Am I bothered by the revelation that President Bush has authorized, without a warrant, surveillance on telephone calls and emails involving people within the United States? Let’s walk through the issues to explain why I think the criticisms of the Bush Administration are, as usual, vastly overblown; the only substantial legal or policy issue here is whether the surveillance at issue violated FISA, and there is (1) at least an argument that it did not, and (2) a substantial argument that FISA has been effectively repealed in the case of Al Qaeda by the Congressional authorization to use force against the perpetrators of the September 11 attacks. The bottom line is that as far as I can tell, the Administration is, in fact, taking an aggressive but plausible reading of the available legal authority – and doing so to advance our ability to interdict Al Qaeda. Which is precisely what the Administration should be doing.
(For now, I’ll leave aside the loose lips that put this story in the New York Times; hopefully, Patrick Fitzgerald will have his day with them. I’ll also leave aside some of the side issues here, such as how different the Bush Administration’s program is from what was done under Clinton and the precise factual circumstances of some of the examples cited by the Administration of the kinds of past communications this program would have captured).
I. The Policy
As far as I can tell from the press accounts I’ve seen thus far, the National Security Agency spying program at issue involves continuous electronic surveillance of foreign communications – including communications originating in foreign sources but entering the U.S. – and extends to human review of a subset of those communications that are flagged for various reasons as involving Al Qaeda. Richard Posner explains well why the approach these programs take to data collection are no great threat to privacy.
Leaving aside the law for the moment – more on that below – as a policy matter, I see nothing even remotely objectionable about this. The universe of surveilled communications is limited in two ways: every communication involves at least one participant outside the United States (apparently it must be the participant who initiates the communication), and every communication involves at least one participant suspected of being part of, or closely associated with, Al Qaeda, our undisputed #1 enemy in this war. It’s awfully hard to argue that we shouldn’t be spying on Al Qaeda and associated groups with every means available to us; the only issue is whether we should pull some of our punches when Al Qaeda operates within the U.S. – despite the obvious fact that, because Al Qaeda is a terrorist group and not a conventional military power, Al Qaeda’s core operations require it to operate within the U.S. And this Byron York piece on FISA is a good start in explaining why the pre-September 11 legal structures just don’t allow enough flexibility to do all the things we need to do to keep up with Al Qaeda.
Sure, opponents of the Administration will say, the program may be limited now, but without judicial oversight, how can we stop the program from expanding? The answer, of course, is that all executive powers are subject to some abuses, including FISA; but the time to complain is when there is something to complain about. To play this story as if Bush has been doing surveillance of domestic political opponents is just disingenuous.
II. The Law
Our government is one of enumerated powers, circumscribed by enumerated limitations and rights of the people. A number of commenters, unfortunately, confuse this issue. The fact that the president has certain very broad powers, for example, does not make him a king; however broad those powers are, they remain subject to certain express limitations. Thus, the legal issue has to be approached in two main parts: does the president have the power, and are there rights and limitations that impose constraints on that power?
A. The President’s Powers
1. Constitutional Authority
The President of the United States has two main sources of power in the area of national defense. First, Article II of the Constitution directly provides that “[t]he President shall be Commander in Chief of the Army and Navy of the United States,” a power that therefore requires no further Congressional authorization and that, when properly exercised, at least arguably may not be restricted by Congress without amending Article II.
Second, Congress has several powers under Article I that bear upon the power of the Commander in Chief:
To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
Article I also grants Congress authority “[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof,” a grant of authority that is arguably broader in scope than the powers granted to the President and the courts. Nonetheless, it has long been recognized that both the President and the federal courts have certain “inherent” unenumerated powers to take actions necessary to make effective their enumerated powers.
The idea that this somehow makes the president like a king is ludicrous. The inherent powers of the executive can not be arbitrarily expanded to whatever area the president believes would be useful, any more than the Necessary and Proper clause grants legislative authority over unenumerated areas to Congress or the inherent powers of the federal courts extend beyond the kinds of powers (e.g., contempt sanctions, injunctions against conflicting proceedings) that are required to carry out the judicial function.
The Supreme Court made this quite clear in 1952 in rejecting President Truman’s effort to use the exigencies of the Korean War as an excuse to seize steel mills. Justice Jackson, in his concurring opinion in that case (which I would recommend re-reading in its entirety), made this point succintly:
There are indications that the Constitution did not contemplate that the title Commander in Chief of the Army and Navy will constitute him also Commander in Chief of the country, its industries and its inhabitants. He has no monopoly of “war powers,” whatever they are. While Congress cannot deprive the President of the command of the army and navy, only Congress can provide him an army or navy to command. It is also empowered to make rules for the “Government and Regulation of land and naval Forces,” by which it may, to some unknown extent, impinge upon even command functions.
