Tuesday, December 20, 2005

The NSA Wiretaps and the President's Article II Powers

(Warning, very, very, very long post, so please click the “Read more” button.)

Okay, so my first effort at dealing with this NSA imbroglio caused many lawyers and non-lawyers to have their eyes glaze over with legal text. In addition, it appears that it may also have cured some minor cases of insomnia. That being said, I’m going to risk things and take another crack at untangling some of the legal issues associated with this ever developing story.

Let me start by covering my ass a bit. First, while there is a lot that has been reported, there is so much more that we do not know. In fact, much of what we do not know (and perhaps should never know for reasons related to national security) is critical and may play a huge role in assessing the legality or illegality of what the President has authorized on the advice of his lawyers (White House Counsel) and the Justice Department. That said, I think we know enough to make some assumptions and raise some questions, to which hopefully our diligent commentators will find interesting.

[UPDATE] I'd be remiss if I didn't post a link to Prof. Orin Kerr's analysis over at the Volokh Conspiracy. Prof. Kerr concludes that while the Executive's actions may be constitutional they also may be in violation of the statutory provisions of FISA. He does quite a comprehensive job, although he goes in a bit of a different direction than I do. Nevertheless, it is an excellent piece that I encourage all to read either before, after or instead of slogging through my thoughts.

It seems to me that the predicate question that we have to deal with is what kinds of “intercepts” or “wiretaps” are we talking about; are they domestic or international and; what, if anything, is the difference? These are all excellent questions for which the operative statutes, the Foreign Intelligence Surveillance Act (FISA) and the Wiretap Act, generally do not provide good answers for. Many people have tried to make a distinction between international communications and domestic communications, but while that distinction is clear in some cases (i.e., a call from LA to NY is clearly domestic, while a call from London to Paris is clearly international), it hardly seems to cover the universe of possibilities (i.e., what is a call from London to NY, or a call from LA to Paris?).

Second, you have the open question of who are the persons involved in the phone calls? Are they US citizens or not; are they terrorists, or are they merely persons suspected or believed to have terrorist links; or do they fall into some other category of persons not previously defined? The FISA statute and the Wiretap Act clearly state that no surveillance of US persons (defined by FISA at 50 USC 1801(i) to include, not only citizens, but also “alien[s] lawfully admitted for permanent residence (as defined in section 1101 (a)(20) of title 8), an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States”) can be conducted without a court order.

Let’s assume for the purposes of this writing that the predicate questions have been clearly answered as such. First, the communications are entirely international; however you want to define the terms. This precludes the argument made by some that phone calls from NY to LA are being tapped, but says nothing either way about whether one of the systems involved was in the US or not. Second, let us assume that there were at least some US persons involved either placing the calls or receiving them. Note I used the term “person” and not “citizen,” in order to encompass those people who may be in the US legally, but are not considered citizens. This of course preserves the potential Fourth Amendment augments that might be made later.

So now where are we? Well it seems as though what we have is an Executive Order, from the President authorizing the NSA to conduct limited intercepts of international communications (broadly defined) regardless of whether they involve US persons or not, without having to obtain a FISA or any other court order. Next question, is this legal, and if so, by what authority? Here’s where things get interesting, at least from my perspective. The predicate questions are important and perhaps determinative, but not the most fun. Besides, we may never know the answers to them anyway. Nevertheless, it seems that we can make several legal arguments based on my assumptions about the answers to those predicate questions. One question that I won't attempt to answer is, that if all of this was so clearly leaglly authorized by FISA and other statutes, why issue an additional Execuitve Order? If existing statutory law covered the entire universe of what this program was intended to accomplish then it seems to me that the EO was unnecessary. The fact that one was issued at least raised the possibility that there is much more to this than meets the eye and arguably much more than FISA authorizes, which is why there are classified legal memorandum that purport to provide justification for this program. Like I said, I don't have the answers to those questions, but it seems to at least at some point undermine the arugment that all of this is clearly legal or clearly within the law as currently drafted. But enough of that, let's get to the far more interesting Article II discussion.

Initially, we have an argument that this may be justifiable based on the President’s inherent powers under the Constitution. Specifically, this argument relies on Article II, section 2, clause 1, commonly referred to as the “Commander in Chief clause,” which states that “The President shall be Commander in Chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States …” Like many clauses of the Constitution this one is a bit vague. If opens the door to questions such as what does this clause mean; what are its limits, if any and; what have the Courts said about its interpretation? I’ll try to provide some of those answers below.

