Saturday, January 07, 2006
Congressional Research Service Report on NSA Intercepts
I just finished reading the 44 page report from the Congressional Research Service (CRS) on the legality of the recently leaked NSA program. You can read it in PDF form here. John Hinderaker at Powerline has a good analysis of it here. I'll try not just to parrot what he wrote and I'll try to be brief for a change. (Fat chance).
As I and other bloggers have written, there is one case out there which is on point, recent, and supportive of warrantless surveillance of foreign communications. In re Sealed Case No. 02:001, which states in pertinent part:
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 information... We take it for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional powers. (p. 48)
Although the CRS tries like hell to make those clear statements meaningless, it really never lays a glove on them. That is the state of the law. While no one seriously doubts that the President can, without a warrant, listen in on our foreign enemies' communications, does the presence of an American on the line change foreign surveillance into the domestic version. I know of no case law so holding, but I do know of a long line of cases which hold that if only one side of a confidential conversation chooses to tell other people about the conversation or to tape it, there's nothing the other party to the conversation can to to stop that legally. The one side of the two party conversation does not have veto power over the decision of the other to tape or publish the conversation. I think that, similarly, the presence of one American during an overseas conversation does not veto the President's inherent power to find out what the foreigner on the line is saying.
The entire analysis of the problem by the CRS is I think tainted from the start by the repeated referral to Justice Jackson's concurrence in the steel mill seizure case, Youngstown Co. v. Sawyer. Whatever use a one Justice concurrence has in future decisions or in framing the issues, one thing is clear--it is not a statement of the law. The CRS either doesn't know that or it ignores the plain fact.
The analysis by the CRS only looks at one thing the President has presented to justify his actions, a December 22, 2005 DOJ Office of Legislative Affairs letter to certain members of Congress.v That is another limitation of the CRS report. One of the arguments in support of the President's course of action with the NSA, contained in the letter, is that the President's inherent, that is, constituional, power as commander in chief was bolstered by the passage in Congress of the Authorization for the Use of Military Force (AUMF), which authorized the President to "use all necessary and appropriate force against" those who attacked us, or helped attack us on 9/11/01. That was al Qaeda. The NSA was appropriately limited to listening in on al Qaeda.
Therefore, the pivot point of the CRS analysis occurs in its argument whether the AUMF, combined with the President's inherent powers as commander in chief, allows the President to bypass anything required by FISA. The CRS asks this question: May any statutory prohibition arguably touching on national security that applies "unless otherwise authorized by statute" be set aside based on the AUMF?
The answer to that question is emphatically yes, so long as the national security matter is clearly part of the normal use of military force. The CRS staff didn't quite see it that way. More fools they.
In the Hamdi case, regarding the question whether AUMF allowed the President to take and detain prisoners of the conflict, it took Justice O'Connor nearly ten pages of hemming and hawing hand wringing to decide well, yes, he can. What foolishness. Of course taking prisoners is an inherent part of conducting warfare, unless you want to take no prisoners and shoot everyone who is unwilling or unable to fight back (a course of conduct we Americans have held to be barbaric since before we became Americans. Tarlton's Quarter).
Just so, sending out scouts and spies to see what the enemy is doing or planning to do is as much a part of armed conflict as the actual fighting, older, I bet, than uniforms or a rigid chain of command. Of course the power to use necessary and appropriate military force includes the power to spy on the enemy. To think otherwise requires one to adopt the stunningly absurd notion that Congress empowered the President to order al Qaeda members shot in the head whenever they show themselves, but if he wants to listen in to them talking on the phone, he has to get permission.
The President did the right thing, he should listen in on our enemies' communications without having to ask for anyone's permission, and no matter how the CRS analysis is reported (and the Washington Post does the normal job of depicting it falsely as both unimpeachable opinion and a sharp rebuke to the President's position) it is not that well reasoned or argued, and really does little to advance the debate.
