The Evolution of Conservative Constitutional Interpretation: A Case Study
One of the more fascinating aspects of the whole warrantless surveillance scandal is the evolution of conservative legal analysis (at least as exemplified in the conservative media) regarding issues of executive power. And nowhere is this evolution better illustrated that in the writings of the National Review's chief expert on such matters, former federal prosecutor Andrew McCarthy.
Back in 2003, the primary mission of most conservative legal writers was defending the Patriot Act against its critics, and because many of the most controversial provisions of the Patriot Act were amendments to the Foreign Intelligence Surveillance Act (FISA), writers like McCarthy took it upon themselves to defend FISA's legitimacy. In 2003, McCarthy wrote:
That all changed, of course, in December of 2005, when it was reported that the President had been violating FISA since shortly after 9/11. At that point, McCarthy's tune changed. This is from a column he wrote in January of 2006:
In an attempt to justify the president's circumvention of FISA, it became standard for conservative lawyers to argue, as McCarthy does above, that the president's war-related powers cannot be in any way constrained or limited by statute. That argument flew directly in the face of over 50 years of constitutional case law, dating back to Youngstown, which made it clear that the president's inherent authority can indeed by limited by duly enacted statutes. But conservatives like McCarthy didn't care. They just ignored the Youngstown line of cases and pretended that there was no difference between what a president can do in the absence of a relevant statute and what he can do in the face of one.
Then came the Hamdan decision in late 2006, in which the Supreme Court resoundingly affirmed this basic tenet of constitutional law. The court observed:
It is truly bizarre, though. It's as if 55 years of controlling Supreme Court precedent, including a widely-publicized case decided just last year, are totally irrelevant to the discussion. Such is the state of modern conservative legal analysis, at least in the media.
Back in 2003, the primary mission of most conservative legal writers was defending the Patriot Act against its critics, and because many of the most controversial provisions of the Patriot Act were amendments to the Foreign Intelligence Surveillance Act (FISA), writers like McCarthy took it upon themselves to defend FISA's legitimacy. In 2003, McCarthy wrote:
While essential, the alternative of wiretapping aimed at intelligence gathering was in a state of some disrepute in the post-Watergate era. Thus, in 1978, Congress enacted the Foreign Intelligence Surveillance Act (FISA) to clarify the legitimate parameters of such eavesdropping. FISA permits the government to bring information — often classified — to a special federal FISA court, which may then authorize wiretaps for counterintelligence purposes, provided there is probable cause that the target is an agent of a foreign power. (There is a respectable separation-of-powers argument to be made that Congress had no business giving federal courts a check on the executive branch's conduct of foreign counterintelligence, but the after-clap of the Nixon excesses was no time to make it, and at this point, after a quarter century, FISA is now settled law.)This was the consensus legal position among conservatives back in 2003. FISA was settled law and it required the president to get a warrant before conducting surveillance. The Patriot Act modernized FISA but didn't change the warrant requirement, so there was nothing to worry about.
That all changed, of course, in December of 2005, when it was reported that the President had been violating FISA since shortly after 9/11. At that point, McCarthy's tune changed. This is from a column he wrote in January of 2006:
To the contrary, Congress had placed itself above the law by ignoring the Constitution's separation of powers. By attempting through legislation to dilute the executive's constitutional power. Congress did so again with the Foreign Intelligence Surveillance Act, the 1978 statute which sought to make judicial approval, on a legal standard of probable cause, a prerequisite to national-security eavesdropping (and, now, searches). FISA may not be unconstitutional in all its particulars (although it may be — and it certainly needs overhauling if it is to avoid laughingstock status, pitted against 21st-century enemies versed in 21st-century technology). But to the extent FISA limits the power of the commander-in-chief to conduct warfare, to the extent it would transfer to judges the decision whether an essential incident of warfare may be used, it is no more constitutional — or rational — than if it had purported to put the courts in charge of military target selection, or other battlefield judgments.Suddenly FISA was both blatantly unconstitutional and hopelessly obsolete. Everything that was written about FISA in the 2001-2005 timeframe was suddenly inoperative. The Patriot Act's "modernization" of the FISA, which conservatives couldn't shut up about before, was never spoken of again, and it suddenly became absurd and naive to suggest that the president was required to get warrants for foreign intelligence surveillance.
