Abuse of Power Posted by Morton H. Halperin

Last week as the administration scrambled to justify its sweeping NSA electronic surveillance directed at Americans, it engaged in behavior which led the usually compliant Fourth Circuit Court of Appeals to reject a government motion to transfer Jose Padilla from military to civilian custody.   

The panel led my conservative Judge Michale Luttig concluded that the government's unexplained and inexplicable actions "have given rise to at least an appearance that the purpose of these actions may be to avoid consideration of our decisions by the Supreme Court." panel opinion, at page 6).

Only by reading the governments most extensive defense of the constitutionality of its actions in conducting warrantless electronic surveillance can one understand why the administration is in fact desperate to avoid Supreme Court review of the Fourth Circuit's decision in the Padilla case.

The government's defense of the NSA surveillance rests upon two principal arguments.

First, in the words of the Moscella Letter, "under Article II of the Constitution, including in his capacity as Commander in Chief, the President has the responsibility to protect the Nation from further [terrorist] attacks, and the Constitution gives him all necessary authority to fulfill that duty," including "the authority to order warrantless foreign intelligence surveillance within the United States." (Moscella Letter, at p. 2)

Second, the government argues that the President's constitutional authority to direct the NSA to conduct this surveillance is supplemented by statutory authority, namely the congressional resolution authorizing the use of force passed on September 18,2001 (AUMF).

The claim of inherent authority might have some plausibility had Congress not acted so decisively to prohibit warrantless surveillance in the United States when it enacted FISA. The second claim -- that Congress authorized the President to conduct the type of surveillance recently disclosed by the New York Times, which is so broad that even American citizens in the US are fair game for wiretapping -- is utterly specious.

The arguments regarding the constitutional and statuary claims are intertwined. As Justice Jackson explained in his concurring opinion in the 1952 Steel Seizure case, the scope of the President's constitutional authority is affected by what Congress has done. The President's power is greatest when he acts with the support of Congress and is weakest when he acts directly contrary to its will.

I believe that the record is clear that Congress intended to prohibit warrantless intercepts in the United States. Because the constitutional argument can only be evaluated in light of the statutory claim, I deal with the latter first.

To understand why the assertion that Congress authorized the recently-disclosed NSA program is untenable, we must recall the legal and political backdrop to Congress's enactment of FISA in 1978. I bring to this task not only a review of the history but also a deep personal involvement--both as the target of a warrantless wiretap during the Nixon Administration and as a representative of the ACLU during enactment of FISA.

When it first considered wiretaps in the Olmsted case in 1928, the Supreme Court concluded that they were not covered by the Fourth Amendment. It was only in 1967 that the Court held in Katz that the Fourth Amendment did apply to wiretaps. But a much-cited footnote in Katz raised for the first time the possibility that the warrant requirement of the Fourth Amendment might not apply when national security is involved: "Whether safeguards other than prior authorization by a magistrate would satisfy the Fourth Amendment in a situation involving the national security is a question not presented by this case," the Court observed.

In 1972, the Court provided a partial answer to the question left open in Katz, holding in the Keith case that a warrant is required for wiretaps in domestic national security cases. But it expressed no view as to whether a warrant would be required with respect to activities of foreign powers or their agents. In fact the Supreme Court has never squarely confronted this question.

After Keith was handed down, the public began to learn of the extent of warrantless surveillance and other activities of intelligence and law enforcement agencies that many considered inappropriate. Congress created special investigating committees which issued reports, President Ford appointed a commission to investigate improper activities, and the press reported abuses by intelligence agencies. As a result of one such account, based on a leak, I learned that my home telephone had been tapped without a warrant for 21 months. I filed a lawsuit challenging the surveillance and sued the phone company and unknown FBI agents as well as senior officials of the Nixon Administration. Other suits challenging warrantless wiretaps were also filed. In this uncertain legal environment, AT&T, then the monopoly phone company, and some FBI agents were hesitant to conduct warrantless wiretaps.

In this setting the Ford Administration came to the Congress seeking enactment of what became FISA to provide for the granting of warrants to conduct wiretaps by a special court operating under different standards when a foreign power or its agents were involved. As Kate Martin of the Center for National Security Studies (CNSS) has detailed in a recent CNSS memorandum to Interested Persons, the question of whether the President would retain authority to conduct warrantless wiretaps was a key issue in the legislative debate over FISA. In enacting FISA, Congress dealt with this issue with the greatest of care, striking a careful and considered balance between imperative national security claims and our national commitment to basic liberties.

