You Read it Here First
The Anonymous Liberal, February 1, 2006:
Why is the Administration so reluctant to allow Congress to see these memos? My hunch is that it's because the Administration's current legal posture looks very different than the one it originally adopted when it authorized this program in late 2001. I suspect very strongly that the Administration's primary argument for the legality of the program--that Congress authorized the President to take such measures when it passed the AUMF--is of relatively recent vintage.
The Anonymous Liberal, February 10, 2006:
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.
The Washington Post, March 1, 2006:
On Feb. 6, Gonzales testified that the Justice Department considered the use-of-force vote as a legal green light for the wiretapping "before the program actually commenced."
But in yesterday's letter, he wrote, "these statements may give the misimpression that the Department's legal analysis has been static over time."
Fein said the letter seems to suggest that the Justice Department actually embraced the use-of-force argument some time later, prompting Gonzales to write that the legal justification "has evolved over time."
One government source who has been briefed on the issue confirmed yesterday that the administration believed from the beginning that the president had the constitutional authority to order the eavesdropping, and only more recently added the force resolution argument as a legal justification.
Why is the Administration so reluctant to allow Congress to see these memos? My hunch is that it's because the Administration's current legal posture looks very different than the one it originally adopted when it authorized this program in late 2001. I suspect very strongly that the Administration's primary argument for the legality of the program--that Congress authorized the President to take such measures when it passed the AUMF--is of relatively recent vintage.
The Anonymous Liberal, February 10, 2006:
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.
The Washington Post, March 1, 2006:
On Feb. 6, Gonzales testified that the Justice Department considered the use-of-force vote as a legal green light for the wiretapping "before the program actually commenced."
But in yesterday's letter, he wrote, "these statements may give the misimpression that the Department's legal analysis has been static over time."
Fein said the letter seems to suggest that the Justice Department actually embraced the use-of-force argument some time later, prompting Gonzales to write that the legal justification "has evolved over time."
One government source who has been briefed on the issue confirmed yesterday that the administration believed from the beginning that the president had the constitutional authority to order the eavesdropping, and only more recently added the force resolution argument as a legal justification.
7 Comments:
Your insights are much appreciated. Added this to the roundup at "To Clarify"
Keep up the great work.
Having researched FISA, the AUMF, Hamdi, etc., I can safely assert that the Administration's arguments are nonsense, and that any competent, honest attorney should be able to figure out the specious nature of their assiertions. FISA prohibits any and all wiretapping that is not authorized by it or by the wiretap statute. "Force" is military force, not wiretapping, so the AUMF is irrelevant. As for Article II, the argument is essentially that Congress cannot statutorily limit the President's "inherent powers" even when they are not expressly granted to the President by Article II. This argument is bunk, and I predict would be rejected by everyone on the Supreme Court and by all prior Justices who have served on that court for the last 3 decades, which the possible exception of Justice Thomas (for whom Yoo once clerked).
Obviously, the Administration did the wire-tapping, and then looked for a legal justification, which is why the justification has changed over time.
The Supreme Court specifically reserved decision on exactly this question: whether the President has the inherent authority to conduct warrantless wiretaps for the purposes of gathering foreign intelligence. In United States v. District Court, the court ruled that the President lacked the authority to conduct warrantless wiretaps for the purposes of gathering intelligence related to potential domestic insurrection. In the opinion, the Court said: "It is important at the outset to emphasize the limited nature of the question before the Court....the instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country." 407 US 297, 308 (1972).
Later in the same opinion the Court repeated this statement: "As stated at the outset, this case involves only the domestic aspects of national security. We have not addressed, and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents." 407 U.S. at 322.
That opinion was written by Justice Powell and signed by Brennan, Marshall, Stuart, Blackmun, and Douglas: the heart of the Warren Court. They apparently saw something you didn't: the Fourth Amendment might not apply to activities related to the gathering of foreign intelligence. It might, but it might not. It hasn't been decided yet.
