Wednesday, December 21

"Frankly I can[] hardly believe that we are having this absurd debate."

I liked this quote because it sums up my visceral reaction to the NSA domestic spying issue. Of course, there are very interesting (and mostly quite esoteric) legal issues to debate--most of which are far from absurd. The best forum for this debate that I have found is Prof. Orin Kerr's post on the Volokh Conspiracy and the 300-odd comments that follow it.

Based on this article, thecomments, analysis on several other websites, and my own research, my conclusions are that:

1. The intercepts probably do not violate the Fourth Amendment (for generally the same reasons that Prof. Kerr provides).

2. The President has inherent authority to authorize warrentless intercepts under Catgegory 3 of Justice Jackson's Steel Seizure opinion, see Youngstown Co. v. Sawyer, 343 U.S. 579, 640(1952), a principle that even the Federal Intelligence Surveillance Court ("FISC") appears to accept. See In re Sealed Case, 310 F.3d 717, 742 (FICR 2002) ("The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power.") (emphasis added).

3. If any branch of the goverment overstepped its bounds, it was Congress when it passed the Federal Intelligence Surveillance Act ("FISA") in 1978, which polices the President's authority to wage war. Congress's role in waging war is to authorize a war, to fund it (or withhold funds), and to regulate the armed forces; it does not extend to setting the rules of engagement, including intelligence gathering.

Finally, returning to this post's titular quote, it comes from former Reagan Justice Department official Mark Levin, who expressed my gut reaction exactly:

Moreover, where is the historical precedent for a commander-in-chief, especially during war, being required to ask permission from a court to spy on the enemy, including intercepting communications? Did Abraham Lincoln (Civil War), Woodrow Wilson (World War I), FDR/Harry Truman (World War II), Ike (Korean War), and/or JFK/LBJ/Richard Nixon (Vietnam War) use probable cause as the basis for intercepting enemy communications? Did they go to court each time and ask permission from a judge to intercept foreign intelligence? Of course not. And as pointed out by Byron York and others, recent presidents such as Jimmy Carter, Ronald Reagan, and Bill Clinton have all issued presidential orders making clear that while they will attempt to follow FISA, they retain their inherent constitutional authority to gather foreign intelligence, protect our national security, and wage war. The Fourth Amendment doesn't apply to al-Qaeda terrorists as they conspire to blow up our cities.

. . . And it's only after the creation of the FISC in 1978 that intercepting enemy communications became lawful? You have to be kidding. . . .

The president has not acted in a reckless or lawless way. He has sought and received extensive legal advice from scores of legal experts, many of whom are no doubt civil servants. He has numerous internal checks built into the process, requiring a constant review of procedures. And despite the pronouncements of some on the Hill, certain members of Congress were briefed, i.e., it's not as if they weren't aware of the program. Sometimes a president has to do what's right in his eyes and be prepared to defend it, as Bush is now. We used to call that leadership.

Or, to paraphrase another commentator (whose name I don't recall), if there is another domestic terrorist attack it is the president, not Congress and not the FISC, who will carry the blame. Authority should follow responsibility.

This principle does not support a boundless grant of power, but, for the three reasons I briefly sketched above, I don't think this administration abused its power. And, even if he does push the boundaries, a president should receive the benefit of doubt in waging war, because he certainly won't receive any benefit of doubt once the ground is littered with U.S. corpses.

UPDATE: Researching another post, I came across this article by John Schmidt, an Associate Attorney General in the Clinton Justice Department, which reaches about the same conclusions that I did.


Anonymous Anonymous said...

Interesting post.

First, a question, because this is not 100% clear from the context: is Levin's quote a present-day quote analyzing the current controversy, or is it a quote taken from his time in the Reagan Justice Department?

My own quick gut reactions to Levin's quote, for whatever they're worth (my reaction considers the quote itself rather than its specific application to the wiretapping issue, which I have not researched nearly as extensively as you):

First of all, is Levin not blatantly begging the question in his references to "the enemy" and "foreign intelligence", not to mention through the quote "the Fourth Amendment doesn't apply to al-Qaeda terrorists as they conspire to blow up our cities"?

What a frightening, although not altogether unsurprising, point of view from a JUSTICE DEPARTMENT official. To the extent someone is an American, it is my understanding that the Fourth Amendment in fact does apply, regardless of affiliation with the most odious groups. Is this incorrect? (It appears implicit in your point 1 that you believe the Fourth Amendment applies but is not violated in this case)

Secondly (and it's sad that years into the so-called war on terror this point still needs to be made), human intelligence is frequently flawed and unreliable, which makes the existence of procedural safeguards absolutely fundamental. Because sometimes it turns out that the guy we think is an al-Qaeda terrorist intent on blowing up a city (let's say, for the sake of argument, with a dirty bomb) is nothing of the sort, and we end up with even the likes of Judge Luttig (!) scolding the administration for its excesses in prosecuting the war on terror.

Nobody wants to tie the president's hands, but who could fail to be frightened by an administration that argues for essentially unlimited rights of surveillance, capture, detention, and interrogation while simultaneously arguing that procedural safeguards that have stood the test of time are no longer applicable?

Finally, another gut reaction: I feel as if I've come to know the ways of the Bush administration through these last 5 wonderful years, and I feel quite comfortable rejecting out of hand Levin's assertion that "[Bush] has sought and received extensive legal advice from scores of legal experts". Please. I can't think of a single issue on which the administration has made a good-faith effort to canvass the views of a SPECTRUM of experts. So while in this case they may have lined up a few "experts" with predictable points of view simply for the purpose of providing some political cover (paging John Yoo!), I don't believe for a second that any attempt was made to seek out contrary points of view and to engage in a debate on these fundamental issues. Do you disagree?

Anyway, those are just my initial thoughts. As you note, despite the visceral pleasure you derive from the "absurd debate" quote, this is in fact anything but - it goes to the heart of the defining issue of our time in America. All the best and a very merry Christmas to you, H.

10:58 AM  

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