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An Exchange on Executive Power and NSA Surveillance:

The University of Minnesota Law School's alumni magazine has just published a debate between my colleagues Professors Michael Paulsen and Heidi Kitrosser, and me, on the constitutionality of the NSA's warrantless surveillance program. Professor Paulsen, a noted and prolific advocate of expansive executive authority, argues that the program is constitutional; Professor Kitrosser and I disagree. All of it was written before the Supreme Court's recent decision in Hamdan. You can read the exchange here.

I'm sure everyone has general views about the advisability and constitutionality of the NSA program, but please comment only if you've actually read the exchange and have some observation about the arguments made therein.

Anderson (mail) (www):
Dean Paulsen's hand-waving is disappointing; I was hoping for something more substantive, which reinforces my suspicion that there ain't no such thing.

Surveilling phone calls placed or received by Americans, in America, is not even remotely plausibly authorized by the AUMF, even if we leave aside the (for once, remarkably helpful) legislative history.

But Dean Paulsen seems not to have his heart in that--since he thinks Article II provides inalienable power to defend the country "by any means necessary," to coin a phrase, the effect of the AUMF would seem irrelevant.

Could we infer, on Dean Paulsen's reading, that the President's Article II powers allow him to detain Americans in this country, suspected of aiding the enemy, without charging them? I don't see why not. As Prof. Kitrosser puts it, that "proves way too much to be consistent with our constitutional system of balanced military and domestic powers."
7.19.2006 6:47pm
PatHMV (mail) (www):
I would note first that there appears to be a disconnect amongst the panelists about what phone calls are being intercepted, a key fact which impacts the conclusion reached under most theories. Your argument begins by referring to the warrantless interception of calls "in the United States". Professor Kitrosser, on the other hand, refers to the interception of "Americans' overseas calls", while Professer Paulsen refers to "overseas communications by persons in the United States" who have been in contact with Al Qaeda. As best I can determine, only the NSA knows at this point whether American-to-American, in-country calls were monitored. Similarly, whether the AUMF constitutes a declaration of war for the purposes of Art. I, sec. 8, clause 11 has a great impact on the resolution of the various issues. Unlike Professor Kitrosser, I believe that it is, in fact, a declaration of war.

On the substantive issue of the President's authority. I disagree with all the panelists. I agree with Paulsen that your argument gives entirely too short a shrift to the substantial weight which should be given to a declaration of war. The President's constitutional authority as commander-in-chief deserves more deference once war has been declared. On this point, however, I concede that Professor Kitrosser's reference to the specific reference to declarations of war in FISA is a strong one, and no direct rebuttal immediately springs to mind.

But I disagree with Professor Paulsen's conclusion that Congress lacks authority to restrict this surveillance. Article I, sec. 8, clause 14 of the Constitution clearly gives Congress the power to make rules for the government and regulation of the military. If Congress can enact the UCMJ, then it can surely prohibit particular tactics of war, such as surveillance activities under that power. Additionally, clause 18, the necessary and proper clause, also provides quite clearly that Congress can pass necessary and proper laws relating to "all other powers" vested by the Constitution in "the Government of the United States, or in any Department or Officer thereof". The President is such an Officer, so if his power stems from the Constitution, Congress can make necessary and proper laws for carrying that power into execution.

So, I read the AUMF to include in its broad authorization the power to intercept communications between enemy combatants, their sympathizers, and persons unknown in the United States. However, were Congress to expressly prohibit such a practice, then the President would be subject to impeachment were he to continue in defiance.
7.19.2006 8:39pm
Dale Carpenter (mail):
Thanks for the very informed and thoughtful comments so far.

To PatHMV: My reference to calls in the U.S. is meant (perhaps inartfully) to refer to the program as publicly described: calls between the U.S. and someone internationally that the executive says it thinks might be associated with terrorists.

But I don't think the constitutional conclusions are much affected by whether the calls to such a person are wholly internal or not. Paulsen would say, I think, that the program would be constitutional even if it extends to wholly domestic calls involving such persons. Kitrosser and I would say that the program is still unconstitutional; indeed I, at least, would be fortified in my conclusion.

You are right to note that we simply don't know how extensive these surveillance activities are. At times administration spokespersons have hinted that other programs might exist; yesterday in the AG's testimony, I thought I detected him suggesting that there are no other programs involving warrantless surveillance. This is merely interpreting winks, nods, and winces, however.

