A Translation of Gonzales's Answers at the NSA Surveillance Hearings

The NSA surveillance hearings began today with the testimony of Attorney General Gonzales. To save you the time to read through the extensive transcript (here and here), I thought I’d translate some of Gonzales’s remarks for you:

GONZALES: Before going any further, I should make clear what I can discuss today. I am here to explain the department's assessment that the president's terrorist surveillance program is consistent with our laws and the Constitution. I'm not here to discuss the operational details of that program or any other classified activity.

TRANSLATION: I’m here to say absolutely nothing new. I can’t tell you what you need to know to really assess the program. In other words, this will be booooorrriiinnnnggggg. My advice . . . turn off the TV and go watch some paint dry.

GONZALES: It's an early warning system designed for the 21st century. It is the modern equivalent to a scout team, sent ahead to do reconnaissance, or a series of radar outposts designed to detect enemy movements. And as with all wartime operations, speed, agility and secrecy are essential to its success.

TRANSLATION: Remember the robot probe in The Empire Strikes Back? It’s like that.

GONZALES: While the president approved this program to respond to the new threats against us, he also imposed several important safeguards to protect the privacy and the civil liberties of all Americans. . . . As the president has said, if you're talking with Al Qaida, we want to know what you're saying.

TRANSLATION: If you’ve got nothing to hide, then there should be no problem with us listening to you. If you’ve got something to hide, then . . . well . . . we should listen to you.

GONZALES: Presidents throughout our history has authorized the warrantless surveillance of the enemy during wartime, and they have done so in ways far more sweeping than the narrowly targeted terrorist surveillance program authorized by President Bush.

TRANSLATION: They did it too! It ain’t fair to single us out. Yes, they did it before the FISA was passed, but still!

GONZALES: While FISA is appropriate for general foreign intelligence collection, the president made the determination that FISA is not always sufficient for providing the sort of nimble early-warning system we need against Al Qaida. . . . Just as we can't demand that our soldiers bring lawyers onto the battlefield, let alone get the permission of the attorney general or a court before taking action, we can't afford to impose layers of lawyers on top of career intelligence officers who are striving valiantly to provide a first line of defense by tracking secretive Al Qaida operatives in real time.

TRANSLATION: A simple syllogism. FISA requires judicial oversight. Judicial oversight requires courts. Courts require lawyers. And everybody hates lawyers, right?

GONZALES: To end the program now would be to afford our enemy dangerous and potential deadly new room for operation within our own borders.

TRANSLATION: One word . . . terrorism. ‘Nuff said.

GONZALES: Our enemy is listening. And I cannot help but wonder if they aren't shaking their heads in amazement at the thought that anyone would imperil such a sensitive program by leaking its existence in the first place, and smiling at the prospect that we might now disclose even more or perhaps even unilaterally disarm ourselves of a key tool in the war on terror.

TRANSLATION: In our “democracy,” our government can’t operate in secret and has to explain itself to the people. Why are we being so dumb? The terrorists are laughing at us.

GONZALES: In terms of, "Why not go to the FISA Court?" once the determination was made that neither the Constitution nor FISA prohibited the use of this tool, then the question becomes, for the commander in chief, which of the tools is appropriate given a particular circumstance. . . . What I can say, Senator, is that we are continually looking at ways that we can work with the FISA Court in being more efficient and more effective in fighting the war on terror.

TRANSLATION: Basically, going to the FISA court is a total pain in the ass.

GONZALES: Sir, there is no specific language [in the Authorization to Use Military Force (AUMF)], but neither is there specific language to detain American citizens. And the Supreme Court said that the words "all necessary and appropriate force" means all activities fundamentally incident to waging war.

TRANSLATION: What part of “all” necessary force don’t you understand? If you don’t read “all” to mean “all,” then we can’t detain American citizens indefinitely; we can’t deny them the right to see attorneys; we can’t torture people; and we can’t do many of the things we really really want to do.

GONZALES: I don't know that FISA needs to be amended per se. Because when you think about it, FISA covers much more than international surveillance. It exists even in the peacetime. . . . And so when you're talking about domestic surveillance during peacetime, I think the procedures of FISA, quite frankly, are quite reasonable. And so that's one of the dangers of trying to seek an amendment to FISA is that there are certain parts of FISA that I think provide good protections. And to make an amendment to FISA in order to allow the activities the president has authorized, I'm concerned will jeopardize this program.

TRANSLATION: FISA’s for peacetime. This is war. FISA has provisions for wartime, but we don’t like those. Anyway, let’s talk about amending FISA after the War on Terrorism is over . . . otherwise we jeopardize the program. And if the War on Terrorism ever ends, there won’t be any need to amend FISA, since it works so well in peacetime. Got that?

GONZALES: There may be some in America -- I suspect there are some in America who are saying, "Well, why aren't you -- you know, if you've got reason to believe that you've got two members of Al Qaida talking to each in America, my God, why aren't you listening to their conversations?"

TRANSLATION: Although the FISA framework would allow us to listen to Al Qaida under judicial oversight, I’d rather frame the issue as whether we should be able to listen at all. If Al Qaida’s a talkin’, we should be a listenin', right? Who wouldn’t want that? ‘Nuff said.

Posted by Daniel J. Solove at 07:49 PM | TrackBack

Gonzales's Tortured Logic on NSA Surveillance

Attorney General Gozales brought out some new arguments in defense of the warrantless NSA surveillance program. He should have kept these arguments in the bag, as they are flatly wrong. For example, according to the AP:

Gonzales told his audience: "You may have heard about the provision of FISA that allows the president to conduct warrantless surveillance for 15 days following a declaration of war. That provision shows that Congress knew that warrantless surveillance would be essential in wartime."

Indeed, FISA authroizes electronic surveillance more generally "for a period not to exceed fifteen calendar days following a declaration of war by the Congress." 50 U.S.C. § 1811. But how does this justify warrantless surveillance that continued far beyond 15 days and that continues to this day? Notwithstanding whether the Authorization to Use Military Force is the equivalent to a declaration of war, this FISA provision indicates that FISA explicitly contemplated the situation the President faced and established a rule -- he could engage in warrantless surveillance for 15 days. I have yet to understand how a provision that allows the President to engage in warrantless surveillance for 15 days can be used to justify indefinite warrantless surveillance. Give 'em a nickel, and they take a dime dollar unlimited amount.

Here's another gem:

The reasonable basis standard, said Gonzales, "is essentially the same as the traditional Fourth Amendment probable cause standard."

Nope. The standard is entirely different. The reasonable basis standard is far lower than probable cause. This is not some esoteric fact about Fourth Amendment law, but it is basic knowledge of the law that Gonzales should know.

Posted by Daniel J. Solove at 06:51 PM | Comments (51) | TrackBack

Making Sense of Public Attitudes Toward NSA Surveillance

MSNBC journalist Bob Sullivan, in his blog Red Tape Chronicles, writes:

Ask Americans something like, “Should the government be allowed to read e-mails and listen to phone calls to fight terrorism?” and you’ll get a much different result than if you ask, “Should the government be allowed to read your e-mails and listen to your phone calls to fight terrorism.” . . . .

In 2002, The Pew Research Center for People and The Press asked just those questions -- and by simply dropping the word “your,” the number of people willing to support such government snooping jumped by 50 percent. Only 22 percent were willing to let the government peek when it was personal, but 33 percent were willing when it sounded like only someone’s else privacy was at risk, said Scott Keeter, director of survey research for Pew.

