The New York Times reports:
A federal judge in California said Wednesday that the wiretapping law established by Congress was the “exclusive” means for the president to eavesdrop on Americans, and he rejected the government’s claim that the president’s constitutional authority as commander in chief trumped that law.
I haven’t read the opinion, but I think I agree.
What follows is mostly legal gobbledygook. Read on if you’re into that sort of thing.
I have become convinced — and in fact became convinced quite some time ago — that FISA is indeed the exclusive means for wiretapping, at least as far as the statutory interpretation aspect goes. (I have never researched the “inherent authority” arguments thoroughly enough to have a confident opinion about them, but I suspect that argument is not a winner. Justice Jackson’s Youngstown concurrence seems to be treated nowadays as good law, and if Congress has clearly spoken, the president would have a hard time getting around it.)
This represents a change in my thinking. I used to think the AUMF provided a plausible exception to FISA. I summarized my argument here:
The result, in my view, turns largely on whether the AUMF set forth an exception to the exclusivity provision of FISA, due to the fact that surveillance is necessarily incidental to the use of force (and thus distinguishable from the particular form of military commissions at issue in the Hamdan case). (In my view, the resolution of this issue resolves the “inherent authority” argument as well, because it tells us which of the Youngstown categories governs the analysis of the President’s actions. John Hinderaker would probably kill me for accepting those categories as the law, but I believe that the current court will treat it as such.)
But then commenter Crust argued:
I’ve always found the AUMF argument unsatisfying, since FISA explicitly provides even for a formal declaration of war. Basically, in wartime the same rules apply with some modification (a longer period for retroactive warrants).
When I read that, I found myself convinced. If FISA says it still applies even after a formal declaration of war, how can you argue that the AUMF provided an implicit exception to FISA?
I’m open to arguments to the contrary, but that’s how it seems to me.