The Implication of Specter’s FISA Argument
posted by Dave Hoffman
Arlen Specter claimed on the Senate floor that FISA is unconstitutional because it conflicts with the President’s Article II plenary national security authority. [Update: No he didn't. See below.] Wouldn’t that argument make the Patriot Act unconstitutional too? Just wondering. Orin Kerr: take it from here.
[Hat Tip: A colleague who knows more than I do about constitutional law.]
[UPDATE: Thomas has the remarks online. In my view, early reports, like those provided by Josh Marshall, incorrectly stated Specter's position. I relied on those early reports. Apologies. The relevant bits of Specter's presentation follow after the jump]
We cannot enact laws which take away authority prescribed to the President under the Constitution, just as we cannot legislate to take away authority that the Supreme Court has under the Constitution. Just as we cannot delegate our authority which the Constitution gives to the Congress, we cannot delegate our authority in derogation of our constitutional responsibilities and authorities.
Those are very basic principles of law.
I am sorry that the Senator from Wisconsin saw fit to condemn and excoriate the President for 25 minutes but doesn’t have time to come to this floor to answer a simple question. And that simple question is, Doesn’t the Constitution trump statute?
A subordinate part of that question is if the President has inherent authority under Article II, isn’t it incorrect to say that the President has violated the Foreign Intelligence Surveillance Act, which would be superseded or trumped by the President’s constitutional authority?
We are going to have some more hearings before the Judiciary Committee. If I don’t have an opportunity to confront the Senator from Wisconsin this afternoon, I will find another opportunity to do so.
But I think the RECORD should be plain that in the hearing last month a number of academicians testified that the President does have inherent authority under article II to supersede the Foreign Intelligence Surveillance Act. And the Attorney General testified at length that the President has inherent authority under article II, which would lead to the conclusion that if Attorney General Gonzalez is correct, as a matter of law, then there is no violation of law by the President. Admittedly he is taking the President’s side, but that is the job of Attorney General as a generalization. He also represents the American people, and he has to discharge his oath consistent with his duties to the American people.
And later on:
There must be a determination on constitutionality. It is not possible, in my legal judgment, to make a determination as to whether the President’s inherent article II powers authorize this kind of a program, without knowing what the program is. I don’t know what the program is. The Attorney General would not tell us what it is when he testified last month. I understood his reasons for not telling us, even though we could have gone into a closed session. But the Judiciary Committee was looking at the legalities of the program. We were in a position to render a judgment on whether the Foreign Intelligence Surveillance Act was the exclusive remedy, and whether the resolution to authorize the use of force changed the FISA act. But it is a matter for the Intelligence Committee to get into the details of the program which, until last week, the administration has been unwilling to . . . A way is at hand to deal with this issue. The majority leader, Senator Frist, said we have a lawful program. That opinion has weight, substantial weight in my mind, but it is not conclusive. Senator Frist is not a judicial official. It may be that a more detailed analysis is necessary than has been presented to the Gang of 8. I don’t know, because I don’t know what they heard or what they learned.
And finally:
Mr. DURBIN. The next question I wish to ask the Senator from Pennsylvania, and I appreciate his forthright response, the majority leader, Senator Frist, came to the Senate a few moments ago and said he believed the wiretap program of President Bush was constitutional and legal.Does the Senator from Pennsylvania agree with that conclusion?
Mr. SPECTER. I neither agree nor disagree. I do not know. As I said more extensively in the body of my comments, I do not have any basis for knowing, because I do not know what the program does. I think it may be that the program could be structured as going after only al-Qaida conversations. And I would like to see some proof of that. Quite frankly, I would like to see some proof that they have reasonable grounds to think one party or the other is al-Qaida. That is in the body of Senator Feingold’s whereas clauses.
March 13, 2006 at 9:04 pm
Posted in: Privacy (National Security)
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Responses (12)
Orin Kerr - March 13, 2006 at 9:40 pm
Dave,
Do you have a link? Specter hasn’t taken that position, at least until today. I tried Google news, but didn’t see it.
Dave Hoffman - March 14, 2006 at 12:08 am
Well, I learned about it from TalkingPointsMemo (Dailykos seemed to reach the same conclusion). Can’t seem to find a transcript online, but here is the TPM link: http://www.talkingpointsmemo.com/archives/007884.php
Chris - March 14, 2006 at 9:16 am
Dave: I’m working from memory, but it seemed to me that Specter was arguing that interpreting FISA to prohibit the Terrorist Surveillance Program would unconstitutionally infringe upon the president’s inherent Article II authority. The implication was that the Senate should adopt the Adminstration’s interpretations of FISA and the AUMF to permit the TSP. I did not take it from Specter’s floor speech that he believed FISA to be unconstitutional in all applications.
As to your question, I suppose the Administration would distinguish between the Patriot Act and FISA by arguing that the Patriot Act provides the executive with additional law enforcement tools (i.e., enforcing laws passed by Congress), whereas FISA (at least as applied to the TSP) strictly concerns foreign intelligence gathering, which is much closer to the core of exclusive Article II presidential authority.
Adam White - March 14, 2006 at 11:25 am
Here’s what Specter actually said on the floor yesterday (see pages S2014-S2015 of the Congressional Record):
Going right to the heart of the issue, the Senator from Wisconsin says in the fourth “whereas” clause on page 2 that the President does not have the inherent constitutional authority to act in distinction and difference from the Foreign Intelligence Surveillance Act.
That is what you call a naked assertion unsupported by any statement of law, unsupported by any rationale.