Another issue, when it comes to framing questions in polls, is whether warrants are mentioned. Consider the question above: “Should the government be allowed to read e-mails and listen to phone calls to fight terrorism?” I'd even answer yes. The government should be allowed to conduct a wide range of searches . . . . with a search warrant, however. Indeed, under the Fourth Amendment, the government can read email and listen to phone calls with a search warrant. [The Electronic Communications Privacy Act requires a slightly more protective order than a warrant to engage in domestic wiretapping.]

So the question should be posed as: “Should the government be allowed to read e-mails and listen to phone calls without a search warrant or the appropriate court order required by law to fight terrorism?”

Consider this poll data from Rasmussen Reports. The question asked was: "Should the National Security Agency be allowed to intercept telephone conversations between terrorism suspects in other countries and people living in the United States?" The answer -- 64% said yes and just 23% said no.

Sounds like support for the NSA surveillance? But it's not clear what this means. Many might be believe that the NSA should be allowed to intercept telephone conversations pursuant to a court order under the Foreign Intelligence Surveillance Act or pursuant to a warrant.

A Gallup poll asks a more well-worded question:

As you may know, the Bush administration has been wiretapping telephone conversations between U.S. citizens living in the United States and suspected terrorists living in other countries without getting a court order allowing it to do so. Do you think the Bush administration was right or wrong in wiretapping these conversations without obtaining a court order?

Right -- 50%
Wrong -- 46%
No opinion -- 4%

The 50% figure is much different from the Rasmussen number, but it is still alarmingly high.

However, I've always been somewhat skeptical of polls because I think they are skewed by the type of people who bother to cooperate. Is it a really good demographic sampling of the population based on education and profession? I wonder, for example, how many lawyers (who are probably most familiar with what a court order is and why it is valuable) participate. All lawyers I've spoken to about polls have said they don't bother wasting their time with them. I never participate in polls. Perhaps other people have different attitudes, but I wonder whether there's a correlation between one's view about participating in polls and one's profession or one's level of knowledge about particular legal and political issues. Ironically, we'd need some poll data on this question.

Posted by Daniel J. Solove at 12:07 AM | Comments (3) | TrackBack

NSA Surveillance Whistleblower Russell Tice Speaks

In an interesting interview at Reason Online, NSA surveillance whistleblower Russell Tice explains what prompted him to speak out about the program:

As a signals intelligence officer, kids who go right out of college and work for the NSA, this is drilled into you, especially when you're young: You will not do this. This is number one of the NSA's Ten Commandments: You will not spy on Americans. Even after you've had all those introductory briefings when you're a new employee, for the rest of your career, at least twice a year they call you in for a briefing, and this is always covered. "You will not do this," they shake their fingers at you. "If you do this you can be thrown in jail." And all of a sudden you find out the people who've been shaking their fingers are doing what they're telling you is against the law and coming out with some cockeyed nonsense excuses for why everything's OK. It's sort of like having your parents drill it into you not to smoke cigarettes or do drugs or whatever, and then after you're a good little boy coming home from school at 15 and finding your parents out on the balcony doing all that.

Fear rules the day right now. For the most part, people know, NSA employees know, that this is wrong, that this is illegal. In many cases they feel betrayed by their own leadership. . . .

And the president—I'm a Republican, I voted for this guy. I've always given him the benefit of the doubt. I didn't like the PATRIOT Act; I don't like a lot of what I've seen. But I've always felt that this president, in his heart, felt he was doing his best to protect the American people. I thought PATRIOT, and throwing the key away on Jose Padilla, were unconstitutional, but I've always given him the benefit of the doubt. I'm certainly hoping that he's been misled, and that if a broad-brush approach was used that the president wasn't aware of it or didn't understand the ramifications, that hundreds of thousands if not millions of Americans could have their rights violated. But if that happened and the president knew totally the extent of it, and everything we're hearing now is just damage control from the White House... Well, some time ago, we impeached a president for cheating on his wife, which as far as I'm concerned should've been between his family, his wife, and if he believes in one his God upstairs. When it comes to high crimes and misdemeanors, knowingly and willingly doing this and then being arrogant about it and saying we're going to continue doing it—I would certainly think falls into that category of high crimes.

Hat tip: Orin, as usual.

Posted by Daniel J. Solove at 12:01 AM | Comments (0) | TrackBack

The Fundamental Issue of Presidential Power

Noah Feldman (law, NYU) has a very thoughtful essay in the New York Times Magazine about the rise of presidential power. He writes:

Not since Watergate has the question of presidential power been as salient as it is today. The recent revelation that President George W. Bush ordered secret wiretaps in the United States without judicial approval has set off the latest round of arguments over what the president can and cannot do in the name of his office. Over the past few years, the war on terror has led to the use of executive orders to authorize renditions and the detention of enemy combatants without trial. . . . The limits of presidential power will almost surely be a major topic of discussion during Samuel A. Alito Jr.'s Supreme Court confirmation hearings, which are scheduled to begin this week.

The stakes of the debate could hardly be higher: nothing is more basic to the operation of a constitutional government than the way it allocates power. Yet in an important sense, the debate is already long over. By historical standards, even the Bush administration's critics subscribe to the idea of a pre-eminent president. Administrative agencies at the president's command are widely understood to be responsible for everything from disaster relief to drug approval to imposing clean-air standards; and the president can unleash shock and awe on his own initiative. Such "presidentialism" seems completely normal to most Americans, since it is the only arrangement most of us have ever known.

For better or worse, though, this is not the system envisioned by the framers of the Constitution. The framers meant for the legislative branch to be the most important actor in the federal government: Congress was to make the laws and the president was empowered only to execute them. The very essence of a republic was that it would be governed through a deliberative legislature, composed carefully to reflect both popular will and elite limits on that will. The framers would no sooner have been governed by a democratically elected president than by a king who got his job through royal succession.

Feldman goes on to describe how this growth in the power of the president occurred:

The transformation of the United States from a traditional republic to a democratic nation run in large measure by a single executive took a couple of hundred years. Constitutional evolution, like its counterpart in the natural world, has occurred sometimes gradually and sometimes in catastrophic jolts, like those brought about by war or economic crisis. The process has not been entirely linear: presidential power grabs have often been followed by a Congressional backlash, as in the wake of Richard Nixon's presidency. But the overall winner has unquestionably been the president, who has reached heights of power that the framers would scarcely have imagined.

However, Feldman notes that the Bush Administration has pushed even further beyond these heights. What can be done to keep presidential power in check? That depends upon Congress and the courts. Feldman notes:

For the last four years, a Republican Congress has done almost nothing to rein in the expansion of presidential power. This abdication of responsibility has been even more remarkable than the president's assumption of new powers.

The issue of presidential power goes to the heart of what kind of nation we will be, what kind of government we want to have. Far too often, I've heard discussions of the NSA surveillance issue define the harm as a threat to civil liberties. While it is true that civil liberties are threatened, this isn't the primary reason why the NSA surveillance is problematic. The NSA surveillance is problematic even if no civil liberties have been violated. The issue is about whether the President can engage in activities that contravene the laws of the nation. It is about whether we should allow the President to do so in secrecy, without any accountability to the people and without any oversight by the other branches of government. The Bush Administration's theory of presidential power appears to have little articulable limit. In trotting out a theory of presidential power broad enough to encompass the NSA surveillance, the Administration has yet to state how that power is limited, if at all, under its theory.

The Bush Administration has already pushed the fronteirs of presidential power -- and has, in my opinion, far exceeded those fronteirs. But what the Administration is claiming it has the power to do goes much further beyond.

