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Thanks for the Protect America Act, Although Congress Had No Power to Pass It:
Marty Lederman has that and more from the Office of the Vice President over at Balkinization.
Bruce Hayden (mail) (www):
Not sure what was so earth shattering. Lederman has long been at odds with the Administration as to the extent of Executive power here, and whether NSA's TSP was within the reach of FISA or not. I see absolutely nothing wrong with the Administration arguing Executive power, but accepting a legislative solution to the debate so as not to spend everyone's energies on a fruitless confrontation in an area where they were going to continue to do what they have been doing from the start, regardless, with possibly small modifications around the margins.
8.21.2007 2:26pm
cboldt (mail):
-- I see absolutely nothing wrong with the Administration ... accepting a legislative solution to the debate --
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Given the administration's role in crafting the statutory language, and its attitude toward Congressional action being more in the way of demanding and less in the way of indifferent, I find the phrase "accepting a legislative solution" a ROTFL, hoot funny.
8.21.2007 2:43pm
Mark Field (mail):

I see absolutely nothing wrong with the Administration arguing Executive power, but accepting a legislative solution


Prof. Lederman's point is precisely that the Administration has NOT accepted the legislative solution.
8.21.2007 2:44pm
Just an Observer:
As always, I seek to be fair to the administration. We should recall that in principal Bush and Cheney do not object to Congress legislating in this field, so long as its act is not binding. They view FISA (and probably Sen. Specter and Sen. Feinstein) as a "useful tool."
8.21.2007 2:50pm
GV:
So, Bush was lying when he said the democrats need to act to quickly bless the wiretapping program or the country would be put at risk? I'm shocked. (Apparently it didn't matter what the democrats did.) How many times does Bush have to cry wolf before we no longer have to believe him?
8.21.2007 3:15pm
CJColucci:
37
8.21.2007 3:19pm
cboldt (mail):
-- so long as its act is not binding --
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That's unfair. The administration wants parts of the statute to be binding. E.g., it wants to bind the courts to a finding of civil immunity in favor of private actors who may otherwise be in violation of privacy laws; and it also wants to engage the courts' powers of compulsion against those same private actors.
8.21.2007 3:20pm
Apodaca:
Bruce Hayden:
I see absolutely nothing wrong with the Administration arguing Executive power, but accepting a legislative solution to the debate so as not to spend everyone's energies on a fruitless confrontation in an area where they were going to continue to do what they have been doing from the start, regardless[....]
Compare with the White House rhetoric:
Changes In Technology Since 1978 Had The Effect Of Expanding The Scope Of FISA's Coverage To Include Intelligence Collection Efforts That Congress Excluded From The Law's Requirements. This unintended expansion of FISA's scope meant the government, in a significant number of cases, needed to obtain a court order to collect foreign intelligence information against a target located overseas. This created an unnecessary obstacle to our Intelligence Community's ability to gain real-time information about the intent of our enemies overseas[....]
And:
This new proposal would substantially enhance our capabilities to collect intelligence on targets located overseas.
And:
Over the past three decades this law has not kept pace with revolutionary changes in technology. As a result, our intelligence professionals have told us that they are missing significant intelligence information that they need to protect the country.
If the Executive has the inherent power to ignore FISA, how was FISA an "obstacle" that caused us to miss "significant intelligence information," and how does the amendment "substantially enhance our capabilities"?
8.21.2007 3:20pm
Just an Observer:
Seriously, the administration's primary strategy, ever since the disclosure of what came to be called the "TSP," has been to seek a legislative fix. The rhetoric about the supremacy of Article II is just that. No doubt Cheney believes it, but the DOJ lawyers know it cannot succeed in court. So they have avoided judicial review of the merits at all costs while the administration maneuvers in Congress.

Bush and Cheney tried to get sweeping legalization of unwarranted surveillance in the 109th Congress. One version (sponsored by Wilson) passed the House; an even more audacious bill (sponsored by Specter) could not clear the Senate. Ironically, Bush is having greater success now that the Democrats are supposed to control both houses.
8.21.2007 3:31pm
Bruce Hayden (mail) (www):
I probably overstated my case, but I think that Lederman did too. The problem is that when the FISA/TSP debate got going, the Administration was listening to Yoo, who took a very expansive view of Executive power. Yoo is gone, and his sucessors are taking a less expansive view of Executive power.

But the original article still seemed to be arguing from the point of view of Yoo's strong Executive power position, and not from the more moderate view that seems to have triumphed in the Administration (at least outside the OVP).

