Mukasey's Tortured Response on Wiretapping
(cross-posted at Crooks and Liars)
In his confirmation hearing last week, the following exchange took place between Senator Leahy and Attorney General nominee Michael Mukasey:
Moreover, it's worth remembering how this constitutional controversy arose in the first place. In the immediate aftermath of 9/11, the Bush administration and Congress appeared to do exactly what Mukasey suggests is the ideal way of handling this issue. The Justice Department pointed to a number of aspects of FISA that it found to be inadequate and outdated and it asked for amendments. Congress obliged and passed the Patriot Act, which contained a number of key amendments to FISA. When he signed the Patriot Act into law on October 26, 2001, President Bush said:
Indeed, after the Patriot Act was signed, the Bush administration, for years, gave every outward indication that it was happy with the state of the law. As Glenn Greenwald first reported, in 2002 the Bush administration actually opposed an amendment to FISA proposed by Senator Mike DeWine that would have lowered the standard needed to secure a warrant. Testifying on behalf of the administration, James A. Baker of the Justice Department stated that the amendments included in the Patriot Act were sufficient and that they had "enabled the government to become quicker, more flexible, and more focused in going 'up' on those suspected terrorists in the United States."
And in 2003, John Yoo himself noted, in an op-ed in the Wall Street Journal, that "[n]o court has ever found FISA to be unconstitutional, and just last year a special panel of federal appeals court judges reviewed the Patriot Act's central modification of FISA and unanimously found it constitutional."
Yet when the existence of the NSA warrantless surveillance program was first reported in December of 2005, the Bush administration insisted that it was forced to bypass FISA because the law was outdated and inadequate, an obsolete relic from the era of rotary telephones. And folks like John Yoo went out and argued that to the extent FISA purports to limit the President's authority, it is and has always been unconstitutional.
This is the administration that Mukasey will be joining, if confirmed. He writes that "FISA appears to be a model of . . . cooperation and mutual respect" and that "[t]his approach has served us well." Perhaps that's true in some parallel universe, but in this one, the Bush administration demonstrated zero respect for Congress and the rule of law for the better part of six years. Not only was there no cooperation, there was outright deception.
I'm glad that Mukasey believes in working cooperatively with Congress, but there are many within the Bush administration who don't, and what we really need to know is whether Mukasey is prepared to authorize activity that goes beyond the authority Congress has provided.
In his confirmation hearing last week, the following exchange took place between Senator Leahy and Attorney General nominee Michael Mukasey:
LEAHY: . . . where Congress has clearly legislated in an area, as we've done in the area of surveillance with the FISA law, something we've amended repeatedly at the request of various administrations, if somebody -- if it's been legislated and stated very clearly what must be done, if you operate outside of that, whether it's with a presidential authorization or anything else, wouldn't that be illegal?Following the hearing, Leahy wrote to Mukasey asking him to clarify his answer to this clearly important question. Today, Leahy's office released Mukasey's tortured (if you'll pardon the pun) response. Mukasey writes:
MUKASEY: That would have to depend on whether what goes outside the statute nonetheless lies within the authority of the president to defend the country.
As I tried to stress during the hearing, government works best, and with the greatest legitimacy, when the branches act cooperatively, each with respect for the other's constitutional prerogatives. I agreed more than once that consultation between the Committee and the Department often can prevent issues from evolving into controversies. FISA appears to be a model of such cooperation and mutual respect. Thus, foreign intelligence gathering is a field in which the executive branch is regulated but not preempted by Congress. This approach has served us well.That is what we lawyers call a non-responsive answer. All Mukasey is saying here is that the question of whether the president has the authority to violate a duly enacted statute can be avoided if Congress gives the president all the authority he asks for. That's undoubtedly true, but completely unhelpful. What Leahy wants to know (and deserves to know) is whether Mukasey believes that the President has the authority disregard FISA. It's great that Mukasey thinks the President should "work with" Congress to amend the law when he determines it is no longer "adequate," but the question is: at the end of the day, is the President bound to follow the law, whether or not he gets the amendments he seeks? And that's the question Mukasey goes out of his way not to answer.