The pressing issue, therefore, that we face as a nation is whether we want to maintain some balance between the branches of government or continue to allow the Executive branch to aggrandize power. This is an issue of constitutional magnitude and one that should be of concern to everyone, whether Democrat or Republican. As James Madison wrote in Federalist #51:

In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.

Related Posts:
1. Solove, Hypothetical: What If President Bush Were Correct About His Surveillance Powers?
2. Solove, Beyond His Power: Bush's Authorization of Warrantless NSA Surveillance

Posted by Daniel J. Solove at 12:02 AM | Comments (4) | TrackBack

Court Grants Padilla Petition

As How Appealing and SCOTUSBlog have reported, the Supreme Court has granted the SG's motion to transfer Jose Padilla to civilian custody. The Court's order disposes of the issue without substantive comment.

As one of my colleagues observed, you can just imagine the Chief Justice raising his eyebrows when reading Judge Luttig's (astonishing) opinion denying the transfer below. Luttig's decision, you may remember, refused to order something that both parties at the time wanted -- i.e., transfer the prisoner to civilian custody -- reasoning that the transfer would undermine the rule of law in the context of an issue of "surpassing" national importance. The Chief Justice's implied reply: "Chill."

Posted by Dave Hoffman at 04:46 PM | Comments (0) | TrackBack

Whistleblowing, Journalist Privilege, and NSA Surveillance

The DOJ has launched a probe into the leaking of the NSA surveillance program to the New York Times:

"The leaking of classified information is a serious issue. The fact is that al-Qaida's playbook is not printed on Page One and when America's is, it has serious ramifications," Duffy told reporters in Crawford, Texas, where Bush was spending the holidays.

This probe will raise several important questions in the months to come.

First is the issue of whistleblowing. Somebody leaked classified information about the NSA surveillance program. Should that individual be punished? On the one hand, we don't want people leaking classified information that could impact national security. On the other hand, the President possibly violated a federal criminal statute. Whether he did or not is something that Congress and the courts must settle, but very few of those defending the legality of the President's actions believe that it is a very easy clear-cut case. At best for the President, the issue is contestable; at worst, he broke the law. Without the whistleblowing, there would be no way for the Congress or courts to address the issue. Even if it turns out the President lawfully engaged in the surveillance, there's another issue: Is the President lawfully allowed to keep it secret for as long as he desires? At the very least, should the President be allowed to keep it secret from other branches of government?

Second, what is the harm of the whistleblowing? President Bush stated that "the unauthorized disclosure of this effort damages our national security and puts our citizens at risk." I believe that such rhetoric is overblown unless there is something to back it up. How does the disclosure of basic facts about the existence of the program put our citizens at risk? Rhetoric such as this can do a severe disservice to national security in that it will become harder in the future to determine what is just empty rhetoric and what is the truth. The story of the boy who cried wolf doesn't end happily.

Third, the probe into the whistleblower may raise again the issue of journalist privilege -- the right of journalists to shield the anonymity of their sources. Earlier on, this issue took center stage with the White House leak that Valerie Plame was a CIA agent. Will the DOJ seek to obtain the identity of the leaker from James Risen and Eric Lichtblau, the New York Times journalists who broke the story?

In Branzburg v. Hayes, 408 U.S. 665 (1972), the Supreme Court held that there is no First Amendment journalist privilege against grand jury requests for evidence. Lower courts have employed qualified privileges, but these have been generally much broader in civil rather than criminal cases. I haven't examined the caselaw sufficiently enough to opine on the extent to which any journalist privilege would apply to this case. The Reporters Committee for Freedom of the Press has an extensive repository of materials on the issue of journalist privilege.

There have been calls for Congress to establish a journalist privilege, and I believe that Congress ought to establish one. A lot of issues in the precise contours of the privilege need to be worked out, as I discuss here in a post, but it is time to address the issue. By creating a journalist privilege, Congress can help to reassert its power in the process. President Bush probably broke a federal law; has continued to claim that he has power to ignore the law; and did not (and has not as of yet) fully informed Congress about the surveillance program. If I were Congress, I'd be feeling fairly stepped-upon right now. Creating a journalist privilege would ensure that Congress and the public learn information about secret Executive Branch activities that might be beyond the bounds of the law.

Many might try to equate the leaking of the NSA surveillance program to the Valerie Plame leak. I believe that the two leaks are not equivalent. There seems to be little justification for the Plame leak except vindictiveness. On the other hand, the leak of the NSA surveillance program has potentially revealed a violation of the law (one that is continuing and ongoing); it has uncovered a potential overreaching of Executive power; it has tipped off Congress to a potential encroachment on its own power; and at the very least, it has opened up a national discussion about the proper scope of the President's powers in a democratic society with separation of powers.

I will withhold final judgment until we have more facts, but from what I know at this point, I submit that the leak of the NSA surveillance program was in the public interest, and the journalists who broke the story and the identity of their source should be protected.

Related Posts:
1. Solove, Journalist Privilege and the Valerie Plame Case
2. Solove, Journalist Privilege and Law Enforcement Leaks
3. Solove, How Much Government Secrecy Is Really Necessary?
4. Solove, Did President Bush Have the Legal Authority Under FISA to Authorize NSA Surveillance?

More related posts are in the category archive for National Security.

Posted by Daniel J. Solove at 06:08 PM | Comments (5) | TrackBack

More on NSA Surveillance

There are some recent blog posts and news stories worth reading about the NSA surveillance scandal.

Orin Kerr at the VC has a new post examining the argument that Article II of the Constitution grants the President the "inherent authority" to conduct warrantless surveillance in violation of the Foreign Intelligence Surveillance Act. He concludes:

I don't think there is much doubt as to what the Supreme Court would do with the Article II argument. I think you would probably get an 8-1 vote against an expansive reading of Article II powers, and it's really hard to see where the Administration could get 5 votes for the claim. That's my ballpark guess, at least.

In particular, Kerr examines nine words in an opinion by the FISA Court of Review, In re Sealed Case, that many cite as support for the Article II argument. Kerr observes:

As for the 9 words of dicta from In re Sealed Case — "FISA could not encroach on the president's constitutional power" — I find it hard to know what to make of it. In that case, the government was arguing that the statutory warrant requirement of FISA made monitoring pursuant to that requirement constitutionally reasonable. Was the court claiming that Congress could not impose a warrant requirement where a warrant would not required under the Fourth Amendment? That would reverse the usual role of the Fourth Amendment: it would transform the Fourth Amendment from a floor on privacy protections into a ceiling. Or is the Court merely saying that if FISA were repealed, the President's constitutional power from pre-FISA days would still exist? I'm not entirely sure, and unfortunately the opinion doesn't carefully explain it. If this phrase stands for the view that Article II powers trump FISA's restrictions, then I would certainly want more authority than that; Congress thought it was binding the executive when it passed FISA, and it would be news justifying more than 9 words of dicta if this weren't the case.

For wonks who are interested in more details, Kerr's lengthy post is worth reading in its entirety.

I.M. Kierkegaard is maintaining a very good repository of links about the NSA surveillance story -- and the links are being regularly updated.

Marty Lederman has another good post on the NSA surveillance. Lederman responds to an essay in the Weekly Standard by Gary Schmitt of AEI (former executive director of the President's Foreign Intelligence Advisory Board). Schmitt argues that the President violated FISA because the law was too restrictive and the national security needs were paramount. Lederman writes:

Just to be clear: Schmitt is accusing the President of authorizing criminal conduct, of failing to abide by his constitutional obligation to "faithfully execute the laws." No doubt the President, like Schmitt, thinks those laws are inadvisable, and damaging to our national security interests. But is that a sufficient excuse?

