The Terrorist Surveillance Program Is Legal
By AndrewHyman Comments (1) / Email this page » / Leave a comment »
There's no question that the recent District Court decision about the TSP is very weak and not well-reasoned. However, that doesn't mean the issue is cut and dried. Law professors like Jack Balkin and Orin Kerr believe the Terrorist Surveillance Program may be illegal, even though they also find the District Court's rationale unpersuasive.
My own view (based upon the info currently available) is that the program is legal. Suppose the President can prove that the surveillance program is a fundamental incident of war, and that the Fourth Amendment was not violated, and that not having the surveillance program would prevent the United States from taking necessary and appropriate action against Al Qaeda. Most legal scholars and security experts agree that the administration might be able to prove these three things.
So, if the President can prove these three things, wouldn't the President be establishing that the surveillance program is authorized by the 2001 Authorization for Use of Military Force (AUMF)? To me, the answer seems obvious: yes.
When the AUMF was enacted in 2001, Congress was concerned that it would pre-empt the War Powers Resolution, and therefore the last sentence of the AUMF is a savings clause to protect the War Powers Resolution. In contrast, there is no savings clause in the AUMF that protects the Foreign Intelligence Surveillance Act (FISA).
The key here will be for Congress and the administration to work together cooperatively to fashion legislation that clarifies what’s legal and what isn’t. A judicial solution is not the way to go, and most certainly not a judicial solution like the one that was just handed down in Detroit.
Since I don't necessarily subscribe to Judge Taylor's theory that the Fourth Amendment has been violated directly, the pivotal matter becomes the statutory interpretation of FISA and the AUMF taken together.
I happen to disagree that the AUMF authorizes such surveillance, and so far the first-impression holding by the trial court also disagrees.
But if the administration is ultimately able to prevail on that argument, then I will concede that the program is legal.
From the Hamdi and Hamdan cases we know that the resolution authorizes some things, but not all things the administration has claimed. Making a statutory interpretation with repsect to warrantless surveillance in this country will necessarily depend on the specific laws and facts at issue.
DOJ should forthrightly engage on the merits of that question. More troubling is the question of what happens if Bush loses on that point. If the Supreme Court ever has to confront squarely Bush's assertions of a constitutional authority to override the FISA statute, I think he faces certain defeat.