Comments on The Anonymous Liberal: Why FISA Must Be Constitutional

Dear 3:22-"but Congress makes the rules which gove...

2008-03-21T13:16:00.000-05:00

Dear 3:22-

"but Congress makes the rules which govern their operation (it's right there in Article II, Section 8)."

Actually it's Article I, but whatever. Your interpretation of the Constitution is wrong. That Congress may "make Rules for the Government and Regulation of the land and naval Forces" merely means that Congress has the power to create things like the UCMJ and statutes regarding pay, health care, etc. That section surely does not mean that Congress has the power to regulate the fashion in which the President wages war.

Further, in response to some other posts, see the War Powers Act, which has been duly enacted by Congress over the President's veto, declared unconstitutional by every subsequent President, and yet followed by every subsequent President. So the position that the President should or should not or can or cannot sign or disapprove, etc. laws that he/she considers unconstitutional is premature (if that's the right word). Presidents can react to different Congressional actions in various ways. Limiting him/her to a "correct" one is inappropriate.

The U.S. Constitution simplified:The President is ...

2006-01-26T15:22:00.000-05:00

The U.S. Constitution simplified:

The President is Commander-in-Chief of the armed forces (you can include surveillance here, if you like), but Congress makes the rules which govern their operation (it's right there in Article II, Section 8). If the President doesn't like a rule governing operation of the armed forces (including surveillance), he/she can veto it or propose additional legislation, but then it goes back to Congress... yada,yada,yada, balance of powers, yada,yada. The President has veto power over Congress, but is then subject to the laws passed by Congess. If Congress says the President can only spy if certain conditions are met, the President has to make sure those conditions are met. That's U.S. Democracy, folks. (As opposed to monarchy, fascist dictatorship, or Jacobin "Reign of Terror".)

So...

The President is authorized to spy insofar as if there's spying to be done, he/she is the man/woman to do it. But the President can't spy unless the conditions set forth by Congress are met. And that rips asunder the "exclusive executive authority" argument, out-of-context court commentary notwithstanding.

And as for the "AUMF resolution says I could do it" defense, well, no, it really doesn't.

Anonymous:You're missing the point. First, none of...

2006-01-25T18:58:00.000-05:00

Anonymous:

You're missing the point. First, none of those situations are examples of unbridled executive power. Those things are all provided for by statutes passed by Congress. So the comparisan is inapt.

Second, concern for privacy is only a secondary issue here. The real concern is that the president is asserting the authority to disregard a duly enacted statute. That's what scares me, not the invasion of privacy.

You asked:Why is it so obvious to you that the pre...

2006-01-25T18:55:00.000-05:00

You asked:

Why is it so obvious to you that the president should be the one who gets to decide the limits of his own consitutional power?

I could turn that around and ask you if individual citizens are required to get declaratory judgment rulings in advance of acting in ways that are illegal under unconstitutional laws. Of course, the answer is no. In the vast majority of cases, if a law is unconstitutional it is void, which means it can't be enforced. If the issue is doubtful, you might want to get a DJ, but if you're willing to take the risk of being wrong, you don't have to.

Congress and the executive being co-equal branches, I don't think either one has the duty to defer to the other's definition of their respective powers. If a conflict between them belongs in court, either side is equally empowered to take it there. Senator Rockefeller and others in Congress who were briefed claim to have had doubts about this program for years. Inexplicably, they seem to have chosen to defer to the executive's definitions of their powers. I realize the security issues would have presented some difficulties for Congress bringing the matter to court, but surely no worse for Congress than the security issues involved for the president in bringing a DJ action or trying to get formal congressional agreement.

I noticed you didn't answer the first questions I asked in my 6:00 p.m. comment, responding only to the last. That's certainly your prerogative, but I'm really curious what your answers would be. It would help explain a little about where you would draw the line between inherent but non-exclusive authority and exclusive authority.

Thanks.

Wonderland worries that Bush partisans are adoptin...

2006-01-25T18:36:00.000-05:00

Wonderland worries that Bush partisans are adopting dangerous legal arguments about presidential powers without thinking where they might lead.

