Imbalance of Power II Posted by Spencer Boyer

The comments on my last posting have raised interesting points concerning the President’s war powers, which I believe merit a second, related posting.

I recently served as the War Powers Initiative director for an organization based at Georgetown University. The Initiative assembled a bipartisan committee of experts with high-level executive, legislative, and judicial branch experience, including a former U.S. senator, CIA director, U.S. Appeals Court chief judge, legal advisor to the State Department, and secretary of the army, along with numerous war powers academics and scholars. The co-chairs were former U.S. representatives – one Democrat, one Republican. Our report on U.S. war powers touched on numerous points, but focused largely on how Congress needed to perform its mandated war powers duties more diligently in order for the constitutional checks and balances envisioned by the Framers to function properly.

The current controversy regarding domestic surveillance brings the debate over the proper roles of the President and Congress in the war powers arena to the forefront. Contrary to my point of view, it has been suggested that the administration’s domestic spying program is indeed authorized by Congress’s 2001 use of force authorization, which notes the President’s authority under the Constitution to take action to deter and prevent international terrorism against the U.S. It is true that the President, as Commander in Chief, can act to respond to an actual or imminent attack against the U.S. without consulting Congress and has responsibility for day-to-day tactical decision in the conduct of war. The Framers had experienced the inefficiencies of command by committee during the Revolutionary War’s early years, and did not want to repeat the mistake.

However, the Framers clearly intended Congress to exercise its collective judgment in authorizing force – absent a specific, imminent threat when there is no time to consult Congress – and did not give the President the constitutional power to ignore the terms of a congressional authorization for the use of force. As Justice Paterson said in Bas v. Tingy, construing the statutory authority for America’s first war against a foreign state, “[a]s far as congress tolerated and authorised the war on our part, so far may we proceed in hostile operations.”

As noted in my earlier posting, the 2001 authorization gives the President authority to use “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.” As also noted, Attorney General Alberto Gonzales claims that warrantless domestic surveillance by the National Security Agency did not violate the Foreign Intelligence Surveillance Act because FISA only requires a warrant “unless otherwise authorized by statute,” and that the 2001 authorization gave the administration such permission.

However, recent news reports point to evidence of a widespread data mining scheme, which collected information from American citizens who had nothing to do with the attacks of September 11. This would clearly be outside of what Congress authorized the President to do in its authorization, and, given that the surveillance program has been going on for years, could hardly be viewed as a response to an actual or imminent attack for which there was no time to consult Congress.

In addition, arguments that Congress was consulted and had input on the administration’s domestic spying program are weak. Less than 10 of our 535 members of Congress were briefed about the domestic spying program, and were prohibited from discussing the briefing with anyone. This is not the role the Framers would have envisioned for Congress in such matters.

As Suzanne Spaulding mentioned in her Washington Post Outlook piece on Sunday, “Sandra Day O’Connor rejected the administration’s claim of unchecked power in the 2004 Hamdi case, in which the government argued that the courts could not review the legality of enemy combatant detentions. She wrote, '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… enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.' ”

Instead of putting forth dubious constitutional arguments that trample on Congress’s established war powers, the administration should admit that it was wrong to ignore the prohibitions of FISA. If the President thought there were something wrong with the law, he should have worked with Congress to repair it. Disregarding it should not have been an option. If the checks and balances envisioned by the Framers are to mean anything, Congress and the courts must review this matter and the administration must be held accountable.

Comments

[Lane Brody]

"Congress's established war powers" is a rather interesting phrase but other than the power to declare war there are no such constitutional powers.

The consitutional power of the executive through the role of commander in chief is apparently not clearly understood by many today. The role of the executive in spying predates the Constitution and is inherent to the power of the executive (John Jay Federalist 64). The power of commander in chief is greater than that inherent power.

It is not at all clear that the 1978 FISA act is constitutional. President Carter argued it was not. Like the War Powers Act, which no President or Attorney General has ever agreed was constitutional, congress often passes laws that restrict the power of the executive when it is not all clear that they are acting constitutionally.

It does seem the Administration broke the law but untill the exact facts are known this may or not be the case. Indeed if it was only calls where one party was not in the US it might fall under the 4th amend. border search exception in addition to the executives inherent powers.