There's a certain irony here, in that FISA itself is one of those rare statutes that expressly contemplates that the rules for Executive conduct might need to be altered during wartime. The statute provides that "[n]otwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress." 50 U.S.C. 1811.

Why does the statute permit warrantless surveillance for only the first 15 days of a war? After all, the need for intelligence ordinarily will be just as great throughout the war, not only during its first 15 days. The answer is that 15 days was deemed sufficient to give the President the opportunity to ask Congress for a statutory amendment. As the Conference Report explained: "The Conferees intend that this [fifteen-day] period will allow time for consideration of any amendment to this act that may be appropriate during a wartime emergency. The conferees expect that such amendment would be reported with recommendations within 7 days and that each House would vote on the amendment within 7 days thereafter.” H.R. Conf. Rep. No. 95-1720, at 34 (1978).

The Bush Administration could have, but did not, take advantage of the 15-day window for legislative change that Congress specifically inserted in FISA (perhaps because it was informed that an amendment to allow this sort of data-mining would have been a political nonstarter). Instead, it simply decided to violate the law. Isn't that choice to bypass the democratic process a bit disconcerting, even if (like Gary Schmitt) one thinks the law was a lousy idea to begin with?

The New York Times reports that the President's surveillance program may be more extensive than has previously been thought:

Members of the Judiciary Committee have already indicated that they intend to conduct oversight hearings into the president's legal authority to order domestic eavesdropping on terrorist suspects without a warrant.

But Congressional officials said Saturday that they would probably seek to expand the review to include the disclosure that the security agency, using its access to giant phone "switches," had also traced and analyzed phone and Internet traffic in much larger volumes than what the Bush administration had acknowledged.

"We want to look at the entire program, an in-depth review, and this new data-mining issue is certainly a part of the whole picture," said a Republican Congressional aide, who asked not to be identified because no decisions had been made on how hearings might be structured.

Current and former government officials say that the security agency, as part of its domestic surveillance program, has gained the cooperation of some of the country's biggest telecommunications companies to obtain access to large volumes of international phone and Internet traffic flowing in and out of the United States.

The DOJ has launched a probe into the leaking of the NSA surveillance program to the New York Times.

Posted by Daniel J. Solove at 02:20 PM | Comments (3) | TrackBack

The Role of the Solicitor General

We here at Concurring Opinions occasionally provide an important service for our readers: we analyze uber-left-blog-Dailykos' views on the legal system so you don't have to.

Armando of Dailykos, who I have previously criticized here, has a new post up on the role of the Solicitor General's Office. Armando appears to be taking on Ed Whelan's short argument in the National Review that Judge Alito's SG wiretapping memo's were advocacy pieces on behalf of his administration. But on closer examination, Armando's argument sweeps quite farther than that.

Armando quotes extensively from David Strauss' article on the SG's office, which had questioned the commonly-expressed institutionalist account of its role. He (Armando) appears drawn to the institutionalist view – holding that the SG should be and is somewhat independent of the White House. [Where is he on the Days-Clinton dispute, I wonder?] But, he argues, the executive branch has soiled this role by politicizing the SG [whatever that means] and by appointing more partisan lawyers to the job. [He cites to a book by Rebecca Salokar that I have not read.] Armando does not distinguish between employees of the office and the SG him/herself. He then continues:

Alito was chosen to be in the Reagan Justice Department and the Reagan Solicitor General's office BECAUSE he believes the things Ed Meese believes. [Ed: How does Armando know this?] So yes, he was acting as an advocate for Reagan Administration legal policies, but he was chosen to advocate for them because he believes in those policies. So looking at the opinions he expressed and positions he advocated for while serving in the Reagan Justice Department and in the Solicitor General's office is not only fair, it is perhaps the fairest approach we can take. After all, it was in those roles that we likely heard Alito's true views. While a sitting judge, bound by precedent, Alito's true views were muted at best, and masked at worst. [This sounds lovely. What does it mean?]

So, to sum up, Armando argues that as early as the 1980s the SG's office was a mere extension of the White House political directorate, and that SG lawyers writing memoranda supporting administrative positions always personally supported those positions, by virtue of their status as SG employees. While Judges, actually appointed by the President in a nakedly political process, somehow are bound by "precedent". This is an odd position considering Armando's previous writing that embraced a cynical type of legal realism. I wonder if readers of this blog with personal experience in the SG’s office would agree with the picture of it drawn by the most popular blog on the planet.

Posted by Dave Hoffman at 11:49 AM | Comments (27) | TrackBack

In the New York Times: Dan Solove on Spying

Concurring Opinions readers should check out Adam Liptak's article in the New York Times today, Little Help From Justices on Spy Program. Dan Solove is among the law professors quoted on the constitutional issued raised by the NSA spying program.

Posted by Jason Mazzone at 11:33 AM | Comments (0) | TrackBack

The President's Inherent Authority Argument

There are some great posts over at Balkinization examining the President's inherent authority to conduct warrantless surveillance.

Here are some key excerpts:

Marty Lederman, "Inherent Authority" to Violate Federal Law? (Dec. 22, 2005)

"I do not deny that the President has the power as Commander-in-Chief to engage in at least some forms of warrantless surveillance against the enemy in the absence of statutory prohibition. That would be a Youngstown "Category II" case. . . .

But the critical point for present purposes is that, as Prof. Griffin emphasizes, the Nation had exactly this debate in the mid-70s -- after gross abuses in connection with such warrantless surveillance -- and the legislature and Executive agreed to enact FISA, a statute regulating such warrantless surveillance. . . .

That puts us in Youngstown Category III, where the President's constitutional authority to act -- even if he had it in the first place -- is at its 'lowest ebb.' . . .

The Administration's defenders are citing a 2002 dictum by the FISA Court of Review: "We take for granted that the President does have that authority [to conduct warrantless searches to obtain foreign intelligence information] and, assuming that is so, FISA could not encroach on the President’s constitutional power." In re Sealed Case, 310 F.3d 717, 742 (FIS Ct. Rev. 2002) (emphasis added). That throwaway line -- not germane to the holding in that case -- was almost certainly written by Judge Laurence Silberman, who (I am told) testified in his personal capacity to the same effect in the mid-1970's, when FISA was being considered. The dictum is, in my view, dead wrong. . . . If Silberman and the Bush Administration are correct, then there's no need for FISA at all -- nor for the FISA Court. The President may simply proceed with surveillance on his own iniitiative, if he thinks it will help in the war on terrorism."

Jack Balkin, Youngstown and The President's Power to Torture (July 16, 2004) (provides useful background about Youngstown Sheet and Tube Co. v. Sawyer (U.S. Supreme Court 1952), where President Truman ordered the seizure of steel mills in the name of national security during the Korean War)

"[T]he question before the Court was whether the President's powers as Commander-in-Chief gave him authority in an emergency to seize private property. . . .

Justice Jackson's opinion . . . offered a famous delineation of the possible relationships between the President and Congress:

1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. . . .

2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. . . .

3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our
constitutional system.

. . . . September 11th changed everything, we are told. But it is important to remember that the Justices who decided Youngstown had also seen war, plenty of war. Pearl Harbor was only a decade previous, and since that day the United States had been twice at war, and had continuously sent its forces around the globe to protect its interests. These Justices well understood the importance of national security to national survival. Indeed, they were all appointees of Roosevelt and Truman, Presidents who had taken the country to war. Yet they saw beyond the urgencies of the moment, and the ubiquitous declarations that war had changed everything. They upheld the principle of checks and balances, and rejected the claim of an unlimited Executive. And they helped preserve our democratic system of government in the process."

