The DoJ's (Weak) Defense of Warrantless Wiretapping
Yesterday the Department of Justice released a 42 page white paper entitled "Legal Authorities Supporting the Activities of the National Security Agency Described by the President." I've now read the paper in its entirety (something I don't recommend unless you're having trouble sleeping). The paper doesn't really offer anything new. It is essentially a long-winded version of the letter the DoJ released a few weeks ago. [I see Glenn Greenwald agrees]. While there is some effort to cast aspersions on the constitutionality of FISA, you can tell that the lawyers at the DoJ don't really believe in that argument (probably because it is so radical and extreme). So the vast majority of the paper focuses on the significance of the 2001 Authorization for the Use of Military Force (AUMF). The DoJ's argument, in a nutshell, can be stated as follows:
The expansive language of the AUMF provided statutory authorization for the president to conduct warrantless wiretapping outside of the framework provided for by FISA.
This is, of course, the very argument that the Congressional Research Service report convincingly rebutted just last week. It is a position besieged by a number inconvenient facts, the most damning of which is that the AUMF says nothing whatsoever about electronic surveillance or FISA and no one in Congress appears to have thought they were giving the president the authority to operate outside of FISA. Indeed, there is evidence that the White House sought to have language added to the AUMF that would have strengthened this argument, but were specifically rebuffed. The white paper, not surprisingly, glosses over these difficult facts.
Another major problem with the DOJ's argument is the fact that--at the time of the passage of the AUMF--Congress made a number of amendments to FISA (via the Patriot Act) to aid in the prosecution of the war on terror. FISA, as the paper painfully acknowledges, is expressly intended to be the "exclusive means" through which this sort of surveillance is conducted. So clearly Congress did not intend to render FISA inoperative; indeed they reaffirmed its validity subsequent to the passage of the AUMF. The white paper devotes only one footnote (on page 27) to addressing this inconvenient fact, noting, matter of factly, that the amendments to FISA in the Patriot Act "do not justify giving the AUMF an unnaturally narrow reading." Pretty weak.
Perhaps the most remarkable aspect of the paper, however, is its attempt to turn the Youngstown case on its head. As I've noted previously, the Youngstown case is a major problem for the Bush administration, and it's arguably dispositive of the issue. Knowing that it couldn't just ignore or diminish the importance of Youngstown, the DoJ simply pretends that Youngstown fully supports their position. This kind of up-is-downism would make Karl Rove proud. Consider the following paragraph from the white paper:
The AUMF places the President at the zenith of his powers in authorizing the NSA activities. Under the tripartite framework set forth by Justice Jackson in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952) (Jackson, J., concurring), Presidential authority is analyzed to determine whether the President is acting in accordance with congressional authorization (category I), whether he acts in the absence of a grant or denial of authority by Congress (category II), or whether he uses his own authority under the Constitution to take actions incompatible with congressional measures (category III). Because of the broad authorization provided by the AUMF, the President's action here falls within category I of Justice Jackson's framework. Accordingly, the President's power in authorizing the NSA activities is at its height because he acted "pursuant to an express or implied authorization of Congress," and his power "includes all that he possesses in his own right plus all that Congress can delegate."
To say that this is a counter-intuitive characterization of the current situation would be an enormous understatement. In fact, it's so counter-intuitive that even the President's chief apologists haven't yet tried to charactize the situation this way; instead they've spent the last few weeks trying to distinguish and minimize the importance of Youngstown, and for obvious reasons. Under Justice Jackson's framework, Bush's spying program clearly presents a "category III" situation, not a "category I." Indeed, the present situation is even more of a "category III" situation than Youngstown itself was. In Youngstown, the Court held that, despite the obvious relevence to the prosecution of the Korean War, President Truman did not have the power to seize steel mills to prevent a strike. The Court reasoned that Congress had considered and rejected taking such action, and therefore Truman's power was at its "lowest ebb." But there was no Congressional statute that specifically forbid what Truman attempted to do (which is why three justices dissented). In the present situation, there is a statute, FISA, which specifically forbids what the president has done. In that sense, this is the paradigmatic example of a "category III" situation.
