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Clinton Official Defends Specter Bill:

John Schmidt, who served as Associate Attorney General for four years under president Clinton, has an article in the Legal Times defending Senator Specter's legislation that would, among other things, provide judicial review of the National Security Agency surveillance program. Schmidt's essay is the strongest, and most coherent, articulation of this perspective that I have seen to date, so it is well worth a read (even, perhaps especially, if one disagrees).

Schmidt argues that the President has inherent executive authority to conduct surveillance on foreign enemies and that FISA did not limit this authority. From that perspective, Schmidt argues, enacting the Specter bill would be wise (although not necessary).

the history of FISA's exclusivity provisions demonstrates that they were a mistake from the beginning. Far from protecting the rule of law, they ignore the law of the Constitution. Eliminating them now would help end confusion about the president's authority in this critical area of national security.
Among other things, Schmidt argues, FISA's drafters and contemporary legal scholars did not view the statute as the exclusive means for authorizing surveillance.
[Ford Attorney General Edward] Levi assured Congress that President Ford would use the FISA process in all circumstances he could then anticipate. But he warned that the unpredictability of foreign threats to the nation and the likelihood of ongoing changes in communication technologies made it "extraordinarily dangerous" to pass a statute that did not acknowledge the president's retained surveillance power.

"The very nature of the reserved presidential power, the reason it is so important," said Levi in his congressional testimony, "is that some kind of emergency could arise which I cannot foresee now, nor, with due deference to Congress, do I believe Congress can foresee."

Levi emphasized in congressional testimony that there is "a presidential [surveillance] power which cannot be limited, no matter what Congress says." But he noted that Congress had an important role to play in setting forth "the understanding of the constitutional power" and that "it would be most unfortunate if it were suggested that those who passed this legislation thought that there was no such constitutional power in the hands of the president beyond the scope" of FISA.

Levi's view that the proposed statute must disclaim any intent to deprive the president of his Article II power was supported in congressional testimony by the nation's leading constitutional scholars. The late professor Herbert Wechsler of Columbia University School of Law said that the legislation "necessarily reserves" the constitutional power of the president. Professor Paul Mishkin of the University of California's Boalt Hall School of Law explained that a provision "which disclaims any intention to limit any ultimate inherent power which the president may have . . . clearly goes as far as Congress constitutionally can to establish and maintain legislative controls" in the area of wiretapping. Francis Allen, then the dean of the University of Michigan Law School, observed, "Congress is hardly in a position to undertake a full and a definitive statement of the limits of presidential power in these areas under all possible future contingencies."

In an interesting twist, Schmidt argues that the Specter bill will, as a practical matter, increase the executive's accountability in the exercise of this authority.
The president's power to order surveillance of a foreign enemy that is planning to attack this country is a practical fact. The Specter bill does not define the limits of that constitutional power but simply acknowledges its existence and creates a judicial mechanism for the review of its exercise. Senators and congressmen who vote for the legislation can continue to believe, if that is their view, that Bush went beyond the constitutional limits in approving the current NSA program.

On the other hand, if Congress rejects the Specter bill, then the president, regardless of what individual senators or congressmen may believe about the limits on his power, will continue to exercise that power without any constraint other than his own constitutional judgment in circumstances where the current FISA process is unworkable.

For a quite different perspective, see the various postings on the subject at Balkinization, including these two posts by Marty Lederman and this one by David Barron (among many others on the blog that address the subject).

Ship Erect (mail) (www):
Senators and congressmen who vote for the legislation can continue to believe, if that is their view, that Bush went beyond the constitutional limits in approving the current NSA program.

This is really quite clever! Did Schmidt think of this entirely on his own? By voting for the Specter bill, Dems can short-circuit the "terrorist lovers" Republican smear while retaining the legal and moral high ground that Bush's original NSA program was wrong because it lacked oversight. Who is cunning enough to run to Bush's right on surveillance, though? Hillary?

Of course, this is purely a political calculation. We have no idea about those mysterious other programs Bush has authorized, and approving the Specter bill would be tantamount to approving those as well--if the NYT ever revealed anything about those programs, Bush would certainly say that Democrats also agreed to them by voting for the Specter bill. I can also imagine Bush issuing a signing statement saying that he reserves the right to ignore this law at his whim, making its passage ultimately meaningless.
9.19.2006 10:50am
Anderson (mail) (www):
Levi always insisted that the proposed law recognize explicitly that it was not "exclusive" and that the president would always retain the constitutional power to order surveillance of a foreign enemy without court approval in circumstances not covered by the statute.

Okay. Is that just Levi's wishful thinking, or *did* FISA explicitly state that it was non-exclusive? Because if it did, a lot of the discussion over the past few months seems a bit misplaced ... odd that Medis and Kerr and Balkin and Lederman and so many others failed to notice that.

Oh, wait:

After Ford and Levi left office, however, the draft FISA statute was changed to eliminate the explicit recognition of retained presidential power on which Levi and the constitutional scholars had insisted. The revised bill passed Congress and was signed into law by President Jimmy Carter.

So we're supposed to interpret FISA based on an intent that was expressly NOT stated?

Griffin Bell, Carter's attorney general and a former federal judge, told Congress that FISA "does not take away the power of the president under the Constitution. It simply, in my view, is not necessary to state that power. So there is no reason to reiterate or iterate it, as the case may be. It is in the Constitution, whatever it is."

That is a remarkably thin reed. Maybe it's "not necessary to state that power" b/c the power doesn't actually exist, or exists only insofar as it's in the Constitution? The "whatever it is" certainly doesn't suggest that Bell shared Levi's views.

And Schmidt's hypo of the President's not being able to order instant surveillance of airports where attacks were suspected, ... well, it's a lie. Sorry, but given the express 72-hour retroactive warrant capacity in FISA, there's nothing else to call it.
9.19.2006 11:03am
Just an Observer:
At least Schmidt frames the issue honestly, which Specter does not. (Schmidt has made essentially the same points in congressional testimony this year.)

The biggest issue on the table with the Specter bill (S 2453) is nothing less than a repeal of FISA's core provision. This fact is usually ignored by the maddeningly ignorant coverage of the bill in mainstream media.

There was indeed a difference of opinion in the 1970s about FISA's "exclusive means" provision, which is what actually binds the executive to follow the statute's provisions. The constitutional view now articulated by Schmidt did not prevail then, and Congress went on to pass FISA overwhelmingly. (BTW, one of the dissenters was Judge Laurence Silberman, who generally is assumed to be the author of the controversial unsigned dicta in In Re: Sealed case years later.)

Congress did reject that limited view of its powers. The alternative view, based on the Youngstown precedent, prevailed. And no president -- including George W. Bush -- has forthrightly challenged the constitutionality of FISA's exclusivity in court. I think that is the right place to resolve the question. If only DOJ would make the argument in court that Schmidt makes here, we all would get a definitive answer.