As you noted, Congress has amended FISA several times at the request of the executive branch. To the extent FISA may be (or become) inadequate to the task of responding to threats we confront, it is imperative that the branches work together to amend the statute. I am not of the view that the President's constitutional authority to conduct the foreign affairs of the United States and protect our national security is inevitably in tension with Congress's power to legislate in those same areas. To the contrary, if confirmed, I would be a strong advocate for a cooperative approach to Congress in this and other matters of national security. During the hearing, I mentioned the danger of heedlessly carrying a principle off a cliff. There is no reason to provoke a constitutional controversy over a process that works well most of the time, that can be fixed where it does not work, and that involves the security of the American people.
Moreover, it's worth remembering how this constitutional controversy arose in the first place. In the immediate aftermath of 9/11, the Bush administration and Congress appeared to do exactly what Mukasey suggests is the ideal way of handling this issue. The Justice Department pointed to a number of aspects of FISA that it found to be inadequate and outdated and it asked for amendments. Congress obliged and passed the Patriot Act, which contained a number of key amendments to FISA. When he signed the Patriot Act into law on October 26, 2001, President Bush said:
We're dealing with terrorists who operate by highly sophisticated methods and technologies, some of which were not even available when our existing laws were written. The bill before me takes account of the new realities and dangers posed by modern terrorists. It will help law enforcement to identify, to dismantle, to disrupt, and to punish terrorists before they strike. . . .Yet as we now know, over a month earlier, on September 25, 2001, John Yoo had completed a legal opinion authorizing the launch of a surveillance program that clearly violated FISA. Despite the fact that they were actively negotiating amendments to FISA at the time, the Bush administration never even proposed amending FISA in a way that would have allowed for this new program.
The existing law was written in the era of rotary telephones. This new law I sign today will allow surveillance of all communications used by terrorists, including e-mails, the Internet, and cell phones. As of today, we'll be able to better meet the technological challenges posed by this proliferation of communications technology.
Indeed, after the Patriot Act was signed, the Bush administration, for years, gave every outward indication that it was happy with the state of the law. As Glenn Greenwald first reported, in 2002 the Bush administration actually opposed an amendment to FISA proposed by Senator Mike DeWine that would have lowered the standard needed to secure a warrant. Testifying on behalf of the administration, James A. Baker of the Justice Department stated that the amendments included in the Patriot Act were sufficient and that they had "enabled the government to become quicker, more flexible, and more focused in going 'up' on those suspected terrorists in the United States."
And in 2003, John Yoo himself noted, in an op-ed in the Wall Street Journal, that "[n]o court has ever found FISA to be unconstitutional, and just last year a special panel of federal appeals court judges reviewed the Patriot Act's central modification of FISA and unanimously found it constitutional."
Yet when the existence of the NSA warrantless surveillance program was first reported in December of 2005, the Bush administration insisted that it was forced to bypass FISA because the law was outdated and inadequate, an obsolete relic from the era of rotary telephones. And folks like John Yoo went out and argued that to the extent FISA purports to limit the President's authority, it is and has always been unconstitutional.
This is the administration that Mukasey will be joining, if confirmed. He writes that "FISA appears to be a model of . . . cooperation and mutual respect" and that "[t]his approach has served us well." Perhaps that's true in some parallel universe, but in this one, the Bush administration demonstrated zero respect for Congress and the rule of law for the better part of six years. Not only was there no cooperation, there was outright deception.
I'm glad that Mukasey believes in working cooperatively with Congress, but there are many within the Bush administration who don't, and what we really need to know is whether Mukasey is prepared to authorize activity that goes beyond the authority Congress has provided.
posted by A.L. at 2:17 PM
15 Comments:
Mukasey's answer is what we lawyers call entirely appropriate, and utterly unassailable. As both Mr. Mukasey and Senator Leahy are well aware, to the extent that the question posed has been adjudicated, it has universally been ruled that the president can, indeed, engage in these activities even if a congressional enactment appears to forbid it.
