, a significant number of Republicans in Congress are refusing to follow the Administration's lead, and are instead taking an independent approach. In contrast, the White House apparently believes that they can persuade the American people to back their position. So, they are hoping to delay action in Congress while they build support among the people, and in turn they can use that public support to pressure these Republicans into falling back in line with what they want to happen.

This was the basic setup with Social Security reform as well--the President's proposals were not faring well in Congress because too many Republicans were taking an independent approach. So, the White House delayed action while they attempted a media campaign to build popular support.

This example is "loaded" because that media campaign was a spectacular bust, and as a result the centerpiece of the Bush Administration's second term agenda was scuttled. In short, it was a case in which this general strategy failed miserably. In contrast, there are times when this strategy has worked. Indeed, this same basic dynamic played out over invading Iraq, where the Administration successfully built popular support, and then congressional support, for the idea by conducting a massive media campaign.

Of course, that is also a loaded example in its own way--this was the media campaign in which people in the Administration were notoriously talking about weapons of mass destruction and ties to Al Qaeda which did not in fact exist. They were also talking about how easy and low-cost an invasion would end up being. But there is no denying that this media campaign worked at the time as it was intended.
2.19.2006 9:41am
Just an Observer:
KMAJ: If this goes to SCOTUS, he should abide by their ruling. If he should decide to try to defy the ruling, he should have to suffer the consequences for doing so, those consequences would be determined by Congress. If they decide on impeachemnt, then that would be the proper consequence.

I applaud that reasonable position as far as it goes, and remind you that you once said here you personally hoped SCOTUS does decide the issue.

Now, if you would just agree that the President should seek judicial review voluntarily, rather than defend his "legal" theory in court only if compelled to do so.
2.19.2006 11:05am
Mary Katherine Day-Petrano (mail):
"srg: What I mean is that there are two ways the disputed program might fall under FISA: a) foreign target A calls domestic person B. The NSA intercepts this call in either a "pen-register" (metadata) or actual listening-in (content) mode. If the interception physically occurs at a switch on US soil, it might be interpreted as domestic surveillance. b) foreign target A calls domestic person B. The NSA logs this call and, after it is completed, follows the outgoing calls of B for some period of time. Especially important here is when B calls another person C overseas (maybe in the same country as A), because that could mean that the enemy is using B as a US-based relay for military communications. Nevertheless, it could be argued that domestic person B was being "targeted" by the NSA."

and

"Many of the Administration's defenders suggest that this is the case, and analogize the NSA program to, e.g., battlefield electronic surveillance. ... Can anyone point to reporting that will resolve this question?"

and

"The Ace wrote:
are you arguing gathering intelligence on the enemy is not a function of war

Of course it is."

I don't know if I can "point to reporting," but maybe I can say something I think has a big bearing on this whole surveillance problem I have learned from my extensive research into my cases on petition at the Supreme Court.

First, I think the top comment above is really confusing the state of technology with what we had in the 1970s, and it is a very outdated way of looking at what is now going on in terms of surveillance.

Having said that, my research indicates not only does the Administration claim signals intellingence is a "fundamental incident of war," but that this "incident of war" is VERY extensive in scope. One has to remember the surveillance in this modern age is being conducted thru (1) land-based lines, (2) undersea cables, (3) satellite transmissions (all wireless cell phones and wireless computer cards), and (4) radio frequencies (RFID spy chips that can "listen-in" (pretty soon, our driver's licenses).

"[A]nalogize the NSA program to, e.g., battlefield electronic surveillance" is getting closer to the mark, from what I have found in the unclassified military research I have conducted. The RFID chips (especially if they are active, rather than passive) coupled with the military's march toward "battlefield electronic" applications involving speech recognition technology, really flows back and forth across domestic/ international "geographic" lines (for lack of a better descriptor word). Hence, how does the 1970s FISA model fit the new technology in all of its applications? But we don't want to get rid of FISA, because that it the only check we really have right now.

I became interested in the speech recognition and RFID chips in the driver's licenses (REAL ID Act, RFIDS when Chertoff promulgates the implemeting regulations) because I just could not understand why I met (as Thurgood Marshal would have characterized it) the "massive resistance" to my disability accommomdations from EVERY Court and State and Federal agency after POTUS 43 took office in 2001 (whereas I received these accommodations before), and why a little driver's license challenge took on the proportions of something as touchy as cloning humans or manipulating our genetic heritage.

I discovered the speech recognition is being designed to operate virtually all military equipment remotely by speaking to computers at a remote location to command the machinery to accomplish and carry out tasks at a differnt location, likely far away. (While there are some application of this technology for soldier's helmets, I am leaving that application out of the discussion for now). I believe with this technology, it may well be possible, say, to speak to a computer through speech recognition in Central Command at McDill in Tampa and activate and control the operation of a drone aircraft over Afghanistan.

The darker side of this technology may be in the future of the RFID chipping, which will initially be contained within the REAL ID Act driver's license, but later likely will be required subdermally implanted in every American. Active read/write RFID chips may well be capable of not only surveillance on Americans' conversations wherever they may be physically located, but through extension of the speech recognition remote operation to control aspects of every Americans' lives by our government militarily in ways most of us might not like.

So, in light of the extensive scope of the surveillance I have described, what happens to signals binging in and out (internationally) and back into the United States by reason of the nature of the advanced technology, not by reason of where the persons involving the communication are located, at the same time such surveillance technology is being made present right on the physical person of every American, even in the home? My take on it is a MAJOR CLASH between FISA and the Fourth Amendment and the state of the advanced technology. It may also constitute the quartering of soldiers (the "electronic battlefield") in the home in violation of the Third Amendment. But I don't think we should just gut the Constitution in the face of this advancing technology. To destory every check and balance would destroy our Democracy and be wrong.
2.19.2006 1:00pm
Mary Katherine Day-Petrano (mail):
"One, the United States is not a theater of war. The AUMF was not a declaration of war, the courts are open and martial law has not been declared."

