Last Friday, the Washington Legal Foundation ("WLF) filed an amicus brief in connection with the lawsuit brought by the ACLU challenging the legality of the NSA warrantless surveillance program. If you'll remember, in January the ACLU filed suit on behalf of a number of prominent journalists and academics (including Christopher Hitchens and Larry Diamond, among others). The government is currently seeking dismissal of the suit on both standing and state secrets grounds.
Despite the fact that these threshold jurisdiction issues have yet to be resolved, the WLF decided to submit a brief supporting the government's highly dubious claim that the president has the power under article II of the Constitution to authorize the NSA program, even though it clearly violates FISA.
Over at the Corner, Andrew McCarthy linked to the brief and described it as "an excellent amicus brief in favor of the NSA's terrorist surveillance program." McCarthy is clearly speaking as a partisan here, not as an attorney. I know this because in November 2003, before the NSA program was revealed, McCarthy wrote the following:
There is a respectable separation-of-powers
argument to be made that Congress had no
business giving federal courts a check on the
executive branch's conduct of foreign
counterintelligence, but the after-clap of the Nixon
excesses was no time to make it, and at this point,
after a quarter century, FISA is now settled
law.
McCarthy was right that FISA was well-settled law, at least until President Bush was caught breaking it. But he greatly overstated how respectable this separation-of-powers argument was, even back when FISA was first passed.
The truth is that the argument never made much sense, something the WLF's brief unintentionally illustrates quite well. The argument made in the brief can be summarized as follows:
1) The president has exclusive/plenary power when it comes to foreign affairs and international relations.
2) Surveillance of U.S. citizens within the U.S. for foreign intelligence purposes falls within this exclusive/plenary presidential power over foreign affairs.
3) FISA is therefore unconstitutional and the NSA program legal.
In both logic and structure, this brief reminds me of the three-phase business plan of the Underpants Gnomes on South Park:
1) Collect Underpants
2) ???
3) Profit!
In both cases, there is a magical second step that is totally unexplained. The cases cited in the WLF brief relating to the president's plenary powers over foreign affairs are entirely inapposite. They're referring to the president's power to negotiate treaties and conduct foreign relations, powers clearly given directly to the president by the Constitution. Moreover, the logic of these cases is clear; the U.S. government must speak with one voice to the outside world.
The brief cites exactly zero cases, however, that stand for the proposition that the president alone has the power to set rules for intelligence gathering, particularly intelligence gathering involving the targeting of U.S. citizens on U.S. soil. There's a reason for that. There are no such cases. Setting such rules falls within any number of powers provided to Congress under article I, including the power to make rules governing the armed forces.
More fundamentally, though, this argument ignores the basic structure of the Constitution, a document drafted by men attempting to curtail and constrain exactly the sort of expansive executive power this brief seeks to defend. If FISA impermissibly interferes with the president's "foreign affairs" powers, then so do countless other statutes that no one has ever seriously questioned.
Finally, the suggestion that adherence to FISA would prevent the president from doing his job flies in the face of both logic and history. First, and most obviously, FISA doesn't prevent the executive branch from conducting surveillance of suspected terrorists. It only requires that such surveillance be conducted with minimal (and secret) judicial oversight. In other words, FISA doesn't tell the president how to do his job. It's just a way of making sure that he's only spying on the people he says he's spying on, i.e., the bad guys. That's why Presidents Carter, Reagan, Bush Sr., and Clinton were all able to do their jobs without violating FISA.
I'm willing to listen to arguments as to how FISA can be further improved and fine-tuned, but those are policy arguments to be addressed by Congress. The suggestion that the branch of government that most directly represents the will of the people, Congress, cannot mandate basic procedures for the surveillance of U.S. citizens within the U.S. is just flat-out ridiculous. Even the Underpants Gnomes aren't buying it.
Damn you A.L! I was going to use the Underpants Gnomes plan to describe how the Bush administration plans to spread democracy.
ReplyDeletePhase 1: Bomb country extensively
Phase 2: ????