In an astounding bit of incoherence, the DoJ white paper actually acknowledges that Congress, in passing FISA, specifically invoked Justice Jackson's opinion and explained that they (in the DoJ's words) "intended in FISA to exert whatever power Congress constitutionally had over the subject matter to restrict foreign intelligence surveillance and to leave the President solely with whatever inherent constitutional authority he might be able to invoke against Congress's express wishes." The Congress Report that accompanied FISA made clear that Congress intended to place the president's powers at their "lowest ebb" in this area. In other words, by passing FISA, Congress expressly intended to create a "category III" situation.
The white paper also acknowledges that FISA specifically addresses the prospect of war by providing a 15 day window where the president may conduct warrantless surveillance while seeking to have the law amended to address wartime concerns. Needless to day, while President Bush sought a number of amendments to FISA post 9/11, he never sought permission to conduct warrantless wiretapping. By passing those amendments--subsequent to the AUMF--Congress was clearly reaffirming FISA's validity, so there can be no question that FISA, as it stands, represents a current expression of congressional will (more current than the AUMF).
I don't see how it could be clearer that this is a "category III" situation under the Youngstown framework, and frankly, I'm embarrassed for the DoJ lawyers who were forced to argue otherwise. The lawyers who work for the Justice Department are top notch and it must be painful for them to have to sign their names to such an ill-conceived argument.
What this white paper demonstrates more than anything else is the need to have a special prosecutor appointed to look into this matter. The DoJ under Alberto Gonzales is clearly in full advocacy mode and cannot be counted on to provide any meaningful independent analysis here. This conclusion is only reinforced by Gonzales recent public statements in which he unfairly and inaccurately accused the Clinton administration of engaging in the same activity (as if that would be a legitimate defense even if true). That our Attorney General is willing to engage is such crass political tactics is disturbing to say the least. It's no wonder that James Comey left the DoJ when he did. He would not have wanted to be a part of this.
The expansive language of the AUMF provided statutory authorization for the president to conduct warrantless wiretapping outside of the framework provided for by FISA.
This is, of course, the very argument that the Congressional Research Service report convincingly rebutted just last week. It is a position besieged by a number inconvenient facts, the most damning of which is that the AUMF says nothing whatsoever about electronic surveillance or FISA and no one in Congress appears to have thought they were giving the president the authority to operate outside of FISA. Indeed, there is evidence that the White House sought to have language added to the AUMF that would have strengthened this argument, but were specifically rebuffed. The white paper, not surprisingly, glosses over these difficult facts.
Another major problem with the DOJ's argument is the fact that--at the time of the passage of the AUMF--Congress made a number of amendments to FISA (via the Patriot Act) to aid in the prosecution of the war on terror. FISA, as the paper painfully acknowledges, is expressly intended to be the "exclusive means" through which this sort of surveillance is conducted. So clearly Congress did not intend to render FISA inoperative; indeed they reaffirmed its validity subsequent to the passage of the AUMF. The white paper devotes only one footnote (on page 27) to addressing this inconvenient fact, noting, matter of factly, that the amendments to FISA in the Patriot Act "do not justify giving the AUMF an unnaturally narrow reading." Pretty weak.
Perhaps the most remarkable aspect of the paper, however, is its attempt to turn the Youngstown case on its head. As I've noted previously, the Youngstown case is a major problem for the Bush administration, and it's arguably dispositive of the issue. Knowing that it couldn't just ignore or diminish the importance of Youngstown, the DoJ simply pretends that Youngstown fully supports their position. This kind of up-is-downism would make Karl Rove proud. Consider the following paragraph from the white paper:
The AUMF places the President at the zenith of his powers in authorizing the NSA activities. Under the tripartite framework set forth by Justice Jackson in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952) (Jackson, J., concurring), Presidential authority is analyzed to determine whether the President is acting in accordance with congressional authorization (category I), whether he acts in the absence of a grant or denial of authority by Congress (category II), or whether he uses his own authority under the Constitution to take actions incompatible with congressional measures (category III). Because of the broad authorization provided by the AUMF, the President's action here falls within category I of Justice Jackson's framework. Accordingly, the President's power in authorizing the NSA activities is at its height because he acted "pursuant to an express or implied authorization of Congress," and his power "includes all that he possesses in his own right plus all that Congress can delegate."