Your reliance on the Rules-and-Regulations Clause and the All-Other-Powers Clause to question the idea that the president's war powers are illimitable is the same basic idea I try to sketch in the exchange.
7.19.2006 9:17pm
PatHMV (mail) (www):
I'm afraid it's been too long since my Con Law classes for me to go much deeper on the relevance of whether the calls are wholly internal or not. I recall distinctly that the government's right to control international borders constitutionally allows searches of persons and objects crossing the border without any need for probable cause, or even reasonable suspicion, and regardless of the person's citizenship status. I confess that I have, since the beginning of the NSA debate, assumed that those cases would also allow for interception of cross-border phone calls. This assumption, however, is without benefit of actual research.

Turning to the statutory issue of whether FISA prohibits these interceptions, I've also wondered about the effect, on this program, of a particular part of the FISA definition of "electronic surveillance". Supporters of the NSA program (and I am one) often note that the NSA is monitoring calls from foreign persons (terrorist suspects) to cell phones, regardless of where that cell phone is located, in the U.S. or otherwise. In some cases, it is possible that the call is monitored without knowing where the phone being called is actually located. FISA defines electronic surveillance as electronic monitoring of a call to or from a United States person who is in the United States "if the contents are acquired by intentionally targeting that United States person".

Here, in many cases at least, the NSA is not intentionally targeting a United States person, but rather indiscriminately intercepting all calls made by the international person, regardless of location of the recipient. Also, "United States Person" includes only citizens, U.S. business entities, and lawfully admitted aliens. So, FISA does not require a warrant to intercept calls from a foreign person to an illegal alien. If NSA had no knowledge whether the individual being called by the foreign terrorist suspect is a U.S. citizen or lawfully-admitted alien or not, then I would argue that it could have no intent to target a "United States Person".

As a closing note, I would point out that other provisions of the FISA definition of electronic surveillance are not limited to "U.S. Persons" but apply to any interceptions which occur "within the United States", lending weight to the argument that the restriction of "electronic surveillance" of international calls to "United States Persons" must be given significance.
7.19.2006 10:03pm
Yankee_Mark:
For whatever reason my ISP's DNS stopped seeing volokh.com there for a while, but happily y'all 'exist' once again!.

I felt that you had by far the better of the exchange with Professor Paulsen and like Anderson above, I was quite disappointed not to hear some/any reasonable rationale or argument from Paulsen's side to support the idea that the Executive possesses this authority aside from "Because the C in C says so." Perhaps it is because there really and truly is none. Alas his section lost any sympathy at the assertion, "There's no doubt we are at war." One is boggled when comparing the mobilization of resources and life impact of the GWOT compared to Vietnam and Korea ... which allegedly were NOT wars but "Police Actions."

I'd have liked to see your argument include reference to the Constitution's Article I Section 8 phrase about Congress having authority to: "make rules concerning captures on land and water." Yet I've seen very few opponents of the "Article II on Steroids" view invoke it. Perhaps being a non-lawyer, I never took the class where it is explained why this is is not apt. :) I'll grant that captures of fighters and war materiel differs in some ways from the capture of information and signals intel. But even so, I'd say this undercuts the Administration theory dramatically.

But to me ... that Constitutional phrase is positively lethal to the Administration's arguments for Tribunals and it would seem to weigh heavily against other Executive overreach like the NSA and unreviewable 'unlawful combatant' designation that rely on Presidential supremacy in wartime. After all ... Congress can remove the President and many Executive appointees at ANY time! Your demonstration that the Preident lacks many of the imagined powers even during (explicitly) declared wars is also quite momentus.

Thanks for the great posting and keep up the good work!
7.20.2006 9:17am
Tracy Johnson (www):
Having prior experience sitting on my butt with earphones on as a cold-warrior, I can say only a few things. I have no legal background and the closest that I can be called is a "mess-deck lawyer". I'm retired now and never had access to this specific program, so I wouldn't know firsthand. (Even if I could talk about it.)

Some people forget that NSA is also half-military. They seem to think that it is only full of civilian surveillance operatives in suits. However if every operator in this program at NSA has been wearing a uniform all this time, then I don't see the problem under AUMF. Has anyone checked whether every participant in this program has been in uniform? Or is it a mixed civilian/military "shop"?