All the precedents that are the most closely on point support the president's (and president's) power to do what Mr. Bush has done. Mrs. Clinton will have the same power, and she will use it.
neutral, if you're such a legal expert, cite some authority. This is an area of the law I know a lot about and I can assure you that you're wrong. The Youngstown line of cases makes clear that so long as Congress is within its own authority in passing as statute (and Congress's authority is extensive), the President cannot disregard the statute. That was the holding in Hamdan just last year. The president was rebuked by the court for acting outside of the Uniform Code of Military Justice, a duly enacted statute.
There is no authority anywhere that suggests that Congress lacks the power to pass laws like FISA. None. So the president cannot disregard it. The administration knows this, which is why they eventually took the program before the FISA court last year and are seeking legislation now. They knew it was just a matter of time before the program was ruled illegal.
[Hokay—aut’orities. A.L. say he want aut’orities. Hokay. I show heem de stinking aut’orities.]
First, A.L., since you “know a lot about this,” I take it there is no need for me to rehash the numerous pre-FISA cases from the Second, Third, Fourth, Fifth and Ninth Circuits acknowledging a clearly established presidential constitutional power to conduct warrantless surveillance for the purpose of gathering foreign intelligence. You might want to consider whether any such clearly established power was at issue in either Youngstown (the power to seize the property of an entire industry to prevent a work stoppage) or Hamdan (the power to establish a tribunal inconsistent with the Uniform Code of Military Justice). You might also want to consider whether, in either of those cases, upholding congressional limitations on such power entailed any heightened risk of catastrophic attacks on American citizens.
The pre-FISA case law was summarized by the Second Circuit in U.S. v. Duggan, 743 F. 2d 59 (1984): “Prior to the enactment of FISA, virtually every court that had addressed the issue had concluded that the President had the inherent power to conduct warrantless surveillance to collect foreign intelligence information…”
So I suppose we are in agreement that, in the absence of FISA, the presidential authority in question was clear, universally recognized, virtually unquestioned, and long-established. Cf. Youngstown and Hamdan.
Given our agreement on the president’s constitutional power, the question becomes whether this undoubted power can be circumscribed by congressional enactment. As it happens, that very question was addressed by the FISA Court of Review (comprised of three federal appellate judges) in 2002 in Sealed Case no. 02-001, FISA Court of Review:
“The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.26 It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.” (You may want to note that the court there felt not at all constrained by anything in Youngstown.)
I take for granted what the FISA Court of Review took for granted, and I would suppose that Mr. Mukasey took it for granted as well.
Does the Hamdan decision provide comfort to those who contend that the NSA program exceeded the president’s authority? I’m sure it does—but no one contends that it has decided the question, and there are ample reasons to believe that the same Court would not hold adversely to the president in the matter of the NSA program.
No one seriously doubts how Justices Souter, Breyer, Ginsburg and Stevens would come out; nor will Scalia, Thomas, Alito or Roberts surprise us. How about Kennedy? There can be no doubt that he is a skeptic on the matter of presidential power, but there is also no doubt that unlike the others he is no ideologue. He may well consider that the risk to American citizens, not present in either Youngstown or Hamdan, requires a ruling in the president’s favor.
He may also be influenced—as Mr. Mukasey may have been—by the fact that every president since the enactment of the FISA statute, including the feckless Carter who signed it into law, has asserted that it does not affect the president’s power to order warrantless surveillance in the gathering of foreign intelligence.
Carter’s Attorney General, Griffin Bell, testified on January 10, 1978 that despite the absence of any language in the statute granting such an exception, the Act "does not take away the power of the President under the Constitution. It simply, in my view, is not necessary to state that power, so there is no reason to reiterate or iterate it as the case may be. It is in the Constitution, whatever it is." His testimony eerily presages that of Mr. Mukasey.