Justice Jackson also aptly described how the President’s powers act in combination with those of 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. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government, as an undivided whole, lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.
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. Therefore, congressional inertia, indifference or quiescence may sometimes, at least, as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables, rather than on abstract theories of law.
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.
The Administration and its defenders have argued – and I would agree – that the use of espionage and surveillance against foreign enemies, including electronic surveillance, is a necessary incident of the power to act as Commander in Chief by virtue of being an ancient and well-recognized weapon of war, albeit one that is enhanced by modern technologies unforseen in the time of the Framers. The extension of this authority to surveillance of enemy actions, agents and associates within the territory of the United States is not in any way unsual: would the President need a warrant to spy on an invading army once it has crossed the border? Had you suggested this to James Madison after the British Army torched the White House, he would have been horrified. Anyway, the DOJ letter detailing the Administration’s position notes that this position has been upheld in the courts (although I confess I haven’t read the cases).
So, yes: the power to conduct the limited surveillance at issue – on declared foreign enemies of the United States and their agents and associates within our borders – is unquestionably within the inherent authority of the Commander-in-Chief. Thus, the only questions are whether that authority has been expanded or restricted by Congress and whether it is elsewhere restricted by the Constitution.
2. Statutory Authority
In light of Justice Jackson’s framework, two Congressional enactments are at issue. The first is the authorization to use military force against Al Qaeda. The DOJ letter makes clear that this “AUMF” augments the president’s constitutional authority:
The AUMF authorizes the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks of September 11, 2001, . . . in order to prevent any future acts of international terrorism against the United States.” Sec. 2(a), The AUMF clearly contemplates action within the United States, See also id. pmbl. (the attacks of September 11 “render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad”).
The AUMF cannot be read as limited to authorizing the use of force against Afghanistan, as some have argued. Indeed, those who directly “committed” the attacks of September 11 resided in the
United States for months before those attacks. The reality of the September 11 plot demonstrates that the authorization of force covers activities both on foreign soil and in America.
In Hamdi v. Rumsfeld, 542 U.S. 507 (2004), the Supreme Court addressed the scope of the AUMF. At least five Justices concluded that the AUMF authorized the President to detain a U.S. citizen in the United States because “detention to prevent a combatant’s return to the battlefield is a fundamental incident of waging war” and is therefore included in the “necessary and appropriate force” authorized by the Congress. Id. at 5 18-19 (plurality opinion of O’Connor, J.); see id. at 587 (Thomas, J., dissenting). These five Justices concluded that the AUMF “clearly and unmistakably authorize[s]” the “fundaniental incident[s] of waging war.” Id. at 5 18-19 (plurality opinion); see id. at 587 (Thomas, J., dissenting).
Communications intelligence targeted at the enemy is a fundamental incident of the use of military force. Indeed, throughout history, signals intelligence has formed a critical part of waging war. In the Civil War, each side tapped the telegraph lines of the other. In the World Wars, the United States intercepted telegrams into and out of the country. The AUMF cannot be read to exclude this long-recognized and essential authority to conduct communications intelligence targeted at the enemy.
The second statute at issue is the Foreign Intelligence Surveillance Act (“FISA”). I will discuss FISA below, as it is impossible to separate the question of what powers FISA grants the President from what restrictions it imposes on him; in my view, the question of whether the NSA program can be squared with FISA is the only substantial question of law or policy in this whole brouhaha. But bear in mind that, even under Justice Jackson’s third prong – which expresses deep skepticism about the scope of presidential authority when exercised in the teeth of a contrary federal statute – if the President violates an Act of Congress that does not render his actions automatically unlawful any more than the Supreme Court acts unlawfully in holding an Act of Congress to be unconstitutional; in either case, the question is whether a coordinate branch of government has properly or improperly concluded that Congress has overstepped the legitimate bounds of its authority.