Secondly interception of communications of U.S. persons has always been a problem even before 9/11. However not knowing the details of the program, but knowing what standard procedures should be based on past experience, I would not think it a problem. Presuming of course, 1) all calls monitored originated outside the U.S. or 2) all calls originating in the U.S. connected to known enemies, AFTER the AUMF act of 9/18.

Lastly, almost all* pundits are fond of arguing the constitutionality of the program, but I never hear anyone arguing the technical details of the unclassified procedures themselves. Some of you may have gone so far as to read the pertinent Executive Orders, but as for technical details, have any of you ever read DoD Regulation 5240.1-R? It was well published before 9/11? (Although it is probably 5240.2 or .3 by now.)

("Almost all", actually I can't think of any, but used "almost" in case I missed one.)
7.20.2006 11:47am
Bart (mail):
This exchange gets to the nub of the matter better than most I have read. A couple observations, if I may:

1) I cannot disagree more with the implication of Dean Paulsen's argument that the President's power to direct and conduct intelligence collection somehow requires a declaration of war. The President's power to direct intelligence collection is derived from the provisions of Article II which grant him plenary executive power and more limited commander in chief (CiC) power. Neither of these powers are contingent on a declaration of war. Intelligence gathering occurs during peace as well as during war. Indeed, timely intelligence gathering is often key to avoiding war.

2) We need to define the scope of Presidential power at issue because it appears that Dean Paulsen and Professor Carpenter are talking past one another here. The courts of appeal which have examined this issue have all held that the President has an Article II power to conduct warrantless surveillance of foreign powers and their agents in the United States (whether citizens or not) for the primary purpose of intelligence gathering (not the gathering of criminal evidence) without breaching the 4th Amendment. The Supreme Court denied cert on these cases.

3) Arguments about unlimited executive power are nothing but rhetoric. Article II gave the President all general power over foreign policy and the military which was not expressly reserved to the Congress in Article I. The Administration has never claimed otherwise.

4) Therefore, the issue is whether there is any provision of Article I which provides Congress with the power to enact FISA to limit or eliminate the President's recognized Article II power to conduct warrantless intelligence gathering.

5) Professor Carpenter is one of the few critics of presidential power which has correctly identified this as an Article I question. He offers two provisions of Article I which he claims grant Congress authority to determine the targets of intelligence gathering through FISA.

6) The Necessary and Proper Clause [Art. I, Sec. 8(18)] grants Congress the power "To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof." This is simply an enabling provision which allows Congress to enact legislation to execute the other enumerated powers in the Constitution. The provision does not grant Congress any independent substantive powers and certainly not the blanket authority to enact any legislation which it feels is "necessary and proper." Therefore, we need to look towards other enumerated Article I powers to see if Congress has the authority to regulate intelligence gathering.

7) As an aside, the Necessary and Proper Clause only applies to this matter in that Congress used to to enact legislation creating the NSA so that the President could exercise his Article II intelligence gathering power.

8) Article I, section 8(14) grants Congress the power "To make rules for the government and regulation of the land and naval forces." However, application of this provision to FISA is very problematic.

9) By its own text, this provision is limited to enacting rules for the uniformed military services, which were at that time limited to the Army and Navy, but have subsequently multiplied to include the Air Force. The NSA is a civilian agency which provides occasional support to the military. It would not normally be considered to be a uniformed service.

10) Furthermore, even if intelligence gathering was limited to the uniformed services, this provision has always been understood to grant Congress the power to pass rules for the good order and discipline of individual service members through statutes such as the UCMJ. Congress has never attempted to use nor has any Court ever interpreted this provision to allow Congress to regulate the President's command functions over the military. Professor Carpenter concedes that the President has plenary power over "matters of core operational core of the military" such as choosing the landing zone for an amphibious invasion. I fail to see the difference between choosing which landing zone to invade and choosing which target against which to gather intelligence. This is a purely command decision which falls to the President.

11) I am unable to find a single provision of Article I whose text grants Congress the power to direct intelligence gathering nor any case law which interprets any provision to provide this power. Can any of you?
7.20.2006 4:38pm
J. F. Thomas (mail):
This exchange gets to the nub of the matter better than most I have read. A couple observations, if I may:

Your lengthy observations completely ignore the central issue in this NSA intelligence gathering/domestic wiretapping fiasco, and that is whether the President's powers extend to gathering intelligence in the U.S. on lawful U.S. residents without obtaining a warrant. Apparently even the president does not want to know the answer to this question as he blocked the Justice Department's own lawyers who are supposed to address such issues from being privy to the details of the program.