Phase 3:Pro-American democracy
Excellent post, A.L. It really doesn't take a lawyer to see that the President's NSA program is a fundamental betrayal of both the spirit and the letter of the constitution, not to mention FISA.
ReplyDeleteI think it's inevitable that this illegal (and, by all accounts, largely useless) program will soon be declared illegal. I wonder how this will play out, when it happens, especially with regard not just to Bush but to people who helped craft the program, particularly the new CIA chief Gen. Hayden. If the US judiciary has any integrity, Hayden and Bush should clearly be booted for their illegal actions.
I love the words "plenary powers". Sound so potent, just like the Preznit. I think we should start calling him 'Plenis'.
ReplyDeleteAn overview of this Admin shows it is easier to exact a list of their legal actions vs a list of where they have broken the law of the land. Will have to get back to you on the list of where they have acted legally, seem to be having trouble sourcing ...
ReplyDeleteFrom AL's post:
ReplyDelete"The suggestion that the branch of government that most directly represents the will of the people, Congress, cannot mandate basic procedures for the surveillance of U.S. citizens within the U.S. is just flat-out ridiculous. Even the Underpants Gnomes aren't buying it."
To which our resident contrarians will refrain:
"But this program is only targeting Al Qaeda, and FISA is only good for criminal cases, and we are At War, Article II makes the President the sole Commander-in-Chief, and case law is on our side."
In order: debatable, debatable, debatable, irrelevant, and unproven.
You see a pattern here? We may not buy it, the Underpants Gnomes may not buy it, Eric Cartman may not buy it, Eric Duckman may not buy it...but these clods will.
Wonder how they'll respond this time around.
armagednoutahere:
ReplyDeleteAs Glenn has pointed out, somehow every president prior to Bush somehow managed to protect America from enemies--even ones as mighty as the USSR--without need ing to go around FISA.
This claim that "Terra-ists" pose a unique and far more dangerous threat to the United States than any previous threat (including a full-blown civil war, the Nazi/Axis in WWII, and nuclear-armed Russia and China [how easily the "Duck and Cover" crew seem to forget this ... if they in fact did, and are not trying to pull the woll over our eyes]) is pure hogwash.
The terrorists use terror precisely because they have no other weapons (as one Palsetinian said [approximately], "give me some Cobra gunships and a bunch of tanks, and I'll be glad to give up suicide bombings, thank you").
They pose no threat to the nation's existence; not even any substantial threat to the nation's well-being (hell, the Rethuglicans are touting the wonderful rise of the Dow up to 2000 levels a mere 5 years after Sept. 11th...). Hurricane Katrina killed on the same order of magnitude of people as did the Sept. 11th hijackers, and did far more property damage. Even a suitcase nuke in New York City wouldn't be a fatal blow to the United States (and is far less likely than a hurricane or an earthquake).
You have a far greater risk of dying on the highway on the way to work than you do in some terrorist attack, but no one is saying "I'll stay at home and tape the windows just to be sure" because of this risk.
Dubya, for political purposes, has been stoking the "fear" machine for all it's worth since Sept. 11th, and he got quite a few to "duck and cover" (or buy duct tape and plastic). This is wearing thin, although it will continue to have some effect. But such scare-mongering is contemptible ... and more importantly, hardly American. Dubya is saying "you cower while I'll go and 'protect' you" (despite the fact that the greatest danger he's ever faced himself was a high barstool). And then use that guise of "protection" to consoldidate political power and Republican hegemony so as to rape the country.
I was supposed to go to Africa the week or so after Sept. 11th; we postponed, but I was there a month later, in the midst of a 50% Muslim nation. And no high spiralling descent to ward off SAWs on the way in. I refuse to be cowed; I refuse to cower and quake. I understand risks (hell, I live a short bike ride from the San Andreas fault). I'm not giving up my essential liberties for an illusion of security. And I have nothing but contempt for those that knowingly propose that we do this.
If we let the terrorists (or Dubya) destroy the United States because of some shapeless and evanescent fears stoked for political gain, the terrorist have won.
Cheers,
kovie:
ReplyDeleteSpeaking of which, how do you demonstrate standing without discovery,...