First, Congress insisted on removing from a draft of the FISA statute a provision proposed by the Ford Administration that would have left open the possibility that the President could continue to conduct warrantless wiretaps. Second, it repealed the section of a 1968 law on criminal wiretaps that had explicitly stated that that law was not intended to limit the President's power in national security cases. Of crucial relevance to the administration’s claim that its conduct is supported by legal authority other than FISA, the Act went on affirmatively to provide that the criminal wiretap statute (known as Title III) and FISA itself "shall be the exclusive means by which electronic surveillance ... may be conducted." Further, Congress made it a crime to conduct electronic surveillance under cover of law except as authorized. It provided an affirmative defense for government officials only if the surveillance was conducted pursuant to a warrant from a court.

Congress carefully considered whether the President needed power to conduct surveillances in certain emergency situations. It concluded that there were two such situations—and granted the President the authority he needed to deal with both. One was when it was necessary to begin a surveillance immediately. Congress authorized the Executive to initiate a warrantless surveillance as long as it sought a warrant within 48 hours (later amended to 72 hours). In addition, Congress considered the question whether the President needed additional power to conduct electronic surveillance in war time and expressly provided that the President could conduct warrantless surveillance for 15 days after a declaration of war.

In doing so, as Joe Onek of the Open Society Institute has pointed out, Congress rejected a House provision that provided for a longer period during which a war time president could conduct warrantless wiretaps. The conference report made clear that Congress expected the President to come to the Congress if he needed additional authority during a war.

This legislative history makes it clear beyond any reasonable doubt that Congress provided that only an explicit amendment of FISA could authorize warrantless wiretaps beyond 72 hours in peacetime or 15 days after a declaration of war. (It is true, as the Moscella Letter argues, that the section of FISA creating the crime of wiretapping under color of law used the qualifying phrase "except as authorized by statute" rather than, say, “except as authorized by FISA and Title III.” The government argues that this language means that Congress could authorize warrantless wiretaps in another statute. That Congress intended to FISA to provide the sole authority for presidential wiretaps is, as noted, stated in precise language elsewhere in the statute and there is nothing to suggest that Congress intended to alter that by the language of FISA’s criminal provision.)

Seeking to surmount the legal barriers that FISA erected against unfettered recourse to warrantless surveillance within the United States, the administration has argued that Congress in effect amended FISA because its authorization to use force in response to the 9/11 attacks (AUMF) included a grant of authority to the President to conduct such surveillance if he concluded that it was essential to combating al Qaeda. Neither the text nor the legislative history of the AUMF supports this claim.

The brief resolution only authorizes 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, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

The Bush Administration's contention that, in authorizing the use of force against the perpetrators of 9/11, Congress authorized electronic surveillance relies on the 2004 Supreme Court decision in Hamdi v. Rumsfeld . The petitioner in the Hamdi case, an American citizen, had been captured on the battlefield in Afghanistan and was then brought to the United States, where he was detained in a military facility as an "unlawful enemy combatant." The administration rightly asserts that, in Hamdi, the Supreme Court concluded that the AUMF included authorization to detain Hamdi to prevent him from returning to the battlefield in Afghanistan because such a detention is "a fundamental incident of waging war" and therefore can be reasonably said to have been authorized by Congress in the AUMF.

The government goes on to argue that "communications intelligence targeted at the enemy" is also a "fundamental incident of waging war." This is doubtless true when it comes to surveillance on the battlefield. But it strains logic and, more important, the delicate system of checks and balances that defines our constitutional democracy to suggest that conducting warrantless electronic surveillance in the United States--surveillance that captures the conversations of American citizens--is likewise a fundamental incident of war. Congress certainly intended no such thing. Former Senator Tom Daschle, who was majority leader of the Senate when Congress passed the AUMF, reports that the administration at the last minute sought to get a reference to activities in the United States into the resolution and that Congress refused. I suspect that the government fears, with good reason, that if the Supreme Court takes the Padilla case it will issue a decision that will provide a framework for determining what the AUMF did authorize—and thereby making clear that Congress did not authorize the recently disclosed NSA surveillance program.

Moreover, even if Congress believes that electronic surveillance in the United States was a necessary part of the war it had just authorized against al Qaeda, it had no reason to authorize a new electronic surveillance program since it had already provided for a procedure for the President to conduct warrantless searches for 15 days and then return to Congress if he needed additional authority.

Thus, I think a review of the legislative history of FISA and the AUMF makes clear that Congress intended to require the President to use FISA to conduct electronic surveillance in the United States and did not in the AUMF authorize the recently-disclosed NSA program.

