The Powers of the President, Spying and Civil Liberties
***SEE BELOW FOR UPDATES***
It's a fast world, this Blogosphere. In the old days, the big media drove a story and the public's understanding of the facts. Today, all that has changed.
It's like that this morning with the controversy surrounding the New York Times' revelation that President Bush authorized the National Security Agency to intercept communications between certain U.S. persons (it's not clear if they are citizens or Legal Permanent Residents, but that distinction doesn't really matter much in this instance) thought by the President to be associated with Al-Qaeda and certain other persons situated outside of the United States. One can characterize this in a number of ways, but the way the MSM characterized it was basically "Bush Authorized Domestic Spying on U.S. Citizens." I happen to think that is the most negative way possible to characterize what we know of the program, but let's accept that formulation for now. We might as well, since that is now, thanks to the MSM, what millions of people around the world have heard.
So, Bush authorized domestic spying on U.S. citizens. Since all people of intelligence and good will know that this is an obvious abuse of the law and in violation of the Constitution, the MSM and its allies in the Democratic Party went absolutely ballistic. An outrageous abuse of Presidential power. Yet another sign of authoritarianism. Another reason why the USA Patriot Act should not be re-authorized. The word "impeachment" even began to be uttered in certain circles.
However, like the CBS Rathergate flap, the Eason Jordan affair and the Swift Boat/Holiday in Cambodia matter, this affair has thrown into stark relief the still new fact that the MSM and its partisans no longer have full and complete control of the terms of the debate. While Newsweek's Jonathan Alter, the Washington Post, the New York Times and the Financial Times were in full fury mode, first a few, them some more and finally a flood of Bloggers began to cautiously stick their heads above the parapet.
They began by asking the central question, the one that the MSM, for all its preening about freedom of speech and diversity, doesn't want asked: are the central assumptions behind this story correct?
The first to ask just such a question was law professor Orin S. Kerr over at The Volokh Conspiracy. (You can find his original post on his research into the issue here). Professor Kerr was well positioned to opine on the underlying assumptions since they are all basically legal in nature, i.e. that the President's actions as described by the New York Times are illegal and/or unconstitutional.
Professor Kerr analyzed the issue by breaking it down into four issues, whether the President's actions were consistent with: 1) the Fourth Amendment, which prevents unreasonable searches and seizures by the government, 2) the Foreign Intelligence Surveillance Act ("FISA"), a law passed by Congress in 1978 that prohibits surveillance domestically of certain persons identified as agents of foreign powers outside the warrant system FISA established, complete with a secret Federal court, 3) the Authorization to Use Force against Al-Qaeda passed by Congress shortly after the 9.11 attacks, and 4) the President's inherent authority under Article II of the U.S. Constitution. Professor Kerr's initial conclusion was as follows:
(Prof. Kerr has since updated that conclusion, but we'll get back to that later). Professor Kerr's post found that Congress had regulated the foreign intelligence surveillance process with the passage of the FISA act and that, under its statutory terms, the President's actions appeared to be in violation of the law, though they were not unconstitutional. (It's at this point that I must remind our more liberal readers that "illegal" doesn't necessarily equal "unconstitutional" nor does "unconstitutional" equal simply "stuff I don't like and am uncomfortable with").
Professor Kerr's post invited comments about his argument and his conclusion, which, in the finest tradition of the Blogosphere, soon saw law students, attorneys and lay persons adding in angles and cases for the good professor to consider that he may have missed.
It soon came to light through this process, which by now involved by my count no less than a dozen websites, that one very important case that had been overlooked in the original analysis was the first case ever to be decided by the United States Foreign Intelligence Surveillance Court of Review, which was a special appeals court established by FISA for review of the secret FISA court's rulings.
The case, called In re: Sealed Case No. 02-001, was decided on November 18, 2002. (You can find the text of the opinion here). In the course of its opinion regarding the supposed "wall" between government intelligence collected with an aim towards criminal prosecution and that collected with an aim of national security, the appellate court had to speak to the intersection of Congress' assertion of authority embodied in the FISA laws and the President's authority under the Constitution. After reviewing all the case law on point, and identifying the lead relevant case as United States v. Truong Ding Hung, 629 F.2d 908 (4th Cir. 1980), the court concluded:
Remember: this is the latest word on the matter and it was delivered a mere three years ago. In short, the court found that the President has, has always had and continues to have the power to order warrantless searches to obtain foreign intelligence information and Congress' attempt to limit that power, insofar as FISA attempts to do so, is Constitutionally ineffective.