Your filing has to show through allegations that you have a valid legal claim (there must be a legal theory based on the alllegations taken as true that would support the court giving you relief if you prove the allegations), that you are the right person to make the claim ("standing"; you are the one injured or sufficiently related to the party injured so as to have a real interest in the case or to substitute for the injured party if they're not able to make the claim themselves [minors, Hamdi, etc.), and describe what it is that the courts can do for you. If you can't enunciate a "remedy" that the courts can legally provide, you shouldn't be in court; they won't rule on an issue unless they can actually do something about it ... unless you're Dubya in Dubya v. Gore).
As I said, allegations as to sufficient facts to make a legal claim is sufficient to get in the door. Your discovery comes later, when you try to get the evidence to prove the allegations.
Cheers,
It all seems to stem from the misquote of the constitution in referring to the President as the "Commander-in-chief" as if he were the CiC of the United States. He is not. No such office exists.
ReplyDeleteHe is CiC of the "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;"
So where they think he somehow gains "plenary" powers (a word not in Article II) to spy on all Americans without probable cause or even reasonable suspicion, is beyond me.
He is not CiC of the US. Just its Military forces. The CIA and NSA are explicitly civilian organizations to boot.
dan:
ReplyDeleteHe is not CiC of the US. Just its Military forces. The CIA and NSA are explicitly civilian organizations to boot.
Ummmm, not quite. The NSA is a military organisation, funded by the military, created by presidential order, and must have a military man as the DIRNSA (Director of NSA) albeit the second in command must be a civilian. Like other parts of the military, it does have civilian employees and contractors, but it is hardly a civilian agency.
Cheers,
"If FISA impermissibly interferes with the president's "foreign affairs" powers, then so do countless other statutes that no one has ever seriously questioned."
ReplyDeleteCan one of you lawyers give a partial list of commonly known (and commonly supported) laws that would also be rendered unconstitutional by Bush's interpretation of his "fopreign affairs" powers?
This would be helpful to show the absurdity of the claim in discussions with wingers...
TIA
engine17
TIA,
ReplyDeletefor starters, virtually any tangentially military spending bill or any bill which restricts 'intelligence operations' apparently even those that merely impose reporting requirements.
Also trade bills, tariffs. Immigration laws. Extradition. Maritime laws. Environmental protection laws (to the extent they still exist). We've already seen that treaties are apparently worthless.
And those are just the 'facial' arguments, the breadth of as-applied or effect-based challenges to laws 'impinging' on foreign affairs powers is potentially staggering.
The Article II argument is a red-herring. No respectable attorney or judge ought to believe it. It is generally accepted (and "well settled") that, when there is a conflict between two statutes or, as in this case, conflicting provisions in the constitution, the most recent provision is controlling.
ReplyDeleteArticle II was ratified, with the rest of the Constitution, in 1789. The Bill of Rights, in 1791.
In this case, you have a clear prohibition against unreasonable searches and seizures as set forth in the Fourth Amendment. It's equally well settled that warrantless searches and seizures are presumptively illegal. Wiretaps have also long been held to be searches.
As it relates to domestic spying, all FISA does is establish a mechanism of 4th Amendment compliance by allowing the Executive branch to obtain warrants on an expedited basis for taps that have substantial likelihood of acquiring the contents of any communications with a "United States person" (which includes legal aliens and citizens).
The President argues that Article II gives him "plenary power" to act against international terrorism and that he is therefore not constrained by FISA. But that claim amounts to a claim that the Executive branch is not bound by the 4th Amendment, which is rubbish because the 4th Amendment clearly controls.
The dishonesty of the Bush administration is astounding. That's not surprising, given its track record of criminal tendencies. What surprises me is that the Whitehouse scholar-shills and DOJ lawyers, who almost certainly know better, continue to float this garbage in the press while simultaneously dodging a hearing before the Court.
If not for the many good citizens speaking out and standing up against this, I might be ashamed to be an American.