And in 1994, when the Clinton administration invited Congress to expand FISA to cover physical as well as electronic searches, the associate attorney general testified: "Our seeking legislation in no way should suggest that we do not believe we have inherent authority" under the Constitution. "We do," she concluded.
The conclusion that the President retained constitutional authority to order warrantless surveillance of a foreign power, outside the procedures of the FISA Act, is also supported by the position taken by Edward Levi, who played a critical role in the development of the FISA legislation. Attorney General Levi believed that Congress could establish a court mechanism for the exercise of the President's foreign intelligence surveillance power. But he stated repeatedly in testimony before Congress that the court mechanism could not be exclusive and deprive the President of the inherent constitutional authority to order surveillance in circumstances not contemplated by the statute. See, e.g. Testimony of Edward Levi before the U.S. Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities (November 6, 1975) (constitutional powers in the area of foreign intelligence "are sufficiently concurrent so that legislation by the Congress would be influential . . . You are asking me whether I think there is presidential power beyond that and my answer is 'Yes.'")
While it may be fun for folks like you and me to speculate as to what the Court may ultimately rule, until it does rule the Executive, as a co-equal branch, is not only entitle but is duty bound to observe constitutional requirements as he understands them.
I've got much more for you, A.L., but I don't want to make you ill.
Questions?
Neutral, if only quantity were the same thing as quality, this would be an excellent response. Unfortunately, it just shows you don't understand the actual legal issue we're talking about.
First, as you seem to understand on some level, all of those pre-FISA cases you cite are completely irrelevant. The question is not whether the president has the power to conduct warrantless surveillance absent a statute regulating such surveillance. The question is whether he has the power to do so even when a statute requires that he get a warrant. Those are totally different questions, and this is where the Youngstown/Hamdan line of cases control.
Your interpretation of the holding of Sealed Case is laughable.
Given our agreement on the president’s constitutional power, the question becomes whether this undoubted power can be circumscribed by congressional enactment. As it happens, that very question was addressed by the FISA Court of Review (comprised of three federal appellate judges) in 2002 in Sealed Case no. 02-001, FISA Court of Review
This is not at all the question addressed by Sealed Case, as anyone who has read that case knows. You're citing a toss-away piece of dicta that had absolutely nothing to do with the question at issue in that case. That was a case about whether FISA, as amended, violated the 4th Amendment. And here was what the court held:
We, therefore, believe firmly, applying the balancing test drawn from Keith, that FISA as amended is constitutional because the surveillances it authorizes are reasonable.
That's right, the actual holding in that case was that FISA was constitutional. But you're seizing on a piece of dicta that doesn't even mean what you think it means to suggest that somehow the court was taking issue with the basic Youngstown framework and suggesting that FISA was unconstitutional. That's total nonsense. You would flunk a law exam with that kind of reasoning.
If you read Hamdan, you'll see that every single Justice on the court, including the dissenters, accepts the Yougstown framework. It is not in dispute. Moreover, if the president cannot violate a statute in dealing with foreign nationals captured in a war zone (the holding in Hamdan) it certainly cannot violate a statute when surveilling U.S. persons within the U.S.
And it's not just crazy liberals who think this. If you feel so inclined, check out the writings of Andrew McCarthy at the National Review (who is as pro-executive power as anyone on the planet).
Even the administration's own lawyers don't buy your reasoning, which is why, post Hamdan, they decided to take the program to the FISA court and are now seeking legislation following a ruling by that court that the program as constituted was illegal.
At the heart of you're basic misunderstanding of constitutional law is your failure to appreciate the difference between inherent authority and exclusive authority. The president has the inherent authority to do lots of stuff in the absence of a relevant statute. But this inherent authority does not trump a duly enacted statute. Only exclusive powers are retained in the face of a statute on point (for example, a statute could not take away the president's pardon power). But there is no case law or constitutional text that even remotely suggests that the president has exclusive power to order surveillance of U.S. persons.
Of course I've already addressed all of these arguments at length in previous posts, so I'm not going to continue to engage you here. If you are actually interested in what I think about this stuff, I'd encourage you to spend some time in the archives. There's no issue I've written about more.
