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This week's passage and enactment of the FISA amendments (H.R. 6304) was not without controversy (obviously), but I was particularly struck by an aspect of the story that's received remarkably little attention: Sen. Arlen Specter sponsored an amendment (S.Amdt.5059) to the particularly controversial grant of immunity to telecoms that had worked with NSA; under his amendment, such immunity would have been contingent upon a court's determination that the telecom's activities were "provided in connection with an intelligence activity that violated the Constitution of the United States."
What a spectacle: a United States Senator -- a former prosecutor and the senior Republican on the Senate Judiciary Committee, no less! -- effectively declared himself to be incapable of determining what the Constitution does and does not proscribe. (Of course, Senator Specter was not alone: 37 senators voted for his ill-conceived amendment.)
Specter's attempt to pass the buck on this constitutional question should disturb both proponents and critics of the NSA surveillance activities at issue. That said, and as I've noted previously, Senator Specter's approach to the issue of the constitutionality of NSA surveillance activities is but one example of his tendency to (1) punt controversial issues to the courts, yet (2) loudly chastise the courts for "denigrat[ing] ... congressional authority" when the politics winds suit the change in approach.
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Hey a question: Why is Obama silent on the FISA agreement (unless I missed something)? He has spoken out about Guantanamo, most recently in favor of the Supreme Court's decision this month allowing the detainees there to file habeas appeals. So he's not utterly unwilling to talk about difficult questions of law and national security. Is the problem this time that the deal is being styled as a bipartisan agreement, and he doesn't want to step on it by saying otherwise? Plus just not worth the political capital? Any other less obvious explanations, or thoughts about what he should do?
UPDATE: Obama just put out a statement calling the bill "a marked improvement over last year's Protect America Act." More:
"Under this compromise legislation, an important tool in the fight against terrorism will continue, but the President's illegal program of warrantless surveillance will be over. It restores FISA and existing criminal wiretap statutes as the exclusive means to conduct surveillance – making it clear that the President cannot circumvent the law and disregard the civil liberties of the American people. It also firmly re-establishes basic judicial oversight over all domestic surveillance in the future. It does, however, grant retroactive immunity, and I will work in the Senate to remove this provision so that we can seek full accountability for past offenses...
"It is not all that I would want. But given the legitimate threats we face, providing effective intelligence collection tools with appropriate safeguards is too important to delay..."
So yes, bipartisan agreement, best we can do for now. Etc.
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Dahlia, you ask with reference to the new FISA agreement: "Someone help me understand why it’s a good deal when one side gets everything it wants and the other side gets what it thought it had in the first place?"
Looking at this agreement, it seems to me that both sides got something, and both sides gave up something. Indeed, it looks like an ordinary civil-suit out-of-court settlement:
The Bush administration thought that its surveillance activities were lawful under the Constitution, the AUMG, and FISA itself, yet it agreed to bind itself to these new FISA procedures in order to eliminate the inter-branch equivalent of litigation risk. The president gave up discretion and gained certainty.
Similarly, Congress thought that its reading of FISA's applicability was the better one, yet it settled in order to eliminate the same "litigation risk." Congress got the president to commit to following these procedures, in order to maintain some degree of legislative and judicial involvement in the process.
Thus, in the end, both sides gave up something in the hopes of settling a dispute and reducing uncertainty.
Is it perfect? I suspect that neither side would say so. Is either party's compliance assured? No, because the president (Bush or his successors) may abandon the deal, or Congress (in this term or the future) may unilaterally amend the statute further.
But to say that the Bush administration "got everything it wants" and that Congress "got what it thought it had in the first place" is to wash a way a lot of the details and interests at stake.
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According to David, the Bush administration's past defense of surveillance outside of the FISA process involved "Rube Goldberg-esque theories of statutory interpretation."
Really? Looking back at the DoJ's January 2006 White Paper (pdf) on the subject, the arguments look pretty straightforward:
1. The president's inherent authority under Article II allows him, as executive and commander-in-chief, to disregard congressional regulation of those surveillance activities. (Pages 6-10)
2. The September 2001 AUMF authorized those activities, by authorizing the president "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001"; such surveillance activities are a well-recognized incident to such a war effort. (Pages 10-17)
3. FISA itself allows for the possibility of subsequent statutory grants of authority on the subject (Pages 17-28), and if that statutory provision is ambiguous, then the president should receive the benefit of the interpretative doubt because the canons of construction call for FISA to be interpreted in a manner consistent with Article II (see Point 1 above) and in harmony with other statutes (see Point 2 above) (Pages 28-36).