AL:
ReplyDeleteThe brief cites exactly zero cases, however, that stand for the proposition that the president alone has the power to set rules for intelligence gathering, particularly intelligence gathering involving the targeting of U.S. citizens on U.S. soil. There's a reason for that. There are no such cases.
Why would there need to be any such cases?
The brief cites multiple cases which hold that Article II provides the President power to conduct warrantless intelligence gathering.
Setting such rules falls within any number of powers provided to Congress under article I, including the power to make rules governing the armed forces.
Really?
Name the Article I provision which even implies that Congress has the power to direct or conduct intelligence gathering?
Name a single court case which has interpreted any Article I provision as granting Congress the power to direct or conduct intelligence gathering?
More fundamentally, though, this argument ignores the basic structure of the Constitution, a document drafted by men attempting to curtail and constrain exactly the sort of expansive executive power this brief seeks to defend.
Are you referring to the leading pronouncement of Article II: "The executive power shall be vested in a President of the United States of America?" The power to direct and conduct intelligence gathering is solely an executive act.
If FISA impermissibly interferes with the president's "foreign affairs" powers, then so do countless other statutes that no one has ever seriously questioned.
Which are those?
HWSNBN trots out the same ol' lame horse;
ReplyDeleteAre you referring to the leading pronouncement of Article II: "The executive power shall be vested in a President of the United States of America?" The power to direct and conduct intelligence gathering is solely an executive act.
The power to see that the "laws be faithfully executed" is also an executive power. But nobody in their right mind would say that the preznit can decide who is a criminal and what acts shall be punished, what the punishment shall be, or by what means. All of the latter here are the province of other branches, and a preznit who takes these on for himself is acting lawlessly.
The preznit's job is ministerial, and administrative. He doesn't get to write the laws, and his ability to "make the rules" must comport with a grant of such rule-making ability by Congress and be consistent with the laws passsed by Congress that enable these rules (just a FWIW, the ligislatuve power is one of those non-delegable ones; Congress couldn't empower the preznit to actually "make law", rather than write rule that administer these laws, even if they wanted to).
He doesn't get to decide which surveillances are prohibited and which are allowed (certainly not contrary to the expressed will of Congress to the contrary); his discretion extends only to "direct[ion] and conduct[ion]" of the surveillances themselves. That is to say, he can decide which particular individuals to snoop and when (consistent with any laws regulating the proper procedures and permissible types of targets), just as he gets to decide which driminals to arrest and when (as long as he obeys the mandate that the "laws be faithfully executed"). But he doesn't get to make the laws concerning such, nor does he get to ignore them. It's the difference between rule writing, and application of the rules in specific instances.
No same person thinks that Congress should specify by name which persons to arrest (nor are they even allowed to do such), nor would anyone think that such a state of affairs is a workable one. That being said, they do write the general law, and the enforcement -- the carrying into action of the laws -- is the job of the preznit. Nothing different WRT surveillances (nor can HWSNBN come up with a single phrase in the Constitution that indicates anythign different).
Similarly, Congress is given responsibility for regulating "the land and naval forces", "declar[ing] war", definign and punishing piracies", and "rais[ing] and support[ing] armies". The president is just given the executive power to command such armies as provided, with such regulations as are defined, and against the enemies that are declared. He's given operational control; he can decide tactics and specific objectives, but he can't write the rules. In fact, in this case, he's even more constrained, because he can't even decide when to go to war or against whom. His decision-making power, in that respect, is tactical only.
Cheers,
"First, and most obviously, FISA doesn't prevent the executive branch from conducting surveillance of suspected terrorists. It only requires that such surveillance be conducted with minimal (and secret) judicial oversight. In other words, FISA doesn't tell the president how to do his job. It's just a way of making sure that he's only spying on the people he says he's spying on, i.e., the bad guys. That's why Presidents Carter, Reagan, Bush Sr., and Clinton were all able to do their jobs without violating FISA."
ReplyDeleteOf course FISA tells the president who he can spy on. They can deny warrants. Without the warrants you can't listen in. The was a point brought up in In Sealed Case in the historical court cases where courts have questioned whether FISA would even have the right to deny a warrant to a president.