What is most tortured in this matter is not Mukasey's evasions and non-answers, but rather the behavior of Congress. It is completey depressing that, after all that has transpired, congress would even consider consenting to have Mukasey at DOJ. In a way, it appears not to matter what Mukasey says--the SJC will vote for him regardless. That, to me, is the true tortured aspect of this matter.
The pre-FISA cases are not "completely irrelevant"; I alluded to them--as I made very clear--simply to establish the undisputed power of the president to act in the absence of a statute.
At no time did I say, or even imply, that the dictum in Sealed Case was a holding--and I am very familiar with the distinction between the two.
You can read Hamdan as absolutely determining the issue, and I'm sure (as I said) that lawyers will argue in their briefs that it does, should the case ever reach the Court. But that is very different from saying that the question of the legality of the NSA program has been adjudicated--it hasn't, and your personal attacks on my understanding of the law do not advance your argument at all. Nor does the fact that the administration has been working with the congress and the FISA court. That is simply an eminently prudent course of action under all the circumstances. Keep your eye on the ball here: the ultimate issue raised by your initial post is Mr. Mukasey's answer to a question, not speculating on how the Supreme Court may rule on a case that is not yet before it.
You are overreaching in your application of the Youngstown concurring opinion to the facts of the NSA matter. Hamdan did not hold that "the president cannot violate a statue in dealing with foreign nationals captured in a war zone." It held that he could not ignore a particular enactment--the UCMJ--in providing a framework for adjudicating their cases. Should the Court ever consider the NSA program, it will have before it a number of vital factors not prsent in Hamdan, and I have attempted to bring those facts to your attention.
Imagine that a Republican congress passes, and a Republican president signs into law, a statute declaring that "henceforth all foreign nationals taken on a battlefield will be summarily shot." A future Democratic president declines to follow that law. What result?
I am not interested enough in what you have written on this subject to comb through your archives. I am reasonably certain that you are quite young, and have read in the law but have little experience in its practice, and I am quite confident that you have not exercised any siginificant authority nor had any significant responsibility in your lifetime. As you acquire more experience, your judgment in matters of this kind may mature over time.
March, 2006:
"A panel of former Foreign Intelligence Surveillance Court judges yesterday told members of the Senate Judiciary Committee that President Bush did not act illegally when he created by executive order a wiretapping program conducted by the National Security Agency (NSA).
"The five judges testifying before the committee said they could not speak specifically to the NSA listening program without being briefed on it, but that a Foreign Intelligence Surveillance Act does not override the president's constitutional authority to spy on suspected international agents under executive order.
"'If a court refuses a FISA application and there is not sufficient time for the president to go to the court of review, the president can under executive order act unilaterally, which he is doing now,' said Judge Allan Kornblum, magistrate judge of the U.S. District Court for the Northern District of Florida and an author of the 1978 FISA Act. 'I think that the president would be remiss exercising his constitutional authority by giving all of that power over to a statute.'"
neutral, if you're wondering why my tone is a bit dismissive, it's because 1) your tone is utterly condescending and 2) you keep misstating facts and shifting the goal posts when those misstatements are pointed out.
To take an obvious example, you state that "At no time did I say, or even imply, that the dictum in Sealed Case was a holding--and I am very familiar with the distinction between the two."
But here's what you wrote in the previous comment:
Given our agreement on the president’s constitutional power, the question becomes whether this undoubted power can be circumscribed by congressional enactment. As it happens, that very question was addressed by the FISA Court of Review (comprised of three federal appellate judges) in 2002 in Sealed Case no. 02-001, FISA Court of Review
The truth is, as you now acknowledge, "that very question" was not before the court at all. That's what the term 'dicta' means. The line you cited in Sealed Case was a toss-away line that had nothing at to do with any issue that was actually before that court. Indeed, had such an issue been before that court, it probably would have chosen its language more carefully. There is no reason at all to think that the court was suggesting that FISA unconstitutionaly encroaches on presidential power, which would have been a radical statement which no other court has even come close to holding in FISA's 30 year history.