Well, actually, after the REAL ID Act requires every American to possess a Nationalized driver's license 'smart card,' access to the Federal Courts will be closed to all who not have one. That date is May 11, 2008.

"Other than Pearl Harbor, there were only two attacks that hit the mainland, one causing $500 damage in Santa Barbara the other no damage in Oregon."

An interesting point. It is quite sobering to stand in the bunkers at the top of the hill on the Marin Headlands by the Golden Gate and realize how real the fear of attack on our homeland.

"'Separation of powers helps to ensure the ability of each branch to be vigorous in asserting its proper authority. In this respect the device operates on a horizontal axis to secure a proper balance of legislative, executive, and judicial authority. Separation of powers operates on a vertical axis as well, between each branch and the citizens in whose interest powers must be exercised. The citizen has a vital interest in the regularity of the exercise of governmental power. . . . By increasing the power of the President beyond what the Framers envisioned, the statute compromises the political liberty of our citizens, liberty which the separation of powers seeks to secure.'"

Interestingly, this is how the Eleventh Circuit (only Circuit that has described it) characterizes the Americans With Disabilities Act's express conflict preemption provision (42 USC Sec. 12201(b)) over "other federal laws," which would include the AUMF. Maybe the Eleventh Circuit was grounding the ADA's "horizonal and vertical" preemption provision in Spearation of Powers, although it never states this. Shotz v. City of Plantation, Fla, 2003.

KMAJ, "They refuse to include or avoid addressing risk assessment and the threat matrix in their analysis." Actually, it is more of an autistic feel in my case, but given the autistic brain that does not mean there is a difference in logical analysis.

Thanks for posting the link, and also for further explaining you loaded analogy. Of course the centerpiece of the Social Security reform, private accounts, was recently added to the appropriations (spending cuts) bill under the radar of most Americans.

"Were the NSA program wholesale domestic spying on every citizen, rather than the narrow spectrum of terrorism related communications, I would be arguing against it."

Do you have any thoughts about the expansive scope of surveillance described under my other comment above, and whether you would still argue in favor of it? I realize some of the info is still top secret so most of us still don't know everything there is to know about all the suveillance programs, but the Real ID Act and RFID chip technology is readily available over the internet.
2.19.2006 1:49pm
Mary Katherine Day-Petrano (mail):
"Spearation"=Separation
2.19.2006 1:51pm
Mary Katherine Day-Petrano (mail):
On "judicial review:"

One should always remember with regard to Congress efforts to strip jurisdiction from Article III federal court review, e.g. that comes to mind, Judicial Misconduct statutes providing for "no further review," that there can in fact (contrary to the statutory language) be further judicial review in some circumstances. McBryde. This would be relevant to the Real ID Act, for example, under the border provisions in the immigration context.
2.19.2006 2:01pm
Just an Observer:
Some behind-the-scenes detail about Senate Intelligence Committee Republicans' recent maneuvering, from tomorrow's Washington Post: White House Working to Avoid Wiretap Probe
2.19.2006 10:24pm
Just an Observer:
The NYT version of the state of play in Congress: Facing Pressure, White House Seeks Approval for Spying

Again, the key figures are Republicans.
2.19.2006 11:32pm
KMAJ (mail):
JaO,

I don't agree that he should simply fo the route of judicial review. Originally, I did say I hoped it went to SCOTUS. But as I thought more deeply about it, I thought of the consequences of making that the primary procedure for resolving constitutional disputes. It would elevate the judicial branch above the other two, and that would be wrong. Judicial review should be the avenue of last resort instead of first resort, another reason for that being judicial review does not lend itself to compromise, but to confrontation.
2.20.2006 1:12am
KMAJ (mail):
Noah,

I never claimed there wasn't a difference between deference and abdication. Deference refers to current or ongoing operations, the operational aspect of war is not the purview of congress. That is where their oversight role plays out, they should be informed of current operations, the proper committee that is, and be kept up to date. If certain current operations cause a concern, it allows for the opportunity to address them. I never said the purse and impeachment were their only choice of action, it is those legislative tools that lend weight to their concerns. Though I must admit, until recently, I never thought congress or the executive might be so vindictive and polarized that they would lose the ability to be civil when the safety of this country is at stake. Now, I have serious doubts.

Re: Waterboarding - Waterboarding is not nearly drowning, it makes people think they are. It is psychological, causes no physical harm and any psychological harm would be limited to knowing they broke. I also stated that technique should be limited to high value captures, like Khalik Sheik Mohammed, etc.

Re: Foreign Intelligence and Congress - they need to tread very carefully when they set foot in the foreign intelligence area. That is an area where they need to negotiate with the exececutive unless it is their desire to create a conflict. In my opinion, Carter was one of the worst presidents in our history, so the fact he negotiated FISA is a strike against it. I do also believe Congress took advantage of a weak executive branch in the wake of Watergate and Vietnam to usurp some executive branch authority and weaken the executive branch overall.
2.20.2006 1:55am
KMAJ (mail):
Medis,

I merely stated Kennedy wasn't my favorite justice, so I do have some prejudice towards his decisions. In the Clinton case, I agree with his foundational premise of too much power in any branch is tyranny, and that the separation of powers is to prevent that, and by extension, protect the people.

