The Standoff Over the NSA Program Legal Documents
After issuing nine formal requests for documents related the NSA warrantless surveillance program and being repeatedly stonewalled by the Bush administration, the Senate Judiciary Committee today finally voted (by a 13-3 margin) to issue subpoenas for the documents. It's about time.
What the members of the Judiciary Committee are interested in are the various internal legal opinions and memoranda that address the legality of domestic warrantless surveillance. Though I've addressed this issue before, I thought I'd take a second to explain why--in all likelihood--the Bush administration is so worried about turning these documents over.
In the various public documents and legal briefs that the administration has issued since the existence of the NSA program was first reported in December of 2005, the government has relied on just two arguments to justify the program. The first is statutory in nature. The administration argues that Congress implicitly authorized the use of domestic warrantless surveillance (despite FISA's clear warrant requirement) when it passed in the Authorization for Use of Military Force (AUMF) shortly after 9/11.
Alternatively, the administration argues that Article II of the Constitution provides the president with the "inherent" authority to order warrantless surveillance in wartime regardless of what the law says. As I've explained in some detail in previous posts, neither of these arguments has any support in the case law or legislative record, which is why the administration eventually stopped circumventing the FISA Court (or at least claims to have stopped).
But, you ask, if the administration's legal arguments are already a matter of public record, why are they so reluctant to turn over their internal memoranda? Well, I suspect there are (at least) two highly embarrassing facts that the memos would confirm:
1) that the administration's primary legal justification for the program--the AUMF argument--wasn't even conceived until early to mid 2004, almost 3 years after the program began, and
2) that the administration's own lawyers (Goldsmith and Comey) determined in 2004 that the administration's other argument--that Article II trumps FISA's warrant requirement--is meritless and cannot justify the circumvention of FISA.
These revelations would be problematic for the Bush administration in a number of ways. First, the fact that no one thought of the AUMF argument until almost 3 years after that resolution was passed and the program had been in operation underscores just how silly that argument is.
It's the second revelation that would be the most damaging, though. If true, and I suspect it is, it would mean that the administration put forth an argument in 2006 and 2007 that its own lawyers had rejected in 2004.
Here's what I think happened. In early 2004, James Comey and Jack Goldsmith (and perhaps Patrick Philbin as well) began reviewing existing OLC legal opinions and concluded that a number of them were based on a highly dubious interpretation of Article II. They concluded, among other things, that the DOJ could no longer authorize the NSA program, that Article II did not give the president the authority to disregard FISA. This determination set in motion the events that led to the now infamous hospital room encounter.
The standoff was eventually resolved when Goldsmith and his team at the OLC came up with the AUMF argument and the administration agreed to tailor the program to comport with this new statutory theory. The program, in its adjusted form, continued.
The following year, Ashcroft, Comey, Goldsmith, and Philbin all left the DOJ. When the New York Times broke the story in December 2005, the administration's initial attempts to defend the program focused heavily on the supposed authority provided by the AUMF. This argument--which is too cute by half--did not sit very well with members of Congress, most of whom had voted for the AUMF and were adamant that they did not authorize the president to disregard FISA.
At this point, sensing that the AUMF argument wasn't playing very well publicly, the administration decided to resurrect the very argument that Comey and Goldsmith had rejected in 2004, that Article II somehow trumped FISA. That argument quickly became the chief talking point that administration apologists in Congress and the media used to defend the program. It was repeated so often, and with such conviction, that even critics of the NSA program like Arlen Specter began to internalize it and treat it as if it were a legitimate argument.
If I'm right, then these internal documents show that the Bush administration publicly defended the NSA program by resorting to an argument that had been discredited and abandoned by its own lawyers years earlier. If so, I doubt we'll ever see the documents.
What the members of the Judiciary Committee are interested in are the various internal legal opinions and memoranda that address the legality of domestic warrantless surveillance. Though I've addressed this issue before, I thought I'd take a second to explain why--in all likelihood--the Bush administration is so worried about turning these documents over.
In the various public documents and legal briefs that the administration has issued since the existence of the NSA program was first reported in December of 2005, the government has relied on just two arguments to justify the program. The first is statutory in nature. The administration argues that Congress implicitly authorized the use of domestic warrantless surveillance (despite FISA's clear warrant requirement) when it passed in the Authorization for Use of Military Force (AUMF) shortly after 9/11.
Alternatively, the administration argues that Article II of the Constitution provides the president with the "inherent" authority to order warrantless surveillance in wartime regardless of what the law says. As I've explained in some detail in previous posts, neither of these arguments has any support in the case law or legislative record, which is why the administration eventually stopped circumventing the FISA Court (or at least claims to have stopped).
But, you ask, if the administration's legal arguments are already a matter of public record, why are they so reluctant to turn over their internal memoranda? Well, I suspect there are (at least) two highly embarrassing facts that the memos would confirm:
1) that the administration's primary legal justification for the program--the AUMF argument--wasn't even conceived until early to mid 2004, almost 3 years after the program began, and
2) that the administration's own lawyers (Goldsmith and Comey) determined in 2004 that the administration's other argument--that Article II trumps FISA's warrant requirement--is meritless and cannot justify the circumvention of FISA.
These revelations would be problematic for the Bush administration in a number of ways. First, the fact that no one thought of the AUMF argument until almost 3 years after that resolution was passed and the program had been in operation underscores just how silly that argument is.
It's the second revelation that would be the most damaging, though. If true, and I suspect it is, it would mean that the administration put forth an argument in 2006 and 2007 that its own lawyers had rejected in 2004.
