It’s a complicated area, but I’m becoming more and more convinced that the president’s secret surveillance program was (and remains) legal, based on the facts we know to date.
Here is the letter released by the Department of Justice today, defending the program as authorized by the President’s inherent power, supplemented by a grant of authority under the AUMF. I rely on that letter and the other authorities cited in this post to reach my conclusion; I’m certainly no independent legal expert on these issues. I’m open to having any flaws in my analysis exposed by my readers.
The AUMF issue appears pretty clear to me. Two days ago, I pointed you to a buried nugget in a Los Angeles Times story stating that Cass Sunstein and several other unnamed legal experts believe the AUMF provided the President with the necessary authority to conduct the disputed wiretaps without a warrant. I elaborated yesterday with a link to Sunstein’s post on the issue, in which he noted that the AUMF implicitly authorized surveillance as a necessary incident to the authorization to use force:
The reason is that surveillance, including wiretapping, is reasonably believed to be an incident of the use of force. It standardly occurs during war.
This, to me, is a far more common-sense reading than that given by Orin Kerr in his post I linked to three days ago. Kerr analogized wiretapping to “indefinite detention” for the purpose of interrogation during the course of a war, an analogy I find inapt, and which deals with due process issues rather than the scope of the AUMF. The Hamdi decision stated that the AUMF authorized limited detentions for the purposes of interrogation, as an incident to the authorization to use force. This is a far more apt analogy.
Second, Kerr said that “it doesn’t seem like wiretapping counts as a ‘use of force.'” But the question is not whether it is a use of force itself, but whether it is necessarily incidental to the use of force, and I think Sunstein convincingly argues that it is.
Third, Kerr points to Congress’s efforts amending FISA for terrorism investigations as an implicit suggestion that it didn’t intend the AUMF “to give the president wide authority to conduct domestic surveillance against Al Qaeda.” This seems odd. Kerr is trying to read Congressional intent for one statute by looking at Congressional action with respect to another statute. Nor does it make much sense. DoJ argues in today’s letter that FISA specifically exempts surveillance that is otherwise authorized by statute. Given the good argument that the AUMF authorizes the surveillance in question, Congress’s actions in amending FISA do not necessarily say anything about the scope of the AUMF.
Bottom line: when you fight an enemy, you conduct surveillance on the enemy. The AUMF authorized force on the Taliban and Al Qaeda, so Bush has the right to monitor Al Qaeda communications, including international communications with people in the U.S., under the AUMF.
Sunstein’s position made even more sense when he articulated it on Hewitt’s show tonight. I’ll put up a link to the transcript when it’s available. [UPDATE: Here it is.]
The issue of the president’s inherent power is a separate but very related issue. Sunstein points out in his post that if the AUMF authorizes the wiretaps, no further authorization is necessary. Also, the extent of a president’s authority is intimately related to Congress’s will:
In Youngstown (the Steel Seizures Cases) [Justice] Jackson argued that issues involving the executive branch’s authority to act could be meaningfully distinguished depending upon whether Congress had expressly or impliedly authorized the act, whether it was silent on the matter, or whether its expressed or implied will was incompatible with the act. Cases in the first category reduce to the question of whether the federal government as a whole has the constitutional power to act, because Congress and the President are acting in concert. Cases falling into the second and third categories present issues of so-called inherent presidential powers. Of these, the third category presents the most vexing questions, because a President who asserts his authority to act even in the face of congressional opposition will always be in some conflict with the otherwise pervasive constitutional system of checks and balances.
If this case falls into the first or second category, then the wiretaps are clearly within the President’s authority. As lefty Marty Lederman says on the Balkinization web site:
Indeed, I do not deny that the President has the power as Commander-in-Chief to engage in at least some forms of warrantless surveillance against the enemy in the absence of statutory prohibition. That would be a Youngstown “Category II” case, and the conduct would probably be constitutional to the extent it did not violate the Fourth Amendment.
If Sunstein is right about the AUMF authorizing the President’s actions, then this is a “Category I” situation, and the only issue is the Fourth Amendment, which, Orin Kerr convincingly argued, probably presents no obstacle. [UPDATE: John Hinderaker provides additional authority bolstering this conclusion.] Sunstein noted on the radio tonight that all lower courts to consider the issue have indicated that the President has inherent authority to conduct international wiretaps under these circumstances. As the DoJ argues in today’s letter, the Supreme Court has suggested otherwise in the case of purely domestic wiretaps (which is not what we have here, based on available evidence), but has reserved judgment on the issue of inherent authority to conduct international wiretaps — the question addressed by the lower courts and which is at issue here.
Even if Sunstein is wrong, and this is a “Category III” situation, that does not end the analysis, it merely begins it. Sunstein called this a difficult and unresolved question, but said it’s one that it is unlikely to be litigated, and in any event is likely a moot point given the AUMF authorization.
P.S. John Hinderaker has finally finished his analysis of the issue, and it’s even longer than mine. It is certainly more thorough and based on more hours of research time, so I commend it to you.
I have yet to see a compelling case, based on rational argument and case law, that the President’s actions are illegal. Mostly, what I hear is a bunch of squawking along the lines of the L.A. Times‘s editors emotional outpouring the other day. As Cass Sunstein said tonight on Hewitt’s show (I’m paraphrasing; exact quote provided when available), libertarian suspicion of government surveillance is generally a good thing, but knee-jerk reactions like we have seen over the past few days don’t contribute to the public’s understanding of what is, at bottom, a program whose legality ought to be fairly noncontroversial. [UPDATE: See P.P.S. below for the exact quote.]
P.P.S. Sunstein also answered a question asked by many leftists in recent days: why did Bush not simply seek a change in the law? The answer: if he believed that the law intruded on his inherent authority in certain situations, he has a duty to protect the powers of the Presidency, as a matter of principle. [UPDATE: His exact quote: “I don’t think any president would relinquish the argument that the Congress lacks the authority to prevent him from acting in a way that protects national security, by engaging in foreign surveillance under the specific circumstances of post-9/11.”] Keep in mind that Sunstein is a self-described liberal; his statements on these issues thus carry a certain authority lacking in the arguments of those of us whose legal analysis matches their political leanings.
P.P.S. The transcript of Hugh’s interview with Sunstein is now available, here. Sunstein’s actual quote:
[W]e’re seeing a kind of libertarian panic a little bit, where what seems at first glance . . . this might be proved wrong . . . but where what seems at first glance a pretty modest program is being described as a kind of universal wiretapping, and also being described as depending on a wild claim of presidential authority, which the president, to his credit, has not made any such wild claim. The claims are actually fairly modest, and not unconventional.
. . . .
[T]here’s, I think, a kind of bipartisan…in the American culture, including the media, streak that is very nervous about intruding on telephone calls and e-mails. And that, in many ways, is healthy. But it can create a misunderstanding of a particular situation.