The Right Coast

December 19, 2005
Orin Kerr on the legality of the NSA program
By Tom Smith

Orin Kerr's post, which some of us have been anticipating eagerly, is up, and it is well worth reading.

It is erudite, but in my view, not all that persuasive. But then, I am no constitutional lawyer, and a lot of constitutional law strikes me as of a sort any reasonable President would, let's say, take with a grain of salt. So, for example, any President who would fail to take some action truly necessary to defend the country because the most plausible reading, on balance, of an O'Connor opinion, says he may not, deserves to be impeached, and then probably shot. If the constitution is a suicide pact, we should find a more dignified way to go than according to O'Connor's instructions.

But that's another story. I find everything Orin says sensible enough; it is the conclusions he tentatively draws that seem unpersuasive to me. So here is part of what he says about the applicability of the Authorization to use military force (AUMF) that Congress passed:

So does the AUMF authorize the surveillance? As often happens when you're trying to draw guidance from an O'Connor opinion, it's not entirely clear. Under her opinion, the key question is whether the act is "so fundamental and accepted an incident to war" that it falls within the authorization. But that depends on the level of generality you chose to use to define "the act." Is "the act" spying on the enemy? In that case, perhaps it is a fundamental incident to war. Or is "the act" conducting U.S. domestic surveillance of U.S. citizens? In that case, the answer is no, it's not a fundamental incident to war.

In the end, my best sense is that the AUMF doesn't extend to this. I have three reasons. First, O'Connor's opinion says the following about detention for interrogation: "Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized." It seems to me that surveillance and wiretapping is pretty similar to interrogation: the point of both is getting information about your enemy. Second, it doesn't seem like wiretapping counts as a "use of force." If you read the text of the AUMF, it doesn't seem to me that it authorizes wiretapping. Finally, note that Congress passed the Patriot Act about a month after passing the AUMF; if Congress had intended the AUMF to give the president wide authority to conduct domestic surveillance against Al Qaeda, I don't think they would have spent so much time amending FISA for terrorism investigations. So at bottom, I think the AUMF probably didn't authorize this, although the Hamdi case gives some colorable (if ultimately unpersuasive) arguments that it might.

An important way I think this analysis goes wrong is that it fails to understand the role that communication between al Qaeda and its agents inside the US plays in this war. Against an enemy that uses suicide bombers and unconventional weapons, these communications and their interception is not merely spying, wiretapping, or surveillance. As strange as it sounds, it is quite literally true that these agents are themselves weapons, literally part of the bombs, the guidance systems of weapons directed against the US population. Intercepting these messages is more like dismantling the bomb itself than it is like conventional spying. It would be extremely odd to say that the President did not under the authorization have the authority to order an Army team into a private US residence where he had reason to believe a giant bomb was about to go off. If this bomb had been planted there by enemy agents, doing so would be a direct exercise of his authority under the Congressional resolution, wouldn't it? Yet this is really a closer analogy to what attempting to intercept communications between enemy agents/suicide bombers inside the US and their controllers outside the US is. In other words, it seems to me it is very closely and directly tied to the authorization to use force, much more directly than would be the case if this were a conventional war.

A separate point beyond the scope of this discussion is how much weight a President should even give to a plurality Supreme Court decision that bears only indirectly on the issue, as to the scope of the commander in chief's powers in a time of war, rather than using his own judgment to interpret the authorization himself. My view respecting such a Supreme Court opinion is, not much.

Second, Orin has a very interesting but I think unpersuasive discussion of the claim that the President has inherent power to order the NSA action. He writes

I have been unable to find any caselaw in support of this argument[of inherent presidental power to order the NSA actions]. Further, the argument has no support from the cases cited in the government's brief. In all three of those cases — Butenko, Truong, and Keith - the Courts were talking about whether the President's interest in conducting foreign intelligence monitoring creates an exception to the Warrant Requirement of the Fourth Amendment. In other words, the issue in those case was whether the Constitution bars warrantless surveillance absent Congressional action, not whether Congressional prohibitons in this area cannot bind the Executive branch.

From this point, which I take as correct for argument's sake, Orin moves to the conclusion that the Constitution probably does not give the President any such inherent power. But of course, that does not follow at all. It only follows that those cases are not direct authority for that proposition. The question still remains whether Congress could, even if it wanted to, occupy the entire field of what the President can do in the way of surveillanceof suspected enemy agents in the US, or better put, interruption of the terrorist command and control network -- because the terrorist agents inside the US are not spies, but actual illegal combatants. Two points here. First, some magnificently bearded law professor from Georgetown, whose name I did not catch, made a very good point on one of the cable news shows that there is language in the FISA that expressly states it is not intended to impinge on any powers the President may have by virtue of his constitutional powers to conduct surveillance. If that is true, it certainly seems significant. Not least, it would seem to be a recognition by Congress that such powers exist. And well they might, since I gather surveillance directly under presidential power had been taking place for at least 30 years before FISA. But even apart from that, in a war where foreign masters send orders and vital information to actual combatants inside the US, persons who are actually engaged in planning acts of war against the US, not merely spies, it would seem to be a very odd reading of the Presidents' war powers that he could not take action to identify who those agents in the US are, and then move to stop them. It just seems highly doubtful to me Congress could take so much away from the President's power to defend the country as commander in chief. It is very like saying all bombing targets must be approved by the Federal Bombing Agency, as provided for by the Bombing Act of 2005. Why would Congress's attempts to tell the President how to wage war in this respect, that is, identifying the agents and plans of the enemy, be any different than attempting to tell him to invade through Italy rather than France? There are lots of areas where the President cannot act without Congressional authorization, but surely this is not one of them. How could it be, if he is really the "commander"?

Finally, litigation between the President and Congress on war powers is relatively rare, as these sorts of disputes are often "political questions" the Court wisely enough stays out of. So the absence of case law to the effect the President has such power is hardly conclusive. The President has past actions by other Presidents to look to, AG opinions and the counsel of his own lawyers. It is rather stark to put it this way, but in my humble view at least, if Congress passes a law the President in good faith believes unconstitutionally impinges on his power to defend the country in a time of war, of course he should disobey it, and let Congress attempt to enforce the law in court. Perhaps that view is considered extreme in con law circles, but I hope not in the White House. I am not saying Orin is one of these, but plenty of post Vietnam and Watergate lawyers think the Presidency is just a kind of independent agency under the ultimate control of Congress. It ain't.

But no doubt there will be more debate about this, with better contributions made by wiser heads than I. Read Orin's post.

AND what about this caselaw?