Saturday, January 07, 2006

Nonpartisan Congressional Research Service says spying excuses don't fly

The report is available online, thanks to FAS. The report's great strength is its caution and thoroughness. The CRS is known for being non-partisan and cautious, and this is no exception. Here's an example, from the discussion of where intelligence-gathering powers originate:
Foreign intelligence collection is not among Congress’s powers enumerated in Article I of the Constitution, nor is it expressly mentioned in Article II as a responsibility of the President. Yet it is difficult to imagine that the Framers intended to reserve foreign intelligence collection to the states or to deny the authority to the federal government altogether. It is more likely that the power to collect intelligence resides somewhere within the domain of foreign affairs and war powers, both of which areas are inhabited to some degree by the President together with the Congress.

(footnote) The Constitution specifically gives to Congress the power to “provide for the common defence,” Art. I, § 8, cl. 1; to “declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water,” id. § 8, cl. 11; “To raise and support Armies,” and “To provide and maintain a Navy,” id. § 8, cls. 12-13; “To make Rules for the Government and Regulation of the land and naval Forces,” id. § 8, cl. 14, “To declare War,” id. § 8, cl. 1; and to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof,” id. § 8, cl. 18. The President is responsible for “tak[ing] Care that the Laws [are] faithfully executed,” Art. II, § 3, and serves as the Commander-in-Chief of the Army and Navy, id. § 2, cl. 1.
It's hard to argue with that, and once you agree that the power lies with both branches, the "inherent authority" claim that the President can supercede Congressional mandates disappears. Congress has a role, and the President must be bound by it, except where Congress's rules would interfere with his ability to command the military. FISA poses no such limits, since it permits surveillance to begin provided a warrant is sought within 72 hours.

The CRS notes that:

The Senate Judiciary Committee stated that the bill was “designed . . . to curb the practice by which the Executive Branch may conduct warrantless electronic surveillance on its own unilateral determination that national security justifies it,” while permitting the legitimate use of electronic surveillance to obtain foreign intelligence information.
That sounds familiar, doesn't it?

The report carefully looks at the language and the legislative history, finding for instance that the Senate's language that

procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of that Act, and the interception of domestic wire, oral, and electronic communications may be conducted.
rather than the "exclusive statutory means" as the House had written. The House accepted the Senate version, writing:

The conferees agree that the establishment by this act of exclusive means by which the President may conduct electronic surveillance does not foreclose a different decision by the Supreme Court. The intent of the conferees is to apply the standard set forth in Justice Jackson’s concurring opinion in the Steel Seizure case: “When a President takes measures incompatible with the express or implied will of Congress, his power is at the lowest ebb, for then he can rely only upon his own constitutional power minus any constitutional power of Congress over the matter.” Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952).
The report concludes that "In this language, the conferees acknowledge that the U.S. Supreme Court, as the final arbiter of constitutional power, might reach a different conclusion. The Court has yet to rule on the matter."

At the time, the Judiciary committee reported that:

The basis for this legislation is the understanding — concurred in by the Attorney
General — that even if the President has an “inherent” constitutional power to authorize
warrantless surveillance for foreign intelligence purposes, Congress has the power to
regulate the exercise of this authority by legislating a reasonable warrant procedure
governing foreign intelligence surveillance.
That this President disagrees doesn't change anything. And the report's survey of the existing jurisprudence mirror's Geoffrey Stone's evaluation. As to the AUMF defense, the report observes that, given the Hamdi decision (which the report treats much as I did previously):

The Administration’s position would seem to rely on at least two assumptions. First, it appears to require that the power to conduct electronic surveillance for intelligence purposes is an essential aspect of the use of military force in the same way that the capture of enemy combatants on the battlefield is a necessary incident to the conduct of military operations. Second, it appears to consider the “battlefield” in the war on terrorism to extend beyond the area of traditional military operations to include U.S. territory. Both assumptions have been the subject of debate.
Observing that killing an enemy soldier and taking an enemy captive are essentially equivalent battlefield acts, thus making authorization to take prisoners implicit in an authorization to use military force, the report notes that the argument about prisoners was backed by an examination of American law and international agreements.

The Administration has not pointed to any authority similar to those cited by the Hamdi plurality to support its proposition that signals intelligence is a fundamental aspect of combat. To be sure, there can be little doubt that Congress, in enacting the AUMF, contemplated that the armed forces would deploy their military intelligence assets in Afghanistan or wherever else the conventional aspect of the conflict might spread, but a presumption that the authorization extends to less conventional aspects of the conflict could unravel the fabric of Hamdi, especially where measures are taken within the United States.
This fairly well demolishes the AUMF defense, since the relevant part of that ruling is now O'Connor's insistence that "a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens."