With respect to meaning, surprisingly there appears to have been little discussion at the Constitutional Convention, during the ratifying debates, or by the Supreme Court of the so-called “Commander-in-Chief” clause. From the available evidence, it appears that the Framers vested this power with the President because historical experience counseled against vesting command of military forces in either a group or in a person separate from elected political leaders. See E. May, The President Shall Be Commander in Chief, reprinted in The Ultimate Decision, the President as Commander in Chief (E. May ed., 1960) 1. At the Virginia ratifying convention, James Madison, replying to Patrick Henry’s objection that danger lurked in giving the President control of the military, is quoted as asking if “the sword ought to be put in the hands of the representatives of the people, or in other hands independent of the government altogether?” J. Elliot, 3 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 393 (1836). Similarly, at the North Carolina convention, Mr. Iredell is quoted as having noted that “[f]rom the nature of the thing, the command of armies ought to be delegated to one person only. The secrecy, dispatch, and decision, which are necessary in military operations, can only be expected from one person.” See id. at Vol. 4, 107.

Initially, it appears that the clause was interpreted narrowly as only including the purely military aspects of being Commander-in-Chief. As Alexander Hamilton noted in Federalist No. 69, the office “would amount to nothing more than the supreme command and direction of the Military and naval forces, as first general and admiral of the confederacy.” In addition, Joseph Story states in his Commentaries on the Constitution of the United States that:

The propriety of admitting the [P]resident to be commander in chief, so far as
to give orders, and have a general superintendency, was admitted. But it was
urged, that it would be dangerous to let him command in person, without any
restraint, as he might make a bad use of it. The consent of both houses of
Congress ought, therefore, to be required, before he should take the actual
command. The answer then given was, that though the president might, there was
no necessity that he should, take the command in person; and there was no
probability that he would do so, except in extraordinary emergencies, and when
he was possessed of superior military talents.

In 1850, Chief Justice Taney, writing for the Supreme Court in Fleming v. Page, 50 U.S. (9 How.) 603, 615 (1850), also appears to have adopted this narrow understanding of the clause, noting that the duties and powers of the President “are purely military.” According to the Chief Justice, the President

[a]s commander-in-chief, is authorized to direct the movements of the naval and
military forces placed by law at his command, and to employ them in the manner
he may deem most effectual to harass and conquer and subdue the enemy. He may
invade the hostile country, and subject it to the sovereignty and authority of
the United States. But his conquests do not enlarge the boundaries of this
Union, nor extend the operation of our institutions and laws beyond the limits
before assigned to them by the legislative power.

Conversely, a broader interpretation of the Commander-in-Chief clause derives from President Lincoln’s assertion that the “war power” could be used for the purpose of suppressing rebellion. See 7 Messages and Papers of the President 3221, 3232 (J. Richardson comp., 1897). In 1863, a divided Supreme Court in the Prize Cases sustained this theory. See The Prize Cases, 67 U.S. (2 Bl.) 635 (1863). The Prize Cases addressed the validity of President Lincoln’s blockade of Southern ports following the attack on Fort Sumter. Opponents of the blockade argued that for such an action to be legitimate there must be a validly declared “public war,” and only Congress could constitutionally declare war. Writing for the majority, Justice Robert C. Grier argued in favor of a broad interpretation of the President’s Commander-in-Chief power by asserting that, “whether the hostile party be a foreign invader, or States organized in rebellion, it is none the less a war, although the declaration of it be ‘unilateral.’ ... A declaration of war by one country only is not a mere challenge to be accepted or refused at pleasure by the other.” Id. at 668-670.

