As Orin pointed out last December, the strongest argument -- quite possibly an ultimately correct argument -- against the NSA program is that it violates not the Constitution, but the Foreign Intelligence Surveillance Act, which bans "engag[ing] in electronic surveillance under color of law except as authorized by statute." The government has responded that (1) the Authorization for the Use of Military Force implicitly authorizes certain warrantless surveillance, and that (2) the President in any case has inherent constitutional powers, powers that Congress can't limit (and that the Fourth Amendment doesn't limit, for reasons noted below, to engage in national security surveillance). Orin's post (a must-read) suggests that the government's responses are on balance not persuasive, and that the program probably violates FISA.
So it's possible that the court got the result right -- in my view, not on the First and Fourth Arguments, but on the FISA point. Nonetheless, if the court's FISA analysis is mistaken, then the other arguments (the separation of powers and the inherent power arguments) don't provide any independent basis for its decision. The separation of powers point rests on the assertion that "The President, undisputedly, has violated the provisions of FISA"; and the inherent power argument, which is long on rhetoric but short on detailed analysis, rests on the assertion that "Not only FISA, but the Constitution itself has been violated by the [program]." If the First and Fourth Amendment analyses are mistaken (as I think they are), and if the FISA analysis is mistaken, then the other analyses provide no independent foundation for striking down the program.
So, I think (as Orin's post suggested), the real foundation of this decision is FISA. If Congress prohibited this sort of eavesdropping via FISA, and didn't carve out an exception under the AUMF, then the program is indeed illegal (since I don't think the President's inherent power argument much works here, even as to violations of a statute). If FISA doesn't apply, though, then the program is permissible, because there's no First or Fourth Amendment violation here.
All Related Posts (on one page) | Some Related Posts:
- NY Times article on NSA wiretapping quotes bloggers.--
- Should We Care About The Reasoning In Judge Taylor's Opinion? :
- Hardly a "Hard-Left" Position:...
- Jack Balkin on the Eavesdropping Opinion:
- The NSA Eavesdropping Opinion, the FISA Claims, and the Separation of Powers / Inherent Power Claims:
- The NSA Eavesdropping Opinion and the First Amendment:
- The NSA Eavesdropping Opinion and the Fourth Amendment:
- Federal District Court Decision Striking Down NSA Eavesdropping Program,
Says the "Dog"
[JunkYardLawDog: Please calm down and avoid pointless personal insults.]
Says the "Dog"
If that's so then it is undisputed that the program violates FISA (although the government would contend that FISA is not operative law).
How is it possible that FISA could not apply to domestic warrantless wiretapping of communications of US citizens?
Do you claim that if FISA does not apply, no Fourth Amendment warrant requirement is implicated in the wiretapping of US citizens?
Because (a) it’s not wiretapping and (b) the communications are international not domestic.
1) The program is 'illegal' because it violates FISA
2) BUT, FISA, insofar as it reaches this program is unconstitutional as an infringement on the executives express powers
3) Therefore the program is proper
Is this a possible scenario?
Check the box, yes, no, maybe.
There are other arguments, although I'm not sure the Administration is making them or that they would stand up--for example, that FISA only applies to communications where there is a reasonable expectation of privacy, which cannot apply to international calls since foreign governments routinely intercept whatever they want without any warrants. Probably the lawyers here could explain why this argument doesn't fly.
At the time the Supreme Court issued its unanimous opinion in Clinton v. Jones, we had troops in the field in several places, including conducting bombing runs in Iraq and had troops in Bosnia as well as elsewhere. Those were Congressionally authorized. Should the President have told the Supreme Court that the executive branch's operations are being conducted in full complinance with the constittuion and that is the info he is going to provide? If you don't believe so, why?
Interposing warrant requirements in the middle of a battle violates the separation of powers big time.
Under this reasoning, Congress has no power to regulate the President's conduct vis-a-vis US citizens in a "time of war." Under your definition of "battle" which is essentially the same as "time of war," the President can tell Congress to go f—- itself anytime it wants to surveil anyone anywhere by any means. Thus, the FBI could walk into your home, take your computers, guns, etc., and your attempt to appeal to Congressional statutes prohibiting that would be met with the argument you just adopted. Wow.
I'm not quite sure how it can be considered "tactical battlefield" intel when then information literally refers to the entire country (and beyond).
Also, why is a warrant requirement any more an imposition on "commander-in-chief" authority (and not instead a proper making of "rules for the government and regulation of the land and naval forces")--analagous to outlawing certain weapons on the battlefield (explosive small arms bullets, for example)?
Isn't it amazing that there are people who actually believe our country should be run in this way? How pleased our Founders must have be to have thrown off the yoke of monarchy.
Here is the "Commander-in-Chief" clause which your entire argument hangs on:
Now, compare that clause to the following express grants of power to the Congress of the United States:
T
Now, why do I think if Clinton or Carter were President, all of you would be, you know, taking the Constitution seriously. And not just pretending that the Constitution consists entirely of one sentence in Article II.