The whole notion of checks and balances vis a vis the constitutional role of the commander in chief is absurd. Hamilton in the Federalist Papers basically says the powers are those of a king and without limit other than the exception to actually declaring war. After the Revolutionary War the framers did not want war by committee.

Lane Brody

[Dan Kervick]

It is not at all clear that the 1978 FISA act is constitutional. President Carter argued it was not.

Lane, which argument or statment by Carter do you have in mind? It is the Carter administration that both sought and then signed the FISA act. Perhaps you are alluding to statements by Carter's AG Gfiffin Bell. Bell opined that the act, as written and passed, did not infringe on the President's authorities under the constitution.

[J Thomas]

It would certainly be interesting if the War Powers Act is unconstitutional, and the President doesn't get any special authority until Congress finds somebody to declare war on.

[Jeff Younger]

Dan, President Carter issued executive order #12139 on May 23rd, 1979 which said, "pursuant to Section 102(a)(1) of the Foreign Intelligence Surveillance Act of 1978, the attorney general is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order." That would violate FISA according to the liberal view, and presumably your view.

Dan, in addition Clinton's Deputy Attorney-General testified before Congress in 1994 saying, "The Department of Justice believes -- and the case law supports -- that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes and that the president may, as he has done, delegate this authority to the attorney general." She later noted that, "It's important to understand that the rules and methodology for criminal searches are inconsistent with the collection of foreign intelligence and would unduly frustrate the president in carrying out his foreign intelligence responsibilities." That would violate FISA according to the liberal view, and presumably your view.

It is unambiguously clear that this power was accepted during the Cold War. Dan, it looks like you have one set of laws for Democrats and another for Republicans. That's dumb.

[Dan Kervick]

Jeff,

I don't understand how Carter's EO #12139 could be construed as violating FISA, according to either the liberal view or any other view. All of the components of the executive order are explicitly issued "pursuant to" some section of FISA, and seem to be straightforward, good faith applications of the law. The paragraph you cite is a case in point. That paragraph in its entirety reads:

Pursuant to Section 102(a)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1802(a)), the Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order, but only if the Attorney General makes the certifications required by that Section.

Section 102(a)(1) of FISA, to which Cater refers, reads as follows:

Notwithstanding 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 periods of up to one year if the Attorney General certifies in writing under oath that—
(A) the electronic surveillance is solely directed at—
(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title; or
(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (a)(1), (2), or (3) of this title;

This section deals with warrantless surveillance of communications used exclusively between and among foreign powers, or from property or premises of under control of a foreign power - i.e. embassies. Thus this part of the order does not deal with surveillance of US citizens and is unrelated to the criticisms raised by liberals and libertarians following the recent revelations.

The whole language of the executive order seems to bend over backward to express Carter's determination to comply with the law. For example, in the following passages:

None of the above officials, nor anyone officially acting in that capacity, may exercise the authority to make the above certifications, unless that official has been appointed by the President with the advice and consent of the Senate.

1-104. Section 2-202 of Executive Order No. 12036 (set out under section 401 of this title) is amended by inserting the following at the end of that section: "Any electronic surveillance, as defined in the Foreign Intelligence Surveillance Act of 1978, shall be conducted in accordance with that Act as well as this Order.".

1-105. Section 2-203 of Executive Order No. 12036 (set out under section 401 of this title) is amended by inserting the following at the end of that section: "Any monitoring which constitutes electronic surveillance as defined in the Foreign Intelligence Surveillance Act of 1978 shall be conducted in accordance with that Act as well as this Order.".

The Clinton case is more interesting. In 1994, as you note, the Clinton administration argued that it had the inherent authority, supported by some case law, to conduct warrantless physical searches for foreign intelligence purposes. Whether or not this legal claim was justified, such searches would not have been a violation of FISA, since FISA was at that time silent on the topic of physical searches. The Clinton administrations was here claiming a power about which the statutory law was ambiguous or silent. Critics of the Bush administration, on the other hand, are asserting that Bush has clearly violated an explicit statutory prohibition.

More importantly, the Clinton administration sought a legislative remedy for the ambiguous legal situation. In 1995, FISA was amended to explicitly permit certain types of physical searches for foreign intelligence purposes.