Wonderland is right. Now that I think about it, legal arguments claiming necessity for invasions of privacy in order to prevent terrorist attacks could easily lead to:

Unbridled warrantless executive power to review all my financial records and grill me for hours in claustrophobically small and overheated spaces about how much I spend for dry cleaning, and how much cash I keep at home.

Oh, wait, the IRS can already do that.

Or warrantless executive power to demand that my employer reveal full details about my earnings, insurance coverage, pension arrangements, and to demand that I disclose all my assets, liabilities, income and expenses to government bureaucrats.

Oh, wait, child support agencies already can do that.

Or warrantless entry onto my property to investigate improvements to my house, improper discharges into waterways, or (so far for commercial properties only) tobacco smoking among consenting adults.

Oh wait, tax assessors, EPA officials, and others can already do all those things and more.

Unbridled executive power could be invoked to require my doctor to submit all my medical data to the federal government once I reach age 65, and to prohibit her from treating me outside the Medicare system on penalty of criminal prosecution.

Oh wait. . . .

Well, you get the drift. I seriously doubt that you could find many people who have gone through a couple of IRS audits who wouldn't rather have had the NSA tapping their overseas calls to suspected al Qaeda members.

This obviously is not a legal argument on FISA's applicability or constitutionality.

But it does bear on the frothing indignation many commentators are trying to whip up when addressing the topic.

In order to do good in sometimes very trivial ways, we have already surrendered citizens' control over vast areas of private and non-governmental public life, often at the instigation of many of the folks jumping on the privacy/civil liberties wagon today. It's enough to make anyone a cynic.

And who gets to say? Until the Court rules, is the...

2006-01-25T18:26:00.000-05:00

And who gets to say? Until the Court rules, is the President required to go along with a law that he believes encroaches on his exclusive constitutional powers?

As I've stated previously, I don't believe there is any reasonable basis for concluding that FISA encroaches on the president's constitutional authority. As Wonderland points out, there is actually a stronger argument that FISA doesn't go far enough. In other words, FISA arguably gives the president too much authority in that it authorizes him to conduct surveillance that might not meet 4th amendment standards.

But to get back to your point, why is it so obvious to you that the president should be the one who gets to decide the limits of his own consitutional power? We're talking about a duly enacted statute that was signed into law by a previous president and has never been so much as questioned by a court. Yet you seem to think the current president should have the power to disregard that statute if he determines, on his own, that it encroaches on his authority. How can that be? If that were the case, it would mean the current president's judgment on constitutional matters trumps that of the president who signed the statute into law, giving the current president what amounts to a retroactive veto power over existing law. It would also mean that the president's judgment trumps that of Congress, meaning Congress would have to go to court to get the president to enforce existing laws. None of that makes any sense. That cannot be how our system is supposed to work.

You said:If you mean to say that the court was sug...

2006-01-25T18:00:00.000-05:00

You said:

If you mean to say that the court was suggesting that FISA is not the exclusive means through which surveillance can currently be conducted, I think you're dead wrong.

___________________

When the Court says there is an area of foreign intelligence collection on which FISA cannot encroach, yes, I assume they mean there is some form of it for which FISA would not be the exclusive means even if it purported to be.

Isn't it true that the only way we can know when Congress has gone too far and run up against the President's exclusive authority is when a particular form of surveillance seemingly barred by FISA is held by the Court as being within the President's exclusive authority?

Say Congress passed an amendment to FISA requiring a warrant upon probable cause for the president to intercept enemy battlefield communications. (Not saying they would, although some folks like Jim McDermott would probably vote for that, but just for the sake of argument.)

Would that cross the line? If not, clearly nothing would, and there is really nothing over which the president has exclusive authority. And you've said that's not so.

If it does cross the line, then FISA as a whole might be constitutional, but unconstitutional as to its application to that type of surveillance. True or not?

And who gets to say? Until the Court rules, is the President required to go along with a law that he believes encroaches on his exclusive constitutional powers?

In addition to AL's comment responding to anonymou...

2006-01-25T17:49:00.000-05:00

In addition to AL's comment responding to anonymous's post at 4:47pm, I'll point out that the court wrote:

"we think the procedures and government showings required under FISA, if they do not meet the minimum Fourth Amendment warrant
standards, certainly come close."