I agree, because Congress and the President may reach a compromise, it is not necessarily constitutional. If that were the case, someone with standing could file a lawsuit to challenge it. I am not sure if your point was referring to a different solution or was an argument for mandatory judicial review. I would oppose mandatory judicial review for reasons I have stated before, elevating the judicial branch and that it is a venue that leads itself to confrontation, not compromise.
2.20.2006 2:04am
Medis:
KMAJ,

My point was quite simple--I think you were right the first time to think it would be best for the Supreme Court to have an opportunity to weigh in on this separation of powers issue. That wouldn't "elevate" the Supreme Court above the other two branches. Rather, it would be the Supreme Court playing the role of neutral tribunal when the branches had a dispute--which is exactly the sort of role the courts are supposed to play. And even once the Court played that role, it wouldn't somehow decide the nature of the substantive law--that would still be up to the relevant branch or branches.

As for how that could happen--I'm not sure what you mean by "mandatory judicial review". But as we have often noted, there is a simple route whereby the Administration could voluntarily trigger judicial review. Similarly, as you note, any party with standing could bring a lawsuit, and I suspect Senator Specter is working on a way to expand standing. But wouldn't it be preferable for the Administration to just do that on its own?

So again, I guess I am just puzzled about your rationale for retreating from your initial conclusion. If we can agree that "mandatory judicial review" is off the table, but that the President could voluntarily trigger judicial review, then why exactly aren't you calling on the President to do so?

Indeed, this fits into a broader conversation we once had. You once noted how dealing with these separation of powers issues are dangerous distractions in times of conflict. So, insofar as the Administration could achieve a more global settlement of this issue by bringing their arguments to the Court, rather than work out piecemeal compromises, shouldn't they do so for the good of the country?

Again, to be perfectly clear--this is not about "mandatory" review. I'm just asking why you now think the Administration should not VOLUNTARILY trigger judicial review.
2.20.2006 10:09am
Just an Observer:
KMAJ: I don't agree that he should simply fo the route of judicial review. Originally, I did say I hoped it went to SCOTUS. But as I thought more deeply about it, I thought of the consequences of making that the primary procedure for resolving constitutional disputes.

Yes, the President would almost certainly lose in court.

And as it turns out, a test case may be possible after all. While the White House spin was emphasizing the 42-page "legal" arguments, and there did not seem to be a viable way for anyone actually to start a case, it fit with the spin to claim you wanted a court to decide the merits.

But after Specter called Gonzales' bluff and challenged the him to tell it to the judge, and the Washington Post reported that DOJ has been ducking a test case in FISC all along, you and the other Bush apologists have changed your tune.

KMAJ: It would elevate the judicial branch above the other two, and that would be wrong.

The judicial branch specifically has the responsibility of interpreting and applying the law, a principle that has been established since Marbury v Madison. "It is emphatically the province and duty of the judicial department to say what the law is," Chief Justice Marshall wrote. That is rather settled and basic conlaw.

In particular, the court has determined wartime separation-of-powers issues in cases that include Youngstown and Hamdi.

KMAJ: Judicial review should be the avenue of last resort instead of first resort, another reason for that being judicial review does not lend itself to compromise, but to confrontation.

To the contrary, judicial review settles what otherwise would be a confrontation.

Since the President asserts he ultimately can do whatever he wants in the area regardless of legislation, how can any legislative compromise resolve that issue?
2.20.2006 10:26am
Medis:
KMAJ,

I hate to pile on, but I think JaO helps clarify the question.

In short, if the issue before the Court was limited to interpreting the Constitution to settle the separation of powers issues, and they did not reach any 4th Amendment issue, would you have a problem with the Court playing that role? If so, why? And honestly, does your answer depend on whether the President is likely to win?
2.20.2006 10:46am
Just an Observer:
KMAJ: Re: Waterboarding - Waterboarding is not nearly drowning, it makes people think they are. It is psychological, causes no physical harm and any psychological harm would be limited to knowing they broke. I also stated that technique should be limited to high value captures, like Khalik Sheik Mohammed, etc.

But as a legal matter, that is now settled. Waterboarding was unambiguously outlawed by the McCain amendment. There was no exception for "high value captures."

You, and apparently the President, now assert that his agents could commit this act anyway.
2.20.2006 10:46am
Just Wondering:

Waterboarding is not nearly drowning, it makes people think they are. It is psychological, causes no physical harm and any psychological harm would be limited to knowing they broke. I also stated that technique should be limited to high value captures, like Khalik Sheik Mohammed, etc.

KMAJ, I don't think that's right. Waterboarding causes people to think they're drowning by depriving them of oxygen. That is why no one is able to resist. If it were a mere illusion, somebody would have figured out a way to recognize it as such while undergoing it, and could hold out indefinitely. Continuing to waterboard the captive would cause him to drown. No matter how valuable the particular captive may be.
2.20.2006 11:29am
Just an Observer:
Just Wondering, of course, is correct. I hope my post focusing on legality did not give the impression that waterboarding is illegal for no good reason. If waterboarding happened to KMAJ, he would recognize torture as torture. (The distinction KMAJ draws reminds me of the Inquisition's loophole that excused torture if it drew no blood.)

However, it is useful to consider the illegality of this practice and all techniques outlawed by the McCain anti-torture amendment in the context of the current FISA debate in Congress. Recent history remains a vivid lesson.

As the McCain amendment became law, Bush's signing statement hinted broadly that the President reserved the right to ignore it. This came not long after he made nice with McCain at a White House photo op and endorsed the final "compromise."

Given that performance, it is hard to see how Congress could accept any FISA compromise that is not coupled somehow with judicial review of Bush's overriding claim.