(Side note: The American Civil Liberties Union was invited by the court to argue the anti-government case in In re: Sealed Case and lost. Again.)
As that case has come to light, it has forced a re-examination of the issue. Even Newsweek's Jonathan Alter has been forced to back down a bit on this front, as was revealed in his interview yesterday with Hugh Hewitt on live radio. (The transcript for the interview can be found here.). Here is the relevant portion of the exchange:
Alter doesn't know because he didn't do his research before claiming to the world that the President is obviously acting illegally. Now, I don't mean to be too harsh on Alter because Professor Kerr missed this point as well; I, more than most, am painfully aware of the difficulty of legal research and Alter is no attorney. But the fact that, as of late yesterday, Alter was still unaware of the contours of the online discussion is revealing in its own right.
This morning, John Schmidt, a former Associate Attorney General in President Clinton's Justice Department, took the argument one step further in a very important op-ed in the Chicago Tribune. (You can find the piece here). In his essay, Schmidt points out that:
It's important to view this issue as one involving the office of the President and not any particular president because we are talking about powers that adhere to that great office and not just any particular person occupying it at the moment. Serious people recognize this. It's true, as Schmidt goes on to note that "That inherent power is reason to be careful about who we elect as president, but it is authority we have needed in the past and, in the light of history, could well need again." It seems to me that most of the opposition comes from a distrust of this particular President and not an objection per se to the powers of the Presidency, although for the extreme civil libertarians that is not the case.
Which brings us back to Professor Kerr. In his update, Kerr quotes a correspondent who refers to what has come to be known as the Steel Seizure Case (Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952)), a case well-known to law students nationwide in that it is the most important case to date dealing with the inherent powers adhering to the Presidency under the Constitution. In that case, a famous concurring opinion by Justice Jackson remarked upon what he termed the three levels or layers of Presidential power:
The key here, as it was then, is to determine which of these categories President Bush's authorization would belong. I agree with Professor Kerr's correspondent, who notes:
In the end, therefore, what we are left with is a President claiming an authority widely recognized pre-FISA, widely claimed by Presidents post-FISA by presidents of both parties, and, per the Steel Seizure Case, one that is debatable given Congress' action in passing FISA.
The absolute worst one could therefore reasonably say about the President's actions in this regard is that it is one whose Constitutionality is debatable, though it is in line with established and currently controlling legal precedent.
That is a far cry from the hysterical cries in the MSM.
Again, what amazes me is that as little as 5 years ago the MSM and its Democratic allies could have reasonably expected to have controlled this debate and to have driven the agenda. Now, thanks to the Blogosphere and the age-old principles of freedom of speech, opposing viewpoints are able to be effectively communicated. Now, less than three days after the New York Times splashed its front page with scandal, it appears to all observers that are willing to engage in debate, left and right, that the issue is more complex than it first appeared and that the President has a more-than-plausible argument.
It's a testament to our new communications technology and one more sign to the Powers That Be that their world is changing. Expect the usual temper tantrum.
UPDATE: Renowned judge Richard Posner takes to the Washington Post today to explain why he's not worried about the civil liberties aspects of this story. I don't fully agree, but it's noteworthy if only because of who is doing the writing. (You may find the essay here.)
UPDATE II: Noted liberal (yes, that's right, liberal) University of Chicago law professor Cass Sunstein has weighed in on the debate (here). His conclusion: the AUMF may be all the President needs. This is interesting, because not too many commentators have put much weight on the AUMF argument. An excerpt:
It's a fast world, this Blogosphere. In the old days, the big media drove a story and the public's understanding of the facts. Today, all that has changed.
It's like that this morning with the controversy surrounding the New York Times' revelation that President Bush authorized the National Security Agency to intercept communications between certain U.S. persons (it's not clear if they are citizens or Legal Permanent Residents, but that distinction doesn't really matter much in this instance) thought by the President to be associated with Al-Qaeda and certain other persons situated outside of the United States. One can characterize this in a number of ways, but the way the MSM characterized it was basically "Bush Authorized Domestic Spying on U.S. Citizens." I happen to think that is the most negative way possible to characterize what we know of the program, but let's accept that formulation for now. We might as well, since that is now, thanks to the MSM, what millions of people around the world have heard.