To say that this is a counter-intuitive characterization of the current situation would be an enormous understatement. In fact, it's so counter-intuitive that even the President's chief apologists haven't yet tried to charactize the situation this way; instead they've spent the last few weeks trying to distinguish and minimize the importance of Youngstown, and for obvious reasons. Under Justice Jackson's framework, Bush's spying program clearly presents a "category III" situation, not a "category I." Indeed, the present situation is even more of a "category III" situation than Youngstown itself was. In Youngstown, the Court held that, despite the obvious relevence to the prosecution of the Korean War, President Truman did not have the power to seize steel mills to prevent a strike. The Court reasoned that Congress had considered and rejected taking such action, and therefore Truman's power was at its "lowest ebb." But there was no Congressional statute that specifically forbid what Truman attempted to do (which is why three justices dissented). In the present situation, there is a statute, FISA, which specifically forbids what the president has done. In that sense, this is the paradigmatic example of a "category III" situation.
In an astounding bit of incoherence, the DoJ white paper actually acknowledges that Congress, in passing FISA, specifically invoked Justice Jackson's opinion and explained that they (in the DoJ's words) "intended in FISA to exert whatever power Congress constitutionally had over the subject matter to restrict foreign intelligence surveillance and to leave the President solely with whatever inherent constitutional authority he might be able to invoke against Congress's express wishes." The Congress Report that accompanied FISA made clear that Congress intended to place the president's powers at their "lowest ebb" in this area. In other words, by passing FISA, Congress expressly intended to create a "category III" situation.
The white paper also acknowledges that FISA specifically addresses the prospect of war by providing a 15 day window where the president may conduct warrantless surveillance while seeking to have the law amended to address wartime concerns. Needless to day, while President Bush sought a number of amendments to FISA post 9/11, he never sought permission to conduct warrantless wiretapping. By passing those amendments--subsequent to the AUMF--Congress was clearly reaffirming FISA's validity, so there can be no question that FISA, as it stands, represents a current expression of congressional will (more current than the AUMF).
I don't see how it could be clearer that this is a "category III" situation under the Youngstown framework, and frankly, I'm embarrassed for the DoJ lawyers who were forced to argue otherwise. The lawyers who work for the Justice Department are top notch and it must be painful for them to have to sign their names to such an ill-conceived argument.
What this white paper demonstrates more than anything else is the need to have a special prosecutor appointed to look into this matter. The DoJ under Alberto Gonzales is clearly in full advocacy mode and cannot be counted on to provide any meaningful independent analysis here. This conclusion is only reinforced by Gonzales recent public statements in which he unfairly and inaccurately accused the Clinton administration of engaging in the same activity (as if that would be a legitimate defense even if true). That our Attorney General is willing to engage is such crass political tactics is disturbing to say the least. It's no wonder that James Comey left the DoJ when he did. He would not have wanted to be a part of this.
posted by A.L. at 12:01 PM
5 Comments:
Your analysis completely avoids addressing the issue raised by the below-quoted paragraph of the DOJ report, other than to claim that the DOJ lawyers asserting it don't really believe it. In that respect, it does the same thing that the Congressional Research Service's report does - mention and then ignore an inconvenient problem for your position.
Because Congress has rarely attempted to intrude in this area and because many of these questions are not susceptible to judicial review, there are few guideposts for determining exactly where the line defining the President’s sphere of exclusive authority lies. Typically, if a statute is in danger of encroaching upon exclusive powers of the President, the courts apply the constitutional avoidance canon, if a construction avoiding the constitutional issue is “fairly possible.” See, e.g., Egan, 484 U.S. at 527, 530. The only court that squarely has addressed the relative powers of Congress and the President in this field suggested that the balance tips decidedly in the President’s favor. The Foreign Intelligence Surveillance Court of Review recently noted that all courts to have addressed the issue of the President’s inherent authority have “held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.” In re Sealed Case, 310 F.3d 717, 742 (Foreign Intel. Surv. Ct. of Rev. 2002). On the basis of that unbroken line of precedent, the court “[took] for granted that the President does have that authority,” and concluded that, “assuming that is so, FISA could not encroach on the President’s constitutional power.” Id.14 Although the court did not provide extensive analysis, it is the only judicial statement on point, and it comes from the specialized appellate court created expressly to deal with foreign intelligence issues under FISA.