B. Limitations on the President’s Powers
1. Constitutional Limitations
The main Constitutional limit – really the only one of significance here – is the Fourth Amendment. The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
As a number of courts and scholars, most notably Yale Law Professor Akhil Amar have argued, the touchstone of any Fourth Amendment analysis is reasonableness, not the presence of a warrant. Warrants are often required in domestic law enforcement as a prophylactic measure to ensure that searches and seizures are reasonable, but the caselaw is rife with exceptions to the warrant requirement, from “hot pursuit” and other exigent circumstance cases to certain good-faith errors in the warrant process to stops-and-frisks on the street; there’s nothing in the Fourth Amendment that protects anyone against electronic eavesdropping without a warrant if, under the circumstances, such eavesdropping is reasonable. And again, I dare anyone to argue that such eavesdropping in the situations the NSA program actually aims at – communications initiated by members and associates of Al Qaeda and associated groups operating outside the US – is unreasonable. The fact that there are other communications as to which such eavesdropping would be unreasonable is entirely beside the point.
2. Statutory Limitations
This brings us to FISA. I am, I confess, no expert on FISA. Put briefly, FISA – enacted in the 1970s as part of the reaction to Watergate-era disclosures of excessive use of domestic spying – purports to be the exclusive avenue for executive authority to use such surveillance. The statute provides:
Notwithstanding 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 periods of up to one year if the Attorney General certifies in writing under oath that–
(A) the electronic surveillance is solely directed at–
(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801(a)(1), (2), or (3) of this title; or
(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801(a)(1), (2), or (3) of this title; [and]
(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party.
The statute’s definition of “foreign power” breaks down as follows:
(1) a foreign government or any component thereof, whether or not recognized by the United States;
(2) a faction of a foreign nation or nations, not substantially composed of United States persons;
(3) an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments;
(4) a group engaged in international terrorism or activities in preparation therefor;
(5) a foreign-based political organization, not substantially composed of United States persons; or
(6) an entity that is directed and controlled by a foreign government or governments.
Notably, the DOJ letter does not argue that the surveillance at issue complied with any of these exeptions (I wonder whether the Attorney General ever provided the required certifications to fit within them). Instead, the DOJ argues that, because the AUMF gave the president war-fighting powers against Al Qaeda, those war-fighting powers – which necessarily include the power of electronic surveillance as an incident of war – follow Al Qaeda wherever it may be, including within the United States. Thus, the argument goes, the AUMF has implicitly repealed FISA within the limited scope of surveillance against Al Qaeda and other parties determined by the President to be behind the September 11 attacks.
Orin Kerr, whose opinion I greatly respect, isn’t a FISA expert either but it’s a lot closer to his areas of expertise than mine, and his detailed analysis concludes that the NSA program violated FISA, and that the AUMF probably doesn’t repeal FISA in this circumstance. Cass Sunstein, one of the nation’s two or three most prominent liberal law professors and generally – though I usually disagree with him – a serious guy, believes that the AUMF probably should be read as repealing FISA for this limited purpose, a point he makes in this blog post and expands upon in this interview with Hugh Hewitt:
[I]f the president is just restricted to al Qaeda, and al Qaeda’s friends, then he’s on very firm ground under the authorization. If, on the other hand, the president has been engaging in wiretapping of people whose connection to al Qaeda is very uncertain and indirect, then the authorization is less helpful for him.
I guess I’d say there are a couple of possibilities. One is that we should interpret FISA conformably with the president’s Constitutional authority. So if FISA is ambiguous, or its applicability is in question, the prudent thing to do, as the first President Bush liked to say, is to interpret it so that FISA doesn’t compromise the president’s Constitutional power. And that’s very reasonable, given the fact that there’s an authorization to wage war, and you cannot wage war without engaging in surveillance. If FISA is interpreted as preventing the president from doing what he did here, then the president does have an argument that the FISA so interpreted is unconstitutional. So I don’t think any president would relinquish the argument that the Congress lacks the authority to prevent him from acting in a way that protects national security, by engaging in foreign surveillance under the specific circumstances of post-9/11.
I should note here, in support of Sunstein’s point about the ambiguity of FISA’s coverage and of its implied repeal by the AUMF, that the conclusion that FISA was violated is hardly bulletproof; Leon H of RedState makes a plausible argument as to why the exceptions apply, with citations to some caselaw. Again, I’m not a FISA expert and I haven’t read the cases.
Is the DOJ’s argument a slam dunk? Hardly. This is a close call in a number of ways. But I agree with Sunstein that, when you consider that the president acted in ways consistent with both his express constitutional authority and his authorization to use force, and not inconsistent with the Fourth Amendment, and in an area in which FISA itself may be ambiguous and may well have been implicitly repealed by the AUMF, the prudent conclusion is that the president does have the constitutional authority to do what is, to my mind, unquestionably the right thing: pursue Al Qaeda at top speed wherever it may operate, in or out of the United States.