The FISA Court in no way, shape or form makes sure the president "only spies on the bad guys."
They don't know for sure who the bad guys are. FISA makes them jump through legal hoops to get warrants. The judicial branch now has the authority to tell the president who he can spy on.
Bart,
ReplyDeleteWhat part of Article I, section 8 empowering congress to "To make rules for the government and regulation of the land and naval forces (presently interpreted more broadly as military including, obviously, the NSA)" don't you get? That's black and white for g-d's sake.
What part of Article II, section 3.4 where the President "shall take Care that the Laws be faithfully executed" don't you get? Also black and white for g-d's sake.
Now please explain how exactly Article II, section II where "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" means by statute the President can "intentionally engag[e] in electronic surveillance under the color of law"?
If the President is engaging in anything "under the color of law" based on a theoretical interpretation of Presidential powers, can he be reasonably considered "tak[ing] Care that the Laws be faithfully executed"?
(Why is it that roughly the same crowd that picks and chooses parts of the Bible as their morality are also picking and choosing parts of the Constitution they will abide by, as if some parts are arbitrarily more important than others)
"Command" of the military does not Constitutionally mean "rule" of the military. Article I precedes Article II for a reason, and expressly delimits that "rule" also for the same reason.
Now the question is, are you ever going to be reasonable and come up with that reason without me or anyone else spelling it out for you for the umpteenth time?
JaO said...
ReplyDeletebart: Name the Article I provision which even implies that Congress has the power to direct or conduct intelligence gathering?
Of course, the provisions of Article I, Section 8 have been named here many time. And it is not a question of "directing" or "conducting" intelligence-gathering, but rather of regulating domestic surveillance. bart can argue that these provisions don't imply such authority, but it is only his argument. The language of Article I is very general, and the exception bart imagines does not exist in the text. Notably, there is no Article II provision that explicitly grants exclusive authority in this field to the President, either.
There are several cases recognizing that Article II empowers the President to direct and conduct warrantless intelligence gathering.
There are zero cases holding that any provision of Article I empowers the Congress to regulate (ie limit or eliminate) the President's constitutional power to direct and conduct warrantless intelligence gathering.
spark tries...
ReplyDeleteBart: What part of Article I, section 8 empowering congress to "To make rules for the government and regulation of the land and naval forces (presently interpreted more broadly as military including, obviously, the NSA)" don't you get? That's black and white for g-d's sake.
I have easily disposed of this before. This provision allows Congress to enact regulations for the discipline and good order of individual soldiers, which Congress did by enacting the UCMJ.
Congress never claimed it was using the provision to enact FISA and no court has ever held that this allows Congress to regulate anything concerning intelligence gathering.
What part of Article II, section 3.4 where the President "shall take Care that the Laws be faithfully executed" don't you get? Also black and white for g-d's sake.
And the supreme law of the land is the Constitution. To the extent that FISA can be read to limit or eliminate the President's Article II power, it is unconstitutional.
Now please explain how exactly Article II, section II where "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" means by statute the President can "intentionally engag[e] in electronic surveillance under the color of law"?
Several courts have held that conducting intelligence gathering is one of the President's specific duties as the sole executive and CiC. No courts have held that Congress shares this power.
Bart -
ReplyDeleteI will grant that, to date, Congress has not exercised the authority enumerated in Article I, Section 8, Line 14 to do more than codify the UCMJ.
This doesn't mean however that Congress could or has surrendered or proscribed exercising that same authority today or in the future.
Similarly, if we are going to take an expansive reading of Article II as you are wont, Article I.8.14 similarly empowers Congress to regulate warrantless wiretapping/surveillance undertaken by the armed forces.
And before you go quoting the same laundry list of cases supporting the contention "intelligence gathering is one of the President's specific duties as the sole executive and CiC", I would point out that none of those cases state or even imply this 'intelligence gathering' is beyond the pervue of Congress to regulate, oversee, or limit as they see fit or appropriate.