The Judiciary Committee, of which the Senator from Wisconsin is a member, has held two hearings on the authority of the President to conduct electronic surveillance. And there has been a great deal of testimony from reputable sources saying that the President does have inherent authority under article II of the Constitution.
If that legal conclusion is correct, then constitutional authority trumps a statute.
The Congress cannot legislate in derogation of the President’s constitutional authority.
We cannot enact laws which take away authority prescribed to the President under the Constitution, just as we cannot legislate to take
away authority that the Supreme Court has under the Constitution. Just as we cannot delegate our authority which the Constitution gives to the
Congress, we cannot delegate our authority in derogation of our constitutional responsibilities and authorities.
Those are very basic principles of law.
I am sorry that the Senator from Wisconsin saw fit to condemn and excoriate the President for 25 minutes but doesn’t have time to come to this floor to answer a simple question. And that simple question is, Doesn’t the Constitution trump statute?
A subordinate part of that question is if the President has inherent authority under article II, isn’t it incorrect to say that the President has violated the Foreign Intelligence surveillance Act, which would be superseded or trumped by the President’s constitutional
authority?
We are going to have some more hearings before the Judiciary Committee. If I don’t have an opportunity to confront the Senator from Wisconsin this afternoon, I will find another opportunity to do so.
But I think the Record should be plain that in the hearing last month a number of academicians testified that the President does have inherent authority under article II to supersede the Foreign Intelligence Surveillance Act. And the Attorney General testified at length that the President has inherent authority under article II, which would lead to the conclusion that if Attorney General Gonzalez is correct, as a matter of law, then there is no violation of law by the
President. Admittedly he is taking the President’s side, but that is the job of Attorney General as a generalization. He also represents the American people, and he has to discharge his oath consistent with his duties to the American people.
There are a number of points, as I have said earlier, where I think the Senator from Wisconsin makes a valid argument.
I think on his third “whereas” clause on page 1 of the resolution, where he says that the Foreign Intelligence Surveillance Act is the exclusive statutory authority for electronic surveillance, he is correct. That doesn’t rule out the Constitution superseding the statute, however.
When the Senator from Wisconsin says on his third “whereas” clause on page 2 that the resolution authorizing the use of military force did not change the Foreign Intelligence Surveillance Act, I think the Senator from Wisconsin is correct. But the correctness of those two propositions do not supersede the inherent article II authority of the President. And that is the issue which has yet to be resolved.
***
That is why I have prepared legislation which would submit the NSA electronic surveillance program to the Foreign Intelligence Surveillance Court. That court now passes on applications for search-and-seizure warrants under the Foreign Intelligence Surveillance Act. They apply the standard, which is different than the standard for a search-and-seizure warrant in a criminal case. They have expertise in the field. They also have an exemplary record for keeping secrets.
That is the way to deal with this issue. There must be a determination on constitutionality. It is not possible, in my legal judgment, to make a determination as to whether the President’s
inherent article II powers authorize this kind of a program, without knowing what the program is. I don’t know what the program is.
Dave Hoffman - March 14, 2006 at 11:29 am
Adam,
I modified the post right about the time you posted your comment – Thomas just got the transcripts this morning.
Adam White - March 14, 2006 at 11:29 am
(Sorry, that entire quote should have been italicized. Everything from “Going right to the heart of the issue” through “I don’t know what the program is” is Specter’s argument, not mine.)
Quite clearly, Specter isn’t arguing that Article II trumps FISA. He’s merely arguing that Feingold’s a priori assertions are unjustified on the record, that there are strong arguments on both sides of the issue, and that Specter’s legislation (which would punt the issue to the FIS Court) would resolve that issue.
Not to be unduly harsh, but these sorts of blatant errors are what happens when you rely on “DailyKos” and (to a lesser extent) Josh Marshall as your primary sources!
Adam White - March 14, 2006 at 11:30 am
“Great minds think alike” and so forth.
Incidentally, I do recommend http://www.gpoaccess.gov. They’re great at getting the Congressional Record posted online quickly.
Dave Hoffman - March 14, 2006 at 11:34 am
Well, you are right about Specter’s views. I still am curious about the Patriot Act question.
You call this a “blatant error,” and you are right. And I agree that it makes me trust TPM, which I have usually seen as pretty reliable, significantly less. I had thought that with two sources reaching the same interpretation of the comments, I was justified in relying on them. Apparently not. Burn me once…
Adam White - March 14, 2006 at 11:50 am
Any fault belongs with Kos/Marshall, not with you. They’re reporters, and they should report by reference to primary sources.
The Patriot Act issue certainly is interesting (although I think the law enforcement/foreign intelligence distinction probably answers the question).
More interesting, though, is Specter’s ambivalence on this issue — both with respect to the primacy of the Constitution over statutes and with respect to deference to judicial bodies — which contrats markedly with his unflinching criticism of the Supreme Court’s recent Commerce Clause cases overturning federal statutes.
Adam White - March 14, 2006 at 11:51 am
I need to correct my own “blatant error.” Specter is hardly ambivalent on the question of constitutional supremacy in the current context.
Chris - March 14, 2006 at 12:21 pm
Thanks for posting that, Adam. While it’s in fashion, I will correct my own error and say that Specter’s comments can’t be fairly read as an endorsement of the Administration’s AUMF argument, as I misheard yesterday. Specter clearly rejects that in his response to Durbin’s question.
Adam White - March 14, 2006 at 12:30 pm
Poor, misunderstood Arlen Specter.
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