In an attempt to justify the president's circumvention of FISA, it became standard for conservative lawyers to argue, as McCarthy does above, that the president's war-related powers cannot be in any way constrained or limited by statute. That argument flew directly in the face of over 50 years of constitutional case law, dating back to Youngstown, which made it clear that the president's inherent authority can indeed by limited by duly enacted statutes. But conservatives like McCarthy didn't care. They just ignored the Youngstown line of cases and pretended that there was no difference between what a president can do in the absence of a relevant statute and what he can do in the face of one.
Then came the Hamdan decision in late 2006, in which the Supreme Court resoundingly affirmed this basic tenet of constitutional law. The court observed:
Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 637 (1952) (Jackson, J., concurring). The Government does not argue otherwise.Even McCarthy was able to appreciate the significance of Hamdan vis-a-vis the controversy over FISA. In July of 2006, he wrote:
Under Hamdan’s logic, even if the president starts out with inherent Article II authority, that power — constitutional power — can now be rescinded by statute.It was always thus, of course, but I praised McCarthy at the time for at least recognizing that his argument had been thoroughly rejected by the Court. After observing that the argument for the supremacy of FISA was actually quite a bit stronger then the argument for the supremacy of the UCMJ (the statute held to be binding on the president in Hamdan) McCarthy conceded that the Court would almost surely find the NSA program to be illegal:
My own rule of thumb is to try to fight hard but fight fair, and admit when I’ve lost. I’ve lost.Flashforward to 2007. A year has passed and Hamdan has faded from memory. In an effort to defend Judge Mukasey's testimony before the Senate, McCarthy wrote the following in a column today:
FISA is a 1978 statute that attempted to limit the president’s power to order monitoring of foreign agents, including terrorists, who might pose a threat to the American people. The president’s authority in this area, however, comes from the Constitution. The Constitution cannot be changed, and its enumerated powers cannot be diminished, by a statute.Yes, Hamdan has clearly disappeared down the memory hole, as has Youngstown, yet again. In the rest of the column, McCarthy trots out all the rest of the discredited arguments and talking points that were popular during the December 2005 to July 2006 timeframe (which I've debunked before and don't have the energy to debunk again right now).
It is truly bizarre, though. It's as if 55 years of controlling Supreme Court precedent, including a widely-publicized case decided just last year, are totally irrelevant to the discussion. Such is the state of modern conservative legal analysis, at least in the media.
posted by A.L. at 3:34 PM
8 Comments:
I'm working on a treatise entitled, "The Evolution of a Liberal Intellectual's Mind." It's all about Norman Podhoretz. I intend to post it here in installments, and I will not stop until I receive no fewer than three reliable reports of readers having been bored to death by it.
The depressing part is that our side, which once criticized the Patriot Act as a dangerous infringement on civil liberties, is now in a failing rearguard attempt to hold George Bush to that.
McCarthy and conservatives were right about FISA between 2001 and 2005. Why? Because of the simple fact that no court case ever tested its constitutionality (and still hasn't).
Here's something else forgotten. With Youngstown, there was no declaration of war by Congress against North Korea. Truman, with a standing army, sent forces there as part of his Commander in Chief authority, but Congress never declared war. In 1950, there was no War Powers Resolution that gave the President the ability to make war without an official declaration but with Congressional approval. Did Truman violate the Constitution? I don't think so (as provided by Article II, Section 2), but arguments could be made that he did (I don't want to get into that here). As mentioned in the syllabus of Youngstown, Congress had provisions in place regarding labor disputes, and those provisions, as determined by the court, didn't cover the President's Commander in Chief authority.
Regarding Hamdan, the court got it right, but both you and McCarthy are wrong. The problem with the 2005 DTA that was challenged in Hamdan didn't have to do with the President overstepping his bounds, but that Congress didn't put enough into the 2005 DTA to make the military commissions constitutional. Military commissions are legal provided they follow the UCMJ, the Geneva Conventions, and are authorized by Congress, as was stated in Ex Parte Quirin (which is cited in Hamdan). The 2006 MCA may have fixed those problems, although that remains to be seen as the Supreme Court is to hear a challenge on it this term.