When he agreed to the anti-torture legislation, Bush kept his fingers crossed. I don't think all the 90 senators who voted for it have forgotten.
2.20.2006 12:34pm
KMAJ (mail):
Medis, JaO,

You may not be asking the right question. Why should the executive branch 'voluntarily' seek judicial review ? Is there any gain in doing so ? I have played out the analogous 'fool's bet' scenario. Why do something when there is no upside or something to gain ? It would not matter if they were 99% sure of winning, 99% sure of winning nothing is still nothing. Bush has a business degree, not a law degree. What you propose would be an irresponsible business decision. If you had $1,000,000, and someone said, there is a 99% chance you can keep your million and a 1% chance you will lose it if you take this bet and gain nothing if you win, would you take that bet ?

You need to stop looking at this as a legal issue, Bush is looking at it far differently, though getting advice from the OLC and DoJ. And he is not looking at it personally, but as the 'business' of protecting and preventing another terrorist attack. What is the upside in judicial review for preventing another attack ? I proffer there is none.
2.20.2006 1:47pm
Just an Observer:
KMAJ,

What that boils down to is exactly what I have said: The President won't go to court because he might lose.

When you say, "You need to stop looking at this as a legal issue, Bush is looking at it far differently," your observation is quite revealing. The rule of law is not something this president values. To him, all that matters is what he can get away with.
2.20.2006 2:02pm
KMAJ (mail):
JaO,

The soft on terrorism argument about waterboarding is interesting. As an entity, terrorists are not signatories to the Geneva Convention, thus are not covered by it, and do not abide by it themselves. Perhaps you do not understand what waterboarding is, they are not immersed, water is continuously run over their head while angularly inverted, yes, causing the sensation of drowning. Why the inversion ? To prevent actual drowning, water getting into their lungs. There is NO chance of actually drowning, the worst that could happen is you would pass out.

You will have to forgive me for not having any sympathy for high level terrorists who hold information that could save thousands of innocent lives. And your flamingly left biased analogy, if I were a high value target that had information that would save thousands of innocent lives, I would expect to be waterboarded or worse. The lives of the many innocents outweigh the life of the one guilty of planning their deaths.

I understand idealistic position espoused, it is one that terrorists tactically rely upon but feel no need to adhere to themselves. In an ideal world, all would adhere to such principles, but that is simply not a real world case. How does waterboarding measure up against beheadings, suicide bombings and the potential use of WMDs that are the intentions of the enemy ? I request that you do not extend, twist or misrepresent my comments to apply to those legitimately protected by the Geneva Convention, they are clearly meant to address terrorists.
2.20.2006 2:26pm
KMAJ (mail):
JaO,

You engage in semantic twisting, a pretty weak argument. He is looking at it as the 'best' way to protect and prevent another attack, that is the 'business' of the executive branch. Your pejorative manipulation of 'get away with' is blatant and clearly partisan to cast a negative pall of evil intent, regardless of your claimed 'conservative' leanings. Some people have learned nothing from 9/11 or so soon forgotten. Some decry the label of pre-9/11 mindset, but there is a strong element of truth behind that label, your positions seem heavily rooted in it, with hollow platitudes of recognition that 9/11 occurred.

I find it interesting that none who have been briefed about the NSA program have called for it to be stopped, in fact, the opposite is true. Yet, the critics seem to want to attach negativity to it, instead of giving Bush credit for implementing a good program.
2.20.2006 2:43pm
Just an Observer:
KMAJ,

Whether you think waterboarding is a good idea or not, the practice now is certainly outlawed by the McCain amendment. Congress has acted. Bush signed the law. Yet you and the president claim he has authority to defy the statute and order such torture anyway.

As a legal and political matter, this is closely analogous to the FISA issue, since you and the President claim he has authority to override that statute, too, using the same war powers.

And, once again, I must note the moral weakness of your position here in the Court of Public Opinion: It is that very claim of constitutional authority that you and Bush are afraid to argue in a real court.

Whereas you used to say you favored a resolution in SCOTUS, now you tell us, "You need to stop looking at this as a legal issue. ..." The only reason you give is that, in a real court, the President might lose.

KMAJ, please do keep digging.

Mr. President, please tell it to the judge.
2.20.2006 4:13pm
Just an Observer:
KMAJ: You engage in semantic twisting, a pretty weak argument. He is looking at it as the 'best' way to protect and prevent another attack, that is the 'business' of the executive branch. Your pejorative manipulation of 'get away with' is blatant and clearly partisan to cast a negative pall of evil intent, regardless of your claimed 'conservative' leanings.

No exchange with you, KMAJ, would be complete without your habitual, whining resort to ad hominem, claiming that if I say something negative about this President, that must be "partisan."

You say the President should not go to court, for fear of losing, until he is compelled to do so. By your own account, Bush merely seeks to minimize the chance that the courts will rule against him. That is, doing what he can get away with, as opposed to following the law expeditiously no matter what.

There is nothing remotely partisan about my observation. It is what it is. My argument does seem negative, I agree, because here in the Court of Public Opinion, I normally hold presidents of both parties to a higher standard than: Hasn't Yet Been Proven Wrong in Court, Because He Won't Show Up to Make His Constitutional Case.

FWIW, I held the previous president in very low regard, as well, for his dissembling over the meaning of the word "is." Presidents have an affirmative duty, I believe, to support the rule of law. In the case of the incumbent, he is ducking the courts on a matter directly related to his sworn duty to "preserve, protect and defend the Constitution of the United States."

Bush makes a claim about the Constitution. Let him go to a real court and defend it.