So, I would reverse the burden of proof. I would suggest that either the Administration still believes in enough Executive power that the FISA amendment was not necessary, and you then have to answer the question of why they worked to get the amendment, or that the Administration has changed its view on Executive power and whether it has to abide by the letter of FISA.
8.21.2007 3:32pm
Bruce Hayden (mail) (www):
If the Executive has the inherent power to ignore FISA, how was FISA an "obstacle" that caused us to miss "significant intelligence information," and how does the amendment "substantially enhance our capabilities"?
JAO suggests that the Administration all along wanted a legislative solution and all the talk about Executive power was just posturing to get what it wanted. I think that simplistic. Rather, I would suggest that their stand has changed, at least somewhat, based partially on changes in personel giving legal advice. Yes, to some extent attorneys are hired guns, and you can look around until you find one who gives the advice you want. Nevertheless, probably the strongest proponent of the President having enough inherant power to ignore FISA with the TSP was John Yoo, and he is now gone, with every indication that cooler heads have replaced him.
8.21.2007 3:38pm
Anonymous Liberal (mail) (www):
I agree completely with JaO. The whole 'Article II trumps everything' theory is not a serious legal argument. If it was, the administration would not have taken the TSP to the FISC and they would not have stopped conducting certain surveillance activities in response to the FISC order (which is why they had to go to Congress in the first place).

The notion that the president's article II powers allow him to disregard FISA has no support in existing case law. I completely agree with JaO that if this issue was ever presented squarely to the Supreme Court, the adminsitration would be lucky to get even a single vote. This argument exists solely as a piece of political rhetoric. It is a simple argument that partisans can trot out in defense of administration lawbreaking, a distraction for the rubes.

But the administration would never dream of asserting it in court because they know it would never prevail. It's meritless.
8.21.2007 3:43pm
cboldt (mail):
-- I would suggest that either the Administration still believes in enough Executive power that the FISA amendment was not necessary, and you then have to answer the question of why they worked to get the amendment, or that the Administration has changed its view on Executive power and whether it has to abide by the letter of FISA. --
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I don't think it's an either/or proposition of that nature.
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There is value, in a contest between the government an an individual, to have all three branches united against the individual. So in that regard, the executive would welcome support from Congress and the courts.
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But, to the extent that support is not forthcoming, the executive may still feel it has a duty and obligation to protect the country from the scourge of foreign terrorism hiding in our very midst.
8.21.2007 3:52pm
Oren (mail):

So, I would reverse the burden of proof. I would suggest that either the Administration still believes in enough Executive power that the FISA amendment was not necessary, and you then have to answer the question of why they worked to get the amendment, or that the Administration has changed its view on Executive power and whether it has to abide by the letter of FISA.


This presumes a desire by the Administration to be intellectually consistent. As a tactical matter, the president does very well to support the amendment while simultaneously "reserving" the right to ignore FISA altogether. It would be against his interests to commit to whether or not FISA binding - why would he limit himself like that?
8.21.2007 3:52pm
cboldt (mail):
-- But the administration would never dream of asserting it in court because they know it would never prevail. It's meritless. --
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It may be meritless with the fact pattern that remains a state secret, but I can imagine fact patterns where the court would find particular surveillance activities to be well reasonable (to not infringe on the fourth amendment), and if properly conducted to obtain foreign intelligence and discard what is not foreign intelligence, to be rightfully within the executive's constitutional power.
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I don't think it's possible to craft a statute that exactly tracks the executive's Article II power in this area.
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I also think the Article II argument is a better one than AUMF+FISA. That one stinks all around. It irks Congress, it "runs out" when the AUMF does (as though the domestic threat does?!), and it a flying leap as a matter of statutory construction.
8.21.2007 4:00pm
Kazinski:
Bruce Hayden:

I think the " the strongest proponent of the President having enough inherant power to ignore FISA" was the FISA Court of Review. It held that FISA could not constituionaly restrict the Presidents inherent power to collect foreign intelligence, it could only enhance it:


The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power. The question before us is the reverse, does FISA amplify the President's power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government's contention that FISA searches are constitutionally reasonable.
8.21.2007 4:01pm
Just an Observer:
Bruce Hayden,

I don't think the Article-II-trumps-all theory has been abandoned within the administration. There are still True Believers there.

Yes, Yoo is long gone, but so is Goldsmith, who is believed to have been the most prominent dissenter. As far as the formal legal opinions underlying the TSP go, Marty Lederman noted in his post, "The final memo, dated February 4, 2005, was issued after Goldsmith left office." And David Addington (arguably the de facto attorney general and prime mover behind the theory) has never left.

However, in the courts, the handwriting has been on the wall at least since 2004. If the administration tees up this question for SCOTUS it loses, and everybody knows it.