Now, David, let's call a spade a spade: Those are not complicated arguments. The Bush administration may be right or wrong on the merits (and I think I know where you stand on that point), but if those arguments are "Rube Goldberg-esque," then Rube Goldberg really has lost his edge.
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David, I had precisely the same reaction to the jubilant op-ed in the Washington Post today—the one that crowed about the “sensible balance” struck by lawmakers who, in order to “avert another end run around FISA,” have now made it “clear that all intelligence surveillance is governed by FISA.” Mr. President, as punishment for your decision to break the surveillance law and mislead others so they could assist you in breaking the surveillance law, we are demanding … nay, we are insisting ... that this time the law really is the law. Someone help me understand why it’s a good deal when one side gets everything it wants and the other side gets what it thought it had in the first place?
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Can the House really believe the new FISA bill means that it has reined the president in? The New York Times reports, "yes." And here's why:
Perhaps the most important concession that Democratic leaders claimed was an affirmation that the intelligence restrictions were the "exclusive" means for the executive branch to conduct wiretapping operations in terrorism and espionage cases. Speaker Nancy Pelosi had insisted on that element, and Democratic staff members asserted that the language would prevent Mr. Bush, or any future president, from circumventing the law. The proposal asserts "that the law is the exclusive authority and not the whim of the president of the United States," Ms. Pelosi said.
That was the New York Times, by the way. Not the Onion.
As everyone knows, the last version of FISA said it also was the exclusive means. In fact, it was that language that led so many to think the president's actions were plainly in violation of law, no matter what Rube Goldberg-esque theories of statutory interpretation the administration offered. So, how does immunizing that prior lawbreaking enable anyone to take seriously the claim that this new legislation is now super-duper exclusive?
Someone should ask the president whether he is now conceding that he has no constitutional authority to act in violation of this statute. And someone should ask whether he will commit to not issuing a signing statement asserting a reserved power to do what this exclusive legislation forbids. But, of course, even if he said "yes' to both questions, it would not matter. Presidents can no more bind themselves than they can bind their successors. What actually binds them is a combination of informal and formal checks, such as the specter of intensive congressional oversight, legal liability, or judicial review-checks that this bill diminishes.
Looking back at this whole affair, if this legislation passes, would you think this new statute is really super-duper exclusive, in fact, or more like kinda-sorta exclusive?
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I am confused. The New York Times first reports that John McCain now agrees with the Bush administration that the president has the constitutional power to disregard FISA. Now, today it publishes a story saying Bush is alarmed he'll lose the statutory authority Congress recently gave that permits him to get around the old FISA framework. But wait-I thought Bush said he could not be bound by legislation in this area in the first place, so great were his powers as commander in chief. So, why then is he worried about whether Congress does or does not renew the temporary legislation permitting him to get around FISA? Can't he just disregard FISA no matter what Congress does or does not do? And isn't that just the legal position that McCain was supposedly signing on to a couple of days ago?
Of course, one possibility is that the administration actually won't comply with FISA even if Congress fails to reauthorize the current Terrorist Surveillance Program. Sure, it says it will be required to do so, but that's just part of an effort to pressure Congress into granting new powers. When push comes to shove, the administration will do what it did when no one knew what it was up to: just defy the laws on the books by claiming preclusive constitutional powers. But let's assume the administration is serious when it says that if negotiations on the Hill fail to result in a reauthorization, they'll be stuck with the old regime. What has changed that now makes them feel so stuck?
Is it:
1) Lawyers within the Justice Department have rejected the argument that the Constitution gives the president the power to disregard FISA and also concluded that recent legislative developments have rendered illegitimate the controversial claim that the initial Authorization To Use Military Force from 2001 superseded the old FISA regime? If so, that's a big deal, and it would be good to know how this internal legal shift came about.