Posted by Daniel J. Solove at 02:29 PM | Comments (1) | TrackBack

NSA Surveillance Blog Post Roundups: More Posts

For those interested in blogospheric opinion about the NSA surveillance issue, I've been updating NSA Surveillance: Blog Post Roundup II with new posts I find to be of interest.

Posted by Daniel J. Solove at 06:35 PM | Comments (1) | TrackBack

Judge Posner's Troubling Call for Massive Surveillance

Judge Richard Posner has written an op-ed in the Washington Post today where he calls for a massive program of surveillance of U.S. citizens -- their email, documents, phone conversations, nearly everything they say or do -- regardless of whether they are suspected of any wrongdoing or not. Posner's argument is quite startling and troublesome. Posner writes:

The collection, mainly through electronic means, of vast amounts of personal data is said to invade privacy. But machine collection and processing of data cannot, as such, invade privacy. Because of their volume, the data are first sifted by computers, which search for names, addresses, phone numbers, etc., that may have intelligence value. This initial sifting, far from invading privacy (a computer is not a sentient being), keeps most private data from being read by any intelligence officer.

In other words, Posner is saying that so long as the data is gathered by computers, there's no privacy invasion if the government collects everything. It is also odd for Posner to say this, because in Northwestern Memorial Hospital v. Ashcroft, 362 F.3d 963 (7th Cir. 2004), he held that even records without identifying information could constitute an invasion of privacy: "Even if there were no possibility that a patient's identity might be learned from a redacted medical record, there would be an invasion of privacy." Posner's conclusion that records that are anonymized could still violate people's privacy is a radical one, and I find it hard to square with what he says in the op-ed.

So, taking Posner's argument to the extreme, there's no problem if the government were to wiretap, install video cameras in our homes, collect every document we ever wrote, and so on -- so long as the information were collected by computers and not seen by human eyes. But what about the vast power this gives the government? What about the potential for government abuse? What about the chilling effects on people's speech and freedom? Posner ignores these things.

Posner goes on to write:

The Foreign Intelligence Surveillance Act makes it difficult to conduct surveillance of U.S. citizens and lawful permanent residents unless they are suspected of being involved in terrorist or other hostile activities. That is too restrictive. Innocent people, such as unwitting neighbors of terrorists, may, without knowing it, have valuable counterterrorist information. Collecting such information is of a piece with data-mining projects such as Able Danger.

According to Posner, the FISA is too restrictive because it doesn't allow surveillance on innocent U.S. citizens. However, the FISA protects U.S. persons from broad surveillance to prevent the government from systematically spying on citizens. Posner would sweep aside these protections, many of which are in place because of the Fourth Amendment.

Posner says:

Many of the relevant bits [of data for learning about terrorist activities] may be in the e-mails, phone conversations or banking records of U.S. citizens, some innocent, some not so innocent. The government is entitled to those data, but just for the limited purpose of protecting national security.

And how can we limit the government to just using it for "national security"? What constitutes "national security" versus ordinary crime? As I wrote in an article, Reconstructing Electronic Surveillance Law, 72 Geo. Wash. L. Rev. 1264 (2004): "What precisely is 'national security'? Is a mass murderer on the losse a national security issue? Some have even argued that drug trafficking is a natiional security issue." The line between national security and domestic criminal activity is a fuzzy one. Moreover, many government abuses have been done under the cover of so-called "national security."

Posner continues:

The terrorist menace, far from receding, grows every day. This is not only because al Qaeda likes to space its attacks, often by many years, but also because weapons of mass destruction are becoming ever more accessible to terrorist groups and individuals.

If the danger is from weapons of mass destruction falling into the hands of terrorist groups, then perhaps we should devote our resources in tracking down loose nuclear weapons around the world. But establishing a massive surveillance network within the U.S. seems like a diversion from this task.

For more thoughts on Posner's op-ed, see:

Marty Lederman, Judge Posner and "Ad Hoc Initiatives" (i.e., Presidentially Sanctioned Felonies) (Dec. 21, 2005)

Kieren Healy, Posner Forgets Himself (Dec. 21, 2005)

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Hypothetical: What If President Bush Were Correct About His Surveillance Powers?

There's been some terrific analysis in the blogosphere about whether President Bush is correct that he had the power to authorize warrantless surveillance. (See here and here for a roundup of posts.) The arguments thus far focus on what the President has already done, but the President has stated that he will continue the warrantless surveillance "for so long as the nation faces the continuing threat of an enemy that wants to kill American citizens."

Suppose the President is right that he has the power to do this based on his "inherent authority" as Commander-in-Chief. The implications are quite alarming. It means that the President, in his sole discretion, can secretly authorize the NSA to engage in electronic surveillance on U.S. citizens until the War on Terrorism is over. This is a war without a foreseeable end. Under his argument, there seems to be no reason why he can't authorize other agencies to engage in surveillance, such as the FBI and CIA. And why does it need to be limited just to wiretaps? Perhaps video surveillance, bugs, searches of homes, gathering documents, and more.

Under his argument, Bush could continue to ignore the requirements of any law that stands in his way. What could Congress do? Congress could try to enact a law to clarify that it wants the President to abide by existing laws. Of course, the President could veto that law, but suppose Congress overrode the veto. According to the President's logic, he could still say that his "inherent authority" allows him to ignore it.

The problem with Bush's argument is that he has articulated virtually no conceivable limits to his power. The stakes of the debate aren't just about what the President has already done. They are about what the President has defiantly declared he has the power to do in the future.

Posted by Daniel J. Solove at 03:09 AM | Comments (13) | TrackBack

Federal Judge Resigns from the FISA Court

The Washington Post reports:

U.S. District Judge James Robertson, one of 11 members of the secret Foreign Intelligence Surveillance Court, sent a letter to Chief Justice John G. Roberts Jr. late Monday notifying him of his resignation without providing an explanation.

Two associates familiar with his decision said yesterday that Robertson privately expressed deep concern that the warrantless surveillance program authorized by the president in 2001 was legally questionable and may have tainted the FISA court's work.

Posted by Daniel J. Solove at 02:58 AM | Comments (1) | TrackBack

NSA Surveillance: Blog Post Roundup II

In addition to the blog post roundup I did yesterday, here are more blog posts about Bush's NSA surveillance worth reading:

David Cole, Bush's Illegal Spying (Salon, Dec. 20, 2005)
"Attorney General Gonzales contends that the authorization by Congress to use military force somehow implicitly gave the president power to wiretap Americans at home. But nothing in the authorization even mentions wiretaps. And that claim is directly contrary to the express language in FISA limiting any such authority. While intercepting the enemy's communications on the battlefield may well be an incident of the war power, wiretapping hundreds of people inside the United States who are not known to be members of al-Qaida in no way qualifies as an incidental wartime authority."

Marty Lederman, Another Reason Why the AUMF Argument is Wrong, and Why This Surveillance Program is Lawless (Dec. 20, 2005)
"1. Because it's not necessary that even one of the parties to the communication have been part of Al Qaeda, it explains why a FISA court would not have granted authority for these intercepts in the first place -- which is why the Administration could not work within the existing (very deferential, pro-government) authorities.

2. Obviously, the NSA protocol is simply not covered by the terms of the AUMF itself, because it reaches conduct by NSA against communications of persons who are not "those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons."