I think it is important to bear in mind that the debate about the Bush administrations actions is a debate about surveillance of United States citizens. I think you are just wrong, Jeff, to argue that the powers the administration is claiming for itself were unambiguously accepted during the Cold War. Nor are Bush's claims of the same kind as the claims you cite that were made by the Carter and Clinton administrations. FISA, and our whole tradition, draw a strong line between what the President can do to foreigners and what he can do to citizens. The recent news reports suggest that the Bush surveillance is of a kind for which the administration could not have obtained a court order, and is thus contrary to FISA is some way. It is reported to be a very broad surveillance program, which includes as its targets citizens for whom there is no probable cause, or even strong suspicion that they are involved in terrorism or espionage. Bush wants the power to conduct domestic fishing expeditions to find out where the terrorists are or might be.

Recall that when it was reported that the Bush administration had conducted electronic surveillance of foreign governments, there was some criticism. But it was nothing like the criticism Bush is facing in this particular case. That is because Americans, across a very broad political spectrum, understand that there is a huge distinction between spying on foreigners and spying on US citizens, the latter of whom have special constitutional protections. When Americans learn that all of their emails and phone calls abroad may have been the objects of executive branch surveillance, it gives them the creeps. And they understand that this is something new.

Bush's people, it appears to me, want to claim that we no longer possess a reasonable expectation of privacy in any of our foreign communications - none of us do - and that the President's inherent powers trump 4th amendment protections, despite explicit statutory claims to the contrary.

[Jeff Younger]

Dan, you are way off base, and you have not done your homework adequately.

The Carter executive order is one of the authorities cited by Bush. Under your interpretation, Bush couldn't possibly be in violation of FISA because he is acting on the same order.

Bush wants the power to conduct domestic fishing expeditions to find out where the terrorists are or might be.

Wow. A President fighting an unconventional war wants to find out where the terrorists are. That might help him prevent an attack. I guess only a liberal would be shocked about that.

Just to show you how wrong you are, and how poorly you've conducted your legal research, I refer you to 50 USC 1801 (a) [from your own citation of the law] which reads,

(a) Foreign power” means—
(1) a foreign government or any component thereof, whether or not recognized by the United States;
(2) a faction of a foreign nation or nations, not substantially composed of United States persons;
(3) an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments;
(4) a group engaged in international terrorism or activities in preparation therefor;
(5) a foreign-based political organization, not substantially composed of United States persons; or
(6) an entity that is directed and controlled by a foreign government or governments.

Note part (4). You are completely wrong when you write

This section deals with warrantless surveillance of communications used exclusively between and among foreign powers, or from property or premises of under control of a foreign power - i.e. embassies. Thus this part of the order does not deal with surveillance of US citizens and is unrelated to the criticisms raised by liberals and libertarians following the recent revelations.

50 USC 1801 makes clear that terrorists and "foreign agents" are covered under the warrantless wiretap provisions. Did you just fail to examine the relevant definitions? That is more characteristic of J Thomas than you, Dan. I hope you won’t start screaming about only 1% of the electorate understanding this stuff. ;-)

As for the "fishing expeditions," welcome to modern networking. Buy a big fat pipe, put a router on it and you too can capture all the IP traffic you can handle. There is no reasonable expectation of privacy in unencrypted email traffic because anyone with a router (i.e. millions of people) can see it. Regarding the telephonic eavesdropping, the NYT says,

"Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible "dirty numbers" linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications."

I see no evidence of widespread "fishing expeditions." The small number of people involved indicates a focused program.

Most of the criticism of Bush is from the familiar, reflexive radical lefties. I'll stake the next elections on you being dead wrong about this.

Democrats are the new Whigs. It's sad.

[Jeff Younger]

I entered a tag incorrectly. The last quote from the NYT should have stopped right before this:

I see no evidence of widespread "fishing expeditions." The small number of people involved indicates a focused program.

Sorry for the confusion.

[Jeff Younger]

Arggh. This is not my (late) night for HTML. I referenced 1801(a)(4)-(6) which came in with my cut and paste. Here is a corrected post. Sorry, for this silliness Dan.
----------

Dan, you are way off base, and you have not done your homework adequately.

The Carter executive order is one of the authorities cited by Bush. Under your interpretation, Bush couldn't possibly be in violation of FISA because he is acting on the same order.

Bush wants the power to conduct domestic fishing expeditions to find out where the terrorists are or might be.

Wow. A President fighting an unconventional war wants to find out where the terrorists are. That might help him prevent an attack. I guess only a liberal would be shocked about that.

