From the Vault
In the second-to-last paragraph of its letter to Senator Schumer yesterday, the Justice Department again suggested, albeit obliquely, that the Foreign Intelligence Surveillance Act (FISA) is unconstitutional, at least as applied to the NSA program. The argument is that FISA unconstitutionally infringes upon the president's article II authority as Commander-in-Chief.
I'm quite confident that no one at the DOJ has ever believed, even before Hamdan, that any court is likely to agree with them on this point, which is why they always make this argument last, and never in a straight-forward way. In its public statements and legal documents, the DOJ has instead focused primarily on the AUMF theory of authorization, knowing that it is (or I should say was) the theory more likely to be taken seriously by the courts.
Nevertheless, because of its relative simplicity, the article II argument has become the argument of choice among the NSA program's lay defenders (both in Congress and Punditland). Therefore, it's important to be able to explain, in layman's terms, why this argument is so specious. In that spirit (and because I don't have time tonight to write anything new or insightful), I'd like to point you toward two previous posts I've written on this very subject:
1) Putting to Rest the Administration's "Inherent Authority" Argument
2) Why FISA Must Be Constitutional
For long-time readers of this blog, I apologize for recycling posts. But given the steady increase in traffic here over the last few months, I'm sure these posts are new to many of you. And, sadly, given the DOJ's stubborn refusal to face the reality of the Hamdan decision, these posts are just as timely as they were when I originally wrote them.
I'm quite confident that no one at the DOJ has ever believed, even before Hamdan, that any court is likely to agree with them on this point, which is why they always make this argument last, and never in a straight-forward way. In its public statements and legal documents, the DOJ has instead focused primarily on the AUMF theory of authorization, knowing that it is (or I should say was) the theory more likely to be taken seriously by the courts.
Nevertheless, because of its relative simplicity, the article II argument has become the argument of choice among the NSA program's lay defenders (both in Congress and Punditland). Therefore, it's important to be able to explain, in layman's terms, why this argument is so specious. In that spirit (and because I don't have time tonight to write anything new or insightful), I'd like to point you toward two previous posts I've written on this very subject:
1) Putting to Rest the Administration's "Inherent Authority" Argument
2) Why FISA Must Be Constitutional
For long-time readers of this blog, I apologize for recycling posts. But given the steady increase in traffic here over the last few months, I'm sure these posts are new to many of you. And, sadly, given the DOJ's stubborn refusal to face the reality of the Hamdan decision, these posts are just as timely as they were when I originally wrote them.
posted by A.L. at 11:38 PM
3 Comments:
Dear AL,
I have been reading the blog for about a year, and this post particularly, really stands out as the reason why I come here. You are a professional lawyer with in depth knowledge and understanding of these "national story" issues we are constantly bombarded with on all the mainstream news outlets. Your commentary gives the layperson (such as myself) very clear understanding of what is truelly going on, and you tend to do so with blunt objectivity. Being liberal to you obviously means living up to the quote you bear at the top of the page: critical and objective analysis and consideration of all points.
I just want to say thanks and keep up the excellent work!
Brandon
I agree with the above. I started reading you when you first started filling in for Greenwald.
I love Greenwald, too, but you are not nearly as verbose as he is, and you get to the point. I sometimes go through an entire cup of coffee with Greenwald's posts, compared to a few sips for yours.
It is 'real' patriots such as Glenn and yourself that give this American hope.
Keep up the good work!
Glenn really says very little sometimes with tons of words - but he is the new darling of that circle of links with no expertise except for the "holiday inn express" know-it-all-attitude that everyone that runs with that set has.
Read the threads at glenn's - it is obvious that many (if not most) don't read more than the first paragraph or perhaps latest update -- just too much blah blah blah...
Hope you keep your to-the-point style though I doubt it will ever put you on the top of that endless circle of links to the same bunch of morons.
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