This can only be read to mean that even compliance with FISA may not meet 4th Amendment standards. In other words, surveillance under FISA, at best, minimally meets 4th amendment requirements (or "certainly comes close").

Thus, logically, surveillance that doesn't comply with FISA at all, i.e., no court oversight or court orders, couldn't somehow be closer to meeting 4th Amendment standards, could it?

The President cannot have inherent authority to engage in surveillance that violates 4th Amendment right. That's just preposterous.

This idea that Article II powers extend to prosecuting the war against American citizens in America, without due process (e.g., Padilla-type detainments, or warrantless surveillance) is a dangerous concept that cannot be accepted.

It has long been my position that lots of well-intentioned people, out of partisan loyalty to Bush and a desire to keep him out of political trouble, are adopting dangerous legal arguments about Executive power without thinking about where those arguments logically lead.

Anonymous,I've read those cases, I just don't thin...

2006-01-25T17:17:00.000-05:00

Anonymous,

I've read those cases, I just don't think you're interpreting them correctly. Neither of those cases even comes close to suggesting that the exclusivity provision in FISA is constitutionally problematic. When those courts said that FISA could not encroach on the president's authority, they were simply pointing out the obvious, that there is realm of exclusive executive authority which no Congressional statute can touch. But they're not suggesting that FISA does in fact encroach on this area, much less that the exclusivity provision encroaches on this area. There is undoubtedly a line that Congress cannot cross. For example, if Congress tried to micromanage every surveillance decision, that would clearly intrude on the president's core functions. But FISA's requirements are eminently reasonable and indeed don't seem to go beyond the rules the courts themselves would be likely to impose in the absense of a statute. Put simply, there is no case law anywhere, even dicta, that questions FISA's constitutionality.

You claim that the court in Sealed Case was "clearly signaling that FISA is not the only legal basis under which foreign intelligence searches can be conducted." This is only true in the sense that the court acknowledges that the president could conduct such surveillance even if FISA had never been passed. But if you mean to say that the court was suggesting that FISA is not the exclusive means through which surveillance can currently be conducted, I think you're dead wrong. The court was merely acknowledging that this is an area where, prior to the passage of FISA, courts recognized that the president had inherent authority to act. The court noted, in passing, that the statute should not be read to encroach on exclusive executive authority. That's a far cry from suggesting that the very core of FISA--its exclusivity provision--is unconstitutional. No one disputes that conceivably Congress could go too far in regulating surveillance and if they did so, at some point they'd run up against the exclusive powers of the president. But the cases you cite do NOT suggest that FISA does in fact cross that line, or even more importantly, that the exclusivity provision of FISA is at all problematic.

In a comment to a previous post on your blog, I di...

2006-01-25T16:47:00.000-05:00

In a comment to a previous post on your blog, I did point you toward case law inconsistent with your argument, but you discounted it on the ground that the particular phrase I quoted was "mere dicta" and "a throwaway line." Here is the full section from which that line was taken:

“The Truong court, as did all the other courts to have decided this issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. 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. The question before us is the reverse, does FISA amplify the President’s power by providing a
mechanism that at least approaches a classic warrant and which therefore supports the
government’s contention that FISA searches are constitutionally reasonable.

In re Sealed Case, 310 F.3d 717, 742 (Foreign Int. Surv. Ct. Rev. 2002) (per curiam)

In context, the Court's statement that there is an area of presidential authority upon which FISA cannot encroach is hardly a throwaway line. If fact, the Court considered it significant enough to reiterate in its conclusion, where it said:

"Although the Court in City of Indianapolis cautioned that the threat to society is not
dispositive in determining whether a search or seizure is reasonable, it certainly remains a
crucial factor. Our case may well involve the most serious threat our country faces. Even
without taking into account the President’s inherent constitutional authority to conduct
warrantless foreign intelligence surveillance, we think the procedures and government
showings required under FISA, if they do not meet the minimum Fourth Amendment warrant
standards, certainly come close."