Nobody has ever argued that the president doesn't have the right to spy on foreigners or those in the country illegally. FISA doesn't even address that. The president has claimed that he has the right to spy on legal U.S. residents without a warrant. And although he claims that he is only spying on those calls that originate overseas, apparently he believes he has the right to tap entirely domestic calls without a warrant--he just claims not to have done it. I personally think he is lying as he has already lied numerous times regarding this and other programs.

As to Dean Paulsen, his central assertion seems to rely on the "fact" that the AUMF was a declaration of war. I don't know how he comes to this conclusion. Although the president contiually talks about the war on terror and acts as though we are at war, AG Gonzales has stated repeatedly in official testimony that a legal state of war does not exist and has not existed between the U.S. and any entity or country. So how Dean Paulsen can contend the AUMF is a declaration of war when even the administration says it isn't is completely bizarre.
7.20.2006 5:25pm
Bart (mail):
J. F. Thomas replies:

Your lengthy observations completely ignore the central issue in this NSA intelligence gathering/domestic wiretapping fiasco, and that is whether the President's powers extend to gathering intelligence in the U.S. on lawful U.S. residents without obtaining a warrant.

The case law which held that the President has the power to gather intelligence without a warrant against agents of foreign powers does not distinguish agents on the basis of citizenship. Indeed, is appears that the defendants in those cases were legal residents of the United States. See, e.g., United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980), cert. denied, 454 U.S. 1144 (1982); United States v. Buck, 548 F.2d 871 (9th Cir.), cert. denied, 434 U.S. 890 (1977); United States v. Butenko, 494 F.2d 593 (3d Cir. 1974) (en banc), cert. denied, 419 U.S. 881 (1974); United States v. Brown, 484 F.2d 418 (5th Cir. 1973), cert. denied, 415 U.S. 916 (1974).

Indeed, President Clinton used this authority to break into and search the home of American citizen, Aldrich Ames, on the ground that he was acting as a foreign agent.
7.20.2006 5:37pm
J. F. Thomas (mail):
Indeed, President Clinton used this authority to break into and search the home of American citizen, Aldrich Ames, on the ground that he was acting as a foreign agent.

Of course FISA did not cover physical searches at the time of the Ames (it does now). All of the other cases you cite except for Hung predate FISA. I'm not going to look up Hung since you are obviously being dishonest on all your other examples so I bet it doesn't involve a wiretap.

I forget, has the president claimed that FISA is unconstitutional?
7.20.2006 6:11pm
Bart (mail):
J. F. Thomas:

I forget, has the president claimed that FISA is unconstitutional?

Justice appears to be dancing around the constitutionality issue.

The Justice white paper strongly implies that FISA is unconstitutional when applied to intelligence gathering, but not criminal evidence gathering.

Justice continuously uses FISA for secret warrants to gather criminal evidence in national security cases and obviously does not want to lose this ability.

If they argue that FISA is unconstitutional for the purposes of intelligence gathering, an aggressive court could decide the statute is unconstitutional for any purpose. Civil libertarians have attacked this secret warrant system for years.

Therefore, the Justice white paper argued that the AUMF waived FISA for this NSA program against al Qaeda and the court need not consider the constitutionality issue under constitutional avoidance doctrine.

However, the recent Hamden decision put the AUMF waiver argument in serious doubt and has smoked Justice out. In a recent letter to Senator Biden, Justice all but called FISA unconstitutional.
7.20.2006 6:48pm
Medis:
Bart,

As an aside, another Article I hook for FISA is Congress' power to regulate commerce.

But I wanted to address your claim about the Government and Regulation Clause that "Congress has never attempted to use nor has any Court ever interpreted this provision to allow Congress to regulate the President's command functions over the military."

That strikes me as inaccurate, at least if you are referring to general laws like FISA (FISA, of course, neither order nor prohibits electronic surveillance of any particular target, but rather requires that certain procedures must be followed when conducting electronic surveillance). For example, in Swaim v. U.S., 165 U.S. 553 (1897), the Supreme Court held that the President had the inherent authority to convene courts-martial. But they also substantively applied the Articles of War (predecessor to the UCMJ) to courts-martial convened by the President under his inherent authority.