Yet the Bush adminstration shrinks from doing so, preferring to get Congress to back down by enacting the Specter bill rendering FISA's enforcement optional.

As a policy matter, Congress certainly can abdicate the responsibility it assumed in 1978, but I still think the overhelming majority got it right then. The only serious policy argument Schmidt advances -- the "emergency" scenario -- can readily be dealt with by emergency provisions now in FISA or in the modest amendments of the Feinstein-Specter bill (S 3001) that would reaffirm the act's "exclusive means" requirement.
9.19.2006 11:20am
M. Lederman (mail):
My favorite part of the Schmidt article is the hypo he invokes to show how idiotic Congress was in overwhelmingly enacting FISA in 1978, "exclusive means" provision and all, after several years of serious debate and deliberation, and with the blessing of the Executive branch.

"Imagine," he writes, "that on the morning of 9/11, after the Twin Towers and the Pentagon were struck, the head of the NSA had called President George W. Bush and said he wanted to proceed immediately with the interception of calls at other U.S. airports where al Qaeda operatives were believed to be launching similar attacks. If the claim of FISA exclusivity were true, the president's only lawful response would have been, 'Well, we need to get the attorney general involved and begin the process of deciding whether a factual basis exists for him to determine that each surveillance target and each facility to be intercepted satisfies the standard for a FISA court order. Maybe we'll be able to get you the necessary authority some time this afternoon.' No American president has ever accepted such a limitation on his constitutional authority to protect the nation from foreign attack. And no rational person, no senator or congressman, believes that he should."

So how could all those Senators and Representatives back in 1978 have been so irrational? How could they have so cavalierly failed to anticipate that perhaps FISA's constraints would need to be modified in the case of a war, especially in the first few days, before Congress has time to enact amendments?

Well, they didn't, and they weren't. The war scenario was discussed and debated during the many months that FISA was considered, and Congress thoughtfully passed a provision allowing the President to bypass FISA during the first 15 days of a war, during which time it was thought that Congress could amend the statute to take account of the new exigencies.

Instead of secretly ignoring FISA, without effectievly telling Congress, for five years, and instead of trashing FISA altogether, as the Specter bill would do, the obvious and reasonable course here would have been for the President to propose, and Congress to consider, tailored amendments to govern surveillance in wartime -- as the drafters of FISA, in their wisdom, actually provided, in one of those old-fashioned things called a duly enacted statute.
9.19.2006 11:35am
MnZ (mail):
Anderson,

Let's drop this 72-hour canard. The 72-hour window merely allows the government to begin monitoring on a warrant signed by the Attorney General. However, it is done in anticipation of the FISA court decision. The requisite paperwork for 72-hour warrant is the same as a FISA court warrant. Furthermore, if the judge does not decide on the warrant in the 72-hour period, the surveillence ends.

However, you don't have to take my word for it. Here is the relevant section from FISA:
If the Attorney General authorizes such emergency employment of electronic surveillance, he shall require that the minimization procedures required by this subchapter for the issuance of a judicial order be followed. In the absence of a judicial order approving such electronic surveillance, the surveillance shall terminate when the information sought is obtained, when the application for the order is denied, or after the expiration of 72 hours from the time of authorization by the Attorney General, whichever is earliest.


Now, let's compare this to what Schmidt said:
Imagine that on the morning of 9/11, after the Twin Towers and the Pentagon were struck, the head of the NSA had called President George W. Bush and said he wanted to proceed immediately with the interception of calls at other U.S. airports where al Qaeda operatives were believed to be launching similar attacks. If the claim of FISA exclusivity were true, the president's only lawful response would have been, "Well, we need to get the attorney general involved and begin the process of deciding whether a factual basis exists for him to determine that each surveillance target and each facility to be intercepted satisfies the standard for a FISA court order. Maybe we'll be able to get you the necessary authority some time this afternoon."


Given this new information, can you still honestly say that Schmidt was "lying"?
9.19.2006 11:47am
Anderson (mail) (www):
Given this new information, can you still honestly say that Schmidt was "lying"?

Certainly. The surveillance begins immediately, while other people do the paperwork.

The hypo is set us for "the interception of calls at other U.S. airports where al Qaeda operatives were believed to be launching similar attacks." That would be the "factual basis." Unless there's no basis for the belief? In which case, why are we bothering with the surveillance?

In any event, had Bush considered it necessary to do the surveillance even without a factual basis, on the morning of 9/11, he could've ordered it and then asked Congress to ratify his doing so, and to amend FISA to allow for such emergencies--much as Lincoln did re: habeas during the Civil War.

Bush didn't do this, because he has no clue about the rule of law, and because his legal counselors are fundamentally opposed to the rule of law. Five years after 9/11, and no such amendment to FISA's been sought.
9.19.2006 11:52am
Bruce Hayden (mail) (www):
I don't find it the least bit surprisingly that legal academia has come down solidly against much of the NSA's TSP being subject to FISA and Congressional control and not within the plenary Artice II powers of the president. After all, the vast majority of them are politically opposed to the current President to start with, and those sitting on the fence would invariably have significant peer pressure to conform. And, thus, the conventionial wisdom here that the TSP violates FISA which isn't trumped by presidential power.

Nevertheless, I still contend that the Judicial Branch is not going to intrude here, for any number of very pragmatic reasons, one being their reluctance to interfere with the waging of war, and another being a reluctance to have blood on their hands.

Which means that the best that can be expected is for FISA to be amended, and the best thing that can be done there is to provide oversight. Why? By repeated statements of the Administration, it is clear that FISA is cumbersome and slow, and is not condusive to waging war in this manner. Any plausible pre-surveilance judicial approval is going to be just as cumbersome, slow, and unresponsive, unless all the teeth are removed, at which time, you have to ask, why bother? So, post initial surveilance Congressional oversight is, IMHO, the best alternative. It should allow the government to act and react immediately, as required, while still making sure that the surveilance programs are not abused.

Because that is the other thing - there is no evidence one way or another about whether the current programs are being abused, and that is likely to continue under the present law. Why? Until the government tries to bring TSP surveilance evidence into a criminal court, it is going to remain impossible to determine whether any specific person in this country is being surveiled w/o a warrant - because disclosure of who is being surveiled and whether there was a Title III or FISA warrant in place for it, are protected by the State Secret privilege.
9.19.2006 11:54am
MnZ (mail):
M. Lederman said:
The war scenario was discussed and debated during the many months that FISA was considered, and Congress thoughtfully passed a provision allowing the President to bypass FISA during the first 15 days of a war, during which time it was thought that Congress could amend the statute to take account of the new exigencies.


What FISA says:
Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress.


