July 24, 2006

The Silence of the Informed

Arlen Specter has written an Op-Ed in the Washington Post that is apparently giving the left side of the blogosphere convulsions this morning, entitled, Surveillance We Can Live With.

The section of Specter's editorial that seems to be giving most liberals fits is where Specter (according to them) misunderstands the Youngstown decision:

Critics complain that the bill acknowledges the president's inherent Article II power and does not insist on FISA's being the exclusive procedure for the authorization of wiretapping. They are wrong. The president's constitutional power either exists or does not exist, no matter what any statute may say. If the appellate court precedents cited above are correct, FISA is not the exclusive procedure. If the president's assertion of inherent executive authority meets the Fourth Amendment's "reasonableness" test, it provides an alternative legal basis for surveillance, however FISA may purport to limit presidential power. The bill does not accede to the president's claims of inherent presidential power; that is for the courts either to affirm or reject. It merely acknowledges them, to whatever extent they may exist.

Anonymous Liberal writes:

Good lord. Can someone please get Senator Specter a copy of Youngstown?


Seriously, if Specter had written the above-quoted paragraph on a constitutional law exam, his professor would have flunked him. His description of the interplay between statutes and the president's article II authority runs contrary to the long-established Youngstown framework, which--as the Court's various opinions in Hamdan demonstrate--all nine of the current Supreme Court justices accept as controlling.

As Specter should know, there is a world of difference between what a president has the power to do in the absence of a statute and what he has the power to do in the face of a statutory prohibition. That's constitutional law 101.

Much has been made of Specter's willingness to legislate in the dark. He has, after all, agreed to sponsor legislation legalizing a program about which he has not even been briefed. But far more disturbing to me is his apparent inability to get his head around a basic principle of constitutional law. As I noted last week, the very wording and structure of his bill--like his op-ed--reflects a fundamental misconception of presidential authority. And there's really no excuse for that. Someone on Specter's staff really does need to sit him down and force him to read Youngstown. Or if he doesn't have time, footnote 23 of the Hamdan decision will suffice:

Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers.
Senator Specter, please pay special attention to the phrase "whether or not." That's the key. It doesn't matter whether the pre-FISA cases you cite in your op-ed held that the president has inherent authority to conduct warrantless surveillance. A duly enacted statute, like FISA, may nevertheless place enforceable limits on the president's authority. This is not controversial.

If this as not controversial as Mr. Liberal and Marty Lederman state, then why is this issue still being debated at all?

Surely, if the issue is as cut-and-dried as these folks seem to suggest, then the army of NSA staff lawyers that specialize is this area of law and have reviewed the details and legality of the program would have condemned the program before it was implemented.

And yet, in the years before the program was exposed by the New York Times, not one patriotic NSA lawyer has "leaked" the damning details of the story to defend the nation.

Nor has the program been a concern for the man in charge of implementing it, General Michael Hayden, who knew its details. Nor has it apparently been a concern for the NSA team in charge of the program's implementation and monitoring. If the program was so clearly out of bounds as all of these expert pontificators suggest with their thorough lack of knowledge of the program, certainly some of the incriminating details of the program would have found their way to the Times. And yet, the literally dozens of people who know the program best, including the NSA lawyers that specialize in this are of law and the professionals that implemented it, a bevy of White House Counsel, and career Justice Department lawyers, have kept mum.

For that matter, the ten FISA Court judges that were briefed on the program have also kept quiet; surely if they had objections, they could have resigned from the court with no penalty, sending a very loud message. And yet, they have refused to do so.

Are we to assume, then, that all of these federal employees, many of which have public service dating back to prior Administrations, are so willing to give up essential liberties and are such Bush sycophants that they would willing engage in the undercutting of the U.S. Constitution?

This seems to be at the root of the libertarian and liberal allegation, in my non-legally-educated mind. In their ever-present desire to condemn the Administration, they presume that those who do know the program best are willing accomplices to the undermining of the nation. I could perhaps accept this explanation if so many people were not involved, but that is not the reality of the situation.

Uninformed doubters are of course free to object to the program quite strenuously as they have and certainly will continue to do, but from where I sit, the silence of the informed speaks volumes.

Posted by Confederate Yankee at July 24, 2006 10:36 AM | TrackBack

One of the NSA court judges *did* resign in response to the revelations about NSA program. And the New York Times was only able to write about the program because someone in the NSA did leak it.

Justice Department officials also thought that the military commissions were legal, but we have since discovered that they were not. And remember, the OLC also wrote the torture memo saying that the President could legally torture people. They eventually backed away from that one, too.