The Sealed Case decision upheld the reasonableness of certain warrants under FISA, in a case in which the ACLU and others participated as amici. So technically, it's true that the Court was not ruling on whether those searches would have been reasonable without the FISA warrants, but by twice emphasizing the president's inherent authority to conduct certain kinds of warrantless searches, it was clearly signaling that FISA is not the only legal basis under which foreign intelligence searches can be conducted.

You may find that argument unpersuasive, but that just brings us back to the basic question: If the argument is clearly signaled by the FISA Court of Review as a viable one, why should we take your word for it they were wrong?

You have no case law to support your conclusion of FISA's constitutionality as an encroachment on the president's authority to conduct this particular form of foreign intelligence collection activity.

The AG has no decisive case law either, but he does have a Court's clear signal of its view in the matter. Something is better than nothing.

Wonderland, well put. I agree 100%. I was beginnin...

2006-01-25T15:24:00.000-05:00

Wonderland, well put. I agree 100%. I was beginning to think the only people who read this blog are people who disagree with me.

As for this:

What happened to the standard enjoined by your masthead, that opinions should not be held dogmatically? Your entire blog on this issue has been very interesting, but nothing if not dogmatic.

I don't think that's fair. It's not as if I've failed to explain why I think what I think. I'm not just making naked assertions here. And my conclusions aren't dogmatic. I'm willing to listen if someone points me toward any case law or constitutional language I haven't yet considered.

anonymous wrote:"You argue that Congress has essen...

2006-01-25T15:16:00.000-05:00

anonymous wrote:

"You argue that Congress has essentially unlimited power to dictate to the President how he may fulfill his constitutional duties as commander in chief."

No. Congress has authority to dictate how the President shall not use his constitutional powers as CiC; that is, he can't use them to violate the rights of American citizens in the US.

Naturally Congress cannot legislate away an explicit Presidential power that's written in the Constitution, e.g., vetoes. But I don't see anywhere in the Constitution where it says the President shall have power to survey American citizens for national security purposes. In fact, I don't even see where it says the President has the unitary power to conduct war. He gets to command the armed forces, but Congress has the authority to make rules governing those armed forces.

And there's no question that Article I's commerce power, at the very least, gives
Congress the ability to regulate wire and radio transmissions that cross state or national boundaries. So there's no valid argument that FISA is unconstitutional.

Actually, I'm less sure now I've thought about it ...

2006-01-25T15:06:00.000-05:00

Actually, I'm less sure now I've thought about it for five more minutes that s.5 of the 14th Amendment is applicable. In fact, I don't think it is, since the 14th amendment only allows Congress to pass laws to prevent states from violating constitutional rights.

So I stand corrected, I think.

You argue that Congress has essentially unlimited ...

2006-01-25T15:01:00.000-05:00

You argue that Congress has essentially unlimited power to dictate to the President how he may fulfill his constitutional duties as commander in chief. Does the same apply to the other powers granted to the President in Section 2 of Article II? What if Congress decided to limit the offenses for which the President has the power to grant reprieves or pardons? Or enact a law limiting the pool of persons from which he may nominate someone the offices covered by that section?

You say that "FISA must be constitutional." What happened to the standard enjoined by your masthead, that opinions should not be held dogmatically? Your entire blog on this issue has been very interesting, but nothing if not dogmatic.

anonymous writes:"If FISA, or doing away with FISA...

2006-01-25T15:00:00.000-05:00

anonymous writes:

"If FISA, or doing away with FISA, can abridge or limit it, then we are not talking about a "constitutional right."

You misunderstand the issue. US citizens have Constitutional rights. Under the 4th Amendment, a US citizen has a right to be free from unreasonable searches. FISA protects that 4th Amendment right by preventing the Executive from surveilling American citizens without a FISA court order (for the purpose of collecting foreign intelligence information; if it's a criminal wiretap, the Executive has to comply with the criminal code).

In other words, FISA is a protective and prophylactic -- it prevents buse in the first instance, by requiring a judge to issue an order allowing the surveillance, and it provides remedies, both civil and criminal, for when someone conducts surveillance in a way that does not comply with its requirements.