Returning to FISA and the terrorist surveillance program, there has been only one challenge to it (the TSP, not FISA) so far, and that was ACLU v. NSA. That was thrown out by the 6th Circuit because of the simple fact that the plaintiffs lacked standing; they couldn't prove they were "victims" of the program. Now, that may change if immunity isn't given to the telecommunications companies who provided the DoJ with information, and could open them up to all kinds of lawsuits. But, I believe the immunity will be in there when all is said and done.
McCarthy and conservatives were right about FISA between 2001 and 2005. Why? Because of the simple fact that no court case ever tested its constitutionality (and still hasn't).
That's some terrible logic, Steve. No court tested the constitutionality of this program because it wasn't disclosed until December 2005 (and even then, the government has fought hard to dismiss cases on procedural grounds, thus avoiding scrutiny on the merits). But it is certainly not true that courts hadn't opined on the basic constitutional question at issue here. The Youngstown line of cases addresses exactly this interplay between statutory and constitutional power.
Your emphasis on lack of a war declaration during the Korean war is a sideshow. Youngstown's analysis did not turn on that. Nor did the analysis is subsequent cases.
Your analysis of Hamdan is off too. The DTA wasn't relevant to Hamdan except for the threshold jurisdictional issue. The core issue in Hamdan was whether the president could authorize tribunals under his own authority that were inconsistent with statutory requirements (contained in the UCMJ). The court held that he could not. If the UCMJ is binding on issues relating to the detention of foreign combatants held outside the U.S., then surely FISA is also binding on the president.
The administration clearly thinks Hamdan controls, which is why they took the program to the FISA court shortly afterward and are now seeking new legislation (because the FISA court held parts of the program to be illegal).
I would like to hear how these asshats argue the "inherent Constitutional powers of the President" that are beyond limitation by Congress fits in with Article 1, Section 8 (pride of first place, that Article 1) of the Constitution that states:
To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;
This clearly means that Congress determines how prisoners of war, illegal enemy combatants, etc, are to be treated, NOT the President. Then there is:
To make rules for the government and regulation of the land and naval forces;
Hmmm..."make rules for the government" which, oddly enough, includes the Executive branch. Thus, there is NO power of the President that isn't subject to the rule making powers of the Congress. Nowhere in the inferior Article 2 of the Constitution does it say the President is beyond the law or beyond the rules of government established by the superior Congress.
How do they parse Article 1, Section 8 with their supermagical kingly power of the President?
That's some terrible logic, Steve. No court tested the constitutionality of this program because it wasn't disclosed until December 2005 (and even then, the government has fought hard to dismiss cases on procedural grounds, thus avoiding scrutiny on the merits).
My logic is fine. I was talking about FISA. And it hasn't been tested while the U.S. has fought a congressionally authorized war.
Your emphasis on lack of a war declaration during the Korean war is a sideshow. Youngstown's analysis did not turn on that. Nor did the analysis is subsequent cases.
Your other post that referred to Youngstown contained excerpts of Justice Jackson's concurring opinion that did "turn on that", the fact that there were troops sent to Korea, by directive of President Truman, but without a declaration of war, or any other congressional authorization. That is one of the highlights of Jackson's opinion.
If the UCMJ is binding on issues relating to the detention of foreign combatants held outside the U.S., then surely FISA is also binding on the president.
I think not. Article I, Section 8, clearly states that Congress has the authority when it comes to what has to happen to prisoners captured during wartime. But the TSP is a military tactic used by the military arm of the U.S. government, and under the authority of the Commander in Chief (the President's Article II, Section 2 powers). As I mentioned, the TSP has not been tested, although the only case that has come up, ACLU v. NSA, was ruled in favor of the government.
The administration clearly thinks Hamdan controls, which is why they took the program to the FISA court shortly afterward and are now seeking new legislation (because the FISA court held parts of the program to be illegal).
I would bet my bottom dollar that the administration has taken the steps it has because they wanted to codify what is already invested in his powers, and didn't need to waste the time with a court challenge, based on the opinion of an unelected judge, to challenge it further (although it may do that as well).