Also important when discussing the President’s constitutional powers as Commander-in-Chief is the Supreme Court’s opinion in Youngstown Sheet & Tube Company v. Sawyer, commonly referred to as the “Steel Seizure Case.” 343 U.S. 579 (1952). During the country’s involvement in the Korean War, President Truman ordered the seizure of the steel industry, which was then in the throes of a labor strike. Congress had provided no statutory authority for such a seizure, and the Solicitor General defended the action before the Court as an exercise of the President’s Article II powers, including his powers as Commander-in-Chief. The Court rejected this argument 6-3, holding the seizure void. Congress’s express rejection of seizure proposals when considering labor legislation and subsequent enactment of procedures that were not followed by the President created a doctrinal problem for the Court and, thus, the case produced no clear majority opinion. Four Justices appear to have been decisively influenced by the fact that Congress had denied the power claimed in an area in which the Constitution vests the decision making power, at least concurrently, if not exclusively, in Congress. See Youngstown, 343 U.S. at 593, 597-602 (Justice Frankfurter concurring, though he also noted he expressly joined Justice Black’s opinion as well), 634, 635-40 (Justice Jackson concurring), 655, 657 (Justice Burton concurring), 660 (Justice Clark concurring). Three and perhaps four Justices appear to have rejected the Government’s argument on the merits, while three accepted it in large measure. Despite the inconclusiveness of the opinions, it seems clear that the result was a substantial retreat from previous opinions of the Court, which have been interpreted as having greatly expanded the scope of presidential powers.

In more modern times, proponents of an expansive interpretation of presidential power have cited defenses of the course followed by various Presidents while involved in Indochina. For example, a Legal Adviser to the State Department contended that under the Constitution, “the President, in addition to being Chief Executive, is Commander in Chief of the Army and Navy. ... These duties carry very broad powers, including the power to deploy American forces abroad and commit them to military operations when the President deems such action necessary to maintain the security and defense of the United States ....”

Conversely, opponents of such an expanded interpretation of presidential powers have contended that the authority to initiate war is not divided between the Executive and Congress, but rather is vested exclusively in Congress. The President appears to have the duty and the power to repeal sudden attacks and act in other emergencies, and in his role as Commander-in-Chief arguably is empowered to direct the armed forces only for purposes specified by Congress. Though Congress has asserted itself in some respects, it has never really managed to confront the President’s power with any sort of effective limitation, until the passage, over presidential veto, of the War Powers Resolution. It should also be noted that in Dames & Moore v. Regan, the Court returned in part to the opinions in Youngstown Sheet & Tube, stating that its holdings embodied “much relevant analysis” regarding the issue of presidential power.

Even more recently, Congress, in response to the terrorist attacks of September 11, 2001, enacted the “Authorization for Use of Military Force,” which provides that the President may use “all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacks [or] harbored such organizations or persons.” In addition to the broad grant of authority from Congress, the Executive Branch has argued that it has plenary authority under Article II to engage in specific war related activities. For example, the Executive Branch argued to the Supreme Court that it possesses the inherent authority to hold “enemy combatants” for the duration of hostilities, and to deny them meaningful recourse to the federal courts. In Hamdi v. Rumsfeld, the Court agreed that the President was authorized to detain a United States citizen seized in Afghanistan; however, a majority of the Court appeared to reject the notion that such power was inherent in the Presidency, relying instead on statutory grounds.

So after all of this we are left not really knowing if the President’s inherent Article II powers confer him the authority to order NSA intercepts without having to first acquire a court order. Depending on your view of the scope of Article II’s grant of authority, it seems that reasonable arguments can be made both in favor of such a program as well as opposed to it. Personally, I think this comes really close to the line, but it’s not clear that it crosses it, unless you can clearly show that US citizens were involved on either end of the communication. If that is the case then it seems to me that you have arguments available pursuant to the Fourth Amendment that I tried to preserve above. It seems rather clear that wiretaps qualify as unreasonable searches under the Fourth Amendment, thus requiring law enforcement to either get a court order (warrant), or demonstrate that an exception to the warrant requirement applies (i.e., exigent circumstances). Absent that there appears to be no legal bases for asserting authorizations. Congress, even it its War Powers Resolution can’t waive the Constitution, and it seems that neither can the President under Article II even citing national security concerns. Now it may be that in some of these cases the standards for something like exigent circumstances existed, which would have justified the intrusion absent a court order, however, since we will likely never know the answer to that question either way, it seems fruitless to speculate.

At the end of the day I stick by my claim that we likely will need an investigation into some of these questions. While I know that is going to be complicated and likely fruitless, I nevertheless think it serves some limited purpose of checking unfettered executive power. All of this may in fact turn out to be both legal and politically acceptable, but right now I think that’s hard to say even if you are an unabashed supporter of the President. As I said before, hopefully Congress will follow through with their threats to hold hearing and demand documents and information. At the very least it will make the executive plead its case more clearly and then we’ll all be able to judge for ourselves whether this is acceptable behavior or not. And isn’t that what a republic like ours is all about


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