2) Lawyers for the telecoms have finally balked and are no longer willing to participate in a program that is based solely on the administration's claims of commander-in-chief override power or the AUMF-supersedes-it theory. If so, it would be good to know what has caused the telecom lawyers to feel obliged to say, "No."
3) The FISA court has basically made it clear that it will make even the old regime useless so long as the administration also relies on a parallel, supersecret non-FISA surveillance program that has not been separately approved by Congress, presumably by deeming even requests under FISA fatally tainted. If so, it would be nice to know just what theory of law the FISA court is using and why the Bush administration feels the need to rely on the FISA process for some things in the first place such that it would lose something significant if it lost access to the old regime.
4) The politics of the moment have changed now that the whole supposedly secret program has been made so public that the debate over its legal underpinnings has become a campaign issue. So, even though the administration believes it has the legal power to disregard FISA and the telecom lawyers would comply with requests to do so, it simply no longer feels it can act on what it believes to be correct understanding of the law as a practical matter. But if so, what is it about present politics that are now so different?
For what it's worth, (1), (3), and (4) all seem like weak explanations to me, but this being a state secret and all, I have no idea. What I am interested in is the underlying puzzle: On the one hand, the administration is claiming preclusive constitutional authority, and we are debating the extent to which the Republican nominee shares that same constitutional philosophy. On the other, the administration is bemoaning the fact that Congress is forcing it to comply with an outdated statutory framework. How can both things be true? And if both are, what is the dynamic that makes the administration feel unable to break a law that it believes it has the legal right to break and that it has disregarded in the past?
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The current Bush administration defense of its Terrorist Surveillance Program, known to some as the illegal domestic spying program, leans heavily for its legal justifiation on the Authorization To Use Military Force, which was passed right after 9/11. The argument is that the AUMF is a later-enacted, more specific measure, and that it therefore supersedes the more general and earlier adopted Foreign Intelligence Surveillance Act. By this means, presto, the AUMF authorized warrantless wiretapping consistent with the terms of that later-enacted statute. Many in Congress are already on record saying that they never intended the AUMF to have that consequence and that evidence of legislative intention has bolstered arguments by many opponents of the program that the administration's statutory claim is risible. But now this recent disclosure reinforces that judgment. It indicates that the Bush administration lawyers who were around when the AUMF was negotiated also did not think the AUMF had that consequence. Their initial theory, the new disclosure indicates, was that, even aside from their broad views about the president's power as commander in chief to override conflicting statutes, FISA itself contained an implied exception for the president to do what needed to be done. The AUMF argument, then, was something that the administration came up only with much later. But if neither the congressional leaders nor the Bush administration lawyers who actually negotiated the AUMF's passage thought that vaguely worded measure sufficed to provide authority for warrantless wiretapping, then what exactly is the reason to think that the best reading of that statute is the one that is now being pushed by the administration? After all, it's one thing to contend that a vague, later-enacted statute supersedes an earlier one that is clear. It's quite another to argue that a later-adopted interpretation of that same statute should supersede the original one.
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Eric writes, "The question was whether The Times went about making its decision [to reveal the Bush administration's violations of FISA] in a responsible way." Marty and David's responses (citing Eric Lichtblau's column) have devastated any suggestion to the contrary (at least to my satisfaction; Eric P. seems unconvinced). I see little to add to their very strong posts on that question.
But I think we do have to name the even more fundamental question: whether the Bush administration itself acted responsibly in keeping secret that same story. What was its legitimate justification in the first place for misleading the NYT into keeping that information secret for more than a year?
I'm afraid we are growing immune to just how outrageous and destructive it is, in a democracy, for the President to violate federal statutes in secret. Remember that much of what we know about the Bush administration's violations of statutes (and yes, I realize they claim not to be violating statutes) came first only because of leaks and news coverage. Incredibly, we still don't know the full extent of our government's illegal surveillance or illegal interrogations (and who knows what else)-despite Congress's failed efforts to get to the bottom of it. Congress instead resorted to enacting new legislation on both issues largely in the dark. Whether a President ever may legitimately act contrary to a statute is itself a controversial question. I believe the answer is yes, in extremely rare and limited circumstances (circumstances that clearly were not satisfied in the FISA or torture controversies). But how can it be faithful to our system of government for the President to act contrary to federal statutes in secret?!