The difficulty as I see it with this discussion is that you've presented your opinions as proven case law where, in fact, none exists. You can and do argue (sometimes persuasively but most times not) that Article II effectively trumps current US Statutes in terms of this controversy or that particular statutes are simply unconstitutional and can be summarily ignored by the President and the Executive Branch. This flies in the face of prescedent and tradition which has held it is the SCOTUS which is the final arbitor of the constitutionality of US Statutes; the Executive and Legislative branches may hold the opinion that a statute is unconstitutional, but to date it is the Judicial who makes the final binding determination.
That said, can you muster any case law pointing to where either Executive or Legislative branches have declared a single US Statute unconstitutional without the concurrence of the Judiciary?
Similarly, can you point to any case which has specifically stated Congress no longer has the power or authority enumerated in Article I.8.14?
HWSNBN sez:
ReplyDeleteThere are several cases recognizing that Article II empowers the President to direct and conduct warrantless intelligence gathering.
There are zero cases holding that any provision of Article I empowers the Congress to regulate (ie limit or eliminate) the President's constitutional power to direct and conduct warrantless intelligence gathering.
Typo there. Let me fix that:
"There are zero cases holding that Article II empowers the President to direct and conduct warrantless intelligence gathering in contravention to laws passed by Congress prohibiting such."
But there is a case that has held that when Congress does speak, and the preznit acts in contravention to Congress's expressed will, the preznit's powers are at their lowest ebb (and in fact, in the holding, the court ruled that the preznit's actions were illegal in that specific case). Significantly, this was a case where the preznit asserted that his powers devolved from national security concerns.
Cheers,
Bart wrote:
ReplyDeleteWhy would there need to be any such cases?
The brief cites multiple cases which hold that Article II provides the President power to conduct warrantless intelligence gathering.
Bart, for God's sake, would you please read Youngstown or any executive power case thereafter. There is an enormous different between what the president has the power to do absent any legislation and what the president has the power to do in the fact of contrary legislation. Even the WLF brief concedes this obvious point.
The case you are referring to are 1) not Supreme Court cases and, more importantly, 2) pre-FISA. They do NOT stand for the proposition that the president has the power under article II to conduct warrantless surveillance that is specifically forbidden by law. They just don't. That you continue to ignore this obvious point is either a testament to your mendacity or your inability to comprehend basic principles of constitutional law.
There are simply no cases anywhere that have ever suggested that Congress overstepped its authority in enacting FISA. That's why the Bush administration is so afraid to litigate this issue in court. They have literally nothing to point to to back up that assertion.
And for crying out loud, FISA does not even come close to an attempt to "direct and conduct" intelligence gathering. It merely sets up some minimal procedures that government must follow when spying on Americans in America. Like Title III, it's an attempt to guarantee that people's 4th amendment rights are protected.
HWSNBN:
ReplyDelete[spark]: What part of Article I, section 8 empowering congress to "To make rules for the government and regulation of the land and naval forces (presently interpreted more broadly as military including, obviously, the NSA)" don't you get?
I have easily disposed of this before. This provision allows Congress to enact regulations for the discipline and good order of individual soldiers, which Congress did by enacting the UCMJ.
Ahhh, yes. Assertion. Repeated assertion. The commonest form of "proof" ... for a certain type of person.
HWSNBN can't cite to any cases that have held that the ability of Congress to "regulate" the armed forces consists of only the ability "to enact regulations for the discipline and good order of individual soldiers, which Congress did by enacting the UCMJ". There are none. The courts have never held that any laws passed by Congress exceeded this purported limited grant of power. And this despite the fact that Congress has passed all kinds of laws both concerning and affecting the military that are not part of the UCMJ regulations for the "discipline and good order of individual soldiers".
Cheers,
yankeependragon said...
ReplyDeleteBart - I will grant that, to date, Congress has not exercised the authority enumerated in Article I, Section 8, Line 14 to do more than codify the UCMJ.
This doesn't mean however that Congress could or has surrendered or proscribed exercising that same authority today or in the future.
Thank you for being the first one to admit the lack of legal precedent. Everyone here has danced around this enormous roadblock to making the Youngstown argument.
