Is That Legal?

AP: "[Alberto] Gonzales said the administration considered changing FISA, but members of Congress advised them that lawmakers would not be likely to go along -- 'certainly not without jeopardizing the existence of the program, and therefore, killing the program.'" I'm not surprised that the administration would decide to break the law on the grounds that it was easier than changing it, but I'm amazed that the Attorney General just comes out and says it. Whatever happened to hypocrisy being the compliment vice pays to virtue?

Furthermore, it's important to note that the Jackson concurrence in Youngstown Sheet & Tube v. Sawyer (343 U.S. 579; 1952) makes clear that:

"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. 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."

Therefore, if the President has committed statutory violations, the only way the President could win his case is if it is determined that Congress has no authority on these questions of surveillance. It is patently clear that Congress can act when it comes to surveillance of terrorists. As a result, it would seem that the President's actions went beyond the bounds of his Article II powers, and his actions are consequently unconstitutional.

The FISA court of review seems to directly address the President's Article II argument:

"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.26 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. "

and:

"The FISA court’s decision and order not only misinterpreted and misapplied minimization procedures it was entitled to impose, but as the government argues persuasively, the FISA court may well have exceeded the constitutional bounds that restrict an Article III court."

http://news.findlaw.com/hdocs/docs/terrorism/fisa111802opn.pdf

So specifically the Court is saying that neither Congress or the Courts have the authority to restrict the President's Article II power, though obviously the court does have the power to review whether the the NSA monitoring is within the President's scope of power. And I think Bush will win on that basis too.

Well, I can't help myself. Professor Kerr offers a sophisticated, in-depth analysis of the constitutional and statutory issues involved, noting that these are "hard questions" and that his view is "tentative" and "extra-cautious," and Professor Muller reduces it down to the platitude that the Administration's actions were "lawless," adding "told you so." Apparently, difficult questions of constitutional law are worthy of the schoolyard taunt.

Professor Kerr believes that the policy is likely constitutional but likely violates the FISA statute. As some of the comments on the Volokh thread point out, however, Professor Kerr does not address the Foreign Intelligence Court of Review's statement that: "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." In re Sealed Case, 310 F.3d 717, 742 (FICR 2002). As I've noted previously, this language, at the very minimum, provides support to the Adminstration's argument that the President may indeed have the Article II authority to engage in the actions at issue, notwithstanding the FISA statute.

Professor Muller, you may ultimately prove to be right that the Adminstration's actions were unlawful. My criticism is that, on this important question, you toss out assertions like "lawless" and "liar" without engaging the difficult questions as Professor Kerr has done. I think you've done an admirable job of holding others (such as Michelle Malkin) to high standards on serious questions, and I, for one, would like to see more analysis and less invective from you in the future.

Or, perhaps, I should just go away.

Anonymouslawyer, you're absolutely right that Orin has been thoughtful and careful about this, and that I have not been. Guilty as charged. The criticism you make is quite accurate.

I would imagine that Orin has spent between 6 and 8 hours over the last couple of days reading cases and statutes and then writing his post. It's fantastic.

I've spent maybe an hour on this stuff, tops. I'm just giving a gut reaction here, and I'm not dressing it up as anything other than that (which distinguishes what I'm doing here from Michelle Malkin's "In Defense of Internment").

This is a blog; it's not a law review. Maybe there's a great deal to be said for the idea that law professors should only blog about legal subjects if they can write about them deeply and with great subtlety, but that's not the theory that always animates my blogging, about law or any other subject. Sometimes it does, often it does ... but not always.

I do hope you'll continue to visit here and not "just go away."

Fair enough. As I've said before, I do think this is a terrific blog, and I very much enjoy visiting and reading your insights.

And, a careful reading of Kerr makes it pretty clear that in almost every instance it is more likely that the act is illegal, but there are "arguments" which might support it, if the courts buy the whole package hook line and sinker.

In other words, it depends on whether the president's court picks pan out like he hopes...

The President's arguments are based on the fact that the NSA is trolling for COMBATANTS not criminals.

The whole FISA law is premissed upon looking for KGB agents and American spies for criminal prosecution: so the act applies (albeit in modified form) notions of 'probable cause' and 'warrant'.

What the NSA is doing is not criminal investigation but military intel in a search for possible combatants who have already infiltrated into the US, as we know the 9/11 hijackers did.

So the President's Article II argument asserts that his authority to hunt for combatants derives from his predential powers as CINC, above any act of Congress (or any judicial decision, for that matter).

This is not a legal argument, but an agument over the fundamental powers given to the President as CINC. It does not imply unlimited or dictatorial powers (contrary to a lot of comment). We have a constitutional regime in which the limits of the President's powers as CINC are largely politically determined, not legally determined by statute as are his powers as chief executive. The two powers are not the same.

