The Right Coast

January 15, 2006
Experts' letter on NSA program
By Tom Smith

Here is a letter, styled the 'experts' letter' on the NSA program, signed by a number of prominent legal academics and former public servants. The average signatory is more left than right, with a number of the usual suspects, Larry Tribe, David Cole, Kathleen Sullivan, etc., but also Richard Epstein, well known libertarian and not a Democrat (but not really a Republican either) as far as I know, Bill Sessions, and few others I have not heard of. An impressive list.

It would be interesting to know who actually wrote the letter. When I was in practice, we needed a letter from a famous constitutional scholar that an egregious piece of special interest legislation our firm was lobbying for was in fact constitutional. So we drafted the letter, paid ten large to a scholar who is also one of the signatories of the NSA letter, and voila, had ourselves a weighty opinion. To be fair, the signatory's contract provided that he/she had to be paid whatever his/her opinion turned out to be, so you can imagine our relief when he/she turned out to agree with our client's position. He/she did have some suggestions for improving the punctuation in our letter, and those were much appreciated. And in fact, the law was subsequently challenged, and its constitutionality was upheld, if memory serves. It was a very bad, but constitutional piece of legislation, as so often they are.

The NSA letter, as legal work, it is of merchantable quality; only one typo (the double period at the bottom of page 8) that I caught. However, I would not say it as good as the average, and certainly not as the sum, of the legal talent represented by the list of signatories. As I say, it would be interesting to know where this group of scholars gets their legal work done. Ten will get you ten thousand it ain't by Ronald Dworkin, who is probably in Zermat or some such place this time of year.

But to the substance! I am not going to repeat the letter's arguments here, so if you earnestly wish to follow my points, for whatever mysterious reasons you may have, I urge you to read the letter, which is well worth it, and at less than ten pages, is far more endurable than listening to ten minutes of Judiciary committee questioning. And, if you read the letter, you will also be far ahead of many learned commentators on this controversy.

A general point first. This letter is not really a memo advising the Attorney General or some other official in the Executive on the legality of the NSA program. What it actually is, is a short brief, written from the perspective of some party who wants or needs to argue that the NSA program is illegal. So, if you end up in a federal court because of the perfectly innocent radiological powder experiments you have been doing in your basement, and which were unwise enough to discuss with your pals pursuing their religious studies in Pakistan, this letter would be a good place to start. No attempt is made in the letter to make the best arguments on both sides, and then suggest what is the stronger position. One may indeed wonder what the purpose of the letter is. The letter is addressed to Members of Congress, so I suppose it is meant to influence the politics of the upcoming hearings on the NSA program. And I think it is really more a political than a legal document. But that's fair enough.

The gist of the letter is that the NSA program, which appears to involve domestic wiretapping for foreign intelligence purposes, violates FISA, and so is illegal. The letter argues that the position taken by DOJ, that both Article II and the AUMF authorize the NSA program, is (nearly) indefensible.

My first reaction is that the argument that Congress intended to prohibit all domestic wiretapping for foreign intelligence purposes, even in time of war, except as authorized by and consistent with the procedures in FISA, is, as this letter makes it, fairly persuasive, as far as it goes. One would have to study the FISA statute more, of course, but the letter makes some sense on this score.

One of the things this does, of course, is highlight what a profoundly stupid law FISA is, even with the Patriot Act amendments. So, for example, apparently FISA allows domestic wiretapping for wartime foreign intelligence purposes, if and only if the Executive gets special permission under FISA within 15 days of the declaration of said war. Could FISA really be that stupid? Just to take a wild and crazy law school hypo, what if, just suppose, the CIA discovers that some US citizens are conspiring with some evil Nazis to blow up the Statue of Liberty, and they want to tap the phones of the domestic conspirators, not to prosecute anyone, but just to stop the plot. But, the war has been going on for 30 days. And no one in the Executive thought to ask permission to do warrantless wiretapping during the first 15 days of the war. In their defense, these were some kinda busy 15 days. Suppose further, there is some technical reason why getting a warrant would be impractical, such as the CIA doesn't know the names of the domestic saboteurs, or their phone numbers -- they're going to rely on some new technology to listen into the phone calls of every cell phone in O'Mally's Bar (these are Irish terrorists), where the evil doers are thought to hang out. If I understand FISA correctly, that's just too bad, so sad. Good bye, Lady Liberty. Here's a relevant passage from the letter:

As noted above, Congress has comprehensively regulated all electronic surveillance in the United States, and authorizes such surveillance only pursuant to specific statutes designated
as the “exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted.” 18 U.S.C. § 2511(2)(f) (emphasis added). Moreover, FISA specifically addresses the question of domestic wiretapping during wartime. In a provision entitled “Authorization during time of war,” FISA dictates that “[n]otwithstanding any other law, the President, through the Attorney General, may authorize
electronic surveillance without a court order under this subchapter to acquire foreign intelligence
information for a period not to exceed fifteen calendar days following a declaration of war by the Congress.” 50 U.S.C. § 1811 (emphasis added). Thus, even where Congress has declared war—a more formal step than an authorization such as the AUMF—the law limits warrantless wiretapping to the first fifteen days of the conflict. Congress explained that if the President needed further warrantless surveillance during wartime, the fifteen days would be sufficient for 4
Congress to consider and enact further authorization.3 Rather than follow this course, the President acted unilaterally and secretly in contravention of FISA’s terms. The DOJ letter
remarkably does not even mention FISA’s fifteen-day war provision, which directly refutes the President’s asserted “implied” authority.