1) The program is 'illegal' because it violates FISA
2) BUT, FISA, insofar as it reaches this program is unconstitutional as an infringement on the executives express powers
3) Therefore the program is proper
Is this the government's position? Did they show up in court and actually make such an argument? (I'm not talking about making arguments in public and political venues, such as the 42-page press release called a "white paper.")
I know DOJ somehow defended the merits of its position in oral argument before Judge Taylor, but I don't know details beyond paraphrased new stories. As I understand it, the governemnt put most of its weight on the state-secrets-privilege, and was forced to argue the merits only because Taylor would not accept that claim of privilege up-front.
According to Taylor's opinion, the government merely ""suggested the unconstitutionality of FISA."
Perhaps now the administration will have to offer a more robust brief in a real court.
The only conclusion that can be reached is these people who believe that the only Constitutional clause relevant to any challenge to the President's conduct is the sentence that "The President shall be Commander in Chief of the Army and Navy of the United States" simply hate America -- or at least the America about which I was taught in the public schools of this country.
It seems to me that our old concepts and laws designed to fight national states in declared war don’t apply to 21st Century asymmetric warfare. Am I missing something?
Yeah, I know, it's a stretch. I can dream, can't I?
Um, because in Clinton v Jones, then President Clinton tried to claim that he was immune from civil suits brought by a private citizen because he was the President. That he was Commander in Chief or trying to exercise his powers as Commander in Chief wasn’t part of that issue. Also the military actions in Iraq and the Balkans occurred in 1998. The Supreme Court issued its unanimous ruling on Clinton v Jones in 1997.
What Thorley Winston said.
Steve:
Its about throwing off the yoke of a monarchy run by a group of black robed oligarchs. Its in the tradition of the founders actions. You on the other fight to protect and extend the unelected monarchy of high law priests in black robes.
I think the founders would be proud of those who want to defend the country from its enemies at a time of war and want to take measures far less drastic than used by the UK and all of Europe to conduct enemy operations and security intelligence gathering. I think they would laugh themselves silly and then vote to impeach the federal judge so strikingly violating the separation of powers between the judiciary and the commander in chief. Then I think they would all get drunk a go to the judge's court and slap her/him silly.
Says the "Dog"
The answer is to change the laws by lobbying Congress. Re the hypotheticals you posed, those are situations that we are not in right now and we don't make law based on wild hypotheticals. Nevertheless, if it really concerns you, lobby the Congress to amend FISA to make clear that in the case of an actual foreign invasion of the United States or in the unlikely event of a civil war, the President has authority to intercept communications without FISA warrants. Democracy is a wonderful thing.
That would be called "begging the question."
Suppose a foreign power invaded the US and had troops actively fighting the US armed forces. Would the President have to go to the FISA court, or any other court, to intercept enemy communications?
Assuming that such intercepts somehow violated FISA, the President could surely (1) intercept as needed and (2) ask Congress, at the earliest opportunity, to amend FISA for the exigency at hand. Similar to Lincoln's extra-constitutional activities during the Civil War.
But given that 9/11 was 5 years ago, and that Congress has had little trouble sitting, the hypothetical doesn't seem terribly on-point; perhaps it wasn't meant to be.
It seems to me that our old concepts and laws designed to fight national states in declared war don’t apply to 21st Century asymmetric warfare. Am I missing something?
Let's see: FISA was passed in, what, 1978? After we'd fought Vietnam and had plenty of experience with Soviet infiltration of the U.S. How is 21st century asymmetric warfare so completely different? We didn't have terrorists before 1978?
Besides that, what you're "missing" is that, if the Executive thinks the framework needs to be changed, there are ways of doing that legally. The problem here is, and has been since the NSA program was blown, that the Executive decided it could unilaterally disobey the law.
If we're going to trade liberties for security, we need to be doing it in a public debate with the cards on the table. Otherwise, we might as well throw the Constitution into the shredder and let the President &Congress fight out whether we're a monarchy or an oligarchy.
The entire separation of powers section of the decision depends on FISA . . . but the court specifically ruled that the constitutionality of FISA was irrelevant. Huh? If FISA is unconstitutional, it's because Congress has no power to act; if Congress has no power to act, then the President can't be violating the separation of powers by ignoring Congresss's act. So this portion of the opinion cannot hold unless FISA is constitutional; if the constitutionality of FISA is irrelevant, so is the separation of powers question.
Moving on, the question of the AUMF vis-a-vis FISA runs into the problem that if FISA's validity is not relevant to the decision, wheether the AUMF modifies it or not is irrelevant. So another portion of the decision is, by the decision itself, irrelevant.
Now, as mentioned elsewhere, the First Amendment violation is dependent on the Fourth Amendment violation. So this section of the decision is a side issue; it is only relevant if the Fourth Amendment is violated.
So what's left? Well, the Fourth Amendment portion of the decision repeatedly cites FISA violations. All these specifit cites are similarly irrelevant, because whether FISA is of legal force is, according to the opinion itself, irrelevant.
