NSA Endgame
(Cross-posted at Unclaimed Territory)
As I've said before, I think Senator Feingold's censure resolution is an entirely reasonable and justified response to the flouting of a criminal statute by a sitting president. I also think that if Democratic politicians could muster the courage to stand together on this, the resolution could be good politics as well. That said, I've come to the same conclusion as Marty Lederman: "The only way for Congress to prevail in this important war-powers stand-off is if the Supreme Court declares the President's conduct unlawful."
In theory, Congress could re-assert its powers by making life very difficult for the president. It could threaten impeachment. It could hold the executive branch hostage by withholding funding for key initiatives. But there's simply no way that Congress is going to take these measures, even if by some miracle the Democrats manage to take back both chambers of Congress in November. Such extreme measures are simply too politically risky. The potential for blowback is too large, particularly when it comes to national security related issues.
Realistically, only a major judicial ruling--a modern day Youngstown--can restore the proper constitutional balance. For that reason, opponents of Bush's warrantless surveillance (and his Article II theories generally) must pursue a political and legal strategy designed to maximize the odds of the Court weighing in on this issue.
There are already several legal challenges underway. The lawsuit filed by the ACLU (on behalf of such plaintiffs as Christopher Hitchens and Larry Diamond) has some potential, but the plaintiffs must first establish that they have standing to sue, which will not be easy. Another legal challenge has been filed by lawyers for the al-Haramain Islamic Foundation claiming that the director of the organization was a target of the NSA's warrantless surveillance. This challenge has a better claim to legal standing, at least in theory, but its success will largely depend on the factual details of whatever surveillance actually took place.
For those of you who are unfamiliar with the concept of legal standing, the "case or controversy" clause of Article III of the Constitution has been interpreted to bar federal courts from issuing "advisory opinions." The courts will only hear genuine disputes between litigants with a personal stake in the outcome. This has come to be known as Article III standing. In order to proceed to the merits of a case, a plaintiff must first establish, as a threshold matter, that he has 1) suffered an "injury in fact," 2) that this injury is fairly traceable to the defendant's conduct, and 3) that a favorable decision by the court would redress this injury (for a primer on standing doctrine, see this). Standing doctrine is notoriously convoluted, and as a practical matter, judges tend to find standing exists when they want to address the merits of a case and find it lacking when they don't. Nevertheless, standing poses a major obstacle for any would-be challengers of the NSA program.
There are, however, a few proposals on the table that are potentially helpful in this regard. The first is a piece of proposed legislation by Chuck Schumer that would attempt to provide statutory standing for litigants (like Hitchens, Diamond, etc.) who claim that the NSA program has had a chilling effect on the exercise of their professional and constitutional rights. For a discussion of this bill, see this excellent post by Marty Lederman. The goal of Schumer's bill is to facilitate adjudication of the merits of suits like the one filed by the ACLU. While such a law would not guarantee that a court would find standing to exist, it would make such a ruling much more likely.
The problem, as Marty concedes, is that Schumer's bill stands virtually zero chance of becoming law. Even if Schumer could get enough Republicans to join him--which is unlikely to begin with--the bill would likely be vetoed. As a political matter, though, the bill would at least call the administration's bluff and make it crystal clear that they have no confidence whatsoever in the strength of their legal arguments. But then again, that's pretty clear already.
The other interesting avenue of legal challenge is the one proposed by Sean Patrick Maloney, a candidate for Attorney General in New York. Maloney, with the assistance of some other good lawyers, has actually drafted a complaint that could be used by any number of state Attorneys General to challenge the legality of the NSA program. The complaint alleges--among other things--that the NSA program violates a New York state law that forbids eavesdropping except as authorized by relevant state and federal laws. Many other states have similar laws. Determining whether the NSA program violates these laws would require a judge to determine whether or not the President acted within his constitutional power in authorizing the program. This sort of lawsuit may be less vulnerable to standing challenges than one filed by a private party.
Looming over all these legal challenges, however, is the possibility that new legislation will render the issues moot. If either the DeWine or the Specter bill passes, it will bring the NSA program within the letter of the law. At that point, the ACLU's standing argument--even if buttressed by the Schumer bill--would be seriously undermined. There would no longer be any illegal program causing a "chilling effect" on communications. And the declaratory and injunctive relief sought in that action would no longer make sense. The same is true of Maloney's Attorney General complaint, at least as it is currently drafted.
The passage of the DeWine or Specter bills would not retroactively legalize the surveillance that has already occurred, but it would make it very difficult to construct a viable legal vehicle for challenging the President's Article II theories.