On its face, you have to admit this 15 day provision does indeed suggest that in FISA, Congress did not intend the President to have any implied authority to conduct spying operations under his war powers, if it involved doing so domestically. It is also an astonishingly dumb provision, even for Congress.

Maybe this is not really what FISA provides. But assuming it is, this leads to the question, which frankly puzzles me, of whether Congress in 1978 can limit the conferral of war powers to the President by Congress in 2001. It strikes me as not the same problem as trying to reconcile two statutes, one specific and one broad, where, of course, the more specific statute trumps, an argument invoked with at least superficial plausibility in the letter. Do you construe a declaration of war, or an "authorization to use military force," as you would the Poultry Health and Safety Act of 1981? It strikes me that this might be an instance in which the broader authorization trumps the narrower statute. "War" and "use of force" are broad terms, but they are also legally important terms. If they are trumped by every piece of legislation that is more specific, there is not going to be much left of them.

Be that as it may, it certainly does raise the question of whether this dimension of FISA is constitutional. Under the logic of the letter, the President could not engage in warrantless wiretapping of US persons in direct contact with foreign combantant enemies during wartime. If a US person were standing on the Capitol Mall, cell phone in hand, talking down a jetliner in so it could plough into the Capitol Building, nobody, the FBI, CIA, Air Force, nobody, could listen into that conversation (without a warrant) in an effort to stop the attack, unless, of course, the President thought to ask for such authority during the first 15 days of the war, and perhaps not even then -- perhaps the attack would have to occur within the first 15 days of the war! In all seriousness I ask, can that possibly be right?

Here I should identify myself as something of a Posnerian pragmatist in these matters and say, I think we really don't want to let an act of profound Congressional stupidity in 1978 (a good year for stupidity) stop the President from defending the country in ways it seems obvious, from what you might call the common sense view of people who don't want to die, he should be able to use.

This set of concerns leads quickly to the letter's reliance on Youngstown Steel, and in particular Justice Jackson's opinion, which it is now customary not to identify as a mere concurrence. (If I may digress momentarily, I must say I find it a little annoying that the Jackson concurrence in Youngstown is, according to the letter, supposed to rule the day, even though that case was about nationalizing steel mills, not FISA, and was only a concurrence, while the assumption that the President does have Article II powers to wiretap for foreign intelligence purposes under FISA (where "foreign intelligence purposes" includes such things as trying to stop Islamic nutcases from blowing us up) in Sealed Case 02-001 is dismissed as mere dicta in footnote 11 of the letter. But IT'S NOT DICTA. Sorry. I can see it may be necessary to explain in detail why it is not dicta, but that is the subject for a future post.)

Apparently, we are supposed to conclude, on the basis of Youngstown, that Congress has the power to occupy the whole field of what would otherwise be the President's power to act domestically in wartime to defend the country. To repeat myself, you just really have to ask, can this be true? If and when Congress passes a law that makes defense of the country by the President in wartime in some important respect impossible or highly impractical, is that just the end of the argument? If so, the title for the book about it could be Our Foolish Constitution.

I am coming to the view that it may be necessary to face the hard fact that, as shocking as it may seem, a concurrence by a not particularly distinguished Justice in a fifty year old case about steel mills may not be able to guide us through this strange new war against the let's bring back the Caliphate crowd. Working on just my amateurish understanding of these profundities, I am hoping that it is reasonable to suppose that a concurring opinion in a not exactly on point Supreme Court case, is not the law of the land, at least not to the degree that we have to die for it. If lots of people are going to die, I think we should hold out for a majority opinion, maybe even 6-3. We may have to wait for Professor Dworkin to opine on that one, however. Supposing, in any event, that we are not stuck with Jackson in Youngstown, one would think one could come up with better guidance than, the President can act to defend the country in wartime, even domestically, unless Congress has said he cannot, in the relevant respect. The sublime idiocy of the 15 day requirement is as good an illustration as one could ask for about why Congress is not so good at regulating how wars should be fought, not to imply that they are particularly skilled at other modes of regulation, just that they are notably bad in this respect, as I believe the Framers foresaw they would be.

Much more could be said here, but as I am not, as in a former life, being paid to draft letters to be signed by famous constitutional scholars, I will wrap this up. What bothers me most about the letter is that it is a transparently political demonstration intended to undermine the President's entirely laudable efforts to prevent evil and crazy people from murdering us in large numbers. Even though he is a Republican, I believe Bush should be given some credit for doing this. How to defend us from threats that would deeply frighten even our most sanguine scholars if they became learned about them, presents some very difficult questions. Questions to which, "let's get really serious about FISA" -- a law that was a disaster from the moment it was passed, and which contributed materially to the deaths of thousands of innocent people on 9/11, and which may not be done working its mischief yet -- is a singularly unpromising approach. What constitutional scholars should be thinking about is not, how can we use the revelations about the NSA program to undermine the current administration, the national security consequences of which are not our department, but rather, how can we defend ourselves against the threat of modern, high-tech, loosely networked, ideologically fanatical, and utterly ruthless terrorism, but still preserve our liberties? When some defendant is paying you to come up with just the arguments that some evidence against him cannot be admitted, that is one thing. But when you are writing an open letter to Congress, you can consider whatever you want, presumably, and question, well, what exactly is the President supposed to do? still rather hangs in the air -- unless this is just a political exercise, which I rather suspect it is. One thing the "expert's letter" does succeed in doing is persuading one that the answer "just use the FISA process" is no answer at all. This is a law that should be repealed or fundamentally revised in short order, assuming we are all around long enough to do that.

(Just one more thing -- the expert's argument that there were no "special needs" under FISA strikes me as implausible and passed over rather quickly, as in, 'ignore the man behind the curtain,' so perhaps more on that later.)