So, whether FISA exists or not, you have a 4th Amendment right not to be "unreasonably" surveilled for foreign intelligence purposes (which probably, thought the Court declined to address the issue in Keith, means "without a warrant or court order"). Even if FISA didn't exist, if you found out that the government was listening to all of your phone calls abroad, and it had no cause to be doing so, you could bring a suit against the government to enjoin them from continuing, and for damages, under section 1983. FISA, because it does exist, simply gives you a more direct (and lucrative) remedy for the same violation of your 4th Amendment rights; it also makes violating those rights a crime, so as to discourrage strongly that behavior to begin with.

Therefore, FISA neither creates nor takes away Constitutional rights. It merely provides protection of those rights and specific redress should those protective measures fail.

Also, AL:

FISA is almost certainly constitutional under both section 5 of the 14th Amendment (for reasons stated above) and the foreign and interstate Commerce Clause of Article I. Any argument otherwise would require taking the position that federal wire fraud, radio regulation, FCC, and a billion other statutes regulating the transmission of signals over state or national boundaries are unconstitutional as well.

When one end is domestic and one is foreign, it is...

2006-01-25T14:51:00.000-05:00

When one end is domestic and one is foreign, it is not a fair characterization to call that hybrid "domestic spying" as if it were no different than "purely domestic" spying. The fact that opponents of the president insist on using that kind of language, and avoid all mention of the overseas element of it, proves they know that many Americans would view it more tolerantly if they understood it better.

Who's "avoiding all mention of the overseas element"? I think most posts and media reports have been very accurate in describing exactly what sort of spying is at issue. I think you're attacking a straw man here.

And it's worth noting that FISA itself, which only applies to domestic surveillance, applies when either party is a U.S. person in the U.S. So the distinction you're making isn't legally relevant anyway. What makes this spying significant and controversial is that it involves U.S. citizens in the U.S. That's the key, salient fact.

If there is a constitutional right to be free from...

2006-01-25T14:38:00.000-05:00

If there is a constitutional right to be free from foreign intelligence surveillance then it is the job of the Court, not of Congress, to define exceptions to that right.

FISA can't create a "constitutional right." It was an attempt by Congress to rein in the powers of the president, which were seen as violating existing constitutional rights.

I 100% agree and I never said anything to the contrary. FISA is an attempt, by Congress, to protect the 4th amendment rights of Americans. It's just like Title III in that sense. It doesn't create any constitutional rights. My point was that Congress should have the power to create laws that are designed to provide meaningful protections of the rights spelled out in the constitution. That's what FISA does.

But to the extent that it attempts to limit the president's powers which are inherent in his role as commander in chief, in ways that would not otherwise be limited by the Constitution, then it probably is unconstitutional.

Let me ask you this. Besides being Commander in Chief, the president is the chief law enforcement officer in the country. Do the warrant provisions in Title III (which are very similar to FISA's) impinge on the president's law enforcement authority? Is Title III unconstitutional?

Answer: of course not. Many congressional laws "limit the president's powers...in ways that would not otherwise be limited by the constitution." If there was no Title III, the president would obviously still have the authority to enforce the laws. And he would undoubtedly have more leeway in doing so than he does under Title III. That doesn't make Title III unconstitutional. Congress is free to provide heightened protection to the American people so long as they don't infringe on the president's core functions, his exlusive authority. In doing so, Congress will undoubtedly limit the president's inherent authority, i.e., the authority he would have had absent a statute. So what. That's a routine event, and it doesn't make a statute unconstitutional.

So you concede that if both ends of the intercepte...

2006-01-25T14:25:00.000-05:00

So you concede that if both ends of the intercepted call are overseas, that is "purely foreign." If we were to call that "foreign spying," that would be a fair characterization. I admit that when both ends are domestic, that is "purely domestic." If we were to call that "domestic spying," that would be a fair characterization.

When one end is domestic and one is foreign, it is not a fair characterization to call that hybrid "domestic spying" as if it were no different than "purely domestic" spying. The fact that opponents of the president insist on using that kind of language, and avoid all mention of the overseas element of it, proves they know that many Americans would view it more tolerantly if they understood it better.

That's why I call it misleading. Because it is intended to mislead.

You say:Doing away with FISA would not be the equi...