And your citation to the testimony of the FISA judges last year is also inaccurate. I watched that testimony in full and, as I wrote at the time, the reporter in that article you cite completely misconstrued what those judges said. Every single judge there explicitly disclaimed any intent to weigh in on the legality of the NSA program. Not one of them claimed that Bush's FISA bypass order was legal. Indeed, a few of them strongly suggested otherwise.
You are also totally misconstruing what I wrote. I never suggested that the specific issue of the NSA program's legality had been adjudicated by the Supreme Court (although it does appear to have been litigated ex parte before the FISA court and determined to be illegal in May of this year--in a secret order; hence the need for new legislation).
I also did not suggest that all conceivable statutes regulating national security issues are binding on the president. It is conceivable that some statute could so limit the ability of the President to conduct various tasks that it would be found to impinge on his exclusive authority. But there is no case law or constitutional text (or compelling logic for that matter) that suggests FISA is such a statute. If it was, that would mean that Congress lacks the power to regulate the surveillance of U.S. persons within the U.S. Good luck making that argument in court. Even the Bush administration knows that's a sure-fire loser, which is why they don't bother to argue it.
You also downplay Hamdan too much. Hamdan is about as close to being on point as a Supreme Court precedent ever is. If Congress can pass a binding law regulating how foreign combantants are treated outside of the U.S., then surely it can pass a law regulating the surveillance of U.S. persons here in the U.S. Again, the administration knows this, which is why their legal posture changed dramatically following Hamdan.
And one more point, you dismissingly referenced the "concurring opinion" in Youngstown, as if it should be discounted because it was merely a concurring opinion. But the framework of that opinion has been endorsed several times by subsequent Supreme Court majorities, most recently in Hamdan. Moreover, every Justice in Hamdan, including the dissenters, analyzed the issue in terms of Justice Jackson's framework.
Finally, if you want me to engage you at all, I'd suggest you stop pretending that you know anything about me. Your last paragraph was incredibly condescending and clearly the product of someone uncomfortable arguing the merits of his/her position. You keep citing things as if I've never heard of them or addressed them, but the reality is, your own grasp of the authorities you're citing is weak, as evidenced by the repeated inaccuracies.
You're arguing a proposition that, whatever its independment merits, is simply not supported by the case law. Not even the Bush administration is willing to make this argument any more.
I did not contend that the issue was "before" the FISA Court of Review. I said that that court had "addressed" the issue, which is a perfectly appropriate characterization of an obiter dictum.
"If it was [sic], that would mean that Congress lacks the power to regulate the surveillance of U.S. persons within the U.S." No, it wouldn't. FISA impinges on the president's power to gather foreign intelligence. A statute regulation domestic surveillance would not do so.
I do not pretend to know anything about you. I have drawn conclusions about you based upon what you have written.
And I have adopted a condescending tone toward you in response to your suggestion that I would "flunk a law school exam" with my reasoning. (For your edification, I did very well on my examination in constitutional law, at least in the eyes of Professor Freund--but what the hell did he know?)
The Supreme Court has not said that the congress can "pass a law regulating how foreign combatants are treated outside the United States." It has passed, and the Court upheld as binding on the president, a law providing for how their judicial proceedings are to be conducted. Your statement of the holding is broader than the issue that was presented to the Court.
neutral, I fail to see what you're even taking issue with in my characterization of Hamdan. The Court held in that case that the president did not have the power to constitute military tribunals (to try foreign enemy combatants helds outside of the United States) that were inconsistent with the UCMJ. If the president doesn't have the power to do that, why would he have the power to disregard a statutory warrant requirement that applies only to communications involving a U.S. person within the U.S.?
As for Sealed Case, you are still grasping as straws. Here's the relevant passage from Sealed Case:
"We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power. The question before us is the reverse, does FISA amplify the President’s power. . ."