For this reason, I've come to the conclusion that the best strategy for Democrats to pursue is to vigorously oppose any further amendments to FISA, at least until the courts have had a chance to weigh in on this issue. So long as the President claims the inherent authority to disregard FISA, amending FISA is not only a pointless exercise, but it will actually serve to delay or preclude judicial resolution of this constitutional impasse. The Democrats need to give this issue the time to work its way through the courts.
In the meantime, they should be prepared to filibuster any proposed FISA amendments should it be necessary. If the Republicans try to paint them as being obstructionist or opposed to legislation necessary to fight the war on terror, Democrats can simply point to statements like this one:
Similar statements have been made on numerous occasions by Scott McClellan and even the President himself. It will be pretty hard to paint the Democrats as opposing necessary legislation when the administration itself concedes that it is unnecessary. If the administration changes its tune and argues that authorizing legislation is necessary, that in and of itself, will be a significant victory.
What we need to do now, at least in my humble opinion, is buy time. We need to give these legal challenges a chance to proceed without being mooted by new legislation. Schumer's bill should be supported vigorously, even if its prospects for passage are slim. Attorneys General in solidly blue states should be encouraged to consider filing legal challenges similar to the one proposed by Sean Maloney. The more challenges that are filed, the better the chance that at least one of them will reach the merits. And when the administration is finally forced to make its frivolous legal arguments in front of federal judge, it's not going to be pretty.
As I've said before, I think Senator Feingold's censure resolution is an entirely reasonable and justified response to the flouting of a criminal statute by a sitting president. I also think that if Democratic politicians could muster the courage to stand together on this, the resolution could be good politics as well. That said, I've come to the same conclusion as Marty Lederman: "The only way for Congress to prevail in this important war-powers stand-off is if the Supreme Court declares the President's conduct unlawful."
In theory, Congress could re-assert its powers by making life very difficult for the president. It could threaten impeachment. It could hold the executive branch hostage by withholding funding for key initiatives. But there's simply no way that Congress is going to take these measures, even if by some miracle the Democrats manage to take back both chambers of Congress in November. Such extreme measures are simply too politically risky. The potential for blowback is too large, particularly when it comes to national security related issues.
Realistically, only a major judicial ruling--a modern day Youngstown--can restore the proper constitutional balance. For that reason, opponents of Bush's warrantless surveillance (and his Article II theories generally) must pursue a political and legal strategy designed to maximize the odds of the Court weighing in on this issue.
There are already several legal challenges underway. The lawsuit filed by the ACLU (on behalf of such plaintiffs as Christopher Hitchens and Larry Diamond) has some potential, but the plaintiffs must first establish that they have standing to sue, which will not be easy. Another legal challenge has been filed by lawyers for the al-Haramain Islamic Foundation claiming that the director of the organization was a target of the NSA's warrantless surveillance. This challenge has a better claim to legal standing, at least in theory, but its success will largely depend on the factual details of whatever surveillance actually took place.
For those of you who are unfamiliar with the concept of legal standing, the "case or controversy" clause of Article III of the Constitution has been interpreted to bar federal courts from issuing "advisory opinions." The courts will only hear genuine disputes between litigants with a personal stake in the outcome. This has come to be known as Article III standing. In order to proceed to the merits of a case, a plaintiff must first establish, as a threshold matter, that he has 1) suffered an "injury in fact," 2) that this injury is fairly traceable to the defendant's conduct, and 3) that a favorable decision by the court would redress this injury (for a primer on standing doctrine, see this). Standing doctrine is notoriously convoluted, and as a practical matter, judges tend to find standing exists when they want to address the merits of a case and find it lacking when they don't. Nevertheless, standing poses a major obstacle for any would-be challengers of the NSA program.
There are, however, a few proposals on the table that are potentially helpful in this regard. The first is a piece of proposed legislation by Chuck Schumer that would attempt to provide statutory standing for litigants (like Hitchens, Diamond, etc.) who claim that the NSA program has had a chilling effect on the exercise of their professional and constitutional rights. For a discussion of this bill, see this excellent post by Marty Lederman. The goal of Schumer's bill is to facilitate adjudication of the merits of suits like the one filed by the ACLU. While such a law would not guarantee that a court would find standing to exist, it would make such a ruling much more likely.
The problem, as Marty concedes, is that Schumer's bill stands virtually zero chance of becoming law. Even if Schumer could get enough Republicans to join him--which is unlikely to begin with--the bill would likely be vetoed. As a political matter, though, the bill would at least call the administration's bluff and make it crystal clear that they have no confidence whatsoever in the strength of their legal arguments. But then again, that's pretty clear already.