Correct me if I am wrong. However, doesn't this mean that the 15 day by-pass only applies if Congress actually declares war? If so, Schmidt's hypothetical holds once again.
9.19.2006 11:54am
Bruce Hayden (mail) (www):
Let me add to MnZ's point. Under FISA, if surveilance is started and a 72 Hour Emergency Order is sought, but not approved w/i that time, not only is the surveilance stopped, but whatever is collected is destroyed. It may be incriminating as all heck, but no subsequent FISA warrant is going to get access to this evidence.
9.19.2006 11:57am
Medis:
I just want to note again something I have maintained from the beginning: in the event that a genuinely unanticipated emergency situation arose, and the FISA procedures were inadequate to deal with that emergency, then in the brief period before the President could seek a modification of FISA from Congress, he might have the legal authority to bypass the FISA procedures.

But at least two things should be emphasized. One is that the emergency situation must be unanticipated and not already dealt with in FISA. Thus, a state of war alone is not enough, because FISA anticipates and addresses what should happen in a state of war.

The second important point is that this authority could last no longer than the time it would take for the President to seek a modification of FISA from Congress. And we know the absolute last possible date that could be: the date the USA-PATRIOT Act was passed, because FISA was modified on that date in that Act.
9.19.2006 12:02pm
Just an Observer:
No doubt Bruce Hayden and MnZ will endorse the Specter-Feinstein bill, which 1) expands and enhances the emergency authority for specific wiretaps and 2) expands the automatic warrantless period to be triggered by "a national emergency created by attack upon the United States, its territories or possessions, or the Armed Forces ..." or the period immediately following an AUMF, in addition to a declaration of war.

The "emergency" hypotheticals do not justify gutting FISA altogether, and are a huge red herrring. We certainly have not been under a continuous, time-critical emergency since 9/11. The FISA courts have been open for business all along.
9.19.2006 12:10pm
MnZ (mail):
Certainly. The surveillance begins immediately, while other people do the paperwork.

Really? Here is what FISA says:
Notwithstanding any other provision of this subchapter, when the Attorney General reasonably determines that—
(1) an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained; and
(2) the factual basis for issuance of an order under this subchapter to approve such surveillance exists;
he may authorize the emergency employment of electronic surveillance if a judge having jurisdiction under section 1803 of this title is informed by the Attorney General or his designee at the time of such authorization that the decision has been made to employ emergency electronic surveillance and if an application in accordance with this subchapter is made to that judge as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance.


It doesn't sound like surveillance can begin until the AG feels comfortable that a warrant can be obtained from a FISA judge in the end.
9.19.2006 12:12pm
Just an Observer:
MnZ,

Again, I look forward to your endorsement of the Feinstein bill, which allows the authority to commence emerency surveillance to be delegated to appropriate NSA or FBI managers.

For practical problems, there are practical solutions. That does not add up to a constitutional imperative for unilateral executive power.
9.19.2006 12:16pm
Bruce Hayden (mail) (www):
Medis,

But isn't this just the sort of changes that you are suggesting? Well, not specifically, but rather that the Administration and some of the Senate leadership on his side have come to an agreement as to what is needed here?

I don't find the logic that compelling that because he may have abused his powers as to the NSA TSP, then Congress shouldn't amend FISA to be more applicable and usable in responding to the current threat. (I may be pushing your point a bit to make mine)

I don't find the Administration that questionable here. They had memos from their attorneys saying that what they were doing was within the President's Article II powers, and that FISA wasn't controlling. Then, we had Hamdan last summer, and for the first time, a majority/plurality accepted Jackson's Youngstown three category analysis. So, back to the drawing board, and a williness to now deal with Congress on the subject.

I think the important thing to note is that the legal climate has changed, the Administration's legal arguments are not as compelling, and as a result, they are starting to work with Congress to clean this up.
9.19.2006 12:19pm
MnZ (mail):
Just an Observer,

I don't think that FISA should be gutted. Nevertheless, I definitely think it should be altered. The general concept of FISA seems fine, but in my opinion, the Act was (primarily) written for the Cold War.

For example, consider this passage:
In the absence of a judicial order approving such electronic surveillance, the surveillance shall terminate when the information sought is obtained, when the application for the order is denied, or after the expiration of 72 hours from the time of authorization by the Attorney General, whichever is earliest.


That restriction is reasonable when the subjects of interest are spies. However, if the subjects are 19 members of a recently activated sleeper cell, then the restriction seems less reasonable.
9.19.2006 12:30pm
Mark Field (mail):

By repeated statements of the Administration, it is clear that FISA is cumbersome and slow, and is not condusive to waging war in this manner.


Right after the Patriot Act amended FISA, among other things to extend the "window" from 24 hours to 72 hours, President Bush stated:

"These measures were enacted with broad support in both parties. They reflect a firm resolve to uphold and respect the civil liberties guaranteed by the Constitution, while dealing swiftly and severely with terrorists. Now comes the duty of carrying them out. And I can assure all Americans that these important new statutes will be enforced to the full."


I don't find it the least bit surprisingly that legal academia has come down solidly against much of the NSA's TSP being subject to FISA and Congressional control and not within the plenary Artice II powers of the president. After all, the vast majority of them are politically opposed to the current President to start with, and those sitting on the fence would invariably have significant peer pressure to conform.


I guess this category includes Viet Dinh too:

"There were a number of methods that criminals and terrorists were using to evade communication surveillance by authorized agencies. For example, cellular telephone and cellular telephone lines have become relatively inexpensive, such that it is functional for criminals and terrorists simply to use a cell phone for a very limited period - 24 hours, 12 hours and the like - and constantly to throw away those phones and switch into other phones in order to evade detection. A wiretap that is authorized by a court, previous to the USA Patriot Act, can only attach to a device - that is, a particular phone. And by switching phones and throwing them away, they forced the investigators to constantly go back to court in order to get a new authorization for a new phone. And that is a significant lapse in our ability to intercept communications. The USA Patriot fixed that by giving authorities the ability to do roving wiretaps, that is wiretapping authorized by a court to target a specific individual and any communication device that he would be likely to use. I think that is a critical, critical part of the improvement.

Another example is that we saw terrorist cells actually setting up Internet service providers in order to evade lawfully authorized communications intercepts. And the USA Patriot Act, by making advances in the legal authorities to intercept, fluidly, communications in the Internet world, was able to close down these kinds of loopholes. That's why it is so critical to understand the authorities Congress gave in the USA Patriot Act not as an increase in the size of the intercept or communications surveillance net, but rather, simply to patch the holes in the net that were - that were pre-existing. It doesn't matter how big the net is. If there are holes in the net, then the fish will get away. What Congress did was to patch those holes, thereby making only incremental changes in the law, but changes that have an exponential effect in our ability to collect information related to terrorist and criminal plans.