So while administration officials continue to bluster about Article II, even hinting that FISA is unconstitutional, and its surrogates blow smoke about that, the real strategy has been to achieve a legislative fix while dodging judicial review. They hopefully seek one that also immunizes everyone involved with legal violations during operation of the TSP and its undisclosed cousins. The PAA was a step toward that.
8.21.2007 4:02pm
Apodaca:
Kazinski asserts that the FISCR
held that FISA could not constituionaly restrict the Presidents inherent power to collect foreign intelligence
The court "held" no such thing. Even a casual examination of the quoted passage makes clear that this is dicta:
We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power.
(Emphasis added.)
8.21.2007 4:40pm
Kelvin McCabe:
We also have to look to the broader context, as just an observer notes above - -- not only are they trying to immunize any past (arguably) criminal activities involved in all this, but they are also fighting to make sure that the investigative branch of Congress doesnt learn what those past violations might or could be. Its simultanously an offensive manuever (immunization) and defensive (prevent the other side from learning enough details to charge, let alone prove, any possible past violations).

As far as Cheney's assertion that Congress cant investigate this matter because they have no authority regarding executive branch intelligence gathering; was it not the Church Commission investigating Executive branch 'lawlesness' with regard to intelligence gathering which led to the passing of FISA in the first place? We need a new Church Commission, a Feingold commission perhaps, and we need it soon. And its not all about Bush - it doesnt matter who the current president is, because every president after him will undoubtly not "limit" the authority that Bush and co. have given to the themselves &the executive - so long as the conveniently long lasting global war on terror persists.
8.21.2007 4:49pm
Kazinski:
Apodaca:
I think that you are just misreading the stylistic form of the opinion, when the FISCR said "We take for granted that the President does have that authority", it's because the the Supreme Court

held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information."


Lower courts usually take the holdings of Supreme Court rulings "for granted".
8.22.2007 1:17am
Apodaca:
Kazinski, it's unfortunate, and rather revealing, that you apparently don't know which court decided the Truong case cited by the FISCR. Hint: not the Supreme Court.

And as for your underlying claim about inherent presidential authority, you are inexplicably ignoring Youngstown. Marty Lederman carefully and calmly demolished your argument over a year ago:
The President has a great number of constitutional powers -- call them "inherent" (or , as in Hamdan, "independent") powers -- that he may exercise in the absence of statutory restriction. (This is basically what's described in "Category II" of Jackson's Youngstown concurrence.)

But the fact that a power is "inherent" does not mean that it is exclusive, or non-defeasible [and] that Congress may not enact statutes to regulate these functions. Of course it can. For exmaple, the Court held in Swaim v. United States, 165 U.S. 553 (1897), that the President has inherent authority to convene courts-martial in the absence of statutory authority. But that doesn't mean that Congress cannot, by statute, regulate how such courts-martial will operate. And once it does so, the President is bound to comply with statutory limits. See Loving v. United States, 517 U.S. 738 (1996).

Similarly, in Hamdan itself, the Court assumed for purposes of argument (see top of page 28) what has been assumed since the Civil War, namely, that the President may constitutionally convene military commissions to try suspected enemies for violations of the laws of war without the sanction of Congress in cases of controlling necessity. But, the Court went on to explain, "Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers. See Youngstown Sheet &Tube Co. v. Sawyer, 343 U. S. 579, 637 (1952) (Jackson, J., concurring)."
In other words, deciding that a presidential power is "inherent" or "independent" does not begin to answer the question of whether it is defeasible, or regulable, by statute.
Thus, even if those courts of appeals you cite were correct that the President would have "inherent" constitutional authority to engage in warrantless electronic surveiilance, FISA placed limits on such surveillance and specifically restricted the President from doing what his "inherent" powers might allow. That limitation is perfectly constitutional. Nor did the courts of appeals in those cases suggest otherwise. To the contrary, in the one case decided after enactment of FISA, United States v. Truong Dihn Hung, the court indicated that FISA's restrictions were constitutional. See 629 F.2d at 915 n.4 (noting that "the imposition of a warrant requirement, beyond the constitutional minimum described in this opinion, should be left to the intricate balancing performed in the course of the legislative process by Congress and the President").
Do note that last item: the very Truong opinion on which you rely actually suggests that FISA is constitutional. Yes, the comments are dicta (because the relevant events in Truong occurred pre-FISA), but the dicta nevertheless make clear that the Fourth Circuit was using the term "inherent authority" in the narrow, circumscribed way Marty Lederman discusses.
8.22.2007 8:56am