Just to show you how wrong you are, and how poorly you've conducted your legal research, I refer you to 50 USC 1801 (a) [from your own citation of the law] which reads,

(a) Foreign power” means—
(1) a foreign government or any component thereof, whether or not recognized by the United States;
(2) a faction of a foreign nation or nations, not substantially composed of United States persons;
(3) an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments;

Note part (2). You are completely wrong when you write

This section deals with warrantless surveillance of communications used exclusively between and among foreign powers, or from property or premises of under control of a foreign power - i.e. embassies. Thus this part of the order does not deal with surveillance of US citizens and is unrelated to the criticisms raised by liberals and libertarians following the recent revelations.

50 USC 1801 makes clear that terrorists and "foreign agents" are covered under the warrantless wiretap provisions. Did you just fail to examine the relevant definitions? That is more characteristic of J Thomas than you, Dan. I hope you won’t start screaming about only 1% of the electorate understanding this stuff. ;-)

As for the "fishing expeditions," welcome to modern networking. Buy a big fat pipe, put a router on it and you too can capture all the IP traffic you can handle. There is no reasonable expectation of privacy in unencrypted email traffic because anyone with a router (i.e. millions of people) can see it. Regarding the telephonic eavesdropping, the NYT says,

Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible "dirty numbers" linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications.

I see no evidence of widespread "fishing expeditions." The small number of people involved indicates a focused program.

Most of the criticism of Bush is from the familiar, reflexive radical lefties. I'll stake the next elections on you being dead wrong about this.

Democrats are the new Whigs. It's sad.

[Dan Kervick]

The Carter executive order is one of the authorities cited by Bush. Under your interpretation, Bush couldn't possibly be in violation of FISA because he is acting on the same order.

This is a non-sequitor Jeff. The fact that a President cites a previous executive order as a legal justification for his action does not mean that it is an adequate legal justification for that action. People reach for spurious legal justifications all the time by citing poorly analogous precedents. Now, my interpretation of Carter's executive order is that it is legal, since it is cribbed almost entirely from the FISA law, and doesn't order anything that is not explicitly permitted by that law. This interpretation comes from reading the entire text of Carter's order. And if my understanding of Bush's ordered actions is accurate, his own orders are prohibited by FISA. So if Bush has sought to justify his orders by appeal to Carter's executive order, he is just wrong.

Wow. A President fighting an unconventional war wants to find out where the terrorists are. That might help him prevent an attack. I guess only a liberal would be shocked about that.

No, I am not shocked. But I do think that our Constitutional traditions and laws place some significant restrictions on the President's power to find out where the terrorists are. A prosecutor in a city might like to know where all the drug dealers are, or where all the mafia hit men are, or where all the violent parents are. But that prosecutor does not have the right to enter every domicile in the city with a team of drug-sniffing dogs and listening devices. Let's grant the premise that the war on terrorism qualifies as a genuine war, Constitutionally speaking. It might then be the President's view that his powers as commander in chief inherently include the power to do anything at all that he judges useful in the effort to win the war. But I don't believe that is a sound reading of our Constitutional traditions, the intent of the framers, or to the laws and court decisions that have given further substance to these preambles.

You are right in your point about the scope of Section 102(a)(i), and I was wrong. Since "foreign powers" is defined to include members of groups engaged in international terrorism, and it is possible that such terrorists might be US citizens, then that section of the executive order does potentially cover US citizens.

But I think the point about the Bush administration exceeding its statutory authority, and the difference in this regard from Carter's order, remains. The searches authorized by 102(a)(i) are permissible only if the Attorney General certifies in writing under oath that:

(A) the electronic surveillance is solely directed at—
(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title; or
(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (a)(1), (2), or (3) of this title;

I assume it is subsection (i) which is in play here. But we are given to understand from the news reports that the surveillance being conducted is not limited to the "contents of communications transmitted by means of communications used exclusively between or among foreign powers", even when "foreign powers" is understood according to the definitions in the statute to include members of international terrorist groups. Rather the objects of the surveillance are reported to include communications that are not at all used exclusively by foreign powers, no matter how inclusively the latter term might be used.