A third area that we found was that the law punishing terrorism and the legal authorities for us to investigate terrorism were, in some areas, not reflective of the priority that terrorism now should be in our policy. For example, we had ample authority and punishment for drug crimes and even healthcare fraud. And a major part of the USA Patriot Act is to make sure that the law reflects the seriousness of how we consider terrorism, making it at least in parity with drug crimes and other crimes that plague our society."


there is no evidence one way or another about whether the current programs are being abused, and that is likely to continue under the present law. Why? Until the government tries to bring TSP surveilance evidence into a criminal court, it is going to remain impossible to determine whether any specific person in this country is being surveiled w/o a warrant - because disclosure of who is being surveiled and whether there was a Title III or FISA warrant in place for it, are protected by the State Secret privilege.


And what if the President is violating FISA to spy on political opponents? Gee, that never happened before.
9.19.2006 12:41pm
Mark Field (mail):
I find the arguments about amending FISA to be irrelevant to the main point. As JaO and Medis have pointed out, there is pending bill which makes certain changes. Other changes can be discussed. What canNOT happen is what actually did happen -- the President simply ignored the law without seeking amendments and lied about the fact that he was doing so.
9.19.2006 12:46pm
Anderson (mail) (www):
It doesn't sound like surveillance can begin until the AG feels comfortable that a warrant can be obtained from a FISA judge in the end.

Right, and Schmidt's hypo implies a "factual basis."

Besides which, if there's a clear and present danger, the AG can authorize the surveillance with sublime indifference to whether warrants ultimately issue. On the hypo presented, stopping hijackings was the motive; prosecution takes a back seat to that, presumably.

But I'm never happy with the L-word, so if I need to say that Schmidt is misleading, deceptive, and disingenuous, rather than lying, then I'll accept the correction.
9.19.2006 12:48pm
Just an Observer:
MnZ,

Again, the example you describe is specifically addressed by FISA amendments in the Feinstein bill (also cosponsored by Specter, but a very different bill.) These are policy issues and can be addressed by Congress as such in amending FISA.

(BTW, I note that Orin just started a separate thread to deal with policy issues. Perhaps this discussion belongs there.)

My general point is that these specific issues do not comprise a constitutional case that Congress cannot enact binding legislation in this area. That constitutional issue is the heart of Schmidt's argument. On the constitutional merits, his essay did not really say much except that several scholars agreed with his point in the 1970s. Lots of others did not, and Congress enacted FISA as a binding statute, which like all statutes enjoys a presumption of constitutionality.

If President Bush now asserts that FISA is unconstitutional, let him make that case in court. I think he would lose, and his lawyers seem to agree.
9.19.2006 12:51pm
MnZ (mail):
Mark,

Pardon my disagreement, but it seems to me that the Schmidt article was about two things:
1) FISA should be amended for practical reasons.
2) FISA should be amended for constitutional reasons (i.e., the original act has unconstitutional provisions).
9.19.2006 12:55pm
Bruce Hayden (mail) (www):
And what if the President is violating FISA to spy on political opponents? Gee, that never happened before.
Part of my point is that we aren't going to find out about this as the law currently stands. Congressional oversight is much more viable here simply because who is being surveiled, with or w/o a warrant, is classified and protected by the SS privilege.

And note that not even Judge Taylor, in the MI ACLU case, seemed to want to try to get through the SS privilege to determine whether any party was actually surveiled w/o a warrant. Rather, she slid around that by looking at the fear of such chilling communications.

In short, IMHO, we would be much better protected against unreasonable electronic surveilance of ourselves or other Americans by Congressional oversight than under the present system.
9.19.2006 1:10pm
Mark Field (mail):
MnZ,

I have no problem discussing amendments to FISA, though I disagree with Schmidt on the Art. II issue. I just want to make sure nobody loses sight of the main issue, which is that the President can't simply ignore a law. The Specter bill has little to do with amending FISA and everything to do with permitting the President to avoid the consequences of breaking the law. It's the Feinstein bill which opens the discussion to FISA amendments; if that's Schmidt's concern, he should have addressed his comments to that bill.
9.19.2006 1:12pm
Medis:
Bruce,

First, you are simply misstating the law. You write: "Then, we had Hamdan last summer, and for the first time, a majority/plurality accepted Jackson's Youngstown three category analysis." I once again direct your attention not only to Hamdi, but also to Dames &Moore.

And by the way, aren't you getting tired of this yet? Why must we do this again and again? Repeatedly, you have falsely claimed that Jackson's Youngstown framework was never adopted by the Court and never applied to a non-domestic matter. Repeatedly, I have corrected your falsehoods by supplying the necessary case citations. Then, a few days later, you come back spouting the same falsehoods, and I have to correct you again. At this point, I know darn well you are deliberately lying, so what exactly is your goal in all this?

Anyway, similarly, the memos they were purportedly relying on were not attempts to objectively analyze the law. Like you have once again done, those memos simply omitted discussions of contrary authority, and they did not address basic points, like the President's duty to seek modifications to laws he claimed to need to violate due to an emergency situation.

In short, there is in fact no excuse for the President seeking and obtaining amendments to FISA in the USA-PATRIOT Act and at the same time secretly deciding to simply bypass FISA. And the memos and arguments used to rationalize these actions have always been a sham, as evidenced by the fact the President has always sought to avoid any independent review of his arguments.
9.19.2006 1:14pm
MnZ (mail):
My general point is that these specific issues do not comprise a constitutional case that Congress cannot enact binding legislation in this area.

Could it be question of the details of the binding legislation? For example, Congress obviously can enact binding legislation over the military and its activities, but it cannot usurp the President's role as Commander-in-Chief.
9.19.2006 1:15pm
Mark Field (mail):

Part of my point is that we aren't going to find out about this as the law currently stands. Congressional oversight is much more viable here simply because who is being surveiled, with or w/o a warrant, is classified and protected by the SS privilege.


I don't understand this at all. The state secrets privilege, as far as I know, should not apply to FISA warrants because the proceedings are secret. In contrast, it would preclude Congressional oversight because Congress can't make public the critical facts of the program. Nor do I see any reasonable basis to conclude that Congressional oversight worked well in the past (Nixon) or has worked well with respect to FISA in the last 5 years.
9.19.2006 1:15pm
Medis:
MnZ,

There is no serious question about whether Congress can require the military to follow certain legal procedures, or generally whether Congress can require the military to follow laws designed to protect the public. Those have been features of American military law since the Continental Congress adopted Articles of War for the Revolutionary War, and when the framers and ratifiers of the Constitution provided that Congress could make laws for the government and regulation of the armed forces, they undoubtedly had those Articles of War in mind. Indeed, the First Congress then readopted the Articles of War under the Constitution, retaining these same features.