3. It's also presumably not a "fundamental incident of war" for the Executive to wiretap a communication between two persons, neither of whom is suspected of being part of (or an agent of) the enemy (let alone the military arm of the enemy). This is not only another reason that the AUMF (and Hamdi) does not authorize these interceptions; it also means that not even the boldest assertion of Commander-in-Chief authority would support this program."

Bruce Schneier, NSA and Bush's Illegal Eavesdropping (Dec. 20, 2005)
"Over 200 years ago, the framers of the U.S. Constitution established an ingenious security device against tyrannical government: they divided government power among three different bodies. A carefully thought out system of checks and balances in the executive branch, the legislative branch, and the judicial branch, ensured that no single branch became too powerful. . . . Courts monitor the actions of police. Congress passes laws that even the president must follow. Since 9/11, the United States has seen an enormous power grab by the executive branch. It's time we brought back the security system that's protected us from government for over 200 years."

Lyle Denniston, Analysis: Collision Course on "Inherent Power"? (Dec. 19, 2005)
"In a remarkable public discussion over the past three days of one of the most closedly guarded, secret government programs, President Bush and his top aides have provided basically two legal arguments to justify his orders of electronic eavesdropping on Americans during the war on terrorism. One of those arguments is a familiar one, a constitutional argument that has been relied upon repeatedly by the government from the very beginning of that war -- yet not accepted, so far, by the Supreme Court, or even by any single Justice. The other is a fallback argument, but one that, interestingly, now reflects a significant change in the government's thinking over the past few years."

UPDATE: More New Posts Worth Reading (Dec. 21, 2005)

Will Baude, Inconsistency, Legal Argument, and the War on Terror
"To be sure, it is possible that the administration will eventually reveal that there is method to its madness, but it increasingly looks as though the top of the administration sees the laws of the United States as if they were political hurdles to dodge, not something that the President is Constitutionally obligated to 'take care . . . be faithfully executed.'"

Orin Kerr, A Few Additional Thoughts on NSA Surveillance
"Based on my research, an explanation of why the program may not violate FISA would require them to explain the technical details of how the program works, and they presumably wouldn't want to do that in public given that the program is classified. I don't know how likely this is, but it's certainly possible when you're dealing with a secretive agency like the NSA. So in the end, my take is the same as it was before: the program probably violated FISA, but it depends on some details we don't know."

Cass Sunstein, Presidential Wiretapping: Disaggregating the Issues
"But if surveillance is taken to be an ordinary incident of war, and if the President has a plausible claim to inherent authority, this argument is substantially weakened. Note that the President isn't forbidden, by the precedents, from arguing that [FISA] is unconstitututional insofar as it forbids him from engaging in the relevant activity. . . ."

Geoffrey Stone, King George's Constitution
"Despite this history, Mr. Bush has the audacity to assert that his authorization of NSA surveillance of American citizens on American soil is "lawful." It is not. It is a blatant and arrogant violation of American law. If Mr. Bush wanted the authority to undertake such activities, he should have gone to Congress and sought authorization, out in the open. He did not follow this course, both because it would not have been granted and because it would have warned the evil-doers that we were monitoring their communications. Give me a break! Bush apparently believes that the evil-doers assume we act within the bounds of our own Constitution. So, we’ll trick them. We won’t. Now, there's a wise theory of government for you!"

Posted by Daniel J. Solove at 02:38 PM | Comments (1) | TrackBack

NSA Surveillance: Blog Post Roundup

There is a lot of great analysis and opinion in the blogosphere regarding Bush's authorization of warrantless NSA surveillance. Here are some useful links:

News Articles

James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts (N.Y. Times, Dec. 16, 2005) (original article to break the story)

Scott Shane, Behind Power, One Principle as Bush Pushes Prerogatives (N.Y. Times, Dec. 17, 2005)

Peter Baker, President Acknowledges Approving Secretive Eavesdropping (Wash. Post, Dec. 18, 2005)

AP, Bush Says U.S. Spy Program Is Essential and Legal (AP, Dec. 19, 2005)


Statutes, Cases, and Other Materials

Foreign Intelligence Surveillance Act (FISA) (1978)

Authorization for Use of Military Force (Sept. 14, 2001)

Press Briefing by Attorney General Alberto Gonzales and General Michael Hayden, Principal Deputy Director for National Intelligence (Dec. 19, 2005)

United States v. United States District Court, 407 U.S. 297 (1972) (aka the Keith case) (Fourth Amendment analysis of national security surveillance)

Hamdi v. Rumsfeld, 124 S. Ct. 981 (2004) (analysis of the scope of authority granted by Congress's Authorization to Use Military Force)


Blog Posts (in no particular order and by no means comprehensive)

Orin Kerr, Legal Analysis of the NSA Domestic Surveillance Program (Dec. 19, 2005)
"My answer is pretty tentative, but here it goes: Although it hinges somewhat on technical details we don't know, it seems that the program was probably constitutional but probably violated the federal law known as the Foreign Intelligence Surveillance Act."
(This is the most lengthy and detailed analysis to date.)

Orin Kerr, Domestic Surveillance by the NSA? (Dec. 15, 2005)
"While the statutory privacy laws have an exception for this type of monitoring, see 18 U.S.C. 2511(f), and the constitutional limits on e-mail surveillance are uncertain even in traditional criminal cases, the constitutionality of warrantless interception of telephone calls in situations like this is really murky stuff."

Daniel Solove, Beyond His Power: Bush's Authorization of Warrantless NSA Surveillance (Dec. 19, 2005)
"It is hard to imagine that authorizing military force authorizes the President to disregard a litany of laws at the President's whim. If so, the Congress must be extremely careful in authorizing military force in the future, because such authorization would turn over to the President the right to contravene an unspecified number of laws."

Daniel Solove, How Much Government Secrecy Is Really Necessary? (Dec. 17, 2005)
"How, exactly, does the revelation of the fact that Bush authorized the NSA to conduct surveillance -- possibly exceeding the limits of his lawful powers -- put "our citizens at risk"? Why is every disclosure about the extent of the government's surveillance somehow assisting the terrorists?"

Daniel Solove, Did Bush Have the Legal Authority Under FISA to Authorize NSA Surveillance? (Dec. 17, 2005)
"Thus, it appears that the President brushed FISA aside. On what basis can the President ignore a statute specifically regulating executive power? I'm not an expert on the intricacies of the executive's military powers, so perhaps there's a justification. . . . I believe that the President must give a full accounting of how he could believe in good faith this surveillance was within his powers under the law."

Daniel Solove, President Bush, the National Security Agency, and Surveillance (Dec. 16, 2005)
"So, in other words, the President can secretly authorize secret domestic surveillance by an agency that typically conducts surveillance abroad . . . and do so based on a legal rationale that is secret. This is deeply troubling."

Marty Lederman, Which Is It, Mr. President? (Dec. 19, 2005)
"[I]f the President is correct about the legality of his wiretapping protocol, then there is little need to reenact the PATRIOT Act."

Marty Lederman, Definition of "Audacity" (Dec. 19, 2005)
"The odd thing, of course, is that the Administration specifically went to Congress with a package of statutory authorities -- many related to wiretaps and surveillance -- that it thought were necessary to fight the battle against Al Qaeda. It was called the PATRIOT Act. Therefore, it's understandable that two reporters at today's conference asked the AG why they didn't simply ask Congress for a simple amendment to FISA, if this eavesdropping authority was as critical as the Administration now claims."

