The twilight zone, Part Two

The blogosphere remains the best source of analysis on the legality of the NSA electronic intercept program. And John’s analysis immediately below is the best analysis I’ve seen on the blogosphere. (The Justice Department letter mentioned in the add-on to John’s piece is also quite good, and it is through the blogosphere that it becomes part of the public debate).

I still think there is room for doubt about the legality of the program because (a) it’s not clear that the program is consistent with FISA and (b) if the program is prohibited by FISA, it’s not clear that the president can act notwithstanding the prohibition. On the first issue, the Department of Justice’s argument that the program falls into the “authorized by statute” exception by virtue of the Authorization for the Use of Military Force (AUMF) is hardly a slam dunk argument, as I think John agrees. John’s argument that FISA doesn’t apply to the NSA surveillance because the acquisition of the intercepted communication does not occur in the U.S. depends (as he agrees) on the details of the program. It may also depend on fairly metaphysical notions of how one decides where wire communications are acquired. (Note also that the Justice Department does not rely on this argument)

I’m inclined to agree with John that it doesn’t matter whether FISA prohibits the intercept program because, in any case, Congress lacks the power to prohibit the president from exercising his inherent power as commander-in-chief. However, it appears that only one court (the FISA court itself) has reached this question. To be sure, that court embraced the view that Congress, through FISA, cannot encroach on the president’s constitutional power. However, that court didn’t really analyze the question; instead it took the answer “for granted.” And I doubt that the FISA court’s ruling is binding on other courts in any case.

Although the president’s power is great, Congress also has broad power to legislate. It can’t tell the president how to fight a war, but arguably it can have a say when the president’s prosecution of a war spills over into domestic policy. President Truman’s expropriation of the steel mills is an example (should he have been impeached?). The spillover that occurs in the NSA intercept program seems less problematic, but may still fall into a twilight area between presidential and congressional power. A court might be tempted to avoid getting into that twilight zone by construing FISA either as not barring the president’s actions or as insufficiently clear on the subject.

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