But hey, if the President wants to argue otherwise in court, by all means let him.
9.19.2006 1:34pm
Just an Observer:
MnZ: Could it be question of the details of the binding legislation? For example, Congress obviously can enact binding legislation over the military and its activities, but it cannot usurp the President's role as Commander-in-Chief.

Yes, that theoretical tension exists in general, and is addressed by Justice Jackson's Youngstown framework, as John Roberts explained in his confirmation hearing. He went on to suggest that the courts can resolve such controversies.

Of course, if Congress abdicates its assertion of authority and repeals FISA's finding provisions, there is no controversy to be resolved.
9.19.2006 1:36pm
A.S.:
In short, there is in fact no excuse for the President seeking and obtaining amendments to FISA in the USA-PATRIOT Act and at the same time secretly deciding to simply bypass FISA.

Sure there is. A public request to amend FISA for purposes of allowing the TSP could have led to disclosure of the TSP program. Disclosure of a super-secret NSA program wasn't a concern with respect to the other FISA amendments made in the Patriot Act.

Also, I question the timing. When was the TSP approved? When was the Patriot Act negotiated and passed?
9.19.2006 1:55pm
Mark Field (mail):

When was the TSP approved? When was the Patriot Act negotiated and passed?


We don't know the exact date when the Administration began to violate FISA. From various public comments, it seems like it began shortly after 9/11. The Patriot Act was signed October 26, 2001.
9.19.2006 2:10pm
MnZ (mail):
The Specter bill has little to do with amending FISA and everything to do with permitting the President to avoid the consequences of breaking the law.

FISA takes away a Presidential power that may be necessary for the completion of his Constitutional duties, and then gives him, only part of it back. In fact, FISA explicitly realizes that the power that it gives the President back is not sufficient to perform his duties. So, it provides for temporary provisions for that power.

Correct me if I am wrong, but the Specter amendment does not allow the President to break the law. Instead, it does not put the President in a situation where performing his Constitutional duties would necessarily mean breaking the law.
9.19.2006 2:10pm
Mark Field (mail):

Correct me if I am wrong, but the Specter amendment does not allow the President to break the law. Instead, it does not put the President in a situation where performing his Constitutional duties would necessarily mean breaking the law.


I disagree with you that the President has relevant "Constitutional duties" here. The Specter bill cuts off most challenges except those to which the Administration agrees and then only on 4th A (and maybe 1 A) grounds. To that extent, it leaves open potential future law violations and fails to address prior ones. In addition, it creates uncertainty in the law: nobody knows what Art. II power the President has (none, in my view, though the bill implies that he does have some) or what the extent of that power is, assuming it exists. Thus, the question of law violation will likely remain hazy.
9.19.2006 2:40pm
Medis:
A.S.,

As I noted elsewhere, I realize that you are not favorably disposed to the republican (small "r") form of government guaranteed by our Constitution.

But for the rest of us, the President wanting to keep his law-breaking secret was not in fact an excuse for the President actually keeping his law-breaking secret.

Anyway, as I understand the timeline, it is basically this:

Immediately after 9/11, and without a special Presidential Order, NSA Director Hayden begins an extensive surveillance program. I think this may be legal.

In early October of 2001, Hayden briefed members of the congressional Intelligence Committees on his activities. Also in early October, the President directed that information would only be shared with the "Gang of Eight". This latter order appears to me to be illegal.

On October 26, 2001, the USA-PATRIOT Act was passed. As previously noted, in my view this is the last possible point in time that the President could claim emergency powers arising out of 9/11 which would allow him to bypass FISA.

In early 2002, the President issued his secret order authorizing the program. As previously noted, I believe that this order was illegal, and the President had no constitutional authority to bypass FISA by this time.

Also in early 2002, the government works out its special deal with the Presiding Judge of the FISC to keep material from the program out of FISA warrant applications, and this deal is renewed later in 2002 when a new Presiding Judge takes over. As previously noted, I think this attempt to avoid judicial review of the program demonstrates that the President knew that he was relying on legal rationalizations, not actual legal justifications.

In June and July of 2002, Senator DeWine proposes further modifications to FISA, and the DOJ actually opposes those changes. This episode simply emphasizes how the government had adopted a policy of creating two sets of laws: the sham laws intended for public consumption, and the real but secret laws the President would be following.

In November of 2002, the FISCR issues its decision in In re Sealed Case. Obviously, the government likes the dicta in that case.

In 2003, Cheney and others disclose some details of the program to the heads of the Intelligence Committees. This is when Senator Rockefeller writes his protest letter.

In 2004, the Presiding Judge of the FISC is notified that the government may not be complying with the terms of the compromise. She complains to Ashcroft, and the program is temporarily suspended. Also in this time period, the Ashcroft-Comey-Gonzales hospitalization episode occurs, and the program is then modified.

In April of 2004, the President tells the public, "Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so." Once again, the public is being told about the sham laws, not the real laws.

In October of 2004, the NYT first gets wind of the story. But they sit on it.

In December of 2004, FISA is amended again to include the "lone wolf" provision. Here is yet another episode which demonstrates the President has no plausible argument to be acting pursuant to emergency powers.

Finally, in December of 2005, the NYT breaks the story. And the rest I think we know.
9.19.2006 2:43pm
srp (mail):
Medis is back to saying Congress can require warrants for air force bombing sorties if it wants to, Article II be damned. Maybe that's a winner with the Supremes, maybe not--some of their rulings in this area have seemed a bit wacky lately--but Schmidt and all those 1970s constitutional scholars clearly thought that FISA was problematic if it sought to involve Congress or the courts in the chain of command.
9.19.2006 8:10pm
pallen:
"Nevertheless, I still contend that the Judicial Branch is not going to intrude here, for any number of very pragmatic reasons, one being their reluctance to interfere with the waging of war, and another being a reluctance to have blood on their hands."

Exactly. Any sane court will punt on this one under the political questions doctrine. It takes all three branches to agree that law is constitutional in order for that law to have efficacy. So long as the President asserts he believes the law would violate his oath of office, review by the courts would be inappropriate. Whether the President is abusing his coequal responsibility is question for impeachment alone.
9.19.2006 8:47pm
David M. Nieporent (www):
The hypo is set us for "the interception of calls at other U.S. airports where al Qaeda operatives were believed to be launching similar attacks." That would be the "factual basis." Unless there's no basis for the belief? In which case, why are we bothering with the surveillance?
Your statement is based upon the erroneous assumption that the only possibilities are "no basis" or "sufficient basis to obtain a warrant." What if -- as is almost certainly the case -- the truth is somewhere in between?

