More on NSA Surveillance

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3 Responses

  1. John Armstrong says:

    Maybe this is a point that a lay reader such as myself misses in the rush, but what fetters does the administration accept on executive power? If the answer is “none”, or even “none as pertain to ‘wartime'”, then the whole business reeks of effective monarchy to my nose. I’m desparately hoping that I’ve managed to pick up a skewed viewpoint, since we’ve already had enough trouble with one King George in our history.

  2. MJ says:

    With all due respect to you, we’re not simply talking about “the 9 words of dicta from In re Sealed Case.” Here’s the relevant section of the opinion:

    “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.”

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

    So we’re not talking about just the FISA Court for the 4th Circuit, but also the recognization of the President’s inherent authority by the 5th, 3rd, and 9th Circuits as well. Even these decisions don’t exist in a vacuum, as the Supreme Court specifically left the question open in the 1972 Keith case, stating “The instant case requires no judgment on the scope of the president’s surveillance power with respect to the activities of foreign powers, within or without this country.”

    Still further, you have the AUMF which, in Hamdi, five justices agreed that the AUMF clearly authorizes the fundamental incidents of waging war – which can certainly be argued to include intercepting communications. A 2nd-year law student could argue that given the AUMF the President’s “authority is at its maximum” under Justice Jackson’s concurrence in Youngstown Sheet & Tube.

    Not knowing more about how the program actually works, it is a fool’s errand to predict how the Court might vote on such an issue. But I haven’t seen anyone point to any LEGAL AUTHORITY that conclusively contradicts the legal arguments that the White House is making.

    To say the argument boils down to nine words is like saying the Fourth Amendment is just about traffic stops – that’s only one piece of the puzzle.

  3. Orin Kerr says:

    MJ,

    You’re confusing two different arguments, I believe. The 9 words are the only authority for the view that Article II trumps FISA; the other circuits were interpreting the Fourth Amendment warrant requirement, not Article II.

    Anyway, I’ve blogged at length about this over at volokh.com.