DOJ's David Kris wrote a very good brief in opposition to parts of the official DOJ position on the legal foundations for the NSA Program and he raised some serious doubts on pages 8 and 9 about whether the Courts would allow Congress to regulate core executive powers.
http://balkin.blogspot.com/kris.fisa.pdf
A.L. said...
ReplyDeleteBart wrote: Why would there need to be any such cases? The brief cites multiple cases which hold that Article II provides the President power to conduct warrantless intelligence gathering.
Bart, for God's sake, would you please read Youngstown or any executive power case thereafter. There is an enormous different between what the president has the power to do absent any legislation and what the president has the power to do in the fact of contrary legislation. Even the WLF brief concedes this obvious point.
I have read the Youngstown case and the much more recent Dames case which somewhat narrowed the Jackson balancing test. In Youngtown, Congress was exercising an recognized Article I power and the President was reaching for a CiC power to seize US private property which the court found did not exist.
The reason I keep challenging you folks to find me a single Article I provision or court case which allows Congress to direct or conduct intelligence gathering is because finding a concurrent congressional power in a prerequisite to implementing the Jackson balancing test.
As the law stands now, the President has a recognized Article I power and Congress has no concurrent power.
The case you are referring to are 1) not Supreme Court cases
So what? The Supreme denied cert to review all of the decisions which I cited. The precedent which I cited is universal.
...and, more importantly, 2) pre-FISA.
So what? Article II trumps any statute unless you can point to a concurrent Article I provision which empowers congress to direct and conduct warrantless intelligence gathering. Article I does not mention any such power, no court has interpreted Article I to provide such a power and Congress has never in fact exercised such a power because it is by definition an executive power.
So what? Article II trumps any statute unless you can point to a concurrent Article I provision which empowers congress to direct and conduct warrantless intelligence gathering. Article I does not mention any such power, no court has interpreted Article I to provide such a power and Congress has never in fact exercised such a power because it is by definition an executive power.
ReplyDeleteWhere are you get this "direct and conduct" stuff? What are you talking about? Where does FISA attempt to direct or conduct intelligence gathering? It simply doesn't. The president does all the directing and conducting. FISA just requires some minimal judicial oversight when that spying involves Americans in the U.S. Neither Congress nor the courts are directing or conducting anything.
By your rationale, isn't Title III unconstitutional as well? The powers given to Congress under article I are pretty broad, especially when it comes to making rules regarding the federal government itself. And that's all FISA is, a set of rules. And fairly permissive ones at that.
HWSNBN:
ReplyDelete[In Youngstown] the President was reaching for a CiC power to seize US private property which the court found did not exist.
HWSNBN has not explained where in the Constitution the preznit's 'national security powers' (deriving from 'authority' to "protect and defend the Constitution", or some such thing) are proscribed from control over munitions and weaponry materials, but are plenarily delegated for wiretaps. Because he can't. He's just making that sh*te up.
Cheers,
HWSNBN sez:
ReplyDeleteThe reason I keep challenging you folks to find me a single Article I provision or court case which allows Congress to direct or conduct intelligence gathering is because...
... HWSNBN loves fighting "straw men".
As has been pointed out, no one in Congress is telling the Doofus-In-Chief who specifically to tap, where, or when. They aren't "directing" anything. Nor are they out on the telephone poles putting in taps or microwave dishes. They're just setting the rules and procedures that Dubya must abide by if and when he decides he want to wiretap.
Cheers,
(the other) "a.l" sez;
ReplyDeleteBy your rationale, isn't Title III unconstitutional as well?
One might even extend that; doesn't 42 U.S.C. 1983 impermissibly restrict the preznit's "executive" power to ake sure the "laws be faithfully executed" as he sees fit and proper? How dare Congress tell officers of the executive branch how they may not do their job....
Cheers,
From Bart at 2:14PM:
ReplyDelete"Thank you for being the first one to admit the lack of legal precedent. Everyone here has danced around this enormous roadblock to making the Youngstown argument."
This had *nothing* to do with the Youngstown argument, which dealt not with the conduct of the armed forces but with the President at the time attempting to undertake illegal action under the rubric of 'national security'. The decision was both correct and responsible.