This seems to make a lot of legal types nervous because it's undefined: but that was the Founder's intent. All the contingencies of the real world (especially war) cannot be foreseen by the law.

kazinski, I think you've misread In re Sealed Case. It deals with how information which was gathered with a FISA warrant can be used, not whether or not a FISA warrant is required in the first place. If Congress didn't have authority to enact FISA, the court would have ruled the entire FISA statute unconstitutional, not simply ruled that information gathered with a FISA warrant could, in this case, be used in criminal prosecutions (although they've also ruled that this cannot be done in all cases in a decision rejecting procedures proposed by Ashcroft). Finally, since the court itself was established by FISA, wouldn't the court have to disband itself as illegal if they honestly believed that Congress could not regulate the President's inherent authority to conduct foreign intelligence?

I think that the issue In re Sealed was whether FISA expanded upon the president's inherent authority.

"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."

"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."

But Truong, as well as "all the other courts to have decided the issue," decided that issue prior to the passage of FISA in 1978. Those cases all considered a different issue, that is, whether the President has the power to conduct warrantless surveillance for national security purposes in the absence of statutory authorization. At the time, Title III of the Omnibus Crime Control and Safe Streets Act of 1968 contained an exception from its prohibition on unconsented wiretapping in cases where the President was exercising his duty to protect the country from hostile invasion, etc. FISA repealed that provision and added the current legislative scheme, which has been amended post-9/11 more than once to address specific dangers associated with the war on terrorism. The issue now is one the courts have never addressed, which is whether the President can conduct warrantless surveillance without following the statutory scheme Congress and the President set up to regulate it. The Administration does not argue that FISA is an unconstitutional encroachment on presidential power. Rather, it argues that the joint resolution authorizing force provides the outside statutory authority to save electronic otherwise unlawful surveillance under color of law from being a criminal act. The Administration reads "unless otherwise authorized by statute" - or words to that effect in FISA - when coupled with the authorization to use necessary and appropriate use, to be the equivalent to congressional authorization.

Question: Does the President, as Commander-in-Chief, have the right to order a US resident to quarter soldiers, which, of course is prohibited by the third amendment? If not, why should he have the right to search without a warrant?

Second question. If the President does have the right to wiretap without a warrant, (as the cases appear to hold) can he wiretap Dick Cheney without one?

The article above is false. The Supreme Court and other courts have decided/approved the President has the right to conduct warrantless searches (see pdf file below for sources too lengthy to cite here)

http://www.usdoj.gov/ag/fisaappealdecision.pdf PDF FORMAT

Page 15

"the court held that the Executive Branch should be excused from securing a warrant only when “the object of the search or the surveillance is a foreign power, its agents or collaborators,” and “the surveillance is conducted ‘primarily’ for foreign intelligence reasons.” Id. at 915.

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 Court in a footnote though, cited authority for the view that warrantless surveillance may be constitutional where foreign powers are involved. Keith, 407 U.S. at 322 n.20.

Page 53:

The distinction between ordinary criminal prosecutions and extraordinary situations underlies the Supreme Court’s approval of entirely warrantless and even suspicionless searches that are designed to serve the government’s “special needs, beyond the normal need for law enforcement.”

What three justices of the Supreme Court had to say about the issue when it wasn’t raised.

KATZ v. UNITED STATES, 389 U.S. 347 (1967)
………………………………………….

[ Footnote 23 ] Whether safeguards other than prior authorization by a magistrate would satisfy the Fourth Amendment in a situation involving the national security is a question not presented by this case.

………………………………………….

MR. JUSTICE WHITE, concurring

In this connection, in footnote 23 the Court points out that today's decision does not reach national security cases. Wiretapping to protect the security of the Nation has been authorized by successive Presidents. The present Administration would apparently save national security cases from restrictions against wiretapping. See Berger v. New York, 388 U.S. 41, 112 -118 (1967) (WHITE, J., [389 U.S. 347, 364] dissenting). We should not require the warrant procedure and the magistrate's judgment if the President of the United States or his chief legal officer, the Attorney General, has considered the requirements of national security and authorized electronic surveillance as reasonable.

……………………………………..

MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN joins, concurring.

While I join the opinion of the Court, I feel compelled to reply to the separate concurring opinion of my Brother WHITE, which I view as a wholly unwarranted green light for the Executive Branch to resort to electronic eaves-dropping without a warrant in cases which the Executive Branch itself labels "national security" matters.

Neither the President nor the Attorney General is a magistrate. In matters where they believe national security may be involved they are not detached, disinterested, and neutral as a court or magistrate must be. Under the separation of powers created by the Constitution, the Executive Branch is not supposed to be neutral and disinterested. Rather it should vigorously investigate [389 U.S. 347, 360] and prevent breaches of national security and prosecute those who violate the pertinent federal laws. The President and Attorney General are properly interested parties, cast in the role of adversary, in national security cases. They may even be the intended victims of subversive action. Since spies and saboteurs are as entitled to the protection of the Fourth Amendment as suspected gamblers like petitioner, I cannot agree that where spies and saboteurs are involved adequate protection of Fourth Amendment rights is assured when the President and Attorney General assume both the position of adversary-and-prosecutor and disinterested, neutral magistrate.