You agree that this is pure dicta, but you want to read it as saying that FISA unconstitutionally impinges on the president's power. But if that's what the court thought, this is a really odd way of saying it. They "take for granted" a proposition that has zero support anywhere else in the case law? They are, in a casual aside, suggesting that FISA is unconstitutional in an opinion in which the primary holding is that FISA is constitutional? That would be incredibly bizarre.
I suspect that all the court means here is that FISA, like any statute, cannot impinge on exclusive presidential authority. They are not suggesting that FISA does in fact inpinge on any such authority. That would be a radical proposition, and the court would not simply have made it off hand, without any support.
I think we've run out of room to disagree about Sealed Case. I thought I had raised the quoted passage in a manner that would make clear that it was not a ruling on the merits, and I wouldn't pretend that it was. I was well within the limits of honorable advocacy as I understand them. There is no rule whatsoever against quoting dicta, and dicta have whatever limited persuasive power they have--no more, no less. I don't say, as you would have me saying, that it holds that FISA unconstitutionally impinges on the president's power. I do say that, in dicta, they indicated that that would be their view if a case raising the issue were properly presented to them. And again, while not arguing that the case holds such a thing, I do offer it in the course of my argument.
"The Court held in that case that the president did not have the power to constitute military tribunals (to try foreign enemy combatants helds outside of the United States) that were inconsistent with the UCMJ. If the president doesn't have the power to do that, why would he have the power to disregard a statutory warrant requirement that applies only to communications involving a U.S. person within the U.S.?"
We now are certainly very much in accord with regard to the holding in Hamdan, which I view as rather narrow--that is, I view it to be what you have just stated. But I think the rhetorical question with which you follow your statement of the holding is so strangely contrived that I have to assume I misunderstand you: I do not understand the president ever to have claimed the power to disregard a statutory warrant requirement that applies "only to communications involving a U.S. person [do you mean citizen?] within the U.S." I don't think any president has ever claimed such a power. On the other hand, every U.S. president from the enactment of FISA, including Jimmy Carter, has claimed that no warrant requirement can constituionally constrain the president's power to gather foreign intelligence.
I do not understand the president ever to have claimed the power to disregard a statutory warrant requirement that applies "only to communications involving a U.S. person [do you mean citizen?] within the U.S." I don't think any president has ever claimed such a power. On the other hand, every U.S. president from the enactment of FISA, including Jimmy Carter, has claimed that no warrant requirement can constituionally constrain the president's power to gather foreign intelligence.
Let's unpack this, because I want to make sure I understand what your position is.
First, FISA only applies (and has only ever applied) to communications involving "U.S. persons" located within the United States. In other words, warrants are only necessary when one end of the communication involves someone within the U.S. So FISA only comes into play when there is a domestic element to the surveillance.
Yes, the government now claims that a FISA judge issued an order in May requiring warrants for purely foreign communications, but there is nothing in the law that suggests that warrants are required for purely foreign intercepts and certainly no one thought there was such a requirement until this May. Personally, I'm highly skeptical of the administration's characterization of that secret ruling--because it makes no sense--but that's another story. Suffice it to say, during the period of time that is relevant here (2001-2006) FISA only applied to communications in which at least one party was a U.S. person inside the U.S.
The NSA program involved warrantless interception of international communications in which one end was within the U.S. (FISA says you need warrants for this). The adminsitration justified disregarding this requirement on the ground that FISA cannot constrain the president's power to conduct such surveillance without warrants.
If it's your position that every other administration has taken this position, you're just wrong. Every other admininstration complied with FISA. No one but Bush ever claimed the power to circumvent it.
I misunderstood your use of the phrase "only to communications involving a U.S. person." (I mistakenly read it as if the "only" were after "involving.")