My point was that, in this context, Congress has the authority to intervene and impose clearer limits upon the NSA program under discussion than presently exist. All that is absent is the political will (on both sides of the aisle). Nothing in Article II nor existing case law that I am aware of supersedes this point.
You have likewise failed to address my other points, which are to my mind even more pressing. Please do so, or concede the point.
This comment has been removed by a blog administrator.
ReplyDeleteA.L. said...
ReplyDeleteBart: So what? Article II trumps any statute unless you can point to a concurrent Article I provision which empowers congress to direct and conduct warrantless intelligence gathering. Article I does not mention any such power, no court has interpreted Article I to provide such a power and Congress has never in fact exercised such a power because it is by definition an executive power.
Where are you get this "direct and conduct" stuff? What are you talking about? Where does FISA attempt to direct or conduct intelligence gathering?
Under FISA, Congress unconstitutionally delegates to a special court the power to direct which targets against which the President may or may not conduct intelligence gathering under limitations set forth by Congress in FISA.
If Congress has no power to direct or conduct intelligence gathering, where does it get the power to enact FISA to delegate this authority to a court?
By your rationale, isn't Title III unconstitutional as well?
Not at all. Both FISA and Title III are perfectly constitutional when Congress is enforcing the 4th Amendment. The courts have repeatedly held that the 4th Amendment does not apply to intelligence gathering against foreign groups and their agents. Therefore, neither FISA nor Title III apply to intelligence gathering based on the 4th Amendment.
The powers given to Congress under article I are pretty broad, especially when it comes to making rules regarding the federal government itself. And that's all FISA is, a set of rules. And fairly permissive ones at that.
Actually, in the realm of foreign policy, the Congress has only a few enumerated powers which may not extended to limit Article II powers by implication.
One of the stronger portions of the WLF amicus biref which you raised but failed to discuss are several citations to Supreme Court opinions laying out the plenary powers of the President over foreign policy provided in pages 6-13.
http://www.morgancunningham.net/downloads/article_29.pdf
Of particular note is Footnote 4:
For an excellent historical discussion supporting the President's central responsibility for the conduct of foreign affairs over the power of Congress, see H. Jefferson Powell, The Founders and the President's Authority Over Foreign Affairs, 40 Wm. & Mary L. Rev. 1471 (1999).
Moreover, the Vesting Clause provides that "[t]he executive Power shall be vested in a President of the United States of America." U.S. Const. art. II, § 1.
In sharp contrast, Article I, Section I states only that: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” (emphasis added)
The Supreme Court has found this
difference important:
The difference between the grant of legislative power under article 1 to Congress which is
limited to powers therein enumerated, and the more general grant of the executive power to the
President under article 2, is significant. . . .[T]he executive power is given in general terms
strengthened by specific terms where emphasis is appropriate, and limited by direct expressions
where limitation is needed. . . .
* * * *
[A]rticle 2 grants to the President the executive power of the government . . . [and] the provisions of the second section of article 2, which blend action by the legislative branch, or by part of it, in the work of the executive, are limitations to be strictly construed, and not to be extended by implication. . . .
Myers v. United States, 272 U.S. 52, 128, 163-64 (1926).
bart flounders...
ReplyDeleteSeveral courts have held that conducting intelligence gathering is one of the President's specific duties as the sole executive and CiC. No courts have held that Congress shares this power.
That'd be because here in reality "regulating" does not actually mean "conducting".
and,
Congress unconstitutionally delegates to a special court the power to direct which targets against which the President may or may not conduct intelligence gathering under limitations set forth by Congress in FISA.
Boy, you know that 4th amendment limitation sure is a bugger, eh?
Y'know bart, you expend so much energy defending an undefined, almost completely undisclosed and oversightless program so I wonder:
Pretending for the moment you actually have a healthy respect for the Rule of Law and the Constitutions best interests in heart and mind, how exactly would you go about ensuring the 4th amendment would not be infringed upon for a so-called "(everybody could be a) terrorist surveillance program"?