I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Monday, January 30, 2006

Questions 1-5

Question 1

In a September 25, 2001 Memorandum Opinion addressed to the Deputy Counsel to the President, John C. Yoo, then-Deputy Assistant Attorney General in the Office of Legal Counsel, wrote (emphasis added):

In both the War Powers Resolution and the Joint Resolution, Congress has recognized the President's authority to use force in circumstances such as those created by the September 11 incidents. Neither statute, however, can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make.

(a) Does this paragraph reflect, or did it ever reflect, the position of the Bush Administration with regard to the President’s powers to respond to "any terrorist threat."

(b) If not, in what way does the Administration’s positions on this issue differ from that paragraph?

(c) What powers does Congress possess, if any, to regulate or limit "the method, timing, and nature" of the President’s response to the threat of terrorism?

(d) What powers does the judiciary possess, if any, to regulate or limit "the method, timing, and nature" of the President’s response to the threat of terrorism?

(e) Are there any limits at all on the President’s power to order actions as a response to threats of terrorism and, if so, what are those limits?

(f) In his Memorandum, Mr. Yoo wrote, quoting the Supreme Court opinion in Youngstown: "As Lincoln aptly said, '[is] it possible to lose the nation and yet preserve the Constitution?'" Does the Administration believe that, as Mr. Yoo suggested, that the threat of terrorism means that we must choose between preserving the Nation or preserving the Constitution?

Question 2

Does Congress have any power whatsoever to regulate or limit the President’s ability to order eavesdropping on either the international or domestic communications of American citizens? If so, what are those limits?

Question 3

Congress has been debating whether to renew all of the provisions of the Patriot Act. Some of the original Patriot Act provisions which are in dispute include those provisions that gave the Administration new surveillance and investigation powers, including those provisions:

(a) allowing the government to obtain secret court orders in domestic intelligence investigations to get all kinds of business records about people, including library records, medical records and various other types of business records whenever the Government certified that the records were "sought for" a terrorism investigation (section 215); and,

(b) expanding the National Security Letter (or "NSL") authority that was contained in Section 505 to enable the FBI to obtain certain types of records using NSLs, with no judicial review.

If Congress decides not to extend these provisions, and the Patriot Act is renewed and signed into law only once these provisions are eliminated, can the President nonetheless exercise those very powers on the ground that he has the authority to unilaterally decide our nation’s response to the terrorism threat regardless of what Congress allows or prohibits?

Question 4

In December of last year, Congress, over the administration’s objections, overwhelmingly passed a Defense Appropriations bill that included the McCain Amendment, which "prohibit[s] cruel, inhuman and degrading treatment of detainees by all U.S. personnel, anywhere in the world":

(a) Does Congress have the legal authority to regulate and limit the treatment of detainees by the United States?

(b) Does the President have the power to order treatment of detainees which is prohibited by the McCain Amendment?

(c) After President Bush signed the McCain Amendment into law, the White House issued a "signing statement" in which the President stated:

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.

With regard to this paragraph in the signing statement:

(i) What are the "Constitutional limitations on the judicial power" with regard to the McCain Amendment?

(ii) What is "the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief" with regard to the McCain Amendment?

(iii) Does this mean, or is it the Administration’s position, that the question of how detainees will be treated is for the President alone to decide, and neither Congress nor the courts can limit the President’s power?

(d) Once the signing statement was issued with regard to the McCain Amendment, an article in The Boston Globe reported that a senior administration official made clear that the position of the Administration is that it has the power to violate the McCain Amendment if the President believes it is in the national interest to do so:

A senior administration official, who spoke to a Globe reporter about the statement on condition of anonymity because he is not an official spokesman, said the president intended to reserve the right to use harsher methods in special situations involving national security. . . .

But, the official said, a situation could arise in which Bush may have to waive the law's restrictions to carry out his responsibilities to protect national security. He cited as an example a ''ticking time bomb" scenario, in which a detainee is believed to have information that could prevent a planned terrorist attack.

''Of course the president has the obligation to follow this law, [but] he also has the obligation to defend and protect the country as the commander in chief, and he will have to square those two responsibilities in each case," the official added. ''We are not expecting that those two responsibilities will come into conflict, but it's possible that they will."

With regard to the McCain Amendment, is it the Administration’s position that the President has the power to "waive the law’s restrictions" if the President deems it in the national interest to do so?

Question 5

The Department of Justice ("DoJ") issued a Press Release on January 27 summarizing its legal position with regard to the NSA eavesdropping matter. In support of its position that "[t]he NSA activities described by the President are consistent with FISA," the DoJ identified two arguments: (i) the AUMF authorized the Administration to eavesdrop without the warrants required by FISA, and (ii) if FISA is found to restrict the Administration’s power to eavesdrop without warrants, then it is quite likely unconstitutional.

The DoJ issued a lengthier document on January 19, 2006 setting forth its legal defenses of the NSA program, and these same two arguments were the ones invoked in that document to explain why its NSA eavesdropping program did not violate FISA.

(a) Leaving aside any exemption provided by the AUMF, does the Administration acknowledge that the NSA eavesdropping authorized by the President’s Executive Order was the type of eavesdropping which is prohibited by FISA in the absence of judicial oversight and approval?

(b) The DoJ has issued numerous documents, and made multiple statements, setting forth its legal position with regard to this matter. In any of those documents or statements, has the DoJ ever claimed that the type of NSA eavesdropping ordered by the President is not within the scope of FISA?


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