The Right Coast

January 22, 2006
DOJ brief on NSA program
By Tom Smith

The DOJ memo on legal authorities for the NSA program is out. If you are at all interested in the legal issues raised by the program, you ought to read it. A fortiori, if you are going to appear on the media as an 'expert' on this issue. So far, I have read just Part I, on the President's Article II authority, and his authority under AUMF, and have just started Part II, on FISA.

Part I is very good. It is very well written, clearly and persuasively argued, and marshals a quite impressive mountain of authorities in support of its position. I want to blog on it in more detail later, so this is just some off the cuff reactions.

My prediction is that critics of Bush and the NSA program will try to avoid the arguments and authorities in this memo as best they can. Part I seems to me to be in slam-dunk territory, which means it could garner only 4 votes against it in the current court. Just some tidbits. There is a long historical tradition of Presidents authorizing warrantless surveillance for foreign intelligence purposes, and ample Supreme Court precedent supporting same. These powers are ample even in peacetime. They are even stronger in wartime. This is wartime. You have the AUMF, you even have NATO article 5. Nice touch. Does sound like wartime. They would seem to be stronger still, when the enemy has agents inside the US, has attacked on US soil, has announced its intention to attack again on US soil, and uses electronic communications as part of its plan to wage war against the US, and effecting those plans. Indeed, to invade the US. Does the president have the power to repel invasions using force in its usual and traditional modes? Does he, hell. (My words.)

I especially liked the use of the Youngstown case. The memo argues, convincingly I would say, that the AUMF puts the President in Zone Whatever, the zone where the President is at the zenith of his powers under Article II. I had not thought of that, but it makes sense. The Famous Professors letter against the NSA program argued that FISA put the President in the zone where the President was most circumscribed. But the DOJ argument makes more sense. If Congress tells the President, go get the guys who did this, and stop them from doing it again, and use as much force as necessary, that sounds like a broad authorization to use Article II powers as much as necessary to get the job done. It seems silly and technical to argue that this broad and urgent authorization in a time of national emergency, would not trump any Youngstown power-narrowing effect, produced by FISA. You see, the Famous Professor's argument is that FISA has a kind of penumbra under Youngstown that constrains Presidential powers to their narrowest scope. DOJ says that AUMF dispells any penumbra from FISA, and indeed puts the President in the zone of maximum and authority, where Congress has empowered him to go do what has to be done. That does indeed seem to be what AUMF does. I speak metaphorically here, and probably unclearly, but, to the fair minded, I think it will be clear that much damage has been done to the FISA- plus- Youngstown- equals- a- very- constrained- President argument. I am not that sold on Jackson's concurrence in Youngstown anyway. I dislike 'zones', which are usually just an attempt to lend false precision to sketchy analysis. But still, I would not be surprized if critics start harping on Youngstown now, it being such a two edged sword.

I will just add that Part I of the DOJ letter is fun to read. Without referring to opposing arguments floating around, it does a good job demolishing them. That is always fun. It helps, of course, to have so have so much authority on your side. These arguments against presidential power in national security seemed so much more persuasive when the President was bombing third world fanatics and spying on us, instead of our getting bombed by them, and our spying on them.

Part II on FISA is not going to be as much fun. FISA appears indeed to be a complex and deeply misguided law, crafted at the recent nadir of American self-loathing (1978) by that nice man, friend of my family, but walking national security disaster, Frank Church. The argument is going to be, FISA does not stop the President from doing what is necessary to protect the country, but if it does, it is unconstitutional.

But don't worry about me. Just read the DOJ letter! It is a fine piece of work.