The other interesting avenue of legal challenge is the one proposed by Sean Patrick Maloney, a candidate for Attorney General in New York. Maloney, with the assistance of some other good lawyers, has actually drafted a complaint that could be used by any number of state Attorneys General to challenge the legality of the NSA program. The complaint alleges--among other things--that the NSA program violates a New York state law that forbids eavesdropping except as authorized by relevant state and federal laws. Many other states have similar laws. Determining whether the NSA program violates these laws would require a judge to determine whether or not the President acted within his constitutional power in authorizing the program. This sort of lawsuit may be less vulnerable to standing challenges than one filed by a private party.
Looming over all these legal challenges, however, is the possibility that new legislation will render the issues moot. If either the DeWine or the Specter bill passes, it will bring the NSA program within the letter of the law. At that point, the ACLU's standing argument--even if buttressed by the Schumer bill--would be seriously undermined. There would no longer be any illegal program causing a "chilling effect" on communications. And the declaratory and injunctive relief sought in that action would no longer make sense. The same is true of Maloney's Attorney General complaint, at least as it is currently drafted.
The passage of the DeWine or Specter bills would not retroactively legalize the surveillance that has already occurred, but it would make it very difficult to construct a viable legal vehicle for challenging the President's Article II theories.
For this reason, I've come to the conclusion that the best strategy for Democrats to pursue is to vigorously oppose any further amendments to FISA, at least until the courts have had a chance to weigh in on this issue. So long as the President claims the inherent authority to disregard FISA, amending FISA is not only a pointless exercise, but it will actually serve to delay or preclude judicial resolution of this constitutional impasse. The Democrats need to give this issue the time to work its way through the courts.
In the meantime, they should be prepared to filibuster any proposed FISA amendments should it be necessary. If the Republicans try to paint them as being obstructionist or opposed to legislation necessary to fight the war on terror, Democrats can simply point to statements like this one:
JIM LEHRER: Is the president willing to
work with Congress to settle some of the
legal disputes about the NSA surveillance
program?
VICE PRESIDENT DICK CHENEY: We
believe, Jim, that we have all the legal
authority we need.
Similar statements have been made on numerous occasions by Scott McClellan and even the President himself. It will be pretty hard to paint the Democrats as opposing necessary legislation when the administration itself concedes that it is unnecessary. If the administration changes its tune and argues that authorizing legislation is necessary, that in and of itself, will be a significant victory.
What we need to do now, at least in my humble opinion, is buy time. We need to give these legal challenges a chance to proceed without being mooted by new legislation. Schumer's bill should be supported vigorously, even if its prospects for passage are slim. Attorneys General in solidly blue states should be encouraged to consider filing legal challenges similar to the one proposed by Sean Maloney. The more challenges that are filed, the better the chance that at least one of them will reach the merits. And when the administration is finally forced to make its frivolous legal arguments in front of federal judge, it's not going to be pretty.
posted by A.L. at 8:32 AM
5 Comments:
Here's a few points:
1. Congress HAS succeeded; they don't want the president to obey the law; they want him powerful enough to carry out his policies.
2. Fengold's position is as important as any political strategy; he's STANDING UP FOR the Constitution of the United States; the president and much of Congress are committing treason by violating their oaths of office, and attempting to destroy the foundation of our country.
3. Congress needs to do their jobs, and the Supreme Court needs to do theirs; we'll find out who are patriots and who are traitors by their actions.
Publicus
Well AL are you an attorney in the right position or of sufficient clout to facilitate moving these issues into a court for a decision? You certainly seem to know what legal tack to take.
Getting the Democrats in Congress organized or gutzy enough to delay ammendments to FISA or laws legalizing the presidents actions with the NSA may be tough. The best we may be able to hope for is that the upper management of this administration continues to fall prey to their own twisted behavior like the DHS pedophile today and that continues to keep the Republicans unfocused.
I think we could have a different bill than Schumer's but it yields a slightly different view from Feingold's frontal statement.
What I would like is a congressional timeline measure wherein milestones would be defined in the progress toward modernizing FISA and progressively reeling in the executive's numerous autonomous activities.
Really, we want a strong executive, a vociferous and astute congress, and a sagacious judiciary; and, in times beset with conflict abroad, and on these shores, we want the three branches cooperating.
I think if there had never ever been illicit wiretapping or induced confessions, court stripping, or presidents toward the end of a 'UN police action' trying to assure steel production nonstop, there would be less purchase for the Republicans who now enjoy their first royal flush in the poker tournament of US politics and government.
Clearly, a broad swath of the legal profession balks (no ML pun intended, for the kind professor also writes at scotusblog) at the egregiousness of the extralegality of the conduct of this administration in many arenas. Yet, glance at capitol hill a trice or even at the supreme court itself and reassess where there is perfection.
I am glad your voice is added to the many addressing both article III and II issues.