Here's what I think happened. In early 2004, James Comey and Jack Goldsmith (and perhaps Patrick Philbin as well) began reviewing existing OLC legal opinions and concluded that a number of them were based on a highly dubious interpretation of Article II. They concluded, among other things, that the DOJ could no longer authorize the NSA program, that Article II did not give the president the authority to disregard FISA. This determination set in motion the events that led to the now infamous hospital room encounter.
The standoff was eventually resolved when Goldsmith and his team at the OLC came up with the AUMF argument and the administration agreed to tailor the program to comport with this new statutory theory. The program, in its adjusted form, continued.
The following year, Ashcroft, Comey, Goldsmith, and Philbin all left the DOJ. When the New York Times broke the story in December 2005, the administration's initial attempts to defend the program focused heavily on the supposed authority provided by the AUMF. This argument--which is too cute by half--did not sit very well with members of Congress, most of whom had voted for the AUMF and were adamant that they did not authorize the president to disregard FISA.
At this point, sensing that the AUMF argument wasn't playing very well publicly, the administration decided to resurrect the very argument that Comey and Goldsmith had rejected in 2004, that Article II somehow trumped FISA. That argument quickly became the chief talking point that administration apologists in Congress and the media used to defend the program. It was repeated so often, and with such conviction, that even critics of the NSA program like Arlen Specter began to internalize it and treat it as if it were a legitimate argument.
If I'm right, then these internal documents show that the Bush administration publicly defended the NSA program by resorting to an argument that had been discredited and abandoned by its own lawyers years earlier. If so, I doubt we'll ever see the documents.
posted by A.L. at 9:41 PM
7 Comments:
They can simply transfer the documents to the Office of the VP, where no oversight, executive or legislative, rules. Apparently the shredders have been very busy there since last year's election, but I'm sure they could fit this in.
Seriously, this blatant disregard for law and oversight simply must be stopped. Perhaps it's time for Cheney to step down for "health reasons" -- I'm sure there's a clinic in Paraguay or Albania or Dubai where he'd be safe from those congressional stalkers (or do I mean staffers?) for a year and a half.
Bush could then come clean, blame it all on Cheney, throw a bunch more underlings to the wolves, and slide into the oblivion that he so deserves.
Great post. Makes sense to me.
Here's what I don't understand, and I haven't heard any comments on this matter. Does the president have any legal authority to interpret the constitution and make decisions based on his view of the constitutionality of law? Let's, for the sake of argument, assume that the president has a perfectly reasonable argument that he and his legal experts believe that Article II does not allow FISA to restrict wiretapping in the way it does. That is tantamount to saying that parts of FISA are unconstitutional. But can the president declare anything unconstitutional? My understanding, and I may be wrong, is that only the Supreme Court can decide the constitutionality of the law.
So in short, my understanding is that, if the president believes that this law which has been on the books since long before he was president is at odds with the constitution, his only recourse is to get the issue before the Supreme Court and have them make a ruling on that matter. His opinions on the constitutionality of the law are irrelevant to the matter of whether he should be following it, absent any attempt to bring the matter before the courts. Am I correct here or are there other interpretations of the constitution on this matter?
Those three that voted not to subpoena should be kicked off the committee. They have no interest in oversight and are just there as proxies of the Bush administration. This is getting interesting, Cheney is not in the executive branch and Republican senators are not in the legislative. Hhmmmm........
just wanted to say that you come off in this post as a genuine expert, and I think it is not yet recognized how substantive and valuable the content of this blog is. Hopefully that changes soon.
I don't think they're any more concerned about turning over these documents than they were concerned about turning over Clinton-era documents relating to his eleventh-hour pardons of such luminaries as Marc Rich. I think in both instances they feel that executive privilege properly prevents their doing so, and they will stand on that principle. They will prevail, as we shall see.
"Does the president have any legal authority to interpret the constitution and make decisions based on his view of the constitutionality of law?"
He not only has the legal authority, he has the constitutional duty to do so. Here is what Mr. Clinton's White House Counsel, the estimable Bernard Nussbaum, had to say about "signing statements" in 1993:
"This memorandum provides you with an analysis of the legal significance of Presidential signing statements. It is addressed to the questions that have been raised about the usefulness or validity of a such statements. We believe that such statements may on appropriate occasions perform useful and legally significant functions. These functions include (1) explaining to the public, and particularly to constituencies interested in the bill, what the President believes to be the likely effects of its adoption, (2) directing subordinate officers within the Executive Branch how to interpret or administer the enactment, and (3) informing Congress and the public that the Executive believes that a particular provision would be unconstitutional in certain of its applications, or that it is unconstitutional on its face, and that the provision will not be given effect by the Executive Branch to the extent that such enforcement would create an unconstitutional condition."
When the president believes a law to be unconstitutional in whole or in part, and to that extent declines to comply with it, he is under no duty to present the question to the Supreme Court for resolution. In most instances when such a question does reach that Court and it rules against the president, he complies (see, e.g. Richard Nixon).
Not always, however. When Andrew Jackson found fault with a ruling by Mr. Chief Justice Marshall over the Indian Removal Act, he famously said (or is believed to have said), "Mr. Marshall has made his order. Now let him enforce it." Regardless of whether Jackson issued such an utterance, there is no question but that he declined to obey Marshall's order.
It is an excellent opportunity for a valuable civics lesson when Mr. Bush acts in such a manner as to inflame the dolts on the Left. And not only must they learn to live with his actions, and come to grips with their ultimate legality, but they also are afforded the opportunity to discipline themselves, and to learn to accept what they cannot change, no matter how inclined they are to throw a tantrum. Ultimately, it is for their own good.
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