When I have more time, I'll address the constitutional argument in more detail. I didn't pay much attention to it in this initial post because it's clearly a backup argument to the AUMF theory, which is why it comes later in the white paper and there is significantly less space devoted to it.
And the reason the CRS report didn't devote much time to it is because the original DoJ letter never went as far as claiming that FISA might be unconsitutional. Therefore, at the time CRS wrote its report, it didn't even know the administration was relying on that argument.
Just so you know where I stand, though, I think this argument is incredibly weak. The paragraph you quote above is a good example. Notice the sleight of hand. They conflate exclusive authority in the first part of the paragraph with inherent authority in the second. Exclusive authority is a small subset of inherent authority. Inherent authority just means that the president has power to act without having to wait for explicit congressional authorization. It doesn't mean that congress lacks the power to regulate in that area. In other words, Congress has the power to trump most of the president's inherent authority. It's only when you get to the small subset of exclusive powers that there is even an issue. And there is virtually no support for the assertion that the president has exclusive authority when it comes to conducting surveillance of U.S. citizens for national security purposes. The only authority cited by the administration is mere dicta (Sealed Case) and it is not at all clear that that court even meant to say what the administration says they did. For one thing, that court misused the term "inherent authority," thereby mistating the holdings of the previous cases they seemed to be referring to.
Long story short, the constitutional argument is significanly weaker than the already weak AUMF argument, and the administration knows this. It's a fallback position and nothing more.
I agree with your argument and do not see how you can put this anywhere else but category III of Jackson’s analysis in the Steel Seizure case. I realize that executive power is a very different issue than any other in law, but the process of challenging a statute is completely lacking here. One cannot declare a law unconstitutional and ignore it. It must be challenged in the proper legal channels. I find myself trying to see the other side of this, but it seems so clear to me. I applaud anyone that can make an argument with a straight face to support domestic warrantless wiretapping and believe what they are saying.
With that said, I believe Jackson made a distinction between internal and external actions of the President in category III. One could argue that since the communications contained one side outside the US, that they President could act contrary to Congress’ authority. However, I think this is fairly weak, and would break down based on the types of communications that were tapped, especially if there were completely domestic communications tapped. This would require a creative stretching of the meaning of internal and external, something I am not nifty enough to do.
Anonymous Liberal says:
______
. . . the reason the CRS report didn't devote much time to it is because the original DoJ letter never went as far as claiming that FISA might be unconsitutional. Therefore, at the time CRS wrote its report, it didn't even know the administration was relying on that argument.
______
I thought the CRS was supposed to be providing neutral analysis, not partisan advocacy.
Addressing only those issues your opponent raises and assuming issues not raised are waived is an advocate's strategy, not an analyst's.
Thanks for exposing that the CRS report is, in fact, partisan.
I thought the CRS was supposed to be providing neutral analysis, not partisan advocacy.
Addressing only those issues your opponent raises and assuming issues not raised are waived is an advocate's strategy, not an analyst's.
Thanks for exposing that the CRS report is, in fact, partisan.
Please, this is remarkably weak. Why should the CRS be expected to invent arguments that the administration isn't even making and then analyze them? Wouldn't they rightly be accused of engaging in a bizarre straw man exercise? The CRS report simply observed that the legal justification proffered by the administration was remarkably weak. It was (and still is, even in its longer version). There is nothing "partisan" about the CRS report. Not a single member of Congress has backed the administration up on its argument that the AUMF authorized warrantless wiretapping. Indeed, a number of Republican Senators (Brownback, McCain, Spector, Graham) have publicly stated that the AUMF did NOT justify the president's spying program. The CRS is as non-partisan as an agency can be. They didn't set out with the goal of sparing with the president. The report is quite measured and diplomatic in its prose, much more than the administration's specious arguments warrant.
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