[doc]

i’m so disgusted with all the penny-ante arguments I can’t see straight and i swore I would leave off ‘til after new year’s…

this country was deliberately deceived into invading a sovereign nation by the current administration. since then upward of 30,000 iraqis and over 2,000 american sons and daughters have died; the WH has condemned torture whilst secretly setting up european torture chambers; the WH has outed an CIA operative whilst simultaneously disclaiming that it was at high tea at the time and shouldn’t someone ‘get’ the reporters who leaked that info?; up until Murtha the WH characterized anyone critical of our occupation of iraq as “unpatriotic”; the WH had the unmitigated gall to float the suggestion that that 2004 US elections be cancelled; bush the younger whispered his secret plans to invade iraq to prince bandar bin sultan before bothering to talk to Colin Powell; Halliburton; oh, remember bush the younger allowing several members of the bin laden family to leave the US right after 9/11; wiretapping willy nilly; son of patriot act…

keerist. all the above and much much more is documented and we let this sad sack stay in office why? there’s a war on?

absolute bloody bullsh*t.

i’ll say it again. the US has not declared on iraq. we invaded the country and, barely, occupy it. we were, and are not, in any danger from iraq, imminent or in an opium smoker’s pipe dream.

ANY argument based on “being at war” is baseless and therefore illegal.

the only question worth pursuing is when the hell congress is going to grow a set and impeach this power mongering fool.

er…happy new year.

[J Thomas]

Here's my letter to my republican congressman:

----
Dear Representative Davis,

I sent you an email concerning the surveillance controversy, and you sent me a letter in response in which you repeated Bush's claims and said there might be an investigation.

I have an extremely serious concern about one of Bush's claims, namely this one:

"Moreover, and more fundamentally, the Bush Administration has also argued that the president's power as Commander in Chief as a basis for the power to authorize these wiretaps."

Note that FISA allows immediate surveillance with only the requirement that the surveillance be reported within three days. There can be no issue here about the procedure taking too long for a limited number of al Qaeda suspects.

The alternative appears to be a claim that the president can do surveillance against terrorist suspects without reporting to anybody.

A moment's thought should show that this is utterly unacceptable. Remember that a long time ago Nixon did surveillance against the Democrats on the argument that they would provide information about international communism. Suppose that this administration claim stands and suppose that we get a Democrat for president in 2008. Do you have any reason to think he would not do surveillance on Tom Davis, a Congressman (or by that time maybe a Senator)? If it's legal for him to pretend he might get information on al Qaeda by tapping your lines, and he doesn't have to tell anybody -- would you trust a random Democrat with that power? He might not bug just Republicans, he might bug his own people to check up on them and make sure they stay loyal.

This argument says the president has the legal power to bug congressmen any time he feels like it, provided he's willing to (secretly) lie that he thinks they might be contacting al qaeda suspects.

I say that if Congress gives the president that power, Congress might as well fold up and quit. They will no longer be able to do their jobs, they will become utterly useless.

This argument must not stand. Unless Congress shows the president that Congress is part of a system of checks and balances, a co-equal arm of government, then Congress will become merely an honorary society.

I say if the president spies on Tom Davis, he needs to tell somebody in the Courts or Congress that he's doing it and why he thinks Tom Davis is connected to al Qaeda. This is not something that can be left entirely to the president's sense of fair play. This is not an issue between political parties, it is an issue between Congress and the Administration.

I hope you agree that administration surveillance must be accountable to some independent authority who has time to check on it, at least after the fact but within a reasonable time -- say three days.

High regards,

[william seazarr]

Clearly the framers did not intend that the executive should have the option of rendering the law void by simply refusing to recognize any limit it placed upon its
actions--refusing to accept the authority of the legislature. But apparently this is what george is doing. And if he is doing so then one could argue he thereby is
acting contrary to his oath to defend the constitution--- the authority of the legislature being fundmental to the whole damn system. A good case can be made that he commits high crimes that are impeachable.
Of course, congress gave him the pretext of the patriot act to take his course
--set up the framework to allow his abuse. Congress must reverse its mistake before george may gain enough power to intimidate congress. george is the executive and could disappear a Senator or two if he gains the exclusive loyalty of the FBI and the military as he has of the NSA. How far george would go is unpredictable and that makes him really dangerous.
george should be tested: congress should pass a law that makes it explicitly illegal to do what he is doing with wiretaps--- and then see how george reacts.
if he claims executive privilege and continues on we will pretty much know he is a tyrant currently in the making and impeachment proceedings should begin immediately.

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