Here in the Court of Public Opinion, the only court where you and the President will show up to play, that is my standard. Obviously, your standard may be lower, and we can have this conversation as often as you wish.
2.20.2006 6:17pm
KMAJ (mail):
JaO,

You make illogical deductions. I did not say the president should defy the law, stating that I think the premise of the law regarding waterboarding is ill-conceived is not advocating violation. Nice try, you seem to have this need to distort and project. You hide your weak on terrorism position behind such lexiconical manipulation. You do a good job of following the Goebbels maxim of if you repeat something often enough, even though false, people will begin to believe it.

You might want to read this opinion on the McCain Amendment, when you profess what it makes it illegal. Neither the McCain Amendment in the final version of the FY 2006 Defense Appropriations Bill, nor the United States Army Field Manual nor the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment specifically mention waterboarding. That does not mean some may, or mat not, interpret it as cruel and inhuman, only that it is not specified.

So that leaves you with the hypothetical question, if you have captured someone who you strongly believe has information that would lead to preventing an imminent dirty nuke attack, where time is of the essence and thousands will die if you do not break him, what do you do ? Take the moral high ground and shrug your shoulders and say "Well, I tried, but he refused to tell me." ? Meanwhile, your moral high ground cost thousands of innocent people their lives. And you could live with yourself after that ?
2.20.2006 7:48pm
Just an Observer:
KMAJ,

My point is not that you claim the President should defy the law on torture in general but that you claim that he could if he deems it necessary. And so does he, by implication, in his signing statement.

Similarly, you and the President's "white paper" claim he could order warrantess surveillance even if prohibited by statute, because of the same general claim that he has "inherent," exclusive war powers that trump legislation.

Yet, once again, you and Bush shrink from straightforward action to confirm if the powers claimed in the "white paper" really exist.
2.20.2006 8:10pm
KMAJ (mail):
JaO,

Nice twisting, again. Finding it unnecessary, at this point in time, and 'shrink from' are not synonymous. It is only you and a few others who want that, Congress has not asked for it yet, though they may. That hinges on whether a negotiated compromise is reached. Of course you advocate it, from your position, it is a win-win situation, even though part of your win could cost people their lives. Does that even factor into your thoughts ?
2.20.2006 8:17pm
srp (mail):
Medis: As you would expect, I am very much against dragging in the FISC on this program in a warrant-granting capacity. Warrants are a category error in military operations, and unconstttutional even for congressional supremacists (which I am not). So De Wine over Roberts, certainly.

Much has been made over the retroactive warranting allowed under FISA. This addresses neither the practical nor constitutional problems with the law. Practically, each FISA warrant application is apparently a 100+ page "federal case" meant for exceptional situations rather than ongoing operations. With possibly hundreds of communication tracks zipping out of a given radiation source, this goes beyond burdensome to prohibitive.

Constitutionally, the interference of judges in tactical matters is not remedied by letting a tactic run for 72 hours before pulling the plug. For example, If terrorist A in Afghanistan is potentially talking to terrorist C in Pakistan by relaying through individual B in the US, and US forces are engaged in pursuit of and/or combat with A and C, military signals intelligence aimed at these targets cannot be subject to court jurisdiction.

Courts (military or civilian) can be employed to try and punish violators of the laws of war as passed by Congress.(I here waive discussion about exactly how intrusive such laws can be and still pass constitutional muster.) So if it is constitutional for Congress to say "no military listening in to any US person ever," and somebody possibly violates that law, the accused violator could be tried by some body set up by Congress. This avoids the problem of inserting civilian judges into the chain of command.
2.20.2006 8:26pm
Noah Klein (mail):
KMAJ,

I would suggest that you read the article about and the memo by Alberto Mora, former general counsel to the Deparment of the Navy. This will fill you in on the legality of waterboarding and other practices. Specifically he cites a UK case Ireland v. England (?), which he says according to the treaties we signed demonstrates clearly that these practices are against international and domestic laws. The most interesting element of the Mora memo though is not the legal evidence presented (I have seen that before), but is the opinion provided by the NCIS chief psychologist. Dr. Gelles states that these interrogation methods are ineffective and counter-productive. To gain a better picture of that ask John McCain, he'll tell you all you need to know.

All that though is off topic. The thing I most wanted to respond to is your insistence that the "business" of the executive requires that he continue what he is doing without gaining guidance from the judiciary if that practice is legal. The "business" of the executive is not as you describe, but is to "faithfully execute the law." The president cannot faithfully execute the law if he consistently maneuvers to prevent the judiciary from doing their job, which is to interpret the law. The Bush administration's actions do not demonstrate an attempt to conduct the "business" of the executive, but demonstrate an attempt to accumulate power for the executive. Bush's reasons might be the noblest there are (to protect his nation), but so were Julius Caesar's.

Furthermore, I have a post-9/11 mindset. I was in D.C. on the day of the attacks. I watched people falling to their death from the WTC and my cousin was just across the street when it happened. Furthermore, I have lived in large cities all my life and am thus more the subject to potential terrorist attacks than others who have not or do not. I understand the threat as I am sure Medis and JAO do as well. But because I understand the threat does not mean, I eliminate the entire history of the world before it manifested itself on 9/11. Terrorism is serious and should be dealt seriously. Yet, because I want to protect the structure of the institutions that govern me, does not mean that I want the terrorists to attack or that I am ignorant of the fact that they wish to attack again. Those images are seared into everyone's brain, but we as a people are not governed by what happened on one day, but by what has happened throughout our country's, family's and personal histories. To ignore the dangers of a great accumulation of power in the hands of the executive, because of the fear of an external threat is not a post-9/11 mindset, but is pre-1776 mindset. Join us in the 21st century please. (BTW I can't take credit for that line, but I don't remember to whom I should give credit."