So, Bush authorized domestic spying on U.S. citizens. Since all people of intelligence and good will know that this is an obvious abuse of the law and in violation of the Constitution, the MSM and its allies in the Democratic Party went absolutely ballistic. An outrageous abuse of Presidential power. Yet another sign of authoritarianism. Another reason why the USA Patriot Act should not be re-authorized. The word "impeachment" even began to be uttered in certain circles.
However, like the CBS Rathergate flap, the Eason Jordan affair and the Swift Boat/Holiday in Cambodia matter, this affair has thrown into stark relief the still new fact that the MSM and its partisans no longer have full and complete control of the terms of the debate. While Newsweek's Jonathan Alter, the Washington Post, the New York Times and the Financial Times were in full fury mode, first a few, them some more and finally a flood of Bloggers began to cautiously stick their heads above the parapet.
They began by asking the central question, the one that the MSM, for all its preening about freedom of speech and diversity, doesn't want asked: are the central assumptions behind this story correct?
The first to ask just such a question was law professor Orin S. Kerr over at The Volokh Conspiracy. (You can find his original post on his research into the issue here). Professor Kerr was well positioned to opine on the underlying assumptions since they are all basically legal in nature, i.e. that the President's actions as described by the New York Times are illegal and/or unconstitutional.
Professor Kerr analyzed the issue by breaking it down into four issues, whether the President's actions were consistent with: 1) the Fourth Amendment, which prevents unreasonable searches and seizures by the government, 2) the Foreign Intelligence Surveillance Act ("FISA"), a law passed by Congress in 1978 that prohibits surveillance domestically of certain persons identified as agents of foreign powers outside the warrant system FISA established, complete with a secret Federal court, 3) the Authorization to Use Force against Al-Qaeda passed by Congress shortly after the 9.11 attacks, and 4) the President's inherent authority under Article II of the U.S. Constitution. Professor Kerr's initial conclusion was as follows:
Although it hinges somewhat on technical details we don't know, it seems that the program was probably constitutional but probably violated the federal law known as the Foreign Intelligence Surveillance Act. My answer is extra-cautious for two reasons. First, there is some wiggle room in FISA, depending on technical details we don't know of how the surveillance was done. Second, there is at least a colorable argument - if, I think in the end, an unpersuasive one - that the surveillance was authorized by the Authorization to Use Military Force as construed in the Hamdi opinion.
(Prof. Kerr has since updated that conclusion, but we'll get back to that later). Professor Kerr's post found that Congress had regulated the foreign intelligence surveillance process with the passage of the FISA act and that, under its statutory terms, the President's actions appeared to be in violation of the law, though they were not unconstitutional. (It's at this point that I must remind our more liberal readers that "illegal" doesn't necessarily equal "unconstitutional" nor does "unconstitutional" equal simply "stuff I don't like and am uncomfortable with").
Professor Kerr's post invited comments about his argument and his conclusion, which, in the finest tradition of the Blogosphere, soon saw law students, attorneys and lay persons adding in angles and cases for the good professor to consider that he may have missed.
It soon came to light through this process, which by now involved by my count no less than a dozen websites, that one very important case that had been overlooked in the original analysis was the first case ever to be decided by the United States Foreign Intelligence Surveillance Court of Review, which was a special appeals court established by FISA for review of the secret FISA court's rulings.
The case, called In re: Sealed Case No. 02-001, was decided on November 18, 2002. (You can find the text of the opinion here). In the course of its opinion regarding the supposed "wall" between government intelligence collected with an aim towards criminal prosecution and that collected with an aim of national security, the appellate court had to speak to the intersection of Congress' assertion of authority embodied in the FISA laws and the President's authority under the Constitution. After reviewing all the case law on point, and identifying the lead relevant case as United States v. Truong Ding Hung, 629 F.2d 908 (4th Cir. 1980), the court concluded:
It will be recalled that the case that set forth the primary purpose test as constitutionally required was Truong. The Fourth Circuit thought that Keith's balancing standard implied the adoption of the primary purpose test. We reiterate that Truong dealt with a pre-FISA surveillance based on the President's constitutional responsibility to conduct the foreign affairs of the United States. 629 F.2d at 914. Although Truong suggested the line it drew was a constitutional minimum that would apply to a FISA surveillance, see id. at 914 n.4, it had no occasion to consider the application of the statute carefully. 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. (Emphasis added).