As Justice Jackson observed in his influential concurring opinion in the Steel Seizure case: "When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system."

Notably, in the case that gave rise to Jackson's framework for assessing the constitutionality of presidential action, the Supreme Court held that the President's constitutional powers did not give him the right to seize steel mills even though we were at war in Korea and the President asserted that his action was necessary to support our war effort.

Under the framework enunciated by Justice Jackson and repeatedly applied since then, to survive constitutional scrutiny, presidential measures that flout congressional will must derive from the President's "own constitutional powers minus any constitutional powers of Congress over the matter." Only by disabling Congress from acting in the matter--in effect, by claiming that Congress exceeded its constitutional authority when it enacted FISA--can the Administration's flagrant violations of the law be sustained. Even the Bush Administration has not made such an extravagant claim.

Of course, the President has some inherent authorities deriving from the Constitution, including his powers as Commander in Chief of the armed forces. As Jackson's framework suggests, Congress does not have the power to limit some of these powers, but under our constitutional system Congress can limit others by establishing an alternative procedure for addressing the same issues addressed by Executive measures. Since, as already noted, Congress has not only legislated an alternative means to conduct electronic surveillance of Americans in the United States but has sought to prevent the President from conducting warrantless searches, we must ask whether the President nonetheless retains exclusive constitutional authority to conduct such searches.

No court has decided a case with a holding squarely on point. As the government notes, four Circuit Court opinions have held that the President has inherent authority to conduct warrantless searches in the United States when agents of a foreign power are the targets. However, as the FISA district court noted in a 2002 en banc opinion, all of these cases were decided before FISA was enacted and hence are simply not on point. The FISA Appeals Court in the same year did, as the government notes, "take for granted" that the President has such authority but it provided no analysis and its actual holding in this case did not depend on this assumption.

When Executive action threatens or tramples individual rights in the name of national security, the courts have been most reluctant to recognize unlimited and unchecked presidential power. As Justice O'Connor wrote last year in the very Hamdi opinion on which the government now relies:

We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens. Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake. It was the central judgment of the Framers of the Constitution that, within our political scheme, the separation of governmental powers into three coordinate branches is essential to the preservation of liberty. The war power is a power to wage war successfully, and thus it permits the harnessing of the entire energies of the people in a supreme cooperative effort to preserve the nation. But even the war power does not remove constitutional limitations safeguarding essential liberties.

Justice O’Connor’s reminder that, even (indeed, especially) when the nation confronts grave threats to its security, all three branches of government must be involved in shaping our national response provides the proper point of departure for fashioning a response to the NSA program reported by the New York Times. If the government needed additional surveillance powers to deal with the terrorist threat, the President should have come to the Congress seeking an amended to FISA. The argument that he could not do so without revealing sensitive intelligence information is specious. When Congress first considered the need for FISA and when it subsequently amended FISA on several occasions, including in its enactment of the Patriot Act, it did so in part on the basis of secret information—and Congress kept its secrets. Congress also showed great sensitivity to the needs of the intelligence agencies in providing for a flexible standard for determining when surveillance is needed and by creating a special court to hear the government’s requests for warrants on an expedited basis.

Also specious is the claim that the administration had to bypass FISA’s carefully crafted procedures for obtaining warrants because the Congress that enacted FISA did not have today’s terrorist threat in mind. From the start FISA provided for surveillance of suspected international terrorists. When Congress amended FISA in the Patriot Act, it gave the President the additional authority to combat terrorism that he requested. If more authority is needed—and if the Administration makes a reasonable case why it is needed—Congress is likely to be willing to grant it that authority. That Congress can be trusted to deliberate these questions in strictest confidence has long been demonstrated.

Why then did the President not go to the Congress? Perhaps it is because, while responding to the needs of the intelligence agencies, Congress has always insisted that surveillance in the United States requires probable cause to believe that the target of the surveillance is an agent of a foreign power and, the case of terrorism, that the person is engaged in terrorist acts or preparation for such acts. I suspect that the current NSA program violates these principles and that this is the reason the President did not come to the Congress. If that is not correct then the President should be able to get any additional authority he may need. In any event Congress should insist that the post-9/11 NSA surveillance program be adjusted to meet the probable cause standard now in FISA before it even considers whether to approve new procedures.

Comments

[Libby Sosume]

But you are talking about pre-9/11! That was the pre-9/11 Supreme Court and the pre-9/11 Congress. 9/11 changes everything. In a post-9/11 world, nothing pre-9/11 can be relied upon as controlling law or precedent.