Noah
2.20.2006 8:27pm
Noah Klein (mail):
KMAJ,

"Of course you advocate it, from your position, it is a win-win situation, even though part of your win could cost people their lives. Does that even factor into your thoughts?"

It's not a win-win situation for us nor a lose-lose situation for the president. If our position loses, then there is a greater grant of authority to the president than we believe is appropriate (the CIC role cannot be contained by law). If President Bush's side wins, he gains legitimacy (very important in our government) for his actions and a broader authority to conduct actions that will protect our society. Finally, that the president might lose is not a legitimate reason to circumvent the courts.

"Practically, each FISA warrant application is apparently a 100+ page "federal case" meant for exceptional situations rather than ongoing operations."

As I understand it, the reason the FISA warrants are so long is due to the minimization requirements that each warrant must have. These are developed well before the surveillance is even considered and thus do not add to the time that is required for the warrant to be compiled. If it did though, there are other options than circumventing the law. Increasing the time is a reasonable procedure, isn't it?

Noah
2.20.2006 8:39pm
Just an Observer:
KMAJ: It is only you and a few others who want that, Congress has not asked for it yet, though they may. That hinges on whether a negotiated compromise is reached.

Notably, the most prominent of those "few others" is the Republican chairman of the Senate Judiciary Committee.

How do you think a legislative compromise can resolve the question of whether the President can ignore or supersede whatever the compromise statute is? That is a constitutional question.

KMAJ: Of course you advocate it, from your position, it is a win-win situation, even though part of your win could cost people their lives. Does that even factor into your thoughts ?

Nice play of the fear card. Since there obviously will be some sort of compromise to authorize surveillance going forward, in what way would judicial review "cost people their lives."
2.20.2006 8:55pm
KMAJ (mail):
JaO and Noah,

It is interesting to watch you analyze and justify. Your premises seem to rely on the law existing in a vacuum, no external forces should apply. Under that premise, should all the laws that were passed since the New Deal be repealed ? They represented a radical shift in jurisprudence due to the Great Depression. If the Great Depression is allowed to reshape the law, couldn't 9/11 just as legitimately reshape it, too ?

If the 'judicial review' should end up legitimizing burdensome regulations that prevented detecting even one attack, lives would be lost. In order to prevent an attack, we have to be right 100% of the time, terrorists only have to be right once. Anything that makes it easier for the terrorists to be right needs to be carefully evaluated. It is a very delicate balance that has to be struck, one that the judiciary is not well equipped to evaluate, nor do they have the expertise in threat assessment, making judicial review a very risky proposition. It is why I prefer negotiations to reach a compromise between the legislative and executive branches, the two branches best suited for solving this.
2.21.2006 12:44am
Just an Observer:
KMAJ: It is a very delicate balance that has to be struck, one that the judiciary is not well equipped to evaluate, nor do they have the expertise in threat assessment, making judicial review a very risky proposition. It is why I prefer negotiations to reach a compromise between the legislative and executive branches, the two branches best suited for solving this.

I have no objection whatsover to negotiations between the political branches. I think it is great that this legislative process is starting, albeit four-plus year late.

My concern is that any result of such negotiation is meaningless so long as the President reserves the right to override it unilaterally later. That's how we got into this jam in the first place.

It is precisely the responsibility of the judiciary to make such determinations about separation of powers. It is not a matter of "threat assessment." It is a matter of constitutional law.

Since it is the President who makes the constitutional claim that he has exclusive powers in this area, he should be willing to defend it in court, and abide by the result.
2.21.2006 10:51am
Medis:
KMAJ,

I don't understand how you can assign a value of zero to getting a definitive Supreme Court ruling on the separation of powers issue. You have previously stated that ongoing disputes over separation of powers issues undermine our efforts during times of conflict such as the current GWOT. You also apparently agreed that maintaining the Framer's intended separation of powers serves the liberty interests of the people. So, in both the immediate and long run, it would seem a more global resolution of this issue would have clear benefits. And this is all just using your own stated views.

So how can you condone the President assigning a value of nothing to getting a definitive court ruling on the issue? It seems to me you have to assign a positive value to at least the case in which he wins.

srp,

First, a few quick points:

As I noted above, there may be a valid practical objection to the administrative requirements in FISA, but I am asking you to hold that specific issue aside, since it is subject to modification as necessary.

Also, insofar as prior judicial approval is not required, I think it makes sense to drop the description "warrant"--and indeed, FISA does not call anything a "warrant".

Finally, for the most part your A-B-C scenario would be outside FISA, and if it is not for some technical reason, that could also be fixed.

On the broader issue:

I think we need to break this down into some subsidiary steps.

Step #1: For good reason, Congress does not want to prohibit all electronic surveillance of U.S. persons. On the other hand, Congress does not want to allow surveillance of U.S. persons for certain purposes (ala Nixon). So, Congress passes a law making it a crime to electronically surveil U.S. persons for some purposes, but not for other purposes.

Question #1: In your view, is such a substantive criminal law already unconstitutional?

Step #2: To provide for enforcement of this law, Congress provides for criminal enforcement actions against government officials conducting unauthorized electronic surveillance of U.S. persons, and further creates a private right of action for damages by the targets of such surveillance. These criminal and civil cases would be tried in Article III courts.

Question #2: In your view, is this amount of participation by the Article III courts already unconstitutional?

Step #3: One of the remedies available to the courts in Step #2 is also the ability to grant injunctions against continuing the surveillance of targets who succeed in their private suits.

Question #3: In your view, does adding injunctions as a remedy render the participation of the Article III courts unconstitutional?