There's a factual basis for believing that drugs are crossing the Mexican border right now; that is not sufficient to obtain a warrant to search everyone who crosses the border. (And yes, I am aware that warrants are not required in that situation; that's not my point. My point is simply the difference between "factual basis to believe X" and "factual basis to obtain a warrant.")
In any event, had Bush considered it necessary to do the surveillance even without a factual basis, on the morning of 9/11, he could've ordered it and then asked Congress to ratify his doing so, and to amend FISA to allow for such emergencies--much as Lincoln did re: habeas during the Civil War.
On the other hand, I can't disagree with this.
9.19.2006 8:55pm
Mark Field (mail):

Any sane court will punt on this one under the political questions doctrine.


Interestingly, the Administration has NOT made this argument in any of the pending FISA cases, nor has it done so in any of the public defenses it has given (at least not that I've seen).

It takes all three branches to agree that law is constitutional in order for that law to have efficacy. So long as the President asserts he believes the law would violate his oath of office, review by the courts would be inappropriate.

If you're saying Youngstown was wrongly decided, I doubt the courts are likely to agree.

Whether the President is abusing his coequal responsibility is question for impeachment alone.

I guess by this theory Clinton should have told the Supremes to go to hell and refused to give any evidence. Nixon likewise.
9.19.2006 9:04pm
pallen:
"I guess by this theory Clinton should have told the Supremes to go to hell and refused to give any evidence. Nixon likewise."

That's a bit of a straw-man no?

I can easily distinguish Youngstown. It involved more the mere decision by the President to not execute a law he believed to be unconstitional. It involved an appropriation of private property.

These are plainly different situations.

Ah you may say, but this isn't merely a case of inaction either--after all the president 'acted' to monitor our communications. Well, I think most people will agree that it is plainly obvious that the Constitution itself does not prescribe a limit on Executive action in this field (unlike Youngstown case that implicated seizing private property).

So you see, I agree that if the court believes that the President's action is unconstitional that it can intervene, but that's different than enjoining the president's determination that a statute is unconstitional.
9.19.2006 9:48pm
Medis:
srp,

I actually think Article II in conjunction with Article I easily supports the constitutionality of FISA as applied to the NSA. There is no serious argument that criminalizing warrantless surveillance of international communications is not within the scope of the Commerce Clause, and no serious argument that Congress can't apply civilian crimes to the military through the Government and Regulation Clause.

And since FISA is within the enumerated powers of Congress, Article II requires the President to faithfully execute FISA. QED.
9.19.2006 10:12pm
Mark Field (mail):

I can easily distinguish Youngstown. It involved more the mere decision by the President to not execute a law he believed to be unconstitional. It involved an appropriation of private property.


I'm not very persuaded by this. FISA involves intrusion on private conversations, which have been held subject to the 4th A right against unreasonable searches. As Madison said, "In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights."


Well, I think most people will agree that it is plainly obvious that the Constitution itself does not prescribe a limit on Executive action in this field (unlike Youngstown case that implicated seizing private property).


Again, I don't see the difference. Private property is generally protected but can be taken for public benefit under the 5th A. Private phone conversations are generally protected by the 4th A (Katz), but can be monitored if the search is reasonable.

You're entitled to your own theory on the limitations of the judiciary, but I think the discussion here is limited to the way the system actually works. If not, then I guess I get to apply my pet theories too. Bush wouldn't do very well under them.
9.19.2006 10:20pm
pallen:
Mark,

My position is that The President has essentially nullified one law that he has labeled "unconstitional". This is quite a different matter from the court (as was done in Youngstown) arguing that the President lacked a law necessary to act.

My premise is simple: the NSA program (as is known) is constitutional and is at best circumscribed by FISA. If you concede that point (not merely as a little pet theory), then you should recognize that we're in a very different sense of affairs than in Youngstown. Because if you pose the question: can the president nullify a law by choosing not to execute it, I think the answer is "yes". But this is not an unlimited grant of power as youngstown makes clear. Some Presidential powers are created as a result of laws. Therefore nullifying those laws has the effect of dissolving the presidents power. This is quite different from the present situation.


"I'm not very persuaded by this. FISA involves intrusion on private conversations, which have been held subject to the 4th A right against unreasonable searches."



Again, I am working from the premise that an appeal to the 4th amendmend would fail based on existing case history. Conversely, we may read from Douglas's concurrence in Youngstown:

"The legislative nature of the action taken by the President seems to me to be clear. When the United States takes over an industrial plant to settle a labor controversy, it is condemning property. The seizure of the plant is a taking in the constitutional sense. The command of the Fifth Amendment is that no "private property be taken for public use, without just compensation." That constitutional requirement has an important bearing on the present case. The President has no power to raise revenues. That power is in the Congress by Article I, Section 8 of the Constitution. The President might seize and the Congress by subsequent action might ratify the seizure. But until and unless Congress acted, no condemnation would be lawful. The branch of government that has the power to pay compensation for a seizure is the only one able to authorize a seizure or make lawful one that the President has effected. "


So at least for Douglas the 5th amendment question was an important qualifier.


You're entitled to your own theory on the limitations of the judiciary, but I think the discussion here is limited to the way the system actually works.

Now here I thought we were discussing how "the system actually works". Just because you don't agree doesn't justify degrading my argument as mere fantasy.
9.20.2006 2:37am
Medis:
pallen,

In a long line of cases, the Supreme Court has held that even when the President has independent constitutional authorization to do something (meaning he could act even in the absence of congressional authorization), if Congress has the power to regulate in that area, then the President must comply with those regulations.

An early such case is Swaim v. United States, 165 U.S. 553 (1897), in which the Court held that the President had an independent power arising under the Commander in Chief clause to convene courts martial, but also that those courts martial were subject to the procedural rules laid out by Congress in the Articles of War (the predecessor to the UCMJ). Similarly, in Ex parte Quirin, 317 U.S. 1 (1942), the Court held that the President had authority under the Commander in Chief Clause to order military commission trials for alleged violations of the laws of war, but also that these trials were subject to the substantive definition of the laws of war as provided by Congress in the Articles of War.

Of course, the latest such case is Hamdan v. Rumsfeld, 126 S.Ct. 622 (2006). Once again, the Court recognized that the President could have the authority under the Constitution to convene military commissions, and once again the Court held that nonetheless Congress could regulate military commissions, both procedurally and substantively, through the UCMJ.

So, all these cases show that the ability of Congress to regulate Presidential activities is not dependent on Congress being the sole source of the President's authority to act. Rather, as also laid out in Justice Jackson's concurrence in Youngstown, the plurality opinion in Hamdi, and the Court's opinion in Dames &Moore (and see also Little v. Barreme), even if the President has the independent power to do something, he cannot act contrary to congressional regulations insofar as Congress was acting within its own constitutional authority.
9.20.2006 11:35am
Mark Field (mail):

My position is that The President has essentially nullified one law that he has labeled "unconstitional".


