Marginal Utility

by Tom Bozzo

Sen. Feingold at TPMCafé:

I think it is clear that the Attorney General misled the Committee and the public not only about the NSA wiretapping program but about his views on presidential power. That broader issue was central to the debate over his nomination...

This administration reacts to anyone who questions this illegal program by saying that those of us who demand the truth and stand up for our rights and freedoms somehow has a pre-9/11 world view. In fact, the President has a pre-1776 world view. Our government has three branches, not one. And no one, not even the President, is above the law.

Joe Malchow criticizes Feingold at Dartblog for neglecting the AG's arguments in favor of:

a president’s inherent authority to spy on the enemies of the United States—an authority that congressional statute cannot limit... Feingold would best spend his time arguing in favor of the constitutionality of FISA’s limitations on intelligence-gathering, because it seems probable that ultimately the question will come to that.

I don't disagree with Joe as to the probable direction of the legal battle, though he clearly elides the distinction between domestic and foreign "enemies" that's at the heart of the issue. If the NSA business were a pure matter of spying on foreign adversaries, there would be no controversy. And, indeed, the administration's now non-operative spin (suggesting a limited program targeted at communications with Al Qaida suspects) has tried to gloss over the central point that citizens have constitutional rights not to be spied upon in the absence of probable cause, and that the president has at most limited authority to suspend constitutional rights (*).

What I'd be interested in hearing from the constitutional scholar world is why, in a FISA constitutionality battle, there should be any question of Congress's authority given the plain language of Article III (section 8), which grants Congress the powers:

To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

[..., and last but not least:]

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. [emphasis added]

For that matter, the authority to suspend habeas corpus in a time of emergency rests with Congress, not the executive (Article III, Section 9). The Weak Argument from Revealed Preference would be that the administration's efforts to keep the enemy combatant cases from final Supreme Court disposition amounts to a tacit admission that those arrogations of authority are shaky at best. For a constitutional challenge to FISA to succeed, it also seems like a highly unconventional reading of Article III would be required.

Of course, lawyers sometimes read plain language unconventionally, so that's not to say that Justice Samuel "Unitary Executive" Alito isn't the guy to provide the unconventional reading.

Addendum: From the opinion in Hamdi v. Rumsfeld:

Indeed, the position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government. 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. Youngstown Sheet & Tube, 343 U.S., at 587. Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake. Mistretta v. United States, 488 U.S. 361, 380 (1989) (it was “the central judgment of the Framers of the Constitution that, within our political scheme, the separation of governmental powers into three coordinate Branches is essential to the preservation of liberty”); Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398, 426 (1934) (The war power “is a power to wage war successfully, and thus it permits the harnessing of the entire energies of the people in a supreme cooperative effort to preserve the nation. But even the war power does not remove constitutional limitations safeguarding essential liberties”).

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(*) I might be tempted to say "no authority," though at least as a practical matter, presidents have been granted latitude in times of war. The need to defend the current administration's curtailments of civil liberties does throw some interesting light on wingnutty efforts (no link to be provided, but some of you will know of whom I speak) to defend actions, such as the internment of Japanese-Americans during WWII, that non-wingnuttia is capable of viewing as erroneous in retrospect.