As for the position taken by prior administrations, I stand by the quotes I have attributed to them and their spokesmen, which seem unambiguous to me. Just for illustrative purposes, here's John Schmidt, former Associate AG under Clinton:
"Indeed, although he was clear that the President's inherent constitutional power could not be limited to an exclusive statutory mechanism, Attorney General Levi was insistent that any statute contain an express acknowledgment of that retained Presidential power, saying it would be 'extraordinarily dangerous' for Congress to legislate in the area without acknowledging the President's retained constitutional authority. See, e.g., Testimony of Edward Levi before the Subcommittee on Criminal Laws and Procedures of the Committee on the Judiciary of the United States Senate (March 29, 1976) ( 'It is hard to imagine all the conceivable possible cases, particularly in an area where scientific developments may make enormous changes. . . The very nature of the reserved Presidential power, the reason it is so important is that some kind of an emergency could arise which I cannot foresee now, nor with due deference to the Congress, do I believe Congress can foresee . . . I would not want to advise anyone to think that the kinds of circumstances which might arise might not be of such a strange and peculiar nature that we would not have thought of them, and particularly in an area, as I say, where scientific developments come so frequently.').
"Unfortunately, the FISA Act was subsequently enacted and signed into law by President Carter without a proviso acknowledging the President's inherent constitutional authority to order warrantless surveillance. In testimony on the Act, however, President Carter's Attorney General Griffin Bell stated that, despite the absence of an express reservation, the Act 'does not take away the power of the President under the Constitution. It simply, in my view, is not necessary to state that power, so there is no reason to reiterate or iterate it as the case may be. It is in the Constitution, whatever it is.' Testimony of Attorney General Griffin Bell before the Subcommittee on Legislation of the Permanent Select Committee on Intelligence of the House of Representatives (January 10, 1978)."
As to whether they have all complied with FISA as you want it enforced, I have no idea and neither do you. One could have made the same statement about this administration until the program was leaked to the NY Times.
Interesting discussion of waterboarding, torture and the US Senate:
"Democrat members of the Senate Judiciary Committee have submitted a single question to Mukasey.
"'Is the use of waterboarding, or inducing the misperception of drowning, as an interrogation technique illegal under U.S Law, including treaty obligations?'
"It's impossible to give a responsive answer to that, without 'getting into trouble.' I predict a non-responsive answer, with justification for being evasive. That can only mean that Mukasey holds that waterboarding is maybe a legal interrogation technique. Ball back in Democrats' lap.
"I believe that the recently-passed Military Commissions Act 'legalized' waterboarding, or removed it as a war crime as a matter of statutory construction. Section 6 of the war crimes statute as amended in September 2006 refers to 18 USC 2340 for the definition of 'severe mental pain or suffering,' and draws on 18 USC 1365 to define 'serious bodily injury.' When it amended the war crimes statute, Congress essentially codified the Bybee memorandum.
"Equating waterboarding with 'the tormentor is threatening imminent death' is, I find, a misapplication of 18 USC 2340(2)(C). The tormentor is threatening waterboarding, not imminent death. The victim may think death is imminent, but not because the tormentor is threatening it. I believe the 'threaten with imminent death' action of 18 USC 2340(2)(C) would be narrowly construed by a trial judge to encompass only those verbal and physical acts that amount to 'I will kill you on the count of three if you don't answer ...'
"There is a reason the administration insisted on (and obtained) reference to 18 USC 2340(2) and 18 USC 1365, with retroactive application. I think the reason is that those references create a direct argument that waterboarding would not result in finding an occurrence of the war crime of cruel and inhuman treatment, because the mental and physical harms due to waterboarding come short of the limits set in those statutory references."
The author is the estimable CBoldt.
Those who dissent from his views are invited by me to explain their understanding of the relevant statutes.
Here's Chuck Schumer in 2004 on the subject of waterboarding:
"We ought to be reasonable about this. I think there are probably very few people in this room or in America who would say that torture should never ever be used, particularly if thousands of lives are at stake. . . . It is easy to sit back in the armchair and say that torture can never be used, but when you are in the foxhole it is a very different deal. And I respect, I think we all respect the fact that the President is in the foxhole every day."
Nice to know he and I agree. And those who are to the left of Chuck Schumer, well...
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