One other thing. Members of Congress have been informed about the TSP since nearly the beginning, and there was no challenge from Democrats until the leak to the New York Times. The one person who had been involved that whole time was Nancy Pelosi, when she was ranking member of the House Intelligence Committee, and when she was House Minority leader. To think the administration operated in a vacuum is dishonest.
steveil,
First, you're wrong about Youngstown. While Justice Jackson did question, in dicta, the president's power to start wars unilaterally, he assumed that the Korean was was legit for the purposes of his analysis ("Assuming that we are in a war de facto, whether it is or is not a war de jure, does that empower the Commander in Chief to seize industries he thinks necessary to supply our army?")
Subsequent cases have made clear that the Youngstown framework applies during wartime just as it does during non-wartime.
But the TSP is a military tactic used by the military arm of the U.S. government, and under the authority of the Commander in Chief (the President's Article II, Section 2 powers).
Suffice it to say, Steve, there is precisely zero case law (or constitutional text for that matter) that supports the proposition that the president has exclusive article II authority when it comes to the surveillance of U.S. persons. Such an argument would get laughed out of court, which is why the administration has refused to make it.
As I mentioned, the TSP has not been tested, although the only case that has come up, ACLU v. NSA, was ruled in favor of the government..
This both inaccurate and misleading. First, only two of the judges in the ACLU case (the district judge and the dissenting appellate judge) reached the merits of the issue, and both found the program illegal. The other two appellate judges found in favor of the government solely on procedural grounds (standing and state secrets). Judge Lynch in NY also expressed extreme skepticism of the program's legality in oral arguments, but the case was transferred to the MDL before he could rule on it. Not a single judge has ever even suggested that the administration is right on the merits.
Moreover, there is one court that has ruled on the program. The FISA court. Although the order hasn't been made public, reports indicate that the FISA court ruled the program illegal in May of this year, thus requiring the government to once again seek warrants. It was this ruling that caused the administration to seek rapid relief from Congress in the form of the Protect America Act.
Finally, you're also wrong about the Congressional reaction to this. Reports indicate that the administration's briefings were technical in nature, not legal, and there was no indication given by the briefers that FISA was being circumvented. Moreover, the briefings were so highly confidential that these members of Congress were not allowed to discuss what they'd heard with their staff or counsel, thus making it next to impossible for them to assess the legality of the program. And finally, one of these members of Congress, Jay Rockefeller, did protest. He sent a letter to Cheney saying that he was worried about the legality of the program, but couldn't make an assessment because he couldn't talk to his staff. Cheney ignored the letter.
Subsequent cases have made clear that the Youngstown framework applies during wartime just as it does during non-wartime.
Which ones? And again, we weren't at war as far as Congress was concerned, and there was no War Powers Resolution for the administration to fall back on. I think it's a bigger deal than you think.
Suffice it to say, Steve, there is precisely zero case law (or constitutional text for that matter) that supports the proposition that the president has exclusive article II authority when it comes to the surveillance of U.S. persons.
I agree. But, the only case that has come up was ACLU v. NSA, of which I discussed already. The fact that two judges (the ones that count; one district judge and one circuit judge does not equal two circuit judges) maintained the plaintiffs had no standing says it all. Judge Taylor's ruling was completely political, not legal (yes, I read it).
Now, I do agree with you that the administration went ahead to get an update to FISA due to a potential FISA court ruling; but, I suspect the update was due more to expediency; there is still a war on.
Moreover, the briefings were so highly confidential that these members of Congress were not allowed to discuss what they'd heard with their staff or counsel, thus making it next to impossible for them to assess the legality of the program.
I think not. Members of Congress are protected by Article I, Section 6, provided members discuss these matters as part of doing the business of the state. Look at the kerfuffle caused by the DoJ when, with a warrant, they searched the congressional offices of William Jefferson. That letter thing by Rockefeller is a load of BS as well. He writes one hand-written letter to Cheney, then never follows up. He also wasn't a chairman or ranking member of that committee before 2003 (Bob Graham was Chairman during the 107th Congress), and wouldn't have been allowed to know about the TSP as it was covert, as defined by 50 U.S.C. § 413b (subsection (c)(2)). What we have is a case of Rockefeller not doing any real due diligence and trying to make political hay out of it. That has been pretty much par for the course for Congress for decades, regardless of whether or not Democrats or Republicans were in the majority.
Post a Comment
Links to this post:
Create a Link
<< Home