2006-01-25T14:14:00.000-05:00

You say:

Doing away with FISA would not be the equivalent of "abolishing a constitutional right." FISA is a prophylactic; it is a measure designed to protect constitutional rights from executive abuse. If Congress repealed FISA, the president would still have the responsibility not to infringe on people's rights. There would just be no oversight to make sure that he is fact doing that. Does that make sense?

___________________

No, it doesn't. If FISA, or doing away with FISA, can abridge or limit it, then we are not talking about a "constitutional right."

If there is a constitutional right to be free from foreign intelligence surveillance then it is the job of the Court, not of Congress, to define exceptions to that right.

FISA can't create a "constitutional right." It was an attempt by Congress to rein in the powers of the president, which were seen as violating existing constitutional rights. To the extent that FISA limitations are coextensive with the limitations imposed by real constitutional rights, it is of course constitutional because it is doing no more than restating what is already the law. But to the extent that it attempts to limit the president's powers which are inherent in his role as commander in chief, in ways that would not otherwise be limited by the Constitution, then it probably is unconstitutional.

To call this type of surveillance "domestic" or "s...

2006-01-25T14:11:00.000-05:00

To call this type of surveillance "domestic" or "spying on Americans" is calculated to mislead. More accurately, this is "spying on overseas terrorist suspects when they communicate with their possible agents within the US."

Rubbish. This spying involves the interception of calls where one party is a U.S. citizen within the U.S. That domestic element is what makes this particular program so controversial. If this was a purely foreign operation, it wouldn't even be an issue. If the media stopped mentioning the domestic element of this program, THAT would grossly misleading.

A self-avowed liberal arguing based on what the fr...

2006-01-25T14:07:00.000-05:00

A self-avowed liberal arguing based on what the framers of the Constitution intended: That's an attempt at humor, right?

I think the framers intended for the constitution to be read flexibly. I think that's why they deliberately chose such vague language in many instances ("due process", "cruel and unusual" etc.). But that's a whole different conversation and it's beside the point here. In my previous comment I was merely taking issue with the commenter's suggestion that the framers intended to create such a powerful executive. I think that argumet is rubbish and is clearly refuted by history.

To call this type of surveillance "domestic" or "s...

2006-01-25T13:56:00.000-05:00

A self-avowed liberal arguing based on what the fr...

2006-01-25T13:51:00.000-05:00

A self-avowed liberal arguing based on what the framers of the Constitution intended: That's an attempt at humor, right?

The Founders had very recent experience with the d...

2006-01-25T13:33:00.000-05:00

The Founders had very recent experience with the difficulties of conducting war. I don't see anything strange about a set-up that doesn't permit Congress to micromanage a war. The president is the commander in chief. If you don't like the way your commander in chief is running a war, blunt though it is, impeachment is a better remedy than micromanagement.

The Founders also had very recent experience with monarchy, and that strongly cuts against your argument.

Moreover, I don't think it's at all accurate to say that FISA amounts to "micromanagement." FISA provides a secret and highly deferential procedure for securing warrants. Congress is not trying to tell the executive branch who to listen to and what to do with that information, nor are they reviewing individual warrant applications. That would be micromanagement. Simply prescribing a general procedure to be followed when spying on Americans strikes me as exactly the sort of activity Congress is supposed to engage in.

You go on to suggest that “in a sufficiently dire ...

2006-01-25T13:28:00.000-05:00

You go on to suggest that “in a sufficiently dire emergency” Congress could “do away with FISA protections” altogether, presumably allowing whatever foreign intelligence surveillance the president chose to conduct.

This makes no sense. Congress does not have the power to abolish a constitutional right or limit its application, short of a constitutional amendment.

Doing away with FISA would not be the equivalent of "abolishing a constitutional right." FISA is a prophylactic; it is a measure designed to protect constitutional rights from executive abuse. If Congress repealed FISA, the president would still have the responsibility not to infringe on people's rights. There would just be no oversight to make sure that he is fact doing that. Does that make sense?

As for the line between inherent and exclusive authority, that is, admittedly, a tough one to draw. There is very little case law that provides guidance. But I tried to make the point that there are strong logical and structural arguments for finding that FISA does not encroach on any exclusive presidential authority. And I don't think there is any clear textual support for the DoJ's exclusive authority argument either.