If you are referring to Jefferson and the Sedition Act, that's an interesting issue. The Sedition Act expired by its own terms before Jefferson took office. Jefferson considered the law unconstitutional, and he did 3 things in furtherance of that belief: he dropped a pending prosecution against William Duane; he pardoned those who had been convicted; and he asked Congress to refund the fines (which Congress did). I have a hard time seeing any of that conduct as comparable to what Bush has done here.


Because if you pose the question: can the president nullify a law by choosing not to execute it, I think the answer is "yes".


I think it's important to distinguish between two types of laws, those which command or prohibit behavior by private citizens and those which command or prohibit behavior by the Executive.

In the former case, the Executive has a great deal of discretion in the way it carries out the law. Prosecutorial discretion means that not all cases get prosecuted; administrative interpretation of the statute can affect its implementation. In addition, we accept that the Executive will never be perfect in "faithfully executing the laws" simply because resources are limited and that's the human condition.

It's a different story when the command is directed to the Executive. In that case, the President (in my view) cannot simply ignore the law. If he thinks it's unconstitutional, he is obligated to say so publicly and do his best to obtain a judicial decision on the constitutional issue.

The Sedition Act example you gave falls into the first category. I'm not aware of any example of the second. Even with the Tenure of Office Act, Johnson violated it for the expressed public purpose of obtaining review. There simply is no historical support for Bush's secret violations of a law.
9.20.2006 12:37pm
Paul Allen:

So, all these cases show that the ability of Congress to regulate Presidential activities is not dependent on Congress being the sole source of the President's authority to act. Rather, as also laid out in Justice Jackson's concurrence in Youngstown, the plurality opinion in Hamdi, and the Court's opinion in Dames &Moore (and see also Little v. Barreme), even if the President has the independent power to do something, he cannot act contrary to congressional regulations insofar as Congress was acting within its own constitutional authority.

I agree completely. Congress does have the ability in many cases to pass laws that regulate the President's actions and that the President is obliged to obey.

But I'd still distinguish the situation wherein the President is of the opinion that law is not constitutional. Not obeying is different though from declaring the law is not constitutional and thus ignoring it. The former stems from force of will alone. The latter can be evaulated intellectually for plausibility and political consequences can be levied from a position of moral authority should the broader opinion of the people at-large find more sympathy for the position of Congress or the Courts than for the position of the President.

Let us consider a hypothetical law, passed by a supermajority of Congress, whose effect is to require the President to relieve himself of command of the armed forces , that appoints a new commander, and grants jurisdiction to the District Court to review challenges. Now suppose the President refuses to comply and cites the explicit role he has as commander-in-chief in the constitution. The 'new commander' files for injunctive relief and the court rules against the President and issues a writ to execute the law.

The difference is that here Congress's action is plainly unconstitutional whereas it is not so clear vis-a-vis FISA. You belief that FISA is consitutional is clouding your reasoning and leading you to beg the question. Of course congress may circumscribe presidential authority by law but that law must be constitutional to have efficacy--and the question here is not really whether congress may shakle the President it is rather how to balance a disagreement among the branches of government as to the constitutionality of the law.

Mark Field: you have a point about the secrecy but I'm not sure that I'd agree it is a sufficient one. i.e., I still think it means the matter is a political question and should be dealt with accordingly.
9.20.2006 2:26pm
Medis:
Paul,

As an aside, it is worth noting that there are multiple ways in which Congress could pass a law which was unconstitutional. One would be for Congress to go outside its enumerated powers. Another would be for Congress to violate an express prohibition, such as in the Bill of Rights. And a third would be Congress violating the express procedures in the Constitution for doing something in particular. That third category would include your hypothetical of Congress trying to remove the President from his role as Commander in Chief (because Congress can in fact do that, but I would suggest that in order to do that, they have to remove him entirely from office through the impeachment and trial process described in the Constitution).

Anyway, I think you have presented a false dichotomy. There are in fact at least three relevant and interrelated questions. The first is whether FISA is constitutional. The second is whether the President is bound to obey FISA. And the last is what to do if the President claims FISA is unconstitutional and refuses to obey it.

And I don't think you can answer the second question without answering the first. In other words, I agree that in some circumstances the President is bound, or at least allowed, to disobey unconstitutional laws, so whether or not FISA is constitutional is relevant to the second question.

And similarly, I don't think you can answer the third question without answering the first two questions. In other words, how can we specify what should happen if the President claims FISA is unconstitutional without determining if he is right or not? And how can we specify what should happen if the President refuses to obey FISA if we don't know whether he was bound to obey it?

So, I don't think my determination that FISA is constitutional is "clouding my reasoning". I actually think it is a necessary step in my reasoning.

By the way, I think the Constitution does in fact plainly answer these questions. And the answers are that FISA is constitutional, the President is bound to obey FISA, and so if the President insists that FISA is unconstitutional and insists on disobeying it, he should be removed from office.
9.20.2006 3:08pm
Just an Observer:
pallen: My position is that The President has essentially nullified one law that he has labeled "unconstitional".

Please provide a reference that shows where President Bush has labeled FISA "unconstitutional."

His lawyers have had ample opportunity to argue that in court. Where is the citation?
9.20.2006 4:59pm
srp (mail):
Medis: Not a good syllogism on Article II. The Commander-in-Chief clause was put in there for a reason and it must mean something in terms of excluding the other branches from military operations. The Congress cannot intervene in tactical or operational decisions of the nation's defense establishment, nor can the courts. That is the minimal defensible definition of executive power possible under Article II. More-expansive interpretations of executive authority would claim much more sweeping limitations on Congress's powers in this area.

Hence, the Congress can't order the President to bomb or not bomb a particular target or listen into or not listen into a particular communication, so long as bombing and intercepting are generally authorized by enabling legislation or the President's oath of office. Why is this distinction between general policy and tactical employment so difficult to understand?
9.20.2006 7:07pm
Medis:
srp,

You say: "The Commander-in-Chief clause was put in there for a reason and it must mean something in terms of excluding the other branches from military operations."

Of course not--all three branches could have different roles to play when it comes to military operations. Rather, the Commander in Chief clause could simply mean that the President is the top officer in the military hierarchy. Which happens to be what it actually says.

"The Congress cannot intervene in tactical or operational decisions of the nation's defense establishment, nor can the courts."

Of course they can. Under Article I, Congress can pass laws governing "the nation's defense establishment", and obviously those laws can constrain tactical and operational decisions, and also make the military subject to civilian criminal laws, as in fact has been the case since the Articles of War in the Revolutionary War. And under Article III, the judicial power of the federal courts "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." So, Congress can pass laws regulating the military and criminalizing certain activities, and Article III courts have jurisdiction over cases arising under those laws.

You also say: "That is the minimal defensible definition of executive power possible under Article II."

Of course not. In general, neither Article II nor the structure of the Constitution as a whole suggests that in war or military matters the President has unfettered discretion. Rather, the Constitution explicitly provides Congress the power to make laws governing war and military matters, and explicitly provides the courts with jurisdiction. The idea that the President is somehow freed from the constraints of law in military matters has no support in the actual Constitution.