Somehow I believe, in Hamdan SCOTUS is quite disposed to issuing at least a moderately disapproving opinion, to begin the process of undoing some excessively hasty executive action, though the timeframe for that opinion is months away, and Schumer's measure seems to grasp the urgency of beginning the process soon rather than slackening pressure in any way now in the fifth year since partial martial law has governed some parts of the society and reshaped foreign policy.
And our political system, once we travel to the polls four times in the next two years, ostensibly has the capacity to reduce some of the obsequy; and instead institute a more robust and reinvigorated world view, and reestablish some of the important rights of scholars and consultants whose activities are somewhat smothered by over-regulation at present, or, rather, over-disclosure, to who knows what data profiling paradigms.
It is important to advocate for restitution of these rights, without tilting at windmills which have a striking resemblance to torched twin-Towers.
New filing in lawsuit against AT&T exposes the NSA operation:
http://www.eff.org/news/
Anonymous Liberal –
Thanks for responding to my post re the SMOKING of CRACK on Glenn’s page. I really don’t want to seem pigheaded here, but this is quite important if the goal is to get the SCOTUS to decide this case favorably on the merits. And please accept my apologies for the crack-smoking rhetoric, just a bit of hyperbole to get attention.
The case that I believe is most analogous to the NSA program is Korematsu, in which the government claimed that the internment of U.S.-born Japanese was necessary for national security. While any one with half a brain knew that was utter racist crap, the Court wouldn’t second-guess the government where national security was at issue.
How is this relevant? Yes, it’s clear in the NSA case that the law was broken, just as the internment of people of Japanese ancestry was surely unconstitutional.
But let’s assume that it’s 16 days after a war is declared, and the President believes in good faith that FISA is too cumbersome to get the bad guys. And Congress refuses to disagree, notwithstanding it’s clear ability to do so. The Court would be extremely unlikely to hold the President to the rules of FISA if the Court thought that the President might be right. Because if the Court were to hold then that the President can’t take extraordinary action, and then a terrorist attack were to occur, the Court would be left holding the bag. The President would blame the Court, and Congress would as well, for not allowing the President to do what was necessary. And then we would have a real Constitutional crisis – if you think Roe v. Wade gives the right arguments that the Court is a bunch of out-of-touch elitists, the Court would really be in deep doo doo here. Everyone would say “how did the Court conclude that the program wasn’t necessary for national security?”
The reality is slightly different, in that the President kept doing it and continues to do it. That’s where most people have a problem, because we can kind of figure out that at some point, the President should have come clean. But for the Court, it’s really not much different than the paradigm case. When did the President go from breaking the law when it was really necessary (if it ever was), to just doing it out of a desire to expand Presidential power? After six months? A year? Two? We’re all not really up in arms that he did it at the beginning – we don’t really know whether it was necessary then. But we sure know that the President could have worked something out with Congress at some point in the past four years. Is the Court going to decide at what point this became impermissible?
On the other hand, if Congress claimed the Administration was acting illegally, say, after the passage of the Patriot Act, and had some hearings and concluded that FISA could have been complied with without endangering national security, the Court would be deciding the question of who, as between Congress and the President, has the right to authorize these searches. And if the Court chose Congress, and a terrorist attack occurred, Congress, not the Court, would be to blame.
As for Hamdi, with all due respect, I think that’s much different, because it’s not clear to me how the Court’s ruling in Hamdi – that he had a right to some minimal hearing -- could ever come back and bite it in the ass the way this could.
Jao commented that I suggested that Congress engage in factfinding on the Court’s behalf. That was not my suggestion. I was merely agreeing that the Court isn’t a fact-finding body, and that whether it was necessary for Bush to break the FISA laws is really a question of fact. Without an answer to that – which the Court simply cannot get without Congress having held some sort of investigation and coming to the conclusion that this could have been done another way, the Court wouldn’t risk saying the President acted illegally. And I know, as Glenn has often repeated, that the facts sufficient to show that the President failed to comply with FISA are already clear. And Congress should, in my view, impeach the President for not complying with FISA (as well as lying the country into a war, which I think is worse). But the real question for the SCOTUS is whether there was or is a real case to be made that FISA was insufficient to allow the President to protect the country, as the Administration claims.
Sorry to be so verbose, but again, my point is that if we want the SCOTUS to address this issue favorably, Congress must make this a fight between it and the administration, and that’s what I think we need to be trying to encourage. In my mind, the failure of the dems to support the Feingold resolution gives the SCOTUS tremendous cover to punt here. And when the Court has an opportunity to punt on cases that can be dangerous to its institutional standing, it usually has no problem doing so.
Like you, this is an issue that I care very deeply about. And it pains me to no end that the dems in power are, with one or two exceptions, such gutless, dishonest hacks, unable to do the right thing (vote for censure) even when it’s staring them in the face.
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