Does the Author of the Administration's Surveillance Opinion Still Support It?

The Bush administration has so far refused to turn over its internal legal memos justifying its controversial warrantless surveillance program. The New York Times has reported, however, that there are two key opinions: one written in late 2001 by the infamous John Yoo, and the other in 2004 by the then head of the DOJ's Office of Legal Counsel, Jack Goldsmith. As I explained in some detail in a previous post, I strongly suspect that the original Yoo memo relied almost exclusively on a robust reading of Article II, or as Professor Jack Balkin calls it, "Yoo's Article II on steriods theory." This is a purely constitutional argument, and a radical one at that. I suspect that the more recent memo, written by Goldsmith, more closely mirrors the Administration's current arguments and relies predominantly on a broad reading the Authorization for Use of Military Force (AUMF) as providing statutory authority for bypassing FISA.

But Stuart Benjamin at the Volokh Conspiracy notes something interesting. Goldsmith co-authored an article in the May 2005 issue of the Harvard Law Review entitled Congressional Authorization and the War on Terrorism. The stated purpose of the article is to present "a framework for interpreting Congress's September 18, 2001 Authorization for Use of Military Force (AUMF)."

In this treatise-length article (85 pages, 376 footnotes)--which undoubtedly relies heavily on the research Goldsmith did while at the OLC--Goldsmith and his co-author, Curtis A. Bradley--another former Bush administration attorney--make a forceful case for a maximalist interpretation of the AUMF, one that gives the president the authority to exercise traditional war powers even on U.S. citizens within the United States. Indeed I doubt that a more expansive reading of the AUMF is even possible (at least while remaining intellectually honest).

Nevertheless, after reading the entire article, I'm not at all convinced that it can be reconciled with the arguments advanced by the DoJ in its recent white paper, a document which the Administration says merely rehashes the arguments contained in its internal legal opinions, the most recent of which was authored by Jack Goldsmith.

For instance, in the article, Goldsmith and Bradley notably stop short of suggesting that the AUMF could justify presidential actions which are expressly forbidden by other statutes, much less criminal statutes like FISA. And while they argue that the vague language of the AUMF should be construed expansively, they also caution that "a clear statement requirement is appropriate when the President takes actions under the AUMF that restrict the liberty of non-combatants in the United States." In other words, if an action affects the liberty interests of non-combatants here in the U.S., Goldsmith and Bradley would require clear language in the AUMF authorizing it, even in the absence of a statute making such action specifically illegal. The NSA surveillance program almost surely affects the constitutional interests of non-combatants here in the United States, and the topic of surveillance was not even raised during the debate over the AUMF much less included in its language. And, of course, warrantless surveillance is specifically forbidden by a pre-existing law, FISA.

The inconsistency between this article and the Administration's current legal position is reinforced by the fact that Bradley is one of the 14 signatories of this letter sent to Congress last week, a letter which systematically tears apart the DoJ's white paper.

Although Goldsmith himself is not one of the signatories, it seems inconceivable to me that he would disagree with Bradley, his co-author, on this of all subjects. Which leads me to believe that Goldsmith no longer stands by his own 2004 opinion, the one which provides the legal basis for the NSA program. No wonder the DoJ's white paper is unsigned. And no wonder they don't want to turn over their internal legal opinions.