The Right Coast

December 29, 2005
More on the NSA program and Article II
By Tom Smith

Orin Kerr has another interesting post on the NSA controversy. It is difficult to tell exactly what his position is, since he is responding to the Turner piece in the Wall Street Journal. And since Turner was being rather over-cautious, I thought, a reaction to it in turns tends to be somewhat circuitous.

But since I have no reputation as a constitutional scholar to lose, I can afford to be much more direct. So let me make a few points. First, I think Orin is wrong to characterize the "nine words" in Sealed Case 02-001 acknowledging the existence of an inherent Article II power to engage in surveillance of foreign powers in wartime, as dicta. What it is more precisely is an assumption the court makes in its argument. That's quite a big difference. Dicta (it seems to me) is something the court says that does not bear on its ruling or the reasoning it uses to get to its ruling. But an assumption is part of the reasoning the court uses to get to its ruling. So I don't think it can be dismissed as dicta.

Second, it strikes me that there is an important distinction between limitations imposed on searches by the Fourth Amendment and limits on the President's Article II powers as commander in chief during wartime. In many discussions, including Orin's, these appear to me to be frequently muddled. I would like to be corrected here if I am wrong, but it strikes me as just wrong, and very counter-intuitive, to think of the Fourth Amendment as limiting the President's Article II wartime powers at all. If this were the case, it would mean something like the President's powers to wage war against those US citizens who had decided to fight for the enemy, had to be conducted within something like the proscriptions of constitutional criminal procedure. Surely, that can't be right. This is not to say the President's Article II powers are unlimited. That is what, I take it, the Youngstown Steel case is about. But if FISA really does subject Article II wartime powers to the procedural rigamarole in FISA, then it would be unconstitutional. But this very issue is one the FISA appeals court discusses in some detail in Sealed Case. It says, reasonably enough it seems to me, that FISA should be interpreted so as not to be unconstitutional. (Which, BTW, is another reason for thinking that the court's assumption that inherent Article II powers to surveil is not merely dicta.) So where that leaves us, it seems to me, is fairly clear. The President did not violate FISA, as that statute has been interpreted by the highest court other than the Supreme Court that has has the power to interpret it, and indeed specializes in interpreting it, so presumably is due some deference for that, and thus, for the President's action to be illegal, it would have to have exceeded his Article II powers. That I take it, is the position of David Cole, which he explained somewhere or other, and which I am too lazy to link to, and which is too annoying to deserve the link, in any event. While it is logically possible that the NSA program exceeded the Article II powers, it strikes me as a very implausible claim. We are not talking here about nationalizing the steel industry, or interring all Muslims or something of that sort. We are talking about data-mining calls and emails which have an elevated probability of being connected to terrorism, because they are within a network anchored by phone numbers or email addresses found in al Qaeda phones or computers, or because of charateristics of the calls or emails. If anyone thinks (as Cole apparently does) that doing that is outside the President's Article II powers, they have a ludicrously narrow conception of those powers, a conception simply inconsistent with the President's discharge of his duty to prevent future catastrophic terrorist attacks on the people of the United States. That alone suggests it is an incorrect conception of those powers, a fact even the Supreme Court is likely to notice.

All the arguments about AUMF strike me icing on the cake. But icing is still good, so why not. The issue of FISA's constitutionality does not have to arise if the President has authorization by statute to conduct the surveillance, and so the question is does AUMF in its authorization of military force include the authorization to conduct surveillance. Well, it would certainly be odd if it did not. Presumably, the President could order fighter planes to shoot down an airliner headed for the Capitol building. One would think he should also be able to attempt to intercept phone calls about the plot, so he can stop it before the plane is commandeered. It would probably be impossible to come up with a war where spying on the enemy did not play a major role. And what the President has told us, plausibly enough, is that the NSA program could not be conducted effectively if he had to run it through the FISA process, which, if AUMF was statutory authorization, he wasn't legally required to do, anyway. So he was supposed to undermine the effectiveness of the NSA program by running it before the FISA court for what, his health?

Perhaps the Democrats should not be attacked too much for this latest absurdity. Let them march off the cliff. I speak now as a partisan, not a distinguished, if unconstitutional, legal scholar. My guess is the reaction of three quarters of non-crazy Americans to the whole NSA thing is -- "We can do that? Cool."