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Legal (and good for you)

Yesterday we failed to get around to the excellent New York Times op-ed column by David Rivkin and Lee Casey on the law applicable to the NSA terrorist eavesdropping program: “Unwarranted complaints.” Here is the point made as concisely as possible, consistent with John’s longer analysis here last week:

The president has the constitutional authority to acquire foreign intelligence without a warrant or any other type of judicial blessing. The courts have acknowledged this authority, and numerous administrations, both Republican and Democrat, have espoused the same view. The purpose here is not to detect crime, or to build criminal prosecutions – areas where the Fourth Amendment’s warrant requirements are applicable – but to identify and prevent armed attacks on American interests at home and abroad.

Unlike Times reporter Eric Lichtblau, Rivkin and Casey know what they are talking about. Their column belies the gist of the Times’s own coverage, and I appreciate the Times’s publication of the column. However, it’s too late to undo the wrongdoing the Times has indulged or the damage it has wrought.

For more on a related legal point, see today’s Wall Street Journal column by Robert Turner: “FISA vs. the Constitution.” (Courtesy of RealClearPolitics.)

PAUL concurs in part: FISA is not an attempt to take away the president’s ability to gather foreign intelligence. As I understand the statute, it’s an attempt to provide safeguards when the president uses that power in ways that involve spying on Americans. I don’t know enough about the details of the NSA intercept program to say whether (a) the president violated FISA and (b) whether he needed to do so in order to get the information necessary to protect our security. (These questions may merge due to the general congressional authorization to take necessary and appropriate military action to prevent another 9/11).

If the president violated FISA and didn’t need to (which I doubt), that would concern me. If the president violated FISA but needed to, then the legal issue becomes whether his inherent authority as commander-in-chief permits him to do so. I think it probably does, but this is a “twilight” area, as Robert Turner seems to acknowledge in the Wall Street Journal piece. The fact that other administrations may have argued that the president’s authority trumps FISA, or that the FISA court has assumed so, does not settle the matter.

JOHN concurs, mostly: Paul and I have seen this issue slightly differently, and his succinct statement of his own views is a good opportunity to highlight where we agree and disagree. First, I think Paul’s description of FISA is correct. Second, I agree that if the administration didn’t follow FISA procedures where American citizens were involved, and where it could easily have done so, it would be “troubling.” I doubt that this is the case, however, given that the administration did go to the FISA judges for literally thousands of orders authorizing surveillance.

Where Paul and I disagree, in a relatively subtle way, is on the further question whether the President has the inherent constitutional authority to carry out warrantless surveillance to obtain national security information. Paul thinks he probably does, but the question is not definitively settled. I would go farther. It is true that the Supreme Court has not specifically addressed this issue, although its decision in the Keith case can be read as implicitly acknowledging the President’s constitutional powers in this regard.

But the point I think is critical is that four federal appellate courts have squarely held that the President does have this constitutional authority. In addition, the FISA appellate court has said that it “takes for granted” that the President has the constitutional authority to order warrantless surveillance for foreign intelligence purposes, and has added what I think is obvious, that “FISA could not encroach on the President’s constitutional power.” It’s possible, of course, that the Supreme Court could someday disagree with, and overrule, the existing case law on the President’s constitutional authority. In that sense, the question can be regarded as open. But in the context of the current controversy, I think the salient point is that the existing case law unanimously supports the President’s constitutional authority. I think that the administration is plainly entitled to rely on the current state of the law in carrying out its national security responsibilities, and that the oft-repeated assertion that the NSA intercepts are “illegal” is simply wrong. Moreover, that opinion would not change even if I thought that the Supreme Court was likely, some day, to come down on the other side of the legal issue.

The final question, of course, is what would happen if the President and the Supreme Court should disagree about the constitutional scope of the President’s national security powers. The President has the right and duty to interpret and apply the Constitution to the same degree as the Supreme Court. In a situation like this one, where the President is not asking the federal courts to enforce his view of his constitutional authority through, e.g., a criminal prosecution, it may be that the President could, and should, disregard an opinion of the Supreme Court that he regards as erroneous, as Lincoln did with regard to Chief Justice Taney’s habeas corpus order during the Civil War. But for now, at least, that is an academic discussion.

PAUL concurs, mostly: I think it’s well-settled enough that, in the absence of a congressional enactment purporting to limit him, the president has the constitutional authority to carry out warrantless surveillance to obtain national security information. But if Congress purports to limit this power, thus creating the situation where Justice Jackson viewed the president’s power as weakest, I think the issue is open. As far as I know (and I may be wrong), the only decision that addresses this situation is the FISA court case in 2002, which does so in conclusory dicta. That’s not to say the FISA court got it wrong — only that the issue strikes me as an open one.

In any case, I agree with John that, on the current state of the law, the president was entitled to conclude he could go forward with the intercept program and implement it as he did, to the extent that he reasonably considered this approach necessary to protect this country.

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