You also say: "More-expansive interpretations of executive authority would claim much more sweeping limitations on Congress's powers in this area."

The fact that there are even more extreme positions does not show that your position accords with the actual Constitution as written.

"Hence, the Congress can't order the President to bomb or not bomb a particular target or listen into or not listen into a particular communication, so long as bombing and intercepting are generally authorized by enabling legislation or the President's oath of office. Why is this distinction between general policy and tactical employment so difficult to understand?"

I don't know why this distinction is hard for some people to understand, but here you are the one who seems not to understand it. FISA does not direct the President to target or not target any particular parties for electronic surveillance. Rather, it lays out standards and procedures for electronic surveillance, but the President retains operational control. So, your distinction helps show why FISA is indeed straightforwardly constitutional.
9.21.2006 11:35am
Mark Field (mail):
Let's pretend for a moment that the CiC clause didn't exist. If the government then appointed a particular general -- Grant, say -- as the CiC of all US forces, that clearly would not relieve Grant of complying with laws and other directives of the government. He might be the supreme military commander, but he's still subject to the government.

All Art. II does is aid the civilian control of the military; it doesn't change the fact that the military is ALWAYS subject to overall government control, including, as Medis says, Congress and the Judiciary.
9.21.2006 1:05pm
Medis:
Mark,

Exactly. And what the Commander in Chief clause does is provide that Congress cannot appoint someone else, like your hypothetical General Grant, to that position instead of the President. Which is not exactly a trivial matter, and reason enough for this clause to be included in the Constitution.

My other favorite hypothetical along these lines is to suppose that Article II specifically enumerated: "The President shall be in charge of the Federal Bureau of Investigation and of the United States Department of Justice" (compare with "The President shall be commander in chief of the Army and Navy of the United States").

Would such an explicit provision with respect to the FBI and DOJ do anything to alter the allocation of power between Congress, the federal courts, and the President when it comes to matters such as enforcing the criminal laws of the United States? I'd say it would not.

What these hypotheticals do is simply make clear what is is already clear from the Constitution as written: the Constitution does not attempt to alter the basic structure of our government when it comes to war and military matters, but rather actually reinforces that basic structure (by making it very clear that Congress can pass military laws, but also by providing that the President will retain his role as chief executive officer in war, and all while giving jurisdiction over every matter of federal law to the courts). And that was worth doing precisely because the framers were well aware of how political actors in the past had used war as an excuse to increase their own power, and they wanted to specifically provide for our government retaining its basic structure during war.
9.21.2006 1:40pm
srp (mail):
Medis and Mark: You're just not reading what I'm saying. I never claimed that the Congress and the courts can't make binding regulations about military affairs, in wartime or in peacetime. I'm saying that just as the executive can't act as a court or a legislature, the Congress and the courts can't act as military commanders. It's perfectly OK for them to outlaw whole CLASSES of tactics or to deny funding for specific weapons systems. And it's perfectly OK for them to set up ex post tribunals to punish anyone who violates those regulations. So your objections do not reach what I am claiming.

When the FISA court refuses a warrant, contrary to what Medis claims, it is specifically ordering the executive branch not to surveill a particular target. In a civilian police context, this is fine, but in a military context it is interfering with the chain of command. It is injecting its own discretion and countermanding the orders of the only constitutionally legitimate source for those orders. Being a military leader is qualitatively different from being a police leader, because the need for unity of command during operations is essential for their success and hence for national survival.

If the Congress voted to put Eric Shinseki in over the President as C-in-C that would be unconstitutional, as you both seem to agree. But what does that mean? Suppose they instead said, "Ret. Gen. Shinseki, we hereby appoint you the head of the Military Review Tribunal. You act under the jurisdiction of the federal courts and serve a lifetime appointment unless impeached. No orders to fire artillery at, or bomb any target, shall be allowed unless you give the OK. All proposed artillery fires and bombing sorties shall be subject to your approval. We'll call such approvals 'warrants'." I claim that this is a violation of Article II, and that FISA, to the extent it purports to do the same thing with communications intercepts, is equally unconstitutional. It is a subtrefuge for placing non-executive personnel into the chain of command.
9.21.2006 4:26pm
Mark Field (mail):
srp, I don't follow your distinctions. If Congress can outlaw certain conduct during wartime -- murder, for example, or torture -- why can't it outlaw other conduct such as surveillance? Surely killing people is what armies do. Putting a restraint on that by defining a crime of murder within the context of wartime should, by your theory, infringe on the President's power as CiC. Nobody thinks this is the case. Why, then, should anyone think that Congress can't ban some forms of surveillance?

By the way, I note that the "surveillance" banned by FISA applies ONLY to (a) US persons, or (b) intercepts in the US. Thus, as a practical matter, FISA does not regulate battlefield surveillance.
9.21.2006 9:16pm
srp (mail):
Mark: I can see that you aren't following my distinctions. This bespeaks a failure in exposition on my part. I will not do the foreign tourist thing and say the same thing slowly and loudly, but will try a different tack.

The Congress can outlaw murder or torture. That's making policy. It can define circumstances which make a particular act of killing murder rather than legitimate use of force. It can specify AFTER THE FACT tribunals that adjudicate whether particular killings are OK or not, and regulate the standards of evidence used.

It can't appoint itself (or a court) to decide, in the middle of operations, whether soldier A is allowed to shoot person B (i.e., whether that shooting would be murder or legitimate military action). That's military command, not policy. Only a superior officer can legally (constitutionally) give such an order. A Senator, or a Senator's staffer, or a judge con't.

That's because you can't have multiple order givers and belayers in the chain of command. If the lieutenant says "shoot" and the platoon "judicial monitor" says "don't shoot" then we have a violation of unity of command. That kind of confusion gets people killed, endangers military operations, and ultimately threatens national survival. The chain of command goes up hierarchically to one person, the Commander-in-Chief, which Article II says is the President. Nobody outside the chain of command is allowed to give or belay an order. That's what military command MEANS.

If I were a lawyer, I'd come up with some multiprong test for constitutionality that looked at things like whether a) a law regulated military action generally rather than with regard to specific instances, b) the law applied case-by-case reasoning only after the fact and not in real time to particular military actions, c) the law placed members of the executive branch in regulatory positions, and d) the law did not tend to cause confusion or hesitation about whose orders were to be followed. Those factors all make the law more clearly constitutional with respect to not infringing on the C-in-C role.

Finally, since FISA apparently purports to regulate conversations between US persons and foreign enemies, and because foreign-to-foreign calls often go through US switches, it regulates battlefield surveillance even if one is foolish enough not to recognize that the enemy considers the US part of the battlespace.
9.22.2006 6:47pm