More broadly, the UCMJ contains all sorts of definitions of substantive crimes. This practice goes back to the original Revolutionary War Articles of War, which among other things mandated, "Whenever any officer or soldier shall be accused of a capital crime, or of having used violence, or committed any offense against the persons or property of the good people of any of the United American States, such as is punishable by the known laws of the land, the commanding officer and officers of every regiment, troop, or party, to which the person or persons so accused shall belong, are hereby required, upon application duly made by or in behalf of the party or parties injured, to use his utmost endeavors to deliver over such accused person or persons to the civil magistrate; and likewise to be aiding and assisting to the officers of justice in apprehending and securing the person or persons so accused, in order to bring them to a trial."

I've never seen a court doubt that the application of general laws defining crimes to the military was a proper exercise of Congressional power, even though criminal laws have the practical effect of limiting the choices that military commanders, up to and including the President, could make. In other words, Congress has the power to protect the good people of the United States, and others as it sees fit, from what it considers to be crimes, including when committed by military personnel.

So, if Congress decides to provide certain procedures for conducting electronic surveillance (pursuant to its Commerce Clause powers), and it defines violations of those procedures as a crime, it can apply that crime to the armed forces as well as others. To use the language of the original Articles of War, FISA is a known law of the land which defines an offense against the persons of the United States, and Congress can require the military to obey such laws.

I think the bottom line is that the President as Commander in Chief has all the discretion military commanders ordinarily have. But the discretion of military commanders has never allowed them to order military personnel to commit crimes, and Congress has pretty broad power to define crimes (usually pursuant to the Commerce Clause).
7.21.2006 1:19am
Medis:
Sorry, I realize that I was unclear about something: I don't think Congress is limited by the Commerce Clause when defining crimes for the armed forces. Just as Congress has a general power to provide criminal legislation for the District of Columbia, I think the Government and Regulation Clause provides Congress with a general power to define crimes for the armed forces. So, there need not be a separate Commerce Clause rational for FISA as applied to the armed forces.
7.21.2006 1:28am
M. Lederman (mail):
FWIW (shameless plug coming), see the documents linked here, most recently this one, addressing these issues. And see here for a brief explanation of why Michael Paulsen, like Arlen Specter, is making a category mistake.
7.21.2006 7:35am
Just an Observer:
I note that not even the administration has been so crass as to argue that Congress lacks the Article I powers to regulate surveillance, only that congressional power is somehow cabined by "inherent" Article II authority. Youngstown showed the reverse to be true, and the Hamdan plurality reaffirmed it.

In fact, in its public statements, DOJ still shrinks from saying that FISA is facially unconstitutional, as Bart's position implies. The adminstration only hints that it might be -- hardly a compelling argument even in a political venue, and far short of the conviction it would take to advance such an argument in a real court.

But of course, the adminstration seeks to avoid making any arguments in a real court with real judges. That is the very core of its strategy.
7.21.2006 10:37am
M. Lederman (mail):
JaO: Actually, now the Administration *has* "been so crass as to argue that Congress lacks the Article I powers to regulate surveillance" -- the President's surveillance, anyway. See the recent exchange of letters, linked above.
7.21.2006 10:58am
Just an Observer:
M. Lederman,

The way I read the Moschella letter to Schumer, DOJ is still weasling on that point.

The letter does not say forthrightly that FISA is without constitutional authority, only that in comparison to the UCMJ, "There is no similarly clear expression in the Constitution of congressional power to regulate the President's authority to collect foreign intelligence necessary to protect the Nation." (My emphasis)

That stops well short of saying that Congress definitely lacks such authority. (I would pay big dollars to hear Paul Clement try to defend that squish in oral argument. "What do you mean, General, the President disregarded the statute because he thought it might be unconstitutional?")

Not only that, the argument in Moschella's letter still is couched only in terms of Article I vs Article II. No one is disputing Congressional power to regulate criminal surveillance, by the government or anyone else, under Title III, for example. The DOJ argument is not really an Article I argument, as Bart implies, but an Article II argument by a back door.