I'm not saying that a court would necessarily conclude that the wiretaps were legal. But certainly that possibility exists, as was recognized by the court in United States v. District Court. Granted, that was a pre-FISA case, but FISA wouldn't necessarily change the result. Anyway, my sense is that most of the outrage over this surveillance comes from people feeling that their fourth amendment rights are being violated, not their FISA rights, which, let's be honest, most people never even knew they had.
The Supreme Court specifically reserved decision on exactly this question: whether the President has the inherent authority to conduct warrantless wiretaps for the purposes of gathering foreign intelligence.
This is true but totally misleading because this is not at all the question we are currently presented with. There is a world of difference between the president's authority to act in the absence of a statute, and his authority to act in the face of a statute that expressly criminalizes what he's doing. You need to re-read Youngstown.
Inherent authority in most cases just means default authority. Congress is free to step in and change the rules. The only exception to this is in the case of exclusive authorities granted solely to the president (like the pardon power). There is no case law or constitutional language which suggests that surveillance is an area of exclusive executive authority.
While I respect your position, it differs from the position taken by the FISA court of review which stated that, if the President has the inherent authority to conduct warrantless searches to obtain foreign intelligence information, "FISA could not encroach on the President's constitutional power." In re Sealed Case, 310 F.3d 717, 742 (Foreign Intel. Surv. Ct. of Rev. 2002).
Of course, the FISA court might be wrong. I only brought this up to show that reasonable minds can differ on this question, it's hardly the no-brainer that people are pretending it is.
Youngstown does not suggest otherwise. Jackson's concurrence carves out a (very limited) space where the President may act in violation of Congressional directives, because the President has exclusive authority over a certain area: "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." 343 US 579, 638.
The fact of the matter is that the Constitution gives the President very broad powers in the area of foreign relations. And courts have recognized that power time and time again.
I think it is a very serious problem that has gotten worse over the last two hundred years, as, thanks to globalization, foreign relations are vastly more important now then ever before. And that has created an imbalance in our constitutional system and has thrown the checks and balances out of whack.
While I respect your position, it differs from the position taken by the FISA court of review which stated that, if the President has the inherent authority to conduct warrantless searches to obtain foreign intelligence information, "FISA could not encroach on the President's constitutional power." In re Sealed Case, 310 F.3d 717, 742 (Foreign Intel. Surv. Ct. of Rev. 2002).
Of course, the FISA court might be wrong. I only brought this up to show that reasonable minds can differ on this question, it's hardly the no-brainer that people are pretending it is.
I've addressed this in previous posts, but I guess I'll do so again. Bush's defenders are attributing far more meaning to that one line in Sealed Case than the context will bear. The court merely noted, in a line that had nothing to do with the holding of the case, that "FISA could not encroach on the president's inherent authority." First, the court clearly means "exclusive" authority here, but sloppily uses the term "inherent" authority. It is beyond dispute that much of the president's inherent authority is nothing more than default authority to act when congress has chosen not to. It is only in the area of exclusive powers (like the pardon power) that the Congress cannot encroach. Second, the Court was not suggesting that FISA did in fact encroach on any exclusive authority of the president, merely that it could not(which is a totally uncontroversial statement). Third, the court in Sealed Case held that FISA was constitutional ("We, therefore, believe firmly, applying the balancing test drawn from Keith, that FISA as amended is constitutional because the surveillances it authorizes are reasonable.") It is absurd to suggest that in a toss away line in a case upholding FISA's constitutionality the court really meant to suggest that FISA unconsitutionally encroaches on the President's exclusive power.
The bottomline line is that this is one of those issues where the legal arguments overwhelming support one side. That's why nearly all attorneys and professors who aren't affiliated with the administration generally agree that this program is illegal. It's really pretty lop-sided at this point. I'm not saying that everyone who supports the president's position on this is, ipso facto, unreasonable, but but they are choosing to ignore some pretty well-established legal principles and precent, and many are contradicting their own previous writings and opinions.
I find it amusing that Maguire seems unvailable when contrarian's visit his comments to dislodge the local insular camraderie. AL's extended stay on the "Specter" thread did not result in (thus far) any retort to AL's floor sweep of the best his site has to offer.
Curiously, the same thing happened when Glenn Greenwald visited last month.
Instapundit would be proud of the evasive skills of one of his prize pupils.
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