Remember: this is the latest word on the matter and it was delivered a mere three years ago. In short, the court found that the President has, has always had and continues to have the power to order warrantless searches to obtain foreign intelligence information and Congress' attempt to limit that power, insofar as FISA attempts to do so, is Constitutionally ineffective.
(Side note: The American Civil Liberties Union was invited by the court to argue the anti-government case in In re: Sealed Case and lost. Again.)
As that case has come to light, it has forced a re-examination of the issue. Even Newsweek's Jonathan Alter has been forced to back down a bit on this front, as was revealed in his interview yesterday with Hugh Hewitt on live radio. (The transcript for the interview can be found here.). Here is the relevant portion of the exchange:
HH: Now Jonathan Alter, let me get a couple of questions in. Have you read In re sealed case, and the Keith case, also known as United States V. United States district court, Eastern district of Michigan?
JA: Are you talking about the Hamdi case?
HH: No. I'm talking about the two cases interpreting the national security exception to the warrant requirement of the Fourth Amendment.
JA: First of all, no, I haven't read those cases. But I'm actually not making a Fourth Amendment argument, because if you look at, for instance, border security and that kind of thing, there's a lot of caselaw. You know this much better than I do, Hugh, you know, that interprets the Fourth Amendment in different ways. I'm not saying that he's being unconstitutional in...
HH: You're saying extra-Constitutional. But in fact, these cases are very emphatic that what he has done is not extra-Constitutional.
JA: No, no. We're talking about two different things. This is a critical, critical point. I am not saying that he violated the Fourth Amendment. That is a very complex question to look at. What I'm saying is that he, by claiming that he's in violation of the 1978 foreign intelligence surveillance act, and that that act sets up the FISA system, and it's a good system. It works. His doubts about the timeliness and everything are a crock, because we know that you can do it retroactively.
HH: But Jonathan, the 2002 case, In re sealed case, is the FISA appeals court case directly on point, which refutes your assertion, and you haven't read it.
JA: What does it say? I haven't read it. What does it say?
Alter doesn't know because he didn't do his research before claiming to the world that the President is obviously acting illegally. Now, I don't mean to be too harsh on Alter because Professor Kerr missed this point as well; I, more than most, am painfully aware of the difficulty of legal research and Alter is no attorney. But the fact that, as of late yesterday, Alter was still unaware of the contours of the online discussion is revealing in its own right.
This morning, John Schmidt, a former Associate Attorney General in President Clinton's Justice Department, took the argument one step further in a very important op-ed in the Chicago Tribune. (You can find the piece here). In his essay, Schmidt points out that:
In the Supreme Court's 1972 Keith decision holding that the president does not have inherent authority to order wiretapping without warrants to combat domestic threats, the court said explicitly that it was not questioning the president's authority to take such action in response to threats from abroad.
Four federal courts of appeal subsequently faced the issue squarely and held that the president has inherent authority to authorize wiretapping for foreign intelligence purposes without judicial warrant.
In the most recent judicial statement on the issue, the Foreign Intelligence Surveillance Court of Review, composed of three federal appellate court judges, said in 2002 that "All the ... courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence ... We take for granted that the president does have that authority."
The passage of the Foreign Intelligence Surveillance Act in 1978 did not alter the constitutional situation. That law created the Foreign Intelligence Surveillance Court that can authorize surveillance directed at an "agent of a foreign power," which includes a foreign terrorist group. Thus, Congress put its weight behind the constitutionality of such surveillance in compliance with the law's procedures.
But as the 2002 Court of Review noted, if the president has inherent authority to conduct warrantless searches, "FISA could not encroach on the president's constitutional power."
Every president since FISA's passage has asserted that he retained inherent power to go beyond the act's terms. Under President Clinton, deputy Atty. Gen. Jamie Gorelick testified that "the Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes."