All of which, of course, Youngstown deals with quite handily.
7.21.2006 1:26pm
Medis:
It is hard to make any sense these days of the Administration's legal arguments. But I'd actually suggest the latest theory is basically a "the Constitution reflects a pre-9/11 mindset" argument. In other words, there is a grudging concession that maybe Congress does have Article I powers regarding war, but only in the sense of "war" as it was known in the 18th Century. So, any power to regulate new incidents of "war" in the 21st Century sense (and here keep in mind that there can be a "war on terror", as opposed to a war with a particular enemy) vests solely under Article II, whereas the Article I powers over war were fixed in 1789.

Or to put it in more concrete terms, in the Revolutionary War Articles of War, the Continental Congress actually provided protection for fish ponds ('tis true--see Article 16). But protection for electronic communications? Forget about it.
7.21.2006 9:25pm
Evelyn Blaine (mail):

I am unable to find a single provision of Article I whose text grants Congress the power to direct intelligence gathering nor any case law which interprets any provision to provide this power. Can any of you?


This is, I think, at the heart of Professor Paulsen's position. (Although it's difficult to say, because of Paulsen's very unusual views on the nature of the executive power, which come across in his other articles. I'm not sure how much they affect his reading here.)

There are, I believe, four relevant provisions of Article I. The first two are the government and regulation clause and the necessary and proper clause, but I tend to feel that excessive reliance has been placed on these in the debate at the expense of the other two (this is, I think, a limitation of Prof. Carpenter's and Prof. Kitrosser's otherwise quite persuasive responses). The other two provisions are:

1) The declare war clause (sec. 8, cl. 11). This includes the power to authorize not only general but limited wars; see, e. g., Bas v. Tingy, 4 U.S. (4 Dall.) 37, 43 (1800) (Chase J.'s seriatim opinion):
Congress is empowered to declare a general war, or congress may wage a limited war; limited in place, in objects, and in time. If a general war is declared, its extent and operations are only restricted and regulated by the jus belli, forming a part of the law of nations; but if a partial war is waged, its extent and operation depend on our municipal laws.
Cf. id. at 45 (per Paterson J.):
An imperfect war, or a war, as to certain objects, and to a certain extent, exists between the two nations; and this modified warfare is authorised by the constitutional authority of our country. It is a war quoad hoc. As far as congress tolerated and authorized the war on our part, so far may we proceed in hostile operations
I take the view expressed by Justices Chase and Paterson to be the proper interpretation of the declare war clause - indeed the only one that makes any sense in terms of the fundamental structure of separation of powers. When Congress is silent, the President has broad powers to act to "repel sudden attacks" (as Madison and Gerry put it). But when Congress prohibits an action, he must obey that prohibition. This is in conformity with the Framers' broad preference for reciprocal veto arrangements, whereby positive acts generally require the consent, or at least acquiescence, of more than one branch.

2) The commerce clause (sec. 8, cl. 3). This was mentioned by another poster, but I feel that its centrality has been underestimated. This clearly includes the right to regulate foreign telecommunications in pursuit of a legitimate governmental objective, even when that objective is not wholly economic; see, e. g., Pensacola Telegraph v. Western Union, 96 U.S. 1 (1878); United States v. South Eastern Underwriters Assn., 322 U.S. 533, 549-550 (1944) ("[n]ot only, then, may transactions be commerce though non-commercial; they may be commerce though illegal and sporadic, and though they do not utilize common carriers or concern the flow of anything more tangible than electrons and information") as well as the Radio Act of 1927, Federal Communications Act, 47 USC sec. 151, and cases arising therefrom. Clearly, balancing national security against personal privacy is a compelling governmental interest, a fortiori in wartime: why then should Congress not have broad discretion to use its commerce clause power to set this balance any way it wishes? It might be objected that this power has to yield to the commander-in-chief clause if the President disagrees with Congress about the balance to be struck -- but if that were the case, then wouldn't other aspects of the commerce clause power also have to yield under similar circumstances? No one argues that the President could unilaterally lift tariffs on militarily useful materials simply because he disagreed with Congress over the proper tariff level, or suspend the navigation laws as applied to US allies simply because it might be helpful to him in fighting a war; here even the most exuberant advocates of executive power are willing to concede that Congress's judgment controls. I contend that the logic of this argument also determines a clear answer to the present case, even considered in abstraction of all of Congress' other relevant powers.
7.22.2006 2:18am
M. Lederman (mail):
Evelyn: You're absolutely right about the Commerce Clause. That's the Article I authority we led with in our letter to Congress. And it's almost certainly the authority Congress had in mind (not that that's the test) when it enacted FISA.