You shouldn't assume that if employees of the President support something, that means it is necessarily legal or above board. There have been lots of scandals in this country where executive branch officials defended or even covered up for their higher ups because they thought it was their job to do so.

Posted by: Union Southerner at July 24, 2006 11:21 AM

Union: The "torture memo" defined torture. It did not say "you can torture people".

That you obviously disagree with that legal definition of torture and consider that some of the things it allowed as a legal opinion should be considered torture, does not mean that the memo said "the President could legally torture people".

It means you have an argument to make to convince us that your usage is correct and that of the legal staff who wrote the memo is wrong. Having read the memo, I can't say I agree with you. But simply asserting "torture" isn't very effective in convincing people like me you're correct in such judgements.

Posted by: Sigivald at July 24, 2006 11:33 AM

Sigivald, the OLC torture memo did more than define torture narrowly-- a definition that the OLC backed away from later on, by the way. It also said that the torture statute would be *unconstitutional* as applied to the President. That meant that it was legal for him to torture.

The larger point is that just because the OLC or the Justice Department says that the President is right doesn't mean he is. The Hamdan decision rejected the President's claims about the legality of his proposed military tribunals. It also undermines the legality of the NSA program.

In the post Confederate Yankee argues that the President must be right because nobody objected to the NSA program. But he is not correct that nobody in the Administration or the FISA objected to the legality of the NSA program. People did object-- that's how the story leaked to the press. And one judge did in fact resign.

Posted by: Union Southerner at July 24, 2006 11:43 AM


FISA court judge James Robertson resigned months before the court as briefed, and no member has resigned since.

Risen and Litchblau were certainly the recipents of leaks, but the lack of specific detail about the program would seem to indicate that the compartmentalized NSA groups dealing directly with the program (the ones I refer to in my post) were not involved.

The level of detail they printed was more in line with the high-level leaks you might get from a congressman... or perhaps a senator.

Posted by: Confederate Yankee at July 24, 2006 11:44 AM

I think you are forgetting Russell Tice,the NSA employee/whistleblower. In the stories about him,Tice stated that the NSA's surveillance programs were used for millions of citizens but he did not reveal the details since he was under a confidentiality agreement.
He also admitted to being at least one of the whistleblowers with enough details as he worked for the NSA.

Posted by: TJM at July 24, 2006 12:02 PM

Wow, there's some logical fallacy there! Without taking sides on the issue, here's the error that Union Southerner makes.

"It also said that the torture statute would be *unconstitutional* as applied to the President. That meant that it was legal for him to torture."

Saying a statute is unconstitutional does not mean that they are saying it is legal to torture someone. It just says that a certain statute doesn't make it illegal. Geeze. It may very well (and should be) illegal by some other means.

Posted by: Mike Rentner at July 24, 2006 12:13 PM

Specter's saying that FISA doesn't properly reach the presidential power in question. I guess he'd therefore say that in a Youngstown-Jackson test, the balance would tip the executive's way under part three or stand alone under part two. The business about the president's power either existing or not is correct so far as it goes. Youngstown, or at least its concurrence as sketchily adopted into law, may lead a court to conclude that the presidential power is outweighed by a congressional one, but not that it doesn't exist. That would produce a nonsensical situation absent any statute at all.

Anyway, isn't this bill about moving the surveillance controversy into Jackson's category one? Lederman, Balkin, et al can think Specter's a dumbass, but I can't see any constitutional barrier to Specter's rounding up the votes and changing Youngstown categories, thus resolving the mess.

Posted by: CS at July 24, 2006 12:15 PM

TJM, Tice was never in the area working with this program. He knew there was a program, but I think he admitted he did not know the details.

He's also a stalker (which is why he was bumped out of the DIA) diagnosed with psychotic paranoia (which is why the NSA stripped his clearances and assigned him to the motor pool), but that is neither here nor there.

Posted by: Confederate Yankee at July 24, 2006 12:25 PM

Confederate Yankee,

I have gone back and forth about this with Anonymous Liberal here. The basic jist, I think, is that Anon Liberal, and Marty Lederman, are misreading Specter's op-ed.

That being said though, I don't think that your argument about the "silence of the informed" has as much power as you think it does. Remember that the Bush Administration argues primarily that the AUMF authorizes the NSA program by satisfying one of the exceptions to FISA's warrant requirements. That's a debateable position, and could be the position that others in DOJ, NSA, the FISA court, etc. rely upon in deciding not to resign. But that issue isn't really the one that the Specter legislation addresses; Specter's not clarifying the reach of the AUMF. Rather, Specter is proposing to modify FISA so that the Administration doesn't have to rely on the AUMF argument any more.