Juliette Kayyem, Wiretaps, AUMF and Bush's Comments Today (Dec. 17, 2005)
"And, in any event, can't we at least know how many other statutes have been trumped by interpreting the AUMF or the CiC clause so expansively?"

Peter Swire, Why the NSA Wiretapping Is Illegal (Dec. 19, 2005)
"Government officials can only wiretap “as authorized by statute” and the only statutes that count are Title III and FISA. The NSA wiretaps did not use the judicial procedures of either Title III or FISA."

Seth Weinberger, Declaring War and Executive Power (Dec. 16, 2005)
"Absent such language in a formal declaration of war, I highly doubt that the president's authorization of domestic spying is legal. And legal or not, it is certainly troubling."

Steve Vladeck, No, Mom, the Government Isn't Listenin--Umm, I'll Have To Get Back To You (Dec. 15, 2005)
"[W]hen the government conducts a campaign of domestic, internal surveillance that seems lacking for both historical and legal precedent, is it really responsible journalism to not report on that campaign for an entire year?"

Adam Shostack, Government Secrecy and Wiretaps (Dec. 17, 2005)
"[T]he correct response would be to follow the law in wiretapping, because the government already has the authority to do it anywhere it has any reasonable reason to want to. If the law had been obeyed, there would be no news."

Michelle Malkin, Red Alert: Chicken Littles on the Loose (Dec. 16, 2005)
"If the Bush administration chose to pursue FISA warrants, failed to obtain them, let the information go to waste, and allowed another attack to occur as a result, is there any question the finger-waggers at the NYTimes would be the first to attack the President for failing to do everything necessary to prevent it?"

Will Baude, Presidential Authority, A Lament (Dec. 19, 2005)
"It seems exceedingly likely that somebody in the executive branch is confusing normative arguments about what good law is as (impermissible) claims about what kind of laws we have. I believe in Presidential interpretive power, the unitary executive, and so on. So it is particularly disappointing to see a President like this one and his lawyers make so much out of the importance of a strong executive, and then proceed to abuse their office in this way. . . ."

Cass Sunstein, Presidential Wiretaps (Dec. 19, 2005)
"The reason is that surveillance, including wiretapping, is reasonably believed to be an incident of the use of force. It standardly occurs during war. If the President's wiretapping has been limited to those reasonably believed to be associated with Al Qaeda and its affiliates -- as indeed he has said -- then the Attorney General's argument is entirely plausible. (The AUMF would not permit wiretapping of those without any connection to nations, organizations, and persons associated with the September 11 attacks.)"

Eric Muller, Lawless Like I Said (Dec. 19, 2005)
"Orin Kerr's verdict is in over at the Volokh Conspiracy. He says it's a tentative view, but here's my quick and dirty summary: the President's domestic eavesdropping program is lawless."

Stephen Bainbridge, Foreign Policy Rant of the Day (Dec. 16, 2005)
"Coercive interrogations. A gulag of secret prisons. And now warrantless surveillance. We're supposed to be better than this. . . . Of the Founders who pledged "their lives, their fortunes and their sacred honor" as signers to the Declaration of Independence, five were captured as traitors and tortured before they died; twelve had their homes ransacked and burned; two lost their sons in the Revolutionary War; another had two sons captured; and nine died from wounds or the hardship of the war. But too many want to trade their sacrifices away for a mess of security pottage."

Spencer Overton, Judge Damon J. Keith: No Warrantless Wiretaps of Citizens (Dec. 18, 2005)
"After law school I had the good fortune to clerk for U.S. Court of Appeals Judge Damon J. Keith. . . . Judge Keith decided that President Richard Nixon and Attorney General John Mitchell could not engage in warrantless wiretap surveillance."

Ryan Singel, It's Not the Crime, It's the Rationale (Dec. 17, 2005)
"The government has the power to start such wiretaps immediately, so long as they promptly notify a special court judge and send paperwork to that court within 3 days. . . . That's why this story is not about the wiretaps, so long as one presumes the administration is working in good faith and not using the wiretaps to monitor American citizens exercising their legal rights. . . . The story is about executive privilege and this administration's belief that its anti-terrorism actions cannot not be curtailed by Congress or the Courts."

UPDATE: More blog posts worth reading are at my second roundup post, NSA Surveillance: Blog Post Roundup II.

Posted by Daniel J. Solove at 08:21 PM | Comments (2) | TrackBack

Beyond His Power: Bush's Authorization of Warrantless NSA Surveillance

In this post, I aim to explore more in depth whether Bush had the legal power to authorize warrantless NSA surveillance. As I was putting the finishing touches on this post, I noticed that Orin Kerr beat me to the punch, and I find that we've identified the same issues and are in substantial agreement. His post is a lot longer and more detailed than mine (which is quite long itself), so read mine for a broader overview and Orin's for the treatise-length account.

1. Fourth Amendment

The Fourth Amendment standards are somewhat vague. The Supreme Court declared in United States v. United States District Court, 407 U.S. 297 (1972) (often called the Keith case) that the Fourth Amendment required a warrant for the government to engage in electronic surveillance for domestic criminal investigations. However, the Court noted:

. . . [D]omestic security surveillance may involve different policy and practical considerations from the surveillance of “ordinary crime.” The gathering of security intelligence is often long range and involves the interrelation of various sources and types of information. . . . Often, too, the emphasis of domestic intelligence gathering is on the prevention of unlawful activity or the enhancement of the Government’s preparedness for some possible future crisis or emergency. Thus, the focus of domestic surveillance may be less precise than that directed against more conventional types of crime. . . . .

Different standards [for gathering domestic security intelligence] may be compatible with the Fourth Amendment if they are reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens. For the warrant application may vary according to the governmental interest to be enforced and the nature of citizen rights deserving protection.

The Court explicitly left open the question about whether the Fourth Amendment would require a warrant for surveillance of agents of foreign powers: “[T]his case involves only the domestic aspects of national security. We have not addressed and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents but that surveillance without a warrant might be constitutional in cases where the target was an agent of a foreign power.”

2. Foreign Intelligence Surveillance Act (FISA)

Partly in response to the Keith case, Congress passed FISA in 1978 to address these open questions. I analyzed whether FISA would authorize Bush's surveillance here. My conclusion was that Bush's surveillance was in violation of FISA. FISA requires the government to first obtain a court order from the Foreign Intelligence Surveillance Court before engaging in the surveillance. Bush didn't do this.

FISA authorizes surveillance in limited contexts without court orders, 50 U.S.C. § 1802(a), but such surveillance cannot involve U.S. persons, and Bush's surveillance did. FISA also authorizes the installation of pen registers and trap and trace devices within 15 days after Congress declares war. 50 U.S.C. § 1844. But Bush's surveillance apparently went beyond pen registers and trap and trace devices.

Finally, FISA authorizes electronic surveillance more generally "for a period not to exceed fifteen calendar days following a declaration of war by the Congress." 50 U.S.C. § 1811. The Administration faces several hurdles in using § 1811. First, it is debatable whether the Authorization to Use Military Force constitutes a declaration of war. For some thoughtful analysis about this, see Seth Weinberger's post. Second, it depends upon when the surveillance took place. If it was beyond the 15 day period, then the provision no longer applies. Anyway, President Bush has declared that he will continue the surveillance program "for so long as the nation faces the continuing threat of an enemy that wants to kill American citizens."