I don't want to quote too much, but I love this passage (my emphasis):

FISA contains an exception to its requirements for 15 days after a congressional declaration of war. The inclusion of this exception strongly suggests that Congress intended for FISA to apply even during wartime, unless Congress were to pass new legislation. The fact that Congress amended FISA subsequent to September 11, 2001, in order to maximize its effectiveness against the terrorist threat further bolsters the notion that FISA is intended to remain fully applicable. To conclude otherwise would appear to require an assumption that Congress intended the AUMF to authorize the President to conduct electronic surveillance, even against American citizens not involved in combat, under fewer restrictions than would apply during a declared war, notwithstanding FISA provisions strengthened to take such circumstances into account. Even assuming, for argument’s sake, that the NSA operations are necessary to prevent another terrorist attack, a presumption that Congress intended to authorize them does not necessarily follow.
I also like this concluding paragraph:

To the extent that the Administration seems to base its interpretation of the AUMF and FISA on the assumption that a reading contrary to the one they rely upon would be an unconstitutional violation of separation-of-powers principles, it appears to regard the matter as deserving the highest level of deference under Youngstown’s first category [presidential actions authorized by Congress] simply by virtue of the assumption that it would survive scrutiny under the third category [presidential actions forbidden by Congress]. To conclude that Congress’s enactments are unconstitutional and therefore could not reflect Congress’s intent seems to beg the question.
And these polite last words, which the Post and the Times chose to quote:

Given such uncertainty, the Administration’s legal justification, as presented in the summary analysis from the Office of Legislative Affairs, does not seem to be as well-grounded as the tenor of that letter suggests.
The Post also observes that:

The report includes 1970s-era quotations from congressional committees that were then uncovering years of domestic spying abuses by J. Edgar Hoover's FBI against those suspected of communist sympathies, American Indians, Black Panthers and other activists. Lawmakers were very disturbed at how routinely FBI agents had listened in on U.S. citizens' phone calls without following any formal procedures. As they drafted FISA and created its court, the lawmakers warned then that only strong legislation, debated in public, could stop future administrations from eavesdropping.

"This evidence alone should demonstrate the inappropriateness of relying solely on executive branch discretion to safeguard civil liberties," they wrote. The lawmakers noted that Congress's intelligence committees could provide some checks and balances to protect privacy rights but that their power was limited in the face of an administration arguing that intelligence decisions must remain top secret.
Kris Kobach disagrees, which almost surely means that the CRS is right. Kobach's grasp of national security issues is as tenuous as any of his knowledge seemed to be in 2004. There was an especially egregious argument over whether the top-line figures for the intelligence budget should be made public. Kobach said no, Dennis Moore said yes, and said so because the 9/11 commission said so. Guess who I trust most of those three.

Tom Kean, former Republican Governor of New Jersey and widely respected head of the 9/11 commission, who

said in an interview that the commission was never told of the [warrantless spying] operation and that he has strong doubts about whether it is authorized under the law.

Federal law under the Foreign Intelligence Surveillance Act, created in 1978, "gives very broad powers to the president and, except in very rare circumstances, in my view ought to be used," said Mr. Kean… "We live by a system of checks and balances, and I think we ought to continue to live by a system of checks and balances."
I've been asked sarcastically if I'm a lawyer. No. Of course not. That's why I'm thrilled that John Ashcroft, Sam Brownback, Bob Barr, Tom Kean, Arlen Specter, Chuck Hagel, Nancy Pelosi, Jay Rockefeller, Harry Reid, Tom Daschle, the CRS, the former counsel to the Senate Intelligence Committee, Prof. Orrin Kerr and Distinguished Prof. Geoffrey Stone are a but few of the other people taking the same basic stance. They are lawyers and law-makers, and if they don't know the score, no one does.

Brownback's opposition has been luke-warm, and I think Terry is right that he was trapped by his former statements into applying the Clinton test (denounce only if you'd denounce Clinton for doing the same, justify only if you could justify Clinton doing it). Nonetheless, there he was, saying "I do not agree with the legal basis on which they are basing their surveillance — that when the Congress gave the authorization to go to war that that gives sufficient legal basis for the surveillance."

Who exactly is there on the other side? What independent analysts have come forward to defend this program?

And let's just repeat a question that's yet to be answered, "Can anyone - anywhere - explain, just a little bit - just one time - how "national security has been damaged" by revelations that the Administration was eavesdropping without FISA-required warrants and judicial oversight rather than with them?"

Or take a swing at a simpler question: why couldn't the president have followed the fairly simple FISA rules?

Question” by Son Volt from the album Wide Swing Tremolo (1998, 4:00).

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