All kidding aside, your article is excellent, well written, and easily understood by us legal dummies. Thank you.

[Richard A. Carter]

Thank you for your insight and clarity in this debate. It has by now become quite clear that the Bush administration takes a Schmittian view of U.S. sovereignty, in that, the essence of sovereignty (against the 'neutralizers and depoliticizers') is that it "is the highest, legally independent, underived power". "The Prince is not bound by the law as he seeks to 'protect and save' the realm; even as the legal order is suspendend, the state remains." The concept of 'moral empire' (Us v. Them) is invoked in a "state of exception", whereby "laws" (especially universal ones)are viewed as undermining the state. Post 9/11, the states constitutional laws become what the 'ruler' declares is necessary in the 'state of exception.' What is most troubling is that Ms. Sosume's previous comments (jokingly!) speaks volumes about how a very large portion of the American citizenry view these affairs.

[Jeff Younger]

As I with my previous replies on this issue, I grant the statutory evidence you present. But by counterplea, I maintain that the acts of the Administration were legal and right in themselves.

…the administration has argued that Congress in effect amended FISA because its authorization to use force in response to the 9/11 attacks (AUMF) included a grant of authority to the President to conduct such surveillance if he concluded that it was essential to combating al Qaeda. Neither the text nor the legislative history of the AUMF supports this claim. The brief resolution only authorizes 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, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

This is absurd. The plain language of the AUMF provides for "all necessary and appropriate force." You later argue that

The government goes on to argue that "communications intelligence targeted at the enemy" is also a "fundamental incident of waging war." This is doubtless true when it comes to surveillance on the battlefield. But it strains logic and, more important, the delicate system of checks and balances that defines our constitutional democracy to suggest that conducting warrantless electronic surveillance in the United States--surveillance that captures the conversations of American citizens--is likewise a fundamental incident of war. Congress certainly intended no such thing.

Mr. Halperin, you fail to grasp the essential nature of this war: illegal combatants, perfidiously disguised as civilians, enter the country to conduct sabotage and military operations. I feel very sure the Supreme Court will understand that the US mainland is the battlefield even if you cannot. Those deaths on 9/11 didn't occur on some foreign battlefield. You present a rather craven argument sir.

Moreover, even if Congress believes that electronic surveillance in the United States was a necessary part of the war it had just authorized against al Qaeda, it had no reason to authorize a new electronic surveillance program since it had already provided for a procedure for the President to conduct warrantless searches for 15 days and then return to Congress if he needed additional authority.

9/11 wasn't a reason, Mr. Halperin? Really, this is ridiculous on it face. Congress had a reason, and they authorized "all necessary and appropriate force."

Since, as already noted, Congress has not only legislated an alternative means to conduct electronic surveillance of Americans in the United States but has sought to prevent the President from conducting warrantless searches, we must ask whether the President nonetheless retains exclusive constitutional authority to conduct such searches.

Apparently, the Congress thinks the President has such Constitutional authority because the AUMF states

Whereas the President has authority under the Constitution to take action in order to deter and prevent acts of international terrorism against the United States, as Congress recognized in the joint resolution on Authorization for Use of Military Force (Public Law 107–40)

Moreover, PL 107-40 states only that the "Nothing in this resolution supercedes any requirement of the War Powers Resolution." Congress certainly didn’t intend to supersede the War Powers Resolution, but Congress may very well have intended to supersede FISA after 9/11, Daschle not withstanding.

I'm not an attorney, so if I can so easily mince your arguments, think what a skilled constitutional lawyer will do in the Supreme Court. I think your hopes will soon be Dasched.

[Richard A. Carter]

Mr. Younger, your comments border on the "absurd." I suppose that if Mr. Bush saw fit to define "all necessary and appropriate force" to mean "rounding-up" thousands of American citizens without "due-process" that would be within his rights under the AUMF also. Where do you draw the line sir? You need to read some history about Weimar Germany and its aftermath to see what a "police-state" does to the freedoms that you are supposedly trying to protect.

[J Thomas]

"You need to read some history about Weimar Germany and its aftermath to see what a "police-state" does to the freedoms that you are supposedly trying to protect."

Richard Carter, you have missed the essential point here. We are at war, and so our "freedoms" are in abeyance for the duration. Until there are no more terrorists who might threaten the USA, the Constitution is cancelled. 9/11 changed everything.

This is basicly Bush's argument, and there are private citizens who repeat it for him.

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