So I think there are two different things going on here. One is that lawyers in the Administration now feel comfortable enough with the AUMF argument that they don't feel the need to resign. The other is that Specter proposes to amend FISA so that the AUMF argument wouldn't be necessary any more. But the one thing doesn't necessarily depend on the other.

Posted by: A.S. at July 24, 2006 12:50 PM

In the 1990s, I worked on national intelligence programs, with clearance to 4 SCI areas.

Confederate Yankee's meme re "silence of the informed" shows EXTREMELY deep ignorance of the Intelligence Community.

Why did George H Bush find it necessary to pardon
roughly 15 top-level CIA and military officers for Iran Contra (including Negroponte) if the "informed" blow the whistle? Iran Contra only came out because a plane crashed in Nicaragua and a CIA contract employee squealed like a pig.

Doesn't George W Bush and his appointees in the Executive Branch know they can wipe their behinds on the Bill of Rights today because the Democratic minority have no hope of mounting impeachment proceedings --or even an Iran Contra style investigation?

So what about the Intelligence rank and file? Well, they have to take polygraphs and most of them would have a hard time finding a job outside the Community due to their specialized work experience.

Plus Porter Goss passed a bill --deceitfully called the Intelligence Community WHistleblower Protection Act -- in 1998 which says that (a) an employee of the Community who wants to complain to Congress about a questionable or illegal activity must go to a member of the Intelligence Committees --NOT to the employee's Members of Congress and (b) said employee must notify officers of the Executive Branch that he plans to snitch on them 30 days BEFORE he contacts the Intel Committee. WHich pretty much dooms the employee's career.

But as usual, the right wing blogosphere cheerfully makes shit up --or in the case of Instapundit Glenn Reynolds, link to those who make shit up -- while criticizing the alleged errors of the Main Stream Media.

Posted by: Don Williams at July 24, 2006 02:17 PM

Confederate Yankee,

I think you're confusing two things.

One is whether the NSA program was legal. That is indeed controversial (although few lawyers outside the administration think the program was legal.)

The issue that is not controversial is whether Congress views affect the program's legality. It is well settled that the president's constitutional authority shrinks or expands depending on whether what he is doing is prohibited, ignored, or authorized by Congress. What is frustrating about Specter's bill is that he says he's only providing for review of the NSA program's legality, but actually, he's legalizing it.

Posted by: AF at July 24, 2006 02:23 PM

Anyone recall how the NRA leadership was talking about "jackbooted federal thugs" a few years back in the Clinton Administration? Anyone recall them
arguing that we should accept the deaths of 10,000+ Americans EVERY year as the price of protecting the Second Amendment. Because someday, in the distant future, a dictatorship might arise and the American people would need to resist it.

So why is the NRA leadership now totally SILENT while the Republican President and Republican Congresses --that Wayne LaPierre put in power -- create a dictatorship TODAY?

That's why I refuse to give more money to the NRA and to renew my membership this year.

Posted by: Don Williams at July 24, 2006 02:28 PM

Well, the Patriot Act passed 89-11 for renewal, so the 'civil liberties' crowd does not have much support even among Democrats.

Posted by: Toog at July 24, 2006 02:42 PM

It seems to me Youngstown (and now Hamdan) is being widely misconstrued as "the President has no Article II powers that cannot be overruled by act of Congress."

The salient fact about the Youngstown case was that it involved not allowing the President to nationalize a domestic steel mill on the (fairly spurious) basis of war powers. It's a pretty big stretch to parlay a decision about property seizure into an argument against the President being able to wiretap calls for the purpose of fighting an international enemy, and an even bigger stretch to call it an accepted consensus.

And in Hamdan, Congress' authority over military rules comes from the Constitution.

Posted by: TallDave at July 24, 2006 02:43 PM

How about the silence of the uninformed?

If you want to play the assumption game, what do you read into Bush personally blocking his own DOJ's Office of Professional Responsibility from looking into it?

If silence does speak volumes to you, then duct tape across the mouth must be positively screaming.

Posted by: creepy dude at July 24, 2006 03:56 PM

Talldave, we're talking about warrantless spying on American citizens in America. That's firmly within the core of the Youngstown concurrence.

It just says that a certain statute doesn't make it illegal.

Bzzt. The argument says that no statute could ever make it illegal.

Posted by: jpe at July 24, 2006 07:21 PM

On the cover of CNN....