You're also technically right about the War Power, but since FISA was enacted in a time of peace, it's perhaps a bit of a stretch to explain how its limitations here can be said to be a limitation on the less-than-full war authorized against Al Qaeda. But it is another Art. I authority, at least for the 15-day wartime limit in section 1811.
7.22.2006 8:27am
Just an Observer:
To clarify, the statement Evelyn quotes above is not from Prof. Paulsen, but from the commenter Bart:

I am unable to find a single provision of Article I whose text grants Congress the power to direct intelligence gathering ...


In other blogs, Bart has tried to take on the three constitutional authorities Marty and his colleagues correctly cite in their letter to Congress (the Commerce Clause, the Government and Regulation Clause and the Necessary and Proper Clause), and failed ridiculously. Bart's attempt at refutation would also have us strike down most of the U.S. criminal code, much of the New Deal, and reverse McCullough v Maryland. Bart claims to be a "textualist," but he reads limitations into the Rules and Regulation Clause that simply do not appear in the plain text.

(Besides, Bart's quote above distorts the facts into a strawman. Congress does not "direct intelligence gathering" under FISA. The executive does. Congress merely enacts rules that regulate generally what is permissible.)

As the letter from the legal scholars points out, it is frivolous to argue that Congress does not have Article I authority to regulate domestic surveillance. Which is why DOJ will not actually make a straightforward statement about Article I.

In all of this, it is important to remember the context. Moschella's letter to Congress, like DOJ's so-called "white paper," is a political instrument, not a legal brief. The purpose is not to prove a legal point, but to blow smoke and buy time for a political fix. DOJ shrinks from making the same "arguments" in a real court.
7.22.2006 10:20am
Medis:
JAO,

I agree that there is a certain absurdity in applying a good faith legal analysis to what is essentially a political instrument. Nonetheless, I don't think the two categories are completely distinct. In particular, I think there is still enough respect for the rule of law among the American public that a majority of them would not support the Administration conducting an illegal program, even if some of that majority would think it was otherwise a fine idea.

So, I think the constitutional and legal "Whack-a-Mole" commentators in public fora are forced to play with the Administration's quasi-legal (actually political) arguments still serves a legitimate purpose--namely, informing the public to the effect that the Administration's arguments are in fact without legal merit. Of course, I have no idea if those efforts are effective in achieving that purpose, but I think the alternative--leaving the field to the Administration--is a risk not worth taking.

Incidentally, I realize you weren't arguing that we should leave the field to the Administration. I was just offering my own reasoning for continuing to participate in and encourage discussions of these issues despite your well-taken observation.
7.22.2006 12:19pm
Just an Observer:
Medis,

I think we do not disagree.

And you correctly discern that I do not criticize scholars such as Marty Lederman from challenging the content of the administration's legal "arguments" in the political realm; quite the opposite. I try to do the same thing is the less exalted venue we call the blogoshere.

The point I keep returning to is that those of us who engage in such conversations should never concede that political venues are all there is. If there were proper judicial review of these questions, the rigor of that process would never allow DOJ to make frivolous arguments just to blow smoke.

That, in turn, leads me to focus my own political efforts on that end -- to shame the President into facilitating full review by the courts, instead of avoiding it. (And for the record, I do not include the sham judicial process negotiated by Specter, Bush and Cheney in that description.)

My own political mantra is thus reduced to a bumper sticker:

Mister President, tell it to the judge.
7.22.2006 1:10pm
Just an Observer:
BTW, I got distracted by Bart's interruption, and rudely neglected to comment on the original post. (I tried to do so a few days ago, but failed for some technical reason when Volokh's main server was down.)

My basic reaction to the published debate was that Dean Paulsen, by adopting an excessively ambitious argument based on his reading that the AUMF is effectively a declaration of war, fell into to the dilemma posed by Prof. Kitrosser. As she correctly noted, FISA's provisions explicitly cover "Authorization during time of war" and contemplate the continued operation of its procedures after a 15-day grace period.

In this regard, FISA is one of multiple provisions in the U.S. code that are contingent upon or triggered by a declaration of war. Paulsen's theory, unsupported by any authority, would assume that all such provisions are superseded by a declaration; quite obviously, that is the opposite of congressional intent.
7.22.2006 2:35pm