I think that is enough for now.
2.21.2006 11:29am
srp (mail):
Medis: For some reason, you remain resistant to the fact that the Administration is perfectly willing to use warrants for domestic surveillance--they have applied for, and received, hundreds of such warrants. The ONLY issue outstanding is situations like the A-B-C hypothetical which involve US persons communicating with foreign targets. NO ONE in Congress or the Executive has claimed otherwise. Where do you get this illogical notion that purely domestic surveillance is involved here?

Call them warrants, pre-approvals, post-approvals, enabling documents, or mother-may-Is; what the FISC would be doing if the military were required to apply for permission in the midst of an engagement, would be unconstitutional. That includes injunctions, of course.

The core of this is pretty simple: What does it mean to be Commander-in-Chief of the military if not that one is the sole, ultimate authority on operational decisions? This can be attacked on a textual, structural, and original understanding basis and I believe all will converge on not letting Congress or a judge prevent a signals intercept any more than a military officer can raise taxes or levy civil damages. I think we're making heavier weather of the topic than it may warrant.

As for legislative remedies, my view is that they would have to be narrowly focused on preventing specific forms of abuse so as to avoid unnecessary breach of the separation of powers. For example, if we are concerned that US persons' private information might find its way from signals intercepts to members of the military or executive branch who could use it for personal purposes, then remedies and controls would have to be focused on that, such as logging who had access, how the information was handled, etc. Or if we are concerned about criminal trials being "corrupted" by evidence gathered in contravention of due process, then we could focus on evidentiary procedures and the like.

In such a scheme, I would have no problem with allowing for criminal prosecution of violators. I can't at the moment see any constitutional bar to allowing private lawsuits under such a scheme, either, but I may be overlooking something.
2.21.2006 6:23pm
Medis:
srp,

On the nature of the program: no one in the Administration, to my knowledge, has claimed that the targets of this program are only on the foreign end. They have claimed that this program only involves communications with at least one foreign party, and they have claimed that they have probable cause that at least one party to the communication is somehow affiliated with Al Qaeda. But, of course, that is not the same thing as saying that the party who is suspected of being affiliated with Al Qaeda is always identical to the party on the foreign end. Also, I might note that the Administration has been taking care to limit its comments to "this program", by which they apparently mean the program which the President confirmed. The extent of other programs has not been discussed.

I don't think the fact that they get some FISA orders rules out the possibility that sometimes the U.S. person is the target of the surveillance in this program. For one thing, they have claimed that there are sometimes administrative reasons for not pursuing such orders, and those explanations in no way depend on who is the target. For another, it is not clear that their definition of probable cause is the same as FISA's definition, which could explain why they do not always get FISA orders. For a third, there may be a problem with using certain kinds of evidence to get FISA orders. And so on.

Finally, I recall that you also speculated about a different scenario: a foreign target calls a previously unknown U.S. person (or has their contact information), and the government wants to immediately start surveillance on this new U.S. person, at least with respect to their international communications. In that case, the U.S. person would be the target for the second stage, and I don't see why you are now implying that the Administration has ruled out this possibility.

In general, I think this is a real problem with your analysis: you are taking a hypothesis about what "this program" involves and asking me to disprove it. But I don't claim to know exactly what "this program" involves--I just don't think your hypothesis is the only viable hypothesis in light of what little the Administration has actually said. In that sense, I think you are improperly asking me to disprove your hypothesis when in fact you should have the burden of excluding all other hypotheses.

Anyway, on the other issues:

I think it would be helpful if you directly addressed my questions, but I gather you may have specifically jumped ship when it came to injunctions. I have to say I think that would be quite odd--to find that government officials were criminally and civilly liable for certain misconduct, but to not allow equitable remedies like enjoining further misconduct. Indeed, that seems hard to square with the way jurisdiction is granted in Article III. But I think that would be a good starting point for further discussion, so let me know if that is correct.

As an aside, of course there is a straightforward interpretation of the Commander in Chief clause that implicates none of these issues. That interpretation is that the clause simply makes the President the first General and Admiral of the armed forces. That organizational interpretation of the clause would not imply that the President was somehow immune to otherwise valid laws and judicial remedies (no more than it implies that any other lower-ranked officer would have such immunity).

Of course, one need not agree that anyone in the military should be subject to the equitable jurisdiction of the Article III courts. But it is more than a little misleading to claim that the Commander in Chief clause would have no meaning in such a case, because it would still have the effect of putting the President at the top of the military hierarchy, albeit with fewer prerogatives than some might think he should have.

And incidentally, given the way that the Commander in Chief clause deals with the state militias, it seems clear that its primary purpose is indeed about the President's place in the military hierarchy. Indeed, I might suggest that the notion that the Commander in Chief clause is intended to define some sort of exclusive powers of the President is flatly contradicted by the conditional treatment of the state militias.
2.21.2006 7:20pm
Medis:
srp,

Sorry, I forgot one question:

Do you think it would be constitutional if Congress sought to prevent the President from using the armed forces to spy on his political enemies for the sake of his personal gain? Even if that information was never used in court?
2.21.2006 7:21pm
srp (mail):
Medis: If you have a different theory of what the FISA issue is, by all means present your examples. Possibly we can come to agreement on specific hypotheticals. (My older speculation about looking at domestic recipients of foreign target calls and then tracing their calls overseas is defintitely fair game. It presents some tricky issues, because that individual may be part of an enemy communications relay back overseas. I'm not sure how many degrees of separation from such operational matters are required before we're in posse comitatus country.)