What does that leave us with? The only part of the opinion that survives the opinion's own declaration of FISA's irrelevance is the claim that the Fourth Amendment requires warrants for searches. But case law is clear that it is not always the case, and no post-Keith precedent on foreign intelligence surveilance is cited even once that I noticed. All that is made is the statement that warrantless searches are to be considered unreasonable on their face.
That's the sole leg this decision stands on, having cut off its others by declaring FISA's constiutionality irrelevant.
So I take it that your answer is “yes,” absent new legislation, we would need to get a FISA warrant, perhaps retroactively, to monitor the communications of an invading army. Do you suppose we intercepted the communications of the British during the War of 1812, and these intercepts violated the constitution? In any case, my “wild hypotheticals” (why are they wild?) are only a start. I asked where the boundaries are. We might already have POG combatants as “sleeper” cells in the US, in other words, members of an invading army out of uniform. As things stand, we can’t intercept their communications without a warrant. What’s more troubling is how do you get a warrant for “data mining” where you don’t know the target and the exact nature of the material.
AFAIK, the administration did not actually argue in court that FISA is unconstitutional. It has not even made that claim forthrightly in its out-of-court PR statements.
Judge Taylor's opinion said the government merely "suggested the unconstitutionality of FISA." As I understand this case from paraphrased press reports, DOJ did not want to argue the merits at all, putting its weight on the procedural question of state-secrets privilege. DOJ lawyers made some sort of defense on the merits after Taylor refused to dismiss on those grounds. Whateever they said, apparently it was said without conviction.
The entire strategy of the administration has been to avoid judicial review of such core legal arguments, while spinning them in public and playing for a political solution in Congress. Perhaps now it will be obliged to brief the question robustly in a real court. If DOJ wants to claim that FISA is unconstitutional, a claim no administration has ever made, let it actually make the claim.
What the Congress cannot do is interpose itself (or the courts) into real-time tactical decisions about whom to surveil within these broad legal parameters. The very meaning of Commander-in-Chief entails exclusive supreme authority over military decisions taken during the course of operations. We can't have judges ruling on individual artillery strikes or bombing missions or communications intercepts. That is neutering the executive branch in one of its core functions, and is a clear violation of the separation of powers.
Also, if you want to go with the "we are at war" argument, does it matter that Congress has not formally declared war, it has only issued an Authorization to Use Military Force. For those who say there is no difference, I say, look again. The Congress Research Office wrote a long paper on these historic differences between an AUMF and a Declaration of War. And, how is the NSA' interception of communications in the US a "use of military force"? It is not.
And that is part of the reason that you just can't say, CinC on his side of the ledger and then Commerce Clause on Congress' side, and then when you add in regulating the military, etc. it tilts to Congress. Because, in that case, Congress, having more power granting clauses, will always win. But that would defeat the whole concept of an Executive.
Of course, Judge Taylor ignored this, just mentioning the CinC role, and just slid around the entire debate by mentioning Jackson's Youngstown concurrence.
Judge Taylor can hardly be faulted for not analyzing and answering "what has been rehashed here for months."
Can you point to any arguments the government actually made in her court that resemble those you just rehashed above?
Do you really think this silly argument is likely to persuade anyone of anything? Of course an invading army is not entitled to constitutional protections, nor to the protections of the FISA statute. If you want to claim that, improbably, the definitional sections of FISA actually apply to members of an invading army, you're going to have to cite something.
We might already have POG combatants as “sleeper” cells in the US, in other words, members of an invading army out of uniform. As things stand, we can’t intercept their communications without a warrant.
It's a virtual certainty that al-Qaeda and Hezbollah, among others, have agents in the U.S. If they're citizens, whether we like it or not, they have constitutional rights. If they fit the definition of persons protected by the FISA statute, then they have rights under that statute.
I'm not thrilled about it - I wish we had some foolproof process by which we could line these people up and shoot them. But if you're going to say that a U.S. citizen forfeits their constitutional rights by aligning themselves with al-Qaeda, then you set us up for a Jose Padilla scenario where the government, by unilaterally declaring someone guilty, can free itself of the obligation to actually prove them guilty. You or I could be deemed to be members of al-Qaeda and we would have no process to allow us to prove otherwise. It would be an untenable situation.
We've had our fun here, but I think the Administration is well aware that testing its various Article II theories in court is only likely to generate even more unfavorable precedents.
I was trying to play nice, or at least that thought did occur to me.
Believe me what you have termed a gratuitous insult is about 1/1000th of what I think this particular federal judge deserves and what her unconstitutional order enjoining the commander in chief from gathering battlefield intelligence at a time of war deserves to have said about her and it.
I can't think of a more bizarre and offensive power grab by this judge and many in the judiciary than to violate the separation of powers embedded in the constitution by attempting to order what battlefield intelligence gathering can be done by the commander in chief at a time of war. It is no different than ordering the commander in chief to deploy troops in specific numbers and arrangements and to order the president at a time of war how, when, where, and with what he can engage the enemy.
Says the "Dog"