3. Congress's September 2001 Authorization to Use Military Force (AUMF)

According to today's AP article: "The president said the authority to bypass the court derived from the Constitution and Congress' vote authorizing the use of military force after the 2001 terror attacks." Essentially, Bush's argument is that he had the power to ignore a law of Congress based on Congress' Authorization of the Use of Military Force (AUMF).

As Professor Seth Weinberger observes:

Today, we learn from the New York Times that President Bush secretly authorized the NSA to spy on Americans without a warrant, using the September 2001 resolution that authorized the president to use "all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided" the 9/11 attacks. However, this is not a declaration of war. And, in particular, it lacks the crucial language that modern delcarations of war have contained, which states that "all of the resources of the country are hereby pledged by the Congress of the United States." This language is present in the declarations for WWI and II. It is a recognition by Congress that total war is in fact total, and may require the president to act domestically in a legislative manner.

Absent such language in a formal declaration of war, I highly doubt that the president's authorization of domestic spying is legal.

Professor Peter Swire (law, Ohio St.) argues:

[T]he Administration seems to say that the general Congressional resolution amended [FISA], without anyone realizing it. That approach is contrary to the usual reading of statutes, where there is no “repeal by implication” – you have to say you are repealing a specific statute for the repeal to be effective.

Marty Lederman argues:

That the AUMF impliedly repealed the well-wrought scheme in FISA, with its prohibition on warrantless eavesdropping on U.S. persons (a repeal that only the Executive knew about: neither the public, nor even the Congress that enacted the AUMF, was aware that it had performed such radical surgery on the U.S. Code.

It is hard to imagine that authorizing military force authorizes the President to disregard a litany of laws at the President's whim. If so, the Congress must be extremely careful in authorizing military force in the future, because such authorization would turn over to the President the right to contravene an unspecified number of laws.

4. Article II of the U.S. Constitution

Article II of the U.S. Constitution delineates the power of the Executive, and Bush's argument appears to be that he has the power, as Commander-in-Chief, to ignore any law he deems a hindrance to his exercise of that power.

As Marty Lederman describes Bush's argument:

The AG claims that the President has the constitutional power, under the Commander-in-Chief Clause, to ignore FISA's prohibition in this context. "There were many lawyers within the administration who advised the president that he had an inherent authority as commander-in-chief under the constitution to engage in this kind of signals intelligence," said Gonzales, speaking on CNN.

I'm not an Article II expert, but this argument strikes me as quite dubious. If this is true, then what becomes of FISA? Or other laws that regulate the power of the Executive? Orin Kerr writes that he was "unable to find any caselaw in support of [Bush's Article II] argument."

UPDATE: Marty Lederman offers more thoughts here.

Related Posts:
1. Solove, President Bush, the National Security Agency, and Surveillance
2. Solove, Did President Bush Have the Legal Authority Under FISA to Authorize NSA Surveillance?
3. Solove, A Secret Department of Defense Database of Protesters
4. Solove, How Much Government Secrecy Is Really Necessary?

Posted by Daniel J. Solove at 05:40 PM | Comments (6) | TrackBack

How Much Government Secrecy Is Really Necessary?

Responding to reports that revealed that the President authorized the NSA to conduct warrantless surveillance within the US, President Bush said:

"The existence of this secret program was revealed in media reports after being improperly provided to news organizations. As a result, our enemies have learned information they should not have, and the unauthorized disclosure of this effort damages our national security and puts our citizens at risk."

I'm growing weary of arguments like this. How, exactly, does the revelation of the fact that Bush authorized the NSA to conduct surveillance -- possibly exceeding the limits of his lawful powers -- put "our citizens at risk"? Why is every disclosure about the extent of the government's surveillance somehow assisting the terrorists?

The argument seems to be that we can't have a national debate about the nature and extent of government surveillance because such information will help the terrorists. But central to any viable democracy is a government that is publicly accountable, and that requires that the people have the information they need to assess their government's activities.

Recently, I blogged about a story involving a secret DOD database of protesters. And there's a debate going on about a secret regulation in the Gilmore case. The debate has focused on whether the secret information in the case is really a regulation, a law, or something else, but the larger question remains: Why does it need to be a secret?

Far too often, we trust the government when it claims the need for secrecy, but should we? The government called for secrecy of the Pentagon Papers to protect national security. The Attorney General stated that the disclosure of the Pentagon Papers "will cause irreparable injury to the defense interests of the United States." Stephen Dycus et al., National Security Law 1017 (3d ed. 2002). These claims were, in fact, way overblown, if not outright false.

As Mary-Rose Papandrea notes, courts are often far too willing to defer to government claims of secrecy: "When information arguably involves national security, courts are too timid to force the executive branch to provide a thorough explanation for continued secrecy." Mary-Rose Papandrea, Under Attack: The Public's Right to Know and the War on Terror, 25 B.C. Third World L.J. 35 (2005).

It's not just the courts, but the public and Congress who are often being too deferential. There have been far too many empty declarations of the need for secrecy to give the government much credibility in this regard. If you want to be trusted, you must be trustworthy. It is a lesson, sadly, that the executive branch and executive agencies have not seemed to learn.

Related Posts:
1. Solove, President Bush, the National Security Agency, and Surveillance
2. Solove, Did President Bush Have the Legal Authority to Authorize NSA Surveillance?
3. Solove, A Secret Department of Defense Database of Protesters

Also of Interest: EPIC's FOIA Webpages

Hat tip: Talking Points Memo

Posted by Daniel J. Solove at 02:04 PM | Comments (4) | TrackBack

Did Bush Have the Legal Authority Under FISA to Authorize NSA Surveillance?

Yesterday, I blogged about a startling story in the NY Times about President Bush's authorizing the NSA to conduct domestic surveillance without a warrant or even a court order. According to the NY Times story, the "legal opinions that support the N.S.A. operation remain classified."

Today in the NY Times is a follow-up story about the legal basis for the President's actions. According to the story:

[S]ome legal experts outside the administration, including some who served previously in the intelligence agencies, said the administration had pushed the presidential-powers argument beyond what was legally justified or prudent. They say the N.S.A. domestic eavesdropping illustrates the flaws in Mr. Bush's assertion of his powers.

"Obviously we have to do things differently because of the terrorist threat," said Elizabeth Rindskopf Parker, former general counsel of both N.S.A. and the Central Intelligence Agency, who served under both Republican and Democratic administrations. "But to do it without the participation of the Congress and the courts is unwise in the extreme." . . .

William C. Banks, a widely respected authority on national security law at Syracuse University, said the N.S.A. revelation came as a shock, even given the administration's past assertions of presidential powers.

"I was frankly astonished by the story," he said. "My head is spinning."

Professor Banks said the president's power as commander in chief "is really limited to situations involving military force - anything needed to repel an attack. I don't think the commander in chief power allows" the warrantless eavesdropping, he said. . . .

In engaging in the surveillance, the President may have ignored the legal procedures set forth in the Foreign Intelligence Surveillance Act (FISA) of 1978.

The FISA allows the government to engage in electronic surveillance if it obtains a court order from the Foreign Intelligence Surveillance Court (FISC), which meets in secret. The government must demonstrate probable cause that the monitored party is a "foreign power" or an "agent of a foreign power." 50 U.S.C. § 1801. If the monitored party is a U.S. citizen, however, the goverment must establish probable cause that the party's activities "may" or "are about to" involve a criminal violation. Id.

FISA even provides procedures for surveillance without court orders. Such surveillance, however, must be "solely directed" at gathering intelligence from "foreign powers" and there must be "no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party." 50 U.S.C. § 1802(a). The surveillance authorized by the President, however, involved U.S. citizens,