Will the NSA Program Be Reauthorized?

When the existence of the NSA warrantless surveillance program was first reported in December of last year, the President and his surrogates defended the program by assuring us that it was subject to a rigorous re-evaluation and reauthorization process every 45 days. In his radio address on December 17, 2005, Bush said the following:

The activities I authorized are reviewed approximately
every 45 days. . . .The review includes approval by our
nation's top legal officials, including the Attorney General
and the Counsel to the President. I have reauthorized this
program more than 30 times since the September the 11th
attacks, and I intend to do so for as long as our nation faces a
continuing threat from al Qaeda and related groups. The
NSA's activities under this authorization are thoroughly
reviewed by the Justice Department and NSA's top legal
officials, including NSA's general counsel and inspector
general.

There has been little reported about the internal deliberations of the NSA's lawyers, but presumably their legal reasoning mirrors that of the attorneys at the Justice Department. It has been reported that the Justice Department's Office of Legal Counsel (OLC) has issued at least two different legal memoranda addressing the NSA program. The first was written by the infamous John Yoo in 2001. The second (and presumably operative) legal memorandum was drafted in 2004 by former OLC head (now Harvard professor) Jack Goldsmith. Neither of these memoranda have been released publicly or provided to Congress, despite repeated requests, but the DOJ has released a 42 page white paper which presumably reflects the legal arguments contained in the memos.

In previous posts, I speculated that the Yoo memorandum--which served as the initial justification for the program--relied exclusively on a robust reading of article II, i.e., the assertion that the president has the inherent authority to disregard FISA in times of war. I speculated that the more recent Goldsmith memorandum relies predominantly (if not exclusively) on a broad reading of the Authorization for Use of Military Force (AUMF) passed by Congress shortly after 9/11. My speculation was later confirmed by the Washington Post.

I suspect that the Goldsmith memo was the product of a compromise reached between the White House and the Justice Department in 2004 when, reportedly, then-Acting Attorney General James Comey, with the support of Goldsmith, refused to reauthorize the program, at least for a time. Apparently a number of attorneys in the Justice Department, including Goldsmith and Comey, felt that the legal arguments on which the administration was relying were either insufficient or had gone "stale" as time had passed. The AUMF argument was an after-the-fact justification for the NSA program, and more than a bit of a stretch legally, but it had two primary virtues: 1) it was far less radical than an argument based solely on article II (because, in theory, the president was acting in accordance with the will of Congress) and 2) the Supreme Court's opinion in Hamdi provided some (though not much) rhetorical support for the argument.

For the last two years, this argument has served as the legal basis for the NSA program, and the Justice Department has, presumably, continued to sign off on the program every 45 days.

But, in light of the Supreme Court's decision last week in Hamdan, it seems likely that the White House will once again face some internal dissent. At some point within the next 40 days or so, the NSA program will need to be reauthorized. The problem is, there is no longer even a colorable legal basis for the program.

As I explained previously, the Hamdan decision represents a definitive rejection of the government's primary legal justification for the NSA program. If the AUMF does not authorize the president to disregard pre-existing laws when trying foreign combatants captured on the battlefields of Afghanistan (the very conflict the AUMF contemplated), it sure as hell does not authorize the president to disregard surveillance laws when spying on Americans on U.S. soil.

And the Addington/Yoo article II argument is so weak that the government didn't even bother to argue it in the Hamdan case, a case where it would seem to have been considerably stronger. The lawyers in the Justice Department clearly don't believe in this argument and probably haven't for some time, as evidenced by the OLC's withdrawal of support in 2004 for some of Yoo's earlier memos. Moreover, as the various opinions in Hamdan make clear (particularly Justice Kennedy's concurrence), no one on the Court--save perhaps Thomas--seems to have any patience for this radical argument.

Now, there's a long-standing debate as to the proper role of the government lawyer. Is his job to provide the president with his "best" interpretation of what the law is? Or should he provide the president with the most aggressive, legally-defensible reading of the law he can come up with? (For a good discussion of this issue, see this post by former OLC attorney Marty Lederman). There is no question that the Bush administration has long embraced the latter view.

But even under this advocacy model, there are limits. Government attorneys cannot, in good conscience, bless programs that are flatly inconsistent with existing Supreme Court precedent. And, in the wake of Hamdan, it's hard to see how any attorney could still conclude that article II and/or the AUMF give the President the authority to disregard the prohibitions of FISA. I don't see how the OLC will be able to justify signing off on its previously issued memo(s). At the very least, the memo(s) will have to be significantly reworked, because the arguments within them are now stale and discredited.

The White House will no doubt press very hard for the reauthorization of the program, but for government lawyers, this is going to be a real moment of truth. It's one thing to push the limits of the law on behalf of a client. It's quite another thing to take positions you know to be meritless. Even if you strongly believe that an argument should carry the day, there is a point at which you have to acknowledge that it hasn't. We've reached that point with respect to the arguments underlying the NSA program. I just hope the lawyers at the DOJ and NSA have the integrity to acknowledge it. If the President wishes to continue to disregard the law, he should have to do so without the blessing of the government's attorneys.