It's important to view this issue as one involving the office of the President and not any particular president because we are talking about powers that adhere to that great office and not just any particular person occupying it at the moment. Serious people recognize this. It's true, as Schmidt goes on to note that "That inherent power is reason to be careful about who we elect as president, but it is authority we have needed in the past and, in the light of history, could well need again." It seems to me that most of the opposition comes from a distrust of this particular President and not an objection per se to the powers of the Presidency, although for the extreme civil libertarians that is not the case.
Which brings us back to Professor Kerr. In his update, Kerr quotes a correspondent who refers to what has come to be known as the Steel Seizure Case (Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952)), a case well-known to law students nationwide in that it is the most important case to date dealing with the inherent powers adhering to the Presidency under the Constitution. In that case, a famous concurring opinion by Justice Jackson remarked upon what he termed the three levels or layers of Presidential power:
1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, [343 U.S. 579, 636] and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government [343 U.S. 579, 637] as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.
2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.
3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling [343 U.S. 579, 638] the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.
The key here, as it was then, is to determine which of these categories President Bush's authorization would belong. I agree with Professor Kerr's correspondent, who notes:
The interesting question is whether FISA somehow extinguishes this inherent Presidential power to conduct foreign-intelligence surveillance. There's a respectable argument that it does. FISA repealed Title III's reservation clause (18 USC 2511(3)), in which Congress expressly had forsworn any intent to regulate the collection of foreign intelligence. Given that repeal, we might be in Category Three from Justice Jackson's Steel Seizure concurrence - "When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive Presidential control in such a case only by disabling the Congress from acting upon the subject."
In the end, therefore, what we are left with is a President claiming an authority widely recognized pre-FISA, widely claimed by Presidents post-FISA by presidents of both parties, and, per the Steel Seizure Case, one that is debatable given Congress' action in passing FISA.
The absolute worst one could therefore reasonably say about the President's actions in this regard is that it is one whose Constitutionality is debatable, though it is in line with established and currently controlling legal precedent.
That is a far cry from the hysterical cries in the MSM.
Again, what amazes me is that as little as 5 years ago the MSM and its Democratic allies could have reasonably expected to have controlled this debate and to have driven the agenda. Now, thanks to the Blogosphere and the age-old principles of freedom of speech, opposing viewpoints are able to be effectively communicated. Now, less than three days after the New York Times splashed its front page with scandal, it appears to all observers that are willing to engage in debate, left and right, that the issue is more complex than it first appeared and that the President has a more-than-plausible argument.
It's a testament to our new communications technology and one more sign to the Powers That Be that their world is changing. Expect the usual temper tantrum.
UPDATE: Renowned judge Richard Posner takes to the Washington Post today to explain why he's not worried about the civil liberties aspects of this story. I don't fully agree, but it's noteworthy if only because of who is doing the writing. (You may find the essay here.)
UPDATE II: Noted liberal (yes, that's right, liberal) University of Chicago law professor Cass Sunstein has weighed in on the debate (here). His conclusion: the AUMF may be all the President needs. This is interesting, because not too many commentators have put much weight on the AUMF argument. An excerpt:
The authorization for the use of military force (AUMF) says, "the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."
This authorization clearly supported the war in Afghanistan. It also clearly justifies the use of force against Al Qaeda. In the Hamdi case, the Supreme Court added that the AUMF authorizes the detention of enemy combatants -- notwithstanding 18 USC 4001(a), which requires an Act of Congress to support executive detention. In the Court's view, the AUMF stands as the relevant Act of Congress, authorizing detention. It is therefore reasonable to say that the AUMF, by authorizing the use of "all necessary and appropriate force," also authorizes surveillance of those associated with Al Qaeda or any other organizations that "planned, authorized, committed, or aided the terrorist attacks" of September 11.
The reason is that surveillance, including wiretapping, is reasonably believed to be an incident of the use of force. It standardly occurs during war. If the President's wiretapping has been limited to those reasonably believed to be associated with Al Qaeda and its affiliates -- as indeed he has said -- then the Attorney General's argument is entirely plausible. (The AUMF would not permit wiretapping of those without any connection to nations, organizations, and persons associated with the September 11 attacks.)