As I and other bloggers have written, there is one case out there which is on point, recent, and supportive of warrantless surveillance of foreign communications. In re Sealed Case No. 02:001, which states in pertinent part:
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 information... We take it for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional powers. (p. 48)
Although the CRS tries like hell to make those clear statements meaningless, it really never lays a glove on them. That is the state of the law. While no one seriously doubts that the President can, without a warrant, listen in on our foreign enemies' communications, does the presence of an American on the line change foreign surveillance into the domestic version. I know of no case law so holding, but I do know of a long line of cases which hold that if only one side of a confidential conversation chooses to tell other people about the conversation or to tape it, there's nothing the other party to the conversation can to to stop that legally. The one side of the two party conversation does not have veto power over the decision of the other to tape or publish the conversation. I think that, similarly, the presence of one American during an overseas conversation does not veto the President's inherent power to find out what the foreigner on the line is saying.
The entire analysis of the problem by the CRS is I think tainted from the start by the repeated referral to Justice Jackson's concurrence in the steel mill seizure case, Youngstown Co. v. Sawyer. Whatever use a one Justice concurrence has in future decisions or in framing the issues, one thing is clear--it is not a statement of the law. The CRS either doesn't know that or it ignores the plain fact.
The analysis by the CRS only looks at one thing the President has presented to justify his actions, a December 22, 2005 DOJ Office of Legislative Affairs letter to certain members of Congress.v That is another limitation of the CRS report. One of the arguments in support of the President's course of action with the NSA, contained in the letter, is that the President's inherent, that is, constituional, power as commander in chief was bolstered by the passage in Congress of the Authorization for the Use of Military Force (AUMF), which authorized the President to "use all necessary and appropriate force against" those who attacked us, or helped attack us on 9/11/01. That was al Qaeda. The NSA was appropriately limited to listening in on al Qaeda.
Therefore, the pivot point of the CRS analysis occurs in its argument whether the AUMF, combined with the President's inherent powers as commander in chief, allows the President to bypass anything required by FISA. The CRS asks this question: May any statutory prohibition arguably touching on national security that applies "unless otherwise authorized by statute" be set aside based on the AUMF?
The answer to that question is emphatically yes, so long as the national security matter is clearly part of the normal use of military force. The CRS staff didn't quite see it that way. More fools they.
In the Hamdi case, regarding the question whether AUMF allowed the President to take and detain prisoners of the conflict, it took Justice O'Connor nearly ten pages of hemming and hawing hand wringing to decide well, yes, he can. What foolishness. Of course taking prisoners is an inherent part of conducting warfare, unless you want to take no prisoners and shoot everyone who is unwilling or unable to fight back (a course of conduct we Americans have held to be barbaric since before we became Americans. Tarlton's Quarter).
Just so, sending out scouts and spies to see what the enemy is doing or planning to do is as much a part of armed conflict as the actual fighting, older, I bet, than uniforms or a rigid chain of command. Of course the power to use necessary and appropriate military force includes the power to spy on the enemy. To think otherwise requires one to adopt the stunningly absurd notion that Congress empowered the President to order al Qaeda members shot in the head whenever they show themselves, but if he wants to listen in to them talking on the phone, he has to get permission.
The President did the right thing, he should listen in on our enemies' communications without having to ask for anyone's permission, and no matter how the CRS analysis is reported (and the Washington Post does the normal job of depicting it falsely as both unimpeachable opinion and a sharp rebuke to the President's position) it is not that well reasoned or argued, and really does little to advance the debate.
# posted by Roger Fraley @ 12:53 PM 
Comments:
<< Home
Hey Roger,
I like your legal arguments, except that it seems like you gloss over the one American on the line. I'm afraid we are dealing with a slippery slope argument here, wherin eventually it will be permisable for a president to do surveillence on Americans so long as he can generate some tpye of national security rationale.
Further, until we actually see what the NSA was doing (and who exactly they were spying on) I think it will be hard to determine if the limits of presidential power were or were not exceeded.
I like your legal arguments, except that it seems like you gloss over the one American on the line. I'm afraid we are dealing with a slippery slope argument here, wherin eventually it will be permisable for a president to do surveillence on Americans so long as he can generate some tpye of national security rationale.
Further, until we actually see what the NSA was doing (and who exactly they were spying on) I think it will be hard to determine if the limits of presidential power were or were not exceeded.