I am not convinced by your argument that purely domestic targets are the issue here, and I don't see why I have this burden of proof. I can only defend what I think the President ought to be able to do, and what he is doing by public consensus (i.e. listening to Americans talking to foreign targets), not all the unknown things he might be doing, which I might or might not approve of. (One way to keep oneself honest here is to imagine a President one really doesn't trust or like with the powers at issue.)

On your last question, yes, Congress could defiinitely try to prevent such abuse of the armed forces, but would constitutionally have to rely on means such as a) requiring logging and ex post accountability for anyone tapping into databases, b) maintaining congressional oversight, c) empowering an inspector general to investigate abuses, d) providing secure means for whistleblowers to tip off Congress, e) allowing civil actions by harmed parties (presumably but not necessarily subject to the usual evidentiary restrictions on disclosing sources and means), f) making sure the UCMJ stated that military participation in such shenanigans was illegal for servicemembers, and g) criminalizing the misuse of security information by executive branch employees. They could not place their agents or judges inside the operational intelligence-gathering loop, however.

On the Commander-in-Chief: Here I think you fall into idle wordplay. Being the "senior general or admiral" or "at the top of the military hierarchy" is meaningless unless one's military orders are supreme. It's just restating the same thing. Apparently, you have some other idea of what military command means and what the unity of command entails. I can see that we may be headed back to a discussion of the bombing court, because it is difficult to tell if you think the President has ANY unique powers as the Chief Executive and the Commander in Chief. The doctrine of going to war with all three branches is appealing--why are you now willing to go to war with two, and the least competent two at that (pardon the rhetorical flourish)?

Finally, I don't see anything odd in not having injunctive relief available to someone who is wronged in the course of military operations. In warfare, the inability to carry out plans speedily and secretly may lead to total national disaster. There is an overriding national interest in not having extra cooks stirring the broth, which is why the Founders didn't want the Articles of Confederation style Congress running operations. That is why the President is the supreme commander of the armed forces, separate from the Congress and the judiciary. The rights of millions of people not to be unnecessarily subjected to the harms of military failure and national defeat outweigh the needs of an individual seeking injunctive relief, as our Constitution forsees by setting out the separation of powers.
2.21.2006 8:22pm
Medis:
srp,

But to be clear, no matter what Congress discovered, and no matter what came out in court cases under your (e), (f), and (g), in your view no court could constitutionally order the surveillance to stop, correct? Indeed, on your view no one beside the President can order it to stop, correct?

And yes, I do think you can have a hierarchical military command structure, and yet still have military officers within that structure be subject to court orders. And I have frequently explained how in my view the power held by the officers in that command structure is different from the power held by courts. I could repeat my views on this issue again, but I don't think that would be helpful. Suffice it to say, I have listened to your arguments with care, but I do not agree with you that having a military command necessarily implies freedom from court orders.

Incidentally, how do you feel about a court ordering a military officer to deliver someone in his command over to the civilian authorities? Is that a constitutional order?
2.21.2006 10:46pm
Medis:
srg,

Oh, and I have no particular hypothesis about how and why the Administration is doing electronic surveillance within the meaning of FISA. There are many possibilities consistent with the little they have stated about the program, and I see no reason to rule any of them out.
2.21.2006 10:51pm
Noah Klein (mail):
Srp,

The important fact is not the hypotheticals of what is going on, but the fact that the administration has admitted that the surveillance is being conducted would fall under FISA.

Noah
2.22.2006 2:48am
srp (mail):
Noah: I think that that admission is tactical. Rather than give away even more security information about the details of NSA surveillance in order to explain how they are technically noninfringing, they're simply conceding the point. But that's irrelevant.

My point is that if FISA really does purport to regulate tactical military decisions involving foreign battlefields, then it is unconstitutional. There is no way to square that circle--either FISA does not apply or it is unconstitutional.
2.22.2006 4:08pm
srp (mail):
Medis: At no time have you delineated the inner limits of the President's powers as C-in-C. All you have said is that the President can always be overridden by the Congress and courts under any circumstances in any situation--all they have to do is pass a law, and apparently that is good enough for you. The executive's power, in your view, appears to be a mere residual of what Congress and the courts choose not to take from him. This seems not consistent with either the structural or historical requirements of the Constitution.

Since no one wants to consider any hypotheticals about the NSA program at issue right now, it seems fruitless to go off into far-fetched constitutional crisis situations like Presidents ordering illegal surveillance by the military, the individauls involved being tried and convicted under UCMJ and the President then refusing to hand them over. At that point, we're probably looking at mass military resignations, impeachment hearings, and the like, if political pressure wasn't enough to bring the executive in line. I might as well ask what would happen if the Congress voted to cut funding for troops in harm's way--they could do it, but constitutional legalities would be the least of their problems.
2.22.2006 4:19pm
Medis:
srp,

I'm not sure if you will ever read this, and this thread is about to drop off. I just want to note that I have in fact given several examples of what the Commander in Chief clause does prohibit in my view, despite your claim to the contrary. Rather, our dispute is based on the fact that I think the C-in-C clause is about the President holding a certain position in the military hierarchy, and you think it is about altering the traditional separation of powers. You think the very notion of a military command implies that alteration, but I see nothing inconsistent between holding a military command and being subject to both applicable laws and lawful court orders. And as much as you want to claim that only your interpretation could possibly be right, I disagree, and I think my interpretation is in fact better supported by the text and relevant history.
2.22.2006 6:59pm
srp (mail):
Medis: I think we need to switch discussion to your civil commitment idea. I don't even like that for crazy people, although I recognize the occasional necessity. But I applaud your effort to deal with some of the problems we are going to have protecting civil liberties in a world of terrorists.
2.23.2006 10:58pm