ABA: Bush violating Constitution
Bar association president says signing statements erode democracy

Monday, July 24, 2006; Posted: 11:05 a.m. EDT (15:05 GMT)

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• Greenfield: Why signing statements matter

George W. Bush
Judiciary (system of justice)
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Manage Alerts | What Is This? WASHINGTON (AP) -- President Bush's penchant for writing exceptions to laws he has just signed violates the Constitution, an American Bar Association task force says in a report highly critical of the practice.

The ABA group, which includes a one-time FBI director and former federal appeals court judge, said the president has overstepped his authority in attaching challenges to hundreds of new laws.

The attachments, known as bill-signing statements, say Bush reserves a right to revise, interpret or disregard measures on national security and constitutional grounds.

"This report raises serious concerns crucial to the survival of our democracy," said the ABA's president, Michael Greco. "If left unchecked, the president's practice does grave harm to the separation of powers doctrine, and the system of checks and balances that have sustained our democracy for more than two centuries."

Some congressional leaders had questioned the practice. The task force's recommendations, being released Monday in Washington, will be presented to the 410,000-member group next month at its annual meeting in Hawaii.

ABA policymakers will decide whether to denounce the statements and encourage a legal fight over them.

The task force said the statements suggest the president will decline to enforce some laws. Bush has had more than 800 signing statement challenges, compared with about 600 signing statements combined for all other presidents, the group said.

Noel J. Francisco, a former Bush administration attorney who practices law in Washington, said the president is doing nothing unusual or inappropriate.

"Presidents have always issued signing statements," he said. "This administration believes that it should make clear ... when the Congress is getting close to the lines that our Constitution draws."

Francisco said the administration's input is part of the give and take between the branches of government. "I think it's good that the debate is taking place at a public level," he added.

White House Press Secretary Tony Snow said last month that "it's important for the president at least to express reservations about the constitutionality of certain provisions."

The ABA report said President Reagan was the first to use the statements as a strategic weapon, and that it was encouraged by then-administration lawyer Samuel Alito -- now the newest Supreme Court justice.

The task force included former prosecutor Neal Sonnett of Miami; former FBI Director William Sessions; Patricia Wald, former chief judge of the U.S. Court of Appeals for the District of Columbia Circuit; former Republican Rep. Mickey Edwards; and former Reagan administration lawyer Bruce Fein; and law school professors and other lawyers.

Posted by: Johnny at July 24, 2006 07:34 PM

It seems many on the left are ignoring a clearly elucidated part of Hamdan footnote 23: "[The President] may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers." (emphasis added) FISA, to my understanding, is not concerned per se with war powers but rather law enforcement and is therefore not demonstrably an exercise of Congress' powers in contention with the President's.

Union: Like many on your side, you seem to be confusing a document saying "these are the legal issues and possible interpretations of the laws concerning torture" with a document saying "put 'em on the rack." It reminds me of a pointless argument I had with a WWII vet when I was discussing the reasons Japan attacked and he thought I was defending their actions. One may understand the motivations of a killer without agreeing, the same as one can study the conditions under which "torture" may be legally justified without condoning the practice.

Don: I'll not trade digraphs and trigraphs with you, but I, too, was "inside" in the '90s and can't agree with your general characterization of intelligence professionals. This, too, reminds me of a previous conversation I had. Despite my personal experience and background I could not persuade a conspiracy theorist that TWA 800 could not possibly have been downed by a super-secret submarine launched AA missile without at least one crew member coming clean. Further, I am curious as to the source for your price of 10,000+ Americans per year for protecting the Second Amendment.

AF: I am also curious as to the reasoning behind your assertion that few lawyers outside the administration believe the NSA program was legal. I could believe that few lawyers in your personal cirle believe such, but I have read several articles and posts from lawyers with no connection to the administration make the argument that FISA had no standing WRT the program and that it was completely within the scope of the President's war powers.

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Posted by: Kane at July 25, 2006 03:56 PM

So, if the people who know best are the people who are closest to the issue, then can I please quit hearing a single freaking word about fighting the War on Terror from Chickenhawks who've never spent a day in uniform? Hmmmm?

Or does that only apply when you say it applies?

How about for your next post: "Well Enron's lawyers said it was OK!"

Posted by: nitpicker at July 27, 2006 04:53 PM

Hayden was fine with the illegal spying because he doesn't even know what our rights are, nor what the Amendments to the Constitution actually mean.

And nitpicker, my good man, according to these people, since the pResident is a civilian, then anyone who is a civilian should be able to support other people going and dying for illegal wars based on known lies.

"You go put your life on the line for my pie-in-the-sky democracy-experiment while I go eat cheetos in my basement, fighting the 'war of ideas' in between my World of Warcraft games."

Posted by: Shorter Rightwing Meanies at July 28, 2006 10:19 AM