Even though I use the slippery slope argument against gay marriage (I'm for equal rights through domestic unions), it remains a weak argument. Whether we have to spy on Americans with less than probable cause in the future I think will depend a lot on the ability of the FBI to fight within the current rules over the next decade or so. I hope we never find out what the NSA was doing. I know I'm a skipping CD on this issue, but it would have been traitorous during WWII to tell the Germans or the Japanese that we had broken their codes (as apparently one paper nearly did after the battle of the Coral Sea). But our loyal press has tipped off Bin Laden that we were intercepting his cell phone two years ago and now that we're listening in on something even when we don't have probable cause to do so. War is not crime fighting carried out through other means and we've got to accept that simple fact soon or risk a lot of suffering. But am I worried what a future president (known for her petty vindictiveness and willingness to use FBI files against her enemies) might do behind the mere excuse of "it's for national security," you bet I am. Thanks for the comment. Must be a little chilly in Prague about now.
Funny that you use the slippery slope argument against gay marriage (I'm for civil unions as well: who cares what you call it, just give the same legal privelages to everyone and call it a day) and yet you don't think it is aplicable to this case. I know it is weak as I always argued against it in the cases of Vietnam and Nicaragua. However, you really touched on why the slippery slope argument could work in this case. Perhaps you, as many Americans do, implicitly trust George Bush in the area of security. You, like many, belive that the spying is limited to necessary spying that helps save lives. That very well may be true, but the precedent it sets is a dangerous one in that future executives will be further empowered to encroach on the 4th by employing specious rationales, as I think Bush has, and as did Clinton. I belive the founding fathers would be ashamed of us "intelectuals" that fail to see the danger in allowing the executive to infringe on citizens privacy.
If we allow the very foundation of the republic to be erroded, then we have already lost the war. They have then tricked us into destroying our own society and into discarding our most sacred values. Hell, I guess we did that a while ago.
I don't think you can stop the press now. You have to work within the current system. Comparisons to WWII aren't that useful. Even if you could restrain the press in the interest of national security, hot stories will get out through, yep you guessed it, the bloggers.
Cold as hell over here. It can't be warm in Denver though. I do hope Denver beats New England.
If we allow the very foundation of the republic to be erroded, then we have already lost the war. They have then tricked us into destroying our own society and into discarding our most sacred values. Hell, I guess we did that a while ago.
I don't think you can stop the press now. You have to work within the current system. Comparisons to WWII aren't that useful. Even if you could restrain the press in the interest of national security, hot stories will get out through, yep you guessed it, the bloggers.
Cold as hell over here. It can't be warm in Denver though. I do hope Denver beats New England.
Lincoln suspended habeas corpus and put 30 or 40 Maryland southern sympathizers in jail without charges because he could not allow the US capitol, which is south of the Mason Dixon line, to be surrounded by the Rebel south. Korematsu the case that said it was OK to put American citizens with Japanese parents in camps during WWII is still good law. But we've never been close to a military coup and our civil liberties seem pretty strong yet. It's OK to react rationally to war if you stop it when the war is over. So far so good, but it's a good point we can't get complacent. Windy and 40 here--not so bad. See ya'
The government has suspended due process at various times throughout history. It is a long and sordid past of Alien and Sedition acts and so fourth. In the case of the Japanesse, I think it was particularly atrocious. I know people from California who grandparents lost their property and whose parents spent time in the camps. I think stories like these leave a dark spot on our country's human rights record irrespective of the legal merits of the program.
What I fear with the current suspentions of due process is that this "war on terror" will never end. In fact, in my lifetime, there has always been a war or two in progress which could justify the suspention of civil rights. The cold war, the war on drugs, and now the war on terror. If the government has the ability to suspend our civil rights in "times of war" and at the same time can call any struggle a "war", and can, indeed, declare the country in a perpetual state of war, then what protection, as citizens, do we actually hold?
When will the war be over? What will be the next war? These are old Machivellian tactics. We should know better.
Post a Comment
What I fear with the current suspentions of due process is that this "war on terror" will never end. In fact, in my lifetime, there has always been a war or two in progress which could justify the suspention of civil rights. The cold war, the war on drugs, and now the war on terror. If the government has the ability to suspend our civil rights in "times of war" and at the same time can call any struggle a "war", and can, indeed, declare the country in a perpetual state of war, then what protection, as citizens, do we actually hold?
When will the war be over? What will be the next war? These are old Machivellian tactics. We should know better.
<< Home
